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Garland v. BellSouth Advertising and Publishing Corp.

October 3, 2006

AMY GARLAND, INDIVIDUALLY, AND DOING BUSINESS AS: SHOWTIME VIDEO PLAINTIFF,
v.
BELLSOUTH ADVERTISING AND PUBLISHING CORPORATION, AND THE BERRY CORPORATION, DEFENDANTS.
BELLSOUTH ADVERTISING AND PUBLISHING CORPORATION AND THE BERRY CORPORATION, THIRD-PARTY PLAINTIFF,
v.
KNOXVILLE ADULT VIDEO SUPERSTORE, INC. AND LYNN WORTHINGTON, THIRD-PARTY DEFENDANTS.



The opinion of the court was delivered by: Thomas W. Phillips United States District Judge

(Phillips)

MEMORANDUM AND OPINION

The matter before the Court involves a defamation claim. Defendants filed a motion for summary judgment [Doc. 31] on July 18, 2006. Plaintiff has not responded to defendants' summary judgment motion. For the reasons that follow, defendants' motion for summary judgment [Doc. 31] is GRANTED.

I. Facts

The Court merely provides an abridged summary of facts for the purposes of this opinion. BellSouth Advertising and Publishing Corporation ("BAPCO") annually publishes the Real Yellow Pages ("Yellow Pages") in Tennessee, and The Berry Company ("Berry") is the sales agent in Tennessee for BAPCO that sells directory advertising in the Yellow Pages.

In November of 2004, third-party defendant, Lynn Worthington ("Worthington") represented to defendant Berry that she was the new owner of Showtime Video, located at 209 N. Hall Road, Alcoa, Tennessee. Upon the request and insistence of Worthington to Berry, BAPCO published an advertisement in the 2005 Maryville-Alcoa Yellow Pages, which read as follows:

Largest Adult Selection Anywhere

Over 15,000 Movies All Of The New Releases Adult & General Novelties, Kamasutra, Costumes, Lingerie Magazines, Books, Art & Marital Aids "Knoxville's Only Upscale Adult Store"

We Special Order Any Title Open 24 Hours A Day - 7 Days A Week Included in the advertisement was the name "Showtime Video" with phone number and address. The advertisement appeared under four headings in the 2005 Maryville-Aloca Yellow Pages addition: (1) "Entertainers;" (2) "Lingerie;" (3) "Novelties;" and (4) "Videotapes, Discs & DVDs - Sales & Rentals." At no time did Worthington relay to defendants that she did not want the advertisement published.*fn1

Although it appears that Worthington was negotiating to purchase Showtime Video, she never ultimately became the owner. Indeed, at the time the advertisement was published, Dan Smith ("Smith") was the owner. Approximately, one month after the subject advertisement was published, plaintiff Amy Garland ("Garland") signed a contract for the purchase of Smith's videostore assets.*fn2 Worthington did not contact the defendants to request that the advertisement be withdrawn; nor did she advise the defendants that Showtime Video was to be sold or was sold to Garland.

Under Garland's ownership, Showtime Video offered a variety of videos for rent to the general public, including adult entertainment videos. Defendants assert that Showtime Video's adult entertainment section was one of the most popular areas of the store.

Berry and BAPCO have filed the instant summary judgment motion based upon two grounds: (1) Smith was the only person with standing to bring a claim for defamation; and (2) the advertisement at issue was not defamatory.

II. Law Applicable to Rule 56 of the Federal Rules of Civil Procedure

Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment will be granted by a court only when there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. The burden is on the moving party to conclusively show that no genuine issue of material fact exists. A court must view the facts and all inferences to be drawn therefrom in the light most favorable to the non-moving party. Matsushita Elec. Indus. Co., v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); ...


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