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Clark v. E! Entertainment Television, LLC

United States District Court, M.D. Tennessee, Nashville Division

October 10, 2014

COREY D. CLARK, Plaintiff,

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[Copyrighted Material Omitted]

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For Corey D. Clark, Plaintiff: Matthew Scott Martin, LEAD ATTORNEY, Law Office of Matthew Scott Martin, LLC, Pueblo, CO; Eugenia R. Grayer, Law Office of Eugenia R. Grayer, Nashville, TN.

For E! Entertainment Television, LLC, Defendant: Todd Ryan Hambidge, LEAD ATTORNEY, Robb S. Harvey, Waller, Lansden, Dortch & Davis, LLP, Nashville, TN.

For Fox Broadcasting Company, Defendant: Lucian T. Pera, LEAD ATTORNEY, Adams and Reese LLP (Memphis Office), Memphis, TN; Tricia T. Olson, Adams and Reese LLP (Nashville), Nashville, TN.

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After a final judgment was entered in accordance with this Court's Order and Memorandum dismissing the Amended Complaint because Plaintiff's claims were time-barred, Plaintiff Corey Clark filed a " Motion to Vacate the District Court's Order and Judgment in its Entirety Pursuant to Rules 59 and 60." (Docket No. 93). Defendants E! Entertainment Television LLC (" E!" ) and Fox Broadcasting Company have filed responses in opposition, to which Plaintiff has replied. (Docket Nos. 95, 95 & 99).

For the reasons that follow, the Court will grant Plaintiff's Motion to Vacate and vacate the judgment that granted Defendants' Motions to Dismiss, and dismissed this action on statute of limitations grounds. However, the Court will grant Fox's Motion to Dismiss for failure to state a claim. The Court will also grant in part, and deny in part, E!'s Motion to Dismiss.


In its Memorandum dismissing this case on statute of limitations grounds, the Court ruled:

In Milligan v. United States, 670 F.3d 686, 698 (6th Cir. 2012), the Sixth Circuit stated that " Tennessee follows the single publication rule, meaning that a plaintiff's cause of action accrues only once,

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at the time of publication, and later publications do not give rise to additional defamation causes of action," and cited for that proposition Applewhite v. Memphis State Univ., 495 S.W.2d 190, 193-97 (Tenn.1973). . . .
* * *
The Sixth Circuit's pronouncement in Milligan regarding the single publication rule could not be any clearer, yet Plaintiff effectively asks the Court to ignore it. He argues that " [t]he substantive law of Tennessee, not the 6th Circuit decision in the Milligan case is controlling in the present matter" because " '[w]hen a federal court's jurisdiction is invoked under diversity of citizenship pursuant to 28 U.S.C. § 1332, the court must apply the substantive law of the state in which it is situated." (Docket No. 60 at 6, quoting Katahn v. Hearst Corp., 742 F.Supp. 437, 439 (M.D. Tenn.1990)) . . . .
The problem is, the Sixth Circuit was applying Tennessee law in a case on appeal from Judge Trauger's decision ruling in favor of Sinclair Broadcasting on plaintiff's state law libel claim relating to a television broadcast by Fox 17. Milligan is controlling authority. Just as a " 'panel cannot' reconsider a prior published case that interpreted state law, 'absent an indication by the [state] courts that they would have decided [the prior case] differently,' Blaine Constr. Corp. v. Ins. Co. of N. Am., 171 F.3d 343, 350 (6th Cir. 1999)," lower courts are not free to ignore controlling circuit authority:
" Where no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do. In performing this ventriloquial function, however, the federal court is bound by ordinary principles of stare decisis. Thus, when a panel of this Court has rendered a decision interpreting state law, that interpretation is binding on district courts in this circuit, and on subsequent panels of this Court, unless an intervening decision of the state's highest court has resolved the issue.

Rutherford v. Columbia Gas, 575 F.3d 616, 619 (6th Cir. 2009) (emphasis added). Clark v. E! Entm't. Television, LLC, 26 F.Supp.3d 709, 2014 WL 2615795, at *4-5 (M.D. Tenn. June 12, 2014).

Plaintiff claims the " Court committed a clear error of law when it (1) " misconstrued the single publication rule as being exclusive of republication" ; (2) " misapplied" Milligan; and (3) " failed to address in its ruling whether republication applies when a television show is rebroadcast with an intention to reach a new audience." (Docket No. 93 at 1-2). All three arguments are premised on the notion that the Court did not consider that the republication rule can co-exist with the single publication rule.

" A motion to alter or amend judgment under Rule 59(e) may be granted if there is '(1) a clear error of law; (2) newly discovered evidence; (3) an intervening change in controlling law; or (4) a need to prevent manifest injustice.'" Intera Corp. v. Henderson, 428 F.3d 605, 620 (6th Cir. 2005) (quoting GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999)).[1]" Rule 59(e) allows for reconsideration;

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it does not permit parties to effectively 're-argue a case.'" Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008) (quoting Sault Ste. Marie Tribe v. Engler, 146 F.3d 367, 374 (6th Cir. 1998)). " [T]he purpose of Rule 59(e) is to allow the district court to correct its own errors, sparing the parties and appellate courts the burden of unnecessary appellate proceedings." Howard v. United States, 533 F.3d 472, 475 (6th Cir. 2008)

Upon reconsideration, the Court reiterates that Milligan could not be any clearer. But it is clear only for the proposition that Tennessee follows the single publication rule. Milligan did not address republication, and jurisdictions that follow the single publication rule consistently appear to recognize an exception for republication. See Graboff v. Am. Ass'n of Orthopaedic Surgeons, 559 F.App'x 191, 195 n.4 (3rd Cir. 2014) (Pennsylvania follows the single publication rule, but " [r]epublication of defamatory material, for example in a new edition of a book or in an edited and reissued form . . . resets the statute of limitations" ); Yeager v. Bowlin, 693 F.3d 1076, 1081 (9th Cir. 2012) (applying California law and stating that " [u]nder the single-publication rule, the statute of limitations is reset when a statement is republished" ); Nationwide Bi-Weekly Admin, Inc. v. Belo Corp., 512 F.3d 137, 146 (5th Cir. 2007) (applying Texas law and stating that " the single publication rule provides that when an allegedly defamatory statement is published in a new format, such as when a hardcover book is republished in paperback form, it is considered 'republished' and the statute of limitations begins to run from the date of republication" ); Jankovic v. Int'l Crisis Grp., 494 F.3d 1080, 1088, 377 U.S.App.D.C. 434 (D.C. Cir. 2007) (" Like most common-law jurisdictions, the District of Columbia has adopted the modern 'single publication' rule . . . but republication in a new edition creates a new publication on the rationale that the intent is to reach a new audience" ); Etheredge-Brown v. Am. Media Inc., 13 F.Supp.3d 303, 2014 WL 1416352, at *2 (S.D.N.Y. Mar. 31, 2014) (" Courts have held that, notwithstanding the single publication rule, the publication of a work may constitute a 'republication'--giving rise to a new cause of action and re-starting the statute of limitations" ); Salyer v. So. Poverty Law Ctr., 701 F.Supp.2d 912, 914 (W.D. Ky. 2009) (predicting that Kentucky would follow single publication rule and that republication is a narrow exception to that rule); Atkinson v. McLaughlin, 462 F.Supp.2d 1038, 1052 (D.N.D. 2006) (" even under the single publication rule, the courts have recognized that [material] may be republished and create a new cause of action for defamation" ); Nichols v. Moore, 334 F.Supp.2d 944, 952 (E.D. Mich. 2004) (citation omitted) (" The single publication rule does not apply, however, 'where an item is published initially, but is then republished, not merely as a belated release of the original publication, but as a republication'" ). In stating that Tennessee followed the single publication rule, Mulligan relied on Applewhite wherein the Tennessee Supreme Court canvassed the law on the single versus multiple publication rules and ultimately concluded:

The single publication rule is suited to the contemporary publishing world where large numbers of copies of a book, newspaper, or magazine are circulated. It would substantially impair the administration of justice to allow separate actions on each individual copy and it would create the possibility of harassment, and multiple recoveries against defendants. Therefore, we hold under Tennessee law a plaintiff should be limited to a single cause

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of action based on the circulation of copies of an edition of a book, newspaper, or periodical.

Applewhite, 495 S.W.2d at 194. Applewhite was not concerned with the issue of republication. Rather, and as the above suggests, the concern was with circulation of copies of an edition of a publication.

In arriving at its conclusion, the Tennessee Supreme Court discussed two prior appellate court decisions applying Tennessee's statute of limitations in defamation cases where republication occurred: Underwood v. Smith, 93 Tenn. 687, 27 S.W.1008 (1894), which dealt with an article published in the Knoxville Evening Sentinel and then republished the next morning in the Knoxville Daily Tribune, and Riley v. Dun & Bradstreet, Inc., 172 F.2d 303 (6th Cir. 1949), which dealt with the timeliness of a defamation claims that was based on the republication of a report. It found Underwood " inapplicable" because " [t]hat case did not consider the question of whether separate copies of the same issue would create separate causes of action[.]" Applewhite, 495 S.W.2d at 192 (emphasis added). It distinguished Riley because in Applewhite " no second edition or other reprinting has been shown and the Riley case does not consider whether recent distribution without a republication could support an action." Id. (emphasis added).

Plaintiff concedes that " [n]o Tennessee appellate court has ever addressed the issue of whether to extend the common law single publication rule to include the exception of republication." (Docket No. 94 at 7). " In the absence of a clear pronouncement from the [Tennessee] Supreme Court, a federal court sitting in diversity 'must predict how the court would rule by looking to all the available data.'" Stryker Corp. v. XL Ins. Am., 735 F.3d 349, 361 (6th Cir. 2012) (quoting Allstate Ins. Co. v. Thrifty Rent-A-Car Sys., 249 F.3d 450, 454 (6th Cir. 2001)). Given that long before adoption of the single publication rule Tennessee courts recognized the republication doctrine, given that the republication doctrine is a widely accepted (but narrowly construed) exception to the single publication rule, and given that the Tennessee Supreme Court in Applewhite did not abrogate its prior decision in Underwood or call into question the Sixth Circuit's reasoning in Riley, the Court believes that the republication doctrine continues to be applicable in Tennessee.[2]

The program which serves as the basis for Plaintiff's claims was aired on January 27, 2012, and this lawsuit was filed within a year thereafter on January 25, 2013. Under the republication exception to the single publication rule, Plaintiff's complaint was timely.[3]

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Upon reconsideration, the Court will grant Plaintiff's Motion to Vacate. This does not end the inquiry, however, because in their Motions Dismiss, Defendants also argued dismissal was appropriate under Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim.


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