"Rule 12. Defenses and Objections: When and How Presented; Motion for Judgment on the Pleadings; Consolidating Motions; Waiving Defenses; Pretrial Hearing
(a) Time to Serve a Responsive Pleading.
(1) In General.
Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:
(A) A defendant must serve an answer:
(i) within 21 days after being served with the summons and complaint; or
(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.
(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.
(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.
(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity.
The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.
(3) United States Officers or Employees Sued in an Individual Capacity.
A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.
(4) Effect of a Motion.
Unless the court sets a different time, serving a motion under this rule alters these periods as follows:
(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court’s action; or
(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.
(b) How to Present Defenses.
Every defense to a claim for relief in any pleading must be asserted in the responsive pleading if one is required. But a party may assert the following defenses by motion:
(1) lack of subject-matter jurisdiction;
(2) lack of personal jurisdiction;
(3) improper venue;
(4) insufficient process;
(5) insufficient service of process;
(6) failure to state a claim upon which relief can be granted; and
(7) failure to join a party under Rule 19.
A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed. If a pleading sets out a claim for relief that does not require a responsive pleading, an opposing party may assert at trial any defense to that claim. No defense or objection is waived by joining it with one or more other defenses or objections in a responsive pleading or in a motion.
(c) Motion for Judgment on the Pleadings.
After the pleadings are closed — but early enough not to delay trial — a party may move for judgment on the pleadings.
(d) Result of Presenting Matters Outside the Pleadings.
If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
(e) Motion For a More Definite Statement.
A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response. The motion must be made before filing a responsive pleading and must point out the defects complained of and the details desired. If the court orders a more definite statement and the order is not obeyed within 14 days after notice of the order or within the time the court sets, the court may strike the pleading or issue any other appropriate order.
(f) Motion To Strike.
The court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. The court may act:
(1) on its own; or
(2) on motion made by a party either before responding to the pleading or, if a response is not allowed, within 21 days after being served with the pleading.
(g) Joining Motions.
(1) Right to Join.
A motion under this rule may be joined with any other motion allowed by this rule.
(2) Limitation on Further Motions.
Except as provided in Rule 12(h)(2) or (3), a party that makes a motion under this rule must not make another motion under this rule raising a defense or objection that was available to the party but omitted from its earlier motion.
(h) Waiving and Preserving Certain Defenses.
(1) When Some Are Waived.
A party waives any defense listed in Rule 12(b)(2)-(5) by:
(A) omitting it from a motion in the circumstances described in Rule 12(g)(2); or
(B) failing to either:
(i) make it by motion under this rule; or
(ii) include it in a responsive pleading or in an amendment allowed by Rule 15(a)(1) as a matter of course.
(2) When to Raise Others.
Failure to state a claim upon which relief can be granted, to join a person required by Rule 19(b), or to state a legal defense to a claim may be raised:
(A) in any pleading allowed or ordered under Rule 7(a);
(B) by a motion under Rule 12(c); or
(C) at trial.
(3) Lack of Subject-Matter Jurisdiction.
If the court determines at any time that it lacks subject-matter jurisdiction, the court must dismiss the action.
(i) Hearing Before Trial.
If a party so moves, any defense listed in Rule 12(b)(1)-(7) — whether made in a pleading or by motion — and a motion under Rule 12(c) must be heard and decided before trial unless the court orders a deferral until trial. "
Source of Post
Thursday, April 7, 2011
Tuesday, April 5, 2011
"Cybersmear or Cyber-SLAPP: Analyzing Defamation
Suits Against Online John Does as Strategic Lawsuits
Against Public Participation
Joshua R. Furman*
A recent advertising campaign by a national Internet Service Provider (ISP) depicts a happy home of consumers who never have to leave their house thanks to their super-fast connection and the wonders of limitless shopping on the web. Television spots show people in awe over the selection and convenience as they click away at laptops purchasing kitchen appliances, trading stocks, and occasionally greeting a courier with the latest treat materializing from their online adventures. In some ways these ads are a fanciful depiction of our current reality. While many of us have felt the excitement of a dot com shipment just a"
Source
http://lawpublications.seattleu.edu/cgi/viewcontent.cgi?article=1711&context=sulr&sei-redir=1#search="federal+rules+of+civil+procedure+defamation"
Suits Against Online John Does as Strategic Lawsuits
Against Public Participation
Joshua R. Furman*
A recent advertising campaign by a national Internet Service Provider (ISP) depicts a happy home of consumers who never have to leave their house thanks to their super-fast connection and the wonders of limitless shopping on the web. Television spots show people in awe over the selection and convenience as they click away at laptops purchasing kitchen appliances, trading stocks, and occasionally greeting a courier with the latest treat materializing from their online adventures. In some ways these ads are a fanciful depiction of our current reality. While many of us have felt the excitement of a dot com shipment just a"
Source
http://lawpublications.seattleu.edu/cgi/viewcontent.cgi?article=1711&context=sulr&sei-redir=1#search="federal+rules+of+civil+procedure+defamation"
"
The Need for Federal Anti-SLAPP Legislation
BY PETER KURDOCK AND MARK GOLDOWITZ
Overview
Federal anti-SLAPP legislation, H.R. 4364, is currently pending before Congress. Sponsored by Congressman Steve Cohen (D-TN9), the Citizen Participation Act encourages civic engagement and protects against meritless lawsuits brought against those who petition the government or speak out on a public issue. The bill allows someone who is brought to court on a meritless lawsuit arising from his or her exercise of First Amendment rights to have the lawsuit dismissed, and to recover attorney’s fees.
Are federal anti-SLAPP legislation necessary? Let’s start with the basics. Professors George Pring and Penelope Canan coined the term Strategic Lawsuit Against Public Participation, or “SLAPP,” more than two decades ago, to describe lawsuits that were brought to retaliate against those who exercise their First Amendment rights. The quintessential SLAPP is a lawsuit against someone who speaks out about local development or environmental issues.
Since that time, the concept of SLAPP has broadened, as practitioners, academics, legislators and judges across the country have recognized that such lawsuits are an increasingly-used weapon against speech that some people and businesses would rather have silenced. If a group of parents complains about the management of their children’s charter school, the response by the school management may be to sue the parents for defamation.
If a union seeks to have local governments issue resolutions against a food manufacturer, the response of the manufacturer may be to sue the union for racketeering and conspiracy. If an upstart website posts information about local real estate deals, and names a law firm doing those deals, the law firm’s response may be to sue the website for trademark infringement.
In each case, rather than answer speech with speech, some plaintiffs decide that the best way to silence critics is to drag them into court. Such a lawsuit can be an extremely effective way to silence someone.
After all, if you were a parent who had asked questions about your kids’ school, and you were sued for talking about that, how would you react to such a suit? Would you be able to afford an attorney? Would you know how to handle discovery requests and calendaring, and would you be able to take off work to defend yourself? Even meritless lawsuits require a defense. Faced with the task of defending yourself, you might decide to settle. And that settlement might come at the price of your apology, “correction,” or agreement to refrain from speaking publicly about this ever again.
This provision is crucial to protecting a defendant. SLAPPs aren’t typical lawsuits; they do their work through the process of the litigation itself. Stopping the process and providing counsel is the only way to combat the SLAPP, which is why normal remedies, like a motion to dismiss for failure to state a claim, are inadequate.
A blogger in California would normally have that state’s strong anti-SLAPP law as protection, but if a plaintiff can evade such protections by suing the blogger in a state without an anti-SLAPP law, or by filing federal claims in federal court, the plaintiff has every incentive to do so. The blogger in California may censor herself for fear of an out-of-state or federal lawsuit, notwithstanding the strong protections against SLAPPs in her home state.
This is why a uniform federal law to protect First Amendment expression is needed. SLAPPs aren’t just random meritless lawsuits: they are lawsuits that directly attack First Amendment rights. The level of protection for First Amendment rights should be uniform – it should not depend on where a defendant is hauled into court or how clever a pleader the plaintiff’s lawyer is.
SLAPPs happen every day, across the country, in response a huge variety of civic participation. H.R. 4364 would protect against such lawsuits, regardless of where they’re brought.
In addition to the qualified immunity, the bill provides procedural protections for petitioning activity and speech about an issue of public interest. Any time a defendant is sued, based either on petitioning activity or for having spoken out on an issue of public interest, the defendant can remove to federal court, and then bring a special motion to dismiss the claim. In order to survive the motion to dismiss, the plaintiff must prove that the case has minimum merit, both legally and factually.
In determining whether the case has legal merit, the court will apply the applicable law as is the procedure with other types of legal motions that are filed with the court.
So, in a state defamation case, the court is expected to apply state defamation law, as it would under diversity jurisdiction, to determine whether the plaintiff has stated a sufficient legal claim. In other words, the procedural protections provided for in H.R. 4364 do not interfere with existing state law. In fact, the requirement that a plaintiff prove merit under existing law is an elegant solution to the fact that SLAPPs are brought as all kinds of claims. No matter the claim that a plaintiff brings, the plaintiff must show it has merit if it impinges on another’s First Amendment rights.
Mark Goldowitz is the Founder and President of the Public Participation Project.
Peter Kurdock is the Legislative Director for the Public Participation Project."
http://www.sitejabber.com/blog/2010/09/30/the-need-for-federal-anti-slapp-legislation/
Are federal anti-SLAPP legislation necessary? Let’s start with the basics. Professors George Pring and Penelope Canan coined the term Strategic Lawsuit Against Public Participation, or “SLAPP,” more than two decades ago, to describe lawsuits that were brought to retaliate against those who exercise their First Amendment rights. The quintessential SLAPP is a lawsuit against someone who speaks out about local development or environmental issues.
Since that time, the concept of SLAPP has broadened, as practitioners, academics, legislators and judges across the country have recognized that such lawsuits are an increasingly-used weapon against speech that some people and businesses would rather have silenced. If a group of parents complains about the management of their children’s charter school, the response by the school management may be to sue the parents for defamation.
If a union seeks to have local governments issue resolutions against a food manufacturer, the response of the manufacturer may be to sue the union for racketeering and conspiracy. If an upstart website posts information about local real estate deals, and names a law firm doing those deals, the law firm’s response may be to sue the website for trademark infringement.
In each case, rather than answer speech with speech, some plaintiffs decide that the best way to silence critics is to drag them into court. Such a lawsuit can be an extremely effective way to silence someone.
After all, if you were a parent who had asked questions about your kids’ school, and you were sued for talking about that, how would you react to such a suit? Would you be able to afford an attorney? Would you know how to handle discovery requests and calendaring, and would you be able to take off work to defend yourself? Even meritless lawsuits require a defense. Faced with the task of defending yourself, you might decide to settle. And that settlement might come at the price of your apology, “correction,” or agreement to refrain from speaking publicly about this ever again.
H.R. 4364′s Protections
H.R. 4364 has several key components. One of the most important one is the ability of a defendant who is hit with a SLAPP to recover attorney fees. This is critical, because it allows a defendant who has valid defenses but could not otherwise afford an attorney to secure an attorney on a contingency basis. Second, the defendant can bring anearly special motion to dismiss, and while the judge is deciding the motion, neither party can take discovery, with limited exceptions.This provision is crucial to protecting a defendant. SLAPPs aren’t typical lawsuits; they do their work through the process of the litigation itself. Stopping the process and providing counsel is the only way to combat the SLAPP, which is why normal remedies, like a motion to dismiss for failure to state a claim, are inadequate.
The Need for Uniform Protection
Twenty seven states have enacted anti-SLAPP legislation. These laws vary dramatically. The remaining states lack legislative protection against SLAPPs, and the state laws cannot be invoked against federal claims in federal court. This disparity in protection encourages forum shopping and clever pleading, and magnifies the chilling effect of SLAPPs by making people uncertain about the level of protection.A blogger in California would normally have that state’s strong anti-SLAPP law as protection, but if a plaintiff can evade such protections by suing the blogger in a state without an anti-SLAPP law, or by filing federal claims in federal court, the plaintiff has every incentive to do so. The blogger in California may censor herself for fear of an out-of-state or federal lawsuit, notwithstanding the strong protections against SLAPPs in her home state.
This is why a uniform federal law to protect First Amendment expression is needed. SLAPPs aren’t just random meritless lawsuits: they are lawsuits that directly attack First Amendment rights. The level of protection for First Amendment rights should be uniform – it should not depend on where a defendant is hauled into court or how clever a pleader the plaintiff’s lawyer is.
SLAPPs happen every day, across the country, in response a huge variety of civic participation. H.R. 4364 would protect against such lawsuits, regardless of where they’re brought.
The Relationship Between H.R. 4364 and State Law
It is important to note that the Citizen Participation Act provides two levels of protection. First, it encourages civic engagement by providing qualified immunity for those who petition the government. This means that you are immune from civil liability for good-faith communication with the government, including reporting a crime, testifying to Congress about infirmities in your public company’s finances, or reporting environmental regulation violations to the EPA. This qualified immunity is patterned afterNew York Times v. Sullivan’s protection for speech about public figures, and essentially applies that level of protection to any communication with the government. This substantive federal right of immunity can be raised as a defense against any civil claim, including a state defamation claim. The First Amendment rights at issue warrant such protection. For cases not involving good faith petitioning activity, however, the Citizen Participation Act leaves state law intact.In addition to the qualified immunity, the bill provides procedural protections for petitioning activity and speech about an issue of public interest. Any time a defendant is sued, based either on petitioning activity or for having spoken out on an issue of public interest, the defendant can remove to federal court, and then bring a special motion to dismiss the claim. In order to survive the motion to dismiss, the plaintiff must prove that the case has minimum merit, both legally and factually.
In determining whether the case has legal merit, the court will apply the applicable law as is the procedure with other types of legal motions that are filed with the court.
So, in a state defamation case, the court is expected to apply state defamation law, as it would under diversity jurisdiction, to determine whether the plaintiff has stated a sufficient legal claim. In other words, the procedural protections provided for in H.R. 4364 do not interfere with existing state law. In fact, the requirement that a plaintiff prove merit under existing law is an elegant solution to the fact that SLAPPs are brought as all kinds of claims. No matter the claim that a plaintiff brings, the plaintiff must show it has merit if it impinges on another’s First Amendment rights.
Now is the Time for H.R. 4364
The events of the past few years highlight the need for more communication about important issues. A more open, searching dialogue about the mortgage industry, for example, is something that we should have welcomed. Financial health, public safety, environmental well-being, national security, and government accountability all demand an active, engaged citizenry. Technology now makes it possible for everyone to don the hat of journalist, editor, town crier or anonymous pamphleteer. H.R. 4364 is particularly timely: it protects and encourages critical open dialogue, whether that speech takes place in the town square, on a cable news network, or a blog or online chat room.Mark Goldowitz is the Founder and President of the Public Participation Project.
Peter Kurdock is the Legislative Director for the Public Participation Project."
http://www.sitejabber.com/blog/2010/09/30/the-need-for-federal-anti-slapp-legislation/
proof of "actual damage" is an essential element
"317 F.3d 1264: Anheuser-busch, Inc., Plaintiff-appellant, v. Irvin P. Philpot, Iii, Defendant-appellee
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United States Court of Appeals, Eleventh Circuit. - 317 F.3d 1264
January 9, 2003
Patricia Anne Leonard, Jack J. Aiello, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, Peter E. Moll, Christina Guerola Sarchio, Howrey & Simon, Washington, DC, for Plaintiff-Appellant.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
1In this diversity action for defamation, Anheuser-Busch, Inc. ("Busch") appeals from the district court's final judgment in favor of Irvin P. Philpot, III ("Philpot"). Busch, a Missouri corporation, filed the action against Philpot, a Florida citizen, alleging that Philpot had defamed Busch by maliciously telling hundreds of people, including influential business leaders, that Busch's dealings with its distributors amounted to criminal conduct. The complaint further alleged that this defamation had caused Busch at least $75,000 in damages.
2Although an attorney initially appeared on Philpot's behalf, he withdrew on January 25, 2001, after moving to dismiss the case and responding to Busch's interrogatories and request for production of documents. Philpot thereafter remained without the assistance of counsel and failed to answer the complaint. The clerk of court, upon Busch's motion, accordingly entered a default against him on April 10, 2001. Thereafter, on May 1, 2001, Busch served Philpot with a request for admissions pursuant to Federal Rule of Civil Procedure 36;1 the pertinent Request for Admission stated that Busch had "suffered general damages in an amount not less than $2,000,000.00 as a result of the facts and circumstances set forth in the Complaint." After Philpot failed to respond to the Request for Admission, Busch moved for an entry of final default judgment and damages in the amount of $2,000,000. On September 7, 2001 the court entered a default judgment against Philpot and scheduled an evidentiary hearing to determine damages.
3Busch took the position that Philpot's failure to respond to its Request for Admission conclusively established its entitlement to $2,000,000 in damages, but stated that if required, its expert witness would establish that Busch had suffered more than $2,000,000 in damages as a result of the defamation. The court ruled that under the circumstances presented, Busch would have to prove actual damages in order to prevail on its defamation claim. Accordingly, it proceeded with the evidentiary hearing pursuant to Federal Rule of Civil Procedure 55(b)(2).
4At the hearing, Busch's expert offered his opinion that because of Philpot's defamatory statements, Busch did not receive full value for the approximately 266 million dollars it had spent to strengthen its relationship with its wholesalers during the relevant period. Based on the notion of "corrective advertising," which proposes that injury from defamatory statements can be as high as twenty-five percent of a company's relevant advertising costs, the expert testified that he thought that Busch was entitled to at least one to five percent of its $266 million expenditure, or $2.6 to 13.3 million. According to the expert, the need for corrective advertising could be inferred from Busch's increased advertising expenditures between 1997 and 2000, which reversed the trend between 1990 and 1996. Philpot testified only briefly, regarding his alleged calls to influential people, explaining that he either had not spoken with them or had not said anything negative to them about Busch.
5The court concluded that Busch had not presented any evidence of harm to its reputation at a consumer or distributor level, of loss of value, or of a need to engage in corrective advertising. As to Busch's expert testimony regarding the inferred need for corrective advertising, the court found that Busch had failed to establish a connection between any such need and the statements allegedly made by Philpot. Accordingly, because Busch had not proved any actual damages from any defamation by Philpot, the court vacated the default judgment for Busch and entered final judgment for Philpot.
6
DISCUSSION
7The issue before us is the narrow question of whether the trial court abused its discretion in requiring an evidentiary hearing to prove actual damages under the circumstances presented. See Johnson v. DeSoto County Board of Commissioners, 204 F.3d 1335, 1340 (11th Cir.2000) (holding that "[t]he scope and effect of admissions... is a matter for determination by the trial court, in the exercise of its broad discretion"). We conclude that there was no abuse of discretion here.
8Under Florida law,2 proof of "actual damage" is an essential element of a defamation action. See Miami Herald Publ'g Co. v. Ane, 423 So.2d 376, 388 (Fla. Dist.Ct.App.1982); see also Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir.2001). Regarding the amount of damages, Florida law makes clear as well that an amount of uncertain damages cannot be established conclusively based on an unanswered Request for Admission. See Bradford Motor Cars Inc. v. Frem, 511 So.2d 1120, 1121 (Fla.Dist.Ct. App.1987). Federal law similarly requires a judicial determination of damages absent a factual basis in the record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir.1985) (holding that "a judgment of default awarding cash damages could not properly be entered without a hearing, unless the amount claimed is a liquidated sum or one capable of mathematical calculation") (quotation and citation omitted). To that end, Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that following entry of a default judgment, a district court may conduct an evidentiary hearing "to determine the amount of damages or to establish the truth of any averment by evidence...." Fed.R.Civ.P. 55(b)(2).
9In this case, the Request for Admission asserted an amount that was not based on any specified fact; there was nothing in the Request for Admission or Complaint that established, or even suggested, facts that supported a concrete, actual damage amount. Damages resulting from defamation, unlike liquidated damages, may range from nominal to significant amounts. We cannot say it is an abuse of discretion for a trial judge to conduct an evidentiary hearing when the amount of damages is uncertain and speculative. A court has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages are not awarded solely as the result of an unrepresented defendant's failure to respond to a Request for Admission that may allege a completely unreasonable or speculative amount of damages with no factual basis. See id.; cf. Brook Village North Assoc. v. General Elec. Co., 686 F.2d 66, 73-75 (1st Cir.1982) (holding that defendant's failure to respond to a request for admission that included letters detailing reparation costs conclusively established damages).
10Under the circumstances in the present case — Philpot's pro se status, the requirement of proof of actual damages in a defamation action, and the lack of any factual basis for the damage amount in the Request for Admission — we find no abuse of discretion in the district court's decision to hold an evidentiary hearing to determine damages pursuant to Rule 55(b)(2).3
11Finally, we reject Busch's argument that the district court erred by setting aside the default judgment absent a motion by Philpot. The default judgement entered by the court against Philpot was not a final default judgment, as it provided neither relief nor damages. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1364 n. 27 (1997). Accordingly, the court could set it aside sua sponte for "good cause." See Fed.R.Civ.P. 55(c). Under the circumstances presented here, Busch's failure to prove actual damages was sufficient "good cause" for the court to vacate the default and enter final judgment for Philpot.
12AFFIRMED.
1 Under the federal rules, "[a] party may serve upon any other party a written request for the admission ... of the truth of any matters," Fed.R.Civ.P. 36(a), that are "relevant to the claim,"id. 26(b)(1). A request that is not responded to within 30 days of service is deemed admitted. See id. 36(a). "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Id. 36(b); see United States v. 2204 Barbara Lane, 960 F.2d 126, 129-30 (11th Cir.1992). Withdrawal or amendment of admissions may be allowed "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action...." Fed. R.Civ.P. 36(b).
2 We apply Florida substantive law to the defamation claimSee Media Services Group, Inc. v. Bay Cities Communications, Inc., 237 F.3d 1326, 1329 (11th Cir.2001).
3 We note that Busch never argued below that it would be prejudiced by the evidentiary hearing nor moved for a continuance of the hearing in order to avoid such prejudice."
http://law.justia.com/cases/federal/appellate-courts/F3/317/1264/484371/
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United States Court of Appeals, Eleventh Circuit. - 317 F.3d 1264
January 9, 2003
Patricia Anne Leonard, Jack J. Aiello, Gunster, Yoakley & Stewart, P.A., West Palm Beach, FL, Peter E. Moll, Christina Guerola Sarchio, Howrey & Simon, Washington, DC, for Plaintiff-Appellant.
Appeal from the United States District Court for the Southern District of Florida.
Before ANDERSON, BIRCH and BARKETT, Circuit Judges.
BARKETT, Circuit Judge:
1In this diversity action for defamation, Anheuser-Busch, Inc. ("Busch") appeals from the district court's final judgment in favor of Irvin P. Philpot, III ("Philpot"). Busch, a Missouri corporation, filed the action against Philpot, a Florida citizen, alleging that Philpot had defamed Busch by maliciously telling hundreds of people, including influential business leaders, that Busch's dealings with its distributors amounted to criminal conduct. The complaint further alleged that this defamation had caused Busch at least $75,000 in damages.
2Although an attorney initially appeared on Philpot's behalf, he withdrew on January 25, 2001, after moving to dismiss the case and responding to Busch's interrogatories and request for production of documents. Philpot thereafter remained without the assistance of counsel and failed to answer the complaint. The clerk of court, upon Busch's motion, accordingly entered a default against him on April 10, 2001. Thereafter, on May 1, 2001, Busch served Philpot with a request for admissions pursuant to Federal Rule of Civil Procedure 36;1 the pertinent Request for Admission stated that Busch had "suffered general damages in an amount not less than $2,000,000.00 as a result of the facts and circumstances set forth in the Complaint." After Philpot failed to respond to the Request for Admission, Busch moved for an entry of final default judgment and damages in the amount of $2,000,000. On September 7, 2001 the court entered a default judgment against Philpot and scheduled an evidentiary hearing to determine damages.
3Busch took the position that Philpot's failure to respond to its Request for Admission conclusively established its entitlement to $2,000,000 in damages, but stated that if required, its expert witness would establish that Busch had suffered more than $2,000,000 in damages as a result of the defamation. The court ruled that under the circumstances presented, Busch would have to prove actual damages in order to prevail on its defamation claim. Accordingly, it proceeded with the evidentiary hearing pursuant to Federal Rule of Civil Procedure 55(b)(2).
4At the hearing, Busch's expert offered his opinion that because of Philpot's defamatory statements, Busch did not receive full value for the approximately 266 million dollars it had spent to strengthen its relationship with its wholesalers during the relevant period. Based on the notion of "corrective advertising," which proposes that injury from defamatory statements can be as high as twenty-five percent of a company's relevant advertising costs, the expert testified that he thought that Busch was entitled to at least one to five percent of its $266 million expenditure, or $2.6 to 13.3 million. According to the expert, the need for corrective advertising could be inferred from Busch's increased advertising expenditures between 1997 and 2000, which reversed the trend between 1990 and 1996. Philpot testified only briefly, regarding his alleged calls to influential people, explaining that he either had not spoken with them or had not said anything negative to them about Busch.
5The court concluded that Busch had not presented any evidence of harm to its reputation at a consumer or distributor level, of loss of value, or of a need to engage in corrective advertising. As to Busch's expert testimony regarding the inferred need for corrective advertising, the court found that Busch had failed to establish a connection between any such need and the statements allegedly made by Philpot. Accordingly, because Busch had not proved any actual damages from any defamation by Philpot, the court vacated the default judgment for Busch and entered final judgment for Philpot.
6
DISCUSSION
7The issue before us is the narrow question of whether the trial court abused its discretion in requiring an evidentiary hearing to prove actual damages under the circumstances presented. See Johnson v. DeSoto County Board of Commissioners, 204 F.3d 1335, 1340 (11th Cir.2000) (holding that "[t]he scope and effect of admissions... is a matter for determination by the trial court, in the exercise of its broad discretion"). We conclude that there was no abuse of discretion here.
8Under Florida law,2 proof of "actual damage" is an essential element of a defamation action. See Miami Herald Publ'g Co. v. Ane, 423 So.2d 376, 388 (Fla. Dist.Ct.App.1982); see also Rubin v. U.S. News & World Report, Inc., 271 F.3d 1305, 1306 (11th Cir.2001). Regarding the amount of damages, Florida law makes clear as well that an amount of uncertain damages cannot be established conclusively based on an unanswered Request for Admission. See Bradford Motor Cars Inc. v. Frem, 511 So.2d 1120, 1121 (Fla.Dist.Ct. App.1987). Federal law similarly requires a judicial determination of damages absent a factual basis in the record. See Adolph Coors Co. v. Movement Against Racism and the Klan, 777 F.2d 1538, 1543-44 (11th Cir.1985) (holding that "a judgment of default awarding cash damages could not properly be entered without a hearing, unless the amount claimed is a liquidated sum or one capable of mathematical calculation") (quotation and citation omitted). To that end, Rule 55(b)(2) of the Federal Rules of Civil Procedure provides that following entry of a default judgment, a district court may conduct an evidentiary hearing "to determine the amount of damages or to establish the truth of any averment by evidence...." Fed.R.Civ.P. 55(b)(2).
9In this case, the Request for Admission asserted an amount that was not based on any specified fact; there was nothing in the Request for Admission or Complaint that established, or even suggested, facts that supported a concrete, actual damage amount. Damages resulting from defamation, unlike liquidated damages, may range from nominal to significant amounts. We cannot say it is an abuse of discretion for a trial judge to conduct an evidentiary hearing when the amount of damages is uncertain and speculative. A court has an obligation to assure that there is a legitimate basis for any damage award it enters, and to assure that damages are not awarded solely as the result of an unrepresented defendant's failure to respond to a Request for Admission that may allege a completely unreasonable or speculative amount of damages with no factual basis. See id.; cf. Brook Village North Assoc. v. General Elec. Co., 686 F.2d 66, 73-75 (1st Cir.1982) (holding that defendant's failure to respond to a request for admission that included letters detailing reparation costs conclusively established damages).
10Under the circumstances in the present case — Philpot's pro se status, the requirement of proof of actual damages in a defamation action, and the lack of any factual basis for the damage amount in the Request for Admission — we find no abuse of discretion in the district court's decision to hold an evidentiary hearing to determine damages pursuant to Rule 55(b)(2).3
11Finally, we reject Busch's argument that the district court erred by setting aside the default judgment absent a motion by Philpot. The default judgement entered by the court against Philpot was not a final default judgment, as it provided neither relief nor damages. See Chudasama v. Mazda Motor Corp., 123 F.3d 1353, 1364 n. 27 (1997). Accordingly, the court could set it aside sua sponte for "good cause." See Fed.R.Civ.P. 55(c). Under the circumstances presented here, Busch's failure to prove actual damages was sufficient "good cause" for the court to vacate the default and enter final judgment for Philpot.
12AFFIRMED.
1 Under the federal rules, "[a] party may serve upon any other party a written request for the admission ... of the truth of any matters," Fed.R.Civ.P. 36(a), that are "relevant to the claim,"id. 26(b)(1). A request that is not responded to within 30 days of service is deemed admitted. See id. 36(a). "Any matter admitted under this rule is conclusively established unless the court on motion permits withdrawal or amendment of the admission." Id. 36(b); see United States v. 2204 Barbara Lane, 960 F.2d 126, 129-30 (11th Cir.1992). Withdrawal or amendment of admissions may be allowed "when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice that party in maintaining the action...." Fed. R.Civ.P. 36(b).
2 We apply Florida substantive law to the defamation claimSee Media Services Group, Inc. v. Bay Cities Communications, Inc., 237 F.3d 1326, 1329 (11th Cir.2001).
3 We note that Busch never argued below that it would be prejudiced by the evidentiary hearing nor moved for a continuance of the hearing in order to avoid such prejudice."
http://law.justia.com/cases/federal/appellate-courts/F3/317/1264/484371/
Freedom to Criticize Public Officials
"
The First Amendment provides for freedom of speech and of the press and helps form the foundation of our democratic society, which is predicated upon the free exchange of ideas whether spoken or written. Perhaps in no instance can this be more important than the ability to level criticism against the government and its elected and appointed officials. While concern for being sued for libel can inhibit the expression of statements critical of public officials, it was not until 1964 that the matter was finally resolved by the United States Supreme Court.
In New York Times Co. v. Sullivan, the United States Supreme Court held that under the First and Fourteenth Amendments, a state cannot award damages to a public official regarding a defamatory statement concerning his official conduct even if it is false and libelous unless it can be proven that the statement was made with “actual malice.” The Court went on to require that unlike libel claims asserted by private individuals, public officials have the burden of proving the statement to be false and maliciously made.
What is “actual malice?”
As defined by the majority opinion written by Justice Brennan in New York Times Co. v. Sullivan, the term actual malicemeans that the statement was made with the knowledge it was false or with reckless disregard to whether it was true or not.
Public or Private Persons
Public officials are not difficult to identify since they are persons who are substantially involved in government. Some of the more obvious categories are:
Candidates for an elective office
People who hold a position in government
Law enforcement officials
Public school teachers and coaches
Public employees who have policy-making authority
The more complicated matter concerns the identity of “public figures” upon whom the Supreme Court in subsequent cases extended the New York Times Co. v. Sullivanrequirement that “actual malice” must be proven to sustain a libel action. The Supreme Court reasoned that when someone voluntarily places themselves in the public arena, they must be prepared to accept public criticism.
There are two types of public figures. The “all purpose public figure” is a person who is well known to the public, such as professional athletes and celebrities. The “limited purpose public figure” is someone who is not easily recognized but because he has thrust himself into the forefront of a specific public debate, he would be considered a public figure for purposes of that issue only.
A person does not automatically become a “limited purpose public figure” just because she finds herself in the middle of a public controversy and placed in the public eye. It is necessary that the person voluntarily put herself in that position and sought the attention.
"In this diversity action for defamation, Anheuser-Busch, Inc. ("Busch") appeals from the district court's final judgment in favor of Irvin P. Philpot, III ("Philpot"). Busch, a Missouri corporation, filed the action against Philpot, a Florida citizen, alleging that Philpot had defamed Busch by maliciously telling hundreds of people, including influential business leaders, that Busch's dealings with its distributors amounted to criminal conduct. The complaint further alleged that this defamation had caused Busch at least $75,000 in damages.
2
Although an attorney initially appeared on Philpot's behalf, he withdrew on January 25, 2001, after moving to dismiss the case and responding to Busch's interrogatories and request for production of documents. Philpot thereafter remained without the assistance of counsel and failed to answer the complaint. The clerk of court, upon Busch's motion, accordingly entered a default against him on April 10, 2001. Thereafter, on May 1, 2001, Busch served Philpot with a request for admissions pursuant to Federal Rule of Civil Procedure 36;1 the pertinent Request for Admission stated that Busch had "suffered general damages in an amount not less than $2,000,000.00 as a result of the facts and circumstances set forth in the Complaint." After Philpot failed to respond to the Request for Admission, Busch moved for an entry of final default judgment and damages in the amount of $2,000,000. On September 7, 2001 the court entered a default judgment against Philpot and scheduled an evidentiary hearing to determine damages.
3
Busch took the position that Philpot's failure to respond to its Request for Admission conclusively established its entitlement to $2,000,000 in damages, but stated that if required, its expert witness would establish that Busch had suffered more than $2,000,000 in damages as a result of the defamation. The court ruled that under the circumstances presented, Busch would have to prove actual damages in order to prevail on its defamation claim. Accordingly, it proceeded with the evidentiary hearing pursuant to Federal Rule of Civil Procedure 55(b)(2)."
Full Case
Privileges That Protect from Libel - Matter of Public Policy
"As a Matter of Public Policy, libel law has carved out special categories of statements that are considered to be “privileges” and though defamatory, they are exempt from libel actions. These privileges are designed to protect people who make the statements pursuant to a legal or moral obligation.
There are two categories of privileges. The first group has little to do with writers and authors and exists to shield persons engaged in governmental proceedings, including the judicial, executive, and legislative branches. These exemptions fall under what is known as “absolute privileges.”
The second class of privileges is called “conditional privileges” and frequently applies to writers, authors, and publishers. Unlike absolute privileges, conditional privileges require that the party making the statement acted in good faith.
There are three types of privileges in this category: statements made to protect the public interest; accurate reports of public proceedings; and the right to reply, which is often raised by authors and publishers in response to statements made against them.
It's relatively easy to avoid committing libel; all you have to do is abide by the mantra of the nonfiction writer: make certain your material is accurate and true. Since the first and foremost element for a libel suit is that the statement is false, truth is an absolute defense.
Since you may have to defend yourself in court against an accusation of libel, it is not enough that you know your statements are true; you need to be able to prove the accuracy of the statements in question. Therefore, be certain to have undertaken due diligence in all your research and fact finding and maintain records of your sources.
Some jurisdictions will absolve a defendant in a libel action if it can be shown that the statement was made in good faith but to be safe, it is best to do everything you can to ensure the accuracy of your content. You should not rely on the argument that all your facts are correct. If it can be shown that taken as a whole, the content of the statement gives a false impression, libel may be found to exist even if everything is technically factual.
Obtain Consent
A second defense against a libel accusation occurs when consent had been obtained from the plaintiff. The consent must be specific and apply to the precise words that comprise the defamatory statement.
Keep in mind that when raising the defense that consent was secured, the question of whether or not the statement is defamatory is no longer the issue. A person is free to consent to having a defamatory statement published.
To obtain consent, you should secure a release from the party providing the permission. Because the release might become the central issue in a lawsuit, although it can be verbal, it is best that it be a written document prepared by an attorney competent in publishing law or provided by your publisher.
Opinions Are Protected
Expressing an opinion cannot be subject to an accusation of libel because it is not a statement of fact — whether true or false. Consequently, you can articulate the most insulting opinion imaginable about someone and not be sued for libel.
However, do not assume that merely by prefacing your statement with something like, “In my opinion,” you can safeguard yourself from a libel suit. If your statement implies facts that are libelous, you could be held responsible for libel per quod, or libel by implication.
Name-calling by itself is insufficient to form the basis for an allegation of libel. Known by the legal term rhetorical hyperbole, these statements are similar to opinions and thus do not represent a statement of fact. However, any additional information going beyond the derogatory name can be grounds for a libel suit.
Clearly, writers of op-eds, commentaries, and opinion pieces generally can avail themselves of this defense if they are accused of libel. Writers of reviews are likewise shielded from libel suits to the extent their articles are the expression of an opinion.
However, as you saw in Chapter 14, reviews are also written to inform the reader. Consequently, if the facts presented in the review are alleged to be defamatory statements, you would need to rely on one of the other defenses to libel such as truth or consent in order to avoid liability.
Source
There are two categories of privileges. The first group has little to do with writers and authors and exists to shield persons engaged in governmental proceedings, including the judicial, executive, and legislative branches. These exemptions fall under what is known as “absolute privileges.”
The second class of privileges is called “conditional privileges” and frequently applies to writers, authors, and publishers. Unlike absolute privileges, conditional privileges require that the party making the statement acted in good faith.
There are three types of privileges in this category: statements made to protect the public interest; accurate reports of public proceedings; and the right to reply, which is often raised by authors and publishers in response to statements made against them.
It's relatively easy to avoid committing libel; all you have to do is abide by the mantra of the nonfiction writer: make certain your material is accurate and true. Since the first and foremost element for a libel suit is that the statement is false, truth is an absolute defense.
Since you may have to defend yourself in court against an accusation of libel, it is not enough that you know your statements are true; you need to be able to prove the accuracy of the statements in question. Therefore, be certain to have undertaken due diligence in all your research and fact finding and maintain records of your sources.
Some jurisdictions will absolve a defendant in a libel action if it can be shown that the statement was made in good faith but to be safe, it is best to do everything you can to ensure the accuracy of your content. You should not rely on the argument that all your facts are correct. If it can be shown that taken as a whole, the content of the statement gives a false impression, libel may be found to exist even if everything is technically factual.
Obtain Consent
A second defense against a libel accusation occurs when consent had been obtained from the plaintiff. The consent must be specific and apply to the precise words that comprise the defamatory statement.
Keep in mind that when raising the defense that consent was secured, the question of whether or not the statement is defamatory is no longer the issue. A person is free to consent to having a defamatory statement published.
To obtain consent, you should secure a release from the party providing the permission. Because the release might become the central issue in a lawsuit, although it can be verbal, it is best that it be a written document prepared by an attorney competent in publishing law or provided by your publisher.
Opinions Are Protected
Expressing an opinion cannot be subject to an accusation of libel because it is not a statement of fact — whether true or false. Consequently, you can articulate the most insulting opinion imaginable about someone and not be sued for libel.
However, do not assume that merely by prefacing your statement with something like, “In my opinion,” you can safeguard yourself from a libel suit. If your statement implies facts that are libelous, you could be held responsible for libel per quod, or libel by implication.
Name-calling by itself is insufficient to form the basis for an allegation of libel. Known by the legal term rhetorical hyperbole, these statements are similar to opinions and thus do not represent a statement of fact. However, any additional information going beyond the derogatory name can be grounds for a libel suit.
Clearly, writers of op-eds, commentaries, and opinion pieces generally can avail themselves of this defense if they are accused of libel. Writers of reviews are likewise shielded from libel suits to the extent their articles are the expression of an opinion.
However, as you saw in Chapter 14, reviews are also written to inform the reader. Consequently, if the facts presented in the review are alleged to be defamatory statements, you would need to rely on one of the other defenses to libel such as truth or consent in order to avoid liability.
Source
What are the Defenses Against Defamation?
"
Question: What are the Defenses Against Defamation?
Defamation is the act of harming the reputation of another by making a false statement (written or oral) to another person. As with every charge, there are defenses that can be made to counter the charge. Defamation works on the premise that a person's good name has value and if that good name is destroyed, the person who destroys it should be made to pay.
The burden of proof in a defamation claim, in most cases, is on the plaintiff.
Answer:
Truth of the statement
If the statement is true, there is no defamation. If someone is a convicted rapist, you can't defame that person by telling people that fact.
There Must be Harm
The plaintiff must prove that his or her good name has been harmed, in order for a charge of defamation to stand up. If you say someone is a "deadbeat" and no one believes it, there is no harm. On the other hand, if you say someone is a deadbeat, and a bank declines to give that person a loan, he or she has a case against you for defamation.
There Must be Communication
It must be proved that the statement was communicated. If you wrote something about someone and you did not send it to anyone or publish it, there is no defamation. Communication requires a receiver of the message as well as a sender.
Consent
If you can prove that the plaintiff consented to the statement, in an interview, for example, or in a written statement of consent, there is no defamation.
Privilege
A common defense against defamation is privilege, or immunity. There are many types of privilege, but the most common are absolute privilege and qualified privilege. Absolute privilege is immunity from charge of defamation, even if the statement is malicious. Absolute privilege is most often claimed by legislators. The other common privilege is qualified privilege, which protects the press from defamation charges for written or spoken statements, unless they can be proved to be malicious.
Opinion
If it can be shown that a statement was opinion, rather than a pronouncement of a fact, the statement may not be determined to be defamatory. Opinion as a defense depends on the context, including the stature and presumed knowledge of the person making the statement."
http://biztaxlaw.about.com/od/resolvingbusinessdisputes/f/defamationdefense.htm
Four Elements of Libel
In order for you to have committed libel, the plaintiff in the case against you will have to prove that four conditions have been met:
The statement is false.
The statement has a defamatory meaning.
The allegedly injured party is clearly identified in the statement.
The statement has been published.
If all four conditions are not met, an action for libel will not prevail. Therefore, you must be familiar with these four elements and what a plaintiff must do in order to prove they have been satisfied.
Proving Libel
Because the statement must be false, truth is an absolute defense to libel. However, unless the plaintiff is a celebrity or public official, the burden of proof generally lies with the author to establish the material is true. Since the statement must possess a defamatory meaning, the plaintiff must prove that what is written has caused or is likely to cause harm to his reputation.
The third element of libel requires that the plaintiff is identifiable. It is not necessary that the plaintiff be named for this condition to be met so long as the party would be identifiable by someone who knows or knows of the plaintiff. For instance, returning to the preceding examples, a statement in the local paper read by community residents that refers to the owner of the auto repair shop at Third Avenue and Main Street would identify Franklin Thompson for libel purposes without actually naming him.
The fourth and final element to establish libel is satisfied if the statement has been published and read by a third party. Publication occurs when the work is printed in the traditional manner such as books, magazines, and newspapers or if it appears over the Internet. It can also be satisfied by a letter to a third party, the distribution or posting of flyers, or e-mails.
It is not necessary to prove that a third party read the statement so long as it is reasonable to assume this is the case. For example, if the statement appears in a newspaper, the condition will have been fulfilled without the need to parade witnesses to testify they read the article in the paper.
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