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[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
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No. 20-10182
Non-Argument Calendar
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D.C. Docket No. 1:14-cv-00865-KOB
TARGET MEDIA PARTNERS,
Plaintiff,
ED LEADER,
Plaintiff - Appellant,
versus
SPECIALTY MARKETING CORPORATION,
Defendant - Appellee.
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Appeal from the United States District Court
for the Northern District of Alabama
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(October 5, 2020)
Before BRANCH, GRANT and MARCUS, Circuit Judges.
PER CURIAM:
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Ed Leader appeals from the district court’s order granting summary judgment
in favor of Specialty Marketing Corporation on Leader’s defamation claim, the only
claim remaining in his complaint. On appeal, Leader argues that: (1) the district
court erred in concluding that a statement Specialty Marketing made about Leader
was libelous per se; and (2) the district court erred in deciding the truthfulness of the
statement instead of sending the question to a jury. After careful review, we affirm.
The undisputed facts are these. Target Media Partners owns several
companies that publish and distribute free magazines and newspapers for the
trucking industry. In the early- to mid-2000s, Leader was head of Target Media’s
trucking division and was responsible for soliciting advertisements for placement in
the company’s publications. Organizations that hire truck drivers buy most of the
advertisements in Target Media’s publications. Specialty Marketing publishes for
the Southeastern United States its own free magazine called Truck Market News.
In 2002, Target Media contractually agreed to distribute and display Specialty
Marketing’s Truck Market News each month at truck stops, rest stops, and similar
locations frequented by truck drivers. In 2007, after discovering that Target Media
was apparently discarding Truck Market News copies instead of distributing and
displaying them, Specialty Marketing sued in Alabama state court, alleging breach
of contract and fraud. In 2010, the trial court found Target Media and Leader liable
for $2.36 million in damages. After a lengthy appeals process, the Alabama
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Supreme Court upheld Specialty Marketing’s damages award. Target Media
Partners Operating Co., L.L.C. v. Specialty Marketing Corp.,
177 So. 3d 843 (Ala.
2014). More than four years later, in 2018, Specialty Marketing was still owed
$671,200, plus interest, in unsatisfied damages.
In March of 2014, during the appeals process, Specialty Marketing mailed
packages to at least two of Target Media’s advertising clients. Included in each
package was a cover letter. The last paragraph of each letter, composed by Specialty
Marketing’s president, said:
It is my belief that you and everyone else that has any business or
personal dealings with Target Media Partners, their owners and
officers, need to know of this documented, trail [sic] proven fraud by
them. All of which has been upheld by the Alabama Supreme Court.
Further, it is my belief that many others have been and continue to be,
victims of this fraud.
Based on this statement, Target Media and Leader (hereinafter, “Leader”) 1 filed a
defamation suit against Specialty Marketing in May 2014. After Leader’s successful
appeal of the district court’s dismissal of the lawsuit on Rooker-Feldman2 grounds,
see Target Media Partners v. Specialty Mktg. Corp.,
881 F.3d 1279 (11th Cir. 2018),
the case returned to the district court, and Specialty Marketing moved for summary
judgment on the only remaining claim, defamation. The district court granted
1
Target Media Partners was originally a party, but was dismissed from the suit in February 2019.
2
Rooker v. Fidelity Trust Co.,
263 U.S. 413 (1923), and District of Columbia Court of Appeals
v. Feldman,
460 U.S. 462 (1983).
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Specialty Marketing’s motion for summary judgment, concluding that Leader had
failed to show a genuine dispute of material fact about whether Specialty
Marketing’s statement was true. This timely appeal follows.
We review a district court’s grant of summary judgment de novo, viewing the
evidence in the light most favorable to the party opposing the motion. Looney v.
Moore,
886 F.3d 1058, 1062 (11th Cir. 2018). Summary judgment is proper where
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). To determine whether a factual
dispute is genuine, we must consider whether “the evidence is such that a reasonable
jury could return a verdict for the nonmoving party.” Peppers v. Cobb County,
835
F.3d 1289, 1295 (11th Cir. 2016) (quotations omitted).
A successful claim for defamation in Alabama requires four elements: “1) a
false and defamatory statement concerning the plaintiff; 2) an unprivileged
communication of that statement to a third party; 3) fault amounting at least to
negligence on the part of the defendant; and 4) either actionability of the statement
irrespective of special harm or the existence of special harm caused by the
publication of the statement.” Dolgencorp, LLC v. Spence,
224 So. 3d 173, 186
(Ala. 2016) (quotations omitted). Under the first prong of the test -- whether a
statement is false and defamatory -- “[i]t is well established in Alabama that [even
if a statement is facially defamatory], truth is a complete and absolute defense.”
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Battles v. Ford Motor Credit Co.,
597 So. 2d 688, 692 (Ala. 1992) (affirming
summary judgment ruling concluding that there was no factual dispute that the
statement was true); see also Sanders v. Smitherman,
776 So. 2d 68, 72 (Ala. 2000)
(affirming summary judgment ruling and holding that “truth is a complete bar to a
defamation action”).
Moreover, contrary to Leader’s suggestion, the normal rules of summary
judgment apply to questions about the truth of a statement in a defamation action.
This means that “once [a defendant] submit[s] substantial evidence indicating [its]
statements were true, the burden shift[s] to the [plaintiff] to present substantial
evidence indicating that the statements made about them were false.”
Sanders, 776
So. 2d at 72; McCaig v. Talladega Pub. Co.,
544 So. 2d 875, 878 (Ala. 1989)
(holding that “[w]ith respect to the element of falsity [in a defamation action],” the
issue only goes to the jury “if the plaintiffs survive the summary judgment motion”).
Further, in construing a statement for purposes of summary judgment, a statement
does not meet the falsity element of a defamation action where “[t]he undisputed
testimony of the parties indicates that facts set out in the article are in their most
literal sense true.”
McCaig, 544 So. 2d at 878-79; see also S.B. v. Saint James Sch.,
959 So. 2d 72, 100 (Ala. 2006).
Leader argues that Special Marketing made a defamatory statement to Target
Media’s advertising clients when it wrote a letter to them describing that a trial had
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proven Target Media’s “documented” fraud, which was “upheld by the Alabama
Supreme Court,” and that Specialty Marketing’s president believed “that many
others have been and continue to be, victims of this fraud.” Leader says that this
statement is false for purposes of its defamation claim because it “accuses Target
Media Partners and its ‘owners and officers’ of continuing to defraud its customers.”
But, as we’ve explained, “truth is a complete bar to a defamation action,”
Sanders,
776 So. 2d at 72, and on the summary judgment record before us, we can find no
genuine dispute of material fact about whether the statement by Specialty
Marketing’s president is true.
Indeed, reading the statement in its “most literal sense,”
McCaig, 544 So. 2d
at 878-79, we construe Specialty Marketing’s president to have been saying that
Target Media committed fraud, which was proven in the Alabama courts, and that
many entities -- including advertising agencies -- were affected by that fraud and
may still be affected by that fraud. As the district court concluded, the challenged
statement does not impute any ongoing behavior to Target Media -- to continue to
be a victim of “this [documented] fraud” is a different thing from accusing Target
Media of continuing to defraud. That the statement uses the phrase “this fraud”
confirms that Specialty Marketing’s president was referring to the fraud proven in
the Alabama courts.
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Moreover, the statement makes the unsurprising claim that some entities were
and are victims of Target Media’s adjudicated fraud. These victims necessarily
include not only Specialty Marketing, but every entity that purchased advertisements
in the Specialty Marketing magazines the Alabama courts found Target Media to
have thrown away. See Target Media Partners Operating
Co., 177 So. 3d at 848
(describing the types of companies that purchase advertising space in Specialty
Marketing’s magazines). Notably, Leader specifies that the companies to which
Special Marketing sent its letter were advertising agencies, not publishers or
distributors of Specialty Marketing magazines. These agencies, or agencies like
them, very well could have advertised in the discarded Specialty Marketing
magazines, and, therefore, may have suffered lingering consequences (lost revenue,
lost job placements, etc.) from the lost advertisements, causing them to continue to
be victims of that proven fraud. What’s more, seven plus years later, Target Media
still owed Specialty Marketing hundreds of thousands of dollars in damages, further
indicating that some entities “continued to be victims” within the only reasonable
understanding of the phrase.
In short, Leader does not put forth any evidence to plausibly suggest another
reasonable interpretation that the district court should have made. Accordingly, the
district court did not err in concluding that Leader failed to establish a genuine
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dispute of material fact concerning the truth of Specialty Marketing’s statement, and
we affirm its grant of summary judgment. 3
AFFIRMED.
3
To the extent Leader argues that because he suffered defamation per se (the fourth element), he
did not need to show damages, his argument is irrelevant. A writing published to another is
defamation per se “if the language used exposes the plaintiff to public ridicule or contempt, though
it does not embody an accusation of crime, the law presumes damage to the reputation, and
pronounces it actionable per se.” Marion v. Davis,
114 So. 357, 359 (Ala. 1927). However,
because we conclude that Leader did not satisfy the first element of a defamation claim, we need
not reach this issue.
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