Renita Hill v. William Cosby, Jr. , 665 F. App'x 169 ( 2016 )

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
______________
No. 16-1362
______________
RENITA HILL, an individual,
Appellant
v.
WILLIAM HENRY COSBY, JR.,
an individual, also known as BILL COSBY
______________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civ. No. 2-15-cv-01658)
Honorable Arthur J. Schwab, U.S. District Judge
______________
Argued October 7, 2016
BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges
(Filed: December 14, 2016)
______________
OPINION
______________
George M. Kontos, Esq. (Argued)
Claire McGee, Esq.
Kontos Mengine Law Group
603 Stanwix Street
*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Two Gateway Center, Suite 1228
Pittsburgh, PA 15222
Counsel for Appellant
Angela C. Agrusa, Esq. (Argued)
Liner
1100 Glendon Avenue
14th Floor
Los Angeles, CA 90024
Brian C. Bevan, Esq.
Efrem M. Grail, Esq.
The Grail Law Firm
436 Seventh Avenue
Koppers Building, 30th Floor
Pittsburgh, PA 15219
Marshall M. Searey, III, Esq.
Christopher Tayback, Esq.
Quinn Emanuel Urquhart & Sullivan
865 South Figueroa Street
10th Floor
Los Angeles, CA 90017
Emily M. Smith, Esq.
Quinn Emanual Urquhart & Sullivan
711 Louisanna Street
Suite 500
Houston, TX 77002
Counsel for Appellee
COWEN, Circuit Judge
Plaintiff Renita Hill appeals from the order of the United States District Court for
the Western District of Pennsylvania granting Defendant William H. Cosby, Jr.’s motion
2
to dismiss her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure
to state a claim upon which relief can be granted. We will affirm.
I.
According to Hill’s complaint, Cosby—“an internationally known comedian, actor
and author” (A45)1—drugged and sexually assaulted her. Specifically, the alleged abuse
began in (approximately) 1983, when she was a sixteen-year-old high school student
recruited by Cosby to co-host a children’s television program. Cosby presented himself
as Hill’s mentor and paid for her college tuition. The alleged abuse ended around 1987,
after she had completed her second year in college (at which time Hill cut off any contact
with Cosby, and he stopped paying her tuition). Hill claimed that Cosby would meet her
in his hotel room and give her a drink containing drugs that affected her consciousness,
memory, and perception (and when she indicated that she did not want to drink, Cosby
would threaten to terminate “his purported tutelage” (A49)). “While she was in this
semi-conscious or unconscious state, Renita was sexually assaulted by Defendant
Cosby.” (Id.)
Hill allegedly did not come forward at the time of the abuse because she was too
intimidated and afraid to do so. While “Cosby was extremely powerful, wealthy and
influential in status,” Hill “was young, impressionable, and seemingly powerless.” (Id.)
She also did not know that other women had allegedly suffered similar abuse. For the
next twenty years, Hill maintained her silence. In 2005, Andrea Constand claimed that
Cosby had drugged and sexually assaulted her. In the civil lawsuit she filed against
1
“A” refers to the appendix, and “SA” refers to the supplemental appendix.
3
Cosby, Constand named thirteen other alleged victims, and, before her case was settled, a
number of these women had come forward with their own accusations. On or about
November 13, 2014, Barbara Bowmen “penned an op-ed in the Washington Post titled
‘Bill Cosby raped me. Why did it take 30 years for people to believe my story?’” (A50.)
More accusers then came forward.
Emboldened by these women’s example, Hill decided to share her own story. On
November 20, 2014, she was interviewed by Ralph Ianotti, a reporter with KDKA. “In
the interview, Renita revealed much of the above-mentioned fact pattern and explained
that she felt compelled to come forward after hearing Cosby’s [sic] criticize the other
woman who came forward.” (A51.)
According to Hill, Cosby retaliated against her and the other abuse victims by
publishing statements designed to bring into question their honesty and motivations. Hill
highlighted three such statements: (1) a November 21, 2014 statement by Cosby’s
attorney, Martin Singer, Esq., given to The Washington Post for use in an article
published on November 22, 2014 entitled “‘Bill Cosby’s legacy, recast: Accusers speak
in detail about sexual-assault allegations’” (“Singer Statement”) (A52); (2) a statement
made by Cosby himself during an interview conducted on or about the same day by
Florida Today (“Florida Today Statement”); and (3) a December 15, 2014 letter
published by The Washington Post written by his wife and business manager, Camille
Cosby (“Camille Cosby Statement”).
4
According to Singer:
The new, never-before-heard claims from women who have come forward
in the past two weeks with unsubstantiated, fantastical stories about things
they say occurred 30, 40, or even 50 years ago have escalated far past the
point of absurdity.
These brand new claims about alleged decades-old events are becoming
increasingly ridiculous and it is completely illogical that so many people
would have said nothing, done nothing, and made no reports to law
enforcement or asserted civil claims if they thought they had been assaulted
over a span of so many years.
Lawsuits are filed against people in the public eye every day. There has
never been a shortage of lawyers willing to represent people with claims
against rich, powerful men, so it makes no sense that not one of these new
women who just came forward for the first time now ever asserted a legal
claim back at the time they allege they had been sexually assaulted.
This situation is an unprecedented example of the media’s breakneck rush
to run stories without any corroboration or adherence to traditional
journalistic standards. Over and over again, we have refuted these new
unsubstantiated stories with documentary evidence, only to have a new
uncorroborated story crop out of the woodwork. When will it end?
It is long past time for this media vilification of Mr. Cosby to stop.
(A51-A52.)
In her complaint, Hill focused on the following excerpt from Cosby’s Florida
Today interview:
I know people are tired of me not saying anything, but a guy doesn’t have
to answer to innuendos. People should fact-check. People shouldn’t have
to go through that and shouldn’t answer to innuendos.
(A52.) Cosby provided the District Court with the Florida Today Statement in its
entirety:
5
So today I was informed of this radio station that is offering money for
people to stand up and heckle in order to collect prizes and money.
The thing is, these people are prodding and pushing people and asking
people to have a frat house mentality. Now suppose someone brings a
weapon or decided to do more foolishness. There will be announcements
made and the stations made some disclaimers, but what if people don’t
listen to what they said and they entice violence. That’s not good for
anyone.
When you go to a civil rights march or something like that, at least there are
meetings and some organization to it and people understand how to behave.
There may be people coming to the show that don’t know exactly what to
do; there is no organization to it all.
I know people are tired of me not saying anything, but a guy doesn’t have
to answer to innuendos. People should fact-check. People shouldn’t have
to go through that and shouldn’t answer to innuendos.
(SA2 (emphasis omitted) (citing A52).)
Hill alleged that Camille Cosby questioned the victims’ honesty by stating that
“‘[T]here appears to be no vetting of my husband’s accusers before stories are published
or aired.’” (A53.) “In an apparent attempt to cast further doubt on the honestly [sic] of
Defendant Cosby’s accusers, Camille Cosby also compared the accusations to alleged
rape accusations at the University of Virginia, which eventually were proven to have
been fabricated.” (Id.) According to Cosby, his wife stated the following:
I met my husband, Bill Cosby, in 1963, and we were married in 1964. The
man I met, and fell in love with, and whom I continue to love, is the man
you all knew through his work. He is a kind man, a generous man, a funny
man, and a wonderful husband, father and friend. He is the man you
thought you knew.
A different man has been portrayed in the media over the last two months.
It is the portrait of a man I do not know. It is also a portrait painted by
individuals and organizations whom many in the media have given a pass.
6
There appears to be no vetting of my husband’s accusers before stories are
published or aired. An accusation is published, and immediately goes viral.
We all followed the story of the article in “Rolling Stone” concerning
allegations of rape at the University of Virginia. The story was heart-
breaking, but ultimately appears to be proved to be untrue. Many in the
media were quick to link that story to stories about my husband – until that
story unwound.
(SA2-SA3 (emphasis omitted) (citing A52-A53).)
Hill filed a civil action against Cosby in the Pennsylvania Court of Common Pleas
of Allegheny County. She asserted three claims: (1) defamation/defamation per se; (2)
false light; and (3) intentional infliction of emotional distress (or “IIED”). Cosby
removed the action to the District Court on diversity grounds, and he moved to dismiss
for failure to state a claim upon which relief can be granted.2
The District Court granted Cosby’s motion and dismissed Hill’s complaint with
prejudice. See Hill v. Cosby, 15CV1658, 2016 WL 491728 (W.D. Pa. Feb. 9, 2016).
II.
The District Court did not commit reversible error by granting Cosby’s motion to
dismiss under Rule 12(b)(6).3 We begin with Hill’s defamation claim and, specifically,
2
Meanwhile, the United States District Court for the District of Massachusetts
denied Cosby’s motion to dismiss the defamation claims brought by three other alleged
victims. See Green v. Cosby, 138 F. Supp. 3d 114 (D. Mass. 2015).
3
The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. §
1332, and we have appellate jurisdiction under 28 U.S.C. § 1291.
The Court exercises plenary review over a district court’s order granting a motion
to dismiss for failure to state a claim upon which relief can be granted. See, e.g., Fowler
v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “‘To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’” Black v. Montgomery Cty., 835 F.3d 358,
7
the Singer Statement. Assuming that a reasonable recipient could read the attorney’s
statement as offering an opinion—on the basis of underlying facts—that Hill lied, we
nevertheless determine that Singer disclosed these underlying facts. We also conclude
that no reasonable recipient could interpret Cosby’s Florida Today Statement as implying
the existence of undisclosed defamatory facts. The Camille Cosby Statement similarly
failed to implicate underlying facts regarding Hill’s accusations or to satisfy the “of and
concerning” requirement. Insofar as each statement was not capable of a defamatory
meaning, the sum total of such statements did not rise to the level of actionable
defamation. Likewise, the District Court properly disposed of Hill’s false light and IIED
claims.
“‘[A]lthough a defamation suit has profound First Amendment implications, it is
fundamentally a state cause of action.’” Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir.
2001) (quoting McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir. 1985)). Under
Pennsylvania law,4 the plaintiff must show, inter alia, “[t]he defamatory character of the
communication.” 42 Pa. Cons. Stat. Ann. § 8343(a)(1). If the court determines as a
matter of law that the communication is not capable of having such a meaning, the claim
must be dismissed. See, e.g., Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001).
364 (3d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While
conclusory allegations must be set aside, well-pleaded facts are to be accepted as true,
and the complaint must be construed in the light most favorable to the plaintiff. See, e.g.,
Fowler, 578 F.3d at 210-11.
4
The parties agree that Pennsylvania law applies, and we therefore must predict
how the Pennsylvania Supreme Court would rule if faced with the issue. See, e.g.,
Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010). In making such a
prediction, we must look, inter alia, to decisions of state intermediate appellate courts as
well as rulings by federal courts interpreting Pennsylvania law. See, e.g., id. at 216-17.
8
However, this non-defamatory reading must constitute “the only reasonable”
interpretation of the statement for the court to dismiss the defamation cause of action.
Zartman v. Lehigh Cty. Humane Soc’y, 482 A.2d 266, 269 (Pa. Super. Ct. 1984)
(emphasis in original). A statement is defamatory in nature “if it ‘tends so to harm the
reputation of another as to lower him in the estimation of the community or to deter third
persons from associating or dealing with him.’” Remick, 238 F.3d at 261 (quoting
Tucker, 237 F.3d at 282). A statement may be considered to have a defamatory meaning
if its context creates a defamatory implication, “i.e., defamation by innuendo,” Mzamane
v. Winfrey, 693 F. Supp. 2d 442, 477 (E.D. Pa. 2010) (citations omitted), but this concept
of innuendo cannot be used to introduce new matter or to enlarge the natural meaning of
the words used, see, e.g., Sarkees v. Warner-W. Corp., 37 A.2d 544, 546 (Pa. 1944).
“‘[I]t is well settled that the use of catchy phrases or hyperbole does not necessarily
render statements defamatory that would otherwise be non-actionable.’” Remick, 238
F.3d at 262 (quoting Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985)).
Similarly, a statement must be provable as false to give rise to a claim of defamation.
See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990).
“Under the First Amendment there is no such thing as a false idea. However
pernicious an opinion may seem, we depend for its correction not on the conscience of
judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc.,
418 U.S. 323, 339-40 (1974) (footnote omitted); see also, e.g., U.S. Healthcare, Inc. v.
Blue Cross of Greater Philadelphia, 898 F.2d 914, 927 n.13 (3d Cir. 1990) (characterizing
Gertz reasoning as dictum but recognizing that it is regularly cited). Statements that
9
provide the facts on which the opinion-holder bases his or her opinion, known as “pure”
opinions, are not actionable. See, e.g., Milkovich, 497 U.S. at 17-23; U.S. Healthcare,
898 F.2d at 927 n.13; Redco, 758 F.2d at 972; Restatement (Second) of Torts § 566 cmt.
(b). However, so-called “mixed” opinions, which imply—yet fail to disclose—the
underlying facts may give rise to a defamation cause of action:
Although there may be no such thing as a false opinion, an opinion which is
unfounded reveals its lack of merit when the opinion-holder discloses the
factual basis for the idea. If the disclosed facts are true and the opinion is
defamatory, a listener may choose to accept or reject it on the basis of an
independent evaluation of the facts. However, if an opinion is stated in a
manner that implies that it draws upon unstated facts for its basis, the
listener is unable to make an evaluation of the soundness of the opinion. In
such circumstances, if the underlying facts are false, the Constitution does
not protect the opinion. See Restatement (Second) of Torts § 566A.
Redco, 758 F.2d at 972; see also, e.g., Remick, 238 F.3d at 261 (“In Pennsylvania, an
opinion cannot be defamatory unless it ‘may reasonably be understood to imply the
existence of undisclosed defamatory facts justifying the opinion.” (quoting Baker v.
Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987))); Restatement (Second) of Torts § 566
cmt. (b).
While Hill contends that the Singer Statement implied that she was a liar (and an
extortionist), Cosby insists that this response by an attorney to serious public accusations
of wrongdoing made against his client in the midst of a heated public dispute could not
reasonably be understood to imply the existence of any defamatory facts. We assume
that a reasonable recipient could read the Singer Statement as proffering an opinion—
10
based on underlying facts—that Hill lied. Singer nevertheless disclosed the factual basis
for his opinion.5
“[E]ven if Singer’s Statement does imply Ms. Hill is a liar, it is still not actionable
because it includes the facts supporting that implication.” (Appellee’s Brief at 18 (citing
Redco, 758 F.2d at 972).) Responding to a media firestorm in which several women
(including Hill) had made public accusations of serious wrongdoing against Cosby,
Singer explained on his client’s behalf why he believed these accusations were nothing
but lies: (1) the alleged acts of abuse “occurred 30, 40, or even 50 years ago;” (2) “it is
completely illogical that so many people would have said nothing, done nothing, and
made no reports to law enforcement or asserted civil claims if they thought they had been
assaulted over a span of so many years;” and (3) “[l]awsuits are filed against people in
the public eye every day,” and “[t]here has never been a shortage of lawyers willing to
represent people with claims against rich, powerful men, so it makes no sense that not
one of these new women who just came forward for the first time now ever asserted a
legal claim back at the time they allege they had been sexually assaulted.” (A51-A52.)
5
However, no reasonable recipient could find that Singer characterized Hill and
the other alleged victims as extortionists. It appears that the whole gist of the statement
was to characterize the accusers’ claims as unsubstantiated, fantastical, absurd,
ridiculous, and uncorroborated—in other words—as “lies.” The attorney thereby seemed
to call into question the veracity of the abuse allegations on the grounds that the alleged
victims did not report or file litigation at the time the alleged abuse occurred many years
ago, even though these individuals purportedly would have had no problem in obtaining
legal representation to file a lawsuit against such a wealthy defendant. Applying Florida
law, the Massachusetts district court in Green determined that this Singer Statement was
capable of a defamatory meaning because it could be read to imply that the allegations
were false and without merit, but it did not consider whether Singer also implied that his
client’s accusers were extortionists. See Green, 138 F. Supp. 3d at 136-37.
11
Like the boxer’s letter terminating the plaintiff’s engagement as his special counsel at
issue in Remick, 238 F.3d at 252-53, 261-62, or the 60 Minutes segment regarding the
safety of multi-piece tire rims manufactured by the plaintiff considered in Redco, 758
F.2d at 971-73, Singer’s disclosure of the facts supporting his opinion allowed the
recipient to draw his or her own conclusions “on the basis of an independent evaluation
of the facts,” id. at 972. The Singer Statement thereby “adequately disclosed” the factual
basis for the attorney’s opinion.6 Id.6
We acknowledge that Cosby unsuccessfully raised this disclosure argument in
Green, but we have serious doubts with respect to the Massachusetts district court’s
ruling on this point (which, in any event, is not binding on this Court). Even though the
Green court acknowledged that “[t]he truth of portions of the statement, such as the
length of time between when the incidents allegedly occurred and the date on which any
particular allegation became public, is uncontested,” Green, 138 F. Supp. 3d at 136, it did
not really explain why (as Hill puts it) the Singer Statement “relies on undisclosed facts”
(Appellant’s Brief at 11 (emphasis omitted)), see Green, 138 F. Supp. 3d at 136-37.
Hill cites, inter alia, to a Pennsylvania Superior Court ruling concluding that a
letter from an attorney requesting that the Pennsylvania Attorney General conduct an
investigation into the actions of a city council member regarding the retention of special
counsel for the city was capable of a defamatory meaning. But she recognizes that this
letter “set forth evidence that supported the defendant’s belief as to why he believed the
councilman violated the statutes.” (Appellant’s Reply Brief at 3 n.1 (discussing Green v.
Mizner, 692 A.2d 169 (Pa. Super. Ct. 1997)).) In comparison, this Court has determined
that significantly less detailed statements satisfied the disclosure requirement. Remick,
238 F.3d at 252-53, 261-62 (concluding that boxer disclosed factual basis for opinion that
plaintiff failed to provide adequate representation by identifying five specific instances of
such deficient representation); Redco, 758 F.2d at 971-72 (agreeing with district court
that factual bases for all stated opinions were adequately disclosed in news story
regarding multi-piece tire rims); see also, e.g., Roma v. United States, 344 F.3d 352, 361
(3d Cir. 2003) (“We are not bound by the interpretations of intermediate state appellate
tribunals, however, if other sources present ‘a persuasive indication that the highest state
court would rule otherwise.’” (quoting U.S. Underwriters Ins. Co. v. Liberty Mut. Ins.
Co., 80 F.3d 90, 93 (1996))).
12
We further conclude that no reasonable recipient could read Cosby’s Florida
Today Statement as implying the existence of undisclosed defamatory facts. Cosby
criticized a radio station’s attempt to get “people to stand up and heckle in order to collect
prizes and money,” questioning whether thereby encouraging “people to have a frat
house mentality” could lead to violence. (SA2.) While he arguably characterized the
accusations against him as “innuendos,” Cosby did so in order to explain why he refused
to offer any response of his own to these innuendos—and then invited the recipient to
conduct his or her own investigation. As the District Court aptly explained, asking the
public to investigate and draw its own conclusions “is a far cry from labelling Plaintiff
(and the other women who have made similar public assertions) as liars or extortionists.”
Hill, 2016 WL 491728, at *6; see also, e.g., Purcell v. Ewing, 560 F. Supp. 2d 337, 342
(M.D. Pa. 2008) (“The title of the posting (‘Look at the pictures’) and its opening
sentence (‘If one looks at the photos’) invite readers to evaluate the photograph and form
their own conclusions.”).
Similarly, we agree with the District Court that the Camille Cosby Statement did
not constitute actionable defamation. A defamation plaintiff bears the burden of proving
the “application [of the communication] to the plaintiff” and “[t]he understanding by the
recipient of it as intended to be applied to the plaintiff.” 42 Pa. Cons. Stat. Ann. §
8343(a)(3), (5). “This statement targets the media as much, and arguably more so, than
the accusers, by claiming that the media failed to properly source or ‘vet’ Plaintiff’s and
the other women’s stories before publishing them.” Hill, 2016 WL 491728, at *6. In
fact, the Camille Cosby Statement—unlike the Singer Statement and the Florida Today
13
Statement—was made more than a month after Hill herself had come forward with her
accusations against Cosby. Camille Cosby went on to refer to what Hill calls an
infamous scandal involving false rape allegations at the University of Virginia, but we
believe that no reasonable recipient could find that this final statement implied the
existence of specific undisclosed facts known to Camille Cosby regarding Hill’s
allegations against her husband. After all, this recipient would know that Camille Cosby
was not only Cosby’s business manager. She was also his wife, and it is understandable
that someone would defend his or her spouse against public accusations of wrongdoing
without thereby implicating any specific facts regarding a particular accusation.
According to Hill, the three statements, when combined together, “demonstrate
their defamatory nature based upon undisclosed, false facts.” (Appellant’s Brief at 19
(emphasis omitted).) We do not agree. Insofar as each statement (which was made by
different people at different times) was not capable of a defamatory meaning, the sum
total of these statements likewise did not rise to the level of actionable defamation.
Finally, the District Court appropriately disposed of Hill’s non-defamation causes
of action. “Plaintiff agrees with the court below that Pennsylvania courts apply the same
analysis for both defamation and false light.” (Id. at 23.) Thus, because this Court has
determined that none of the statements were defamatory in nature, her false light claim
fails. Hill further acknowledges that “Pennsylvania has yet to uphold such an IIED claim
in a defamation context.” (Id. at 29.) Even if we were inclined to agree with Hill that an
IIED claim could be based on allegedly defamatory language, we refuse to allow such a
14
novel claim to go forward “after concluding as a matter of law that the language itself is
not defamatory.”7 Hill, 2016 WL 491728, at *9.
III.
For the foregoing reasons, we will affirm the District Court’s order granting
Cosby’s motion to dismiss.
7
The District Court did not commit reversible error by dismissing Hill’s
complaint with prejudice. Hill acknowledges that leave to amend should be granted
“[u]nless amendment would be futile.” (Appellant’s Brief at 9 (citing Chemtech Int’l,
Inc. v. Chem. Injection Techs., Inc., 170 F. App’x 805 (3d Cir. 2006)).) There is no
indication that the various deficiencies identified by this Court could be remedied in an
amended complaint. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(holding that futility is a proper justification for denying leave to amend).
15