Circle Lanes Inc v. Time Inc. ( 1996 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
CIRCLE LANES, INCORPORATED,
Plaintiff-Appellant,
v.
No. 95-1976
TIME INC., a Delaware Corporation;
NED ZEMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the Eastern District of Virginia, at Newport News.
John A. MacKenzie, Senior District Judge.
(CA-94-164-4)
Submitted: June 28, 1996
Decided: July 31, 1996
Before NIEMEYER, HAMILTON, and MICHAEL, Circuit Judges.
_________________________________________________________________
Affirmed by unpublished per curiam opinion.
_________________________________________________________________
COUNSEL
Henry Neill Ware, Jr., COOK & WARE, P.C., Richmond, Virginia;
David Nicholls Montague, LAW OFFICES OF DAVID MONTA-
GUE, Hampton, Virginia, for Appellant. David John Branson,
DAVID J. BRANSON, P.C., Washington, D.C.; Benjamin M. Mason,
Shannon T. Mason, Jr., MASON & MASON, Newport News, Vir-
ginia, for Appellee.
_________________________________________________________________
Unpublished opinions are not binding precedent in this circuit. See
Local Rule 36(c).
_________________________________________________________________
OPINION
PER CURIAM:
Appellant Circle Lanes, Inc. ("Circle Lanes") appeals the district
court's order adopting the magistrate judge's recommendation and
granting Appellees' motion to dismiss for failure to state a claim.
Finding no reversible error, we affirm.
Circle Lanes filed this action in Virginia state court. Appellees
timely removed the case to federal court and filed a joint motion to
dismiss the case. The matter was referred to a magistrate judge. After
a hearing on the matter, the magistrate judge recommended granting
the motion. Following de novo review of those portions of the magis-
trate judge's report to which Circle Lanes objected, 28 U.S.C.
§ 636(b)(1) (1988), the district court adopted the report and granted
the motion to dismiss.
This case arises from an article written by Appellee Ned Zeman
and appearing in the October 25, 1993, issue of S PORTS ILLUSTRATED,
published by Appellee Time, Inc. The article was entitled Southern
Discomfort and recounted the events surrounding a fight in a bowling
alley in Hampton, Virginia. The bowling alley is owned and operated
by Circle Lanes. The incident was highly publicized with allegations
that it was racially motivated. The incident resulted in criminal con-
victions for four young black men, including Allen Iverson, a local
high school athlete of national prominence.
Circle Lanes filed suit against Zeman and Time, Inc., claiming that
it had been harmed by false, libelous and defamatory statements in the
article. The alleged offensive language in the article is found in the
first three paragraphs:
TO THE PEOPLE OF HAMPTON, VA., THE case of
Allen Iverson -- one of the greatest high school basketball
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stars the state has produced -- comes down to one odious
word: Nigger. It is among the most incendiary words in the
American vernacular, and by 1993 it was only occasionally
heard around town . . . . Black teenagers hardly ever heard
the word unless it was spoken by one of them. . . .
After last Feb. 13, however, everything changed. That
was when Iverson, then 17, and a bunch of friends-- . . . all
black--headed to Circle Lanes to bowl some games .. . .
The woman at the counter sent them to the end of the alley,
to a lane against the wall. To Michael Simmons, the tight
end who has been a pal of Iverson's since grade school, that
always seemed to happen. You boys, over there . . . .
When Iverson began thinking cheeseburger, more than
one friend offered to go with him to the snack bar on the
other side of the alley. Over by a group of white guys.
Ned Zeman, Southern Discomfort, SPORTS ILLUSTRATED, Oct. 25, 1993,
at 46.
Circle Lanes was named one other time in the article, in the second
to last paragraph, which reads, "Circle Lanes has changed its name,
and its owner says business is off." However, Circle Lanes did not
mention that statement in its complaint.
To sustain an action for libel in Virginia, the plaintiff must show:
(1) publication; (2) an actionable statement; and (3) requisite intent.
Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993).
To be actionable, a statement must "`tend[ ] so to harm the reputation
of another as to lower him in the estimation of the community or deter
third persons from associating or dealing with him.'" Id. (quoting
Restatement (Second) of Torts § 559). Merely offensive or unpleasant
statements are not defamatory. Id.
The magistrate judge properly found that the article did not attri-
bute to Circle Lanes any improper conduct or motives, biased poli-
cies, or mistreatment of customers. Thus, the magistrate judge
concluded that the language of the article is not actionable.
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The magistrate judge next looked to the conduct of the employee,
who was not named in the article. A plaintiff may not bring a defama-
tion action unless the subject statements concern the plaintiff. General
Products Co. v. Meredith Corp., 526 F. Supp. 546, 550 (E.D. Va.
1981). The only statement attributed to a Circle Lanes employee was,
"[t]he woman at the counter sent them to the end of the alley, to a lane
against the wall." Looking at the plain and natural meaning of those
words, it is not apparent that there was any corporate policy of treat-
ing African-Americans differently from others on the basis of their
race. Therefore, the district court correctly held that Circle Lanes
failed to show actionable language.
Circle Lanes asserts that the magistrate judge erred in his analysis
of the facts of the case. Specifically, Circle Lanes believes that the
implied racial motive behind the lane assignment statement should be
obvious to anyone. Circle Lanes also asserts that the plain and natural
meanings of the words used in the article are defamatory because an
ordinary reader would find them to be false statements which tend to
injure reputation. The district court found, however, that while the
article is "an example of extremely poor journalism, it is not defama-
tory." The bowling alley is mentioned by name only twice in the arti-
cle and only in connection with the events of one evening. The district
court found it implausible that one isolated encounter with an
employee could establish that Circle Lanes practiced segregation of
customers or treated customers differently based upon their race. We
agree with the district court. Moreover, the district court properly
found that the language in the article does not rise to the level of
harming Circle Lanes' reputation to the extent required by Chapin.
Finally, Circle Lanes objected to the relatively minor significance
that the magistrate judge attached to the issue of falsity of the state-
ments in the article. However, defamation law clearly holds that to
state an actionable claim, the statements must not only be false, but
also defamatory. Chapin, 993 F.2d at 1092. Because the district court
properly found that the statements are not defamatory, it did not err
in declining to consider whether the statements were false.
Accordingly, we affirm the district court's order granting Appel-
lees' motion to dismiss this action for failure to state a claim. We dis-
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pense with oral argument upon Appellant's unopposed motion to
submit the case on the briefs.
AFFIRMED
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