Klocke v. Watson ( 2023 )

Case: 22-10348 Document: 00516680081 Page: 1 Date Filed: 03/17/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
March 17, 2023
No. 22-10348 Lyle W. Cayce
Clerk
Wayne M. Klocke, Independent Administrator of the Estate of Thomas
Klocke,
Plaintiff—Appellant,
versus
Nicholas Matthew Watson,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:17-CV-285
Before Richman, Chief Judge, and King and Higginson, Circuit
Judges.
Per Curiam:*
In 2016, Thomas Klocke and Nicholas Watson had a tense verbal and
written exchange during class at the University of Texas at Arlington.
Thomas’ father, Wayne Klocke, later brought suit against Watson, alleging
that Watson published several defamatory statements concerning Thomas
on Facebook and in an email complaint to the University’s Dean of Students.
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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However, Klocke failed to bring his defamation claims relating to Watson’s
Facebook posts within the statute of limitations, and Watson established that,
with respect to his email complaint, there was no genuine dispute of material
fact as to his affirmative defense of truth. Therefore, the district court did not
err in granting summary judgment. We AFFIRM.
I.
On May 19, 2016, Thomas Klocke1 and Nicholas Watson, who did not
know one another, sat next to each other in a summer class taught by
Professor Dwight Long at the University of Texas at Arlington (“UTA”).
According to Watson, he made a comment during class regarding privilege in
society, after which Thomas typed into his computer’s web browser, “gays
should die,” and positioned it for Watson to see. Watson responded by typing
into his own web browser, “I’m gay.” Thomas then pretended to yawn and
called Watson a “faggot.” Watson then told Thomas that he should leave,
and Thomas replied, “You should consider killing yourself.” Immediately
after this, during class, Watson emailed Professor Long regarding the
incident. He also posted on Facebook describing the interaction, writing:
“The guy sitting next to me just typed into his computer ‘ga;ys [sic] should
die.’ Then told me I was a ‘fa**ot’ and that I should ‘kill myself.’ I haven’t
felt this uncomfortable in a long time.” Thomas changed seats shortly
thereafter.
When class ended, Watson approached Professor Long to discuss
what occurred between Thomas and him, and Professor Long recommended
that Watson report the incident to student services. Watson went to student
services and spoke to Heather Snow, UTA’s Dean of Students. Dean Snow
1
For ease of reference, we refer to Thomas Klocke by his first name and Wayne
Klocke, his father, by his last name.
2
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requested that Watson submit his complaint in writing, which he did via
email.2 Following this discussion with Dean Snow, Watson posted another
update to Facebook explaining the actions being taken by UTA and referring
to Thomas as “the student that threatened” him.
Following her meeting with Watson, Dean Snow contacted Daniel
Moore, UTA’s Associate Director for Academic Integrity, to let him know
that she planned to send him a referral from a student “who ‘felt threatened
and unsafe in class.’” In her email, Dean Snow indicated that she believed it
would be appropriate to put into place an interim measure disallowing
Thomas from attending class. Moore agreed and, in addition to issuing a
2
Watson’s email complaint to Dean Snow reads:
Dear Heather,
This is Nicholas Watson. Today, May 19th, during my 8:00 AM
organizational strategy course, MANA 4322-001. We had to move classes
from 153 to 154 due to a computer issue. At this point, I sat next to the
student who was the aggressor, Thomas Klocke.
After commenting about privilege in today’s society, Thomas opened up
his laptop and typed into his web browser’s search bar, “Gays should die.”
At which point, I typed into my search bar on my web browser “I’m gay.”
I was confused and was trying to understand why he was typing and
showing me this.
After this, he acted like he was yawning and told me that “well then you’re
a faggot.”
I then told him, “I think you should leave.” I felt terribly scared and
uncomfortable.
He then told me that “you should consider killing yourself.”
I approached my professor, Dr. Dwight E Long, regarding the incident
after class. He advised I go to student support services.
I then went to Heather Snow, this email recipient, who advised me further.
-Nicholas Watson
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mutual no-contact directive between Thomas and Watson, informed
Thomas via letter that he was not to attend class during the investigation.
The following day, May 20, 2016, Moore sent Thomas a letter
requesting a meeting and explaining that he was being investigated for
allegations of “threat” and “harassment” under the UTA Handbook of
Operating Procedures. Moore called Thomas after sending the email, and
during that conversation Thomas did not dispute the allegations and
confirmed that he was familiar with the incident which precipitated the
investigation. Moore also interviewed Watson that day, during which Watson
repeated the version of events he recounted to Dean Snow and posted on
Facebook. According to Moore, “Watson seemed genuinely scared and
worried,” and Moore “was left with the impression that he [Watson] was
emotionally upset and fearful” of Thomas. Moore also spoke with Professor
Long, who “reported that he did not witness any altercation,” but Moore
noted that what Watson reported to Professor Long matched what Watson
had reported to him.
On May 23, 2016, Moore met with Thomas. Thomas’ father, Wayne
Klocke, accompanied him; Klocke stated that he “just wanted to talk with
[Moore] for a few minutes” and left shortly thereafter. Thomas and Moore
then spoke, and Thomas provided a competing account of his interaction
with Watson on May 19. He said that Watson called him “beautiful” and
kept glancing at him, so Thomas wrote into his web browser and verbally
communicated for him to stop. He denied pretending to yawn and confirmed
that Watson told Thomas to leave, but he denied the statements Watson
attributed to him. Thomas also stated that he moved seats because Watson
had been typing on his phone and laughing, which was distracting. Moore
reported that, during their meeting, Thomas referred repeatedly to a sheet of
paper that he had with him, which appeared to be a script or outline. Thomas
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“did not deviate” from this paper when Moore requested details, and his
responses to Moore’s follow-up questions “lacked any substance.”
Moore also met with Blake Lankford, who was seated beside Thomas
during the incident. Lankford recalled that “both students looked really
tense” and heard Watson tell Thomas that he should leave. Lankford also
stated that after Thomas left the room, Lankford asked Watson what
happened, and Watson showed him a note indicating what Thomas allegedly
stated. Watson had provided this note to Moore, and Lankford confirmed its
substance, which matched the other descriptions of the incident by Watson.
Lankford told Moore that he did not hear or see Watson laughing or
otherwise causing a distraction.
At the conclusion of his investigation, Moore determined that
Thomas was responsible for the harassment charge but not the threat charge.
On May 25, 2016, Moore shared his findings with Thomas and explained
that, while Thomas would not be permitted to return to the classroom, he
would be able to meet one-on-one with his professor and continue working
with his group. These accommodations would enable Thomas to still obtain
credits for the class. Tragically, Thomas died by suicide on June 2, 2016.
On April 4, 2017, Klocke filed suit against Watson based on his email
complaint to Dean Snow.3 Watson filed a motion to dismiss the complaint
pursuant to the Texas Citizens Participation Act (“TCPA”), which protects
defendants from retaliatory defamation claims arising from the exercise of a
defendant’s First Amendment rights. The district court granted Watson’s
motion to dismiss, but the Fifth Circuit reversed. See Klocke v. Watson, 936
3
Klocke also filed a Title IX claim against UTA, which is not at issue in this appeal.
The district court granted summary judgment for UTA, and we affirmed that judgment.
See Klocke v. Univ. of Tex. at Arlington, 938 F.3d 204 (5th Cir. 2019).
5
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F.3d 240 (5th Cir. 2019). The panel held that the TCPA does not apply in
federal court, so it did not serve as a basis for granting the motion to dismiss.
Id. at 249.
Klocke then filed an amended complaint on September 30, 2019,
alleging defamation claims based on two of Watson’s Facebook posts on the
day of the incident, in addition to the original claim based on Watson’s email
complaint to Dean Snow. Watson filed a motion for summary judgment,
arguing that summary judgment was appropriate on a number of grounds.
The district court granted Watson’s motion, finding that Watson did not
publish false statements of fact about Thomas; Thomas waived any
arguments relating to defamation per se; Thomas did not present competent
summary judgment evidence of compensable damages; and Thomas failed to
raise a genuine dispute of material fact as to the defamatory false impression
claim.
The Fifth Circuit initially affirmed the district court’s judgment,
holding that there was no genuine dispute of material fact as to Watson’s
affirmative defense of truth because the only admissible evidence of the
incident was Watson’s account of what occurred. Klocke v. Watson, 861 F.
App’x 524, 533–34 (5th Cir.), opinion withdrawn on reh’g, 2021 WL 5871884(5th Cir. 2021). Klocke filed a petition for rehearing en banc, which the panel
granted as a petition for panel rehearing. Klocke, 2021 WL 5871884, at *1. In
so doing, the panel withdrew its original opinion, reversed the district court’s
summary judgment, and remanded the case for further proceedings. Id. It
determined that, “[a]lthough the parties’ summary-judgment filings
presented the district court with numerous evidentiary issues, the district
court did not resolve those questions prior to granting summary judgment.”
Id. at *6. Watson’s motion for summary judgment and Klocke’s opposition
to it both challenged the admissibility of the other party’s evidence, and the
panel reasoned that the district court erred by failing to decide these issues
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and instead relying upon improper credibility determinations regarding
Watson and Moore to support its judgment that there were no genuine
disputes of material fact as to the elements of falsity and fault. Id. Further,
the panel held that the district court erred in determining that Klocke waived
the issue of defamation per se and that Klocke was unable to present
competent evidence of compensable damages. Id. at *7–8.
On remand, Klocke filed a motion for partial summary judgment,
seeking a ruling that Watson defamed and injured Thomas as matters of law.
Watson also filed a new motion for summary judgment, arguing that: (1)
Klocke’s claims based on Watson’s Facebook posts were not filed within the
one-year statute of limitations; (2) there was no genuine dispute of material
fact as to Watson’s affirmative defense of truth; (3) Klocke could not present
competent summary judgment evidence that Watson’s publications
constituted defamation per se; and (4) Klocke was barred from seeking
exemplary damages because of his failure to comply with the Texas
Defamation Mitigation Act.
On April 6, 2022, the district court granted Watson’s motion and
denied Klocke’s motion. It considered the myriad evidentiary issues on both
sides and determined that only Watson’s version of the incident was
admissible and the evidence upon which Klocke relied was either
inadmissible hearsay or did not contradict Watson’s account. Therefore,
there was no genuine dispute of material fact as to Watson’s truthfulness,
and Thomas was not defamed as a matter of law. The court also held that
Watson’s statements did not rise to the level of defamation per se because
they did not, contrary to Klocke’s assertions, impute criminal activity or
sexual misconduct to Thomas. It further held that Klocke’s Facebook-related
claims were untimely; that Klocke was barred from recovering exemplary
damages because he failed to comply with the Texas Defamation Mitigation
Act; and that the testimony of Alan Berman, Klocke’s expert, was
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inadmissible to establish the reason for Thomas’ suicide. Klocke timely
appealed.
II.
This court reviews grants of summary judgment de novo. Smith v.
Reg’l Transit Auth., 827 F.3d 412, 417 (5th Cir. 2016). Summary judgment is
proper “if the movant shows that 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 support their assertions that a fact cannot be or
is genuinely disputed, parties may: (1) “cit[e] to particular parts of materials
in the record”; (2) “show[] that the materials cited do not establish the
absence or presence of a genuine dispute”; or (3) demonstrate “that an
adverse party cannot produce admissible evidence to support the fact.” Id.
56(c)(1). The evidence introduced and all factual inferences from the
evidence must be viewed in a light most favorable to the nonmovant, but the
nonmovant may not rest on mere conclusory allegations. Smith, 827 F.3d at
417.
III.
Watson argues that Klocke’s claims relating to Watson’s Facebook
posts are barred by the statute of limitations. Under Texas law, there is a one-
year statute of limitations for defamation actions. See Tex. Civ. Prac. &
Rem. Code § 16.002(a); Walker v. Beaumont Indep. Sch. Dist., 938 F.3d
724, 741–42 (5th Cir. 2019). Generally, a defamation claim accrues on the
date the alleged defamatory statement is published or circulated by the
defendant; however, in certain defamation cases the discovery rule applies,
“whereby the statute of limitations does not begin to run until the injured
party learns of, or in the exercise of reasonable diligence should have learned
of, the injury or wrong giving rise to the cause of action.” Kelley v. Rinkle, 532
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S.W.2d 947, 948 (Tex. 1976); see also Childs v. Haussecker, 974 S.W.2d 31,
39–40 (Tex. 1998) (explaining the scope of the discovery rule).
Klocke learned of Watson’s allegedly defamatory Facebook posts no
later than February 9, 2018, when Watson produced the posts as part of this
litigation. Klocke did not bring claims related to these posts until September
30, 2019, as part of his first amended complaint. Even if the discovery rule
applies, Klocke’s claims concerning the Facebook posts were filed more than
one year after he learned of the posts.
Klocke does not contest this; instead, he argues that the statute of
limitations was tolled with respect to these claims because their viability
depended on the outcome of the appeal that was ongoing when the posts were
produced. Specifically, Klocke contends that his ability to assert claims
related to the Facebook posts depended on whether the TCPA applied to bar
his defamation claims. He further argues that equitable tolling should apply
because he was precluded from amending his complaint during the pendency
of the appeal.
Because the Texas statute of limitations applies in this case, we also
apply Texas’ tolling rules and principles. King-White v. Humble Indep. Sch.
Dist., 803 F.3d 754, 764 (5th Cir. 2015). “Texas courts have held that as a
general rule, where a person is prevented from exercising his legal remedy by
the pendency of legal proceedings, the time during which he is thus
prevented should not be counted against him in determining whether
limitations have barred his right.” Jackson v. Johnson, 950 F.2d 263, 265 (5th
Cir. 1992); Hughes v. Mahaney & Higgins, 821 S.W.2d 154, 157 (Tex. 1991).
Klocke argues that the ongoing appeal prevented him from exercising his
legal remedy with respect to the allegedly defamatory Facebook posts
because such claims would be compulsory in this case. But “Texas law treats
each alleged defamatory publication as a single, separate transaction with an
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independent injury,” so Klocke was not required to bring the Facebook
claims as part of the original suit. TV Azteca, S.A.B. de C.V. v. Trevino Ruiz,
611 S.W.3d 24, 33 (Tex. App. 2020). Instead, Klocke was free to bring these
claims in a separate suit in state or federal court; he was not “prevented from
exercising his legal remedy” with respect to those claims. Jackson, 950 F.2d
at 265. Therefore, the statute of limitations was not tolled with respect to
these claims during the pendency of the earlier appeal. TV Azteca, 611 S.W.3d
at 33.
Neither did equitable tolling exist during the pendency of Klocke’s
appeal. “The doctrine of equitable tolling preserves a plaintiff’s claims when
strict application of the statute of limitations would be inequitable.” Lambert
v. United States, 44 F.3d 296, 298 (5th Cir. 1995). This doctrine is used
sparingly by Texas courts as well as federal courts, and litigants may not rely
upon it “to avoid the consequences of their own negligence.” Myers v. Nash,
464 F. App’x 348, 349 (5th Cir. 2012) (per curiam) (quoting Hand v. Stevens
Transp., Inc., 83 S.W.3d 286, 293 (Tex. App. 2002)). Equitable tolling is
inappropriate, for example, “when the party seeking relief has an adequate
legal or statutory remedy to avoid the consequences of the statute of
limitations.” Lambert, 44 F.3d at 299. Because Klocke could have brought
these claims in a separate suit within the statute of limitations but chose not
to do so, equitable tolling is inappropriate. Klocke’s claims based on allegedly
defamatory statements in Watson’s Facebook posts are thus barred by the
statute of limitations.
IV.
Klocke’s claims relating to Watson’s email complaint to Snow yet
remain. Under Texas law, “[t]o state a defamation claim, a plaintiff must
show (1) the publication of a false statement of fact to a third party, (2) that
was defamatory concerning the plaintiff, (3) with the requisite degree of fault,
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at least amounting to negligence, and (4) damages, in some cases.” Innovative
Block of S. Tex., Ltd. v. Valley Builders Supply, Inc., 603 S.W.3d 409, 417 (Tex.
2020). Truth of the statement in the publication is an affirmative defense in
defamation suits. Tex. Civ. Prac. & Rem. Code § 73.005(a); see
Warren v. Fed. Nat’l Mortg. Ass’n, 932 F.3d 378, 383 (5th Cir. 2019) (“In
defamation suits brought by private individuals, truth is an affirmative
defense.”).
Klocke contests the district court’s grant of summary judgment to
Watson based on the affirmative defense of truth. He argues that Watson
failed to meet his burden to establish the truthfulness of his statements
regarding Thomas and that he put forward competent summary judgment
evidence to establish the falsity of Watson’s statements. He also contends
that the district court impermissibly evaluated Thomas’ credibility in its
consideration of the residual hearsay exception. We address, and reject, each
of these arguments in turn.
A.
First, Klocke argues that Watson’s sworn testimony is insufficient to
establish the truthfulness of his statements regarding Thomas because his
testimony must be excluded as inadmissible hearsay under Federal Rule of
Evidence 801 and as inadmissible testimony under Texas Rule of Evidence
601. Regarding Rule 801, Watson responds that his testimony regarding
Thomas’ statements is admissible as an opposing party’s statement. We
agree. Under Rule 801, a statement “offered against an opposing party” that
“was made by the party in an individual . . . capacity” is not hearsay. Fed.
R. Evid. 801(d)(2)(A). Watson testified against Klocke, the administrator
of Thomas’ estate, as to statements made by Thomas. Therefore, Watson’s
testimony regarding Thomas’ statements is admissible as an opposing
party’s statement. See Est. of Shafer v. C.I.R., 749 F.2d 1216, 1220 (6th Cir.
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1984) (statements attributed to decedent are admissible by the opposing
party when the decedent’s estate is a party to the action); see also Phillips v.
Grady Cnty. Bd. of Cnty. Comm’rs, 92 F. App’x 692, 696 (10th Cir. 2004)
(noting that “a decedent, ‘through his estate, is a party to [an] action,’ so
that the decedent’s statements ‘are a classic example of an admission’”
(alteration in original) (quoting Shafer, 749 F.3d at 1220)); United States v.
Est. of Mathewson, 2016 WL 7409855, at *4 (W.D. Tex. Apr. 19, 2016)
(“Admissions by a decedent fall within [the party-opponent statement]
exception when the estate is a party to the lawsuit.”).
Rule 601 of the Texas Rules of Evidence, which contains what is
known as the “Dead Man’s Rule,” governs witness competency and
generally prohibits a party from “testify[ing] against another party about an
oral statement by the testator, intestate, or ward” in civil cases “by or against
a party in the party’s capacity as an executor, administrator, or guardian.”
Tex. R. Evid. 601(b). Rule 601 also outlines two exceptions, whereby such
testimony is permissible: if (1) “the party’s testimony about the statement is
corroborated”; or (2) “the opposing party calls the party to testify at the trial
about the statement.” Id. 601(b)(3). Klocke argues that the first exception is
inapplicable because the evidence put forward by Watson is self-serving and
not independently corroborated. He argues that the second exception does
not apply because there has been no trial in this case. Watson, by contrast,
contends that both exceptions apply.
We agree with Watson and the district court that at least one of the
exceptions to the Dead Man’s Rule applies. In general, Texas courts
narrowly construe the Dead Man’s Rule. E.g., Fraga v. Drake, 276 S.W.3d 55,
61 (Tex. App. 2008). Concerning the first exception, “the threshold for
corroborating evidence is a low one.” Keeney v. Williams, 2020 WL 5267568,
at *3 (Tex. App. 2020). Corroborating evidence “need not be sufficient
standing alone to support the verdict, but must tend to confirm and
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strengthen the testimony of the witness and show the probability of its
truth,” including by “show[ing] conduct on the part of the deceased which
is generally consistent with the testimony concerning the deceased’s
statements.” Quitta v. Fossati, 808 S.W.2d 636, 641 (Tex. App. 1991); see also
Fraga, 276 S.W.3d at 61. In Quitta, the defendant testified to the existence
and terms of an alleged oral lease modification he entered into with the
decedent. The proffered corroborating evidence was the testimony of the
decedent’s brother, who recounted the decedent’s statement that the
tenants “were going to rent a house of hers and do some work in exchange
for some rent.” 808 S.W.2d at 641–42. The court considered this to be
sufficient corroboration, despite the plaintiff’s protest that the testimony
only showed that there may have been an agreement prior to the written
lease, because it “may just as consistently show the likelihood of a later oral
modification to the written lease.” Id. at 642.
Here, Watson provided independently corroborated evidence that
tends to confirm and strengthen his testimony concerning Thomas’
statements, satisfying the first exception to the Dead Man’s Rule. For
example, Moore stated in his declaration that during his initial call with
Thomas, Thomas told Moore that he “knew what this was in reference to”
and did not dispute the allegations nor protest being out of class; he was
“stoic and unemotional.” Thomas’ conduct, as recollected by Moore, is
generally consistent with Watson’s testimony. Watson provided other
corroborating evidence as well. Lankford testified that he noticed that
Watson and Thomas “were both really tense” during class, like “something
was going on between them,” and reported to Moore during Moore’s
investigation that both students looked tense and that he did not see or hear
Watson laughing or causing a distraction. Given this corroboration, Watson’s
testimony concerning Thomas’ statements are excepted from the Dead
Man’s Rule and admissible to show the truthfulness of his publications.
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Because we find that the first exception to the Dead Man’s Rule applies, we
need not decide whether the second exception is applicable.
B.
Because Watson has satisfied his initial burden of establishing
truthfulness, Klocke must put forward competent summary judgment
evidence that raises a genuine dispute of material fact as to the truth of
Watson’s publication. Klocke first argues that Watson’s own admissions—
that Thomas never physically threatened him—prove Watson’s publication
was false. However, Watson never claimed that Thomas physically
threatened him in his email complaint to Dean Snow, which is the only
allegedly defamatory publication at issue. Klocke acknowledges this,
contending that the Facebook posts nonetheless show that Watson verbally
told Dean Snow that Thomas had physically threatened him. But speculation
as to what Watson may have said to Dean Snow does not raise a genuine
factual dispute. See Warren, 932 F.3d at 385 (plaintiff’s defamation claim
cannot survive summary judgment based on speculation as to the publication
of allegedly defamatory comments).
Next, Klocke attempts to dispute Watson’s story with Thomas’
recollection of the incident as recorded in Moore’s interview notes and
report. Watson argues that Thomas’ statements to Moore are inadmissible
hearsay, but Klocke contends that his statements fall under several
exceptions to the rule against hearsay. We agree with Watson and the district
court that Thomas’ statements as recorded by Moore are inadmissible by
Klocke and thus not competent summary judgment evidence.
Klocke argues that Moore’s notes are admissible under Rule 803(1) as
a present sense impression, which is “[a] statement describing or explaining
an event or condition, made while or immediately after the declarant
perceived it.” Fed. R. Evid. 803(1). “The justification for this hearsay
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exception relies on the contemporaneousness of the event under
consideration and the statement describing that event.” Rock v. Huffco Gas &
Oil Co., 922 F.2d 272, 280 (5th Cir. 1991). Moore did not interview Thomas
until four days after the incident in question. Therefore, Thomas’ statements
describing the incident were not contemporaneous with the incident itself,
and they are not admissible under the present sense impression hearsay
exception.
Klocke next contends that Moore’s notes are admissible under Rule
803(6) as records of a regularly conducted activity, also known as the business
records exception. Fed R. Evid. 803(6). To satisfy this exception, “each
participant in the making of the record must be acting in his normal course of
business.” Rock, 922 F.2d at 279. Though Moore, as a UTA investigator, was
acting in his normal course of business, Thomas was not. Thomas was a UTA
student, and his being interviewed as part of an ongoing investigation into his
conduct was not a regularly conducted activity. For this reason, Thomas’
statements as recorded by Moore are not admissible under the business
records hearsay exception.
Klocke also relies upon Rule 807, the residual hearsay exception, to
admit Moore’s notes of his discussion with Thomas. The residual hearsay
exception allows a statement that is otherwise hearsay to be admitted if: “(1)
the statement is supported by sufficient guarantees of trustworthiness”; and
“(2) it is more probative on the point for which it is offered than any other
evidence that the proponent can obtain through reasonable efforts.” Fed.
R. Evid. 807(a). As the district court recognized, there are myriad reasons
that Thomas’ statements to Moore were not supported by sufficient
guarantees of trustworthiness: the statements were self-serving, as they were
made during the course of an investigation into his conduct; during the
meeting, Thomas kept referring to a sheet of paper he had with him that
appeared to be a script or outline; and he would not deviate from this script,
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such that his responses to follow-up questions “lacked any substance.”4 For
these reasons, Moore’s notes are not admissible to prove the truth of
Thomas’ statements.
Klocke then argues that Moore’s notes, and Thomas’ statements
within them, are admissible “not to prove the truth of Thomas’ assertions
but to prove that Moore perceived the two student’s [sic] stories to differ,
and that there was no additional evidence identified to corroborate Watson’s
story that Thomas threatened him or acted as an aggressor,” thereby making
them non-hearsay. But before any evidence may be admitted, it must be
relevant. Fed. R. Evid. 402. Evidence is relevant if it tends to make a fact
more or less probable than it would be without the evidence, and that fact is
of consequence in determining the action. Id. 401. At issue is whether
Watson’s publications were true; Moore’s state of mind is not relevant to
that inquiry. Even if Moore’s state of mind was relevant to the truthfulness
of Watson’s publication, and Klocke does not explain why it would be,
Thomas’ statements as recorded in Moore’s notes would be excluded
because their “probative value is substantially outweighed by a danger of one
or more of the following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting cumulative
evidence.” Id. 403. As a result, Moore’s notes recounting Thomas’
statements are not competent summary judgment evidence and cannot be
relied upon by Klocke to establish a genuine dispute of material fact as to the
truthfulness of Watson’s publication.
4
Klocke accuses the district court of improperly assessing the credibility of
Thomas in its discussion of the residual hearsay exception; however, the court was merely
articulating why Thomas’ statements to Moore were not supported by “sufficient
guarantees of trustworthiness,” which was appropriate in this context. See Fed. R. Evid.
807(a)(1). For this reason, we reject Klocke’s argument concerning the district court’s
supposed credibility determination.
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No. 22-10348
Lastly, Klocke argues that Lankford’s testimony proves the falsity of
Watson’s publications. However, Lankford’s testimony is consistent with
the statements made by Watson. Lankford testified that he “noticed that
something was going on” beside him and heard Watson say, “Well, if you
don’t like it, then you can leave.”5 He did not observe what precipitated the
conversation but “noticed they were both really tense,” like “something was
going on between them.” He did not observe Watson express that he needed
help and did not notice that Watson appeared to be scared or fearful, nor did
he perceive Thomas as threatening and did not see or hear any threats of
physical violence. Lankford recalled talking to Watson about what happened
during class, but Watson did not say he was threatened; however, he
mentioned that he was going to talk to the professor about the incident. All
of this is consistent with Watson’s publication: Watson explained that their
communications were typed on laptops, so another classmate would not have
seen particular statements on the screens; Watson never asserted that he was
physically threatened; Watson spoke with Professor Long after class; and
Watson never said that he asked for help or appeared outwardly scared or
fearful. Despite Klocke’s protestations to the contrary, Lankford’s testimony
does not contradict Watson’s publication.
In sum, Watson established his affirmative defense of truth, and
Klocke was unable to furnish any competent summary judgment evidence to
contradict Watson’s publication or otherwise prove falsity. Therefore, there
is no genuine dispute of material fact as to the truthfulness of Watson’s
publication. Because Watson has succeeded in establishing his affirmative
5
This is consistent with, but not identical to, Watson’s version, which alleges that
he stated, “I think you should leave.” Lankford’s testimony was taken in December 2019,
over three years after the incident in question. Given the time that passed, the statements
are not materially different, and Lankford’s testimony does not contradict Watson’s
account.
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No. 22-10348
defense of truth, Klocke has not successfully asserted a defamation claim.
Accordingly, we need not address the remaining issues raised by Klocke.
V.
For the foregoing reasons, the district court’s summary judgment in
favor of Watson is AFFIRMED.
18