Z Bayou, LLC et al v. WAFB, LLC, et al, No. 2:2015cv04384 - Document 72 (E.D. La. 2016)

Court Description: ORDER AND REASONS denying 33 Motion to Strike ; denying 47 Motion to Strike. Signed by Judge Susie Morgan on 10/13/2016. (cg)

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Z Bayou, LLC et al v. WAFB, LLC, et al Doc. 72 U N ITED S TATES D ISTRICT COU RT EASTERN D ISTRICT OF LOU ISIAN A Z BAYOU , L.L.C., e t al. Plain tiffs CIVIL ACTION VERSU S N O. 15-4 3 8 4 W AFB, L.L.C., e t al. D e fe n d an ts SECTION : “E” ( 4 ) ORD ER AN D REAS ON S Before the Court are two Special Motions to Strike pursuant to article 971 of the Lousiana Code of Civil Procedure filed by Defendants WAFB, LLC, Chris Slaughter and Sam antha Morgan (collectively, “WAFB”) and Defendant Benjam in Mintz D/ B/ A/ Minced Media, Inc. (“NOLA Defen der”). 1 Plaintiffs oppose both m otions to strike. 2 For the reasons that follow, the Defendants’ special m otions to strike are D EN IED . LAW AN D AN ALYSIS In Henry v. Lake Charles Am . Press. L.L.C., the Fifth Circuit explain ed the background and purpose of article 971: A num ber of state legislatures have expressed concerns over the use (or abuse) of lawsuits that have the purpose or effect of chilling the exercise of First Am en dm ent rights. These suits are com m only referred to as “strategic lawsuits against public participation,” or “SLAPPS.” In response to the growth of SLAPPS, som e states have provided a procedural m ethod – often called a “special m otion to strike” but known as an “anti-SLAPP m otion or “SLAPPback” – to weed out and dism iss m eritless claim s early in litigation. . . Article 971 of the Louisiana Code of Civil Procedure provides one such m ethod. 3 Article 971 establishes a burden-shifting analysis for weeding out frivolous claim s. To succeed on an Article 971 m otion, the defen dant m ust first m ake a prim a facie showing that Article 971 covers the activity underlying the suit. That is, the defendant m ust establish that a cause of action against him arises 1 R. Doc. 33; R. Doc. 47. R. Doc. 51; R. Doc. 57. 3 Henry v. Lake Charles Am . Press. L.L.C., 566 F.3d 164, 169 (5th Cir. 20 0 9). 2 Dockets.Justia.com from an act by him in furtherance of the exercise of his right of petition or free speech under the United States of Louisiana Constitution in con nection with a public issue. If the defen dant m akes this showing, the burden then shifts to the plaintiff to dem onstrate a probability of success on his claim . If the plaintiff fails to dem onstrate a probability of success, the trial court dism isses the claim . Otherwise, the trial court denies the m otion and the suit proceeds as it norm ally would. 4 Article 971(B) provides, “a prevailing party on a special m otion to strike shall be awarded reasonable attorney fees an d costs.”5 Defendants have failed to satisfy their burden in m aking a prim a facie showing that article 971 covers the activity underlying the suit. Under article 971, a defendant m ust m ake an initial prim a facie showing the m atter arises from an act in furtherance of the defendant’s right of free speech in connection with a public issue, as defined by the statute. 6 Defendants allege their speech falls under part (c) of the statutory definition which protects: “Any written or oral statem ent m ade in a place open to the public or a public forum in connection with an issue of public interest.”7 As the Defendants correctly identify, “Whether Plaintiff’s claim s are subject to a special m otion to strike depends on whether [Defendants’] speech was about an issue of public interest.”8 Defendants argue “Louisiana courts broadly construe ‘an issue of public interest’ to include ‘any m atter of political, social, or other concern to the com m unity,’”9 and that “[t]he production of motion pictures and television program m ing is, by itself, a m atter of public interest.”10 In addition, Defendants state that WAFB’s broadcast and NOLA 4 Id. at 170 (internal citation s om itted). La. Code. Civ. P. art. 971(B). 6 Id. at (A)(1). 7 Id. at (F)(1)(c). 8 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5. 9 Id. (citing Kirksey v. N ew Orleans Jazz & Heritage Found., Inc., 20 12-1351 (La. App. 4th Cir.), 116 So. 3d 664, 669). 10 Id. (citing Kronem y er v. In ternet Movie Database, Inc., 150 Cal.App.4th 941, 949 (Cal. App. 20 0 7); Tam kin v. CBS Broadcasting, Inc., 193 Cal.App.4th 133, 142 (Cal. App. 20 11)). 5 Defender’s publication regarding, “a m ovie production com pany’s failure to pay crew m em bers trying to m ake a livelihood in the m otion picture industry in Louisiana,” is a m atter of public interest. 11 WAFB also argues that in particular, the film industry is a public interest in Louisiana given that it is an “industry whose tax credit program has been the subject of considerable interest in the m edia, the legislature, and the courts,” and, “in this difficult econom y, the news that num erous workers on a particular work site say they were not paid tens of thousands of dollars is itself of public interest.”12 In response, Plaintiffs allege that the subject of the Defendants’ broadcast an d publication fall outside the am bit of article 971 because they relate to a private dispute between Plaintiffs and the hired film crew. 13 The Court agrees with the Plaintiffs’ analysis. Although article 971 “should be construed broadly,”14 the broadcast by WAFB and the publication by NOLA Defender do not concern an issue in the public interest. Louisiana courts have interpreted the “public issue” an d “public interest” requirem ent as being the sam e as “public concern” in defam ation cases.”15 In Kennedy , the Louisiana Suprem e Court explained that m atters are of public concern if they relate “to any m atter of political, social, or other concern to the com m unity. Whether speech addresses a m atter of public concern m ust be determ ined by the content, form , and context of a given statem ent, as revealed by the entire record.”16 In addition, the United States Suprem e Court has explained that speech 11 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5-6. R. Doc. 33-9, 7-8. 13 R. Doc. 51, at 4-5; R. Doc. 57, at 4. 14 See, e.g., Kirksey , 116 So. 3d at 669. 15 See Ly ons v. Knight, 20 10 -1470 (La. App. 3 Cir. 5/ 11/ 11), 65 So. 3d 257, 265 (citin g Kennedy v. Sherriff of East Baton Rouge, 20 0 5-1418 (La. 7/ 10 / 0 6), 935 So. 2d 669, 677). 16 Kennedy , 935 So. 2d 677 n .6. 12 m ay be considered a public concern when it “is a subject of legitim ate news interest; that is, a subject of general interest and of value and concern to the public.”17 As explained in Herrera v. Medical Center Hosp., the Fifth Circuit has identified categories of speech that are and are not issues of public concern. 18 The Fifth Circuit has stated the following are categories of speech that touch upon the public con cern: associating with political organizations an d cam paigning for a political candidate, speech m ade against the backdrop of ongoing com m entary and debate in the press, and speech related to racial discrim ination. 19 On the other hand, the Fifth Circuit has determ in ed that the following categories are not of public concern: speech concerning a purely person al labor dispute, such as a disagreem ent between an em ployee and an em ployer about the conditions of em ploym ent, and challenges m ade by an individual to one’s work conditions and the quality of the work environm ent. 20 The underlying subject of WAFB’s broadcast and NOLA Defender’s publication was an em ploym ent dispute between private parties. Although the Defendants argue the film industry is an im portant public issue in Louisiana, the Court m ust consider the context in which the speech was m ade. For exam ple, in Arm ington v. Fink, the court looked to the article’s introduction to determ ine the purpose of the publishing. 21 The court, in finding that the article presented an issue of public interest, stated: According to its introduction, the article’s purpose in describing and analyzing the events at Mem orial Hospital in the days following Hurricane Katrina is to consider questions raised by disasters like how lim ited resources should be divided am ongst patients and what is the line between com fort care and m ercy killing. The article asserts the im portance of these 17 Sny der v . Phelps, 562 U.S. 443, 453 (20 11). Herrera v. Medical Center Hosp., 241 F.Supp.2d 60 1, 60 9 (20 0 2). 19 See id. 20 See id. 21 Arm ington v. Fink, 20 10 WL 743521, at *5 (E.D. La. Feb. 24, 20 10 ). 18 issues in light of proposed legislation to alter the standard of m edical care in em ergencies. 22 Although the conclusion of the NOLA Defender article includes the statem ent that “[s]tories of productions failing to m ake payroll circulate in the industry,” the following line of the article states, “in actuality, the instances rem ain surprisingly rare even on productions with relatively sm all budgets.”23 In addition, although WAFB argues the Louisiana film industry is an im portant issue in the public interest because of the state’s tax credit program , WAFB’s broadcast never m entions the issue of tax credits or controversies regardin g the Louisiana film in dustry as a whole. Courts have acknowledged that disputes between private parties can be issues in the public interest. 24 In BCCL Enterprises, Inc. v. Rizzo, the underlyin g issue involved “a private individual reporting an alleged theft of jewelry to the police.”25 In determ in ing that the issue was in the public interest, the court reasoned, “If BCCL’s em ployees were stealing item s from its custom er’s hom es, it would im plicate and concern anyone who utilized BCCL’s services. Accordingly, we conclude that this m atter was one of public concern.”26 In the case before the Court, the allegedly harm ed parties osten sibly had knowledge of the pay dispute prior to the broadcast and publication and were not being inform ed of the issue by the broadcast or publication. Unlike the issues in Arm ington and BCCL, the content and context of both the issue and the speech in question before this Court convince the Court that the broadcast by WAFB and the publication by NOLA Defender were not issues of public interst. 22 Id. R. Doc. 40 -1, at 4. 24 See, e.g., BCCL Enterprises, Inc. v . Rizzo, 20 13-1624 (La. App. 1 Cir. 8/ 20 / 14) 20 14 WL 410 2467. 25 Id. at 3. 26 Id. 23 Defendants argue, “Courts have recognized that the production of motion pictures and television program ing is, by itself, a m atter of public interest.”27 Defendants cite two California cases, Kroney m y er v. Internet M ovie Database, Inc. 28 and Tam kin v. CBS Broadcasting, Inc., 29 in support of their argum ent. 30 In response, Plaintiffs m aintain “The rule set forth in these cases, contrary to the argum ent by [the Defendants], is not som e broad rule of law applicable under all circum stances.”31 The Court agrees with the Plaintiffs’ analysis of these cases interpreting the California anti-SLAPP law. It is true that the Fifth Circuit has found that in the context of determ ining federal jurisdiction, appellate review, and the burden shifting procedure, the California anti-SLAPP law, California Code of Civil Procedure § 425.16, is sim ilar to article 971. 32 There is a distin ction, however, in the interpretation of “public interest” under the respective statutes. California courts have determ ined that although “Section 425.16 does not define ‘public interest,’ . . . its pream ble states that its provisions shall be construed broadly to safeguard the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”33 When interpreting the California statute, som e courts have held “an issue of public interest is any issue in which the public is interested. In other words, the issue need not be ‘significant’ to be protected by the SLAPP statute – it is enough that it is one in which the public takes an interest.”34 Louisiana courts interpreting article 971, however, have determ ined that in the express 27 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5. Kroney m y er, 150 Cal. App. 4th 941. 29 Tam kin, 193 Cal. App. 4th 133. 30 R. Doc. 33-9, at 7; R. Doc. 47-1, at 5. 31 R. Doc. 51, at 7. 32 See, Hen ry , 566 F.3d at 168-69. 33 Id. (internal citations om itted). 34 Tam kin, 193 Cal. App. 4th at 143 (internal citations om itted). 28 statem ent of intent for the statute, the legislature the reason behind article 971 is “that it is in the public interest to encourage continued participation in m atters of public significance.”35 In Yount, the court found this statem ent of intent dem onstrated that the legislature only wanted the “extraordinary procedural rem edy” provided by article 971 to apply to significant public issues. 36 The court reasoned that a broader interpretation would allow any party to “defam e or invade the privacy of a person involved in a divorce proceeding, traffic violation, child custody dispute, m arriage, m ortgage registration, passport application, or driver’s license renewal and be im m unized from legal repercussions of dam age to others.”37 As a result, the Yount court found statem ents m ade in connection with a private dom estic proceeding were “not a m atter of public significance for the purpose of applying the Louisiana anti-SLAPP protections.”38 In cases in which courts have determ ined an issue is of public interest under article 971, the courts have further substantiated their findings beyond m erely stating the public is interested in the issue. For exam ple, in Kirksey , the court found issues concerning the annual J azz Festival are of public concern because the festival “is one of the prem ier entertainm ent events each year in the City of New Orleans, contributing m illions of dollars each year to the City’s econom y.”39 Sim ilarly, in Baxter v. Scott, the court found blog posts m ade by a form er university professor about the operations of a public university “clearly pertained m atters of public interest,” because “[u]ndoubtably, the public has a great interest in how [a public university] that both receives public funding and contributes to the econom y of the area in which it is located, is governed and whether 35 Yount v. Handshoe, 14-919 (La. App. 5 Cir. 5/ 28/ 15), 171 So. 3d 381, 388 (em phasis in original) Id. at 387-8 8. 37 Id. at 387. 38 Id. at 390 . 39 Kirksey , 116 So.3d at 669. 36 it is having financial difficulties that are possibly being m isrepresented to the public.”40 As a result, article 971 requires a higher threshold showing of public interest than its California counterpart. The California cases cited by Defendants are distinguishable from to the case currently before the Court. In Kroney m y er, the court determ ined that the listing of the credits, on a website visited by 35 m illion people each m onth, for a very popular film , “My Big Fat Greek Wedding,” was “a m atter of considerable public interest.”41 It is clear that the court’s finding was based on a context specific inquiry and was not, in turn, a broad holding that all stories about the film industry are of significant public interest. The court in Kroneym yer explain ed that the plaintiff’s com plaint actually concerned three projects, two sm aller film s, “Wishcraft” and “Stand an d Be Counted,” in addition to “My Big Fat Greek Wedding.” The court, however, did not reach a decision as to whether published credit lists regarding the first two film s involved issues in the public interest after findin g that the plaintiff “did not m ake subm issions to [the defendant] concerning either.”42 Whereas, with respect to “My Big Fat Greek Wedding,” the court explained that the film was described as “a successful indepen dent m otion picture,” and stated, “On this record, we conclude that . . . “My Big Fat Greek Wedding” was a topic of widespread public interest.”43 In Tam kin, the court, interpreted the California statute to apply to “any issue in which the public is interested.”44 The court, in dealing with alleged defam atory statem ents released by the popular television show, CSI, determ ined “the public was dem onstrably interested in the creation and broadcasting of [the] episode [in question], 40 Baxter v. Scott, 37,0 92 (La. App. 2 Cir. 5/ 16/ 0 3), 847 So. 2d 225. 150 Cal. App. 4th at 945. 42 Id. 43 Id. at 949. 44 Tam kin, 193 Cal. App. 4th at 143. 41 Kroney m y er, as shown by the posting of the casting synopses on various Web sites an d the ratings for the episode.”45 The Plaintiffs argue the underlying issue of the case before this Court is a private em ploym ent dispute between private parties and not a m atter of significant public interest. 46 Even in the context of a public em ployee, courts have found “the jurispruden ce is well-settled that speech regarding the topic of em ploym ent disputes – em ploym ent grievances, personnel disputes, and working conditions – generally does not involve a m atter of public concern.”47 In Lozovy y v. Kurtz, the claim involved speech by m em bers of two different public universities and the alleged accusation of theft or destruction of data from a federally funded program involving a collaboration of scientists across the nation and the world. 48 The Lozovy y court found that this scenario fit within the “public issue” requirem ent of article 971 because “the legislative history of Article 971 requires that this Court give the statute a broad construction, thereby requiring its application in the event of a close call like this one.”49 Unlike Lozovy y , the case before this Court is not a “close call” and therefore does not require a broad construction of article 971. CON CLU SION For the foregoing reasons, IT IS ORD ERED that the Defendants’ special m otions to strike are D EN IED . 50 The Court finds that the Defendants have not m et their burden of proving that the suit arises from the exercise of their right of free speech in connection 45 Id. R. Doc. 51, at 4-5; R. Doc. 57, at 4. 47 McGow an v. Hous. Auth. Of N ew Orleans, 20 12-1418 (La. App. 4 Cir. 3/ 27/ 13, 113 So. 3d 1143, 1156) (citing Connick, 461 U.S. at 147-48). 48 Lozovy y v. Kurtz, 20 15 WL 33180 4, at *8 (M.D. La. J an. 26, 20 15) rev’d on other grounds, 813 F.3d 576 (5th Cir. 20 15). 49 Id. 50 R. Doc. 33, R. Doc. 47. 46 with a m atter of public interest as required by article 971 of the Louisiana Code of Civil Procedure. N e w Orle a n s , Lo u is ian a, th is 13 th d ay o f Octo be r, 2 0 16 . __________ __ ________ _________ SU SIE MORGAN U N ITED S TATES D ISTRICT J U D GE

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