Boulger v. Woods
306 F.Supp.3d 985 (2018)
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Rule of Law:
A defendant waives defenses of insufficient service of process and lack of personal jurisdiction by voluntarily submitting to the court's jurisdiction through conduct, such as filing a motion on the merits. A statement, even if phrased as a question, is actionable for defamation or false light invasion of privacy only if a reasonable reader would interpret it as a false assertion of fact, and Ohio's innocent construction rule requires adopting a non-defamatory interpretation if one is plausible.
Facts:
- Portia Boulger was an active volunteer and pledged convention delegate for U.S. Senator Bernie Sanders during the 2016 U.S. Presidential campaign.
- James Woods was a well-known movie actor and producer.
- On March 11, 2016, a woman at a Donald Trump rally in Chicago was photographed giving a Nazi salute.
- On March 12, 2016, the Twitter user @voxday posted this photograph alongside a photograph of Boulger, with a caption identifying Boulger as an "Organizer (Women for Bernie)" and a false statement that "The 'trump Nazi' is Portia Boulger, who runs the Women for Bernie Sanders Twitter account. It's another media plant.'"
- Minutes later, Woods tweeted the same two photographs and caption with the comment, "So-called #Trump 'Nazi' is a #BernieSanders agitator/operative?" to his over 350,000 followers.
- Later that same day, the woman who gave the salute was correctly identified by various newspapers and Twitter users as Birgitt Peterson of Yorkville, Illinois.
- Woods then tweeted that "Various followers have stated that the Nazi Salute individual and the #Bernie campaign woman are NOT the same person. #Chicago #Trump," but he did not delete his earlier tweet.
- On March 22, 2016, counsel for Boulger requested Woods delete the tweet and issue a retraction/apology. Woods's counsel denied defamation but asked Woods to delete the tweet, which he did on March 22, 2016. On March 23, Woods posted three new tweets clarifying that Boulger was not the "Nazi salute lady" and defending her from abuse.
- During the period from March 12-March 23, 2016, while Woods' tweet remained posted on his Twitter account, Boulger received hundreds of obscene and threatening messages, including death threats and ongoing hang-up phone calls at her residence.
Procedural Posture:
- Portia Boulger filed her Complaint against James Woods on March 3, 2017, asserting claims for defamation and invasion of privacy in the U.S. District Court for the Southern District of Ohio.
- On June 1, 2017, Boulger filed a motion for extension of time to complete service of process on Woods.
- The Court granted Boulger's request for an extension of time on June 6, 2017, ordering her to complete service on Woods no later than August 7, 2017.
- On June 7, 2017, Woods filed an Answer to the Complaint, including affirmative defenses of insufficient service of process and lack of personal jurisdiction.
- On June 7, 2017, Woods also filed a Motion for Judgment on the Pleadings, arguing Boulger's allegations failed to state a viable claim for either defamation or invasion of privacy.
- On July 11, 2017, the parties jointly filed a Rule 26(f) report, stating that Woods had not been served and contested personal jurisdiction, while Boulger contended Woods had waived those defenses.
- On August 15, 2017, eight days after Boulger's extended time to complete service expired, Woods filed a Motion for Summary Judgment, or in the Alternative, Motion for Dismissal, due to Boulger's failure to perfect service.
- The court construed Woods's motion for summary judgment as a motion to dismiss for insufficient service of process under Federal Rule of Civil Procedure 12(b)(5).
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Issue:
1. Does a defendant waive the defenses of insufficient service of process and lack of personal jurisdiction by filing a motion for judgment on the pleadings addressing the merits of the case before the plaintiff's extended time for service has expired? 2. Is a tweet that asks a question, followed by a question mark, actionable as a false statement of fact for defamation or false light invasion of privacy under Ohio law, especially when it is reasonably susceptible to a non-defamatory interpretation?
Opinions:
Majority - george c. smith
Yes, James Woods waived the defenses of insufficient service of process and lack of personal jurisdiction by voluntarily submitting to the court's jurisdiction through his conduct of filing a Motion for Judgment on the Pleadings that sought a decision on the merits of the lawsuit. The court found that Woods, by asking the court to pass on the merits of the lawsuit, created a "reasonable expectation" that he would defend the suit on the merits, thereby legally submitting to the court's jurisdiction. This waiver occurred despite the fact that the defense of insufficient service was not "available" under Rule 12 at the time of the initial motion, as the plaintiff's extended service deadline had not yet passed. The court emphasized that Woods was not obligated to file any response until service was complete, and his voluntary engagement with the merits indicated an intent to seek an early resolution, thus waiving these jurisdictional objections. No, James Woods's tweet, phrased as a question, is not actionable as a false statement of fact for defamation or false light invasion of privacy under Ohio law. The court applied the "totality of the circumstances" test to determine if the tweet constituted a false statement of fact. Considering the specific language, the court noted that the question mark allowed for a reasonable interpretation of the tweet as a mere inquiry rather than an assertion of fact, and Ohio's "innocent construction rule" mandates adopting the non-defamatory interpretation if one is plausible. Regarding verifiability, a question itself lacks truth value and is therefore not verifiable. The court found it difficult to apply traditional context analysis (general and broader context) to the short, disjointed nature of tweets but concluded that the possibility of interpreting the tweet as an inquiry, combined with the innocent construction rule, meant it was not an actionable statement of fact for either defamation or false light invasion of privacy, even though the implied accusation was deemed highly offensive to a reasonable person.
Analysis:
This case offers crucial insights into the evolving application of procedural rules and defamation law in the digital age. It clarifies that a defendant cannot strategically engage with the merits of a case while simultaneously avoiding formal service, establishing a precedent for 'waiver by conduct' that extends beyond the explicit provisions of Rule 12. For defamation, the ruling significantly protects statements made in interrogative form on social media, especially under an 'innocent construction rule,' making it more challenging for plaintiffs to successfully litigate such claims, even when the implied message is clearly offensive. This decision underscores the difficulties courts face in adapting legal frameworks designed for traditional media to the unique characteristics of platforms like Twitter.
