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Vowell v. Gannett Satellite Information Network, LLC

United States District Court, D. Utah, Central Division

February 6, 2017

JASON VOWELL, Plaintiff,
v.
GANNETT SATELLITE INFORMATION NETWORK, LLC, Defendant.

          MEMORANDUM DECISION AND ORDER

          DALE A. KIMBALL, UNITED STATES DISTRICT JUDGE

         This matter is before the court on Defendant Gannett Satellite Information Network, LLC's Motion to Dismiss First Amended Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. On January 25, 2017, the court held a hearing on the motion. At the hearing, Plaintiff Jason Vowell was represented by Ted F. Stokes, and Defendant Gannett was represented by Brett D. Ekins. The court heard argument and took the motion under advisement. Having carefully considered the memoranda submitted by the parties and the law and facts relating to the pending motions, the court issues the following Memorandum Decision and Order.

         BACKGROUND

         On March 25, 2016, a Gannett newspaper, The Spectrum, published an article entitled “Echoes of Jeremy Johnson: FTC wins Sunyich finance case.” The article relates to an FTC civil enforcement action against Steven Sunyich that had certain similarities to the FTC civil enforcement action against Jeremy Johnson. The article explains that Sunyich's son Chad was not named in the Sunyich FTC case because Chad had not been involved in the Sunyich business during the time addressed in the enforcement action. However, the article references Chad Sunyich and Plaintiff Jason Vowell as follows:

Chad was convicted in Florida on federal drug charges the same year the FTC sued his family members, however, Chad's co-defendant in the case was Jason Vowell, a former co-owner of the now-shuttered Bluff Street auto dealership Executive Car Sales and Johnson's neighbor, and is also a defendant in Johnson's FTC case following allegations he and his bother Todd had primary involvement in helping Johnson hide millions of dollars in assets from the federal receiver.

         Vowell filed this action alleging libel. Vowell contends the article contains two false statements: (1) that he is a defendant in the FTC v. Johnson case; and (2) the use of the term defendant leads readers to believe that the FTC Complaint alleges that Jason Vowell has primary involvement in helping Johnson hide millions of dollars in assets from the federal receiver.

         Vowell attempted to have the Spectrum redact the article, but the Spectrum did not. Vowell acknowledges that on the date the article was published, the court's electronic docket of the Johnson FTC case listed Jason Vowell as a “defendant.” However, Jason Vowell was a receivership defendant and was not listed as a defendant in the FTC's Complaint.

         DISCUSSION

         Motion to Dismiss

         Defendant moves to dismiss this action, arguing that neither of the alleged false statements can support Vowell's libel claim. Defendant specifically asserts that the first statement cannot support a libel claim because it is true, not material, and protected by Utah's fair report and neutral reportage privileges. Defendant also contends that the second statement cannot be the basis of a libel claim because it was not made in the article and even if it was made, it is not material.

         1. Statement No. 1

         First, “truth is an absolute defense to an action for defamation. The defense of truth is sufficiently established if the defamatory charge is true in substance. Insignificant inaccuracies of expression do not defeat the defense of truth.” Brehany v. Nordstrom, Inc., 812 P.2d 49, 57-58 (Utah 1991). Whether a statement is “true in substance” can be decided as a matter of law on a motion to dismiss. Brokers' Choice of America, Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1137 (10th Cir. 2014).

         Vowell alleges that describing a receivership defendant as a defendant is not accurate. As of the date Defendant published the article, Vowell was identified as a “defendant” in the court's docket for FTC v. Johnson. Technically, this was in error because Vowell was a receivership defendant. However, a receivership defendant is still a type of defendant in the case, and the sentence as a whole explains that Vowell became a defendant in the Johnson FTC case following allegations that he was helping Johnson hide money from the receiver. The sentence as a whole, therefore, is accurate.

         Moreover, the law does not impose a burden of perfect accuracy on publishers. The standard is “true in substance.” Courts have held that “a journalist need not describe legal proceedings in technically precise language.” Nichols v. Moore,396 F.Supp.2d 783, 791-92 (E. D. Mich. 2005). Referring to a receivership defendant as a defendant is within the scope of imprecision afforded by the law, especially where the reporter is relying on the information listed in the court's docket and the sentence accurately describes why he is a defendant. The article ...


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