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Miller V. Gizmodo Media Grp., LLC, 2019 U.S

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Miller V. Gizmodo Media Grp., LLC, 2019 U.S User Name: Deanna Shullman Date and Time: Wednesday, November 13, 2019 10:37:00 AM EST Job Number: 102760946 Document (1) 1. Miller v. Gizmodo Media Grp., LLC, 2019 U.S. Dist. LEXIS 145389 Client/Matter: -None- Cases: Search Type: Natural Language Narrowed by: Content Type Narrowed by Cases Content Type: Cases | About LexisNexis | Privacy Policy | Terms & Conditions | Copyright © 2019 LexisNexis Deanna Shullman Caution As of: November 13, 2019 3:37 PM Z Miller v. Gizmodo Media Grp., LLC United States District Court for the Southern District of Florida August 27, 2019, Decided; August 27, 2019, Entered on Docket CASE NO. 18-24227-CIV-ALTONAGA/Goodman Reporter 2019 U.S. Dist. LEXIS 145389 *; 2019 WL 4038398 LLP, Washington, DC. JASON MILLER, Plaintiff, v. GIZMODO MEDIA GROUP, LLC; et al., Defendants. Judges: CECILIA M. ALTONAGA, UNITED STATES DISTRICT JUDGE. Prior History: Miller v. Gizmodo Media Grp., LLC, 2019 U.S. Dist. LEXIS 66299 (S.D. Fla., Apr. 17, 2019) Opinion by: CECILIA M. ALTONAGA Core Terms Opinion allegations, alteration, journalist, confirmed, accusations, woman, marks, summary judgment, quotation, inaccurate, articles, sealed, team, ORDER proceedings, Defendants', undisputed, court documents, family court, material fact, abortion, editors, alleged THIS CAUSE came [*2] before the Court on inaccuracy, authenticity, misconduct, ambiguous, Defendants, Gizmodo Media Group, LLC ("Gizmodo") documents, argues, unfair, pill, true report and Katherine Krueger's ("Krueger['s]") Motion for Summary Judgment [ECF No. 155] submitted with their Counsel: [*1] For Jason Miller, Plaintiff: Kenneth Statement of Undisputed Material Facts ("Defs.' SOF") George Turkel, LEAD ATTORNEY, Bajo | Cuva | Cohen [ECF No. 156]. Defendants have submitted the | Turkel, Tampa, FL; Shane Brady Vogt, Bajo Cuva Declarations of Krueger [ECF No. 157], Timothy Cohel , Turkel, Tampa, FL. Marchman [ECF No. 158], and Aleksander Chan [ECF For Gizmodo Media Group, LLC, a Delaware No. 159] in support of the Motion.1 Plaintiff, Jason Miller, Corporation, Defendant: Deanna Kendall Shullman, filed his Response [ECF No. 172] as well as his LEAD ATTORNEY, Shullman Fugate PLLC, West Palm Statement of Facts ("Pl.'s SOF") [ECF No. 171], to Beach, FL; Claire Leonard, PRO HAC VICE, Davis which Defendants filed a Reply [ECF No. 177] and Wright Tremaine LLP, New York, NY; Elizabeth A. Counterstatement to Plaintiff's Additional Facts [ECF McNamara, PRO HAC VICE, Davis, Wright, Tremaine, No. 178]. LLP, New York, NY; Katherine M. Bolger, PRO HAC VICE, Davis Wright Tremaine, LLC, New York, NY. The Court has carefully considered the Amended Complaint [ECF No. 5], the parties' submissions, the For Katherine M. Krueger, individually, Defendant: record, and applicable law. Because there are no Deanna Kendall Shullman, LEAD ATTORNEY, material facts in dispute that could defeat Defendants' Shullman Fugate PLLC, West Palm Beach, FL; Claire affirmative defense raising the New York fair report Leonard, PRO HAC VICE, Davis Wright Tremaine LLP, privilege, codified in section 74 of the New York Civil New York, NY; Elizabeth A. McNamara, PRO HAC VICE, Davis, Wright, Tremaine, LLP, New York, NY; Katherine M. Bolger, PRO HAC VICE, Davis Wright Tremaine, LLC, New York, NY. 1 The Krueger Declaration attaches Exhibits 1-17. The Marchman Declaration attaches Exhibit 18. Defendants For Will Menaker, individually, Defendant: Chad R. submitted Exhibits 19-24 separately. (See Notice of Filing Bowman, Maxwell S. Mishkin, LEAD ATTORNEYS, Materials in Support of Defendants' Motion for Summary PRO HAC VICE, Ballard Spahr LLP, Washington, DC; Judgment ("Notice of Supplementary Materials") [ECF No. Charles David Tobin, LEAD ATTORNEY, Ballard Spahr 160]). Deanna Shullman Page 2 of 12 2019 U.S. Dist. LEXIS 145389, *2 Rights law, the Motion is granted, and summary to Mother's March 2018 Motion for Court to Consider judgment will be entered by separate order. Psychological Evaluation of the Father" (the "Supplement") in the Family Court Action. (See id. ¶ 44; Krueger Decl., Ex. 9, Supplement [ECF No. 157-9]). The I. BACKGROUND parties dispute whether the Supplement has been sealed since it was filed or whether it is publicly This is a defamation case. (See generally Am. Compl.). available.3 (See Defs.' SOF ¶¶ 45-50; Pl.'s SOF ¶¶ 45- Plaintiff is a political strategist and commentator. (See 50). Defs.' SOF ¶¶ 2, 39). Krueger is the managing [*3] editor of a news website, Splinter. (See id. ¶ 52). In the Supplement, Delgado accuses Plaintiff of having Gizmodo is Splinter's corporate parent. (See Am. an affair with and impregnating "Jane Doe" years Compl. ¶¶ 19-20). Plaintiff alleges Defendants defamed earlier, slipping her an "abortion pill," and killing her him by publishing an online article (the "Article") unborn child without her consent. (Supplement 2-3).4 containing false accusations made against him in a The Supplement states, in part: confidential court filing and inaccurately characterizing the accusations. (See generally id.). The material In summer 2018, [Delgado] was informed as undisputed facts follow. follows: [*5] 1. In 2012, Mr. Miller, while working for Jamestown Associates, was working closely with the firm's A. The Facts Florida clients. 2. As part of this, Mr. Miller spent significant time in Plaintiff worked on campaigns, in the administrations of Orlando, FL. numerous pro-life politicians, and as a political 3. Evenings with clients and colleagues sometimes commentator on CNN. (See Defs.' SOF ¶¶ 2, 39).2 The entailed steakhouse dinners followed by strip clubs events at issue in this case began in the summer of and/or patronage of escorts for some of the 2016, when Plaintiff served as a Senior participants. Communications Advisor for the 2016 presidential 4. During one such evening, Mr. Miller and other campaign. (See id. ¶ 4). In August 2016, Plaintiff hired colleagues/clients visited Rachel's Gentleman's Arlene Delgado ("Delgado") to work as a spokesperson Club, a strip club in Orlando (which also has a West for the campaign. (See id. ¶ 11). Delgado is a Harvard Palm Beach location). Law School graduate and member of the New York bar. 5. At the time, Mr. Miller was already married to his (See id. ¶ 8). She has appeared on numerous radio and wife (whom he married in July 2008) and had a 4- television shows and has been published in multiple year-old daughter (who was born in late 2008). news outlets. (See id. ¶ 9). 6. Mr. Miller met a stripper that evening, which [sic] will be referred to herein as "Jane Doe" (Mother has In October 2016, Plaintiff and Delgado began an affair. individual's full name). (See id. ¶¶ 15-16). The affair resulted in Delgado's pregnancy. (See id. ¶ 25). In July 2017, [*4] Plaintiff 7. Mr. Miller had sexual intercourse with Jane and Delgado's son was born. (See id. ¶ 41). Articles Doe and continued a sexual relationship with about the affair, birth of Plaintiff and Delgado's son, and her for some unknown period of time. subsequent custody dispute have appeared in publications including the Atlantic, Talking Points Memo, 8. Jane Doe became pregnant. the New York Post, the Daily Mail and Vanity Fair. (See 9. Shortly thereafter, according to Jane Doe, Mr. id. ¶ 43). Miller visited her apartment with a Smoothie beverage. 1. The Family Court Action 10. Unbeknownst to Jane Doe, the Smoothie In July 2017, Plaintiff initiated a custody proceeding in Miami-Dade County, Florida Family Court (the "Family Court Action"). (See id. ¶ 42). On September 14, 2018, 3 As explained infra in section III(A), whether the Supplement Delgado filed a document entitled "Mother's Supplement was sealed does not affect the Court's analysis. 4 The Court relies on the pagination generated by the Case 2 All facts are considered undisputed unless otherwise Management/Electronic Case Files system, which appears as indicated. a header on all filings. Deanna Shullman Page 3 of 12 2019 U.S. Dist. LEXIS 145389, *5 contained an abortion [p]ill. think I'm mostly gonna let [the allegations] speak for themselves? And just hew closely to the doc as filed . 11. The pill induced an abortion, and Jane Doe ." (Id., Ex. 10, Krueger/Marchman Electronic wound up in a hospital emergency [*6] room, Correspondence [ECF No. 157-10] 7 (alterations bleeding heavily and nearly went into a coma. added)). Marchman responded, "[this is] one [*8] to 12. The unborn child died. play straight." (Id. (alteration added)). (Id. (alterations added; emphasis in original)). Krueger drafted the Article. (See Defs.' SOF ¶ 80; Krueger Decl. ¶ 59). It was then edited by Splinter The Supplement identifies Delgado's sources for the Editor-in-Chief Aleksander Chan and Deputy Editor Jack information. (See id. 4-11). It states Delgado initially Mirkinson. (See Defs.' SOF ¶ 85; Krueger Decl. ¶ 59). discovered the accusations from a man she met on Twitter, who told Delgado he received the information On September 21, 2018, Splinter published the Article, about Jane Doe from "multiple" sources whom he titled "Court Docs Allege Ex-Trump Staffer Drugged believed were "credible." (Id. 7 (quotation marks in Woman He Got Pregnant With 'Abortion Pill,'" on its original; emphasis removed)). He cautioned the account website. (See Krueger Decl. ¶ 59; id., Ex. 1, Article [ECF was "unverified by him" and he was "unable to vouch for No. 157-1]). The opening paragraph of the Article its veracity." (Id.). The Supplement states a private states: investigator contacted Jane Doe, but she "was not The ongoing custody battle between former Trump interested in speaking out." (Id. 3). campaign operatives Jason Miller and A.J. Delgado has taken another nasty turn: In an explosive new The Supplement further states Delgado notified a court filing, Delgado's legal team alleges that Miller journalist after learning of the accusations, and the — prior to their [sic] own high-profile extramarital journalist (1) contacted Jane Doe via Facebook, spoke romance — carried out an affair with a woman he to her, her friends, and her family; (2) traveled to Florida met at an Orlando strip club.
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