WTVF Motion to Dismiss Eisenstein Lawsuit

8/6/2019 WTVF Motion to Dismiss Eisenstein Lawsuit

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Sandy Boonstra. A copy of the news story as presented on the NewsChanel 5 website isattached as Exhibit D to Ms. Boonstra's Affidavit. The DVD furnished as Exhibit E to Ms.Boonstra's Affidavit contains the audio and visual presentation of both the news stories asbroadcast.

A review of what the news stories actually reported and the other materials submitted insupport of this Motion amply demonstrate that the news stories at issue do not contain any falseor defamatory statements concerning Plaintiff Judge Eisenstein and are not actionable.

AUTHORITY AND ARGUMENTA. Legal Standard For Granting Motion.The fiing of a motion permitted under Rule 12 of the Tennessee Rules of Civil Procedure

"alters" the time period for fiing an answer to the Complaint. Rule 12.01 Tenn. R. Civ. P. Oneof those permitted motions is a motion for failure to state a claim upon which relief can begranted. Rule 12.02(6) Tenn. R. Civ. P. That rule further provides that,

If, on a motion asserting the defense numbered (6) to dismiss for failure to state aclaim upon which relief can be granted, matters outside the pleading are presentedto and not excluded by the court, the motion shall be treated as one for summaryjudgment and disposed of as provided in Rule 56 . . .

Id.In support of this motion, Defendants have submitted true and correct copies of the news

stories at issue - which were not fully quoted in the Complaint - and other materials outside theinitial pleading. Accordingly, this motion to dismiss should be treated as a motion for summarjudgment.

Rule 56.04 of the Tennessee Rules of Civil Procedure provides that summary judgment"shall be rendered forthwith" if the pleadings and materials submitted with such motion "showthat there is no genuine issue as to any material fact and that the moving party is entitled to

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judgment as a matter of law." Rule 56.04 Tenn. P. Civ. P. The Tennessee Supreme Court, sinceits ruling in Byrd v. Hall, 847 S.W.2d 208 (Tenn. 1993), has consistently stated that:

If the moving party makes a properly supported motion, the burden of productionthen shifts to the non-moving pary to show that a genuine issue of material factexists. Id. To meet its burden of production and shift the burden to the non-moving party, the moving party must either affrmatively negate an essentialelement of the non-moving party's claim or establish an affirmative defense.

Hannan v. Allel Publishing Co., 270 S.W. 3d 1, 8 (Tenn. 2008), citing Byrd v. Hall, 847 S.W.2d208 (Tenn. 1993); Martin v. Norfolk Southern Ry. Co., 271 S.W.3d 76 (Tenn. 2008).

In Byrd v. Hall, supra, the Tennessee Supreme Court adopted the United States SupremeCourt's interpretation of the "virtually identical" federal rule on summary judgment as stated inthe Celotex, Anderson and Matsushita cases. Byrd v. Hall, 847 S.W.2d at 214. In 2008 in

Hannan v. Allel Publishing Co., supra, the Tennessee Supreme Court clarified what itconsidered the differences between the federal standard and the Tennessee standard for themoving party's burden of production. In that case, the Tennessee Supreme Court stated, "It isnot enough for the moving pary to challenge the non-moving party to 'put up or shut up' or evento cast doubt on a party's ability to prove an element at triaL." At 8. Rather, the Courtcharacterized the standard as follows:

In summary, in Tennessee, a moving party who seeks to shift the burden ofproduction to the non-moving party who bears the burden of proof at trial must .either (1) affirmatively negate an essential element of the non-moving party'sclaim; or (2) show that the non-moving party cannot prove an essential element ofthe claim at triaL.

Id. at 8-9. On its merits, the Hannan case was deemed an inappropriate case for summarjudgment because the defendant, as the moving party, had failed to negate the existence or fact ofdamages, which was an element of the plaintiffs' negligence claim. (The Court interpreted

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defendant's argument as merely showing that plaintiffs had thus far in that case failed to provethe amount of their damages.)

Two weeks later, the Tennessee Supreme Court in Martin v. Norfolk Southern Ry. Co.,supra, followed the Hannan decision and stated that the party moving for summary judgmentmust either produce evidence or refer to evidence previously submitted by the non-moving partythat negates an essential element of the non-moving party's claim or shows that the non-movingparty cannot prove an essential element of the claim at triaL. 271 S.W.3d at 84. "(T)o negate anessential element of the claim, the moving party must point to evidence that tends to disprove anessential factual claim made by the non-moving party." Id. At that point, the burden shifts to thenon-moving party. "If the moving party makes a properly supported motion, then the non-moving pary is required to produce evidence of specific facts establishing genuine issues ofmaterial fact exist." Id., citing McCarley v. W Quality Food Service, 960 S.W.2d 585, 588(Tenn. 1998) and Byrd v. Hall, supra, at 215.

The Hannan v. Allel and Martin v. Norfolk Southern Ry. Co., decisions stand for theproposition that the burden on the moving pary is "something more than an assertion that thenon-moving pary has no evidence" or simply "raising doubts about the non-moving party'sability to prove his or her claim." Martin at 83-84; Hannan at 8-9. i The requirements forsummary judgment set forth in those two cases do not present an obstacle to Defendants' Motioni The last session of the Tennessee Legislature stated its purpose to "overrule" the summary judgment standard forparties who do not bear the burden of proof at trial as set forth in Hannan v. Alltel Publishing Co. and its progeny byamending Tennessee Code Annotated 20-16-10 1 to provide that,"20-16-101. In motions for summary judgment in any civil action in Tennessee, the moving part who does notbear the burden of proof at trial shall prevail on its motion for summary judgment if it:

(1) Submits affrmative evidence that negates an essential element of the nonmoving party's claim; or(2) Demonstrates to the court that the nonmoving party's evidence is insuffcient to establish an essential

element of the nonmoving party's claim.The legislation states it is not applicable to cases fied before July 1, 2011 (copy attached).

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in this case because Defendants are presenting specific evidence to negate essential elements ofPlaintiff s claims and can show that Plaintiff cannot prove an essential element of the claims attriaL.

Neither the Hannan v. Allel Publishing, supra, nor Martin v. Norfolk Southern Ry. Co.,supra, involved libel or false light claims. Reported defamation cases since those cases weredecided have not found that the standards for summary judgment as announced in those twocases presented any particular impediment or reason for not granting summary judgment. InShamblin v. Martinez, 2011 Tenn. App. LEXIS 182 (Tenn. App. 2011) (copy attached hereto),the Court of Appeals affirmed the grant of summary judgment to the defendants in a defamationand false light case. In that case, the Court of Appeals stated that:

A defendant is entitled to a judgment as a matter of law 'only when itaffrmatively negates an essential element of the non-moving party's claim or .establishes an affirmative defense that conclusively defeats the non-movingparty's claim.'

At 5, citing Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 282 (Tenn. App. 2007),citing Byrd v. Hall, 847 S.W.2d at 215 n.5. The Court of Appeals specifically discussed whetherthe Hannan or Martin cases would alter the analysis of the summary judgment motion, stating asfollows:

The summary judgment analysis applicable when Lewis and Hibdon (anotherdefamation case) were decided was clarified in the Tennessee Supreme Couropinions in Martin v. Norfolk Southern Railway Co., 271 S.W. 3d 76 (Tenn.2008) and Hannan v. Allel Publg Co. 270 S.W.3d 1 (Tenn. 2008). We havereviewed those opinions in our resolution of the instant case and do not consider .that the holdings in either case abrogate the holding of Lewis as to what thePlaintiff must show in responding to a motion for summary judgment and ofHibdon as to the role of this Court in reviewing the grant of summary judgment.

At 7-8.

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In Secured Financial Solutions, LLC v. Winer, 2010 Tenn. App. LEXIS 70 (Tenn. App.2010), the Court of Appeals affrmed the trial court's grant of summary judgment which wasbased upon the finding that "The defendant had negated an essential element of the plaintiff scase, specifically by affrmatively establishing that the e-mail / communication was notdefamatory." (Copy of the opinion is attached hereto.)

In this case and on this motion, Defendants will show that summary judgment is properbecause they can negate essential elements of Plaintiff s claims and can show that Plaintiffcannot prove the elements of its claims against them.

B. Defendants Are Entitled To Summary Judgment Because There Were No FalseOr Defamatory Statements Made Concerning Plaintiff In The Two News StoriesAt Issue.Both Plaintiff s defamation and false light causes of action require a false statement of

fact about Plaintiff. Summary judgment should be granted because there simply are nQ falsestatements about Plaintiff in the news stories sufficient to support either cause of action.

As an essential element of a cause of action for defamation, the Plaintiff must prove afalse and defamatory statement concerning another person. E.g., Gibbons v. Schwartz-Nobel,

928 S.W.2d 922, 927 (Tenn. App. 1983); Stones River Motors, Inc. v. Mid-South Publishing Co.,651 S.W.2d 713,717 (Tenn. App. 1983). "The damaging words must be factually false." StonesRiver Motors, Inc. v. Mid-South Publishing, 651 S.W.2d at 719. "If they are true, or essentiallytrue, they are not actionable, even though the published statement contains other inaccuracieswhich are not damaging." Id.

In cases involving news media defendants, the First Amendment to the United StatesConstitution requires that the plaintiff has the burden to prove the statements were false.Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 89 L. Ed. 2d 783, 106, S. Ct. 1558

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(1986). As a necessary part of such constitutional burden, an allegedly defamatory statement onmatters of public concern "must be provable as false" before there can be any liability.Milkovich v. Lorain Journal Co., 497 U.S. 1,19,110 S. Ct. 2695,111 L. E. 2d 1 (1990).

In addition to being false, for a communication to be libelous, it must also be defamatory.To be defamatory, the statement must constitute a "serious threat to the plaintiffs reputation."Stones River Motors, Inc., supra, at 719.

A libel does not occur simply because the subject of a publication finds thepublication annoying, offensive or embarrassing. The words must reasonably beconstrued as holding the plaintiff up to public hatred, contempt or ridicule. Theymust carry with them an element "of disgrace."(Emphasis supplied). Stones River Motors, Inc., supra, at 719, citing W. PROSSER, Law of Torts, 111 at 739 (4th Ed. 1971). McWhorter v. Barre, 132 S.W.3d 354, 364 (Tenn. App. 2003). "Astatement is defamatory if it tends so to harm the reputation of another as to lower him or her inthe estimation of the community or to deter third persons from associating or dealing with him orher." Secured Financial Solutions, Inc. v. Winer, supra, at 6.

The initial determination of whether a statement is reasonably capable of beingdefamatory is a question of law for the Court to decide. Memphis Publishing Co. v. Nichols, 569S. W.2d 412, 419 (Tenn. 1978); Stones River Motors, Inc. v. j'vid-South Publishing Co.. supra, at719; RESTATEMENT (SECOND) OF TORTS, 614 (1977). In making this determination, the alleged

defamatory words must be construed in their plain and natural import. Stones River Motors, at719. Statements alleged to be defamatory "should be judged within the context in which they aremade" and "read as a person of ordinary intellgence would understand them in light of thesurrounding circumstances." Secured Financial Solutions, LLC v. Winer, supra, at 7 citing Revisv. McClean, 31 S.W.3d 250,253 (Tenn. App. 2000).

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An essential element for a claim of false light invasion of privacy also includes a falsestatement. In West v. Media General Convergence, Inc., 53 S.W.3d 640 (Tenn. 2001), the

Tennessee Supreme Court adopted the "false light" tort as d~fined in the RESTATEMENT (SECOND)OF TORTS 652 E, which provides as follows:

One who gives publicity to a matter concerning another that places the other in afalse light is subject to liability to the other for invasion of privacy, if (a) the false ,light in which the other was placed would be highly offensive to a reasonableperson, and (b) the actor had knowledge of or acted in reckless disregard as to thefalsity of the publicized matter and the false light in which it placed the actor.

(Emphasis added). West v. Media General Convergence, Inc. at 643-644.Judge Sack in his treatise on defamation and related problems stated that the elements of

a false light claim included that:The statement must be made public, it must be about the plaintiff, it must beunprivileged and it must be false. The element of falsity must be proven by theplaintiff and the falsity shown must be substantial and materiaL.

R. SACK, SACK ON DEFAMATION, LIBEL, SLANDER AND RELATED PROBLEMS, 12:3.1 (4th Ed.)(hereinafter SACK). (Emphasis supplied). Judge Sack also stated that,

The term 'false light' is an unfortunate one insofar as the use of the word 'light'might suggest that proof of a specific false statement of fact is unnecessary forliability to attach: It is required. Unfairness, improper tone, or unfoundedimplication or innuendo, even though they might sound as though they fit the 'phrase 'false light' will no sooner support a recovery for false-light invasion ofprivacy than for defamation.

Id. (Emphasis supplied). In Machledar v. Diaz, 801 F.2d 46, 57 (2d Cir. 1986), the Court notedthat a "broadcast cannot cast the plaintiff in a false light unless it is substantially false." TheRestatement of Torts (Second) recognized this requirement, stating that "it is essentiai'to therules stated in this Section ( 652 E which The Tennessee Supreme Court expressly adopted inWest v. Media Convergence Inc., supra) that the matter published concerning the plaintiff is not

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true." RESTATEMENT OF TORTS, 652 E, comment a (1977). False light claims are subject to thesame constitutional protections and requirements as defamation cases. Time, Inc. v. Hil, 385

U.S. 374, 87 S. Ct. 534,17 L. Ed. 2d 456 (1967).It is important in reviewing Defendants' Motion for Summary Judgment to focus on what

the news stories at issue actually said or didn't say and not accept what has been alleged inPlaintiffs Complaint that the news stories said about Plaintiff. That is why the actual versions ofthe news story are attached hereto in support of this motion. The news stories as actuallybroadcast do not contain false or defamatory statements about Plaintiff, and therefore Defendantsare entitled to dismissal of the claims made herein against them.

1. First Story.The first news story at issue was broadcast on July 19,2010. It is based upon sworn

testimony of James LaRue, an investigator for the Tennessee Court of Judiciary. As the newsstory clearly indicates, Mr. LaRue's deposition was taken in the disciplinary proceeding forGeneral Sessions Judge Gloria Dumas before the Court of Judiciary. The reporter, DefendantPhil Wiliams, obtained a copy of the deposition which was fied in the Court of Judiciary as parof his ongoing coverage of the Dumas case. Phil Wiliams Affidavit, ~ 3. The July 2010 newsstory was an accurate presentation of the testimony in that deposition and does not contain anyfalse or defamatory statements about the Plaintiff.

The news story began with the question, "Is the presiding judge of Davidson County'sGeneral Sessions Court facing an ethics investigation." Exhibits A, B, and E to BoonstraAffdavit. The next spoken sentence says, "Judge Eisenstein's lawyer insists that he's not." Id.

The Complaint claims the news story was false because Judge Eisenstein was not. underinvestigation. Complaint, ~ 35. The news story, however, did not state that Judge Eisenstein was

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under investigation and in fact contained several separate statements by an attorney representingJudge Eisenstein stating that he wasn't under investigation. Exhibits A, B, and E to BoonstraAffdavit.

Simply asking this question wil not support a libel or false light claim. "To bedefamatory 'a question must be reasonably read as an assertion of fact; inquiry itself, howeverembarrassing or unpleasant to its subject, is not accusation.'" Secured Financial Solutions v.Winer, supra at 6, quoting 50 Am. Jur. 2d Libel and Slander 154 (2006) citing Chapin v.Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993). In McCluen v. Roane County Times,Inc., 936 S.W.2d 936 (Tenn. App. 1996) the Court found that questions asked in a newspapereditorial about the county attorney's actions were not libelous. Among the questions asked aboutthe county attorney in the newspaper article were:

Does such violation warrant criminal sanctions? If so, would it be a felony or amisdemeanor?Is such violation grounds for recovery against offcials and their bondsmen?Would violation of the requirements of this law justify ouster of the violators?

The Court found those questions could not be considered libelous as posed. The Court pointedout that the questions invited the answer of "yes," "no" or "I don't know" and did not amount toa direct charge that could be libelous. 936 S.W.2d at 940.2

The question in this July 2010 story is about a sitting judge and could also simply beanswered "yes," "no," or "I don't know." The news story does not state the answer is yes and in2 The Court of Appeals opinion gave examples of questions that had been held as actionable iii other jurisdictions,including the following:

'What are you doing with that nine-dollar blackmailer here?''Don't you want to pay for those cartridges you stole?''What are you doing stealing that electric light bulb?'936 S.W.2d at 940 (citations omitted).

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fact quotes Plaintiffs attorney several times saying the answer to such question is no. Askingthis type of question, particularly about a public offcial, is not asserting a false statement of factand cannot be the basis for Plaintiffs causes of action herein. l'vfcCluen v. Roane County Times,supra.

The question regarding a possible investigation was appropriately asked because of thedeposition testimony given by James LaRue, an investigator for the Court of the Judiciary andstatements made during that deposition by an attorney for the Court of the Judiciary. That

testimony was accurately quoted in the news story and was posted on the NewsChannel 5website with citations to specific pages of the deposition. Exhibits A, Band E to BoonstraAffdavit. A complete copy of that deposition is attached as Exhibit 1 to Wiliams Affidavit withrelevant excerpts also attached as Exhibit 1 to this Memorandum. Statements made at thatdeposition by the Court of Judiciary investigator and his counsel specifically state there is"another matter under investigation," and that the investigation is confidentiaL. The person beingreferenced in connection with those statements was clearly Judge Eisenstein.

Beginning at page 200 of his deposition, Mr. LaRue expresses his concern that his workas an investigator in the Judge Dumas case might result in efforts to "ostracize my daughter'spractice of law." Deposition of James LaRue, at 200. The deponent, Mr. LaRue, testified thathis concern "is based upon my conversations with Judge Eisenstein." Id. at 205. The follow-upquestion was, "And what did Judge Eisenstein say?" Id At that point the attorney for the Courtof the Judiciary interjected: "We're going to object to that based upon our confidentiality issuesas part of your investigation." Id. He stated his basis for the objection was, "The Rule 8

confidentiality matters under investigation. Judge Eisenstein has got a lawyer." Id. Thecolloquy between counsel continued with the attorney for the Court of Judiciary stating, "Mr.

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LaRue named another name (Judge Eisenstein) at which point I interjected because that mayinvolve another matter under investigation." Id. at 207 (emphasis added).

After additional discussion, the Court of Judiciary attorney again stated:It came to him from another source (not Judge Dumas) at which point hementioned another name (Judge Eisenstein) at which point I broke in and'interjected that that was another matter under investigation, and we felt that therewas the whole Rule 8 Court of Judiciary problem.

Id. at 209 (emphasis added).In summary, the deposition contains three specific instances in which the Court of

Judiciary lawyer claimed the confidentiality privilege from further testimony about what JudgeEisenstein had said and done, based upon that being "another matter under investigation." Id. at205,207,209.

The Complaint simply lists two quoted statements from the investigator's deposition asfalse without saying how they are false. Complaint, ~ 37. Each of the quoted statements was infact contained within the investigator's deposition. Just as reported in the news story, Mr. LaRuedid express concern in his deposition testimony that his investigation might lead to efforts to"ostracize my daughter's practice of law." LaRue Deposition at 200. The news story made itclear this was testimony given in Mr. LaRue's deposition with the website version of the newsstory even citing the page numbers. Exhibits A, Band E to Boonstra Affidavit. Mr. LaRue didin fact testify that "My statement is based on my conversations with Judge Eisenstein," asreported in the news story. LaRue Dep. at 205.

As to the other statement, a review of his deposition shows that Mr. LaRue did in factgive the quoted testimony about a Metro Court personnel offcer's response to his request forpersonnel records by saying she was acting "by order of Judge Eisenstein." LaRue Dep. at 115-116. The news report accurately stated that this testimony was given in a deposition by the Court

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of Judiciary's investigator Mr. LaRue. Plaintiffs Complaint does not state how these statementsare false, and they are not false.

These statements in the news story are not false and, in addition, the reporting on suchtestimony is privileged under the fair report privilege. The fair report privilege protects themedia when it reports on judicial proceedings or the contents of papers filed in Court. Lewis v.NewsChannel 5 Network, L.P., 238S.W.3d 270,284 (2007). "In order for the privilege to apply,the report must be a fair and accurate summation of the proceedings and must display balanceand neutrality." Id. citing Smith v. Reed, 944 S.W.2d 623 (Tenn. App. 1996).

A comparison of what was reported and what was actually stated in the deposition ofJames LaRue can lead to no other conclusion than that these items in the news report thatPlaintiff now objects to are not only fair and accurate representations of Mr. LaRue's testimony,but are direct quotations of his testimony. As statements of actual testimony given in a jlldicialproceeding, they are privileged.

In summary, the July 2010 news story does not state that Judge Eisenstein is underinvestigation. Based upon the Court of Judiciary attorney repeatedly objecting to Mr. LaRue'stestifying about what Judge Eisenstein had said or done because it involved "another matterunder investigation," it was reasonable to raise the question about the possibility of such aninvestigation. The news story contained several separate statements from Judge Eisenstein'slawyer that the Judge was not under investigation. The news stories accurately quoted Mr.LaRue's sworn testimony in a judicial proceeding and there was no allegation in the Complaintas to how such testimony was inaccurate.

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The first news story at issue did not contain any false and defamatory statements

concerning Judge Eisenstein, so that Defendants are entitled to summary judgment on Plaintiffsclaims relating to the first news story broadcast on July 19,2010.

2. Second Story.The second news story at issue was broadcast on February 28, 2011. A true and correct

copy of the news broadcast is submitted as Exhibits C, D, and E to the Affidavit of SandyBoonstra. This news story accurately reported that James Casey was performing certainpsychological treatment services for persons participating in the programs of the DavidsonCounty Mental Health Court and Mental Health Court Foundation, despite the fact that he wasnot a licensed psychologist. Id. The news story and the statements made therein were

thoroughly researched and to a significant extent were based upon documents prepared andsubmitted by Plaintiff Judge Eisenstein and Mr. Casey. The full version of documents quotedfrom and the letters from Plaintiffs counsel explaining Plaintiffs position were posted onDefendant NewsChannel 5's website with this news story. Wiliams Affidavit, ~ 6.

The Complaint does not dispute that, as reported in the second news story, James Caseywas not a licensed psychologist and that Judge Eisenstein and others had, on several documentedoccasions, referred to him as a "psychologist." It is undisputed that Mr. Casey was hired by theMental Health Court Foundation in a contract signed by Judge Eisenstein. The Complaint doesnot claim that the descriptions of the services that Mr. Casey had been performing with theMental Health Court as quoted in the news story were inaccurate.

It is important to note that Plaintiffs Complaint does not directly challenge the accuracyof those statements, but instead has selected other isolated statements contained in the newsreport to attempt to support its cause of actions. Paragraph 53 in the Plaintiffs Complaint

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contains the list of the allegedly false portions of the February 28, 2011 story. The statementsthat are listed as false are taken out of context and ignore the true facts as well as what wasactually stated in the news story.

One of the allegedly false statements is, "State law also makes it illegal for an unlicensedperson to use the term 'psychological' in describing his services. Complaint, ~ 53. Thisstatement is demonstrably true as shown by Tennessee Code Annotated, 63-11-205(a),'whichspecifically provides:

It is specifically prohibited that any individuals or organizations shall presentthemselves or be presented to the public by any title incorporating the name"psychological,' 'psychiatrist' or 'psychology' other than those licensed aspsychologists or, psychological examiners or, senior psychological examiners orcertified psychological assistants.Another statement alleged to be false in the Complaint is, "Stil, the judge had nothing to

say." Complaint, ~ 53. Plaintiff argues that this statement is false because Judge Eisenstein "hada lot to say about the February 28, 2011 news story," pointing to the fact that Plaintiffs counselhad furnished certain documents and explanations to Defendants prior to the news story'sbroadcast. Complaint, ~ 56. To make this argument, Plaintiff has to totally ignore what wasactually said in the news story and also ignore the context of that statement.

The news story accurately reported that when the Defendant reporter approached JudgeEisenstein on the street, Judge Eisenstein had nothing to say to the specific questions asked. Thevideo of their encounter shows Judge Eisenstein telling the reporter, "I can't discuss that withyou now." Exhibits C and E to Boonstra Affidavit. It is true that Judge Eisenstein had nothingto say to the Defendant reporter at that time (which is all that comment relates to). The newsstory does not say the Judge had nothing whatsoever to say at any point in the process, as the

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Complaint argues. (In addition, the statement is also true because, as admitted in the Complaint,Plaintiff "twice declined invitations for on camera interviews." Complaint, ~ 56.)

The Complaint argues this comment was false because Plaintiff in fact "had a lot to say,"citing the correspondence and documentation previously furnished by Plaintiffs counseL.

Complaint, ~ 56. This argument fails because it completely ignores the repeated references inthe news story to what the Judge said through his attorney. Both before and after the isolatedquote Plaintiff now relies upon, the news story made abundantly clear that Judge Eisenstein wasspeaking through his attorney. For example, the news story contains the following statements:

"Through an attorney Judge Eisenstein claimed. . .""His lawyer says the judge. . .""The judge's attorney says ..."

Exhibits C, D and E to Boonstra Affdavit. Additionally, at the end of the news story asbroadcast, the anchor specifically states that the Judge (abeit through his cOlIDsel) has sent

multiple letters claiming he has done nothing wrong and that those letters were posted .on thewebsite, which in tct they were. Exhibits C and E to Boonstra Affdavit; Williams Affdavit at~ 6.

Even if it was false to state that the judge had nothing to say (which it was not), suchstatement cannot be considered defamatory. As previously discussed, to be defamatory, astatement needs to be a "serious threat to plaintiff s reputation" or carry with it "an element ofdisgrace." Stones River Motors, supra. It is not defamatory to state that someone did somethingthat he had a legal right to do. Windsor v. Tennessean, 654 S.W.2d 680,685 (Temi. App. 1983)(not defamatory to report a witness "refreshed his recollection"); Memphis Telephone Companyv. Cumberland Telephone & Telegraph, 145 F. 904 (6th Cir. 1906) (not defamatory to state that

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plaintiff had charged twice as much as the stock was worth, since it was his right to do so). JudgeEisenstein had the right not to speak to the reporter and chose on the occasion shown (as well asother times) not to speak to the reporter. This Court can make the threshold determination that,as a matter of law, the allegedly false statement cannot reasonably be considered as defamatory.This is particularly true when the news story itself makes it clear that Judge Eisenstein chose tospeak through counseL. The statement about having "nothing to say" is neither false nordefamatory.

The next allegedly false statement listed in the Complaint is based upon the fact thatJudge Eisenstein submitted a document called the Sole Source Justification Request to theUnited States Department of Justice. The Complaint points to the following two sentences fromthe news story:

Then, in late 2008, documents show that Judge Eisenstein wanted to put Casey onstaff using federal money, writing in a memo that Casey had proven himself "anexcellent psychologist." In that same document, the judge noted that Casey hadpreviously "conducted weekly group therapy" for Mental Health Courtdefendants. Emphasis supplied.

Complaint, ~ 53. The Complaint does not, and could not, deny that those statements were in factmade in the Sole Source Justification Request that Judge Eisenstein wrote. This document isattached as Exhibit 2 to Wiliams Affidavit. Plaintiffs counsel, in a letter dated January 28,2011 (Exhibit 6 to the Complaint), stated, "On December 12, 2008, Judge Eisenstein wrote aSole Source Justification Request for Dr. Casey for the position of a licensed psychologist basedupon his understanding of Dr. Casey's status at the time he wrote the Sole Source JustificationRequest." Id. A review of that document shows that Judge Eisenstein did make the quoted

statements and, therefore, this allegedly false statement is completely accurate.

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The Complaint does contain some further argument about this statement; however, itdistorts what the news story actually said. Complaint, ~ 54. Indeed, what Plaintiff alleged in hisComplaint as the true story, was in fact what the news story reported. The Complaint allegesthat once Judge Eisenstein became aware that Mr. Casey was not a licensed psychologist, ,he didnot hire him through the Department of Justice funds but rather the Mental Health CourtFoundation entered into an "independent contractual relationship with him." Id. In fact,

contrary to the impression given by Plaintiff s Complaint, the news story itself does not say thatMr. Casey was hired through the Deparment of Justice funds, but rather tells essentiaUy thesame story as Plaintiffs counsel's letter and the Complaint. Id. at ~ 54 and Exhibit 6 thereto.The news story in fact reports that, "His lawyer says the judge later learned that Casey wasn'tlicensed, although he felt that Casey could stil be useful in other roles." The news story thenreported Gust as the Complaint says is the truth of the situation) that Casey contracted wjth theMental Health Court Foundation in February 2009. A copy of that "Independent ContractorAgreement" signed by Judge Eisenstein was attached to the news story as posted on its website.That agreement is also attached as Exhibit 2 to Plaintiffs counsel's letter dated January 28,2011, which is Exhibit 6 to the Complaint.

Thus, the above quoted statement from the news story is not false in any particular. Asthe document shows, at the time the document was submitted, Judge Eisenstein wanted to putMr. Casey on staff and it is undisputed that he made the statements in the document that thenews story reported he made in that document. The news story does not claim that' JudgeEisenstein actually hired Mr. Casey through the federal funds as the Complaint suggests, but infact it reported on the chain of events in the same manner as described by the Judge's counsel inhis letter to NewsChannel 5 and in Paragraph 54 of the Complaint.

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In the following paragraph of the Complaint, Plaintiff makes the conclusory and factuallyunsupportable ~tatement that the "independent contractual relationship only engaged him toperform duties which did not require a license." Complaint, ~ 54. In fact, the Independent

Contractors Agreement entered into by Mr. Casey and the Mental Health Court Foundation(signed by Judge Eisenstein) does not specifically spell out Mr. Casey's duties at all and onlystates he is to "implement the joint programs of the Davidson County Mental Health Court andDavidson County Drug Court (DC4)." Exhibit 2 to Exhibit 6 to the Complaint. The contractsays he is "to work in connection with personnel ofDC4 and the Drug Court Foundation." Id.

The news story relied upon the Judge's own statements and statements of Mr. Casey andJessica Poe to show that Mr. Casey was performing services that Tennessee law says can only beperformed by a licensed psychologist. For example, in the Sole Source Justification Request,Judge Eisenstein referred to Casey as "an excellent psychologist" and stated that "over the pastyear he has developed and published treatment programs and conducted weekly group therapyfor triple diagnosed individuals in the Davidson County Mental Health Court. Exhibit 2 toWiliams Affidavit. Mr. Casey's resume (furnished as Exhibit 1 to Plaintiffs counsel's January28, 2011 letter) also states that "From April 2008 to the present" he was employed as an"Independent Contracted Clinician for Davidson County Mental Health Court" and listing hisexperience in that position to include the following items:

eRecruited by Judge Eisenstein to develop and publish treatment program forindividuals with triple diagnosis. . . (and)

eFacilitate weekly group therapy for triple diagnosed individuals. . .Exhibit 1 to Exhibit 6 to Complaint.

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One of the individuals Mr. Casey worked with through the Mental Health Court was Ms.Jessica Poe. She is shown in the news story calling Mr. Casey her "psychologist" and describingthe counseling he provided her. Exhibits C, D and E to Boonstra Affdavit.

Tennessee Code Annotated, 63-11-206 makes it illegal to engage in the "practice ofpsychology" without being properly licensed. The term "practice of psychology" is defined toinclude but not be limited to the following:

(i) Psychological testing and the evaluation or assessment of personalcharacteristics, such as intelligence, personality, abilities, interests, aptitudes andneuropsychological functioning;(ii) Counseling, psychoanalysis, psychotherapy, hypnosis, biofeedback andbehavior analysis and therapy;(iii) Psychological diagnosis and treatment of mental, emotional and nervousdisorders or disabilities, alcoholism and substance abuse, disorders of habit orconduct, as well as of the psychological aspects of physical ilness, accident,injury or disability;(iv) Case management and utilization review of psychological services; and(v) Psychoeducational evaluation, therapy, remediation and consultation.

The counseling and treatment services that Mr. Casey was performing through the Mental HealthCourt fall within the statutory definition of "practice ofpsycholgy."3

The news story contained video footage of Ms. Jessica Poe, who was a "graduate", of theMental Health Court's program, making complimentary statements about the Mental HealthCourt and also Mr. Casey. Exhibits C, 0 and E to Boonstra Affidavit. Plaintiffs Complaint listsas false the statements made by Ms. Poe that Judge Eisenstein said, "I am God in this courtroom"and "You're going to do what I say you're going to do." Complaint, ~ 53. It is not explalned inthe Complaint how either of these comments is false. Since the video of the news story shows3 The news story also contained an interview with Dr. Murhy Thomas, a past president of the TennesseePsychological Association who confirmed that group therapy was one of those things that you cannot do unless youare a licensed psychologist. Exhibits C, D and E to Boonstra Affdavit.

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Ms. Poe in fact made those statements, there is no issue of misquoting her. Exhibit E toBoonstra Affidavit. In addition, the content of these statements also would not support adefamation action, as it is simply "rhetorical hyperbole" or "loose figurative" language by Ms.Poe that is non-actionable since it is not meant to be understood that Judge Eisenstein actually isGod. Milkovich v. Lorain Journal Co., supra, 497 U.S. at 17, 25. Furthermore, to say that aJudge expected to be obeyed in his cou.rtroom also cannot be reasonably understood as

defamatory. In fact, it is at least arguably a desirable trait for a judge. It certainly is not a"serious threat to Plaintiffs reputation," and is not capable of being considered as defamatory.Stones River, supra.

The other allegedly false statement concerning Jessica Poe is that "For Poe, that meantbeing ordered to take psychiatric medications and working with James Casey who became herpsychologist." Complaint, ~ 53. It could not be disputed that Ms. Poe's treatment program

through the Mental Health Court included working with Mr. Casey, whom she called her"psychologist," and the regulation of her medication. The news story shows video of theinterview with Ms. Poe when she describes working with Mr. Casey and also shows an excerptof a video of the tenth anniversary ceremony in Mental Health Court where she thanks theMental Health Court for enabling her to form a relationship with a psychologist, "Dr. Casey."Exhibit E to Boonstra Affidavit.

The Complaint argues that Judge Eisenstein did not order anyone to take psychiatricmedications or work with a specific psychologist and that "Participation in the Mental HealthCourt program is absolutely voluntary." Complaint, ~ 55. First of all, the news story does notsay it was Judge Eisenstein who ordered Ms. Poe to take medication. Exhibits C, D, and E toBoonstra Affdavit. The statement at issue also does not state that she was "ordered" to work

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with a specific counselor or psychologist, just that her treatment program included "working withMr. Casey who became her psychologist." Id. That is certainly true.

In any event, Judge Eisenstein is the presiding judge over the Mental Health Court andhas been active in creating and developing its programs and that of the Mental Health

Foundation. Complaint, ~ 29. The Mental Health Court's programs were described to theDepartment of Justice as follows, in a "Program Narrative" submitted by Judge Eisenstein:

Once the Court elects to accept a case, it must then determine whether to releasethe Defendant from jail. .. If the client is competent, the Mental Health Courtstaff will then develop a long term detailed, treatment plan. Upon completion ofthis plan, the defendant will return to court for a review and/or status check tomonitor the compliance of the initiated plan. The defendant's progress willcontinue to be monitored throughout their term with the Court. The defendant isexpected to report back to the Court. for periodic review hearings. The Courtmakes every attempt to assist the defendant in transitioning successfully back into'the community. Once the Court is convinced that the client is stable and hassuccessfully completed all aspects of his/her treatment plan, the defendant wil beeligible for graduation. . .

2008 Congressionally Mandated Earmark Grant: Program Narrative at 5. Exhibit 3 to WiliamsAffdavit. The narrative also states, "The Mental Health Court's strategy includes medicalstabilization and management." Id. at 13.

At the ten year anniversary celebration of the Davidson County Mental Health Court,Judge Eisenstein spoke at length about the treatment provided through the Mental Health Court,stating:

If someone has both drug addiction problems and significant mental ilness, wehave the ability through the Mental Health Court to send that individual, and wehave one young lady (Jessica Poe) today that graduated who is going to speak in aminute to the Davidson County Drug Court to the DC4 Program for ninety daysand we were able to secure a psychiatrist, a psychologist and others to be treatedthere in what we call a holistic maner for both their drug addiction problems andtheir mental health problems, all at once.Hopefully at that point they will become able to get off drugs and alcohol, bestabilized on any medication, psychotropic medication they have, come to

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realization that there's an issue that ties them together and then they go throughthat program. It's a wonderful program and then I supervise those individuals forthe remainder of their probationary period in the community.

Judge Eisenstein speaking at the Davidson County Mental Health Court 10 year AnniversaryCelebration, November 4, 2010, DVD attached as Exhibit A to Kahan Affdavit at 17:56 - 19:25.

These descriptions of the Mental Health Court's program shows that the news story didnot inaccurately describe the Mental Health Court's programs or Ms. Poe's participation in theprogram. Plaintiff's argument about this statement may be characterized as drawing a dist~nctionwithout a difference. In Windsor v. Tennessean, supra, the Court said the difference between

"signing" a subpoena versus "issuing" a subpoena was immaterial for libel purposes. 654S.W.2d at 686. This is similar to the distinction Plaintiff is attempting to draw between being"ordered" to do something through her Mental Health Court program versus "volun,tarily"agreeing, in order to avoid going to or staying in jaiL. The Court in Windsor stated:

Libel actions, under the law, are not constituted by technical definitions, strainedconnotation, and misplaced or even mistaken verbiage. 'When the truth is so nearto the facts as published that fine and shaded distinctions must be drawn andwords pressed out of their ordinary usage to sustain the charge of libel, no legalharm is done.' (Citations omitted).

654 S.W.2d at 686.There can be little question that the Mental Health Court's programs involve regulation

of medication and working with psychologists and psychiatrists, as Judge Eisenstein himself toldthe crowd assembled at the Court's tenth anniversary ceremony. That is also specifically true asto Jessica Poe. In the video made for the Mental Health Court's anniversary, Jessica Poe

describes her initial reluctance to take medication. ("I was almost willng to sit in jail for a yearthan to agree to the medication, but I did.") and she thanks the Mental Health Court for "therelationship I was able to form with a psychologist for the first time in my life, Dr. Casey."

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Exhibit A to Leigh Kahan Affidavit at 27:45 - 30:54; Exhibits C, D, and E of Boonstra Affdavit.The video shows Judge Eisenstein applauding her statements and saying he can play back thtape of her comments when ChanelS comes to see him. Exhibit A to Kahan Affdavit at 30:55-32:03. The sentence PlaintitI has taken out of context in the news story regarding Ms., Poe'streatment program is not false.

The news stories themselves and the other materials submitted herewith amplydemonstrate that the allegedly false statements in this second news story are not false ordefamatory and thus Defendants have af1rmatively shown there is no genuine issue of materialfact as to the existence of these essential elements of Plaintiff's causes of action.

c. This is the Appropriate Time for Granting this Motion to Disniiss.

This Court can compare the allegedly false statements as pled in the Complaint with theactual news stories and other materials that are submitted in support of Defendants' Motion toDismiss. There is no need for any discovery on the issue of whether the two news stories containany false or defamatory statement concerning Plaintiff.

Much of what is contained in Plaintiff s Complaint is an attempt to create the story linethat the two news stories at issue were motivated by an alleged desire on Mr. Williams' part toretaliate against Judge Eisenstein. Complaint, ~~ 13 to 32. The Complaint inaccuratelycharacterizes the facts relating to Judge Eisenstein's sua sponte "hearing" which he held on June23, 2010 and in which he railed about Mr. Williams' prior news stories.4 For purposes of thisMotion for Summary Judgment, however, those allegations about the alleged motivations behindthe news stories are immaterial and irrelevant because the news stories simply do not contain any4 Neither Mr. Williams' conduct nor his parking tickets were properly before Judge Eisenstein when he conductedthe June 23, 2010 "hearing." Although the Complaint goes to great lengths to provide an after-the-fact justificationfor the Judge's conduct, Mr. Willams had already paid the parking tickets at the time of Judge Eisenstein's"hearing." Judge Eisenstein used his hearing as a forum to blast Phil Williams for his prior news stories about theGeneral Sessions Court and wrongfully accuse him of receiving preferential treatment.

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false and defamatory statements about Judge Eisenstein. Although those allegations about Mr.Williams' mindset or motivation are inaccurate, it makes no difference on this Motion, becausethere were no false or defamatory statements made in the news stories concerning Judge

Eisenstein.The First Amendment to the United States Constitution and Article I, 19 of the

Tennessee Constitution guarantee freedom of speech and freedom of press. As a result "Only

under the most compellng circumstances should the courts place obstacles in the way of thenews media or muzzle or deter their investigative efforts and reporting. . ." particularly in thereporting on matters involving public officials. See Press v. Verran, 569 S.W.2d 435,442 (Tenn.1978). See also New York Times Co. v. Sullvan, 376 U.S. 254, 84 S. Ct. 710, 11 L. E. 2d 686(1964). The granting of a summary judgment in appropriate cases involving public offcials andmatters of public concern is important to prevent a chiling effect on these constitutionallyguaranteed rights and to prevent stifling public dialogue.

This is an appropriate case and an appropriate time to grant summary judgment. Thenews reports at issue do not contain any false or defamatory statements about the plaintiff publicoffcial and Defendants are entitled to a judgment as a matter of law dismissing his claims.

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Respectfully submitted,

NEAL & HARWELL, PLC

BY_~Jon D. Ross, #4452Ronald G. Harris, #9054

2000 One Nashville Place150 Fourth Avenue, NorthNashville, TN 37219-2498(615) 244-1713 - Telephone(615) 726-0573 - FacsimileCounsel for Defendants

CERTIFICATE OF SERVICEI hereby certify that a copy of the foregoing has been served, via the methode s) indicated, s-l

below, on the following counsel of record, this the _ day of August, 2011.(~nd( ) Mail( ) Fax( ) Fed. Ex.( ) E-Mail

Robert L. DeLaney, Esq.Tune, Entrekin & White P.C.Regions Center, Suite 1700315 Deaderick StreetNashvile, TN 37238~-&~

WTVF Motion to Dismiss Eisenstein Lawsuit

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