Delashaw v. Seattle Times Company

Opinion

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3 4 5 6 7 UNITED STATES DISTRICT COURT WESTERN DISTRICT OF WASHINGTON 8 AT SEATTLE

9 10 JOHNNY B. DELASHAW, JR., CASE NO. C18-0537JLR 11 Plaintiff, ORDER ON SEATTLE TIMES’ v. MOTION FOR CLARIFICATION 12 SEATTLE TIMES COMPANY, et 13 al., 14 Defendants. 15 Before the court is Defendant Seattle Times Company’s (“Seattle Times” or “the 16 Times”) motion for clarification (Mot. (Dkt. # 287)) of the court’s order granting the 17 Seattle Times’ second motion for summary judgment and granting in part and denying in 18 part Defendant Dr. Charles Cobbs’s second motion for summary judgment (2d MSJ 19 Order (Dkt. # 285) (sealed)). Namely, the Times requests that the court clarify the 20 burden of proof for the various elements of a defamation claim. (Mot. at 1.) In its order, 21 the court noted that a plaintiff must establish each element of a defamation claim “by 22 1 convincing clarity.” (2d MSJ Order at 11 (citing Mark v. Seattle Times, 635 P.2d 1081, 2 1089 (1981)). The Times requests the court clarify that under Washington law “a

3 plaintiff in an action for defamation must prove actual malice by convincing clarity, and 4 the other elements by a preponderance of the evidence.” (Mot. at 1-3 (citing Richmond v. 5 Thompson, 922 P.2d 1343 (Wash. 1996); Duc Tan v. Le, 300 P.3d 356 (Wash. 2013).) 6 The Times’ proposed clarification, however, elides a distinction in the case law— 7 whether the plaintiff in the defamation case is a private or public figure. In both 8 Richmond and Duc Tan, the Court analyzed defamation claims brought by public figures.

9 (See Richmond, 922 P.2d at 1348 (“Both parties agree Trooper Richmond is a public 10 official under New York Times.); Duc Tan, 300 P.3d at 358, 366 (finding that “[t]he trial 11 judge determined that [plaintiffs] were public figures” and “[a] public figure defamation 12 plaintiff must prove with clear and convincing evidence that the defendant made the 13 statements with ‘actual malice.’”) In Mohr v. Grant, however, the Washington Supreme

14 Court recognized that “[c]ase law is unclear as to whether a private plaintiff facing a 15 defense motion for summary judgment must make a prima facie showing of all of the 16 elements of defamation with convincing clarity or by a preponderance of the evidence.” 17 Mohr v. Grant, 108 P.3d 768, 773 n.7 (Wash. 2005) (comparing Richmond and Mark but 18 declining to resolve the ambiguity).

19 The court finds that a clarification is appropriate on this point. But in light of the 20 explicit statement of ambiguity on the burden of proof from the Court in Mohr and the 21 apparent absence of clarification since, the court does not find it proper to adopt the 22 blanket statement proposed by the Times. To ensure no further confusion, the court will 1 issue an amended order pursuant to Federal Rule of Civil Procedure 60(a). Rule 60(a) 2 permits the court to “correct a clerical mistake . . . arising from oversight . . . whenever

3 one is found in a[n] . . . order.” Fed. R. Civ. P. 60(a). Further, “[t]he court may do so . . . 4 on its own, with or without notice.” Id. As relevant here, Rule 60(a) “allows a court to 5 clarify a judgment in order to . . . reflect the necessary implications of the original order, 6 [or] to ensure that the court’s purpose is fully implemented.” Tattersalls, Ltd. v. 7 DeHaven, 745 F.3d 1294, 1298 (9th Cir. 2014) (citing Garamendi v. Henin, 683 F.3d 8 1069, 1079 (9th Cir. 2012)). Clarifications pursuant to Rule 60(a) are appropriate so long

9 as the clarifications do not change an order’s “operative, substantive terms,” and are 10 instead done to maintain “fidelity to the intent behind the original judgment.” See 11 Garamendi, 683 F.3d at 1078-80. 12 To correct its clerical mistake, the court will amend the sentence beginning at page 13 11, line 2 and ending at page 11, line 13 of the court’s November 18, 2020 summary

14 judgment order from: 15 A plaintiff must establish each element “by evidence of convincing clarity.” Mark, 635 P.2d at 1089. 16 to: 17 In a defamation action brought by a public figure, a plaintiff “must prove 18 with clear and convincing evidence that the defendant made the statements with ‘actual malice’” and prove the remaining elements by a preponderance 19 of the evidence. See Duc Tan, 300 P.3d at 366, 366 n.5.

20 The court will also insert a footnote following the above sentence which reads: 21 The Washington Supreme Court has recognized that “[c]ase law is unclear as to whether a private plaintiff facing a defense motion for summary 22 judgment must make a prima facie showing of all of the elements of 1 defamation with convincing clarity or by a preponderance of the evidence.” Mohr v. Grant, 108 P.3d 768, 773 n.7 (Wash. 2005). The court finds that it 2 need not attempt to resolve this ambiguity in this order. To the extent Dr. Delashaw has failed to make a prima facie showing of any elements of his 3 defamation claims, he has failed to do so under what is required by a preponderance of the evidence standard at this stage in the proceedings. To 4 the extent he has made a prima facie showing, he has done so under what is required by a convincing clarity standard. 5 6 The court ordered counsel to submit additional filings and proposed redactions in its 7 original order. (See 2d MSJ at 34-35.) The court will also insert footnotes in its amended 8 order clarifying that the parties have complied with these directions from the court. 9 These amendments maintain fidelity to the intent behind the court’s original order. See 10 Garamendi, 683 F.3d at 1078-80. No other amendments to the order are necessary. 11 Dated this 11th day of December, 2020. 12 A 13 14 JAMES L. ROBART United States District Judge 15 16 17 18 19 20 21 22