Elias v. Rolling Stone LLC

192 F. Supp. 3d 383, 44 Media L. Rep. (BNA) 1977, 2016 WL 3583080, 2016 U.S. Dist. LEXIS 83875
CourtDistrict Court, S.D. New York
DecidedJune 28, 2016
Docket15-cv-5953 (PKC)
StatusPublished

This text of 192 F. Supp. 3d 383 (Elias v. Rolling Stone LLC) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Elias v. Rolling Stone LLC, 192 F. Supp. 3d 383, 44 Media L. Rep. (BNA) 1977, 2016 WL 3583080, 2016 U.S. Dist. LEXIS 83875 (S.D.N.Y. 2016).

Opinion

MEMORANDUM AND ORDER

CASTEL, United States District Judge

On November 19, 2014, Rolling Stone magazine (“Rolling Stone”) published an article that described the violent gang rape of a University of Virginia (“UVA”) freshman identified as “Jackie.” The parties do not dispute that the rape depicted in the article did not occur, and was the fictitious creation of “Jackie,” the article’s principal source. Within five months of. publication, Rolling Stone retracted the article and issued a written apology. The since-discredited article included disturbing, graphic details about the rape, which was claimed to have occurred at the Phi Kappa Psi fraternity house at UVA.

The plaintiffs are George Elias, IV, Stephen Hadford and Ross Fowler. Plaintiffs were undergraduates at UVA and members of the Phi Kappa Psi fraternity when the attack purportedly occurred. Each brings defamation claims against the article’s author and the publishers of Rolling Stone. None of the three plaintiffs was identified by name or physically described in the article.

It should be emphasized that the three plaintiffs had no actual connection to the rape described in the article, and that their defamation claims are directed toward a report about events that simply did not happen. Plaintiffs allege that the article’s references to attackers were “of and concerning” them, even though they also allege that the attackers were apparently invented by “Jackie.” In the plaintiffs’ own words, any “apparent connection between the Plaintiffs and the allegations is ah (unfortunate) coincidence.” (Opp. Mem. at 13.) According to plaintiffs, the article nevertheless contained details that could prompt their friends, family and colleagues to erroneously infer that they participated in a gang rape.

Defendants move to dismiss the Second Amended Complaint (the “Complaint”) pursuant to Rule 12(b)(6), Fed. R. Civ. P, For the reasons explained, the article’s details, about the attackers are-too vague and remote from the plaintiffs’ circum[388]*388stances to be “of and concerning” them. The motion to dismiss is therefore granted.

BACKGROUND

For the purposes of this motion, all non-eonclusory factual allegations are accepted as true, and all inferences are drawn in favor of the plaintiffs. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

A. The Parties.

Elias, Hadford and Fowler were each members of Phi Kappa Psi, and each graduated from the University of Virginia in 2013. (Compl’t ¶¶ 7-9.) Their individual allegations are discussed in greater detail below.

Defendant Sabrina Ruben Erdely was a contributing editor at Rolling Stone, and the author of the now-discredited article “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” (Compl’t ¶ 11.) Defendant Rolling Stone LLC publishes Rolling Stone in conjunction with defendant Wenner Media LLC. (Compl’t ¶¶ 10, 12.) The memberships of the two limited liability companies, Rolling Stone LLC and Wenner Media LLC, are alleged in detail, and the Court is satisfied that it has subject matter jurisdiction on the basis of diversity of citizenship, 28 U.S.C. § 1332. (Compl’t ¶¶ 13-32.)

B. Overview of the “Jackie” Article.

On November 19, 2014, Rolling Stone published an online article titled, “A Rape on Campus: A Brutal Assault and Struggle for Justice at UVA.” (Compl’t ¶33.) The article described a gang rape committed against “Jackie.”1 (Compl’t ¶ 34.) It detailed how “Jackie” attended a dinner-and-date function at the Phi Kappa Psi house at the invitation of “Drew,” a fraternity member who worked at the university swimming pool with “Jackie.” (Compl’t ¶34.) The article identified “Drew” as a junior at UVA. (Compl’t ¶ 43.)

According to the article, while at the party, “Drew” invited “Jackie” to an upstairs bedroom, where she was thrown through a glass table, punched in the face, penetrated with a beer bottle and forcibly gang raped by seven men while “Drew” and a ninth man observed. (Compl’t ¶¶ 35, 1421) The article describes the attackers encouraging one unaroused participant to rape “Jackie” by uttering statements like, “Don’t you want to be a brother?” and “We all had to do it, so you do, too.” (Compl’t ¶¶ 36,142.) The article stated that “spectators swigged beers” and the attackers “called each other nicknames like Armpit and Blanket.” (Compl’t ¶ 142.) According to the article, “Jackie” eventually passed out and awoke with her dress “spattered with blood,” at which point she exited the house via a side-staircase while the party was still underway. (Compl’t ¶ 37.) “Drew” later thanked “Jackie” for a “great time” at the party, and the other purported attackers behaved toward her as if nothing had happened. (Compl’t ¶ 40.)

Several months later, the article states, “Jáckie” first reported the rape to UVA Dean Nicole Eramo. (Compl’t ¶39.) The article states that two other women had been gang raped at the Phi Kappa Psi fraternity, but, according to the Complaint, “both women refused to comment and neither woman was ever identified as having even existed.” (Compl’t ¶ 41.) According to the article, in the fall of 2014, Dean Eramo told “Jackie” that “all the boys involved have graduated,” implying that the alleged [389]*389attackers graduated in 2013 or 2014, (Compl’t ¶ 44.)

C. The Article’s Scrutiny and Retraction,

On December 5, 2015, the Washington Post reported on discrepancies and “questionable facts” in the article about “Jackie’s” rape. (Compl’t ¶ 72.) That same day, Rolling Stone’s managing editor issued a public statement acknowledging “discrepancies in Jackie’s account” and stating that “we have come to the conclusion that our trust in her was misplaced.” (Compl’t ¶ 73.) That editor also stated on Twitter that .he “can’t explain the discrepancies” in the article and that “I don’t have complete confidence” in it. (Compl’t ¶ 74.)

Under additional scrutiny, the account of “Jackie’s” rape was revealed to be a fabrication. “Jackie’s” friends disputed the article’s version of events, the fraternity issued statements contradicting key details and the Charlottesville Police Department conducted a formal investigation into the incident. (Compl’t ¶¶ 75-81.) On March 23, 2015, the Charlottesville Police Department stated that “[h]aving exhausted all investigative leads, our investigation concludes that there is no substantive basis to support the account alleged in the Rolling Stone article.” (Compl’t ¶ 81.) On April 15, 2015, Rolling Stone retracted “A Rape on Campus” and issued a written apology “to our readers and to all of those who were damaged by our story and the ensuing fallout, including members of the Phi Kappa Psi fraternity and UVA administrators and students.” (Compl’t ¶ 82.) A report authored by the dean of the Columbia School of Journalism chronicled numerous lapses on the part of Rolling Stone, amounting to what the report described as a “journalistic failure” stemming from unquestioning acceptance of “Jackie’s” account and a neglect of basic fact-checking practices. (Compl’t ¶¶ 83-88.)

The Complaint alleges that no members of Phi Kappa Psi matched the physical description of “Drew,” and it appears that “Drew” was not based on any real person.

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Bluebook (online)
192 F. Supp. 3d 383, 44 Media L. Rep. (BNA) 1977, 2016 WL 3583080, 2016 U.S. Dist. LEXIS 83875, Counsel Stack Legal Research, https://law.counselstack.com/opinion/elias-v-rolling-stone-llc-nysd-2016.