Rodriguez v. Taylor & Francis Group LLC

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Cristobal Rodriguez, No. CV-23-00576-PHX-GMS

10 Plaintiff, ORDER

11 v.

12 Taylor & Francis Group, LLC,

13 Defendant. 14 15 16 Pending before the Court is Defendant Taylor & Francis Group, LLC’s Motion to 17 Dismiss Plaintiff’s Third Amended Complaint for Failure to State a Claim (Doc. 22). For 18 the reasons detailed below, Defendant’s Motion is granted. 19 BACKGROUND 20 This action concerns Dr. Cristobal Rodriguez’s (“Plaintiff”) allegations of 21 defamation and trade libel against Taylor & Frances Group, LLC (“Defendant”). Dr. 22 Rodriguez is the Associate Dean of Equity, Inclusion, and Community, as well as an 23 Associate Professor of Educational Leadership and Policy studies, at the Mary Lou Fulton 24 Teachers College at Arizona State University. (Doc. 21 at 2). He researches inclusion and 25 equity in education for “dual language learners, Black, Latino, and Indigenous” families 26 and students. (Id.). On March 7, 2022, Dr. Rodriguez and two other authors published an 27 article in Educational Studies entitled “Our Separate Struggles Are Really One: Building 28 Coalitions and Solidarity for Social and Racial Justice in Education” (“Rodriguez Article”). 1 (Id.). Educational Studies is an education journal published by Defendant. (Id. at 3). 2 Within days of publication, Plaintiff became aware of a potential issue with the 3 Rodriquez Article. (Doc. 21 at 3). Plaintiff and his co-authors researched other published 4 works and discovered that the Rodriquez Article and an article published by Dr. Sonya 5 Douglass Horsford shared references to a conversation between Dr. Martin Luther King, 6 Jr. and Cesar Chavez and had similar titles. (Id.). Dr. Horsford titled her article “Our 7 Separate Struggles are Really One: Building Political Race Coalitions for Educational 8 Justice (“Horsford Article”). (Doc. 10-3 at 2). On March 12, 2022, Dr. Rodriguez 9 contacted Defendant to inform them of the overlap due to an oversight to “check for title 10 similarities with other publications,” to offer a revised title, and to address certain 11 references in the Rodriguez Article. (Doc. 21 at 3-4). Plaintiff and his co-authors 12 submitted a revised draft of the Rodriguez Article that included different references and a 13 new title. (Id. at 5). Defendant accepted the changes and updated the print and online 14 publication. (Id.). Defendant informed Plaintiff that the editorial board was reviewing the 15 matter but ceased all further communications with Plaintiff. (Id.). 16 On June 20, 2022, Defendant informed Plaintiff that it would remove the Rodriguez 17 Article from the issue of Education Studies and issue a retraction on its website with the 18 basis for the retraction. (Doc. 21 at 6). Defendant provided Plaintiff no specific basis for 19 the removal or the specific content of the retraction statement. (Id.). Defendant then 20 retracted the Rodriguez Article and published a public notice of retraction on its website. 21 (Id. at 6). The notice referenced both the Rodriguez Article and the Horsford Article and 22 included a brief explanation of Defendant’s reasoning:

23 Since publication, significant concerns have been raised about the fact that this 24 article has substantial overlap with the following article, particularly in title, references, and ideas pertinent to the content . . . As plagiarism is a serious breach 25 of publishing ethics, we are retracting the article from the journal. We have been 26 informed in our decision-making by our policy on publishing ethics and integrity and the COPE guidelines on retractions. 27 28 (Doc. 10-2 at 2). Plaintiff alleges that “[t]he continued presence of the retraction statement 1 on Defendant’s website has the extreme potential to cause harm to Dr. Rodriguez and his 2 professional reputation, including prohibiting and preventing him from opportunities for 3 future professional advancement.” (Doc. 21 at 8). Additionally, Plaintiff alleges that 4 Arizona State University placed him on administrative leave and that he lost his 5 administrative position because of Defendant’s public notice. (Id. at 8-9). The loss of that 6 position, Plaintiff alleges, included a substantial loss in income. (Id. at 9). 7 Plaintiff has two pending claims against Defendant: one for defamation and one for 8 trade libel. (Doc. 21 at 9). Plaintiff originally filed his Complaint in the Superior Court of 9 Arizona in Maricopa County on November 9, 2022. (Doc. 1 at 1-2). On March 2, 2023, 10 Plaintiff filed his First Amended Complaint. (Doc. 1-5 at 9). Defendant removed the action 11 to this Court on April 5, 2023. (Doc. 1). This Court has subject matter jurisdiction pursuant 12 to 28 U.S.C. § 1332. On April 27, 2023, Plaintiff filed his Second Amended Complaint. 13 (Doc. 9). This Court granted Defendant’s Motion to Dismiss Plaintiff’s Second Amended 14 Complaint for Failure to State a Claim with one final leave to amend and to plead facts 15 sufficient to make plausible the element of malice, a required element of both defamation 16 and trade libel. (Doc 18). On April 26, 2024, Plaintiff filed his Third Amended Complaint 17 (“Complaint”). (Doc. 21). 18 DISCUSSION 19 I. Legal Standard 20 To survive dismissal for failure to state a claim pursuant to Federal Rule of Civil 21 Procedure 12(b)(6), a complaint must contain more than a “formulaic recitation of the 22 elements of a cause of action,” it must contain factual allegations sufficient to “raise a right 23 to relief above the speculative level.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 24 (2007). When analyzing a complaint for failure to state a claim, “allegations of material 25 fact are taken as true and construed in the light most favorable to the non-moving party.” 26 Smith v. Jackson, 84 F.3d 1213, 1217 (9th Cir. 1996). However, legal conclusions couched 27 as factual allegations do not receive a presumption of truthfulness, and “conclusory 28 allegations of law and unwarranted inferences are not sufficient to defeat a motion to 1 dismiss.” Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th Cir. 1998).1 “Determining whether a 2 complaint states a plausible claim for relief will . . . be a context-specific task that requires 3 the reviewing court to draw on its judicial experience and common sense.” Ashcroft v. 4 Iqbal, 556 U.S. 662, 679 (2009). 5 II. Analysis 6 a. Defamation 7 To state a claim for defamation under Arizona law, a plaintiff must plead (1) the 8 existence of a false defamatory statement, (2) publication to a third party, and (3) “fault 9 amounting to at least negligence on the part of the publisher or ‘actual malice,’ depending 10 on the status of the plaintiff as a private or public figure and whether the statement at issue 11 involves a matter of public concern.” Greschner v. Becker, No. CV-14-02352-PHX-GMS, 12 2015 WL 685156, at *2 (D. Ariz. Feb. 18, 2015) (quoting Boswell v. Phx. Newspapers, 13 Inc., 152 Ariz. 1, 3, 730 P.2d 178, 180 (Ariz. Ct. App. 1978)). Because Plaintiff is a 14 professor employed by a public institution, the parties agree that he is a public figure 15 subject to a higher showing of “actual malice.” (Doc. 10 at 8-10; Doc. 13 at 7-9); see also 16 Sewell v. Brookbank, 119 Ariz. 422, 425, 581 P.2d 267, 270 (Ariz. Ct. App. 1978). “A 17 statement is made with ‘actual malice’ when it is made ‘with knowledge that it was false 18 or with reckless disregard of whether it was false or not.’” Greschner, 2016 WL 3969941, 19 at *4 (quoting N.Y. Times Co. v. Sullivan, 376 U.S. 254, 279–80 (1964)). “Actual malice” 20 means knowledge of falsity or conscious disregard of the truth. Scottsdale Pub’g v. 21 Superior Ct. of Maricopa Cnty., 159 Ariz. 72, 75, 82, 764 P.2d 1131, 1134, 1141 (Ct. App. 22 1988) (defining “actual malice” as either “knowingly” publishing a false statement or doing 23 so when the defendant “entertained serious doubts as to the truth of its accusation, but 24 1 Both of Defendant’s Motions to Dismiss (Doc. 10 and Doc. 22) include documents 25 attached as appendices: the Rodriguez Article, Defendant’s public notice of retraction, the Horsford Article, emails exchanged between Defendant and Plaintiff, and Defendant’s 26 letter to Plaintiff providing formal notice that the Rodriguez Article was removed from the issue. These documents may be properly considered by the Court without converting the 27 Motion to Dismiss into a Motion for Summary Judgment based on the “incorporation by reference” doctrine, because the Plaintiff relies on the documents in his complaint, the 28 Defendant attached the documents to its Motion to Dismiss, and neither party disputes their authenticity. See Knievel v. ESPN, 393 F.3d 1068, 1076 (9th Cir. 2005). 1 proceeded in conscious disregard of such doubts”) (quoting St. Amant v. Thompson, 390 2 U.S. 727, 731 (1968)). Other cases suggest that the standard is either knowing or 3 publishing a false statement with a subjectively “high degree of awareness of [its] probable 4 falsity.” Harte-Hanks Commc’ns v. Connaughton, 491 U.S. 657, 688 (1989). Importantly, 5 the actual malice standard applies to the truthfulness of the Defendant’s statement—it is 6 not to be confused with the intent behind Defendant’s statement. Id. (citations omitted). 7 “Under Arizona defamation law, actual malice may be shown by circumstantial evidence.” 8 Shoen v. Shoen, 48 F.3d 412, 417 (9th Cir. 1995) (citing Currier v. W. Newspapers, 175 9 Ariz. 290, 294, 855 P.2d 1351, 1355 (Ariz. 1993)). 10 The Court previously found that Plaintiff’s Second Amended Complaint failed to 11 allege what, if any, information Plaintiff provided Defendant such that Defendant should 12 have “entertained serious doubts” as to the truth of its statements regarding plagiarism in 13 its retraction statement. (Doc. 18 at 6-7). Plaintiff has since added two allegations in 14 connection with his defamation claim: (1) the specific explanation in his March 12, 2022, 15 email to Defendant and (2) the “position of Dr. Horsford that [s]he did not want to or intend 16 for Defendant to take any further action.” (Doc. 21 at 6). Plaintiff claims that these two 17 facts provided “sufficient exonerating information to put the Defendant on notice that the 18 later publication of the allegations in the Retraction Statement alleging plagiarism were 19 done with malice and/or with reckless disregard of whether the allegations in the Retraction 20 Statement were false or not.” (Id.). The Court analyzes Plaintiff’s allegations in turn. 21 i. Specific Explanation in the March 12, 2022, Email 22 Plaintiff’s email informs Defendant that the Rodriguez Article had a similar title to 23 the Horsford Article and states that the similarity was due to an “oversight . . . to check for 24 title similarities with other publications.” (Doc. 21 at 4). However, even if true, Plaintiff’s 25 email does not provide Defendant with information that would cause Defendant to 26 “entertain[ ] serious doubts as to the truth of” the retraction statement. See Scottsdale 27 Publ’g, 159 Ariz. at 82, 764 P.2d at 1141; (Doc. 10-2 at 2). The retraction statement points 28 to “significant overlap” in not only title but also as to “references” and “ideas,” neither of 1 which were addressed in the March 12 email. (Doc. 22-2 at 2). This Court takes as true 2 all allegations of material facts set forth in the complaint, together with “all reasonable 3 inferences therefrom.” Pareto, 139 F.3d at 699. “Unwarranted inferences are not sufficient 4 to defeat a motion to dismiss.” Id. The text of the email is expressly limited to a 5 conversation about “title similarities.” (Doc. 21 at 4). Plaintiff’s failure “to check for title 6 similarities with other publications” does not reasonably suggest that what he did, or failed 7 to do in this respect, prevented plagiarism. See id. Moreover, a simple, uncorroborated 8 denial by Plaintiff to Defendant that he committed plagiarism is not sufficient to make 9 plausible his claim of actual malice on Defendant’s part in concluding otherwise. 10 ii. Dr. Horsford’s Email to Plaintiff Regarding Further Action 11 Dr. Horsford, in an email response to Plaintiff’s offer to make additional changes to 12 the article, wrote that the decision was not hers to make and that she did not “expect any 13 particular action to be taken.” (Doc. 22-1 at 2). Although not explicitly stated, Plaintiff 14 assumes that Defendant inferred, or should have inferred, from Dr. Horsford’s email that 15 Dr. Horsford would have responded differently had she believed her article had been 16 plagiarized. (Doc. 21 at 6-7). Therefore, according to Plaintiff, Dr. Horsford did not 17 believe Plaintiff plagiarized, and the email was sufficiently exonerating to put Defendant 18 on notice, such that any later publication of alleged plagiarism was done with malice. (Id.). 19 This is not a “reasonable inference.” See Pareto, 139 F.3d at 699. Plaintiff asserts that Dr. 20 Horsford meant that she did not “want or intend” for Defendant to take action when she 21 wrote that she did not “expect any particular action to be taken.” (Doc. 21 at 6-7; Doc. 22- 22 1 at 2). No such presumption is merited. In fact, Dr. Horsford explicitly wrote in that same 23 email that decisions about changes to the Rodriguez Article were not hers to make and that 24 she was just bringing the similarities to Plaintiff’s attention. (Doc. 22-1 at 2). Actual 25 malice means Defendant “entertained serious doubts as to the truth of the accusation.” See 26 Scottsdale Publ’g, 159 Ariz. at 75, 82 (quoting St. Amant v. Thompson, 390 U.S. 727, 731 27 (1968)). Dr. Horsford’s email does not give rise to an inference that Defendant “entertained 28 serious doubts as to the truth” of the plagiarism of Dr. Hosford’s article, as any such || inference from Dr. Horsford’s email is unwarranted. See id. For this reason, Plaintiff has || not sufficiently alleged actual malice. 3 1. Trade Libel 4 Under Arizona law, claims for trade libel “are subject to the same first amendment 5 || requirements that govern actions for defamation.” Unelko Corp. v. Rooney, 912 F.2d 1049, 6|| 1057-58 (9th Cir. 1990). This includes the actual malice pleading standard. Thus, because 7\|| Plaintiff cannot plead facts sufficient to make the element of actual malice in the statement 8 || plausible, Plaintiff similarly fails to make out a claim of trade libel. Plaintiff's claim for 9|| trade libel is, therefore, also dismissed. 10 CONCLUSION 11 Accordingly, 12 IT IS THEREFORE ORDERED Defendant’s Motion to Dismiss Plaintiffs Third 13 || Amended Complaint for Failure to State a Claim (Doc. 22) is GRANTED. 14 IT IS FURTHER ORDERED directing the Clerk of Court to terminate this matter. 15 Dated this 22nd day of August, 2024. ° Wars ) A Whacrsay Sooo) 18 Chief United states District Judge 19 20 21 22 23 24 25 26 27 28

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