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Potter v. Associated Press

United States District Court, E.D. Virginia, Richmond Division

July 15, 2015

DENA R. POTTER, Plaintiff,


M. HANNAH LAUCK, District Judge.

This matter comes before the Court on Defendant the Associated Press's (the "AP") Motion to Dismiss the matter against it pursuant to Federal Rule of Civil Procedure 12(b)(6).[1] (ECF No. 3.) Plaintiff Dena Potter filed a response to the motion, and the AP replied. (ECF Nos. 5, 6.) The matter is ripe for disposition. The Court dispenses with oral argument because the materials before the Court adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to 28 U.S.C. § 1332.[2] For the reasons that follow, the Court GRANTS IN PART and DENIES in PART the AP's Motion to Dismiss.[3]

I. Standard of Review

A. Federal Rule of Civil Procedure 12(b)(6)

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citing 5A Charles A. Wright & Arthur R. Miller, Federal Practice and Procedure § 1356 (1990)). In considering a motion to dismiss for failure to state a claim, a plaintiff's well-pleaded allegations are taken as true and the complaint is viewed in the light most favorable to the plaintiff. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993); see also Martin, 980 F.2d at 952. This principle applies only to factual allegations, however, and "a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth." Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).

The Federal Rules of Civil Procedure "require[] only a short and plain statement of the claim showing that the pleader is entitled to relief, ' in order to give the defendant fair notice of what the... claim is and the grounds upon which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (omission in original) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs cannot satisfy this standard with complaints containing only "labels and conclusions" or a "formulaic recitation of the elements of a cause of action." Id. (citations omitted). Instead, a plaintiff must assert facts that rise above speculation and conceivability to those stating a claim that is "plausible on its face." Id. at 570. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). Therefore, in order for a claim or complaint to survive dismissal for failure to state a claim, the plaintiff must "allege facts sufficient to state all the elements of [his or] her claim." Bass v. E.I. DuPont de Nemours & Co., 324 F.3d 761, 765 (4th Cir. 2003) (citing Dickson v. Microsoft Corp., 309 F.3d 193, 213 (4th Cir. 2002); Iodice v. United States, 289 F.3d 270, 281 (4th Cir. 2002)).

B. Attachment of Additional Exhibits

"If, on a motion under Rule 12(b)(6)..., matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56, " and "[a]ll parties must be given a reasonable opportunity to present all the material that is pertinent to the motion." Fed.R.Civ.P. 12(d); see Laughlin v. Metro. Wash. Airports Auth., 149 F.3d 253, 260-61 (4th Cir. 1998); Gay v. Wall, 761 F.2d 175, 177 (4th Cir. 1985). However, "a court may consider official public records, documents central to plaintiff's claim, and documents sufficiently referred to in the complaint [without converting a Rule 12(b)(6) motion into one for summary judgment] so long as the authenticity of these documents is not disputed." Witthohn v. Fed. Ins. Co., 164 F.Appx. 395, 396-97 (4th Cir. 2006) (citing Alt. Energy, Inc. v. St. Paul Fire & Marine Ins. Co., 267 F.3d 30, 33 (1st Cir. 2001); Phillips v. LCI Int'l, Inc., 190 F.3d 609, 618 (4th Cir. 1999); Gasner v. Cnty. of Dinwiddie, 162 F.R.D. 280, 282 (E.D. Va. 1995)).

The AP attached five exhibits to its Memorandum in Support of the Motion to Dismiss, via the Declaration of Mr. Jay Ward Brown, Esq.: (1) a copy of the indictment in United States v. Caramadre, No. 1:11-cr-00186-S-PAS (D.R.I. Nov. 17, 2011) (the "Caramadre Indictment") (AP Mem. Supp. Mot. Dismiss, Ex. 1 ("Caramadre Indictment"), ECF No. 4-2); (2) an October 9, 2013 APNewsAlert entitled "Court records: McAuliffe lied to postal inspector investigating RI death benefits scam" ( Id. Ex. 2, ECF No. 4-3); (3) a copy of a report regarding then-gubernatorial candidate Terry McAuliffe as published online by USA Today and updated to reflect the story's retraction ( Id. Ex. 3, ECF No. 4-3); (4) a copy of the "kill notice" sent to AP member news organizations retracting the above report ( Id. Ex. 4, ECF No. 4-3); and (5) a copy of a draft statement made by Defendant Carroll during a conference call with AP employees on October 24, 2013 (the "Conference Call") ( Id. Ex. 5, ECF No. 4-3.) The Court will consider the Caramadre Indictment, the APNewsAlert, and the "kill notice" because neither party contests their authenticity and the Complaint refers to all three documents in a manner that makes them central to the claims.[4] See Witthohn, 164 F.Appx. at 396-97 (citations omitted).

Two documents, however, cannot be reviewed at this stage of the litigation. The Court will not consider Brown Declaration Exhibit 3, the copy of the report purportedly published online, or Brown Declaration Exhibit 5, the copy of the draft statement made by Carroll during the Conference Call. As to Exhibit 3, the Complaint refers to a report that would be central to the facts of Potter's claims. However, Potter appropriately argues that the report attached to the AP's Memorandum in Support introduces additional extrinsic factual information regarding whether USA Today published the inaccurate report. As to Exhibit 5, while the Complaint refers to Carroll's statements made during the Conference Call, and these statements will prove central to Potter's claims, Potter properly challenges the use of Carroll's draft statements for purposes of the Motion to Dismiss. Potter avers that the "draft statement... may or may not have been the actual words spoken" by Carroll. (Potter Mem. Opp'n 7.)

At this juncture, the Court may take as true only the facts asserted in Potter's Complaint. As such, Potter suitably challenges the use of Brown Declaration Exhibits 3 and 5 during a motion to dismiss stage. Absent further evidence regarding authenticity, the Court will not consider the online report or Carroll's draft statement in its consideration of the AP's Motion to Dismiss.

II. Factual and Procedural Background

A. Summary of Allegations in Potter's Complaint[5]

From January 2005 until her termination on October 21, 2013, the AP employed Potter in various positions. In July 2011, Potter became the "Interim News Editor for the states of Virginia and West Virginia, " and in March 2012, the AP promoted her to News Editor for the same states. (Compl. ¶¶ 11-12.) During the times pertinent to the Complaint, Defendant Kathleen Carroll served as a Senior Vice President and Executive Editor of the AP. The subject of this suit involves statements purportedly about Potter and two other AP employees by Carroll regarding the AP's coverage of the 2013 Virginia gubernatorial contest between Democrat Terry McAuliffe and Republican Kenneth Cuccinelli.

At approximately 3:00 p.m. on October 9, 2013, Potter began working on a news story involving a shooting at a federal courthouse in West Virginia. Around 4:00 p.m. that day, Robert Lewis, an AP journalist, contacted Potter and told her about a developing story regarding a fraudulent death benefits scheme in Rhode Island. Although the Complaint does not identify his source, Lewis "had learned that McAuliffe was expressly and accurately identified in the [Rhode Island] federal court papers as an investor" in the scheme. (Compl. ¶ ...

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