United States District Court, W.D. Virginia, Charlottesville Division
NICOLE P. ERAMO, Plaintiff,
ROLLING STONE, LLC, et al, Defendants.
Glen E. Conrad Chief United States District Judge
Eramo filed this defamation action against defendants Rolling
Stone, LLC ("Rolling Stone"), Sabrina Rubin Erdely,
and Wenner Media LLC ("Wenner Media"). The case is
presently before the court on plaintiffs motion for partial
summary judgment and defendants' motion for summary
judgment. For the reasons set forth below, the motions will
be granted in part and denied in part.
of summary judgment is appropriate only when "the entire
record shows a right to judgment with such clarity as to
leave no room for controversy and establishes affirmatively
that the adverse party cannot prevail under any
circumstances." Phoenix Savings and Loan, Inc. v.
The Aetna Cas. and Surety Co.. 381 F.2d 245, 249 (4th
Cir. 1967). When faced with cross-motions for summary
judgment, the court considers each motion separately and
resolves all factual disputes and "any competing,
rational inferences in the light most favorable to the party
opposing the motion." Rossignol v. Voorhaar,
316 F.3d 516, 523 (4th Cir. 2003) (quoting Wightman v.
Springfield Terminal Ry. Co.. 100 F.3d 228, 230 (1st
Cir. 1996)). Accordingly, the following facts from the record
are either undisputed or presented in the light most
favorable to the nonmoving party.
P. Eramo ("Eramo") is an Associate Dean of Students
at the University of Virginia ("UVA"). Rolling
Stone and Wenner Media are the publishers of Rolling
Stone magazine. Sabrina Rubin Erdely
("Erdely") worked as a reporter and Contributing
Editor for Rolling Stone.
November 19, 2014, defendants published an article written by
Erdely and entitled "A Rape on Campus: A Brutal Assault
and Struggle for Justice at UVA" (the
"Article"). Compl. ¶ 45. The Article contained
a graphic depiction of the alleged gang-rape of a UVA
student, referred to as "Jackie, " at a Phi Kappa
Psi fraternity party. According to the Article, Jackie's
mother informed an academic dean that Jackie had a "bad
experience" at a party. Id. ¶ 56. The
academic dean then put Jackie in touch with Eramo.
time, Eramo's duties at UVA included performing intake of
sexual assault complaints and providing support to purported
victims. In this position, Eramo also participated in panel
discussions and attended conferences on sexual assault. She
also provided quotations for articles appearing in the
Cavalier Daily, UVA's student-run newspaper, was
interviewed on WUVA regarding UVA's sexual misconduct
policy, and gave brief interviews to local news channels.
PL's Resp. to Defs.' First Set of Interoggs. Nos.
1-3. On campus, Eramo was seen as "an expert in all
issues related to sexual assault" and the "point
person" for reports of sexual misconduct. 30(b)(6) Dep.
of Alan Groves, 82:7-11, 333:16-18.
pitch to Rolling Stone, Erdely stated that her article would
"focus on a sexual assault case on one particularly
fraught campus ... following it as it makes its way through
university procedure to its resolution, or lack
thereof." "Campus Rape" by Erdely, Dkt. 116,
Ex. 7. The Article describes Jackie's interactions with
Eramo, including how Jackie shared information about two
other victims of the same fraternity. Throughout her
investigation, Erdely spoke with a number of students about
sexual assault at UVA; her notes reflect that several
students communicated their admiration of Eramo. Erdely
Reporting Notes, RS004381, RS004165, Dkt. 104, Ex. 15. As
publication neared, some students expressed to Erdely
concerns that her portrayal of Eramo was inaccurate. Dep. of
Sara Surface 118:18-119:18.
relied heavily on the narrative Jackie provided in writing
the Article, so much so that she did not obtain the full
names of Jackie's assailants or contact them. Nor did
Erdely interview the individuals who found Jackie the night
of her alleged gang-rape. Similarly, Erdely did not obtain
certain corroborating documents Jackie claimed to have access
to and was unable to confirm with Jackie's mother
Jackie's assertion that her mother had likely destroyed
the dress Jackie wore on the night of the alleged rape.
Additionally, Erdely was not granted an interview with Eramo
to ask about the university's policies. Instead,
Eramo's superiors made UVA President, Teresa Sullivan,
its release, the Article created a "media
firestorm" and was viewed online more than 2.7 million
times. Rolling Stone issued a press release contemporaneously
with the Article, and on November 26, 2014, Erdely appeared
on the Brian Lehrer Show and the Slate DoubleX Gabfest
podcast. On these shows, Erdely discussed the allegations
made in the Article.
complaint asserts that the Article and subsequent media
appearances destroyed Eramo's reputation as an advocate
and supporter of victims of sexual assault. She was attacked
by individuals on television and the internet, and she
received hundreds of threatening, vicious emails from members
of the public. As a result, Eramo suffered "significant
embarrassment, humiliation, mental suffering and emotional
distress." Compl. ¶ 207.
further investigation by independent entities, it was
reported that the Article, and key components of Jackie's
story, could not be substantiated. Within two weeks of the
Article's publication, the fraternity where Jackie's
alleged attack took place produced evidence demonstrating
that no social gathering was held on the night in question
and that no member of the fraternity matched the description
given by Jackie for her primary attacker. Id. ¶
90. Additionally, The Washington Post ran an article
addressing the fact that Erdely did not contact Jackie's
December 5, 2014, Rolling Stone issued a statement (the
"Editor's Note") that acknowledged the
discrepancies in Jackie's account, blamed Jackie for
misleading Erdely, and claimed that its trust in Jackie had
been "misplaced." Id. ¶ 91. This
statement appeared appended to the online Article, and also
by itself on a separate URL. On March 23, 2015, four months
after the Article was published, the Charlottesville Police
Department issued a report regarding its investigation of
Jackie's assault. The report stated that Jackie had told
Eramo a wholly different tale of sexual assault than the
story published in the Article. Ultimately, the police
concluded that there was no substantive basis in fact to
conclude that an incident occurred consistent with the facts
in the Article. In April 2015, after a report by the
Columbia Journalism Review described the Article as
a "journalistic failure" and concluded that
defendants "set aside or rationalized as unnecessary
essential practices of reporting, " Rolling Stone
"officially retracted" and removed the Article from
its website. Id. ¶ 14. Eramo granted a limited
interview to the Columbia Journalism Review as part
of their investigation for the report.
12, 2015, Eramo filed a six-count defamation action arising
not only from the allegations in the Article but also from
other statements made by the defendants in subsequent media
appearances. On May 29, 2015, defendants removed the instant
action from the Circuit Court for the City of Charlottesville
pursuant to 28 U.S.C. §§ 1332, 1441, and 1446.
Following the close of discovery, plaintiff moved for partial
summary judgment and defendants moved for summary judgment.
The court held a hearing on the motions on August 12, 2016.
The motions have been fully briefed and are now ripe for
award of summary judgment is appropriate "if the movant
shows that there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter of
law." Fed.R.Civ.P. 56(a). In determining whether a
genuine dispute of material fact exists, the court must
"view the facts and all justifiable inferences arising
therefrom in the light most favorable to the nonmoving
party." Libertarian Party of Va. v. Judd, 718
F.3d 308, 313 (4th Cir. 2013). "When faced with
cross-motions for summary judgment, [courts] consider each
motion separately on its own merits to determine whether
either of the parties deserves judgment as a matter of
law." Bacon v. City of Richmond. 475 F.3d 633,
636-37 (4th Cir. 2007). "The court must deny both
motions if it finds that there is a genuine dispute of
material fact, but if there is no genuine issue and one or
the other party is entitled to prevail as a matter of law,
the court will render judgment." Sky Angel U.S., LLC
v. Discovery Commc'ns., LLC, 95 F.Supp.3d 860, 869
(D. Md. 2015) (citations omitted).
Public Official or Limited-Purpose Public Figure
sides have moved for summary judgment on the issue of whether
Eramo was a public official or a limited-purpose public
figure. If Eramo was a public official or limited-purpose
public figure at the time of publication, as part of her
defamation case, she must prove by clear and convincing
evidence that defendants acted with actual malice. New
York Times Co. v. Sullivan, 376 U.S. 254, 279-280
(1964); Gertz v. Robert Welch, 418 U.S. 323, 342
(1974). The issue of whether Eramo was a public official ...