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.
October 17, 2016 through October 28, 2016, a bifurcated jury
trial was conducted on plaintiffs claims of defamation and
defamation by implication. At the close of plaintiff s
evidence, defendants moved for judgment as a matter of law
pursuant to Federal Rule of Civil Procedure 50(a). The case
is currently before the court on defendants' motion as to
plaintiffs defamation by implication claim and plaintiffs
motion to clarify her claim. For the following reasons, the
court will grant defendants' motion.
50(a) of the Federal Rules of Civil Procedure permits a party
to submit a motion for judgment as a matter of law after the
opposing party has been fully heard. "Pursuant to Rule
50(a), the court will not submit an issue to the jury unless
sufficient evidence exists to justify, as a legal matter, a
finding in favor of the proponent. In other words, if the
judge concludes that the plaintiffs case is, as a matter of
law, so weak that no rational jury could find in favor of the
plaintiff, the judge has the authority to enter judgment in
favor of the defendant[s]." Belk, Inc. v. Meyer
Corp., U.S.. 679 F.3d 146, 160 (4th Cir. 2012).
facts of this case are outlined in detail in the court's
memorandum opinion granting in part and denying in part the
parties' cross motions for summary judgment. See
Eramo v. Rolling Stone. No. 3:15CV23, 2016 WL
5234688 (W.D. Va. Sept. 22, 2016). In her complaint,
plaintiff did not expressly include a count for defamation by
implication. Defendants, however, acknowledged that
plaintiffs "complaint already asserts claims under a
theory of defamation by implication." Email from Alison
Schary to Libby Locke (March 16, 2016 6:13 p.m.). At a
hearing held on October 11, 2016, defendants requested that
plaintiff specify the defamatory meaning she claimed
defendants implied. Hearing Tr. 42-43, Dkt. 263. Plaintiff
agreed to do so and, sometime thereafter, provided a
statement delineating the alleged defamatory implication.
Id. Plaintiff asserted "that the Rolling Stone
article 'A Rape on Campus, ' taken as a whole and
viewed in context with its headlines, illustrations, captions
and promotional material, implies and insinuates that Nicole
Eramo acted as a false friend to Jackie, pretending to be on
her side while at the same time discouraging Jackie from
pursuing a formal complaint or police investigation regarding
her rape allegations in order to suppress the assault and
protect the University's reputation." After resting
and prior to the defendants' presentation of evidence,
plaintiff moved to clarify her defamatory implication claim.
Virginia, a defamation by implication plaintiff must
demonstrate that "the statements were designed and
intended by the defendants to imply [the defamatory innuendo
of which the plaintiff complains.]" Pendleton v.
Newsome, 290 Va. 162, 175 (2015). When a plaintiff
alleges that she has been defamed by implication, "the
alleged implication must be reasonably drawn from the words
actually used." Webb v. Virginia-Pilot Media Cos.,
LLC, 287 Va. 84, 89 (2014) (citing Chapin v.
Knight-Ridder. Inc.. 993 F.2d 1087, 1092-93 (4th Cir.
1993)); see also Carwile v. Richmond. 196 Va. 1, 9
(1954) ("The meaning of the alleged defamatory language
cannot, by innuendo, be extended beyond its ordinary and
common acceptation. The province of the innuendo is to show
how the words used are defamatory, and how they relate to the
plaintiff, but it cannot introduce new matter, nor extend the
meaning of the words used, or make that certain which is in
for defamation are subject to notice pleading requirements
set forth in Federal Rule of Civil Procedure 8(a).
Nonetheless, a defamation plaintiff "ought to specify
the defamatory statements, even under the liberal federal
pleading regime." Johnson v. Lantz,
2:02CV00120, 2002 WL 1821610, at *1 (W.D. Va. Aug. 8, 2002).
For example, in Compel v. Citi Mortgage Inc.. the
district court dismissed a defamation claim when the
complaint failed "to identify which specific statements
plaintiff considered] defamatory or libelous."
1:04CV01377, 2005 WL 4904816, at *1 (E.D. Va. Feb. 23, 2005).
courts have consistently relied upon the innuendo alleged in
the plaintiffs complaint in determining whether a plaintiff
has sufficiently stated a claim. See e.g., Chapin v.
Greve, 787 F.Supp. 557, 564 (E.D. Va. 1992) ("The
dispositive question presented is whether or not a reasonable
factfinder could conclude that the article or statements in
the article state or imply, in their plain and natural sense,
the defamatory meanings ascribed to them by plaintiffs in
their complaint.") (citing Milkovich v. Loraine
Journal Co.. 497 U.S. 1, 20-21 (1990));
Pendleton. 290 Va. at 175 (concluding that the
statements at issue were "reasonably capable of
conveying the defamatory innuendo of which plaintiff
complains"): Webb. 287 Va. at 89 ("Thus,
the question for the circuit court when ruling on the
demurrer was whether, as a matter of law, the article is
reasonably capable of the defamatory meaning
["plaintiff] ascribed to it). For example, in
Pendleton v. Newsome. plaintiff alleged that
defendants "falsely implied, inferred, and/or
insinuated, through relevant facts, and use of innuendo, that
[a child's] death was caused by [her mother's]
alleged inactions." 290 Va. at 167. In its opinion
reversing and remanding, the Supreme Court of Virginia stated
that plaintiff would bear the burden of proving "that
the statements . . . were designed and intended ... to imply
that the plaintiff was responsible for her child's
death." Id. at 175.
the court believes that plaintiff met her federal notice
pleading requirement when plaintiff delivered to defendants
her statement of implication after the October 11, 2016
hearing. At that point in time, defendants had enough
information to "understand the defenses available to
[them] and how [they] should proceed." Compel
2005 WL 4904816, at *2. Moreover, only upon delineating the
defamatory implication could plaintiff attempt to prove that
the implication was a false factual assertion that defendants
"designed and intended, " as required by Virginia
law. See Pendleton. 290 Va. at 171-75. Thus, the
court concludes that it must use the defamatory meaning as
alleged by the plaintiff in evaluating whether the inference
could be "reasonably drawn from the words actually
used" and whether the defendants intended such an
implication. Webb, 287 Va. at 89.
resting her case, plaintiff now seeks to clarify or amend her
claim so as to allege a different implication. While leave to
amend a complaint is "freely given when justice so
requires, " the court should deny granting leave where
good reason exists, such as when the amendment would be
"prejudicial to the opposing party." Hoback v.
Doe, 7:14CV00711, 2015 WL 5553745, at *1 (W.D. Va. Sept.
18, 2015) (citing Fed.R.Civ.P. 15(a)). The federal rules
contemplate notice pleading so that the other party has the
opportunity to defend itself. See Everett v. Prison
Health Servs., 412 F.App'x 604, 606 (4th Cir. 2011).
Here, the court believes that allowing plaintiff to amend on
the eve of defendants' case would not provide defendants
with sufficient time to develop their defense, causing
prejudice. Therefore, the court will deny the
plaintiffs motion to clarify.
heard the evidence, the court believes that no reasonable
juror could find that "A Rape on Campus, " read as
a whole and in context of the contemporaneous promotional
material, reasonably implies that Eramo was a false friend to
Jackie who pretended to be on Jackie's side while seeking
to suppress sexual assault reporting. Similarly, based on the
evidence adduced, the court further believes that no
reasonable juror could find that plaintiff has established by
a preponderance of the evidence that defendants designed and
intended this defamatory implication. Therefore, the court
will grant defendants' motion for judgment as a matter of
law in relation to plaintiffs defamation by implication
allegations. In so holding, the court denies plaintiff's
motion for leave to clarify or amend her claim.
reasons stated, defendants' motion for judgment as a
matter of law as to plaintiffs defamation by implication
claim is granted and plaintiffs motion to clarify is denied.
The Clerk is directed to send certified copies of this