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Ferm v. McCarty

United States District Court, D. Nevada

December 9, 2014

JACK FERM, Plaintiff,
v.
COLLEEN MCCARTY, an individual; STEVE KANIGHER, an individual; and KLAS, LLC, a Nevada limited liability company, Defendants

Jack Ferm, Plaintiff, Pro se, St. George, UT.

For Colleen McCarty, an individual and I-team Reporter, Steve Kanigher, an individual and I-Team Reporter, Klas, LLC, a nevada limited liability company, doing business as KLAS TV Channel 8 Las Vegas, Defendants: Todd E. Kennedy, LEAD ATTORNEY, Robert W. Hernquist, Lionel Sawyer & Collins, Las Vegas, NV.

ORDER

RICHARD F. BOULWARE, II, UNITED STATES DISTRICT JUDGE.

Defendants' Motion to Dismiss Plaintiff's Second Amended Complaint or, in the Alternative, Motion for Summary Judgment (ECF No. 132)

I. INTRODUCTION

Before the Court is a Motion to Dismiss or, in the alternative, a Motion for Summary Judgment filed by Defendants Colleen McCarty, Steve Kanigher, and KLAS, LLC (" Defendants") (ECF No. 132). The Court has reviewed the parties' papers and heard oral argument, and will treat the instant motion as a Motion to Dismiss. For the reasons discussed below, Defendants' motion is granted in part and denied in part.

II. BACKGROUND

Plaintiff Jack Ferm filed this Second Amended Complaint on February 22, 2013, in which he lists causes of action for defamation per se, defamation by libel, false light invasion of privacy, and intentional infliction of emotional distress or, in the alternative, negligent infliction of emotional distress. ECF No. 131. Ferm alleges that between March 10, 2009 and April 10, 2012, Defendants authored and published a series of false and unprivileged articles and reports about his prosecution by the office of the Attorney General of Nevada and subsequent plea agreement. Id. at 1-7. The Court will briefly summarize Ferm's allegations in chronological order.

Ferm alleges that on March 10, 2009, Defendant McCarty authored an article published on www.8newsnow.com, a website allegedly owned by Defendant KLAS, LLC with a substantial following and readership, in which she reported on Ferm's hearing before a Clark County District Court judge. Id. at 3. According to the Second Amended Complaint, McCarty reported that the judge ordered Ferm " to refund money to a client, and deferred the hearing due to issues Ferm was facing." Id. Ferm alleges that these statements are false and unprivileged. Id.

Next, Ferm alleges that on September 21, 2011, McCarty authored an article published on www.8newsnow.com in which she reported that Ferm had entered into a plea agreement with the Nevada Attorney General's office and that the plea agreement was not to be adjudicated. Id. at 2-3. Ferm alleges that this article is substantially true. Id. at 2.

On November 15 and 16, 2011, Ferm alleges that Defendant Kanigher authored an article published on www.8newsnow.com featuring Ferm's picture in which Kanigher stated that Ferm was convicted of a felony. Id. Ferm also alleges that Kanigher amended his article on April 5, 2012 to state that Ferm had been " convicted of a felony by a plea agreement" and that Ferm " plead no content [sic] to a felony and was now on probation." Id. at 3. Ferm alleges that these statements are false and unprivileged. Id. at 2-3. According to the Second Amended Complaint, Ferm has not been convicted of any crime and is not on probation. Id. at 3.

During the week of November 16, 2011, the Second Amended Complaint states that McCarty reported, both on television and in an article published on www.8newsnow.com, that Ferm had been convicted of mortgage fraud. Id. at 2. (Ferm states that this article was amended on May 10, 2012, but does not specify which statements in the article were changed.) Ferm states that McCarty stated on air that " [n]otable convictions include Jack Ferm" and that Ferm's picture was shown simultaneously. Id. Ferm alleges that this statement was false and unprivileged, as Ferm has not been convicted of any crime. Id. According to the Second Amended Complaint, McCarty's article also portrayed Ferm " as a scam, " a statement which is false and unprivileged. Id. at 3.

On May 10, 2012, Ferm filed a complaint against Defendants alleging defamation per se, slander, libel, false light, intentional infliction of emotional distress, negligent hiring, negligent supervision, and negligence. See Compl., ECF No. 1. This Court dismissed Ferm's complaint with leave to amend on February 20, 2013, see Order, ECF No. 130, and Ferm submitted his Second Amended Complaint on February 22, 2013. On March ...


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