Case Document 5 Filed 06/08/17 Page 1 of 27 PagelD 32

RPkalc: 06:08!?

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THE MARSHALL COUNTY COAL
COMPANY, THE MARION COUNTY
COAL COMPANY, THE
MONONGALIA COUNTY COAL
COMPANY, THE HARRISON
COUNTY COAL COMPANY, THE
OHIO COUNTY COAL COMPANY,
and MURRAY ENERGY
CORPORATION,

Plaintiffs,
V.
THE NEW YORK TIMES COMPANY,

Defendant.

 

Case No. (Bailey) 

CIVIL ACTION NO.: 17-0-70
Judge Hummel
(Marshall County Circuit Court)

MEMORANDUM OF LAW IN SUPPORT OF
MOTION TO DISMISS COMPLAINT

NOW COMES Defendant The New York Times Company (hereinafter the ?The New

York Times?), by its undersigned counsel, pursuant to Federal Rule of Civil Procedure 

and requests that this Court dismiss Plaintiffs? Complaint. Plaintiffs have not adequately plead

falsity or actual malice, two essential elements of any plausible defamation claim. The

Complaint is also constitutionally de?cient because the challenged statements are not ?of and

concerning? any of the named Plaintiffs. In addition, the challenged statements in The New York

Times? Editorial at issue are both true and expressions of opinion and commentary on a

significant matter of public concern, not actionable under First Amendment precedent or

applicable West Virginia law.

The New York Times? Editorial, referenced in Plaintiffs? Complaint, is protected by the

First Amendment and black-letter law and should be dismissed, with prejudice.

Case Document 5 Filed 06/08/17 Page 2 of 27 PagelD 33

I. BACKGROUND

On April 24, 2017, The New York Times published an Editorial, by its Editorial Board,
opposing apparent in?uence-peddling titled ?Money Talked Loudest at Donald Trump?s
Inaugural? in its Opinion Pages (the The Editorial revealed large contributions to
President Trump?s Inauguration and the willingness of the President to do the bidding of the
donors who had demanded ?regulatory favors? in the ?rst months of his presidency. The
Editorial stated that ?Bob Murray?2 donated $3 00,000 toward the inaugural festivities and noted
signi?cantly larger contributiOns made by other individuals and companies in the coal, oil, gas,
chemical and pharmaceutical industries. The Editorial contained the following paragraph being
challenged by Plaintiffs:

?I?m not a. patient man,? warned Mr. Murray, who earned infamy when he
falsely insisted that the 2007 collapse of his Crandall Canyon mine, which
kitted six miners, was due to an earthquake, not dodgy mining practices. ?I?m
going to be watching that things happen as fast as they can. EXHIBIT A.

The statement that Bob Murray ?insisted? that the 2007 Crandall Canyon Mine collapse
that killed six miners (?The Crandall Canyon Mine Disaster?) was caused by an earthquake is
true and, indeed, Plaintiffs concede as much. See Complaint {it 7. It is also true that of?cial
proceedings and reports from those proceedings determined that an earthquake did not cause
The Crandall Canyon Mine Disaster, rendering Bob Murray?s statements to the contrary false.
This challenged statement regarding The Crandall Canyon Mine Disaster (the ?Crandall Canyon

Statement?), in addition to being true, refers only to Bob Murray, the individual, and is not ?of

and concerning? any of the Plaintiffs. See EXHIBIT A. Plaintiffs? Complaint cursorily avers

 

1 Plaintiffs? Complaint cites an internet address where the Editorial may be accessed but, for the
convenience of the Court, a copy of the Editorial is attached to this Motion as EXHIBIT A.
2 The Editorial also stated that Bob Murray ?demanded? that President Trump ?pull the United States out
of the Paris climate agreement in the first three months? of his term, but this particular accommodation
took more than four months. 

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that ?[b]ecause the public equates the mining business of each Plaintiff with Mr. Murray, the
New York Times? false statement that Mr. Murray lied about the cause of a deadly mine collapse
injured the reputation and business of each Plaintiff.? See Complaint 1117. The bare assertion that
?the public? believes Bob Murray to be synonymous with the corporate Plaintiffs, none of which
even existed at the time of the Crandall Canyon Mine Disaster,3 has no basis in law or fact and
cannot support any plausible claim. The absence of Bob Murray as an individual plaintiff renders
the Complaint constitutionally defective. Furthermore, the Crandall Canyon Statement, besides
being admittedly true, does not explicitly state or reasonably imply that Mr. Murray is a liar or
that Plaintiffs are liars.

Plaintiffs take issue with a second statement in the Editorial and attempt to state a claim
for defamation on the basis that they part of the group that constitutes Murray Energy,?
have been harmed by the true statement that ?Murray Energy is a serial Violator of federal health
and safety rules? (the ?Serial Violator Statement?). With respect to this challenged statement,
Plaintiffs again have not alleged falsity. Rather, they suggest that the accurate description of
Murray Energy as a ?serial violator? implies that their ?group? operates outside of industry
norms. See Compfaim By failing to allege that the challenged statements are actually false,
an essential element of any defamation claim, Plaintiffs have failed to state any plausible claim
for relief.

Plaintiffs and their owners are public ?gures, required to prove that the challenged
statements are false and that The New York Times acted with ?actual malice? in publishing the
Editorial. However, the Complaint does not sufficiently allege either element.

In publishing the Editorial, The New York Times and its Editorial Board were

commenting on a significant issue of public importance and concern and acted properly. All of

 

3 West Virginia Secretary of State 

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The New York Times? conduct is fully protected by well-settled legal principles under the First
Amendment to the United States Constitution, Article 111, Section 7 of the Constitution of the
State of West Virginia, and common law. For the reasons set forth herein and the compelling
constitutional interests at stake, the Complaint should be dismissed at the earliest opportunity,
with prejudice.

II. PROCEDURAL STATUS

This civil action, originally filed in the Circuit Court of Marshall County, West Virginia,
was timely removed to this Court in accordance with 28 U.S.C.S. ?144l(a) and ?1446. The
amount in controversy exceeds $75,000, exclusive of interest and costs, and diversity of
citizenship exists because Plaintiffs and Defendant are completely diverse.

LAW ARGUMENT

Plaintiffs have not sufficiently alleged that either of the statements they identify in their
Complaint is actually false. Likewise, the Complaint does not adequately allege that The New
York Times acted with actual malice, the requisite degree of fault applicable to a libel claim
asserted by public ?gures. Moreover, the Complaint is devoid of any allegation that the
challenged statement regarding The Crandall Canyon Mine Disaster was ?of and concerning?
Plaintiffs. Rather, the Editorial referred to ?Bob Murray,? the individual, and referenced his
individual financial contribution to the Inauguration. The requirement that a defamatory
statement must be ?of and concerning? the plaintiff in order to be actionable is rooted in
Constitutional law and has been recognized in every state, including West Virginia. The Editorial
is a privileged publication containing the perspective of The New York Times Editorial Board on
a matter of national importance and concern, not actionable libel. For all of these reasons,

Plaintiffs? Complaint fails to state a claim and should be dismissed.

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A. Standard of Review for a Motion to Dismiss a Defamation Complaint.

Both the United States Constitution and the West Virginia Constitution require a
heightened pleading standard in defamation cases ?led by public ?gures.4 Syl. pt. 3, Long v.
Egnor, 176 W. Va. 628, 346 8.13. 2d 778 (1936). In West Virginia, defamation actions are
subject to a stricter standard of review in the context of a motion to dismiss under Rule 12(b)(6)
due to the chilling effect that such claims have on First Amendment protections of free speech
and freedom of the press. S_ee at 632, 782. When considering a Motion to Dismiss a
defamation Complaint, the West Virginia Supreme Court has ruled:

The First Amendment to the United States Constitution and Article 111, Section
7 of the West Virginia Constitution require that trial courts apply a stricter
standard in appraising defamation actions filed by public of?cials or
public figures under a motion to dismiss filed pursuant to Rule 12(b)(6) of the
West Virginia Rules of Civil Procedure. Unless the complaint demonstrates on
its face suf?cient facts to support the elements of a defamation action, the
complaint should be dismissed under Rule at Syl. pt. 3 (emphasis
added).

This West Virginia standard is in line with the Federal Rules of Civil Procedure and
recent precedent which require a level of speci?city in pleadings. Plaintiffs are required to plead
facts suf?cient to allow a court to draw a reasonable inference that the defendant is liable for the
misconduct alleged. See Bell Atlantic Corporation v. Twomblv, 550 US. 544, 566, 127 
1955, 1971 (2007) (plainti? must allege Stt?icient facts to create a ?reasonable expectation?
that discovery would reveal evidence Stt?ietent t0 Simport the allegations of the complaint).
?Threadbare recitals of the elements of a cause of action supported by mere conclusory
statements? are not entitled to the ?assumption of truth.? ?e Ashcroft v. lgbal, 556 US. 662,

678-79, 129 S. Ct. 1937, 1949-50 (2009). A complaint must state a plausible claim for relief and

not just a possible claim. 1d, at 1949-50.

 

4 As set forth herein, Plaintiffs and their owner Bob Murray are public ?gures.

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When examining Plaintiffs? Complaint and their de?cient allegations regarding falsity
and actual malice within this framework, it is clear that Plaintiffs have not plead a cause of action
suf?cient ?to raise a right to relief above the speculative level . . and have failed to set forth

any plausible basis for an ?entitlement to relief.? Twombly, 550 U.S. at 555. See also SWVA

 

Inc. v. Lind, 2009 U.S. Dist. LEXIS 43099 (SD. W. Va. May 21, 2009).

B. Elements of a Claim for Defamation.

Although the West Virginia law of defamation governs this case, the First Amendment?s
press and speech clauses greatly restrict the common law where the defendant is a member of the
press, the plaintiff is a public ?gure, or the subject matter of the supposed libel touches on a
matter of public concern. New York Times Co. v. Sullivan, 376 U.S. 254, 84 S. Ct. 710
(1964). See also Chapin v. Knight-Ridden 'Inc., 993 F.2d 1087, 1092 (4th Cir. 1993). This case
meets all three of these special circumstances because Bob Murray and Plaintiffs are public
?gures and have been recognized as such in other judicial proceedings, The New York Times is
a member of the press and the Editorial touches on a matter of public concern. In the presence of
these factors, ?the constitutional protection of the press reaches its apogee.? gm, 993 F.2d at
1092. The Supreme Court of Appeals of West Virginia has agreed with this principle and has
noted that ?[t]he freedom of the press is one of the most hallowed protections contained in our
Constitution. It allows the press to act as the watchdog of our citizens and to report on, criticize,
and otherwise bring to public attention the actions and conduct of the government." Hinerman v.
Daily Gazette Co.. Inc, 188 W. Va. 157, 182, 423 560, 585 (1992) (Miller, J.,
dissenting). The Editorial, commenting on large private contributions to the inauguration of
President Trump was designed to accomplish exactly what the First Amendment protects.

Defamation is false written or oral statement that damages another?s reputation."

Black?s Law Dictionary (9th ed. 2009) (emphasis added). A statement is defamatory if it tends to

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"reflect shame, contumely, and disgrace" upon the plaintiff. Syl. pt. 1, Sprouse V. Clay
Communications, Inc, 158 W. Va. 427, 211 674 (1975). Whethera statement is capable
of a defamatory meaning is a question of law. Syl. pt. 6, Long v. Egnor, 176 W. .Va. 628, 346
778 (1986). To recover on a libel claim, a public figure plaintiff must prove:

(1) the publication of a defamatory statement of fact or a statement in the form

of an opinion that implies the allegation of undisclosed defamatory facts as the

basis for the opinion; (2) the stated or implied facts were false; and (3) the

person who uttered the defamatory statement either knew the statement was

false or knew that he was publishing the statement in reckless disregard of

whether the statement was false.
Syl. pt. 1, Hinerman V. Daily Gazette, 188 157, 423 560 (1992). The elements are
the same for a private individual except for the fault that must be proven on the part of the
publisher. Syl. pt. 1, Crumb v. Becklev Newspapers, 173 W. Va. 699, 320 70 (1983). ?In
order to sustain an action for libel, a public of?cial must present clear and convincing evidence
that the media defendant acted with actual malice. Actual malice must be proven with
convincing clarity.? Syl. pt. 4, Dixon v. Ogden Newspapers, Inc., 187 W. Va. 120, 416 
237 (1992). ?Public figures may not recover in a libel action absent clear and convincing proof
of actual malice or of reckless disregard of the truth on the part of the speaker or publisher of the
false statements.? Blue Ridge Bank v. Veribanc, Inc., 866 F.2d 681, 686 (4th Cir. 1989) (internal

citations omitted).

C. As a threshold issue, Plaintiffs have not alleged the publication of a false
statement of fact and, therefore, their Complaint fails to state a claim upon which relief
may be granted.

With respect to the statement that Mr. Murray ?falsely insisted? that The Crandall
Canyon Mine Disaster ?was due to an earthquake,? Plaintiffs have the burden of sufficiently
alleging falsity. Milkovich v. Lorain Journal 497 U.S. 1, 20 n.6, 110 S. Ct. 2695 (1990);

Phila. Newspapers, Inc. v. Hepps, 475 U.S. 767, 779 11.4, 106 S. Ct. 1558 (1986). A statement

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that is "substantially true" cannot be defamatory. Kilian v. Doubleday 367 Pa. 117, 79
A.2d 657, 660 (Pa. 1951) (emphasis added). ?The sine qua non of recovery for defamation . . . is
the existence of falsehood.? Nat'l Ass'n of Letter Carriers V. Austin, 418 US. 264, 283, 94 S. Ct.
2770 (1974). Plaintiffs have not alleged that the Crandall Canyon Statement is actually false. To
the contrary, Plaintiffs aver that The Crandall Canyon Mine Disaster was triggered by what is
?commonly understood as an earthquake.? Complaint but this does not plead falsity. In their
Complaint, Plaintiffs actually acknowledge the truth that ?an earthquake? did not cause The
Crandall Canyon Mine Disaster. In electing to describe the cause of The Crandall Canyon Mine
Disaster as ?what is commonly understood as an earthquake,? Plaintiffs tacitly admit the truth of
the challenged statement in the Editorial.

Plaintiffs do not plead ?an earthquake? as the cause, presumably because to do so would
be a lie. It is not false for The New York Times to say that Murray?s insistence that an
earthquake caused the collapse was itself false. Even when Plaintiffs? allegations are taken as
true, they do render the Crandall Canyon Statement false. As such, Plaintiffs have not stated a
claim for defamation. Plaintiffs have likewise failed to specifically allege that the Serial Violator
Statement is false. The characterization of Murray Energy as a serial violator of regulations is,
after all, demonstrably true. Plaintiffs? claims regarding the Serial Violator Statement hinge on
an unreasonable reading of the Editorial, which was based on a widely reported history of
violations by Murray Energy. See, egg Murray V. Chagrin Valley Publ. Co., 2014-Ohio-5442,
25 1111, 1117-18, 2014 Ohio App. LEXIS 5265, *9-12 (Ohio Ct. App,
Cuyahoga County Dec. 11, 2014) (recognizing the absence of actual malice in failure of
publisher to investigate a statement that Mr. Murray and his companies were known for

violating safety and environmental regulations based on ?the signi?cant history? of those

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violations). The implication that Plaintiffs suggest in their Complaint that the Editorial is meant
to compare Murray Energy unfavorably to other companies in the coal industry simply does
not follow.

A reasonable reader could not fairly interpret the Serial Violator Statement to imply that
Plaintiffs operate ?outside the norms of industry regulatory compliance.? Complaint In
determining whether a statement has a defamatory meaning, courts will consider the ?ordinary
meaning? of the words. Koolvent Aluminum Prods. V. Azrael, Gann Franz, No. 94-1906, 1995
US. App. LEXIS 8858, at *8 (4th Cir. 1995) (citing Batson V. Shi?ett, 325 Md. 684, 724 n.14,
602 A.2d 1191, 1211 (1992) (?The test is whether the words, taken in their common and
ordinary meaning, in the sense in which they are generally used, are capable of defamatory
construction. The dictionary de?nes ?serial? as ?repeatedly committing the same offense and
typically following a characteristic, predictable behavior pattern? and ?Violator? as ?a person
who breaks or fails to comply with a rule.? OxfordDictionariescom,
(last Visited June 8, 2017);
OxfordDictionariescom, (last Visited June
8, 2017). Therefore, given its ordinary meaning, the statement means that Murray Energy
repeatedly fails to comply with the rules in the coal mining industry.

The Editorial does not state that other coal companies are not serial Violators of health
and safety rules or that repeated Violations of those rules are unusual in the coal industry.
Plaintiffs do not contest the accuracy of the Serial Violator Statement itself and have not averred
that Murray Energy is not a ?serial Violator.? In doing so, Plaintiffs have utterly failed to allege
facts sufficient to state a defamation claim. The best Plaintiffs can do is to describe the Serial

Violator Statement as implying that ?Murray Energy was found guilty of a significant number of

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Violations or repeat violations outside the norms of industry regulatory compliance.? Compiaint
No such inference could be made by any reasonable reader and drawing such inferences
from the Editorial requires a leap wholly unsupported by the actual words used, which are not
alleged to be false.

D. Plaintiffs? are public figures for purposes of this action and, to succeed on
their defamation claim, must establish with convincing clarity that The New York Times
acted with ?actual malice? in publishing the Editorial in its Opinion Pages.

one claiming to be defamed by the communication must show actual malice or go
remediless. This privilege extends to a great variety of subjects, and includes matters of public
concern, public men, and candidates for of?ce.?' New York Times, 376 U.S. at 281~82, 84 
710 (1964), quoting Coleman V. MacLennan, 78 Kan. 711, 723, 98 P. 281 (1908). Plaintiffs?
allegations regarding the required element of ?actual malice? fall far short of stating a plausible
claim for relief.

1. Plaintiffs and their owner Bob Murray are public figures. ?Under West
Virginia law, a libel plaintiff 3 status sets the standard for assessing the defendant?s conduct.
Plaintiffs who are public of?cials or public figures must prove by clear and convincing evidence
that the defendants made their alleged defamatory statement with knowledge that it was false or
with reckless disregard of whether it was false or not.? Syl. pt. 2, in part, State ex rel. Suriano v.
Gaughan, 198 W. Va. 339, 480 548 (1996). In determining public ?gure status, the
inquiry ?focuses on the person to whom the publicity relates and asks whether the individual
either by assuming a role of special prominence in the affairs of society or by thrusting himself
to the forefront of a particular public controversy . . . has become a public ?gure.? Crump V.

Becklev Newspapers, 173 W. Va. 699, 712, 320 70, 83 (1983) (quoting Campbell v.

 

Seabury Press, 614 F.2d 395, 397 (5th Cir. 1930)).

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The Crandall Canyon Statement is unquestionably regarding Bob Murray, an individual
who frequently thrusts himself into the midst of public debate in politics, environmental matters
and on issues important to the coal mining industry and, in doing so, has achieved pervasive
fame and notoriety in this community. By utilizing his wealth and in?uence in this manner, Bob
Murray is properly characterized as a public figure for all purposes and in all contexts. @233;
v. Welch, 418 U.S. 323, 351, 94 S. Ct. 2997, 3013 (1974) (?In some instances an individual may
achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in
all contexts?). Mr. Murray has been a vociferous voluntary participant in public debates
regarding the coal industry, political causes and other newsworthy events. He has made
numerous television and radio appearances, has testi?ed before congressional committees and
has thrust himself into the midst of political discourse. See, e. List of Press Releases and
television Appearances by Bob Murray Hatfill v.
NY. Times Co., 532 F.3d 312 (4th Cir. 2008) (Scientist was considered a public figure because
he was a ?'equent instructor of government agencies, had frequent meetings with journalists,
appeared on television, on radio, and in print, and was able to convene press conferences);
Fitzgerald v. Penthouse Int'l, 691 F.2d 666, 669 (4th Cir. 1982) (Plaintiff was a public figure
because he lectured publicly, published several articles and reports, published brochures,
appeared on a segment of "60 Minutes? program and was interviewed for an investigative
article); accord Hutchinson v. Proxmire, 443 US. 111, 99 S. Ct. 2675 (1979) (li?laintijjr was not a
public figure because he did not have access to the media, did not thrust himself or his views into
public controversy to in?uence others, and never assumed role of public prominence). Mr.
Murray utilizes the resources of his companies, including Plaintiffs, to facilitate his political

goals and to draw attention to himself and his viewpoints. To the extent Plaintiffs are attempting

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to state a defamation claim based on statements ?of and concerning? Mr. Murray, they should be
held to the same ?public ?gure? standard.

No West Virginia case provides a speci?c framework for de?ning a corporation as a
public ?gure. However, other jurisdictions have considered the issue and have formulated
standards that take into account, on a case-by-case basis, ?the notoriety of the corporation to the
average individual in the relevant geographical area,? ?the nature of the corporation?s business,?
and ?the frequency and intensity of media scrutiny that a corporation normally receives.? Snead
v. Redland Aggregates Ltd., 998 F.2d 1325, 1329 (5th Cir. 1993). Equally important is whether
the corporation has ?greater access to the channels of effective communication than ordinary
private citizens for purposes of counteracting statements it perceives as false.? gem, 418 US.
at 344, 94 at 3009. This test has been utilized by various courts in determining the correct
standard to apply to a corporate litigant. Huntington Trust v. Chubet, 1998 Ohio App.
LEXIS 5420 (1998), American Future Systems, Inc. v. Better Business Bureau of Eastern
592 Pa. 66, 923 A.2d 389 (2007); see also National Foundation for Cancer
Research, Inc. v. Council of Better Business Bureaus, Inc., 705 F.2d 98 (4th Cir. 1983).

In their Complaint, Plaintiffs have made a judicial admission that they are ?part of the
group that constitutes Murray Energy.? See Complaint 1[20. Consistent with this admission, Bob
Murray and his companies have previously been deemed public figures for purposes of other
defamation lawsuits they have ?led. Murray v. Chagrin Valley Publ. Co., 2014-Ohio~5442, P10,
25 1111, 1117, 2014 Ohio App. LEXIS 5265, 43 Media L. Rep. 1222 (Ohio Ct. App.,
Cuyahoga County Dec. 11, 2014) (?There is no real dispute that Murray and his companies,
through his actions and the events that attained national prominence, are public ?gures

subject to comment and discussion. (emphasis added). Plaintiffs in this case should be

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deemed public ?gures required to establish actual malice to recover. 'Harte-Hanks
Communications. Inc. V. Connaughton, 491 US. 657, 688 (1989).

2. Plaintiffs, as public figures, have not sufficiently alleged that Defendant acted
with ?actual malice? to state a plausible claim for relief.

To adequately plead actual malice, Plaintiffs are required to allege facts suf?cient to give
rise to a reasonable inference that the false statement was made ?with knowledge that it was false
or with reckless disregard of whether it was false or not.? SLllimn, 376 US. at 280. The standard
for showing ?actual malice? is not an objective one and the beliefs or actions of a
reasonable person are irrelevant. St. Amant V. Thompson, 390 US. 727, 731, 88 S. Ct. 1323
(1968). The inquiry, instead, is whether The New York Times, acting in bad faith, actually
entertained serious doubts as to the truth of what they published in the Editorial, or had a high
degree of awareness that the challenged statement was probably false. 1d,; Silvester V. Am.

Broad. Cos., 839 F.2d 1491, 1493 (11th Cir. 1988) (citing Garrison v. Louisiana, 379 U..S 64,

 

74, 85 S. Ct. 209 (1964)); Sweeney V. Prisoners' Legal Servs. of New York, Inc., 84 786,
647 101, 104, 622 896 (NY. 1995); Hoesten v. Best, 34 143, 821
40, 49 (NY. App. Div. 2006).

In this case, Plaintiffs allege only that The New York Times did not seek input from ?Mr.
Murray or anyone in the Murray Energy organization? before publishing the Editorial.
Complaint 1120. A failure to seek input from the subject of an article or a failure to investigate,
standing alone, does not give rise to a conclusion that The New York Times acted with actual
malice. Harte?Hanks Communications, Inc. V. Connaughton, 491 US. 657, 692, 109 S. Ct. 2678
(1989); Reuber V. Food Chemical News, Inc., 925 F.2d 703 (4th Cir. 1991) (en bane); Church of
Scientology Int'l v. Daniels, 992 .2d 1329, 1334~35 (4th Cir. Va. May 4, 1993) (a?rming

summary judgment for commenter who made negative assertions about the Church of

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Scientology without investigation ?given the volume of published commentary on the Church. . .
depicting some of the organization?s leaders as unscrupulous or criminal, characterizing the
entity as a cult or a money making enterprise, portraying its endeavor to style itself as a religion
as misleading and opportunistic?). Actual malice requires more than a departure from
reasonable journalistic standards. Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230, 1239 (11th
Cir. 1999).

To show actual malice, Plaintiffs must plead facts suf?cient to support a plausible claim
that, in publishing the Editorial, The New York Times? Editorial Board affirmatively and
intentionally sought to avoid the truth. The threadbare assertion in the Complaint that Defendant
published the Editorial and statements about ?the Murray Energy organization, knowing them to
be false or in reckless disregard of their falsity? falls far short of stating a viable claim. See
Complaint 114. Likewise the allegation that ?Defendant did not make a single call to Mr. Murray
or anyone in the Murray Energy organization to fact check any of the false statements in [the
Editorial]? is insuf?cient, as a matter of law, to establish actual malice. Indeed, even if the
statements in the Editorial itself are objectively false, Plaintiffs? Complaint is wholly insuf?cient
to plausibly claim that The New York Times knew the challenged statement was false or acted
with reckless disregard of falsity.

As with other states of intent, ?actual malice? is subject to the plausibility pleading
standard. m, 556 U.S. at 686-87; Michel v. NYP Holdings, Inc., 816 F.3d (11th
Cir. 2016) and Twomhly cases holding that failure of public figure plaintiff to
adequately plead ?actual malice? should not result in dismissal without ?rst conducting
discovery are ?completely out of line with the current state of the law (emphasis added). A

defamation complaint may be dismissed for failure to state a claim ?Where the plaintiff has not

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pled facts sufficient to give rise to a reasonable inference of actual malice.? Michel, 816 F.3d at
702. (citing Mayfleld v. Nat'l Ass'n for Stock Car Auto Racing, Inc., 674 .3d 369,- 377 (4th Cir.
2012); Biro v. Cond? Nast, 807 F.3d 541, 544-45 (2d Cir. 2015); McDonald v. Wise, 769 F.3d
1202, 1220 (10th Cir. 2014); Pinnen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.
2013)). In Michel, the Court explained the importance of pleading a plausible claim for relief in
the context of a public ?gure defamation suit:

[A]pplication of the plausibility pleading standard makes particular sense when
examining public figure defamation suits. In these cases, there is a powerful
interest in ensuring that free speech is not unduly burdened by the necessity of
defending against expensive yet groundless litigation. Indeed, the actual malice
standard was designed to allow publishers the "breathing space" needed to ensure
robust reporting on public ?gures and events. . . . Forcing publishers to defend
inappropriate suits through expensive discovery proceedings in all cases would
constrict that breathing space in exactly the manner the actual malice standard was
intended to prevent. The costs and efforts required to defend a lawsuit through that
stage of litigation could chill free speech nearly as effectively as the absence of the
actual malice standard altogether. Thus, a public figure bringing a defamation suit
must plausibly plead actual malice in accordance with the requirements set forth in
Iqbal and Id. (internal citations omitted).

 

The totality of the publication and the context of the Editorial provides the public with
enough information to know that the Editorial contains opinions and the reader may weigh the
veracity of the statements for themselves. The Editorial presents the perspectives of the Editorial
Board and any reasonable reader would comprehend that The New York Times is taking a
position on a matter of public concern. The context and content of the Editorial itself tends to
rebut, not support, an inference of actual malice.

E. The Complaint is constitutionally deficient and should be dismissed because the
challenged statements are not ?of and concerning? any of the Plaintiffs.

Plaintiffs cannot state a viable claim for relief because the statement within the Editorial
regarding The Crandall Canyon Mine Disaster refers to a speci?c person?Bob Murray.

According to Plaintiffs, the allegedly libelous publication states that ?Mr. Murray lied about the

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cause of a collapse at a mine that tragically killed six people.? See Complaint (emphasis
added). However Plaintiffs wish to characterize the statement that ?Mr. Murray . . . falsely
insisted that the 2007 collapse of his Crandall Canyon mine, which killed six miners, was due to
an earthquake,? no reasonable reader of the Editorial would attribute this statement to Plaintiffs.
defamatory communication is made concerning the person to whom its recipient correctly, or
mistakenly but reasonably, understands that it was intended to refer.? Restatement (Second) of
Torts ?564 (Am. Law Inst. 1979).

The absence of Bob Murray as a Plaintiff is fatal to the Complaint because Plaintiffs have
not identi?ed any false and defamatory statements regarding them. Kirch v. Liberty Media
C_orp._, 449 F.3d 388, 399-400 (2d Cir. 2006) 'ofand concerning' requirement stands as a.
significant limitation on the universe of those who may seek a legal remedy for communications
they think to befalse and defamatory and to have injured 

For an alleged defamatory statement to be actionable, it must be ?of and concerning" the
plaintiff it must refer to the plaintiff). Rosenblatt V. BaerCt. 669
(1966); New York Times Co. v. Sullivan, 376 US. 254, 288-91, 84 S. Ct. 710, 730-32 (1964).
The requirement that the challenged statement actually refer to the plaintiff derives
directly from the First Amendment. I_d. 1f the challenged statement itself does not refer to the
plaintiff, it is not actionable. E, ?It is essential in making out a prima facie case in libel to prove
that the matter is published of and concerning the plaintiff.? Kirch V. Liberty Media Corp., 449
F.3d 388, 398 (2d Cir. 2006) (quoting Julian V. Am. Bus. Consultants, Inc(1956)). ?In determining whether a statement made was ?of and
concerning' a plaintiff, the court must consider whether those who know the plaintiff, upon

reading the statements, would understand that the plaintiff was the target of the allegedly libelous

{002325504} 16

Case Document 5 Filed 06/08/17 Page 17 of 27 PageID 48

statement.? Trudeau v. NY. State Consumer Protection Bd., No. 2006 U.S. Dist.
LEXIS 26308, 2006 WL 1229018, at *9 (W.D.N.Y. May 4, 2006) (citations and internal
quotation urarks omitted); K_ir_gh, 449 F.3d at 399 (standard met if ?statement, though
not naming the plaintiff could have been understood by a reasonable reader as being, in
substance, actually about him or her?).

The Editorial?s statement about The Crandall Canyon Mine Disaster does not refer to any
of the Plaintiffs and could not be understood by a reasonable reader to be ?of and concerning?
them. Indeed, Plaintiffs? characterization of the challenged statement as branding Bob Murray a
liar is inherently personal to him and, as such, Plaintiffs? Complaint is constitutionally defective.
Aside from the cursory averment that ?the public equates the mining business of each Plaintiff
with Mr. Murray,? (Complaint 1117) Plaintiffs have failed to suf?ciently plead a nexus between
them and the challenged statements or to articulate why, for example, a reference to Bob Murray
would make a reasonable reader think of ?The Marion County Coal Company.?

In pleading their claims for relief, Plaintiffs would have this Court disregard their
existence as corporate entities, separate from their owner Bob Murray. Complaint 1116. ?The law
presumes . . . that corporations are separate from their shareholders.? Syl. pt. 4, Trucking,
Inc. V. Maynard, 221 W. Va. 447, 655 193 (2007), Syl. pt. 3 (in part), Southern Electric
Supply Co. V. Raleigh County National Bank, 173 W. Va. 780, 320 515 (1984), Syl. pt. 1,
Lava V. Erin Homes, Inc., 177 W. Va. 343, 352 93 (1986). As stated by the Supreme
Court of the United States, basic tenet of American corporate law is that the corporation and
its shareholders are distinct entities. See First Nat. City Bank v. Banco Para e1 Comercio
Exterior de Cuba, 462 U.S. 611, 103 2591 (1983), rev?d on other grounds, .658 F.2d 913

(2d Cir. 1981) (?Separate legal personality has been described as an almost indispensable

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Case Document 5 Filed 06/08/17 Page 18 of 27 PageID 49

aspect oftne public corporation?); Burnet v. Clark, 287 US. 410, 415, 53 207 (1932) 
corporation and its stockholders are generally to be treated as separate entities?); Dole Food

Co., et a1 V. Patrickson, 538 US. 468, 474, 123 1655 (2003).

 

If a corporation is created as a means of accomplishing a shareholder?s business
purposes, the existence of the corporation may not be ignored to avoid its disadvantages.
Commissioner of Internal Revenue V. Schaefer, 240 F.2d 381 (2d Cir. 1957); Schenlev Distillers
Corp. V. United States, 326 US. 432, 66 247 (1946); Terry V. Yancy, 344 F.2d 789 (4th
Cir. 1965). Where the company holds a right of action in tort, this right does not extend to the
company's owners, just as a cause of action that belongs to an owner individually would not
extend to the company. Mona V. Mona Elec. Group, Inc., 176 Md. App. 672, 698, 934 A.2d
450 (2007) (?[0jrdinarily, a shareholder does not have standing to sue to redress injury to a
corporation. (Citation omitted); Superior Outdoor Signs, Inc. v. Eller Media Co., 150 Md.
App. 479, 500, 822 A.2d 478 (2003). The defamation of a company does not create a cause of
action for its shareholders or owners and Vice versa. See Nat'l Shutter Bar Co. V. G.F.S.

Zimmerman Co., 110 Md. 313, 318, 73 A. 19 (1909) (stating that publication must refer to the

 

person being defamed), overruled on other grounds by Cranson V. Int'l Bus. Maehs. Corp., 234
Md. 477, 200 A.2d 33 (1964).

If this Court chooses to View the defamation claim of the corporate Plaintiffs and their
owner as interchangeable, the constitutionally mandated ?of and concerning? test, and long-
standing principles of corporate law, would be rendered meaningless. If Mr. Murray wants to try
to state a claim for defamation, he will have to step out from behind the Plaintiff corporate
entities? curtain, prove that his statements about The Crandall Canyon Mine Disaster being

caused by an earthquake were true and that he has suffered personal ?nancial harm as a result.

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Case Document 5 Filed 06/08/17 Page 19 of 27 PageID 50

Although the Serial Violator Statement in the Editorial is repeated in Plaintiffs?
Complaint, there is no allegation that this statement is false. Complaint 1119. In addition to being
accurate and not otherwise actionable, the Serial Violator Statement is not ?of and concerning?
any of the other Plaintiffs. Accordingly, any defamation claim based on the Serial Violator
Statement must also fail as a matter of law. Syl. pt. 1, Hinerman V. Daily Gazette, 188 
157, 423 SE. 2d 560 (1992); Kirch v. Liberty Media Corn, 449 F.3d 388, 398 (2d Cir. 2006).

F. Plaintiffs? claims also fail because the challenged statements are expressions
of opinion and not otherwise actionable.

The First Amendment protections that apply in defamation claims are rooted in the
?profound national commitment to the principle that debate on public issues should be
uninhibited, robust, and wide-open.? New York Times V. Sullivan, 376 US. 254, 270, 84 S. Ct.
710 (1964). Consistent with this principle, the United States Supreme Court has long recognized
that a defamation claim may not be actionable when the alleged defamatory statement is based
on non~literal assertions of "fact.? See, Old Dominion Branch No. 496 V. Austin, 418 US.
264, 284, 94 S. Ct. 2770?86 (1974) (publication of pejorative de?nition of scab was not
actionable in that use of words like ?traitor? could not be construed as representations offact).
statement of opinion which does not contain a provably false assertion of fact is entitled to
full constitutional protection.? Maynard V. Daily Gazette Co., 191 W. Va. 601, 447 293,
299 (1994).

Although West Virginia law applies to this case, this Court should look to federal law,
because the requirement that an alleged defamatory statement be of fact, rather than opinion,
?ows from the First Amendment. See Milkovich v. Lorain J. 497 US. 1, 110 S. Ct. 2695
(1990). A defamation action cannot lie where the challenged statements are statements of

opinion, which are not capable of being proven either true or false. See Gertz v. Robert Welch,

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Case Document 5 Filed 06/08/17 Page 20 of 27 PageID 51

m, 418 U.S. 323, 339-40, 94 S. Ct. 2997 (1974); see also Biospherics, inc. V. Forbes, 151 F.3d
180, 184 (4th Cir. 1998) (courts must examine ?the [challenged] statement's language and
context to determine if it couid be interpreted as asserting a fact. Whether a statement is one
of actionable fact is a question of law. Biospherics, 151 F.3d at 184-86; Syl. pt. 7 (in part), 14mg
v. Egnor, 176 W. Va. 628, 346 778 (1986).

court must decide initially whether as a matter of law the challenged statements in a
defamation action are capable of a defamatory meaning.? Syl. pt. 6, Long V. Egnor, 176 W. Va.
628, 346 778 (1986). In making this assessment, the tribunal must also consider whether
the allegedly defamatory statements could be construed as statements of opinion. The law of
libel ?overlooks minor inaccuracies and concentrates upon substantial truth. Minor inaccuracies
do not amount to falsity so long as the substance, the gist, the sting, of the libelous charge is
justi?ed. A statement is not considered false unless it would have a different effect on the mind
of the reader from that which the pleaded truth would have produced.? Syl. pt. 4, SER Suriano v.
Gaughan, 198 W. Va. 339, 480 548 (1996). I

Plaintiffs contend that the Editorial is libelous because it ?falsely stated to the world that
Mr. Murray lied about the cause of a collapse at a mine that tragically killed six people.?
Complaint 1B. However, if this statement "cannot reasonably be interpreted as stating actual
facts about an individua it cannot be the subject of a defamation suit. Milkoyich v. Lorain
Journal 497 U.S. 1, 20, 110 S. Ct. 2695, 2706 (1990) (internal quotation marks and
citations omitted). Although there is no explicit wholesale ?exemption [from liability] for
anything that might be labeled 'opinion,"' a statement must state or imply a defamatory fact to be
actionable. Li, at 18, 2705. The challenged statements in this case appear in an ?Editorial?

authored by ?the Editorial Board? in ?The Opinion Pages? of The New York Times. See

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Case Document 5 Filed 06/08/17 Page 21 of 27 PageID 52

EXHIBIT A. ?Editorials are, by de?nition, articles that express Views and opinion and are

commonly understood to be so." Wampler V. Higgins, 2000 Ohio App. LEXIS 2547, *22-24,

 

2000 WL 730218 (Ohio Ct. App., Pickaway County May 31, 2000) (additional internal citations

omitted) (citing Condit v. Clermont County Review (1996), 110 Ohio App. 3d 755, 675 

 

475 (1996), discretionary appeal disallowed, 77 Ohio St. 3d 1469, 673 135 (1996)).
West Virginia has recognized that a quali?ed privilege exists with respect to publications

like the Editorial which constitute ?fair cemment on matters of public concern." Crump, 320
at 79 (internal citations omitted). In the instant case, in order to defeat the quali?ed
privilege associated with The New York Times? publication of the Editorial, Plaintiffs must
show actual malice or that The New York Times published the Editorial for a purpose ?unrelated
to the purpose of the privilege." Id. at 78 (internal citations omitted). Once again, Plaintiffs have
alleged no facts that would give rise to any plausible claim that the Editorial was published with
?actual malice? or for an improper purpose. The New York Times regularly publishes
commentary on matters of public concern as part of its function as a press organization and its
statements within the Editorial are not actionable. In Murray V. Chagrin Valley Publishing
Company, an Ohio Court of Appeals found that the following published statements about Bob
Murray were privileged and not actionable as libel:

Kelly Allreci, 58, Luis Harnandez, 23, Brandon Phillips, 24, Carlos Payan, 22,

Manuel Sanchez, and Don Erickson, 50, were not among the 158

employees fired by Morelanal Hills resident Robert E. Murray in the wake of

President Barack Obama?s tie-election. No, those six miners perished after

being trapped on Aug. 6, 2007, by a collapse at Mr. Murray?s Crandall

Canyon Mine in northwest Utah. Their deaths were followed 10 clays later by

those of three rescue workers, Dale Black, 49, Brandon Kimber, 29, and Gary

Jensen, 53, who were attempting to reach them.

When coal miners' lives are so meaningless to those who reap millions from

sending them into hazardous working situations in Utah, why would anyone
expect their livelihoods to be any more meaningful in Eastern Ohio?

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Case Document 5 Filed 06/08/17 Page 22 of 27 PageID 53

It comes as no surprise that Mr. Murray is so disdainful toward regulations.
Following the Crandall Canyon calamity, the mine operator, Genwal
Resources Inc, a Murray Energy subsidiary, was fined $1.64 million, the US.
government's highest penalty, for violations that were determined to have
directly contributed to those nine deaths.

9: 9:

Five months before the Crandall Canyon deaths, a partial collapse that should
have given ample warning of the impending tragedy was never officially
reported to the Mine Safety and Health Administration, as required by law.
Mr. Murray later claimed that he had no knowledge of that March 2007
prelude, but subsequent investigation showed that to be absolutely false.

Patriots for Change members want the public to know who the real liar is and
who the coal miners' true enemy is. Government regulation is not the
problem. The problem is a lack of full accountability for those who defy
regulations.

2014-Ohio-5442, ?ll9, 25 1111, 1118?19 (Ohio Ct. App, Cuyahoga County Dec. 11,
2014) (emphasis added). In granting summary judgment in favor of the publisher, the Court of
Appeals of Ohio reasoned,

he statement calling Murray a liar, along with statements commenting
on the value Murray places on the lives and well-being of his employees,
are opinions. Examining the totality of the circumstances, the statements
appear as a commentary in a ?letters to the editor? section of a newspaper. This
signals to readers that what follows is generally the opinion of the author. The
language used also makes clear that the statements are regarding a debate
raging between two sides. Further, these statements are not readily veri?able.
This can be seen most clearly when examining the statement indicating Murray
?red miners the day after the presidential election for political retribution. . . .
. Murray may possess ulterior motives for terminating employees the day after
the presidential election, but only Murray would truly be privy to that
information.?

Li, at 1127, 1121 (emphasis added). As with the portion of the Editorial referring to Bob Murray
?falsely insisting,? only Bob Murray can know if he, in fact, lied or is a liar, and the challenged

statement is not provably false. Protection for the type of speech embodied in the Editorial

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Case Document 5 Filed 06/08/17 Page 23 of 27 PageID 54

"provides assurance that public debate will not suffer for lack of imaginative expression 
has traditionally added much to the discourse of our Nation." Milkovich, 497 U.S. at 20 (internal
quotation marks omitted). This Court should View the whole of the circumstances in which the
statements challenged by Plaintiffs were made. Biospherics, Inc. V. Forbes, Inc., 151 F.3d 180,
184 (4th Cir. 1998). In doing so, the Court is to determine whether the language used is "loose,
?gurative, or hyperbolic language," as well as the "general tenor of the article." Li (QUOting
Milkovich, 497 U.S. at 21). Whether the statement in the Editorial is actionable depends on
whether a ?reasonable reader? would construe it as seriously asserting that Bob Murray (not a
Plaintiff) is a liar. Milkovich, 497 U.S. at 21. See also Murray V. Huf?ngtonpostcom, lnc., 21 F.
Supp. 3d 879, 888, 2014 U.S. Dist. LEXIS 64944, *24-25, 42 Media L. Rep. 2161 (SD. Ohio
May 12, 2014) (granting dismissal ofdefamation/false light complaint ?led by Mr. Murray and
Murray Energy Corporation over article titled ?Meet the Extremist Coal Baron Ban/trolling
Ken Cucinelli?s Campaign because, given the ?totality of circumstances? surrounding the
publication, statements were not actionable and Plainti?s? failed to ?present plausible claims 
Like the statements in Chagrin Valley Times and Huf?ngtonpostcom, lnc., the
statements in the Editorial regarding Mr. Murray, in addition to being true, are either opinion or
hyperbole. The Crandall Canyon Statement is an expression of opposition or opinion which is
the point and purpose of an editorial. A reasonable reader would recognize the reference to
?falsely insisting? as an "expression of outrage? or rhetorical hyperbole. See Horsley V. Rivera,
292 F.3d 695, 701-02 (11th Cir. 2002) (reference to plaintiff as an ?accomplice to homicide was
not a literal assertion that the plaintijj? committed a crime). See also Flowers V. Carville, 310
F.3d 1118, 1127 (9th Cir. 2002). The literal language of the Editorial likewise does not support

Plaintiffs? claim because the ?falsely insisted? reference does not suggest that Bob Murray

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Case Document 5 Filed 06/08/17 Page 24 of 27 PageID 55

deliberately lied. As with statements on many issues of public concern, a false statement uttered
in ignorance is not the same as a lie. The statements in the Editorial of which Plaintiffs complain
are made in the context of an expression of concerns raised by the Editorial Board about the
acceptance of large inaugural contributions by corporations and individuals seeking to further
their agendas with the assistance of the executive branch. The challenged statement ?belongs to
the language of controversy rather than to the language of defamation. Dilworth v. Dudley, 75
F.3d 307, 310 (7th Cir. 1996).

IV. CONCLUSION

Plaintiffs? Complaint, on its face, is legally insufficient. In particular, Plaintiffs cannot
recover for defamation because they have not properly or suf?ciently alleged falsity of the
challenged statements, a publication ?of and concerning? any of the Plaintiffs or a plausible
allegation that The New York Times acted with ?actual malice.? When The New YOrk Times?
Editorial is examined in its entirety and in context, it is not capable of a defamatory meaning. For
the reasons set forth herein, this Court should dismiss Plaintiffs? Complaint, with prejudice,
pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.

WHEREFORE, Defendant The New York Times Company respectfully requests that this
Court dismiss the Complaint of the Plaintiffs The Marshall County Coal Company, The Marion
County Coal Company, The Monongalia County Coal Company, The Harrison County Coal
Company, The Ohio County Coal Company and Murray Energy Corporation with prejudice and

for such other relief as this Court deems proper.

{002325504} 24

Case Document 5 Filed 06/08/17 Page 25 of 27 PageID 56

{002325504}

25

Respectfully Submitted,

THE NEW YORK TIMES COMPANY,
Defendant

 

 

State Bar I. . #1212

Clayton J. itzsimmons

State Bar ID. #10823

Counsel for the Defendant
FITZSIMMONS LAW FIRM PLLC

1609 Warwood Avenue

Wheeling, WV 26003

Phone: (304) 277?1700

Fax: (304)277-1705

E-mail: 
Email: 
Counsel for The New ark Times Company

Holly S. Planinsic

State Bar ID. #6551

Counsel for Defendant

HERNDON, MORTON, HERNDON YAEGER
83 Edgington Lane

Wheeling, West V11 g1n1a 26003

Phone: (304) 242? 2300

Fax: (304) 243-0890

E-mail: hplaninsic@hmhy.corn

Counsel for Defendant, The New York
Times Company

Case Document 5 Filed 06/08/17 Page 26 of 27 PageID 57

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF WEST VIRGINIA

THE MARSHALL COUNTY COAL
COMPANY, THE MARION COUNTY
COAL COMPANY, THE
MONONGALIA COUNTY COAL
COMPANY, THE HARRISON
COUNTY COAL COMPANY, THE
OHIO COUNTY COAL COMPANY,
and MURRAY ENERGY
CORPORATION,

Plaintiffs,

V.

THE NEW YORK TIMES COMPANY,

Defendant.

 

Case NO. (Bailey)

CIVIL ACTION 
Judge Hummel
(Malshall County C11cu1t Court)

CERTIFICATE OF SERVICE

I hereby certify that on June 8, 2017, a true copy of the foregoing Memorandum of Law

in Support of Motion to Dismiss Complaint was electronically ?led with the Clerk of this Court

using system, who shall provide electronic notice of such ?ling to the following

counsel:

Jeffrey A. Grove Esq.
David L. Delk Esq.

Grove, Delk, PLLC
44 1/2 15th Street
Wheeling, WV 26003
Counselfor Plainti?"

{002325504}

26

Case Document 5 Filed 06/08/17 Page 27 of 27 PageID 58

{002325504}

27

Respectfully Submitted,

THE NEW YORK TIMES COMPANY,
Defendant,

?ee/W

Robert P. Fitzsimm Esq.

State Bar 1. . #1212

Clayton J. Fitzsimmons

State Bar ID. #10823

Counsel for the Defendant
FITZSIMMONS LAW FIRM PLLC

1609 Warwood Avenue

Wheeling, WV 26003

Phone: (304) 277-1700

Fax: (304)277-1705

E-mail: 
Ezmail: 
Counsel for The New York Times Company

Holly S. Planinsic

State Bar ID. #6551

Counsel for Defendant

HERNDON, MORTON, HERNDON YAEGER
83 Edgington Lane

Wheeling, West Virginia 26003

Phone: (304) 242?2300

Fax: (304) 243-0890

E-mail: hplaninsic@hmhy.oom

Counsel for Defendant, he New York
Times Company