Case: 2:20-cv-00023-WOB-CJS Doc #: 27 Filed: 10/01/20 Page: 1 of 6 - Page ID#: 222

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
NORTHERN DIVISION
CIVIL ACTION NO. 2:20CV23 (WOB)
NICHOLAS SANDMANN
VS.

PLAINTIFF
MEMORANDUM OPINION AND ORDER

THE NEW YORK TIMES CO.

DEFENDANT

This matter is before the Court on defendant’s motion to
dismiss for failure to state a claim on which relief may be
granted.

(Doc. 18).

The Court has reviewed this matter and

concludes that oral argument is unnecessary.
Introduction
The Complaint is based on the defendant’s news coverage of an
event

that

occurred

on

January

18,

2019,

during

a

visit

by

plaintiff Nicholas Sandmann and his fellow Covington Catholic High
School students to Washington, D.C.
Greatly summarized, the Complaint alleges that Sandmann was
libeled by the defendant when it published a news article stating
that Sandmann, while at the Lincoln Memorial, “blocked” NativeAmerican activist Nathan Phillips and “prevented Phillips’ retreat
while Nicholas and a mass of other young white boys surrounded,
taunted, jeered and physically intimidated Phillips.” (Compl. ¶
3).

 Case: 2:20-cv-00023-WOB-CJS Doc #: 27 Filed: 10/01/20 Page: 2 of 6 - Page ID#: 223

This news story is alleged to be false and defamatory. (Id.).
Sandmann further alleges that this publication by defendant and
similar stories by other news media caused him to be harassed by
the public, causing him great emotional distress.
162-164, 251-257).

(Compl. ¶¶ 25,

Sandmann also alleges that defendant’s article

“is now forever a part of the historical Internet record and will
haunt and taint Nicholas for the remainder of his natural life and
impugn his reputation for generations to come.”

(Compl. ¶ 254).

The motion to dismiss argues that this publication is not
libelous, but the Court has ruled in companion cases that it is
libelous.

The Court continues to hold that opinion for the reason

stated in such preceding cases.

See Sandmann v. The Washington

Post, Cov. Case No. 19cv19 (Docs. 47, 64); Sandmann v. Cable News
Network,

Cov.

Case

No.

19cv31

(Docs.

43,

44);

Sandmann

v.

NBCUniversal Media, LLC, Cov. Case No. 19cv56 (Doc. 43).
Analysis
1. Failure to State a Claim
As in other cases, the Complaint herein alleges that the
defendant’s article quoted the following statement by Phillips:
It was getting ugly, and I was thinking: I’ve
got to find myself an exit out of this
situation and finish my song at the Lincoln
Memorial, Mr. Phillips told The Post. I
started going that way, and that guy in the
hat stood in my way and we were at an impasse.
He just blocked my way and wouldn’t allow me
to retreat.

2

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(Compl. ¶ 206).

The Complaint alleges that this statement was

false in that Sandmann did not block Phillips or interfere with
him in any way, and that it conveys a defamatory meaning because
it imputes to Sandmann racist conduct.

(Compl. ¶¶ 196, 207).

The parties agree that Kentucky law applies to this case.
Under Kentucky law, a writing is defamatory “if it tends to (1)
bring a person into public hatred, contempt or ridicule; (2)
cause him to be shunned or avoided; or (3) injure him in his
business

or

occupation.”

McCall

v.

Courier-Journal

and

Louisville Times Co., 623 S.W.2d 882, 884 (Ky. 1981) (citation
omitted).

The allegations of the Complaint fit this definition

precisely.
The

Complaint

further

alleges

that

the

libel

was

the

proximate result of defendant’s negligence, recklessness, and
actual malice.

(Compl. ¶¶ 221-250).

In its motion to dismiss, defendant cites Croce v. The New
York Times Co., 930 F.3d 787 (6th Cir. 2019).
Ohio, rather than Kentucky, law.

That case involves

But even if it were binding on

this Court, it is not on point.
In Croce, a newspaper published an article that included
unflattering allegations against the plaintiff, a university
professor and cancer researcher.

The Court held that, in “full

context,” a “reasonable reader would interpret the article as a
standard

piece

of

investigative
3

journalism”

which

simply

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reported “newsworthy allegations with appropriate qualifying
language.”

Id. at 794-95.

That holding is inapplicable under the allegations of the
Complaint here.

Defendant published a statement by Phillips

that was made after Sandmann had departed for home, a statement
to which Sandmann had no opportunity to reply in real time.
While Sandmann had such an opportunity later, and such evidence
might be admissible to show lack of malice, it is not a defense
to

the

defamatory

meaning

of

Phillips’

original

statement

itself.
Therefore, the Court holds that the Complaint states a claim
for relief.
2. Statute of Limitations
Defendant also asserts that Sandmann’s claim is barred by
the statute of limitations because it was filed on March 2, 2020,
more than one year after the relevant events occurred on January
18, 2019.
Of course, Sandmann was 16 years old at the time of these
events.

And, under KRS 413.170(a), the running of a statute of

limitations is tolled where the plaintiff is a minor, until he or
she reaches the age of 18.

Thus, Sandmann had one year following

his eighteenth birthday, which occurred in July 2020, to file his
claim.

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Defendant argues, however, that the statute of limitations
began to run when Sandmann filed his first defamation suit through
his parents as his next friends on February 19, 2019, relying on
an unpublished opinion of the Kentucky Court of Appeals.

See

Tallman v. City of Elizabethtown, No. 2006-CA-002542, 2007 WL
3227599 (Ky. Ct. App. Nov. 2, 2007).
In Tallman, the Court held that the statute of limitations
began to run against minor children when they were represented by
their mother on related claims in prior litigation in federal
court.

Id. at *3.

A reading of that decision, however, reveals

that the Court considered the litigation before it to be highly
unusual, and it noted that its ruling was made in light of “the
procedural history of the case.”

Id.

No such history exists

here.
Moreover, the Court does not believe that the Kentucky
Supreme

Court

would

agree

with

Tallman.

Tallman

cites

no

authority for its holding, which conflicts with the plain language
of the savings statute itself.

The statute makes no exception to

the tolling of the limitations period for claims by a minor until
he reaches the age of majority. See Bradford v. Bracken County,
767 F. Supp.2d 740, 752 (E.D. Ky. 2011) (refusing to apply Tallman
to bar plaintiff’s claim, finding that Kentucky Supreme Court
would not adopt its reasoning because it would add exception to
statute that legislature did not provide); T.S. v. Doe, Civil
5

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Action No. 5:10-CV-217, 2010 WL 3941868, at *4 (E.D. Ky. Oct. 6,
2010) (similar).
Therefore, defendant’s statute of limitations defense is
without merit.

Thus, having reviewed this matter, and the Court being
advised,
IT IS ORDERED that defendant’s motion to dismiss (Doc. 18)
be, and is hereby, DENIED.
This 1st day of October 2020.

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