F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
August 28, 2007
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
AUNDRA ANDERSON,
Plaintiff-Appellant,
v. No. 06-6134
KIMBERLY LOHMAN SUITERS, also
known as Kimberly Lohman, individually
and as an employee of KOCO-TV;
OHIO/OKLAHOMA HEARST-
ARGYLE TELEVISION, INC., a Nevada
corporation doing business as KOCO-TV,
Defendants-Appellees.
and
DON BLAKE, individually and as a state
actor police officer for the City of
Norman, Oklahoma, a municipal
corporation; JOHN DOE; JANE DOE;
and other unknown persons having
responsibility or involvement in the
circumstances of the violation of the
federal civil rights and/or privacy rights of
the Plaintiff, including other state actors,
and/or private persons acting in concert,
Defendants.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
(D.C. No. CIV-05-729-HE)
Micheal Salem of Salem Law Office, Norman, Oklahoma, for Plaintiff-Appellant.
David A. Schultz of Levine, Sullivan, Koch & Schultz, New York, New York (Michael
Berry of Levine, Sullivan, Koch & Schultz, New York, New York; Robert D. Nelon and
Jon Epstein of Hall, Estill, Hardwick, Gable, Golden and Nelson, Oklahoma City,
Oklahoma; Jonathan Donnellan and Kristina Findikyan, of Counsel, The Hearst
Corporation, New York, New York, with him on the brief) for Defendants-Appellees.
Before BRISCOE, HARTZ, and GORSUCH, Circuit Judges.
BRISCOE, Circuit Judge.
Aundra Anderson appeals several district court rulings in this action brought
pursuant to 42 U.S.C. § 1983 and Oklahoma state tort law. She had sued Kimberly
Lohman, a reporter from local television station KOCO-TV (“KOCO”), and the company
that owns and operates KOCO (Ohio/Oklahoma Hearst-Argyle Television, Inc.)
(hereinafter “the media defendants”), along with Officer Don Blake of the Norman Police
Department. Anderson appeals 1) the district court’s order partially granting the media
defendants’ motion to dismiss by dismissing her federal right to privacy and state
intrusion upon seclusion claims, and 2) the district court’s order granting the media
defendants’ motion for summary judgment on her publication of private facts claim. She
contends the district court erred in concluding that the media defendants were not state
actors, and in concluding that her allegations and proffered evidence failed to support her
state law tort claims against them. Additionally, she challenges the district court’s denial
of leave to amend her complaint to add claims against the media defendants for
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promissory estoppel and tortious or malicious interference with a contract. We exercise
jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.
I.
Anderson alleges that she was raped by her estranged husband while she was
unconscious. Anderson did not know of the rape until June, 2003, when she found a
videotape of the incident. Anderson gave the videotape to Officer Blake and agreed to
press charges after Blake promised that the videotape would be kept confidential and
would be used only for law enforcement purposes. Anderson alleges that Blake told her
that the only people who would see the tape would be himself, his partner, a judge, and a
jury.
Before any charges had been filed in Anderson’s case, Blake gave an interview to
Lohman about Anderson’s allegations. By this time, Anderson’s husband had already
been arrested on other sexual assault charges involving other alleged victims. Blake
showed Lohman the videotape, and Lohman asked if she could record it to obtain a “head
shot” of the alleged perpetrator. Aplt. App. at 336. Blake contends that he agreed to
allow Lohman to record and display the videotape’s contents on the air, so long as the
broadcast was limited to a view of the perpetrator’s face and was “tasteful.” Id. at 337.
Lohman promised Blake she would only use a view of the perpetrator’s face in her report.
Anderson alleges that, before the news segment aired, Blake contacted her by
telephone and said that he wanted her to speak with Lohman. Anderson replied that she
did not want to talk to the press, but Blake put Lohman on the telephone anyway.
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Anderson refused to answer most of Lohman’s questions. During their conversation,
Lohman told Anderson that she had viewed the videotape. Anderson alleges that she
never authorized Lohman to view or use the videotape in any way. During the 10:00 p.m.
newscast of July 3, 2003, KOCO aired Lohman’s story about Anderson’s allegations,
including excerpts from the videotape.
Several days after the broadcast, charges were filed against Anderson’s husband
for crimes committed against Anderson. After the July 3rd KOCO broadcast, Anderson
refused to cooperate with the district attorney’s office, and the charges involving
Anderson were eventually dropped. Anderson then filed this § 1983 action against Blake
and the media defendants. Anderson alleged that all of the defendants had violated her
federal constitutional right to privacy in the videotape. She also asserted that the media
defendants had invaded her privacy rights under Oklahoma tort law.1
The district court denied Blake’s motion to dismiss based on qualified immunity,
which we affirmed. See Anderson v. Blake, 469 F.3d 910 (10th Cir. 2006).2 As for the
1
Anderson originally filed suit against the City of Norman as well, but the City
was dismissed from the case because it turned over to Anderson all copies of the
videotape that it possessed, which was the sole relief that Anderson sought against the
City.
2
Anderson contends that our 2006 decision controls the result in this separate
appeal. The previous panel, however, did not reach the issues regarding state action that
form the core of this appeal because there was no dispute that Blake, as a police officer,
was a state actor. While Anderson points to language in the 2006 decision stating that the
complaint’s allegations “adequately support an inference of an affirmative link” between
Blake’s conduct “and any constitutional violation caused by the reporter’s decision to
broadcast the tape,” Anderson, 469 F.3d at 917, it is clear that the issue of state action
was not before the panel.
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claims against the media defendants, the district court granted their motion to dismiss
pursuant to Rule 12(b)(6) as to Anderson’s right to privacy and intrusion upon seclusion
claims, but denied their motion to dismiss as to Anderson’s publication of private facts
claim. Subsequently, the district court granted the media defendants summary judgment
on Anderson’s publication of private facts claim. The district court also denied
Anderson’s request to amend her complaint to add claims against the media defendants
for promissory estoppel and tortious or malicious interference with a contract. After the
district court certified its summary judgment order as a final judgment under Rule 54(b),3
Anderson filed the instant appeal. Anderson contends that the district court erred by
dismissing her right to privacy and intrusion upon seclusion claims against the media
defendants, by granting the media defendants’ motion for summary judgment on her
publication of private facts claim asserted against the media defendants, and by denying
her motion to amend her complaint against them.
II.
A. The Media Defendants’ Motion to Dismiss
We first review the district court’s order partially granting the media defendants’
motion to dismiss pursuant to Rule 12(b)(6) as to Anderson’s right to privacy and
intrusion upon seclusion claims. We review the district court’s order de novo and apply
the same standard as the district court. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
3
At that point in the litigation, there was a remaining unadjudicated § 1983 claim against
Blake.
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2006). Rule 12(b)(6) provides for dismissal of a plaintiff’s claims for “failure to state a
claim upon which relief can be granted . . . .” We accept as true all well-pleaded factual
allegations and view them in the light most favorable to Anderson, the nonmoving party.
Moore, 438 F.3d at 1039. “We may uphold the grant of a motion to dismiss if, viewing
the well-pleaded factual allegations in the complaint as true and in the light most
favorable to the non-moving party, the complaint does not contain ‘enough facts to state a
claim to relief that is plausible on its face.’” Macarthur v. San Juan County, – F.3d – ,
2007 U.S. App. LEXIS 17008, at *16 (10th Cir. 2007) (quoting Bell Atlantic Corp. v.
Twombly, 127 S. Ct. 1955, 1968-69 (2007)). As we have explained this new standard for
reviewing a motion to dismiss, “the mere metaphysical possibility that some plaintiff
could prove some set of facts in support of the pleaded claims is insufficient; the
complaint must give the court reason to believe that this plaintiff has a reasonable
likelihood of mustering factual support for these claims.” Ridge at Red Hawk, L.L.C. v.
Schneider, – F.3d – , 2007 U.S. App. LEXIS 16204, at *10 (10th Cir. 2007).
1. Anderson’s Federal Right to Privacy Claim
Anderson challenges the district court’s dismissal of her right to privacy claim for
failing to allege state action. To survive as a claim arising under the federal constitution
and § 1983, Anderson’s right to privacy claim must allege that the media defendants were
state actors. Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000). The Supreme Court has
explained that the state action doctrine requires that the constitutional deprivation “‘be
caused by the exercise of some right or privilege created by the State or by a rule of
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conduct imposed by the state or by a person for whom the State is responsible’” and that
“‘the party charged with the deprivation must be a person who may fairly be said to be a
state actor.’” Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002) (quoting Lugar
v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). The Supreme Court has outlined
four tests to determine whether private actors, such as the media defendants, should be
considered state actors: “(1) the public function test, (2) the nexus test, (3) the symbiotic
relationship test and (4) the joint action test.” Id. at 1202-03.
Anderson relies on the joint action test and contends she has satisfied the state
action requirement by showing the media defendants acted jointly with Blake, a state
actor. Private participants acting jointly with state actors can satisfy the state action
requirement if the private party is a “willful participant in joint action with the State or its
agents.” Id. at 1205 (citations and internal quotation marks omitted). We examine
“whether state officials and private parties have acted in concert in effecting a particular
deprivation of constitutional rights.” Id. (citations and internal quotation marks omitted).
Anderson argues that the facts alleged in her complaint evince such concerted action by
claiming that the media defendants and Blake agreed to misuse Blake’s authority to
obtain access to and ultimately air the confidential videotape.
Anderson’s allegations are inadequate to support her claim that the media
defendants acted jointly with Blake to violate Anderson’s right to privacy by airing a
confidential videotape. Anderson does not allege that the media defendants knew about
the confidentiality agreement between Anderson and Blake protecting the videotape’s
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contents from disclosure. While Anderson asks us to infer such knowledge, she provides
no basis for such an inference. Further, Anderson’s complaint fails to allege facts
demonstrating a shared purpose by Blake and the media defendants to violate Anderson’s
constitutional rights. At most, the complaint alleges that the parties had their own,
separate goals: Blake wanted to appear on camera, and the media defendants wanted
exclusive access to the investigation. See Aplt. App. at 23. Indeed, the complaint
specifically disavows a shared law enforcement purpose. Id. at 13.
Anderson also argues that the media defendants became state actors because they
agreed with Blake to receive the leaked portions of the videotape and to air them on the
nightly news. Without more, a reporter does not become a state actor, however, simply
because she has received and published information from a governmental official, as the
media defendants did here. Phelps v. Wichita Eagle-Beacon, 886 F.2d 1262, 1271 (10th
Cir. 1989). Although Anderson points to the fact that Blake gave the media defendants
“exclusive” access to the information, this fact only explains how widely Blake
disseminated the information – it does not demonstrate concerted action between Blake
and the media defendants. In addition, a prior ride-along with police officers in which
KOCO employees participated concerned a different case and did not involve any joint
action that could potentially violate Anderson’s constitutional rights. Finally, Anderson
alleges that KOCO, not Blake or any other state actor, retained editorial control over the
use of the videotape – indeed, she asserts that the media defendants aired more of the
videotape than Blake had wanted.
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Blake’s telephone call to Anderson, on Lohman’s behalf, to encourage her to speak
with Lohman displays a closer working relationship between Blake and the media
defendants than Anderson’s other allegations. While this fact may show that Blake and
the media defendants acted jointly to secure Anderson’s cooperation for an interview, it
does not show joint action to violate Anderson’s constitutional rights by airing sexually
explicit portions of a videotape. In fact, Anderson’s complaint alleges that Blake had
already permitted the viewing and taping of the videotape by the media defendants prior
to the telephone interview because Lohman told Anderson that she had “seen the entire
video tape.” Aplt. App. at 20.
Anderson also cites to Berger v. Hanlon, 129 F.3d 505 (9th Cir. 1997), vacated and
remanded by, 526 U.S. 808 (1999), judgment reinstated by 188 F.3d 1155 (9th Cir. 1999),
as authority in support of her joint action argument. In that case, the Cable News
Network (“CNN”) filmed federal agents as they executed a search warrant of a Montana
ranch. Id. at 508-09. When the rancher sued the CNN team for violating his
constitutional rights, the Ninth Circuit concluded that the members of the CNN team
participating in the search were state actors. Id. at 514-16. Anderson argues that Berger
is support for reaching a similar result in her case because one fact that led the Ninth
Circuit to its conclusion was that “the federal entities shared confidential information with
the media.” Id. at 515.
While the sharing of confidential information makes Berger and the instant case
superficially similar, Berger’s facts suggested a much greater degree of cooperation
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between government officials and reporters than is present in Anderson’s case. The
federal agents in Berger “planned and executed the search in a manner designed to
enhance its entertainment, rather than its law enforcement value, by engaging in, for
example, conversations with [the rancher] for the purpose of providing interesting
soundbites, and to portray themselves as tough, yet caring investigators, rather than to
further their investigation.” Id. By these actions, the federal agents became joint
participants in shaping the content of CNN’s coverage, transforming the CNN team into
state actors. The most that Anderson alleges, however, is that Blake allowed the media
defendants to film the videotape’s contents so that the media defendants, not Blake, could
produce a head shot for the evening news. Rather than support Anderson’s argument that
the media defendants became state actors for purposes of § 1983 because Blake and the
media defendants acted in concert, Berger highlights what is missing in this case: facts
alleging joint action between Blake and the media defendants in airing the videotape. We
therefore agree with the district court’s conclusion that Anderson’s factual allegations
regarding Blake’s involvement in the ultimate publication of portions of the videotape by
the media defendants were insufficient to treat the media defendants as state actors.
2. Anderson’s Intrusion Upon Seclusion Claim
Turning briefly to the district court’s dismissal of Anderson’s intrusion upon
seclusion claim, Anderson provides no support in her opening brief for her contention that
the district court erred in dismissing this claim. See Aplt. Opening Br. at 33-35. She
cites cases which set forth the elements of an “intrusion” claim, but fails to tie those cases
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to the facts of her case. The only other reference to her intrusion claim is in her
“Statement of the Issues for Review,” where she states:
The district court erred in dismissing a state claim for “intrusion into
seclusion” because release of the entire rape video to the KOCO defendants
was an intentional intrusion into a private matter highly offensive to a
reasonable person. . . . The violations of federal privacy and the state
“intrusion into seclusion” were completed when Blake released the video to
the KOCO defendants.
Id. at 4-5. These arguments are not only untethered to any legal citation, but also are too
conclusory to permit judicial review. See Am. Airlines v. Christensen, 967 F.2d 410, 415
n.8 (10th Cir. 1992) (“It is insufficient merely to state in one’s brief that one is appealing
an adverse ruling below without advancing reasoned argument as to the grounds for the
appeal.” (citing Fed. R. App. P. 28(a)(4))). We therefore decline to address any claimed
issue involving the district court’s dismissal of Anderson’s intrusion upon seclusion
claim.
B. The Media Defendants’ Motion for Summary Judgment
We next turn to the district court’s grant of summary judgment for the media
defendants on Anderson’s publication of private facts claim. We review the district
court’s grant of summary judgment de novo under the same standard that the district court
applied. Camuglia v. City of Albuquerque, 448 F.3d 1214, 1218 (10th Cir. 2006).
“Ordinarily, the district court must view the record in the light most favorable to the party
opposing summary judgment and should grant summary judgment only when there is no
genuine dispute over a material fact and the moving party is entitled to judgment as a
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matter of law.” Id. (citations and internal quotation marks omitted).
Anderson argues that the district court incorrectly granted the media defendants
summary judgment on her publication of private facts claim. Anderson alleges in her
publication of private facts claim that the media defendants tortiously published private
facts about her when they aired the videotape. We agree with the district court that
Anderson failed to create a genuine issue of material fact as to this claim because the
material published was substantially related to a matter of legitimate public concern.
Oklahoma has adopted the Restatement of Torts’ definition of publication of
private facts:
One who gives publicity to a matter concerning the private life of another is
subject to liability to the other for invasion of his privacy, if the matter
publicized is of a kind that
(a) would be highly offensive to a reasonable person, and
(b) is not of legitimate concern to the public.
Restatement (Second) of Torts § 652D (1977); McCormack v. Okla. Publ. Co., 613 P.2d
737, 740 (Okla. 1980). The requirement that the published private facts not be of
legitimate public concern is both an element of the common law tort and a constitutional
limitation imposed by the First Amendment. See Gilbert v. Med. Econ. Co., 665 F.2d
305, 307-08 (10th Cir. 1981); Restatement (Second) of Torts § 652D cmt. d; see also
Alvarado v. KOB-TV, L.L.C., – F.3d – , 2007 U.S. App. LEXIS 16720, at *22 n.9 (10th
Cir. 2007) (“However, we observe that state law now defines torts involving publication
to take into account First Amendment restrictions announced by the Supreme Court.”).
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This limitation on the publication-of-private-facts tort protects “the right of the press to
disseminate newsworthy information to the public.” Gilbert, 665 F.2d at 307. A matter
can be of legitimate public concern even though it concerns private individuals, like
Anderson, “‘who have not sought publicity or consented to it, but through their own
conduct or otherwise have become a legitimate subject of public interest.’” Id. (quoting
Restatement (Second) of Torts § 652D cmt. f (1977)). But there are limits as well to what
matters are of legitimate public concern. In Gilbert, we concluded that there are some
facts which are beyond the sphere of legitimate public concern:
Even where certain matters are clearly within the protected sphere of
legitimate public interest, some private facts about an individual may lie
outside that sphere. . . . [T]o properly balance freedom of the press against
the right of privacy, every private fact disclosed in an otherwise truthful,
newsworthy publication must have some substantial relevance to a matter
of legitimate public interest.
Id. at 308 (emphasis added); cf. Alvarado, 2007 U.S. App. LEXIS 16720, at *28
(reiterating the substantial relevance standard).
“Although application of the newsworthiness standard to undisputed facts may
well present a jury question in some cases,” we can affirm the district court if objective
and reasonable minds could not differ in concluding that the broadcast portion of the
videotape is a matter of legitimate public interest. Gilbert, 665 F.2d at 309. The media
defendants have satisfied this inquiry because the videotape was substantially relevant to
a matter of legitimate public interest: the prosecution of Anderson’s husband, a local
attorney, for rape, as well as for other sexual assault charges involving multiple victims.
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By the time the media defendants aired the excerpts from the videotape, Anderson’s
husband had already been arrested for at least one other rape. Aplt. App. at 336.
Anderson’s allegation that she had been raped by her husband increased the likelihood
that there was support for the other pending charges against him. Information concerning
the possible guilt or innocence of a person charged with a crime is a classic example of a
matter of legitimate public concern. See Restatement (Second) of Torts § 652D cmt. h
(1977) (“[T]he life history of one accused of murder, together with such heretofore
private facts as may throw some light upon what kind of person he is, his possible guilt or
innocence, or his reasons for committing the crime, are a matter of legitimate public
interest.”); cf. Cox Broad. Corp. v. Cohn, 420 U.S. 469, 492 (1975). By airing the
videotape, the media defendants heightened the report’s impact and credibility by
demonstrating that the allegations rested on a firm evidentiary foundation and that the
reporter had access to reliable information. Gilbert, 665 F.2d at 308.
Anderson raises two arguments which challenge the videotape’s substantial
relevance to a matter of legitimate public concern. First, Anderson argues the videotape
was highly personal and intimate in nature. While the sensitive nature of the material
might make its disclosure highly offensive to a reasonable person, that does not make the
videotape any less newsworthy so long as the material as a whole is substantially relevant
to a legitimate matter of public concern. Alvarado, 2007 U.S. App. LEXIS 16720, at *28
(noting that “[o]ther courts also appear to give ‘public interest’ status to news material on
an aggregate basis, rather than itemizing what in the news report would qualify and what
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could remain private” (citing Ross v. Midwest Commc’ns, Inc., 870 F.2d 271, 274-75
(5th Cir. 1989))). In support of her argument that the videotape is too personal and
intimate to have any relevance to a matter of public concern, Anderson highlights the
following example from the Restatement: “[W]hen a photograph is taken without the
plaintiff's consent in a private place . . . the plaintiff's appearance that is made public
when the picture appears in a newspaper is still a private matter, and his privacy is
invaded.” Restatement (Second) of Torts § 652D cmt. b (1977). This illustration,
however, does not refer to the legitimate public concern inquiry because the Restatement
only uses the illustration to distinguish a private fact (such as a photograph of a person in
a “private place”), from a public fact (such as a photograph of a person “walking down
the public street”), without addressing the legitimate public concern requirement. See id.
By holding that the content of the media defendants’ newscast was substantially
relevant to a matter of legitimate public interest, we do not imply that members of the
media may escape any liability for publication of private facts whenever the subject of the
publication is an alleged perpetrator of a crime. Some facts about the victim of an alleged
crime will be too tangential to the prosecution of the perpetrator to be substantially
relevant to a matter of legitimate public interest. Wherever that line may be drawn in
other cases, the facts that the media defendants published in this case, for the reasons
stated above, are substantially relevant to the alleged criminal activities of Anderson’s
husband, a matter of legitimate public concern. The focus of the news broadcast was on
the perpetrator, not the victim. And as even Anderson acknowledges in her brief, she was
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never identified by name, and the excerpted portion of the videotape was limited to a few
movements of the alleged attacker’s naked body without disclosing the sexual acts in
great detail; only Anderson’s feet and calves were clearly visible, and they bore no
identifying characteristics. Aplt. Opening Br. at 11. We can understand entirely why
Anderson found the public display of any portion of the tape highly distressing, perhaps
especially after having received Blake’s assurance that it would be viewed by only
himself, his partner, a judge, and a jury. But it is also difficult to see how the broadcast at
issue could be said to have no legitimate public interest – the test we must apply. Had the
broadcast gone further in invading Anderson’s privacy, rather than focusing on her
estranged husband’s wrongdoing, we would have had a very different case. But the
simple fact is that this was a broadcast about a rapist, not a rape victim, and the legitimate
privacy interests of the two could not be more different.
Anderson also argues that a declaration by Prof. Melinda Levin of the University
of North Texas – reporting her conclusion that the videotape was unnewsworthy – creates
a genuine issue for trial. We disagree for two reasons. First, Prof. Levin opines on
whether the news broadcast was “newsworthy” or an issue of “public concern.” But this
determination, based on the undisputed facts in the record, is the ultimate question of law
before us. While expert witnesses may testify as to the ultimate matter at issue, Fed. R.
Evid. 704(a), this refers to testimony on ultimate facts; testimony on ultimate questions of
law, i.e., legal opinions or conclusions, is not favored. See, e.g., Specht v. Jensen, 853
F.2d 805, 808 (10 th Cir. 1988). Second, Levin concludes that the videotape is not
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newsworthy because it exploits Anderson and adds to her victimization. Even if true,
Levin’s declaration attacks not the newsworthiness of the video excerpts, but the media
defendants’ editorial judgment in airing them. Editorial judgment is a matter that courts
have generally left to the press. See Sussman v. ABC, 186 F.3d 1200, 1202 (9th Cir.
1999) (agreeing that “newsworthiness . . . is evaluated with a high degree of deference to
editorial judgment”) (citation and internal quotation marks omitted); Gilbert, 665 F.2d at
308 (expressing concern over preserving “the breathing space needed by the press to
properly exercise effective editorial judgment”). While Levin’s critique of the broadcast
may be relevant to whether it would be highly offensive to a reasonable person, her
opinion as to the video excerpt’s substantial relevance to a legitimate matter of public
concern impermissibly addresses the ultimate legal question.
C. Anderson’s Motion to Amend
Anderson moved to amend her complaint against the media defendants to add a
promissory estoppel claim and a tortious or malicious interference with a contract claim.
The district court denied her motion, concluding that the new allegations were an effort to
avoid the constitutional limitations on her claims.
We review the denial of a motion to amend for abuse of discretion. Tool Box, Inc.
v. Ogden City Corp., 419 F.3d 1084, 1086-87 (10th Cir. 2005). Rule 15(a) provides that
leave to amend a complaint “shall be freely given when justice so requires.” A district
court may refuse to allow amendment if it would be futile. Lind v. Aetna Health, Inc.,
466 F.3d 1195, 1199 (10th Cir. 2006). “‘A proposed amendment is futile if the
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complaint, as amended, would be subject to dismissal.’” Id. (quoting Bradley v. J.E.
Val-Mejias, 379 F.3d 892, 901 (10th Cir. 2004)).
Anderson’s proposed amendments would be futile because the two new claims
would be subject to dismissal. Anderson’s interference claim alleges that she and Blake
had an agreement to keep the videotape confidential and that the media defendants
induced Blake to breach that agreement. In Oklahoma, tortious or malicious interference
with a contract has the following elements: (1) “a business or contractual right with which
there was interference”; (2) “the interference was malicious and wrongful, and that such
interference was neither justified, privileged nor excusable” (emphases omitted); and (3)
“damage was proximately sustained as a result of the complained-of interference.”
Morrow Dev. Corp. v. Am. Bank & Trust Co., 875 P.2d 411, 416 (Okla. 1994).
Anderson’s claim would fail for lack of any allegation of malice, which requires “the
intentional performance of a wrongful act without justification or excuse.” Id. Anderson
does not allege that the media defendants intentionally interfered with the alleged
agreement between Anderson and Blake to keep the videotape confidential. Indeed,
Anderson does not even allege that the media defendants knew that the agreement
existed. While Anderson believes that knowledge of an agreement can be inferred from
the videotape’s sensitive nature and various state and local policies preventing the public
disclosure of confidential material, this evidence may establish, at most, that the media
defendants knew that the videotape was protected by state and local law, not that it was
protected by an agreement between Blake and Anderson.
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Anderson’s promissory estoppel claim seeks recovery for the media defendants’
alleged violation of an agreement between them and Blake to use only a “head shot” of
the attacker on the evening news. Oklahoma has adopted the Restatement (Second) of
Contracts (1981) version of the cause of action, which provides:
A promise which the promisor should reasonably expect to induce action or
forbearance on the part of the promisee or a third person and which does
induce such action or forbearance is binding if injustice can be avoided only
by enforcement of the promise.
§ 90(1); Barber v. Barber, 77 P.3d 576, 579 (Okla. 2003) (recognizing Oklahoma’s
adoption of § 90). From this, Oklahoma has distilled the following four elements of
promissory estoppel: (1) “a clear and unambiguous promise”; (2) “foreseeability by the
promisor that the promisee would rely upon it”; (3) “reasonable reliance upon the promise
to the promisee’s detriment”; and (4) “hardship or unfairness can be avoided only by the
promise’s enforcement.” Barber, 77 P.3d at 579.
Anderson’s proposed promissory estoppel claim fails because she only alleges
emotional distress damages. Oklahoma courts have held that a claim seeking only
damages for emotional distress fails in the absence of physical injury. Seidenbach’s, Inc.
v. Williams, 361 P.2d 185, 187 (Okla. 1961) (“It is the settled law in this jurisdiction that
mental anguish of itself cannot be treated as an independent ground of damages so as to
enable a person to maintain an action for that injury alone.”) (citation and internal
quotation marks omitted). Here, Anderson only seeks damages for emotional distress
without any allegation of physical injury: “Plaintiff has been damaged by the actions of
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the Defendants, become despondent, suffered emotional distress, embarrassment,
sleeplessness, anxiety and concern for herself and her children and is entitled to damages
against all relevant defendants.” Aplt. App. at 26. As Anderson’s promissory estoppel
claim would be subject to dismissal, her request to amend to raise that claim would be
futile.
III.
The district court’s rulings are AFFIRMED. Anderson’s motion for leave to
submit a CD-ROM of the broadcast under seal is GRANTED.
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