Bentkowski v. Scene Magazine

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0096p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
-
DAVID A. BENTKOWSKI,
-
Plaintiff-Appellant,
-
-
No. 09-4547
v.
,
>
-
-
SCENE MAGAZINE, aka Cleveland Scene;
-
CLEVELAND SCENE PUBLISHING, LLC,
-
CLEVELAND SCENE, LLC, VILLAGE VOICE
-
Defendants-Appellees. -
MEDIA HOLDINGS LLC,

-
N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 08-02154—Christopher A. Boyko, District Judge.
Decided and Filed: April 19, 2011
Before: MARTIN, SUHRHEINRICH, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ON BRIEF: Brent L. English, LAW OFFICES OF BRENT L. ENGLISH, Cleveland,
Ohio, for Appellant. Kenneth Alan Zirm, Kate E. Ryan, ULMER & BERNE LLP,
Cleveland, Ohio, for Appellees.

_________________

OPINION
_________________

BOYCE F. MARTIN, JR., Circuit Judge. Plaintiff-Appellant David A.
Bentkowski, the Mayor of Seven Hills, Ohio, sued Defendants-Appellees Scene
Magazine, Cleveland Scene Publishing, LLC, Cleveland Scene, LLC, and Village Voice
Media Holdings LLC for defamation arising from an article published in a weekly
publication called Cleveland Scene. The district court granted Appellees’ motion for

1
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 2

summary judgment and Bentkowski appeals. In addition, Bentkowski claims that the
district court erred in denying his motion for an extension of time to complete discovery
and in striking his first amended complaint as a sanction. We AFFIRM the district
court’s grant of summary judgment and its discovery and sanction orders.

I. BACKGROUND

Bentkowski has served as the Mayor of Seven Hills since 2003. He alleges that
Appellees defamed him in an article by Joe Tone published in the “First Punch” section
of Cleveland Scene on August 1, 2007. The article, entitled “The Bizarre Boy Mayor,”
reads in its entirety:

In his latest attempt to prove how super-duper cool his city is, Seven
Hills Mayor David Bentkowski recently sent a bizarre letter to the
suburb’s “young residents.” The three-page missive, mailed to residents
“18-40ish,” explains that “Seven Hills is actually starting to become
‘hip,’” noting everything from the suburb’s sweet rec center to rad
schools to killer sports leagues. (The mayor even plays flag football: “It
is a blast.”)
Apparently under the impression he’s mayor of Autistic Village,
Bentkowski also instructs residents exactly how to respond “if someone
ever asks you about living in Seven Hills.[”]
“You tell them the following: Seven Hills is awesome,” he implores.
The letter, which reads like a student-council campaign speech, is vintage
Bentkowski. This, after all, is a 34-year-old mayor who brags about his
youth, proudly wears Superman tights, and routinely tries to pull off
stunts like limiting residents’ feedback at meetings and barring
government employees from running for office. Bentkowski, it’s safe to
say, has the political IQ of Quiznos’ lettuce.
The letter also includes a lengthy questionnaire that asks residents to
provide the ages and names of “everyone living in your household.”
This, Bentkowski writes, “will help us notify you of various things that
may be of interest to you. For example, if you have an 18-year-old
daughter we can invite her to participate in the Miss Seven Hills
Pageant,” an event the mayor has insisted he emcee. It also asks for
e-mail, web, and MySpace addresses.
The mayor says he’s just trying to stay in touch with residents. But the
letter left some members of city council scratching their heads, says
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 3

councilman Frank Petro, a regular critic of the Boy Mayor®. Nowhere
does the questionnaire say it’s voluntary or that personal information will
be kept private. The letter doesn’t appear on city letterhead and includes
the mayor’s personal web address. But it was paid for by the city.
“Council never approved it,” Petro says. “I don’t understand who ‘we’
is. He refers to ‘we’ this and ‘we’ that. Who’s ‘we?’”
Finally, the letter includes a “special invite” to a concert by the
Spazmatics, an ‘80s cover band. Though the concert was part of last
weekend’s Seven Hills Home Days festival, the invite dubbed it a
“Special Home Days Concert for ‘Younger’ Residents.”
Petro, 51 years old, wasn’t sure he qualified.
“I don’t know,” he said last week. “I hope I’m allowed to go.”

Bentkowski claims that two main portions of the article are defamatory: (1) the
allegation that he “routinely tries to pull off stunts like limiting residents’ feedback at
meetings and barring government employees from running for office”; and (2) the
portion of the article related to the “young residents” letter, which Bentkowski alleges
falsely implies that he sought personal information about his constituents, including
young women, for illicit purposes.

Bentkowski filed a complaint on August 1, 2008 in the Court of Common Pleas
of Cuyahoga County, Ohio. Appellees removed the case to the United States District
Court for the Northern District of Ohio. On October 16, the district court held a Case
Management Conference. The district court ordered that any amended pleadings be filed
by December 15, 2008, and that non-expert discovery be completed by February 27,
2009. On December 14, 2008, Bentkowski filed a first amended complaint adding
several new defamation claims and defendants. On February 27, 2009, Bentkowski filed
a motion for an extension of time to complete non-expert discovery. On March 2, the
district court denied the motion.

On March 11, the district court ordered Bentkowski to show cause as to why it
should not impose sanctions for his failure to prosecute the case. The district court noted
that he had failed to comply with a Settlement Conference Order and failed to conduct
any discovery in the four and a half months since the Case Management Conference.
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 4

For the first time, Bentkowski’s counsel informed the court that he had been
incapacitated due to a serious health problem. Bentkowski filed his response and a
motion for reconsideration of the earlier denial of his motion to extend time for
discovery. On March 23, the district court denied the motion for reconsideration and
struck Bentkowski’s first amended complaint as a sanction for failing to prosecute the
action, knowingly making false representations in his motion for an extension, and
failing to comply with the Settlement Conference Order and Federal Rules of Civil
Procedure.

On April 23, Appellees filed a motion for summary judgment. On November 6,
the district court granted the motion on two alternative grounds: (1) the article was
opinion and thus absolutely privileged under the Ohio Constitution; and (2) Bentkowski
failed to establish that Appellees had published the article with actual malice, as required
in public official defamation cases. On December 7, Bentkowski filed a notice of
appeal, stating that he was appealing from the district court’s order granting Appellees
summary judgment and its judgment order terminating the action.

II. ANALYSIS

A. Motion for Summary Judgment

We review the district court’s grant of summary judgment de novo. Wimbush
v. Wyeth, 619 F.3d 632, 636 (6th Cir. 2010). Summary judgment is appropriate where
the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits
show “that there is no genuine dispute as to any material fact and that the movant is
entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(a).

A district court should enter summary judgment in a defendant’s favor in a
defamation action if it appears that the plaintiff cannot establish any one of the elements
of the claim. Celebrezze v. Dayton Newspapers, Inc., 535 N.E.2d 755, 759 (Ohio Ct.
App. 1988). The elements of a libel claim under Ohio law are: (1) “the assertion of a
false statement of fact;” (2) “the false statement was defamatory;” (3) “the false
defamatory statement was published by defendants;” (4) “the publication was the
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 5

proximate cause of the injury to the plaintiff;” and (5) “the defendants acted with the
requisite degree of fault.” Id.

The United States Supreme Court does not recognize “a wholesale defamation
exemption for anything that might be labeled ‘opinion.’” Milkovich v. Lorain Journal
Co., 497 U.S. 1, 18 (1990). However, “[t]he Ohio Constitution provides a separate and
independent guarantee of protection for opinion ancillary to freedom of the press.” Vail
v. The Plain Dealer Publ’g Co., 649 N.E.2d 182, 185 (Ohio 1995). To determine
whether a statement constitutes protected opinion or actionable fact, courts consider the
totality of the circumstances, including factors such as: (1) “the specific language used”;
(2) “whether the statement is verifiable”; (3) “the general context of the statement”; and
(4) “the broader context in which the statement appeared.” Id. Weighing these factors,
we agree with the district court that there is no genuine issue of material fact, and the
article is protected opinion as a matter of law.

1. Specific language

Under the first factor, we review the specific language of the statements at issue.
“We seek in this branch of our analysis to determine whether the allegedly defamatory
statement has a precise meaning and thus is likely to give rise to clear factual
implications.” Wampler v. Higgins, 752 N.E.2d 962, 978 (Ohio 2001). Typical
examples of actionable language include accusations of punishable criminal or
disciplinary conduct. Vail, 649 N.E.2d at 186.

The specific language of the portion of the article related to the “young residents”
letter does not support actionability. Bentkowski claims that the article’s juxtaposition
of a description of the “young residents” letter with the statement that he insisted that he
emcee a pageant implies that he had improper motives in sending the letter. However,
the article does not expressly state or clearly imply that Bentkowski had an illicit motive
in sending the letter. Cf. Scott v. News-Herald, 496 N.E.2d 699, 707 (Ohio 1986)
(specific language weighed in favor of actionability when “the clear impact in some nine
sentences and a caption” was that appellant committed perjury). Furthermore, even if
we were to draw the implication that Bentkowski urges us to, the language of this
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 6

portion of the article perhaps vaguely alluding to improper motives lacks a precise
meaning that would give rise to clear factual implications. See Vail, 649 N.E.2d at 186
(statements that appellant engaged in “an anti-homosexual diatribe” and fostered
“homophobia” lacked precise meaning that would support actionability).

The specific language that Bentkowski “routinely tries to pull off stunts like
limiting residents’ feedback at meetings and barring government employees from
running for office” weighs in favor of actionability. The average reader could construe
these statements as communicating objective facts rather than subjective opinions. Cf.
id. (veiled characterization of appellant as a liar could be construed as an objective
statement). These statements are sufficiently precise as the language is commonly
understood to constitute factual statements, which favors actionability.

2. Verifiability

Under the second factor, we must determine whether the statements are
verifiable. The Ohio Supreme Court has stated that if a “statement lacks a plausible
method of verification, a reasonable reader will not believe that the statement has
specific factual content.” Scott, 496 N.E.2d at 707 (internal quotation marks and citation
omitted). Whether Bentkowski had improper motives in sending the “young residents”
letter is not verifiable because there are no objective tests to determine his internal
motivation in sending the letter. Cf. Ferreri v. Plain Dealer Publ’g Co., 756 N.E.2d 712,
721 (Ohio Ct. App. 2001) (noting that statement that an individual cares more about
himself and his image than children is not actionable in part because there are no
objective tests to verify it). Thus, this factor weighs against actionability.

The references to Bentkowski limiting feedback at meetings and barring
government employees from running for office are possibly verifiable facts. Cf. Scott,
496 N.E.2d at 707 (recognizing that whether an individual perjured himself “is certainly
verifiable by a perjury action with evidence adduced from the transcripts and witnesses
present at the hearing”). Thus, this factor weighs in favor of actionability.
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 7

Therefore, under the first two factors, the portion of the article related to the
“young residents” letter does not support a cause of action. However, the statements
about Bentkowski limiting feedback at meetings and barring government employees
from running for office might support a cause of action. This does not end our inquiry.
The Court of Appeals of Ohio has recognized that the “language of the entire column
may signal that a specific statement which, sitting alone, would appear to be factual is
in actuality a statement of opinion.” DeVito v. Gollinger, 726 N.E.2d 1048, 1051 (Ohio
Ct. App. 1999) (internal quotation marks and citation omitted). As discussed below, we
find that the remaining factors in the analysis transform these statements into
inactionable opinion. Cf. id.

3. General and broader context

Ohio case law displays some confusion as to what constitutes “general context”
as opposed to “broader context.” Compare Vail, 649 N.E.2d at 185, with Wampler, 752
N.E.2d at 980. We evaluate both factors together for ease of discussion, and use general
context to refer to the entire work at issue, and broader context to refer to the publication
in which the work appears.

First, we examine the general context of the article as a whole to determine “the
larger objective and subjective context of the statement[s].” Scott, 496 N.E.2d at 707.
“We examine more than simply the alleged defamatory statements in isolation, because
the language surrounding the averred defamatory remarks may place the reasonable
reader on notice that what is being read is the opinion of the writer.” Wampler, 752
N.E.2d at 980. We consider whether the statements at issue are objective facts or
subjective hyperbole. Vail, 649 N.E.2d at 186. Here, the statements at issue were
clearly made in the general context of opinion. The article uses words and phrases such
as “super-duper cool,” “sweet,” “rad,” “killer,” “Autistic Village,” “student-council
campaign speech,” and “political IQ of Quiznos’ lettuce.” It uses simile, hyperbole, and
other figurative language to express ideas, and it is ridden with humor and sarcasm. Cf.
id. (“The general tenor of the column is sarcastic, more typical of persuasive speech than
factual reporting.”). The author makes no attempt to hide his bias, and it would be
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 8

unreasonable for a reader to view his comments as impartial reporting. Cf. Scott, 496
N.E.2d at 708. The author’s statements are “pointed, biting, and tough,” and “it is
apparent that the writer’s intent is to persuade readers to his point of view.” Condit v.
Clermont Cnty. Review, 675 N.E.2d 475, 479 (Ohio Ct. App. 1996). Thus, this factor
weighs strongly against actionability.

Turning to the broader context in which the statement appears, the Ohio Supreme
Court has recognized that “[d]ifferent types of writing have . . . widely varying social
conventions which signal to the reader the likelihood of a statement’s being either fact
or opinion.” Scott, 496 N.E.2d at 708 (internal quotation marks and citation omitted)
(alteration in original). Thus, “we must examine the type of article and its placement in
the newspaper and how those factors would influence the reader’s viewpoint on the
question of fact or opinion.” Id. The column appears in “First Punch,” a section of
Cleveland Scene that features humor, comments, and criticism. Thus, this factor weighs
heavily against actionability. Cf. Vail, 649 N.E.2d at 185 (finding that the context in
which statements were made was opinion when column appeared in Forum page of
newspaper and was titled “Commentary”); Scott, 496 N.E.2d at 708 (noting that column
“appeared on the sports page—a traditional haven for cajoling, invective, and
hyperbole”).

Based upon the totality of the circumstances, we are convinced that there is no
genuine issue of material fact as to whether the statements at issue constitute fact or
opinion: the ordinary reader would accept the article as opinion. This is consistent with
Ohio case law. See, e.g., Scott, 496 N.E.2d at 709 (allegation of perjury not actionable
when specific language and verifiability weighed for actionability but general and
broader context weighed against); Grabow v. King Media Enters., Inc., 2004-Ohio-1122,
806 N.E.2d 591, ¶ 41 (Ohio Ct. App. 2004) (statement that former mayor was a
convicted felon not actionable when language and verifiability weighed in favor of
actionability but general and broader context weighed against); Jorg v. Cincinnati Black
United Front, 2003-Ohio-3668, 792 N.E.2d 781, ¶ 24 (Ohio Ct. App. 2003) (accusation
of murder not actionable when specific language and verifiability weighed for
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 9

actionability but general and broader context weighed against). Therefore, the
statements are protected under the Ohio Constitution, and our inquiry is at an end. We
have no occasion to reach the district court’s alternative holding that Bentkowski failed
to demonstrate actual malice, or Appellees’ argument that Bentkowski failed to produce
evidence of damages linked to the article.

B. Discovery and Sanction Orders

Bentkowski claims that the district court abused its discretion by denying his
motion for an extension of time to conduct discovery and by striking his first amended
complaint as a sanction. Appellees claim that we lack jurisdiction over these appeals
because Bentkowski failed to designate any discovery or sanction orders in his notice
of appeal. Federal Rule of Appellate Procedure 3(c)(1)(B) provides that “[t]he notice
of appeal must . . . designate the judgment, order, or part thereof being appealed.”
Bentkowski’s notice of appeal states that he appeals from “the Court’s final judgment
. . . making the Opinion and Order granting Defendants’ Joint Motion for Summary
Judgment . . . final and appealable.” We have held that an appeal from a final judgment
encompasses all prior rulings and orders where the appellant does not “designate specific
determinations in its notice of appeal.” Crawford v. Roane, 53 F.3d 750, 752 (6th Cir.
1995). Thus, we have jurisdiction to review the district court’s rulings on the discovery
and sanction orders. We review limits on discovery and discovery sanctions for abuse
of discretion. B & H Med., L.L.C. v. ABP Admin., Inc., 526 F.3d 257, 268 (6th Cir.
2008); Phillips v. Cohen, 400 F.3d 388, 396 (6th Cir. 2005).

1. Discovery order

We find no abuse of discretion in the district court’s decision to deny
Bentkowski’s motion for an extension of time. Federal Rule of Civil Procedure 16(b)(4)
provides that “[a] schedule may be modified only for good cause and with the judge’s
consent.” In reviewing a district court’s denial of additional time for discovery, courts
consider five factors: “(1) when the moving party learned of the issue that is the subject
of discovery; (2) how the discovery would affect the ruling below; (3) the length of the
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 10

discovery period; (4) whether the moving party was dilatory; and (5) whether the
adverse party was responsive to . . . discovery requests.” Dowling v. Cleveland Clinic
Found., 593 F.3d 472, 478 (6th Cir. 2010). “The overarching inquiry in these
overlapping factors is whether the moving party was diligent in pursuing discovery.”
Id. Here, Bentkowski filed his motion for an extension at 7:11 p.m. on the date of the
non-expert discovery deadline. He made no effort to conduct discovery in the four and
a half months allotted for non-expert discovery and offered no explanation for his lack
of diligence. In addition, further discovery would not have affected the summary
judgment ruling, and Appellees were responsive to discovery requests. Thus, it was
within the district court’s discretion to decline to grant Bentkowski additional time for
discovery. See, e.g., Wayne v. Vill. of Sebring, 36 F.3d 517, 530 (6th Cir. 1994) (holding
that district court’s denial of defendants’ motions to conduct additional discovery after
the cut-off date was not an abuse of discretion when they failed to proceed with
discovery during the assigned discovery period).

2. Sanction order

We also find no abuse of discretion in the district court’s decision to strike
Bentkowski’s first amended complaint as a sanction. The district court found that
Bentkowski engaged in six types of sanctionable conduct: (1) failing to provide initial
disclosures; (2) failing to prosecute the action; (3) failing to comply with the Settlement
Conference Order; (4) failing to inform opposing counsel or the court of his counsel’s
alleged injury; (5) failing to attempt service for almost three months; and (6) making
knowingly false statements to the court in his motion to extend the non-expert discovery
cut-off date. Rule 37(b)(2) permits a court to strike pleadings where a party fails to obey
discovery orders. Rule 41(b) permits a court to dismiss an action with prejudice if the
plaintiff fails to prosecute or to comply with a court order. The criteria for sanctions
under either of these two rules are the same. Lucien v. Breweur, 9 F.3d 26, 29 (7th Cir.
1993). A court also has an “inherent power” to “levy sanctions in response to abusive
litigation practices.” Roadway Express, Inc. v. Piper, 447 U.S. 752, 765 (1980).
No. 09-4547 Bentkowski v. Scene Magazine, et al Page 11

We have held that in reviewing the imposition of sanctions for an abuse of
discretion, an appellate court should consider: “(1) whether the adversary was prejudiced
by the dismissed party’s failure to cooperate in discovery, (2) whether the dismissed
party was warned that failure to cooperate could lead to dismissal, and (3) whether less
drastic sanctions were imposed or considered before dismissal was ordered.” Taylor v.
Medtronics, Inc., 861 F.2d 980, 986 (6th Cir. 1988). Here, the district court found that
there would be prejudice to Appellees because Bentkowski had not yet perfected service
on newly named defendants, and the need of those new defendants to conduct their own
discovery would delay the case. The district court clearly placed Bentkowski on notice
of the possibility of sanctions because the Case Management Order stated that “[t]his
Order shall constitute notice for purposes of sanctions up to and including dismissal
and/or striking of offending party’s pleadings for failure to abide by any Court Order.”
The district court did not specifically state whether it considered less drastic sanctions.
However, it found that Bentkowski knowingly made false representations in his motion
for extension of time. Cf. Patton v. Aerojet Ordnance Co., 765 F.2d 604, 607 (6th Cir.
1985) (“Dismissal of an action for failure to cooperate in discovery is a sanction of last
resort that may be imposed only if the court concludes that a party’s failure to cooperate
in discovery is due to willfulness, bad faith, or fault.”). Thus, we cannot say that the
district court abused its discretion in crafting a sanction when Bentkowski failed to
prosecute the action, knowingly made false representations to the court, and failed to
comply with the court’s Settlement Conference Order and Federal Rules of Civil
Procedure.

III. CONCLUSION

Because the article at issue constitutes protected opinion under the Ohio
Constitution, we AFFIRM the district court’s grant of summary judgment. Because we
cannot say that the district court abused its discretion in denying Bentkowski’s motion
for an extension of time or in striking his first amended complaint as a sanction, we
AFFIRM the district court’s discovery and sanction orders.