Anderson v. Suiters

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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