Klayman v. City Pages, 650 Fed.Appx. 744 (2016)

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650 Fed.Appx. 744

This case was not selected for

publication in West's Federal Reporter.

See Fed. Rule of Appellate Procedure

32.1 generally governing citation

of judicial decisions issued on or

after Jan. 1, 2007. See also U.S.

Ct. of App. 11th Cir. Rule 36-2.

United States Court of

Appeals, Eleventh Circuit.

Larry KLAYMAN, Plaintiff–Appellant,

v.

CITY PAGES, Ken Weiner,

a.k.a. Ken Avidor, Aaron Rupar,

Phoenix New Times, Voice Media

Group, Defendants–Appellees.

No. 15–12731

|

Non–Argument Calendar

|

Date Filed: 05/27/2016

Synopsis

Background: Lawyer brought action against

news companies and reporters, asserting

claims for defamation and defamation by

implication under Florida law, based on three

internet articles reporting on two separate

civil proceedings involving lawyer. The United

States District Court for the Middle District

of Florida, Anne C. Conway, J., 2015

WL 1546173, entered summary judgment in

companies' and reporters' favor, and denied

lawyer's motion to disqualify the court. Lawyer

appealed.

Holdings: The Court of Appeals held that:

[1] district court judge's use of literary device in

summary judgment order did not require judge

to recuse herself;

[2] district court judge's admonition of lawyer

did not require judge to recuse herself;

[3] under Florida law, article discussing

lawyer's child custody proceeding was not

defamatory; and

[4] under Florida law, article discussing

pending state Bar investigation against lawyer

was not defamatory.

Affirmed.

West Headnotes (4)

[1] Judges Bias and Prejudice

District court's use of literary device,

i.e., quotes from or allusions to work

of classic literature, which included

words “moron,” and “malice” in

subheading in section of summary

judgment order discussing actual

malice, in lawyer's defamation

action against news companies and

reporters, did not evidence kind of

deep seated favoritism or antagonism

that would make fair judgment

impossible, as required to warrant

recusal of district court judge. 28

U.S.C.A. § 144.

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3 Cases that cite this headnote

[2] Judges Statements and

expressions of opinion by judge

District court judge's admonition of

lawyer who brought action against

news companies and reporters,

asserting claims for defamation and

defamation by implication under

Florida law, including admonition

forewarning lawyer that, based on

his history of plunging into tirade

against whomever he felt wronged

him, district court would review

any motion for reconsideration of

district court's summary judgment

order with a sharp lens, and lawyer

would risk sanctions from court, did

not make fair judgment impossible,

as required to warrant recusal of

district court judge. 28 U.S.C.A. §

144.

7 Cases that cite this headnote

[3] Libel and Slander Criticism

and comment on public matters and

publication of news

Under Florida law, lawyer's

allegation that internet news article

discussed lawyer's child custody

proceedings, stating that lawyer

was capable of disturbing criminal

sexual behavior, while omitting fact

that no criminal trial regarding

lawyer's alleged sexual misconduct

took place, and that news company

failed to contact him for comment

before publication of article, were

insufficient to allege actual malice,

as required for lawyer, a public

figure, to prevail on defamation

claim against news company; article

gave readers sufficient information

to weigh for themselves the

likelihood of the article's veracity,

including quote from court in child

custody case that matter was civil

proceeding, and not criminal.

1 Cases that cite this headnote

[4] Libel and Slander Criticism

and comment on public matters and

publication of news

Under Florida law, lawyer's

allegation that internet news article

described a pending state Bar

investigation and prior state Bar

grievance, stating that lawyer had

been in trouble with Bar association

and publicly reprimanded for taking

money from a client and never

doing work, and that such claims

were false, were insufficient to

allege actual malice, as required for

lawyer, a public figure, to prevail

on defamation claim against news

company and reporter; article gave

readers sufficient information to

weigh for themselves the likelihood

of the article's veracity, in that

it linked to another news article

discussing disciplinary proceedings

and provided link to state Bar's

public documents.

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Attorneys and Law Firms

*746 Larry E. Klayman, Pro Se.

Sanford L. Bohrer, Scott Daniel Ponce, Brian

W. Toth, Holland & Knight, LLP, Miami, FL,

for Defendants–Appellees.

Appeal from the United States District Court

for the Middle District of Florida, D.C. Docket

No. 5:13–cv–00143–ACC–PRL

Before WILLIAM PRYOR, JORDAN, and

JILL PRYOR, Circuit Judges.

Opinion

PER CURIAM:

Larry Klayman sued six defendants—Ken

Avidor, Aaron Rupar, Matthew Hendley, City

Pages, Phoenix New Times, and Voice Media

Group—for defamation and defamation by

implication under Florida law. The district

court granted summary judgment in favor of

all the defendants and denied Mr. Klayman's

motions to disqualify the court and to amend his

third amended complaint. Mr. Klayman now

appeals. After review of the record and the

parties' briefs, we affirm.

I

Because we write for the parties, we assume

their familiarity with the underlying record and

set out only what is necessary to resolve this

appeal.

Mr. Klayman sought over $15 million in his

defamation suit, which was based on three

internet articles. The complaint was styled in

six counts: three counts for defamation and

three counts for defamation by implication. The

articles themselves reported on two separate

civil proceedings involving Mr. Klayman.

In June of 2009, Mr. Klayman and Stephanie

Luck, his former wife, were engaged in an

acrimonious child custody and support dispute

in Ohio, during which Ms. Luck accused Mr.

Klayman of sexually abusing their children.

The magistrate judge in that case made the

following findings of fact:

[O]n more than one occasion the Plaintiff

act [sic] in a grossly inappropriately [sic]

manner with the children. His conduct may

not have been sexual in the sense that he

intended to or did derive any sexual pleasure

from it or that he intended that the children

would. That, however, does not mean that

he didn't engage in those acts or that his

behavior was proper.

And for all his protestations of innocence ...

he repeatedly invoked his Fifth Amendment

right against self-incrimination ... [Because

this is a civil proceeding,] the Court

may draw an adverse inference from a

party's decision not to respond to legitimate

questions....

D.E. 95–2 at 22. Mr. Klayman filed an

objection to the magistrate judge's order, but

the Ohio trial court overruled the objection.

Mr. Klayman appealed, but the Court of

Appeals of Ohio found that the trial court

did not abuse its discretion when it overruled

Mr. Klayman's objections to “the magistrate's

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finding that Klayman inappropriately touched

the children.” D.E. 95–6 at 11–14.

In November of 2007, Natalia Humm, Mr.

Klayman's former client, filed a Florida Bar

grievance against him for failing to work on her

case after she had paid him a $25,000 retainer.

Mr. Klayman and Ms. Humm submitted the

matter to the Florida Bar Grievance Mediation

Program. The parties settled, and Mr. Klayman

agreed to pay Ms. Humm $5,000 within 90

days from the date of the mediation agreement.

Mr. Klayman failed to make timely payments,

however, and the Florida Bar filed a formal

complaint with the Florida Supreme Court.

Mr. Klayman eventually agreed to pay the

outstanding amount, admitted to violating

several Rules Regulating the Florida Bar,

and consented to a public reprimand by the

Florida Supreme Court. In August of 2011, the

Florida Supreme Court publicly reprimanded

Mr. *747 Klayman for failing to comply with

the settlement terms.

Counts I and IV—the defamation and

defamation by implication claims against Mr.

Avidor, Mr. Rupar, City Pages, and Voice

Media Group—are based on an article authored

by Mr. Rupar and published in City Pages on

September 28, 2012. The article, titled “Bradlee

Dean's Attorney, Larry Klayman, Allegedly

Sexually Abused His Own Children,” discusses

Mr. Klayman's previous comments linking

homosexuality to child abuse and then quotes

the Ohio Court of Appeals decision upholding

the magistrate's factual findings about Mr.

Klayman's conduct.

Counts II and V—the defamation and

defamation by implication claims against Mr.

Hendley, Phoenix New Times, and Voice

Media Group—are based on an article authored

by Mr. Hendley and published in the Phoenix

New Times on February 22, 2013. The article

is titled “Birther Lawyer Fighting Joe Arpaio

Recall Was Found to Have ‘Inappropriately

Touched’ Kids,” and quotes roughly the same

section of the Ohio Court of Appeals decision

that was quoted in the City Pages article.

This February 22, 2013, article reported that

“[Mr. Klayman] was found by a court to have

‘inappropriately touched’ children....” D.E. 52–

2 at 1.

Counts III and VI—the defamation and

defamation by implication claims against

Mr. Hendley, Phoenix New Times, and

Voice Media Group—are based on another

article authored by Mr. Hendley. This article,

published in the Phoenix New Times on

June 18, 2013, and titled, “Larry Klayman

Under Investigation by Arizona Bar,” discussed

an investigation by the Arizona Bar into

Mr. Klayman's efforts to prevent the recall

of Sheriff Joe Arpaio. The article provided

a link to a Miami New Times story that

discussed Ms. Humm's Florida Bar grievance.

That Miami New Times story itself included

a link; it directed those that clicked it to a

Florida Bar web page that contained several

publically available documents relating to the

resolution of Ms. Humm's grievance against

Mr. Klayman, including the formal complaint,

the consent judgment, the report of the referee,

and the Florida Supreme Court reprimand.

The defendants filed two motions to dismiss

the complaint for failure to state a claim. Both

times, the district court granted the motions

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to dismiss without prejudice and gave Mr.

Klayman leave to amend his complaint.

On October 20, 2014, the defendants moved

for summary judgment. They argued, in part,

that Voice Media Group did not publish

any newspapers, that Mr. Avidor did not

write the September 28 article published

by City Pages, that the evidence of actual

malice was insufficient to meet a clear and

convincing evidence standard, and that the

articles' statements were true. Mr. Klayman

filed an opposition to the defendants' motion for

summary judgment.

Before the district court ruled on the motion

for summary judgment, Mr. Klayman filed

a motion to perfect a prayer for punitive

damages. The district court denied the motion

because it was filed 11 months after the

deadline to amend pleadings and because Mr.

Klayman had not shown good cause to excuse

the delay as required by Rule 16(b) of the

Federal Rules of Civil Procedure. Mr. Klayman

then filed a motion for reconsideration and in

the alternative motion to certify as controlling

question of law to the Eleventh Circuit for

interlocutory appeal, which the district court

denied.

In April of 2015, the district court granted

the defendants' motion for summary judgment.

In its order, the district court found that

Voice Media Group and Mr. *748 Avidor

did not publish any of the articles, that Mr.

Klayman had failed to establish a genuine

issue of material fact as to the existence

of actual malice, and that the statements in

one of the articles—the February 22 article

in the Phoenix New Times discussing the

allegations of inappropriate touching—were

true. Afterward, Mr. Klayman filed a motion to

disqualify, under 28 U.S.C. §§ 144 and 455(a),

which the district court also denied.

II

We review for abuse of discretion a district

court's decision as to whether to disqualify. See

Thomas v. Tenneco Packaging Co., 293 F.3d

1306, 1319–20 (11th Cir.2002).

Judges must recuse themselves when they

are personally biased or prejudiced against a

party or in favor of an adverse party. See

28 U.S.C. § 144. “To warrant recusal under

§ 144, the moving party must allege facts

that would convince a reasonable person that

bias actually exists.” Christo v. Padgett, 223

F.3d 1324, 1333 (11th Cir.2000). Judges must

also recuse themselves when their “impartiality

might reasonably be questioned,” or when they

have “a personal bias or prejudice concerning a

party.” 28 U.S.C. § 455(a) and (b)(1). A court

must conduct the inquiry using an objective

standard. See Christo, 223 F.3d at 1333.

For bias to be sufficient to disqualify a judge, it

generally must arise from extrajudicial sources.

See In re Walker, 532 F.3d 1304, 1310–11 (11th

Cir.2008). If instead, the alleged bias arises

from the judge's remarks or opinions during

the course of judicial proceedings (and not

from extrajudicial sources), the party moving

for disqualification must clear a much higher

hurdle. The opinions formed by a judge on the

basis of facts introduced or events occurring

during judicial proceedings are not a basis for a

bias or partiality challenge unless they “display

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a deep-seated favoritism or antagonism that

would make fair judgment impossible.” Liteky

v. United States, 510 U.S. 540, 555, 114 S.Ct.

1147, 127 L.Ed.2d 474 (1994). “Mere friction

between the court and counsel ... is not enough

to demonstrate pervasive bias.” Id. (internal

citations omitted).

Mr. Klayman argues that the district court's

quoting of Alice in Wonderland, admonitions

for his behavior, and the threat of sanctions

revealed the court's bias. Because Mr. Klayman

has produced no evidence that the district

court formed any opinions from extrajudicial

sources, he must demonstrate that the district

court's remarks display such bias that a fair

judgment is impossible.

[1] Many sections of the district court's order

begin with quotes from or allusions to Alice

in Wonderland. For example, the court used

the following quotation as a subheading in the

section discussing actual malice: “I've been

considering words that start with the letter

M. Moron. Mutiny. Murder. Mmm—malice.”

D.E. 124 at 22. Mr. Klayman alleges that the

quote implied that he was the moron and thus

demonstrated bias. But the use of a literary

device to enliven a summary judgment order

does not evidence the kind of “deep seated

favoritism or antagonism that would make fair

judgment impossible.” Liteky, 510 U.S. at 555,

114 S.Ct. 1147.

With respect to the district court's admonitions,

Mr. Klayman primarily takes exception to the

district court's following comments:

[T]he Court learned early on in this case that

this approach to litigation is the norm and not

the exception for Plaintiff.

While the Court would not ordinarily

conclude with an admonition ... when

Plaintiff receives unfavorable rulings, he

*749 often plunges into a tirade against

whomever he feels has wronged him ... This

is all to say that the Court will review any

motion for reconsideration of this Order with

a very sharp lens. Should Plaintiff file a

motion to reconsider, the Court forewarns

Plaintiff that any such motion must at least

arguably meet the stringent standard for

reconsideration of an Order, at the risk of

facing sanctions from the Court.

D.E. 124 at 14 n.7 and 32. He forgets

to mention, however, that the district court

also reproved the defendants for possible

“sandbagging” and “negligence.” D.E. 124 at

13–14 n.6.

[2] It is not uncommon for judges to quote

literature or admonish parties for their behavior.

See, e.g., Mobile Logistics, LLC v. Old

Dominion Freight Line, Inc., Docket No. 4:12–

cv–02297 (S.D. Tex. filed Nov. 7, 2012)

(admonishing attorneys, “1. Motions to the

court must be filed with a caption. / 2. E-mails

will not be read and will be deleted. The court

is not your ex-girlfriend's Facebook wall.”).

Mr. Klayman contends that the comments were

unnecessary, mocking, and unbecoming of a

federal judge. What Mr. Klayman fails to

do is produce evidence or convincingly show

that these statements made a “fair judgment

impossible.” We therefore hold that the district

court did not abuse its discretion in denying Mr.

Klayman's motion to disqualify.

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III

A

In Florida, defamation is composed of the

following elements: (1) publication, (2) a

defamatory statement, (3) falsity, and (4) actual

damages. See Jews For Jesus, Inc. v. Rapp,

997 So.2d 1098, 1106 (Fla.2008). Additionally,

the First Amendment requires that a plaintiff

who is a public person (as stipulated by the

parties here) prove that the defendant acted

with actual malice—knowledge or reckless

disregard as to the falsity of the statement.

See Gertz v. Robert Welch, Inc., 418 U.S. 323,

342, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

This constitutional requirement is examined

under a subjective standard, and a plaintiff must

produce evidence that the defendants “actually

entertained serious doubts as to the veracity of

the published account, or [were] highly aware

that the account was probably false.” Michel v.

NYP Holdings, Inc., 816 F.3d 686, 703 (11th

Cir.2016) (remanding the case to allow the

plaintiffs to plead facts sufficiently alleging

actual malice).

The elements of defamation by implication

are (1) a juxtaposition of a series of facts so

as to imply a defamatory connection between

them, or (2) the creation of a defamatory

implication by omitting facts. See Rapp, 997

So.2d at 1106. Defamation of a public figure

by implication also requires proof of actual

malice because it “is subsumed within the tort

of defamation ... [so] all of the protections of

defamation law ... [are] extended to the tort

of defamation by implication.” Id. at 1108.

See also Kendall v. Daily News Pub. Co., 716

F.3d 82, 90 (3d Cir.2013) (“We agree with

the First, Sixth, Seventh, and Ninth Circuits:

plaintiffs in defamation-by-implication cases

must show something beyond knowledge of,

or recklessness in regard to, the falsity of the

statement's defamatory meaning.”) (emphasis

omitted).

B

We review de novo a district court's grant

of summary judgment and apply the same

legal standards governing the district court's

decision. See Sierra Club, Inc. v. Leavitt,

488 F.3d 904, 911 (11th Cir.2007). Summary

judgment is appropriate “if the movant shows

that there is no *750 genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P.

56(a). A dispute is genuine “if the evidence

is such that a reasonable jury could return a

verdict for the nonmoving party.” Ave. CLO

Fund, Ltd. v. Bank of Am., N.A., 723 F.3d

1287, 1294 (11th Cir.2013). Because a public

figure must prove actual malice by clear and

convincing evidence, the appropriate question

at summary judgment is “whether the evidence

in the record could support a reasonable jury

finding either that the plaintiff has shown actual

malice by clear and convincing evidence or

that the plaintiff has not.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 256–57, 106 S.Ct.

2505, 91 L.Ed.2d 202 (1986).

C

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With respect to the City Pages article—

discussing the child custody proceedings—

Mr. Klayman asserts that the article gives

the false impression that he committed and

was convicted of child sexual abuse. He

specifically points to the sentence, “Turns out,

gays aren't the only ones capable of disturbing

criminal sexual behavior—apparently even

conservative straight guys tight with Bradlee

Dean turn out to be total creeps.” Additionally,

Mr. Klayman claims that the article omitted the

fact that no criminal trial took place and that the

Cleveland Department of Children Families,

the Cuyahoga County Sheriff, and the District

Attorney “cleared” him of sexual misconduct

allegations. Mr. Rupar defends the use of the

word “criminal,” claiming that he understood

the conduct described by the Ohio Court of

Appeals to be “criminal” conduct. Moreover,

because the Ohio Court of Appeals upheld the

trial court's ruling, he believed the statement

was true.

Mr. Klayman argues that the June 18 Phoenix

New Times article—which described the

pending Arizona Bar investigation and the

prior Florida Bar grievance—is defamatory.

The article stated, “Klayman's been in trouble

with a Bar association before, as he was

publicly reprimanded by the Florida Bar in

2011 for taking money from a client, and never

doing any work.” According to Mr. Klayman,

this excerpt represents and gives the false

impression that he was reprimanded for taking

client money and never doing any work, but

he was actually reprimanded for failing to

pay Ms. Humm completely as required by the

settlement. Mr. Hendley responds that he used

the public filings related to the Florida Bar

disciplinary proceedings and the Miami New

Times story as the basis for his article and that

he believed the statements were true at the time

of publication.

Mr. Klayman asserts that he presented

circumstantial evidence to meet the clear and

convincing standard and allow a reasonable

jury to find actual malice. First, he says the

defendants' lack of editorial or verification

processes and the authors' failure to contact him

for comment before publication is evidence

of ill will and a reckless disregard for the

truth. Second, he argues that Mr. Hendley's

prior criminal convictions reveal a man “who

had nothing to lose to take risks and defame

others for a living,” and by hiring him, City

Pages demonstrated that it was “not interested

in the truth.” Mr. Klayman argues that this

compounds the circumstantial evidence of

actual malice. The final piece of evidence,

according to Mr. Klayman, is the defendants'

refusal to correct the statements after receiving

his letter demanding correction.

Mr. Klayman's characterizations of the

defendants are immaterial as to whether

they actually had doubts about the veracity

of the statements or alleged implications.

Furthermore, on this record, the defendants'

failure to investigate and poor *751

journalistic standards are insufficient to

establish actual malice. See Michel, 816

F.3d at 703 (explaining that “[a]ctual malice

requires more than a departure from reasonable

journalistic standards” and that “a failure

to investigate, standing on its own, does

not indicate the presence of actual malice”).

To show actual malice, a plaintiff must

produce evidence “showing that the defendant

purposely avoided further investigation with

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the intent to avoid the truth.” Id. Mr. Klayman

has not produced any such evidence, and a mere

refusal to correct a publication falls short. See

New York Times Co. v. Sullivan, 376 U.S. 254,

286, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964).

[3] [4] Evidence that an article contains

information that readers can use to verify its

content tends to undermine claims of actual

malice. “Where a publisher gives readers

sufficient information to weigh for themselves

the likelihood of an article's veracity, it reduces

the risk that readers will reach unfair (or simply

incorrect) conclusions, even if the publisher

itself has.” Michel, 816 F.3d at 703. In this

case, the September 28 article quotes the Ohio

Court of Appeals' opinion: “The magistrate

stated that he could draw an adverse inference

from Klayman's decision not to testify to these

matters because it was a civil proceeding, not

criminal.” D.E. 52–1 at 2 (emphasis added).

Likewise, the June 18 article links to the Miami

New Times story that (1) discussed the Florida

Bar disciplinary proceedings and (2) provided

a link to the Florida Bar's public documents.

These facts undercut Mr. Klayman's case; if

the defendants actually had been highly aware

of the publications' falsity, it is unlikely they

would have included source information that

refuted any defamatory claims or implications.

D

The district court entered summary judgment

in favor of Voice Media Group and Mr. Avidor

on every pertinent count, holding that neither

published any articles. As to Count II, which

was based on the February 22 article, Mr.

Klayman argued that (1) the statements made

by Mr. Hendley in the article were defamatory

and (2) Mr. Hendley was also liable for

statements he “republished” by linking to the

September 28 article in his February 22 article.

The district court entered summary judgment in

favor of the defendants after finding that (1) the

statements at issue were not false, a required

element of defamation, see Rapp, 997 So.2d at

1106, and (2) Mr. Hendley was not liable for

statements in the September 28 article because

linking to content that is already publicly

available on the internet does not constitute

republication. Mr. Klayman does not challenge

these rulings on appeal and also fails to contest

the district court's grant of summary judgment

on Count V, his corresponding defamation by

implication claim based on the February 22

article. Consequently, we will not consider

them, and we affirm these rulings by the district

court. See Norelus v. Denny's, Inc., 628 F.3d

1270, 1296–97 (11th Cir.2010) (holding that

parties waive all legal claims and arguments

not briefed before the court on appeal). See

also Sapuppo v. Allstate Floridian Ins. Co., 739

F.3d 678, 681 (11th Cir.2014) (“A party fails

to adequately brief a claim when he does not

plainly and prominently raise it, for instance by

devoting a discrete section of his argument to

those claims.”) (internal citation omitted).

Mr. Klayman argues that a blog post authored

by Mr. Avidor—later linked to in Mr. Rupar's

September 28 article that discussed the child

custody case—provides sufficient evidence of

defamation by implication to survive summary

judgment. But *752 Mr. Klayman did not

raise this argument with the district court.

In his opposition to the motion for summary

judgment, Mr. Klayman mentioned the blog

post as circumstantial evidence of actual

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malice. Only on appeal does he argue a claim

for defamation by implication based on the blog

post. We therefore decline to consider it. See

Norelus, 628 F.3d at 1296 (stating that issues

not raised by a party in the district court are not

considered on appeal).

Considering all the evidence, and drawing all

reasonable inferences in favor of Mr. Klayman,

we hold that a reasonable jury could not find

the existence of actual malice on the part

of the defendants by clear and convincing

evidence. The district court did not err in

granting summary judgment in favor of the

defendants. As a result, Mr. Klayman's claim

that the district court erred in denying his

motion to perfect a prayer for punitive damages

is rendered moot.

IV

For the foregoing reasons, we affirm the district

court's grant of summary judgment on all

counts, the denial of Mr. Klayman's motion

to disqualify, and the denial of his motion to

perfect a prayer for punitive damages.

AFFIRMED.

All Citations

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