UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

 

LYNCH & CO. FUNERAL DIRECTORS, PLLC,

et al.,

Plaintiffs,

v.

Case No. 08-CV-13949-DT

FUNERAL ETHICS ORGANIZATION, INC., et

al.,

Defendants.

/

OPINION AND ORDER GRANTING DEFENDANTS’ 

MOTIONS FOR SUMMARY JUDGMENT

Before the court are three motions for summary judgment: a June 1, 2009,

motion filed by Defendant Funeral Ethics Organization (“FEO”), a June 26, 2009 motion

filed by Defendant Lisa Carlson, and a June 30, 2009 motion filed by Funeral

Consumers Alliance (“FCA”). The motions have been fully briefed and the court

concludes a hearing is not necessary. See E.D. Mich. LR 7.1(e)(2). For the reasons

stated below, the court will grant the motions.

I. FACTUAL BACKGROUND

Plaintiff Thomas Lynch is a mortician, author, and poet. He and his son, Michael,

are the only two members of Plaintiff Lynch & Co. Funeral Directors, PLLC (“Lynch &

Co.”). (Lynch Dep. at 18, FEO’s Mot. Ex. F.) Lynch & Co. Operates a funeral home in

Milford, Michigan, providing “after-life service” to residents in and around the Village of

Milford. (Pls.’ FEO Resp. Br. at iv.)

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1Plaintiffs do not base their defamation action on this statement, but utilize

it in an attempt to show malice by Defendants.

2

Since at least July 1998, Lynch has been involved in disagreements with

Defendant Lisa Carlson over funeral and after-life issues. According to Plaintiffs,

Defendants FCA and FEO are primarily involved in the “harassment” of the Lynches

due to Carlson’s roles at the two organizations. (Pls.’ FCA Resp. at iv, v.) She held the

position of Executive Director of Defendant FCA until she became the Executive

Director and Editor of FEO. (Id. at v.) However, Plaintiffs contend that Carlson has

continued her involvement in both organizations and that both organizations are

intertwined with one another. (Id.) The first record of the acrimony between the parties

appears in a 1998 article in the Oakland Press, entitled “Area Funeral Director’s Novel

Sparks Dispute.” (Pls.’ FEO Resp. Ex. C.) Referring to Lynch, Carlson is quoted as

saying “[t]he guy’s a snake,” and “his words will come back to haunt him in writing.” 

(Id.)

1

 

According to Plaintiffs, shortly after the Oakland Press article appeared, Lisa

Carlson self published her book, Caring for the Dead: Your Final Act of Love, in which

she references Lynch. (Pls.’ FEO Resp. v.) In her book, she claims that Lynch misled

the public in his book, The Undertaking, as to the need for body donations in medical

schools. (Id. at Ex. D.) She quoted Lynch as stating that “the supply of cadavers for

medical and dental schools in this land of plenty was shamefully but abundantly

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2Plaintiffs do not base their defamation action on this statement, but cite it,

as with the previous statement, as an example of the long-standing disagreement

between the parties.

3

provided for,” and then she queried “How many has he plied with this lie so the business

could enjoy yet another ‘good year’?” (Id.)

2

In 2007, PBS aired a documentary based on Lynch’s book, The Undertaking. 

The video jacket describes the documentary as follows:

FRONTLINE enters the world of Thomas Lynch, a poet and undertaker

whose family has cared for the dead–and the living–in a small Michigan

town for three generations. For the first time, Lynch and his family allowed

cameras inside Lynch & Sons giving behind-the-scenes access–from

funeral arrangements to the embalming room—to the Lynches’ world. 

Through the intimate stories of families coming to terms with grief,

mortality, and a funeral’s rituals, THE UNDERTAKING illuminates the

heartbreak and beauty inherent in the journey taken between life and

death.

(Pls.’ FEO Resp. Ex. E.) 

On November 9, 2007, Lisa Carlson, Executive Director of FEO, disseminated a

review, in email form, of The Undertaking to various sources, including PBS Frontline. 

(Pls.’ FEO Resp. Ex. F.) In the review, Carlson states, in part:

In today’s world . . . the purchase of a funeral is also a business

transaction, in which the interests of consumers are protected by the

Federal Trade Commission’s (FTC) Funeral Rule. In the program, the

Lynches appear to have ignored the Rule, breaking the law in their

dealings with at least three families. Was Anna Dugan ever given a

casket price list showing the range of costs before going into the casket

show room, or was that piece of paper Sean Lynch kept in his hands as

he deftly escorted her to a Newpointe Stainless Steel casket at a price of

$1,000 higher than that selected for the average U.S. funeral?

There was nothing visible on the laps of the Verrinos or on Tom Lynch’s

desk in front of them that was likely a General Price List (GPL) of all the

funeral options from which they could choose for baby Anthony, even

though such a list is a basic requirement of the FTC Rule at the state of

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4

any funeral discussion. Was this because the Lynches will give away this

funeral, as many funeral directors do for infants? We weren’t told.

 (Id.) Plaintiffs contends in their complaint that the offensive statement, “[i]n the

program, the Lynches appear to have ignored the Rule, breaking the law in their

dealings with at least three families,” was also quoted in the Fall 2007 FCAI Newsletter.” 

(Compl. ¶ 17; see also Pl.’s Carlson Resp. at 1, citing Ex. A.) The court’s review of the

cited Exhibit, however, does not reveal the quoted sentence. 

In its Spring-Summer Newsletter of 2008, the FEO published an article entitled

“Black Eye for Green Burial Council,” in which Carlson writes, “Listed in Michigan, too,

are six Lynch funeral homes. The Lynches have been vocal against families caring for

their own dead, even though Michigan has an excellent home burial statute, the ideal

low-cost ‘green’ option, if one didn’t have to use a funeral director, too.” (’s FEO Resp.

Ex. H.) 

Lynch avers that neither he nor Lynch & Co. has” vocalized any opposition to a

family or an individual’s rights to care for their own dead within the applicable federal,

state and local laws.” (Lynch Aff. at ¶ 7., Pls.’ FEO Resp. Ex. A.) He further states that

he has never been “involved in any public debate or controversy involving green burials,

or allowing or disallowing families caring for their own dead.” (Id. at ¶ 5.) Thus, after

the publication of the 2008 Newsletter, Lynch contacted FEO and demanded a

retraction. In response, Carlson, as editor of the FEO Newsletter, posted a comment to

its website quoting the challenged statement (regarding the Lynches being vocal

against families caring for their dead) and retracting the statement. She continued,

however, by stating that “[s]everal of the Lynches appear to be concerned that there is a

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3Plaintiffs allege that the statement was published in FCAI’s Fall 2007 Newsletter,

however, it does not appear in the exhibit submitted to the court. This discrepancy is

5

growing consumer effort to change the Michigan laws that require a funeral director to

file the death certificate and oversee final disposition” and that “Tom Lynch has stated to

me personally that he will lobby against such a change in the laws, change that would

allow families to care for their own dead without a funeral director.” (Pls.’ FEO Resp.

Ex. J.) 

Further, Defendant FCA has posted on its website a power point presentation

entitled “Deconstructing Thomas Lynch.” (Pls.’ FCA Resp. Ex. J.) The presentation

includes the following statement, which Plaintiffs alleged is libelous: “Lynch suggests

only two alternatives: 1. Cremation, which quickly disposes of the body by fire, followed

by a memorial service, or 2. A funeral, at which the body must be displayed in the way

funeral directors prefer.” (Id.) The presentation concludes with a statement which

Plaintiffs contend exhibit Defendants intent: “If we throw out Tom’s ‘baby’ with the

baptism water, it will cost him money, and that’s what caused Tom to go wrong.” (Id.) 

II. PROCEDURAL BACKGROUND

On September 12, 2008, Plaintiffs Thomas Lynch and Lynch & Co. filed a fourcount complaint against Lisa Carlson, FCA, Funeral Consumers Alliance of Idaho

(“FCAI”), and FEO. (Compl.) On July 3, 2009, FCAI was voluntarily dismissed. 

(7/03/09 Notice of Dismissal.) Count I alleges defamation per se against Defendant

Carlson. (Pls.’ Comp. ¶ 25.) Count I is based on the following st

atement: “In the program, the Lynches appear to have ignored the Rule breaking the

law in the their dealings with at least three families.” (Pls.’ Comp. ¶ 17.)3

 Plaintiffs

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not material to the court’s analysis because the court finds the statement is not

actionable even if Plaintiffs had submitted proof of its publication. As discussed below,

Plaintiffs have failed to show actual malice as to this statement and, indeed, as to every

statement cited by them as defamatory. 

6

contend the statement constitutes defamation per se because it purportedly states that

Plaintiffs are guilty of criminal activity. 

Count II alleges defamation against defendant FCA. Count II alleges that the

presentation “Deconstructing Thomas Lynch: Why good guys sometimes go wrong”,

available at www.funerals.org, falsely states that: “Lynch only suggests two alternatives:

(1) Cremation, which quickly disposes of the body by fire, followed by a memorial

service or (2) A funeral, at which the body must be displayed in the way funeral

directors prefer.” (Pls.’ Comp. ¶¶ 14, 15.) 

Count III alleges defamation against defendants Carlson and FEO. Count III

alleges that the following statement, published in FEO’s Spring-Summer Newsletter

2008 and available online at www.funeralethics.org, is defamatory: “Listed in Michigan,

too, are six Lynch funeral homes. The Lynches have been vocal against families caring

for their own dead, even though Michigan has an excellent burial statute, the ideal lowcost ‘green’ option, if one didn’t have to use a funeral director, too.” Id. at ¶¶ 19-22. 

Count IV alleges defamation per se against defendants Carlson, FEO, and FCA. 

Count IV alleges that Plaintiffs have suffered business losses from the defamatory

statements noted in the other counts and that these damages are actionable as

defamation per se as being injurious to their business reputation. (Pls.’ Comp. ¶¶ 59,

64.)

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IV. STANDARD

Under Federal Rule of Civil Procedure 56, summary judgment is proper when

there is no genuine issue as to any material fact and the moving party is entitled to

judgment as a matter of law. Fed. R. Civ. P. 56(c). “In deciding a motion for summary

judgment, the court must view the evidence in the light most favorable to the nonmoving party, drawing all reasonable inferences in that party’s favor.” Sagan v. United

States, 342 F.3d 493, 497 (6th Cir. 2003). “Where the moving party has carried its

burden of showing that the pleadings, depositions, answers to interrogatories,

admissions and affidavits in the record, construed favorably to the non-moving party, do

not raise a genuine issue of material fact for trial, entry of summary judgment is

appropriate.” Gutierrez v. Lynch, 826 F.2d 1534, 1536 (6th Cir. 1987) (citing Celotex

Corp. v. Catrett, 477 U.S. 317 (1986)).

The court does not weigh the evidence to determine the truth of the matter, but

rather, to determine if the evidence produced creates a genuine issue for trial. Sagan,

342 F.3d at 497 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)). 

The moving party must first show the absence of a genuine issue of material fact. Plant

v. Morton Int’l, Inc., 212 F.3d 929, 934 (6th Cir. 2000) (citing Celotex, 477 U.S. at 323). 

The burden then shifts to the nonmoving party, who “must do more than simply show

that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus.

Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). He must put forth enough

evidence to show that there exists a genuine issue to be decided at trial. Plant, 212

F.3d at 934 (citing Anderson, 477 U.S. at 256). Summary judgment is not appropriate 

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when “the evidence presents a sufficient disagreement to require submission to a jury.” 

Anderson, 477 U.S. at 251-52 (1986). The existence of a factual dispute alone does

not, however, defeat a properly supported motion for summary judgment – the disputed

factual issue must be material. See id. at 252 (“The judge’s inquiry, therefore,

unavoidably asks whether reasonable jurors could find by a preponderance of the

evidence that the plaintiff is entitled to a verdict – ‘whether there is [evidence] upon

which a jury can properly proceed to find a verdict for the party producing it, upon whom

the onus of proof is imposed.’” (alteration in original)(citation omitted)). A fact is

“material” for purposes of summary judgment when proof of that fact would establish or

refute an essential element of the claim or a defense advanced by either party. Kendall

v. Hoover Co., 751 F.2d 171, 174 (6th Cir. 1984) (citation omitted). 

IV. DISCUSSION

Under Michigan law, a claim for defamation is comprised of four elements: ”(1) a

false and defamatory statement concerning the plaintiff, (2) an unprivileged

communication to a third party, (3) fault amounting to at least negligence on the part of

the publisher, and (4) either actionability of the statement irrespective of special harm or

the existence of special harm caused by publication.” Rouch v. Enquirer & News, 487

N.W.2d 205, 211 (Mich. 1992). 

Although the three remaining Defendants have filed separate motions for

summary judgment, they all assert that the claims against them fail as a matter of law

because Plaintiffs are limited public figures and they cannot show that Defendants acted

with actual malice. The Supreme Court has held:

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Those who, by reason of the notoriety of their achievements or the vigor

and success with which they seek the public's attention, are properly

classed as public figures and those who hold governmental office may

recover for injury to reputation only on clear and convincing proof that the

defamatory falsehood was made with knowledge of its falsity or with

reckless disregard for the truth.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). “In Gertz v. Robert Welch, Inc .

. . the Supreme Court addressed the limited public figure classification, stating that an

individual who voluntarily injects himself or is drawn into a particular public controversy

thereby becomes a public figure for a limited range of issues.” Hodgins Kennels, Inc. v.

Durbin, 429 N.W.2d 189, 194 (Mich. Ct. App. 1988), rev’d on other grounds, 438

N.W.2d 247 (Mich. 1989). 

Another judge in this district has articulated the limited public figure test as

follows: 

In order to establish that Plaintiff is a limited purpose public figure,

Defendants must show that Plaintiff has:

(1) successfully invited public attention to his views in an effort to influence

others prior to the incident that is the subject of the litigation;

(2) voluntarily injected himself into a public controversy related to the

subject of the litigation;

(3) assumed a position of prominence in the public controversy; and

(4) maintained regular and continuing access to the media.

Nehls v. Hillsdale College, 178 F. Supp. 2d 771, 778 (E.D. Mich. 2001) (Friedman, J.)

(citing Pesta v. CBS, Inc., 686 F.Supp. 166, 169 (E.D. Mich.1988)). 

The Michigan Court of Appeals has held that, “on summary judgment motions

involving alleged libel of public officials or public figures by the media, if any benefit of

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4Lynch referred in his deposition to the “Irish American Attorneys Association,”

but he likely meant the Incorporated Society of Irish American Attorneys.

10

the doubt is to be given, it must go to the media under First Amendment constitutional

rights of free speech and free press.” Lins v. Evening News Ass'n, 342 N.W.2d 573,

577 (Mich. Ct. App. 1983). This is because “[t]he federal cases make it clear that the

chilling effects on the exercise of First Amendment rights of encouraging full scale state

libel trials by public officials or ‘limited’ public figures will not be permitted. While this

factor is not decisive, it must be kept firmly in mind in assessing matters such as burden

of proof.” Id.

Here, the court finds that Lynch is a limited purpose public figure with respect to

the public controversy of societal views on funerals, cremations, and the legal

requirements regarding funerals and burial. Lynch has been active in the funeral

industry for at least 35 years. (FEO’s Mot. For Summ. J. Ex. C.) He has written and

spoken extensively about the effects of cemetery and mortuary protocols on the

relationship between the living and the dead. Id. Lynch has authored six books,

including Skating with Heather Grace, Gimalkin and Other Poems, The Undertaking,

Bodies in Motion and at Rest, Still Life in Milford, and Booking Passage. (Lynch Dep. at

73.) His book, The Undertaking, won the American Book Award, the Hartland Prize for

Non Fiction, an award from the “Irish American Attorneys Association,”4

 and it was a

finalist for the National Book Award. (Id.) The Undertaking has been translated into six

languages, and was the subject of a PBS Frontline documentary of the same title. (Id.

at 74, 76.) The PBS documentary was largely filmed at Lynch’s funeral home, operated

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by Lynch and Co., and his siblings funeral home in Clawson, Michigan. (FEO’s Mot. at

¶ 10; Lynch Dep. at 156-158.) 

Lynch has also appeared on a PBS series entitled On Our Own Terms, with Bill

Moyers, the Today Show, and C-Span. (Id. at 77-79.) He has given interviews and

commentaries which have been aired on National Public Radio (“NPR”) and the British

Broadcasting Channel (“BBC”). (Id. at 79.) He has written “dozens” of newspaper

articles for such newspapers as the New York Times, Washington Post, Boston Globe,

Los Angelos Times, as well as many other newspapers. (Id. at 78.) Lynch also serves

on the State Board in Mortuary Science by appointment from the Governor of Michigan. 

(FEO’s Mot. For Summ. J. Ex. C.)

Simply stated, Lynch has enjoyed a very successful and prominent career in

more than one field. At the intersection of his two primary career choices, funerals and

writing, Lynch appears to be as public a figure as the field has to offer. He has

successfully invited public attention to his views in an effort to influence others,

voluntarily injected himself into the public debate of funeral care, assumed a position of

prominence in the funeral field, and he maintains regular and continuing access to the

media. Nehls, 178 F. Supp. 2d at 778. The court’s conclusion is based on the manner in

which Lynch has propelled himself into the public discussion of after-life care by

“invit[ing] attention and comment and . . . by taking affirmative steps to attract attention

when he consented to television as well as to newspaper interviews. Thereby, he thrust

himself ‘to the forefront of (a) particular public controvers(y) in order to influence the

resolution of the issues involved.’” Hayes v. Booth Newspapers, Inc., 295 N.W.2d 858,

865-66 (Mich. Ct. App. 1980) (citing Gertz, 418 U.S. at 345, Time, Inc. v. Firestone, 424

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5Likewise, the court rejects Defendants’ arguments that Lynch & Co. is not a

proper plaintiff in this action. A rational finder of fact could reasonably find that the

12

U.S. 448, 453 (1976)). As a result, Lynch is a limited purpose public figure for the

purposes of this suit. 

Further, Lynch & Co. is a limited public figure to the extent that Lynch himself is. 

Businesses, just like individuals, can become a limited purpose public figure. In

Lakeshore Community Hospital., Inc. v. Perry, 538 N.W.2d 24 (Mich. Ct. App. 1995), a

hospital filed a tortious interference suit against an individual who opposed a merger the

hospital was seeking. The Michigan Court of Appeals held that the plaintiff hospital was

a limited purpose public figure for purposes of the suit because it was a long established

business, was the only hospital in the area that provided obstetric and acute care

services, and was a “prominent and critical component of the health care delivery

system in the community, whose presence and operation directly affect the community.” 

Id. at 28. 

Lynch & Co. fills a community niche much like the hospital in Lakeshore. 

Although Lynch & Co. may operate in a small town in Michigan, the company has

gained national attention through the efforts of one of its two members, Thomas Lynch. 

Not only was the business featured on the PBS documentary, The Undertaker, but

Lynch testified at his deposition that there is no difference between himself and Lynch &

Co. for purposes of the allegations in this lawsuit. (Lynch Dep. at 110, FEO’s Ex. F.) 

He claims that references to the “Lynches” are simultaneously references to Lynch &

Co. For this reason, to the extent Thomas Lynch inserts himself into the public arena to

discuss or write about funeral care, he necessarily carries with him Lynch & Co.5

 As a

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alleged defamatory statements are directed at both Lynch and Lynch & Co. 

13

result, Lynch and Co. is also a limited purpose public figure for the purposes of this suit. 

Because of the limited purpose public figure standard announced in Gertz, both Lynch

and Lynch & Co. must show malice by clear and convincing evidence in order to

succeed in this defamation action.

B. MALICE ANALYSIS

If the plaintiff is a public official or a public figure, the First Amendment requires

the plaintiff to prove that the defendant's statements are false and that the defendant

acted with actual malice. New York Times Co. v. Sullivan, 376 U.S. 254, 279-80,

(1964). A defendant acts with “actual malice” where the defendant knew the allegedly

defamatory statement was false, or acted “with reckless disregard of whether it was

false or not.” Sullivan, 376 U.S. at 280. “It also is worth emphasizing that the actual

malice standard is not satisfied merely through a showing of ill will or ‘malice’ in the

ordinary sense of the term.” Harte-Hanks Communications, Inc. v. Connaughton, 491

U.S. 657, 666-67 (1989). The Supreme Court has stated that reckless disregard in this

context means that the defendant must have published the material with a high degree

of awareness of probable falsity or entertained serious doubts about the truth of the

publication. Id. Preconceived objectives or insufficient investigation do not constitute

reckless disregard. Ireland v. Edwards, 584 N.W.2d 632, 640 (Mich. Ct. App. 1998)

(quoting Grebner v. Runyon, 347 N.W.2d 741 (Mich. Ct. App. 1984)). “[A] public figure

plaintiff must prove more than an extreme departure from professional standards and

that a newspaper's motive in publishing a story-whether to promote an opponent's

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14

candidacy or to increase its circulation-cannot provide a sufficient basis for finding

actual malice.” Harte-Hanks Communications, Inc., 491 U.S. at 665.

In Harte-Hanks the Supreme Court held that the evidence supported a finding of

malice where the evidence revealed that a “newspaper's inaction was a product of a

deliberate decision not to acquire knowledge of facts that might confirm the probable

falsity of [the published statements.] Although failure to investigate will not alone

support a finding of actual malice the purposeful avoidance of the truth is in a different

category.” Id. at 692. However, instances of shoddy reporting alone do not constitute

malice. See, e.g., Faxon v. Michigan Republican State Central Committee, 624 N.W.2d

509, 512-13 (Mich. Ct. App. 2001) (holding that despite the author’s failure to verify the

accuracy of their sources, an inaccurate campaign brochure stating that a candidate

inappropriately used legislative immunity to avoid a lawsuit after selling an imposter

Ming vase did not constitute malice because the authors of the brochure based their

belief on other published news articles); Battaglieri v. Mackinac Center For Public

Policy, 680 N.W.2d 915, 922 (Mich. Ct. App., 2004) (holding that a think-tank pamphlet

which contained an out of context, yet accurate, statement by an adversary did not

exhibit malice despite the fact that the statement could have placed the adversary in a

false light); Collins v. Detroit Free Press, Inc., 627 N.W.2d 5, 10 (Mich. Ct. App., 2001)

(holding that even a purposeful alteration of a statement would not constitute malice if

the alteration is not “material”).

Here, Plaintiffs are unable meet their evidentiary burden to show that any of the

Defendants either knew the material they published was false or exhibited reckless

disregard for the truth of the statements.

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6Indeed, the record before the court suggests that the “debate” between the

parties has been instigated primarily by Defendants, particularly Lisa Carlson. Her

numerous, tendentious commentaries could easily be viewed as not much more than

attempts to use Lynch’s renown to launch herself, and her agenda, into a limelight to

which she would not otherwise have much access. Lynch, on the other hand, seems to

have exercised a fair amount of restraint, largely avoiding the irritation presented by

Defendants’ efforts.

15

What Plaintiffs have demonstrated is that the two parties are on opposite sides of

a public discussion regarding the proper latitude families should be given when a loved

one dies. That Plaintiffs may argue that they were dragged into this discussion does not

negate the undisputed fact that the parties are in a public dispute revolving around afterlife care, the area in which Plaintiffs operate as limited public figures.6

 In their response

to FEO’s Motion for Summary Judgment, Plaintiffs list several instances that they claim

establish that FEO and Carlson acted with malice. While circumstantial evidence can

prove malice, Hodgins v. The Times Herald Company, 425 N.W.2d 522, 528 (Mich. Ct.

App. 1988) (citing Steadman v. Lapensohn, 288 N.W.2d 580 (1980), rehearing denied

408 Mich. 1109 (1980)), here the proffered examples fall short of showing that any of

the Defendants had the requisite mental state to achieve malice. The evidence Lynch

presents is:

(1) The quote “The guy’s a snake.” (Pls.’ FEO Resp., Ex. C.)

(2) The quote “his words will come back to haunt him in writing.” (Id.) 

(3) In “Caring for the Dead: Your Final Act of Love” Lisa Carlson accused

Lynch of falsely claiming that medical schools were not in need of

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7According to Carlson’s investigations which she details on the same page, this is

true. All of the medical schools in the state of Michigan do need bodies to one degree

or another. (Pls.’ Resp. To FEO’s Mot. For Summ. J. Ex. D.) Plaintiffs have offered no

evidence that Carlson’s assertions regarding the need for cadavers are false.

8Lynch agrees that there is no depiction of a mandated price list provided to

customers in the final version of the documentary. (Carlson’s Mot. For Summ. J. Ex. B

at 155.)

9When read in context, the court attributes a different meaning to Carlson’s

statement than that suggested by Lynch. When Carlson speaks of “putting it up” she is

referring to posting a public link to the most recent newsletter. It appears to the court

that Carlson is delaying posting the link because she wants subscribers to have access

to the newsletter before the general public, not, as Lynch suggests, because she wants

to let the libelous material linger so that it can have a fuller effect. Lynch’s assertion that

Carlson is delaying posting a retraction is also doubtful because in the same draft

Carlson states that “I see no need to retract any statements made in the newsletter”. 

(Pls.’ FEO Resp. Ex. N.) 

16

cadavers, freeing up more bodies for funerals. (Pls.’ Resp. To FEO’s Mot.

For Summ. J. at 12.)7

(4) The quote found in Carlson’s review of “The Undertaking”: “In the

program, the Lynches appear to have ignored the Rule breaking the law in

the their dealings with at least three families.” (Pls.’ FEO Resp., Ex. G.)8 

(5) The fact that FEO mentions only his funeral practice, and no other

Michigan funeral practices, in the Spring-Summer 2008 newsletter. (Pls.’

FEO’s Resp. at 12.) 

(6) Plaintiffs’ allegation that Carlson decided to wait a while before putting up

a retraction so that subscribers could see the defamatory material first. 

(Pls.’ FEO Resp. Ex. N.) 9

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(7) An email from one of FEO’s board members that states “I think it is wrong

what you are doing - at this point you seem to be creating a personal

argument.” (Pls.’ FEO Resp., Ex. O.)

 The evidence shows that Carlson called Lynch a snake, spoke only of his

practice and no others in the FEO article, received an email from a board member who

believed the argument was becoming personal, and made various other statements

regarding her dislike of or disagreement with Plaintiffs. The evidence provided by

Plaintiffs establish that the parties are on opposing sides of a hotly, though perhaps not

widely, contested political issue and that the debate is becoming increasingly

malevolent. This is precisely the sort of ill will that is insufficient to constitute “actual

malice.” Ireland, 584 N.W.2d at 640 (“Ill will, spite, or hatred standing alone do not

constitute actual malice”). Indeed, “‘[a]ctual malice’ here means knowledge of the falsity

of the published statements or reckless indifference as to whether they were true or

false. Actual malice is to be distinguished from a bad or corrupt motive or some

personal spite or desire to injure the plaintiff.” Hayes v. Booth Newspapers, Inc., 295

N.W.2d 858, 866 (Mich. Ct. App.1980) (citing Beckley Newspapers Corp. v. Hanks, 389

U.S. 81, 82 (1967).

None of the evidence presented by Plaintiffs exhibits a reckless disregard for the

truth or knowledge that statements were false. In fact, many of the statements alleged

to support a finding of malice appear, based on the record before the court, to be true,

and certainly Defendants have not produced evidence that shows them to be patently

false. 

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10Even if the court had not granted summary judgment on the lack proof of actual

malice, Defendants would nonetheless be entitled to summary judgment on at least

some of the other grounds raised by Defendants in their briefs. For example, the

statement involving what “appears” to occur on the documentary appears to be either

provably true or statement of Carlson’s opinion in reviewing the documentary. 

Moreover, the court is inclined to find that Plaintiffs could not prove damages if this case

proceeded to trial. Plaintiffs have foregone any expert testimony on the issue and at his

deposition, Lynch admitted that he could not say if a downturn in business related to the

alleged defamatory material. (Lynch Dep. at 276, FEO’s Mot. Ex. F.) While his

subsequently signed affidavit attempts to assert, in a rather conclusory manner, that his

loss in profits “may be attributed” to the challenged statements, this half-hearted

assertion could not be used to contradict his earlier sworn statement. A party may not

create a genuine issue of material fact by filing an affidavit that “essentially contradicts

his previous deposition testimony” after a motion for summary judgment has been filed.

Penny v. United Parcel Serv., 128 F.3d 408, 415 (6th Cir. 1997). 

18

Even if Plaintiffs had shown the statements were false, they still cannot show

actual malice based on the evidence before the court. A defendant acts with “actual

malice” only where the defendant knew the allegedly defamatory statement was false,

or acted “with reckless disregard of whether it was false or not.” Sullivan, 376 U.S. at

280. Plaintiffs, however, have not deposed Carlson or any representatives of FEO or

FCA and are unable to offer any evidence as to their state of knowledge of the

statements, or their alleged reckless disregard of the falsity of those statements.

Because Lynch and Lynch and Co. are both limited purpose public figures, they

must provide evidence such that a rational finder of fact could find actual malice by clear

and convincing evidence. Anderson, 477 U.S. at 254 (1986). Here, neither Plaintiff has

done so. The evidence offered by Lynch proves that there is a vigorous public debate

and some degree of ill will. Nonetheless, there is no evidence on which a rational jury

could find actual malice. Defendants are therefore entitled to summary judgment on all

four counts of the complaint.10

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S:\Cleland\JUDGE'S DESK\C3 ORDERS\08-13949.LYNCH.SJ.wpd

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V. CONCLUSION

IT IS ORDERED Defendants’ motions for summary judgment [Dkt. ## 41,45,47]

are GRANTED.

 S/Robert H. Cleland 

ROBERT H. CLELAND

UNITED STATES DISTRICT JUDGE

Dated: July 31, 2009

I hereby certify that a copy of the foregoing document was mailed to counsel of record

on this date, July 31, 2009, by electronic and/or ordinary mail.

 S/Lisa G. Wagner 

Case Manager and Deputy Clerk

(313) 234-5522

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