Angelo MEDURE, Plaintiff, v. THE VINDICATOR PRINTING CO. and Cory Armstrong, Defendants, 273 F. Supp. 2d 588

MEMORANDUM STANDISH, District Judge. I In this civil action, plaintiff, Angelo Me-dure (Medure), seeks damages for defamation from defendants, The Vindicator Printing Company and Cory Armstrong (Armstrong). Presently, before the court are the parties’ objections to the Amended Report and Recommendation of Magistrate Judge Ila Jeanne Sensenich (Magistrate Judge Sensenich) with respect to defendants’ motion for

summary judgment pursuant to Fed.R.Civ.P. 56. For the reasons set forth below, Magistrate Judge Sensenich’s Amended Report and Recommendation will be adopted in part and overruled in part, and judgment will be entered in defendants’ favor as a matter of law. II Medure owns Gaming World International, Inc. (Gaming World), a company which was engaged in the business of developing and managing casinos on Indian reservations. In early 1992, Gaming World entered into a five-year contract to manage the Shooting Star Casino for the White Earth Band of Chippewa Indians (White Earth Band) in Mahnomen, Minnesota. This defamation action arises out of the November 13, 1997 publication of an

article by Armstrong, who was a reporter for The Vindicator, a daily newspaper based in Youngstown, Ohio. In the article, Armstrong stated that the White Earth Band had terminated its contract with Gaming World in August, 1996, and that Gaming World had been “placed under FBI investigation on allegations of skimming $22 million from the casino.” In Count One of the complaint, Medure and Gaming World alleged that Armstrong’s November 13, 1997

article was defamatory because it imputed criminal activity to them. In Count Two, Medure and Gaming World alleged that neither Medure nor Gaming World was a public figure or involved in a public controversy, and that defendants’ conduct was malicious, wanton, willful, reckless, intentional and outrageous. Therefore, Medure and Gaming World requested an award of punitive damages. When the action was removed by defendants from the Court of Common Pleas of Lawrence County, Pennsylvania to this court on November 17, 1998, it was referred to Magistrate Judge Sensenich for pretrial procedures.

Based on a stipulation of the parties, all claims asserted against defendants by Gaming World, as well as all claims asserted by Medure for economic injuries, were dismissed on October 19, 1999. Thereafter, on January 31, 2000, defendants filed a motion for

summary judgment pursuant to Fed.R.Civ.P. 56. On August 28, 2000, Magistrate Judge Sensenich filed a Report and Recommendation with respect to defendants’ motion for

summary judgment, recommending that the motion be denied. In

summary, Magistrate Judge Sensenich recommended that the court make the following findings: (1) that Medure should not be deemed a limited purpose public figure for purposes of his defamation claim against defendants; (2) that, because Me-dure is a private figure in this case, defendants have the burden of proving that the statement in Armstrong’s November 13, 1997

article regarding an FBI investigation was true, which cannot be decided by

summary judgment; (3) that Pennsylvania law applies to Medure’s defamation claim; (4) that defendants failed to demonstrate that the statement in Armstrong’s November 13, 1997

article regarding an FBI investigation was substantially true; (5) that, with respect to defendants’ argument that the challenged statement in Armstrong’s November. 13, 1997

article is protected by the “fair report” privilege, plaintiff has demonstrated the existence of a material fact as to whether defendants abused this privilege, precluding

summary judgment in defendants’ favor on this ground; (6) that the alleged defamatory statement in Armstrong’s November 13, 1997

article is not protected by the “wire service” privilege pursuant to which republication of a news

article published by a recognizable and reliable source of daily news cannot constitute defamation, unless the story was reproduced in a negligent manner; and (7) that the issue of whether the statement in question was “of and concerning” Medure is a question of fact for the jury. Defendants filed objections to Magistrate Judge Sensenich’s Report and Recommendation, and, after considering the memoranda and exhibits and depositions submitted in support of, and in opposition to, defendants’ objections, Magistrate Judge Sensenich filed an Amended Report and Recommendation on December 1, 2000. Again, Magistrate Judge Sensenich recommended that defendants’ motion for

summary judgment be denied. However, Magistrate Judge Sensenich made several substantial substantive changes to her original Report and Recommendation. Specifically, in the Amended Report and Recommendation, Magistrate Judge Sensenich recommended the court find that (1) although the court was not bound by a decision of the Honorable Maurice B.

Cohill, Jr. in a prior defamation case against different defendants that Medure was a limited purpose public figure, Me-dure should be deemed a public figure for purposes of a public controversy in this case based on, inter alia, the reasoning of Judge Cohill in that case (see Medure v. The New York Times Co., 60 F.Supp.2d 477 (W.D.Pa.1999)); (2) based on Me-dure’s status in this case as a limited purpose public figure, defendants are entitled to the heightened protections described by the United States Supreme Court in New York Times Co. v.

Sullivan, 376 U.S. 254, 278-80, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), i.e., in order to recover damages, Medure has the burden of showing by clear and convincing evidence that defendants acted with actual malice; and

(3) Medure has the burden of proving that the challenged statement in Armstrong’s November 13,1997

article was false. Subsequently, objections to Magistrate Judge Sensenich’s Amended Report and Recommendation were filed by Medure and defendants, and the court heard oral argument on the objections. After consideration of the parties’ arguments, as well as the materials submitted in support of, and in opposition to, their respective objections, the court adopts Magistrate Judge Sensenich’s amended recommendation that Medure be deemed a limited purpose public figure for purposes of this lawsuit based on her thorough analysis of the issue in the Amended Report and Recommendation. However, the court declines to adopt Magistrate Judge Sensenich’s recommendation that defendants’ motion for

summary judgment be denied with respect to their argument that Medure has failed to show actual malice by clear and convincing evidence. III For purposes of defendants’ motion for

summary judgment on the issue of actual malice, the following facts are undisputed: Medure resides in New Castle, Pennsylvania. In 1991, Medure incorporated Gaming World for the purpose of managing Indian casinos. The first Indian casino managed by Gaming World was the Shooting Star Casino, which opened in Mahno-men, Minnesota in May, 1992. The Shooting Star Casino was owned by the White Earth Band of the Chippewa Indians (the White Earth Band). (Medure’s Depo., pp. 7,11-13). In August, 1993, U.S. News & World Report (US News) published an

article written by James Popkin (Popkin) titled: “Gambling with the Mob? Wise guys have set their sights on the booming Indian casino business ”. In this article, Pop-kin discusses, among other things, Me-dure’s management of the Shooting Star Casino in Mahnomen, Minnesota, indicating that the FBI became suspicious of, and began investigating, Medure when it learned that Medure was leasing a New Castle, Pennsylvania warehouse to a pasta firm that was run in the 1980s by reputed mobsters. The

article implied that mobsters, through individuals and entities such as Medure and Gaming World, were ap-tempting to infiltrate the lucrative Indian casino business. (Dfs.’ Exh. 91). Based on the publication of Popkin’s

article regarding alleged mafia infiltration of Indian-owned casinos and the article’s indication that Medure was linked to organized crime, on September 24, 1993, Me-dure and Gaming World filed a defamation action against Popkin and US News in the Court of Common Pleas of Lawrence County, Pennsylvania (the US News case). The Vindicator’s New Castle Bureau covered the US News case from its inception. (Df.’s Exhs. 71, 72, 74, 75, 77, 80-87). In January, 1994, Armstrong joined the staff of The Vindicator as a reporter. She began her employment with the newspaper in The Vindicator’s main office in Youngstown, Ohio.

At her request, Armstrong was transferred to The Vindicator's New Castle Bureau in January, 1996. (Armstrong Depo., pp. 12,18).

On August 12, 1996, a newly constituted White Earth Band tribal council passed a resolution in response to an investigation of the reservation’s finances in which Me-dure and Gaming World and Darrell “Chip” Wadena, Jerry Rawley, Rick Clark, Paul “Poncho” Williams and Tony Wadena, the members of the former tribal council, were accused of “looting [ ] the casino treasury.” The resolution concluded as follows: ‡ * % * It is ordered that: *AU relationships with Angelo Me-dure/Gaming World be terminated, and that the White Earth Band is to assume total control of the casino — all of its contracts, employees and properties of every kind; *Angelo Medure/Gaming World be immediately and summarily removed; *Any and all funds due him be impounded; and *He be stripped of all authority in connection with any manner in which he might purport to act on behalf of the White Earth, the White Earth Reservation Tribal Council, and the operation, maintenance, supervision, finances and financial affairs of the Shooting Star Casino.

It is further ordered that: Based upon [the estimated loss of monies], preliminary to a final audit, attorneys for the White Earth Band commence litigations to recover the purloined monies from Angelo Me-dure/Gaming World and [the former tribal council]. The estimated amount due White Earth from the above-mentioned is approximately $22 million, the equivalent of $5,500 (five thousand, five hundred) for every member of the reservation. Since the tribe is currently $6 million in debt as a result of the previous council’s theft, the recovery would leave the White Earth Band with a $16 million surplus of cash.

There are, of course, millions of dollars unaccounted for by the prior tribal council and by Angelo Medure/Gaming World, which will be the subject of an ongoing search by auditors, accountants, attorneys and employees of the new tribal council and, hopefully, by state and federal officials. sji ifc # ^ # (Dfs.’ Exh. 5). After passage of the above-quoted resolution on August 12, 1996, neither Medure nor any other individual associated with Gaming World returned to the Shooting Star Casino. (Medure Depo., pp. 32-34). On August 14, 1996, The Vindicator published an

article concerning the White Earth Band’s allegations against Gaming World arising out of its management of the Shooting Star Casino. The

article began as follows: “Federal gambling regulators will examine allegations that an Ellwood City management company took more profits than allowed at an Indian tribe’s casino in Minnesota.” (Dfs.’ Exh. 79). This article, including the reference to an examination by “[f]ederal gambling regulators” was based on an Associated Press release of the same date. The Associated Press release quoted Michael Cox, general counsel for the NIGC in Washington, D.C., as stating: “We are certainly interested in what is taking place and ... (will) decide if we need to conduct an investigation of our own.” (Dfs.’Exh. 27).

With regard to the White Earth Band’s allegations against Medure and Gaming World, in a declaration submitted in support of defendants’ motion for

summary judgment, Erma J. Vizenor states: * * * * * * 1. I am the Secretary-Treasurer of the White Earth Reservation Tribal Council aka the White Earth Reservation Business Committee, a position I have held since July 1996. 2. On August 12, 1996, the White Earth Reservation Tribal Council adopted a Resolution, an accurate copy of which is attached as Exhibit 5. 8. Immediately following the adoption of the Resolution, copies of the Resolution was (sic) sent to approximately 30-40 press organizations including television, radio, and print media outlets.

Copies were also distributed throughout the White Earth Reservation. The Resolution is also available for copying and inspection to any person upon request. 4. Following the adoption of the Resolution on August 12, 1996, the Tribal Council contacted the National Indian Gaming Commission; U.S. Attorney, Department of Justice; the Office of the Inspector General, Department of the Interior; and the Minnesota Agency, Bureau of Indian Affairs to inform them of the Tribal Council’s August 12, 1996 Resolution and the situation with respect to Gaming World International.

A copy of the Resolution was sent or faxed to each of these agencies. 5. Following these contacts, Tom Foley of the National Indian Gaming Commission (“NIGC”) contacted the Tribal Council to arrange a meeting with the Tribal Council. 6. In September or October 1996, the Tribal Council met at the Shooting Star Casino with Tom Foley and another representative of the NIGC. The Tribal Council informed the NIGC representatives of the Tribal Council’s position with respect to the monies taken by Gaming World International.

The Tribal Council also gave the NIGC representatives copies of documents and reports prepared by the accountant hired by the Tribal Council to investigate the monies paid the Gaming World International. The NIGC representatives asked questions of the Tribal Council concerning the management contracts between the tribe and Gaming World International. 7. During this meeting the Tribal Council requested the NIGC’s assistance in recovering the money paid to Gaming World International from the Shooting Star Casino. (Dfs.’ Exh. 9). On January 30, 1997, Armstrong’s first

article about the US News case filed by Medure and Gaming World in the Court of Common Pleas of Lawrence County, Pennsylvania was published by The Vindicator. In the article, Armstrong described the nature of the lawsuit, as well as the damages sought by the plaintiffs. The

article stated in relevant part: * # ❖ * $ * Gaming World: Medure runs Gaming World International Ltd. in Ellwood City. At the time [of the alleged defamation by US News ], the company had been managing the Shooting Star Casino for the White Earth Band Indian tribe in Minnesota. Gaming World was fired in August, 1996, however, after the tribe accused it of taking $22 million in profits from the casino. Federal regulators have been looking into the allegations, although Medure has denied any wrongdoing. (Emphasis added). íjí # # % # # (Dfs.’ Exh. 80). The trial of the US News case commenced on November 3, 1997. On that day, Armstrong wrote another

article about the US News case for The Vindicator, noting that jury selection was scheduled to commence that morning. Again, Armstrong described the nature of the lawsuit and the damages sought by Me-dure and Gaming World. Armstrong also repeated the White Earth Band’s allegations against Gaming World, which she had addressed in the January 30, 1997

article in The Vindicator. She also stated, again, that “[fjederal regulators have been looking into the allegations.” (Dfs.’ Exh. 82) . On November 8, 1997, The Vindicator published another

article written by Armstrong about the trial of the US News case. With respect to the allegations against Medure and Gaming World by the new tribal council of the White Earth Band arising out of Gaming World’s management of the Shooting Star Casino, Armstrong stated in relevant part: “[Gaming World] has since been fired and placed under FBI investigation for allegedly skimming $22 million from the casino.” (Dfs.’ Exh. 85). Thus, in addition to changing “federal regulators” to “FBI,” Armstrong’s November 8, 1997

article stated that Gaming World was actively being investigated, rather than stating that federal regulators had been asked to investigate the allegations of the White Earth Band. In this respect, Armstrong claims that she made a mistake. (Armstrong Depo., p. 139). On Thursday, November 13, 1997, The Vindicator published the

article by Armstrong which is the subject of this lawsuit. The

article at issue is entitled: “Medure, magazine settle suit”. In the article, Armstrong stated, inter alia, that the attorneys for the parties in the US News case had announced on Wednesday that the case had settled “[a]fter closed-door meetings much of Tuesday.” Armstrong indicated that details of the settlement would not be reported because the parties’ settlement agreement included a confidentiality provision. Armstrong again described the nature of the US News

article that led to the lawsuit, and she again reported that, at the time of the publication of the US News article, Gaming World had been managing the Shooting Star Casino, and that “[Gaming World] has since been fired and placed under FBI investigation on allegations of skimming $22 million from the casino.” (Dfs.’ Exh. 87). Prior to the publication of Armstrong’s November 13, 1997 article, the

article was reviewed by The Vindicator’s assistant regional editor, Tom Wills. (Paglia Depo., p. 19). On Friday, November 14, 1997, Medure read Armstrong’s November 13, 1997

article about the settlement of his lawsuit against US News in The Vindicator. Subsequently, Medure called Armstrong to complain; however, he declined to identify the portion of the

article with which he was upset. (Medure Depo., pp. 111-12). On January 30, 1998, Medure’s attorney sent a letter to Betty H. Brown Jagnow, the President/Publisher of The Vindicator, stating: Dear Ms. Jagnow: Our firm has been retained by Angelo Medure and Gaming World International, Ltd. to pursue an action for defamation against The Vindicator and Cory Armstrong in connection with an

article titled “Medure, magazine settle suit” which was published in The Vindicator, Volume 109 Number 74 on November 13, 1997. The

article contains false and malicious statements regarding Mr. Me-dure and his company. We have tried to contact the author of the article, Ms. Cory Armstrong, numerous times without success. If you have insurance for defamation claims, please put your carrier on notice of this claim and request that a representative contact me. Otherwise, please have your attorney contact me directly to discuss this claim. (Dfs.’ Exh. 17). On February 27, 1998, counsel for The Vindicator sent a letter to Medure’s counsel, which stated: Below is a proposed correction and apology for publication by The Vindicator.

We are interested in your comments about it. It is: A November 13, 1997 story incorrectly reported that the FBI was investigating Gaming World International, a management company owned by Ell-wood City businessman Angelo Me-dure, in connection with an Indian casino the company operated in Minnesota. The Vindicator has no information that either Gaming World or Medure has been under an FBI investigation, other than a routine background investigation. The Vindicator apologizes for the error. Presumably, publication of the above correction and apology will end the matter.

I solicit your advice that your client will not bring suit against The Vindicator after publication of the above correction and apology. (Dfs.’ Exh. 18). Medure’s counsel responded to the February 27, 1998 letter of counsel for The Vindicator by letter dated April 6, 1998. A revision of The Vindicator’s proposed correction and apology was enclosed with the letter. The letter of Medure’s counsel noted, however, that the publishing of an apology by The Vindicator should not be construed as a waiver or release of Me-dure’s claim for damages from The Vindicator for defamation. (Dfs.’ Exh. 19).

Despite counsel’s revision of the correction and apology proposed by The Vindicator, on Sunday, April 19, 1998, The Vindicator published a correction and apology that was virtually identical to its original proposal. The correction and apology stated: GETTING IT RIGHT A Nov. 13,1997 story incorrectly reported that the FBI was investigating Gaming World International, a management company owned by Ellwood City business Angelo Medure, in connection with an Indian casino the company operated in Minnesota.

The Vindicator had no information that either Gaming World or Medure had been under the FBI investigation described. The Vindicator apologizes for the error. (Dfs.’ Exh. 88). Several months later, this action was initiated by Medure and Gaming World. IV In New York Times Co. v.

Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964), a libel suit brought by a public official against a newspaper, the Supreme Court held that constitutional guarantees require a federal rule “that prohibits a public official from recovering damages for a defamatory falsehood relating to his official conduct unless he proves that the statement was made with ‘actual malice’— that is, with knowledge that it was false or with reckless disregard of whether it was false or not.” Id. at 279-80, 84 S.Ct. 710.

The Supreme Court has extended this constitutional standard beyond public officials to include public figures. See Schiavone Construction Co. v. Time, Inc., 847 F.2d 1069, 1076 (3d Cir.1988), citing, Curtis Publishing Co. v. Butts, 388 U.S. 130, 155, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967)(plu-rality opinion). With respect to the propriety of deciding the issue of “actual malice” in the context of a

summary judgment motion, in Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986), a not-for-profit corporation and self-described “citizens’ lobby” and its founder filed a libel action against a magazine, its publisher and its chief executive officer. The action arose out of articles published in the magazine which portrayed the plaintiffs as neo-Nazi, anti-Semitic, racist and Fascist. The district court granted

summary judgment in favor of the defendants based on its conclusions that (

a) the plaintiffs were limited purpose public figures, and, therefore, the actual malice standard announced by the Supreme Court in New York Times applied, and (

b) the thorough investigation and research of the author of the articles, together with his reliance on numerous sources, precluded a finding of actual malice. The plaintiffs appealed, and the United States Court of Appeals for the District of Columbia affirmed in part and reversed in part. Although the Court of Appeals noted that the plaintiffs did not challenge the district court’s ruling that they were limited purpose public figures and that they were thus required to prove their ease under the New York Times standard, the Court of Appeals nevertheless held that for purposes of

summary judgment the requirement that actual malice be proved by clear and convincing evidence, rather than by a preponderance of the evidence, was irrelevant. Certiorari was granted, and the Supreme Court vacated and remanded the case based on its conclusion that the Court of Appeals had not applied the correct standard in reviewing the district court’s grant of

summary judgment. The Supreme Court stated in relevant part: ‡ ‡ ‡ ‡ ‡ Just as the “convincing clarity” requirement is relevant in ruling on a motion for a directed verdict, it is relevant in ruling on a motion for

summary judgment. When determining if a genuine factual issue as to actual malice exists in a libel suit brought by a public figure, a trial judge must bear in mind the actual quantum and quality of proof necessary to support liability under New York Times.

For example, there is no genuine issue if the evidence presented in the opposing affidavits is of insufficient caliber or quantity to allow a rational finder of fact to find actual malice by clear and convincing evidence. ‡ ‡ ‡ ‡ $ In sum, we conclude that the determination of whether a given factual dispute requires submission to a jury must be guided by the substantive evidentiary standards that apply to the case. This is true at both the directed verdict and

summary judgment stages. Consequently, where the New York Times “clear and convincing” evidence requirement applies, the trial judge’s

summary judgment inquiry as to whether a genuine issue exists will be whether the evidence presented is such that a jury applying that evidentiary standard could reasonably find for either the plaintiff or the defendant. Thus, where the factual dispute concerns actual malice, clearly a material issue in a New York Times case, the appropriate

summary judgment question will be 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. (footnote omitted). 477 U.S. at 254-55, 106 S.Ct. 2505. Applying this standard in the present case, the court concludes that defendants are entitled to a judgment in their favor as a matter of law. V To explain her conduct with respect to the alleged defamatory statement in the November 8 and November 13, 1997 articles published in The Vindicator, Armstrong claims that she made a mistake.

Specifically, during her deposition, Armstrong testified as follows: ‡ ‡ ‡ ‡ A. ... As far as the FBI investigation, I can’t say specifically where that — now, somehow in my head in all the writing I was doing about [the US News case], when I saw federal regulators, which is what appears in November 3, somehow in my head I transposed that to be FBI. It was a mistake, and it’s very regrettable. * * * * * * (Armstrong Depo., p. 106). Similarly, in the declaration she submitted in support of

summary judgment, Armstrong states: ‡ ‡ ‡ ‡ ‡ 12. The sentence “Federal regulators have been looking into the allegations” in the November 3

article (Exh. 82) is the sentence from which declarant derived the November 8 passage about the FBI investigation. Declarant does not know exactly what caused her, when she was writing the November 8

article about the U.S. News trial, to refer to the “FBI” instead of “federal regulators,” except that it was an inadvertent error. De-clarant did not realize the error when she was writing the November 8

article or when she was writing the November 13, 1997 article. * * * * * * 16. At the time upon which declarant wrote the passages quoted in the above paragraphs 9 through 13, de-clarant did not actually entertain serious doubts about the truth or accuracy of those passages. De-clarant was not conscious of any mistake in these passages when she wrote them or when the Vindicator circulated them in the newspaper. ^ ‡ ‡ ‡ ‡ ‡ (Dfs.’ Exh. 95). A mistake is clearly insufficient to support a finding of actual malice. See, e.g., Ocala Star-Banner Co. v.

Damron, 401 U.S. 295, 91 S.Ct. 628, 28 L.Ed.2d 57 (1971)(error resulting from editor’s “mental aberration” insufficient to meet New York Times standard). Rather, in order to defeat defendants’ motion for

summary judgment on the issue of actual malice, Medure has the burden of producing “sufficient evidence to permit the conclusion that [defendants] in fact entertained serious doubts as to the truth of [the] publication.” Time, Inc. v. Pape, 401 U.S. 279, 291-92, 91 S.Ct. 633, 28 L.Ed.2d 45 (1971), quoting, St. Amant v. Thompson, 390 U.S. 727, 731, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968). He has failed to do so.

Medure argues that Armstrong’s decision to change the words in her November 8 and November 13, 1997 articles without any investigation or attempt to confirm the alleged FBI investigation constitutes clear and convincing evidence of actual malice on her part. (Pi’s Memorandum in Support, p. 4 n. 1). In essence, Medure is arguing that Armstrong’s conduct was unreasonable. This argument, however, was squarely rejected by the Supreme Court in Harte-Hanks Communications, Inc. v.

Connaughton, 491 U.S. 657, 666, 109 S.Ct. 2678, 105 L.Ed.2d 562 (1989)(showing of highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers insufficient to show actual malice). Next, Medure asserts that defendants “totally ignore the ‘reckless disregard’ standard in their Memorandum” in support of defendants’ objections to Magistrate Judge Sensenich’s Amended Report and Recommendation. (Pl.’s Response, p. 9).

Contrary to this assertion, however, defendants’ precise argument is that Me-dure has failed to meet the New York Times standard for showing actual malice, which includes a “reckless disregard” for the truth. In St. Amant v.

Thompson, 390 U.S. 727, 88 S.Ct. 1323, 20 L.Ed.2d 262 (1968), the Supreme Court held that in order to find that a defendant acted in “reckless disregard” of whether a defamatory statement which he made about a public official is false within the meaning of New York Times, there must be sufficient evidence to permit the conclusion that the defendant had serious doubts as to the truth of his publication. The Supreme Court stated in relevant part: H< H5 H* H< H* ... “Reckless disregard,” it is true, cannot be fully encompassed in one infallible definition.

Inevitably its outer limits will be marked out through case-by-case adjudication, as is true with so many legal standards for judging concrete cases, whether the standard is provided by the Constitution, statutes, or case law. Our cases, however, have furnished meaningful guidance for the further definition of a reckless publication. In New York Times, supra, the plaintiff did not satisfy his burden because the record failed to show that the publisher was aware of the likelihood that he was circulating false information. In Garrison v.

Louisiana, 379 U.S. 64, 85 S.Ct. 209, 13 L.Ed.2d 125 (1964), also decided before the decision of the Louisiana Supreme Court in this case, the opinion emphasized the necessity for a showing that a false publication was made with a “high degree of awareness of ... probable falsity.” 379 U.S., at 74, 85 S.Ct. 209. Mr. Justice Harlan’s opinion in Curtis Publishing Co. v.

Butts, 388 U.S. 130, 153, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967), stated that evidence of either deliberate falsification or reckless publication “despite the publisher’s awareness of probable falsity” was essential to recovery by public officials in defamation actions. These cases are clear that reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.

Publishing with such doubts shows reckless disregard for truth or falsity and demonstrates actual malice. H« Hí H* H* H* 390 U.S. at 730-31, 88 S.Ct. 1323. In the present case, Medure has failed to produce any evidence, let alone clear and convincing evidence, that Armstrong had “serious doubts” as to the truth of the challenged statement in her November 8 and November 13,1997 articles. Citing the decision of the Supreme Court in Harte-Hanks, supra, Medure further argues that Armstrong made a deliberate decision not to acquire the truth in order to make her articles more sensational. (Pi’s Response, p. 10).

However, as noted by defendants, the evidence presented to the court “in Harte-Hanks is not even remotely analogous to the evidence here.” (Defendants’ Reply, pp. 15-18). In Harte-Hanks, the respondent, Daniel Connaughton, was the unsuccessful challenger for the position of municipal judge in Hamilton, Ohio. A local newspaper published by the petitioner, Harte-Hanks Communications, Inc., supported the reelection of the incumbent municipal judge.

Shortly before the election, the incumbent’s director of court services resigned and was arrested on bribery charges, and a grand jury investigation of those charges was in progress on November 1, 1983. On that day, the petitioner ran a front-page story quoting Alice Thompson (Thompson), a grand jury witness, as stating that the respondent had engaged in “dirty tricks” by offering her and her sister, Patsy Stephens (Stephens), jobs and a trip to Florida “in appreciation” for their assistance in the grand jury investigation of the incumbent judge’s director of court services.

The respondent sued the petitioner for libel, asserting that the story was false, caused damage to his personal and professional reputation and had been published with actual malice. The jury in Harte-Hanks found by a preponderance of the evidence that the story in question was false and defamatory and by clear and convincing evidence that the story was published with actual malice. As a result, the jury awarded both compensatory and punitive damages. On appeal, the United States Court of Appeals for the Sixth Circuit affirmed the judgment.

Subsequently, eertiorari was granted and the Supreme Court affirmed the judgment. The Supreme Court noted, among other things, that the petitioner’s managing editor instructed a group of the newspaper’s reporters to interview all of the witnesses to the conversation between the respondent and Thompson with one exception' — -Stephens—the only witness who was not a supporter of the respondent.

In this regard the Supreme Court stated: “It is utterly bewildering in light of the fact that the [petitioner] committed substantial resources to investigating Thompson’s claims, yet chose not to interview the one witness who was most likely to confirm Thompson’s account of the events.” 491 U.S. at 682, 109 S.Ct. 2678.

The Supreme Court noted that, if the petitioner had serious doubts about the truth of Thompson’s allegations, but was committed to running the story, there was good reason not to interview Stephens— “while denials coming from [the respondent’s] supporters might be explained as motivated by a desire to assist [the respondent], a denial coming from Stephens would quickly put an end to the story.” 491 U.S. at 682, 109 S.Ct. 2678.

The Supreme Court further noted that the petitioner’s decision not to listen to the tapes of the interview between the respondent and Thompson and Stephens in the respondent’s home, which had been provided to the petitioner, also supported a finding of actual malice because much of what Thompson said about the interview in which she and Stephens were allegedly offered jobs and a trip to Florida by the respondent could easily have been verified or disproved by listening to the tapes.

The Supreme Court stated that one might reasonably infer in light of the evidence presented that “the decision not to listen to the tapes was motivated by a concern that they would raise additional doubts concerning Thompson’s veracity.” 491 U.S. at 684, 109 S.Ct. 2678.

In addition, the Supreme Court noted that Thompson’s most serious charge — that the respondent intended to confront the incumbent judge with the tapes to scare him into resigning and otherwise not disclose the tapes — was not only highly improbable, but inconsistent with the fact that the respondent had actually arranged a lie detector test for Stephens and then delivered the tapes to the police. Moreover, “[t]he hesitant, inaudible, and sometimes unresponsive and improbable tone of Thompson’s answers to various leading questions raise[d] obvious doubts about her veracity.” 491 U.S. at 691, 109 S.Ct. 2678.

Clearly, the evidence presented to the court in Harte-Hanks is distinguishable from the evidence in this case. Finally, the court notes its agreement with defendants that the burden of proving that Armstrong’s alleged defamatory statement was false is on Medure, and he has failed to offer evidence to meet that burden.

Regarding the issue of falsity, in his response to defendants’ objections to Magistrate Judge Sensenich’s Amended Report and Recommendation, Medure states: “Any contention that plaintiff has not met his burden of proving falsehood is just shy of ridiculous in light of defendants’ retraction.” (Pi’s Response, p. 2).

The Vindicator’s retraction, however, stated, in relevant part, that the newspaper “had no information that either Gaming World or Medure had been under the FBI investigation described.” This statement is very different from a statement indicating that, in fact, neither Gaming World nor Medure had been under an FBI investigation in connection with the management of the Shooting Star Casino. Medure also contends that he introduced evidence during the trial of the US News case “refuting the existence of any FBI investigation.” (Pi’s Response, p. 5).

In support of this contention, Medure cites pages 14 and 15 of his deposition in this case, rather than his testimony during the trial of the US News case. In any event, a review of those pages of Medure’s deposition testimony fails to reveal any reference to the FBI. Rather, during this portion of his deposition, Medure was responding to questions about the approval by the Bureau of Indian Affairs of his agreement with the White Earth Band to manage its casino. (Medure’s Depo., pp. 14-15).

Medure also makes statements such as “[wjithout question, the newspaper was on notice that the FBI had never placed Me-dure under investigation,” and “[t]o the extent that it is plaintiffs burden to prove falsity, which plaintiff denies, plaintiff introduced substantial evidence that Medure had not been placed under FBI investigation in November of 1997.” (Pi’s Response, pp. 9, 14). However, he fails to cite any evidence that supports these statements. Finally, Medure asserts that the declaration of Erma J.

Vizenor, the Secretary/Treasurer of the White Earth Band’s tribal council since July, 1996, which was submitted by defendants in support of their objections to Magistrate Judge Sensenich’s Amended Report and Recommendation (Dfs.’ Exh. 9), indicates that “... despite the Tribe’s best efforts, the FBI refused to conduct any investigation into their allegations.” (Pl.’s Response, p. 16). This assertion clearly is not supported by Ms. Vizenor’s declaration.

In conclusion, after reviewing the materials submitted in support of, and in opposition to, the parties’ respective objections to Magistrate Sensenich’s Amended Report and Recommendation, the court concludes that a jury applying the clear and convincing evidentiary standard to the evidence of record in this case could not reasonably find for Medure. Accordingly, judgment will be entered in favor of defendants and against Medure. An order follows. ORDER AND NOW, this 29th day of November, 2002, in accordance with the foregoing memorandum, it is hereby ORDERED as follows: 1.

The motion of defendants, The Vindicator Printing Company and Cory Armstrong, for

summary judgment pursuant to Fed.R.Civ.P. 56 is granted. 2. The Clerk shall enter judgment in favor of defendants and against plaintiff, Angelo Medure. MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION SENSENICH, United States Magistrate Judge. I. RECOMMENDATION It is recommended that the Motion for

Summary Judgment filed by Defendants be denied. II. REPORT Plaintiff Angelo Medure brings this action for defamation against Defendants The Vindicator Printing Company, publisher of The Vindicator, a daily newspaper based in Youngstown, Ohio, and Vindicator reporter Cory Armstrong. The case arises out of the November 13, 1997 publication of an

article by Armstrong, which contained the erroneous statement that Gaming World International, Inc., a company owned by Medure that managed the Shooting Star Casino on a Minnesota Indian reservation until the contract was terminated by the tribe in August 1996, had been “placed under FBI investigation on allegations of skimming $22 million from the casino.” Plaintiff names as Defendants the Vindicator Printing Company, an Ohio corporation that publishes The Vindicator, and Armstrong, who was an Ohio citizen at the time this action was commenced and is now a citizen of Wisconsin. (Armstrong Decl. ¶ 2.) Armstrong is no longer a reporter for The Vindicator. (Armstrong Dep. at 6.) Facts Angelo Medure is an entrepreneur who resides in New Castle, Lawrence County, Pennsylvania. (Medure Dep. at 7.) He is the chief executive officer of Gaming World, International, Inc. (Gaming World), a Delaware corporation founded in 1991 that was in the business of developing and managing casinos on Indian reservations. (Medure Dep. at 11-12.) Gaming World’s first project was developing and managing the Shooting Star Casino for the White Earth Band of Chippewa Indians (White Earth Band) in Mahnomen, Minnesota, which took place in 1991 and early 1992.

The Shooting Star opened in May 1992. (Medure Dep. at 12-13.) Gaming World entered into a five-year contract to manage the Shooting Star for the White Earth Band, which would have expired in approximately March 1997. (Medure Dep. at 16.) In August 1993, U.S. News and World Report (US News) published an

article by James Popkin titled “Gambling with the Mob? Wise guys have set their sights on the booming Indian casino business.” (Medure Dep. at 58, 76 & Ex. 5; Defs.’ Ex. 91.) In the article, Medure was falsely accused of being under investigation by the FBI for alleged connections to the Mafia, and the

article implied that the Mafia, through Medure and Gaming World, was attempting to infiltrate Indian gaming. Plaintiff testified that, shortly after the

article was published, he contacted Brendan “Mike” Balen, an FBI agent whom he knew at the Minneapolis, Minnesota FBI office, and Balen told him that he was not under any investigation. (Medure Dep. at 100-03.) On September 24, 1993, Medure and Gaming World brought suit against Popkin and US News in the Court of Common Pleas of Lawrence County, Pennsylvania (the “US News case”).

The Vindicator’s New Castle bureau covered this case from its inception. (Defs.’ Exs. 71, 72, 74, 75, 77, 80-87.) Cory Armstrong joined the staff of The Vindicator in January 1994 as a reporter. (Armstrong Decl. ¶ 8; Armstrong Dep. at 12.) In January 1996, Armstrong took over the New Castle bureau of The Vindicator and she was assigned to cover the US News defamation trial by her immediate supervisor, Cynthia Rickard. (Armstrong Dep. at 13, 18, 24, 46, 60-61; Paglia Dep. at 14, 31.) As explained below, the

article at issue in this case was a report of the settlement that ended the US News case in November 1997. Medure v. New York Times Meanwhile, in June 1994, Medure filed a defamation claim in this court against The New York Times Company and its subsidiary, The Press Democrat, arising out of two newspaper articles published in the summer of 1993 in the Santa Rosa Press Democrat, a Santa Rosa, California newspaper owned and published by the Times. In that action, Medure v.

New York Times Co., 60 F.Supp.2d 477 (W.D.Pa.1999) (the NY Times case), Medure alleged that articles published on June 13, 1993 and August 18, 1993, which were about his proposed development of a casino at the Fountaingrove County Club in Santa Rosa and which discussed the Shooting Star Casino at length, defamed him by linking him to known organized crime figures. (Defs.’ Ex. 12.) As explained below, that case ended when Judge Cohill granted

summary judgment for the defendants and the parties settled during the appeal.

Tribal Resolution On August 12, 1996, the five-member tribal council of the White Earth Band passed a resolution that terminated the tribe’s contract with Gaming World, ordered that “Angelo Medure/Gaming World be immediately and summarily removed” and ordered that Medure “be stripped of all authority” in connection with “the operation, maintenance, supervision, finances and financial affairs of the Shooting Star Casino.” (Defs.’ Ex. 5 at 3.) The resolution accused Medure of working with a previously constituted tribal council to “fleece the casino and the people of White Earth,” and accused him of “looting of the casino treasury,” and it recommended that litigation be initiated to “recover the purloined monies.” (Id. at 2-3.) The resolution estimated that the amount owed to the White Earth Band from actions by Medure and the previous tribal council to be approximately $22 million.

Erma J. Vizenor, Secretary-Treasurer of the tribal council (Vizenor Decl.

II ¶ 1), states that, following the adoption of the tribal resolution on August 12, 1996, the council contacted and sent a copy of the resolution to the following agencies: the National Indian Gaming Commission (NIGC); the United States Attorney, Department of Justice; the Office of the Inspector General, Department of the Interi- or; and the Minnesota Agency, Bureau of Indian Affairs. (Id. ¶ 4.) She further states that: Following these contacts, Tom Foley of the [NIGC] contacted the Tribal Council to arrange a meeting with the Tribal Council.

In September or October 1996, the Tribal Council met at the Shooting Star Casino with Tom Foley and another representative of the NIGC. The Tribal Council informed the NIGC representatives of the Tribal Council’s position with respect to the monies taken by Gaming World International. The Tribal Council also gave the NIGC representatives copies of documents and reports prepared by the accountant hired by the Tribal Council to investigate the monies paid the Gaming World International.

The NIGC representatives asked questions of the Tribal Council concerning the management contracts between the tribe and Gaming World International. During this meeting, the Tribal Council requested the NIGC’s assistance in recovering the money paid to Gaming World International from the Shooting Star Casino. (Id. ¶¶ 5-7.) Gaming World submitted a demand for commercial arbitration, claiming lost income from the remainder of its five-year contract. (Defs.’ Ex. 6; Medure Dep. at 45; Vizenor Decl.

I ¶ 3.) The White Earth Band counterclaimed for $22 million, including “excess distribution of casino profits” for a total of $20.8 million including interest, Medure management salaries for a total of $349,000 and salaries of other Gaming World managers for a total of $677,000. (Defs.’ Ex. 7 at 2; Vizenor Decl. I ¶ 4.) As of October 1999, the arbitration remained unresolved. (Medure Dep. at 99.) US News Case Goes to Trial Trial began in the US News case on November 3, 1997.

Cory Armstrong attended much of the trial on behalf of The Vindicator. (Armstrong Decl. ¶ 4; Armstrong Dep. at 76.) Medure asserts that he introduced evidence refuting the existence of any FBI investigation, and he stated that he had successfully passed numerous background checks by both the FBI and the Bureau of Indian Affairs, the predecessor to the NIGC. (Medure Dep. at 14-15.) He states that he introduced evidence that the false FBI accusation cost him and Gaming World economic damages in excess of $50 million. Armstrong was present during settlement negotiations.

The case settled on November 12, 1997, after Medure’s direct examination (Medure Dep. at 62; Armstrong Decl. ¶ 5), and a joint statement was issued on December 1,1997. (Medure Dep. at 70 & Exs. 6-7; Defs.’ Ex. 92.) Armstrong was given a copy of the retraction which US News agreed to publish and was informed by a “reliable source” that the settlement included a substantial monetary payment to Medure. (Armstrong Dep. at 156, 158-160.) The specific terms of the settlement are confidential.

Armstrong asked Medure if he wanted to make a comment for purposes of the article, but Medure declined. (Armstrong Dep. at 164.) Articles About the Trial On January 30, 1997, Cory Armstrong wrote her first

article for The Vindicator about the US News case, which was then in the pretrial stage. The

article stated that: Medure runs Gaming World International Ltd. in Ellwood City. At the time, the company had been managing the Shooting Star Casino for the White Earth Band Indian tribe in Minnesota. Gaming World was fired in August 1996, however, after the tribe accused it of taking $22 million in profits from the casino. Federal regulators have been looking into the allegations, although Medure has denied any wrongdoing. (Defs.’ Ex. 80.) On November 3, 1997, the date trial began, Armstrong wrote an

article about jury selection, which included a recap of the firing of Gaming World. She repeated the discussion quoted above from the January 30, 1997 article. (Defs.’ Ex. 82.) On November 4 and November 5, 1997, Armstrong’s articles about the trial stated that Gaming World was “fired amid allegations that it took $22 million in profits from the casino.” (Defs.’ Exs. 83-84.) Armstrong did not attend the proceedings on November 5, so no

article appeared on November 6. (Armstrong Dep. at 76,100.) On November 8, 1997, The Vindicator published another

article about the defamation trial. This

article contained the recap paragraph that had been used in the November 3 article, but the phrase “federal regulators” was changed to “FBI” so that it read as follows: “The company has since been fired and placed under FBI investigation for allegedly skimming $22 million from the casino.” (Defs.’ Ex. 85 at 2.) On November 13, 1997, The Vindicator published the

article at issue, titled “Me-dure, magazine settle suit.” In the article, Armstrong reported that the parties had settled the defamation suit and that they had issued a joint statement that US News “did not intend to imply that either Mr. Medure or Gaming World was involved in any criminal activity or that they knowingly had done business or otherwise engaged in any improper activity or relationship with any member of organized crime, and the

article should not have been read to suggest otherwise.” (Defs.’ Ex. 87 at 2.) The

article concluded with the following paragraphs: The

article [in US News ], among other things, linked Medure to Pittsburgh’s Henry Zottola, who was named as part of the Michael Genovese crime family as part of a Pennsylvania Crime Commission Report. At the time, Gaming World managed the Shooting Star Casino on a Minnesota Indian reservation. The company has since been fired and placed under FBI investigation on allegations of skimming $22 million from the casino. Zottola, 61, was indicted April 17 by a federal grand jury in Pittsburgh on conspiracy and money-laundering charges in connection with his alleged illegal involvement in an Indian casino in California.

Medure has said he knew Zottola— then president of Rocca’s Italian Foods — because the business leased a New Castle warehouse from Medure in 1986. (Defs.’ Ex. 87.) The

article was reviewed by Tom Wills, the night editor at The Vindicator, and published as written. (Paglia Dep. at 19-20.) Armstrong’s reference to the FBI in the second paragraph quoted above was a mistake. She has stated that she copied the passage used in the November 13

article from the November 8 article, and that the November 8

article was a mistake and had been derived from prior Vindicator articles. (Armstrong Decl. ¶¶ 7-8.) Ultimately, she traced the January 30, 1997 passage about “federal regulators” back to an August 14, 1996

article published in The Vindicator, but not written by her. (Armstrong Decl. ¶ 14.) The August 14, 1996

article opened with the sentence: “Federal gambling regulators will examine allegations that an Ellwood City management company took more profits than allowed at an Indian tribe’s casino in Minnesota.” (Defs.’ Ex. 79.) It stated that “Michael Cox, general counsel for the [NIGC] in Washington, said the agency will examine the dispute and decide whether to open an investigation.” (Id.) This

article was based upon an Associated Press (AP) dispatch, also issued on August 14, 1996, that reported that the NIGC would examine the dispute between Gaming World and the tribe and decide whether to open an investigation. (Defs.’ Ex. 27.) Thus, in addition to changing the phrase “federal regulators” to “FBI,” Armstrong’s

article also erroneously stated that an active investigation was underway, rather than the reality, which was merely that federal regulators had been asked to investigate the dispute back in August 1996. Neither Armstrong nor anyone else at The Vindicator checked to see whether, between August of 1996 (when the AP wire was issued) and November of 1997 (when her story was written), the NIGC ever actually looked into the allegations or placed Medure under investigation. (Armstrong Dep. at 14(M3.) Armstrong states that she does not know exactly what caused her, when she was writing the November 8

article about the U.S. News trial, to refer to the “FBI” instead of “federal regulators,” except that it was an inadvertent error. [She] did not realize the error when she was writing the November 8

article or when she was writing the November 13 article. (Armstrong Deck ¶ 12.) She further states that she “did not actually entertain serious doubts about the truth or accuracy of those passages. [She] was not conscious of any mistake in these passages when she wrote them or when the Vindicator circulated them in the newspaper.” (Armstrong Decl. ¶ 16.) Armstrong notes that no one told her there was any mistake in any

article until after the November 13

article was published. (Armstrong Deck ¶¶ 17-21.) The Aftermath On November 14, 1997, the day after the

article appeared, Medure called Armstrong to complain. However, he declined to identify the specific portion of the

article to which he objected. (Medure Dep. at 111; Armstrong Dep. at 171-72.) He stated that “I knew I was going to be suing [The Vindicator ] then.” (Medure Dep. at 113.) He had no further communication with Armstrong or anyone else from The Vindicator. (Medure Dep. at 117.) Over the next several weeks, Armstrong and Richard DiSalle, Medure’s attorney, exchanged messages but were unable to speak to one another. (Armstrong Dep. at 172,174r-75.) Armstrong stated that, after her second unsuccessful attempt to speak to DiSalle, “I dropped the issue.” (Armstrong Dep.

Ex. 14; see Armstrong Dep. at 175.) On January 30,1998, DiSalle sent a letter to Betty H. Brown Jagnow, President/Publisher of The Vindicator. He wrote that: Our firm has been retained by Angelo Medure and Gaming World International, Ltd. to pursue an action for defamation against The Vindicator and Cory Armstrong in connection with an

article titled “Medure, magazine settle suit” which was published in The Vindicator, Volume 109 Number 74 on November 13, 1997. The

article contains false and malicious statements regarding Mr. Me-dure and his company. We have tried to contact the author of the article, Ms. Cory Armstrong, numerous times without success. If you have insurance for defamation claims, please put your carrier on notice of this claim and request that a representative contact me. Otherwise, please have your attorney contact me directly to discuss this claim. (Defs.’ Ex. 17.) Anthony Paglia, Senior Regional Editor for The Vindicator since 1989 (Paglia Deck ¶ 1; Paglia Dep. at 7), states that this letter from DiSalle came to his attention on February 2, 1998, at which time he did not know what in the

article was claimed to be a falsehood. (Paglia Deck ¶ 8; Paglia Dep. at 36.) With the assistance of counsel for The Vindicator, Paglia investigated and discovered that Armstrong had made a mistake in reporting that Gaming World had been placed under FBI investigation. (Paglia Decl. ¶ 9; Paglia Dep. at 36-39.) Mr. Paglia states that: Vindicator management then decided it would publish an apology, explaining that it had no information that the FBI investigation described actually had happened.

The Vindicator could not categorically say that no such investigation had occurred because, at that time, the Vindicator did not know whether there actually had been such an investigation. The Vindicator decided to show the proposed apology to Mr. Medure’s counsel in advance of publication for Mr.

Me-dure’s input. (Paglia Decl. ¶ 10.) On February 27, 1998, counsel for The Vindicator sent a letter to Attorney DiSalle, which included the proposed apology. (Defs.’ Ex. 18.) On April 6, 1998, Attorney DiSalle responded with a counter-proposed apology. (Defs.’ Ex. 19.) Nevertheless, The Vindicator decided to proceed with publishing the apology that it originally had proposed.

The apology was published on page 2 of the Sunday, April 19, 1998 issue of The Vindicator. (Paglia Decl. ¶ 11.) The apology stated as follows: GETTING IT RIGHT A Nov. 13, 1997, story incorrectly reported that the FBI was investigating Gaming World International, a management company owned by Ellwood City businessman Angelo Medure, in connection with an Indian casino the company operated in Minnesota. The Vindicator had no information that either Gaming World or Medure had been under the FBI investigation described.

The Vindicator apologizes for the error. (Defs.’ Ex. 88.) On October 19, 1998, Me-dure and Gaming World initiated this action for defamation arising out of the November 13,1997 article.

Summary Judgment in N.Y. Times Case On August 20, 1999, Judge Cohill entered an order granting the defendants’ motion for

summary judgment in the NY Times case. He concluded that “Angelo Medure was a limited purpose public figure for purposes of all statements complained of in the newspaper articles at issue, and that he has failed to present clear and convincing evidence from which a jury could find that any of the statements complained of were made with actual malice.” Medure v. The New York Times Co., 60 F.Supp.2d 477, 482 (W.D.Pa.1999). Medure appealed, but the appeal was dismissed by the Third Circuit on March 20, 2000 when the parties settled the case.

Procedural History On October 19, 1998, Medure and Gaming World initiated this case by filing a complaint in the Court of Common Pleas of Lawrence County, Pennsylvania. Count I alleged that the Defendants defamed Me-dure and Gaming World in the November 13, 1997

article by imputing criminal activity to them. Count II alleged that neither Medure nor Gaming World was a public figure nor was involved in any public controversy and that Defendants’ conduct was malicious, wanton, willful, reckless intentional, and outrageous, and therefore the complaint requested punitive damages. On November 17, 1998, Defendants removed the action to this Court on the basis of diversity jurisdiction.

On October 19, 1999, an order was entered granting the stipulated dismissal of Gaming World and all claims asserted on its behalf as a plaintiff, as well as any and all claims by Me-dure for economic injuries including injuries to his “business dealings,” present and future financial losses and damage and “economic losses, including lost income and loss of earning capacity.” (Doc. # 8.) On January 31, 2000, Defendants filed a Motion for

Summary Judgment.

Summary Judgment

Summary judgment is appropriate if, drawing all inferences in favor of the non-moving party, “the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show that there is no genuine issue of material fact and the movant is entitled to

summary judgment as a matter of law.” Fed.R.Civ.P. 56(c). The moving party bears the initial burden of identifying evidence which shows the lack of a genuine issue of material fact. Once that burden is met, the non-moving party must set forth “specific facts showing that there is a genuine issue for trial.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 578, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). An issue is genuine only if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Defendants argue that: 1) Medure is a limited public figure for purposes of reporting about the management of the Shooting Star Casino, as Judge Cohill determined in the NY Times case; 2) he has failed to produce clear and convincing evidence of actual malice; 3) he has not demonstrated that the

article was false because Gaming World was fired amid allegations of improper behavior (the

article was far less severe than the actual allegations made by the tribe) and whether it was the FBI or federal regulators who were investigating does not make a substantial difference; 4) the fair report privilege protects a substantially accurate statement based on the tribal resolution; 5) The Vindicator derived its report from an AP dispatch so that in conveying its essence the paper was under no duty to verify the contents; and 6) the statement is not “of and concerning” Medure, but is about Gaming World and although he is the president, he is not the company. Plaintiff argues that: 1) he is not a public figure because the controversy that was the subject of the

article was a private matter (a defamation suit between private parties); 2) actual malice is an issue of fact and Armstrong recklessly disregarded the truth in her article; 3) the

article was neither true nor substantially true, and Defendants have not met their burden of demonstrating that it was true; 4) the fair report privilege does not apply because Armstrong did not read the tribal resolution at the time she wrote her article, the tribal resolution was not an official or governmental report for purposes of the privilege, and even if the privilege applied she abused it by failing to give a fair and substantially accurate report of what it said; 5) the “wire service privilege” has not been adopted in Pennsylvania and even if it applied the material must be republished without substantial changes; and 6) the issue of whether the comment referred to Medure is for the jury to decide, because reasonable people believed that it did.

Public or Private Figure Determining whether a plaintiff in a defamation case is a public or private figure is a question of law for the court to decide. Marcone v. Penthouse Int'l Magazine for Men, 754 F.2d 1072, 1081 & n. 4 (3d Cir.), cert. denied, 474 U.S. 864, 106 S.Ct. 182, 88 L.Ed.2d 151 (1985); Iafrate v. Hadesty, 423 Pa.Super. 619, 621 A.2d 1005, 1007 (1993).

In a defamation case, whether the plaintiff is a public or private figure is an important distinction, because the Supreme Court has held that a media defendant has a constitutional privilege for the publication of defamatory falsehoods concerning public figures, and that a plaintiff alleging such defamation is required to show clear and convincing evidence of “actual malice.” New York Times Co. v. Sullivan, 376 U.S. 254, 279-80, 285-86, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) (constitutional protection for defamation of public official); Curtis Publishing Co. v.

Butts, 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (constitutional protection for defamation of public figure). Actual malice requires that a false statement be made “with knowledge that it was false or with reckless disregard for whether it was false or not.” New York Times, 376 U.S. at 279-80, 84 S.Ct. 710. On the other hand, a private figure plaintiff allegedly defamed in speech of private concern need only demonstrate simple fault on the part of the defendant to recover damages, including punitive damages. Dun & Bradstreet, Inc. v.

Greenmoss Builders, Inc., 472 U.S. 749, 761, 764, 774, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985). However, when the plaintiff is a private figure but the speech is of public concern, the quantum of proof depends upon the type of damages sought — simple fault for actual damages, but actual malice for presumed or punitive damages. Gertz v. Robert Welch, Inc., 418 U.S. 323, 348-50, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974).

The Supreme Court has identified two types of public figures for purposes of defamation: all purpose public figures, such as politicians, who are widely recognized, and limited purpose public figures, who may not be well known on every issue but who are sufficiently involved in a particular area to be considered as public figures for that purpose. Gertz, 418 U.S. at 345, 94 S.Ct. 2997. “Such limited public purpose figures have usually ‘thrust themselves to the forefront of particular public controversies in order to influence the resolution of the issues involved.’ ” Schiavone Constr. Co. v.

Time, Inc., 847 F.2d 1069, 1077 (3d Cir.1988) (quoting Gertz, 418 U.S. at 345, 94 S.Ct. 2997). See Rutt v. Bethlehems’ Globe Publishing Co., 335 Pa.Super. 163, 484 A.2d 72, 80 (1984); Waldbaum v. Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir.) cert. denied, 449 U.S. 898,101 S.Ct. 266, 66 L.Ed.2d 128 (1980). “When an individual undertakes a course of conduct that invites attention, even though such attention is neither sought nor desired, he may be deemed a public figure.” McDowell v. Paiewonsky, 769 F.2d 942, 949 (3d Cir.1985). In Wolston v.

Reader’s Digest Association, Inc., 443 U.S. 157, 99 S.Ct. 2701, 61 L.Ed.2d 450 (1979), the Supreme Court held that a plaintiff who chose not to appear before a grand jury investigating the activities of Soviet intelligence agents in the United States and who was thereafter cited for contempt was not a limited purpose public figure for purposes of comment on his connection with or involvement in Soviet espionage in the 1940s and 1950s.

The Court stated that “the mere fact that petitioner voluntarily chose not to appear before the grand jury, knowing that his action might be attended by publicity, is not decisive on the question of public-figure status.” Id. at 157, 99 S.Ct. 2701. The Court further stated that: Petitioner’s failure to appear before the grand jury and citation for contempt no doubt were “newsworthy,” but the simple fact that these events attracted media attention also is not conclusive of the public figure issue.

A private individual is not automatically transformed into a public figure just by becoming involved in or associated with a matter that attracts public attention. To accept such reasoning would in effect reestablish the doctrine advanced by the plurality opinion in Rosenbloom v. Metromedia, Inc., 403 U.S. 29, 44, 91 S.Ct. 1811, 29 L.Ed.2d 296 (1971), which concluded that the New York Times standard should extend to defamatory falsehoods relating to private persons if the statements involved matters of public or general concern.

We repudiated this proposition in Gertz and in Firestone, however, and we reject it again today. A libel defendant must show more than mere newsworthiness to justify application of the demanding burden of New York Times. Id. at 167-68, 99 S.Ct. 2701. In McDowell, the Court of Appeals held that an architect who participated in numerous publicized and controversial building projects, one of which he had successfully bid upon despite knowing its controversial nature, was a limited public purpose figure as to his participation in those projects. Id. at 949-50.

Similarly, in Marcone, the court held that the plaintiff, an attorney who represented members of notorious motorcycle gangs and who also had social contacts with their members, was a limited public purpose figure on the issue of his alleged participation in a drug conspiracy with those members Jhe had been indicted but the indictment was subsequently dismissed). 754 F.2d at 1083. In Schiavone, the court held that a construction company and its majority owner were limited public purpose figures.

The court cited the fact that the plaintiffs: 1) campaigned for President Reagan; 2) conducted a private investigation of the Special Prosecutor and other investigators of the Secretary of Labor; 3) wrote numerous letters to the editor in various national and local publications complaining about how the Secretary was being treated; 4) bragged in their promotional literature about their close ties with the Secretary; and 5) worked exclusively on public projects. 847 F.2d at 1078.

In making the determination of whether a plaintiff is a limited purpose public figure, “[t]he court must consider (1) whether the alleged defamation involves a public controversy, and (2) the nature and extent of plaintiffs involvement in that controversy.” McDowell, 769 F.2d at 948 (citing Marcone, 754 F.2d at 1082). In the NY Times case, Medure argued that the public controversy should have been narrowly circumscribed as whether an Indian casino should be permitted at all in Fountain-grove, while the defendants argued for a broader definition of the controversy.

Judge Cohill concluded that: Medure thrust himself to the forefront of a broad public controversy over gaming casinos on Indian property, and ... this controversy encompassed more than just the isolated Fountadngrove project. Certainly, the proposed casino was a matter of great public controversy, both in Santa Rosa, where Fountaingrove was located, and in the surrounding geographic area, including Sonoma County and the Press Democrat’s circulation area.

Indeed, in trying to gain official and community approval for the Foun-taingrove Casino plan through media and public relations events, Medure helped to create the controversy and became, as an individual and a businessman, a significant part of it. 60 F.Supp.2d at 485.

Judge Cohill concluded that part of what was controversial about the project was the effect the casino’s development might have on the area, including whether it might attract the involvement of organized crime, and therefore Medure’s past business activities with individuals later determined to be involved with organized crime were germane to the controversy being reported. Id. Defendants contend that Judge Cohill’s conclusions about Medure in the NY Times case effectively control Medure’s status for purposes of this case. But the

article at issue here was not about Indian gambling, or even the Shooting Star Casino. There was no proposal to construct a casino on an Indian reservation in New Castle, so that all of Medure’s previous dealings in that business would be part of the controversy. Rather, The Vindicator was reporting that Medure and US News had settled a defamation case. Armstrong stated that she covered the trial because “Mr. Medure is a prominent man in Lawrence County. His company is also well known in the community, and he was suing a national publication.

I have no doubt it was newsworthy.” (Armstrong Dep. at 79.) She also stated that libel trials are not commonplace in Lawrence County, that Medure owned several businesses and that his nephew owned a restaurant. (Armstrong Dep. at 80-81.) Indeed, based upon the record, The Vindicator published articles about any topic related to Medure, indicating that he was considered “newsworthy.” (Defs.’ Exs. 67-72, 74-87.) As noted above, however, the Supreme Court has rejected the notion that merely because a matter attracts media attention, the person described must be a limited purpose public figure.

The Court of Appeals has approvingly cited the following description of public controversy: A public controversy is not simply a matter of interest to the public; it must be a real dispute, the outcome of which affects the general public or some segment of it in an appreciable way. The Supreme Court has made clear that essentially private concerns or disagreements do not become public controversies simply because they attract attention. Rather, a public controversy is a dispute that in fact has received public attention because its ramifications will be felt by persons who are not direct participants. Waldbaum v.

Fairchild Publications, Inc., 627 F.2d 1287, 1296 (D.C.Cir.1980) (citation and footnote omitted), cited in Mar-cone, 754 F.2d at 1083. Although the public may have been interested in Medure’s defamation suit against US News, no ramifications of that suit extended to anyone other than the direct participants therein.

Defendants also cite other examples of Medure’s “prominence” in Western Pennsylvania, including: his attempt to purchase a bank in Minnesota in 1993 (Defs.’ Exs. 55-57, 93); the 1993 arrest of his son in Pittsburgh (Defs.’ Ex. 31); his interest in putting a casino at the Fox Chapel Yacht Club that he had purchased if riverboat gambling was approved (Defs.’ Exs. 42-47); and the fact that his nephew owns a restaurant named Medure’s (Armstrong Dep. at 81; Leuben Dep. at 35). None of these issues has any bearing on his defamation suit against US News or the reports about the case and its settlement.

Therefore, they are not relevant to the determination of whether he is a limited purpose public figure with respect to the November 13, 1997

article in The Vindicator. Defendants argue in their reply brief that filing a defamation case itself is a form of public exposure that could transform Medure into a limited purpose public figure. They acknowledge that the Supreme Court held in Time, Inc. v. Firestone, 424 U.S. 448, 96 S.Ct. 958, 47 L.Ed.2d 154 (1976), that the former wife of the scion of a wealthy industrial family was not a limited purpose public figure when she divorced him because she “was compelled to go to court by the State in order to obtain legal release from the bonds of matrimony.” Id. at 454, 96 S.Ct. 958.

They argue that this case is distinguishable because Medure had other modes of obtaining relief from the defamation in the US News

article beyond filing a lawsuit. However, the Supreme Court, in discussing the private figure plaintiff in Gertz, stated that “[h]e has relinquished no part of his interest in the protection of his good name, and consequently he has a more compelling call on the courts for redress of injury inflicted by defamatory «falsehood.” 418 U.S. at 345, 94 S.Ct. 2997. Thus, the Supreme Court recognized that plaintiffs may seek redress for defamation in the courts.

To hold that by doing so they transform themselves into public figures because other means of redress are available would be to disregard the distinction between private and public figures outlined by the Court. See Hutchinson v. Proxmire, 443 U.S. 111, 135, 99 S.Ct. 2675, 61 L.Ed.2d 411 (1979) (“those charged with defamation cannot, by their own conduct, create their own defense by making the claimant a public figure.”) Defendants have not demonstrated Me-dure was a limited purpose public figure because he filed a defamation suit against US News.

Nor have they cited support for the argument that the insertion into an

article that involved a private controversy of a “background”

section that discussed Medure’s involvement with the Shooting Star Casino transformed the entire

article into a matter of public concern such that Medure would be a limited purpose public figure. Moreover, in the NY Times case, Judge Cohill noted that, “[a]s part of our determination of whether Medure is a limited purpose public figure, we must also consider whether the statements complained of relate to the public issue as we have defined it. This is a necessary step, since statements “wholly unrelated to the controversy ... do not receive New York Times protection.’” 60 F.Supp.2d at 486 (quoting Waldbaum, 627 F.2d at 1298). Thus, because the controversy in the

article in question was a defamation suit, the statements about the termination of Gaming World would be statements wholly unrelated to the controversy, and therefore they would not be entitled to the heightened protections described in New York Times v. Sullivan. Defendants argue that the controversy in this case should be considered the same as the controversy in the NY Times case, that is the issue of Indian gambling and possible involvement therein by members of organized crime. However, that argument is not supported by the record: Armstrong stated that she covered the US News defamation case because it was “newsworthy” and that she included the

section about the firing of Gaming World because it was “relevant.” Moreover, even accepting their proposed scope of the controversy, they have not explained why a narrative of events that occurred after Gaming World was fired by the tribe would relate to that controversy. Because Medure was not a limited public purpose figure for purposes of the November 13, 1997 Vindicator article, he does not have to demonstrate the existence of actual malice by the Defendants in order to recover damages.

Therefore, Defendants’ argument that Medure has not produced clear and convincing evidence that they acted with actual malice will not be considered. Burden of Proof of Falsity The Supreme Court has also addressed the assignment of the burden of proof to demonstrate truth or falsity in a defamation case. A public figure plaintiff bears the burden of showing that the statements at issue are false. Philadelphia Newspa pers, Inc. v. Hepps, 475 U.S. 767, 775, 106 S.Ct. 1558, 89 L.Ed.2d 783 (1986); Ertel v. Patriot-News Co., 544 Pa. 93, 674 A.2d 1038, 1041 (1996).

In addition, when “the plaintiff is a private figure and the newspaper articles are of public concern ... the common law’s rule on falsity — that the defendant must bear the burden of proving truth — must similarly fall ... to a constitutional requirement that the plaintiff bear the burden of showing falsity, as well as fault, before recovering damages.” Id. at 776, 106 S.Ct. 1558. However, when private figure plaintiffs bring suit regarding speech of private concern, a state may allocate the burden to prove the truth of the statement to the defendant.

Choice of Law The parties have mentioned, but not addressed, the choice of law question. Defendants note that either the law of Ohio or Pennsylvania might apply, although they state without elaboration that “strong arguments exist for applying only Ohio law.” (Defs.’ Br. at 44 n. 22.) Plaintiffs brief cites only Pennsylvania cases, but does not discuss the choice of law issue.

The Restatement 2d of Conflict of Laws § 150(2) states that: “When a natural person claims that he has been defamed by an aggregate communication, the state of most significant relationship will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.” Medure is a Pennsylvania resident. (Medure Dep. at 7.) He testified that he read the

article in an issue of The Vindicator that he purchased in New Castle, Pennsylvania. (Me-dure Dep. at 109-10, 112.) Mr. Paglia stated that the

article ran on the front page of the Pennsylvania edition of The Vindicator, and therefore it appeared in 3600 newspapers, but he also thought that it had appeared in all of the other editions, for a total of 90,000 newspapers. (Paglia Dep. at 17-18.) Thus, the harm to Me-dure’s reputation would have occurred primarily in Pennsylvania. Because the matter was published in Pennsylvania and caused harm to his reputation primarily in Pennsylvania, the law of Pennsylvania should apply.

See Marcone, 754 F.2d at 1077 (“Inasmuch as Marcone is a Pennsylvania resident and any harm to his reputation that may have occurred centered in that state, the district court was correct to apply Pennsylvania law.”) In the NY Times case, although the issue was not discussed, Judge Cohill did not question the application of Pennsylvania law even though the defendants were publishing companies located in New York and California and the offending statements had appeared in a California newspaper. Medure, 60 F.Supp.2d at 484. Therefore, Pennsylvania law will be applied.

Defendants contend that all libel plaintiffs bear the burden of demonstrating that an allegedly defamatory statement is false. (Defs.’ Br. at 25.) As the cases described above hold, however, that is not an accurate

summary of the law. Because Me-dure was not a limited purpose public figure for purposes of the November 13, 1997 article, which concerned a private defamation suit and not a matter of public concern, the constitutional concerns of Hepps are not implicated. State law may allocate to the defendant in a defamation case involving a private figure the burden of demonstrating the truth of the statement in question. Pennsylvania has so provided by statute. 42 Pa.C.S. § 8343(b)(1). Simms v. Exeter Architectural Prods., Inc., 916 F.Supp. 432, 437 (M.D.Pa.1996). Was the Statement Subs

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