The plaintiffs in this case own a chinchilla ranch in mid-Michigan. They filed a complaint alleging that PETA lied to them to gain access to their farm, took video footage of their farm operation, and then published an exposé on PETA's website that put the plaintiffs in an unfavorable false light. The court ultimately granted defendant-PETA's motion for summary judgment on all the issues. The court observed that the Ouderkirks gave permission for the taping in an email that makes no reference to any restriction on that consent. Further, the primary use made of the plaintiffs' likenesses by the defendant was to advocate against the chinchilla trade; thus, PETA had a right under the First Amendment to disseminate the information containing the plaintiffs' likenesses.
OPINION AND ORDER GRANTING DEFENDANT'S MOTION FOR SUMMARY JUDGMENT AND DENYING OTHER MOTIONS AS MOOT
DAVID M. LAWSON, United States District Judge.
*1 The plaintiffs in this case, Robin Ouderkirk and Julie Ouderkirk, own a chinchilla ranch in mid-Michigan. They have filed a complaint alleging that agents of the defendant, People for the Ethical Treatment of Animals, known as PETA, lied to them to gain access to their farm, took video footage of their farm operation, and then published an exposé on PETA's website that put the plaintiffs in an unfavorable false light. The amended complaint contains four counts: intrusion on seclusion, appropriation of plaintiffs' likenesses, false light, and intentional infliction of emotional distress. All the claims are based on state law; the plaintiffs have invoked the Court's diversity jurisdiction. 28 U.S.C. § 1332. Presently before the Court is the defendant's motion for summary judgment, in which it asserts that the plaintiffs are unable to prove all the elements of any of the claims and are incapable of meeting the $75,000 requirement for diversity jurisdiction. The plaintiffs filed a response, and the Court heard oral argument on May 2, 2006. The Court now finds that the plaintiffs have satisfied the amount-in-controversy requirement and therefore the Court has jurisdiction over the matter. However, the undisputed facts demonstrate that the defendant is entitled to judgment as a matter of law on all of the plaintiffs' claims. Therefore, the Court will grant the motion for summary judgment and deny the remaining pending motions as moot.
The plaintiffs, Julie and Robin Ouderkirk, own a chinchilla ranch called 6 Okes Chinchillas located in Midland County, Michigan. They spend a great deal of time operating the ranch, but Robin Ouderkirk has a full-time job at the Dow Chemical Company as well. In February 2004, they had about 700 chinchillas on the ranch. Ms. Ouderkirk is national secretary for the Mutation Chinchilla Breeders Association, Inc. (MCBA). Mr. Ouderkirk is president of the Michigan branch of the MCBA. Prior to the publicity from PETA, the plaintiffs sold two to three chinchillas per week to individuals who came to the ranch. They also made some sales to wholesalers. They occasionally pelt animals and sell the pelts, although pelting does not appear to be their primary activity.
The plaintiffs did not engage in any active advertising. However, customers would post information about them on the Internet, and others would learn about their ranch in that way. Mrs. Ouderkirk explained: “Our customers over the years have put us on about seven or eight different websites, and our name is all over the place, and people contact us. We have never put our own self on there. It's always been other people that put us on their sites because they like us.” Def.'s Mot. Summ. J. Ex. 2, J. Ouderkirk Dep. at 85. These websites contain the plaintiffs' names and contact information.
For the past ten years, the plaintiffs have been giving seminars to members of the public on how to operate a chinchilla ranch and how to care for chinchillas. They charge a small fee for that service, and the seminars are open to anyone with an interest.
*2 It is undisputed that the plaintiffs sometimes find it necessary to kill chinchillas for business reasons, such as when the females stop reproducing or when the animals engage in self-mutilation. Before August 2004, the plaintiffs euthanized such chinchillas by electrocution or cervical dislocation. Over the years, several of Mr. Ouderkirk's co-workers had asked him how he euthanizes the chinchillas. Mr. Ouderkirk states his practices were not secret, but he did not make a practice of publicizing the fact that he must destroy some animals. Rather, he says that he always told people that he kills the animals “as quickly and humanely as possible and never told them [his] methods.” Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 21. Mr Ouderkirk testified:
Q Before PETA was there-was it fairly widely known through the workplace that you had a chinchilla ranch?
Q And you kept your practices fairly close to the vest and secret, it sounds like.
A No, I wouldn't say they were secret, but I know that euthanizing animals offends some people so why would I deliberately want to offend someone that may overhear our comment, or why mention it to somebody and they say-well, you know, if I mention it to this person and he's in a conversation, well, I know how they kill chinchillas and then it's mentioned to somebody else, it just-common sense seemed to dictate not to-just to tell people, if I have to kill an animal, I kill it as quickly and as humanely as possible.
Id. at 28-29. Mr. Ouderkirk states these practices were common in the industry. Ms. Ouderkirk stated she never talked to people about pelting or euthanasia because she is a private person.
The plaintiffs had been licensed by the United States Department of Agriculture to sell chinchillas to pet stores or laboratories. They maintain that they do not need a license to sell pelts or animals to individuals for pets. Chinchilla ranchers generally are not required to be USDA certified unless they provide animals to pet stores or research laboratories. The plaintiffs testified that they have not sold to research facilities for over five years.
In early 2004, the plaintiffs said that they began to contemplate selling their ranch. Coincidently, on February 16, 2004, Philip Schein (formerly Philip Lamber) contacted the MCBA by email and asked for information on chinchilla ranches that might be for sale. Schein worked for PETA, but he withheld that fact from the plaintiffs. PETA claims to have been actually interested in buying the herd, claiming that it intended to buy all the animals and persuade the Ouderkirks to agree not to go back into the business.
Julie Ouderkirk, as secretary of the MCBA, responded to Mr. Schein's email as follows:
The only ranch that may be for sale is in Michigan.... There may be others but I haven't heard of any.... This ranch is just being contemplated to be for sale but there are about 600 animals I think.... They may be willing to sell you a portion.
*3 Pls.' Resp. Ex. 2, Emails at 1. Ms. Ouderkirk then furnished an email address where Schein might contact “them” directly. The record does not indicate why Ms. Ouderkirk wrote this email referring to herself in the third person. The message did provoke a number of exchanges with the Ouderkirks.
Although several of the email messages from Mr. Schein to the Ouderkirks are not available due to a computer crash experienced by the Ouderkirks, some of Ms. Ouderkirk's emails to Mr. Schein contain the text of the email to which she was responding. Several of the texts are reproduced here in full because they disclose the nature of the communications the parties were willing to electronically memorialize. For instance, on February 26, 2004, Ms. Ouderkirk emailed Mr. Schein some basic information about the ranch:
We have approximately 700 animals of various colors. The majority are standard gray ranging from dark medium to extra dark. We also have ebony, beige, mosaic, black velvet and violet matings. Our animals have been bred for show quality and breeding stock for the past 16 years and have done well in shows, including national grand show champion and state grand show champion. We are USDA licensed and also are CIC approved.
There are 2 main reasons that we are considering selling at the moment: my husband has been having a lot of knee and ankle problems and standing for long periods of time on the cement floor really gives him fits. I have also been going back to college and am looking at taking an outside job within the next 6 months and my time commitment for the barn will be extremely reduced. We are not in a great hurry to sell but would consider it if you were interested.
One thing you may want to do to aid in your thought process to purchase a herd of this size is to come to a seminar on ranching. We have been holding this seminar off and on for the past few years. It is geared to those starting out and is a crash course on setting up, putting together breeding lines, training your eyes to look for quality, showing, ranch maintenance, record keeping, health issues-basically, everything you ever wanted to know and then some:-). We have people coming from Georgia and Iowa on Saturday March 6 to participate in this. The man from Georgia is on a follow-up seminar since he has attended once prior to this. We normally charge $50 per person for this hands-on seminar which includes a noon meal and a 50-page handbook for future reference. If you are interested in purchasing all or part of the herd, we would strongly recommend this seminar. We would allow you to attend for free at this time. If you don't think that you would be interested in the herd, but would still like the seminar, you may come at the regular price.
When selling a herd, generally you have the price fixed per animal and everything that the rancher owns relating to the animals goes with them. If you are only purchasing part of the herd, we would like $70/animal and that would include the cages they are in as well as the automatic system attached to them. This would be for the breeding stock as they are set up or for the young stock. It would not mean picking and choosing what you do and do not want. If you want to take the herd, lock-stock-and barrel, we would like $90/animal since we have soooo [sic] many supplies.
*4 Since we are not openly offering our herd on the market at this time, we would appreciate the terms of the sale not being mentioned to anyone. If you have any questions or would like more details, please do not hesitate to call. We are home most evenings this week and all day Saturday.
Robin & Julie Ouderkirk
Pls.' Resp. Ex. 2, Email at 2-3 (Feb. 26, 2004).
Schein accepted the invitation to attend the seminar and arranged to bring his girlfriend (now wife) Hannah Schein, also an employee of the defendant. Ms. Ouderkirk confirmed the arrangement with another email message. She told Schein that the seminar would start on March 6, 2004 at 10 a.m. and asked him to hold his conversation about purchasing the herd until they could speak privately. Ms. Ouderkirk then described the events of the day, which included lecture, instruction, and hands-on experiences to handle and groom the animals. As to Schein's request to record the events on videotape, she wrote:
We have no problem with a video camera but it is not the easiest thing to do during the hands-on time. The handbook is fairly good. We put it together ourself. [sic] You can find some of it that we've put on the MCBA website to help people.... If you read this, it will give you a jump start on questions! If you purchase our animals, we will also give you the computer program that lists all of the animals and their genetic background so all you would have to do is input their new location.
Pls.' Resp. Ex. 2, Email at 4-6 (Feb. 27, 2004).
Mr. Ouderkirk was aware that his wife had given permission for the Scheins to bring the video camera. Ms. Ouderkirk states permission to video tape the event was given for Mr. Schein to have something to refer to when he got home. The parties agree that the Scheins used the video camera in full view of the Ouderkirks. Ms. Ouderkirk testified that “They had our permission to come onto our property, videotape it for their personal use, for reference.” Def .'s Mot. Summ. J. Ex. 2, J. Ouderkirk Dep. at 111. She acknowledged that there was no written agreement regarding the limited purpose for which the recording was permitted. Mr. Schein testified that he told the Ouderkirks the tape would be used as a reference for the care of the animals. Ms. Ouderkirk invited the Scheins to attend their church during the visit, and the Scheins agreed to go.
The Scheins attended the March 6, 2006 seminar. The plaintiffs state the Scheins brought two video cameras: one handheld and a hidden camera disguised as a button. However, there is no testimony or other evidence of a hidden camera being used, and Ms. Schein's supervisor, Mary Beth Sweetland, testified that she believed only a hand-held camera was used. The Scheins video taped the area containing the cages and Ms. Ouderkirk's demonstration on grooming chinchillas. After the seminar, Mr. Schein told Ms. Ouderkirk that he had to discuss the purchase with his father, who was financing the purchase. Schein admitted at his deposition that this was not true.
*5 A short time later, Mr. Schein emailed Ms. Ouderkirk again with additional questions. He indicated that his father wanted him to learn about pelting. Ms. Ouderkirk sent Mr. Schein the following email:
Yes, I got your email this morning. It was good to hear from you. Your business plan sounds workable. Robin also does pelts but, since the market is so depressed, it has just been easier to freeze the carcases (due to lack of time) and pelt when things begin to slow down. That was how we started originally was as pelters. Pets were secondary until about 5 years ago when the markets switched so he could still show you how to pelt, etc. You do not need a large area for this. In fact, if you remember the layout of the barn and where the furnace room was, there is a little cupboard with light above near the furnace room door. This is the “pelting area”. While pelts are drying they are just stacked in shelves about 2-3 in. high. They dry for about a week and then are wrapped and moved into the freezer for storage until we decide to send a batch to the tanners. I, personally, have never pelted because that is something Robin has always done but, he would be able to teach you how. There is also a pelting video that was done at one of our seminars for the national organization. Robin had been asked to do a demonstration on pelting and it was recorded. There is another couple wanting to get a copy of this video and I will try to get one for you also to kind of get your feet wet. It doesn't show the actual killing of the animal but it does show the pelting. I have to get it approved by the national board to be able to do this for some reason (at least that was what the board president said) so I'll be working on that at nationals.
Pls.' Resp. Ex. 2, Emails at 11. The Ouderkirks invited the Scheins to visit again the weekend of April 16, 2004 to learn to pelt. Mr. Schein sent the following email:
So we are prepared to start our “pelting education” on Friday night and we are free all day Saturday to see more pelting and talk more about specifics re: the sale of your herd and equipment. Hopefully we will have more information by then about our land/zoning and our investment plans. I guess it would be best, if it would be possible in the interim, to hold off killing as many “last chance” chins as possible so that there will be more for us to see Robin demonstrate the cervical dislocation on. Our return flight leaves Detroit at around 1:00pm so we will have to miss Church on Sunday:-). So, I hope these plans are good for you.
Pls.' Resp. Ex. 2, Emails at 13-14.
The Scheins visited again, and Mr. Ouderkirk demonstrated electrocution and cervical dislocation euthanasia techniques. The Scheins again brought a video camera and were allowed to record the instructions. Mr. Ouderkirk asked the Scheins to keep his face out of the video. The videotape is an exhibit to the defendant's motion, and the Court has viewed it.
*6 Shortly after this trip, Mr. Schein informed the Ouderkirks that they had decided to raise portobello mushrooms instead of chinchillas. Mr. Schein has not actually gone into mushroom farming, but he insists that PETA was truly interested in buying the ranch when he first contacted the Ouderkirks. He does not know who made the decision not to buy the ranch or when or why this decision was made.
Ms. Ouderkirk sent Mr. Schein this email:
Sorry to hear that you won't be taking the herd. I wish you well in your other endeavors. If you ever decide to own one as a pet, we'll be more than happy to help you with finding one, even if we don't own any at the time:-). We'll see what happens with the herd in the future. I know that chinchillas may not be a fast money-making proposition but it is truly an enjoyable way to make money. It was nice meeting both of you and hope all goes well for you in the future.
Pls.' Resp. Ex. 2, Emails at 18 (Apr. 24, 2004).
In May 2004, the plaintiffs' USDA license expired. The plaintiffs did not renew it at that time because they were not engaging in the types of sales that require them to have a license. But trouble for the Ouderkirks was soon to begin as a result of their misbegotten encounter with the Scheins.
In August 2004, PETA began publishing information about chinchilla farming and the Ouderkirks' farm on its website. The Scheins wrote an article about what they observed:
Animals raised for their fur suffer from the time they're little until the day they are killed.
Inside the breeder rooms, the farmer looked for babies to take away from their mothers. The babies squealed and squealed as he grabbed them and carried them by their tails to the “grower room.” Their mothers were distressed, too; one climbed and pressed against the front of her cage, frantically trying to reach her baby. My partner asked the farmer if the mothers got upset when he took their babies away. “I don't ask them their opinion,” he said.
At feeding time, the farmer walked down the rows of cages checking if the chinchillas were dead or alive. Many were asleep, since they are nocturnal animals, but the farmer banged on cages to make them move. One chinchilla didn't move. His hindquarters looked wasted away, completely denuded of fur. The farmer had already told us that his profit margins didn't factor in veterinary care. He tossed the body onto the festering trash heap he called “Mount Chinchilla.”
Animals who had chewed at their fur (a sign of stress), making them unsuitable for pelting, were housed on a lower rack-“death row”-so that the farmer could scoot alongside the cages in an office chair, killing one after another without exerting himself. He kills these “trash” animals by breaking their necks.
We watched him thrust his arm into a cage, corner the frantic chinchilla inside, and pull him out by his tail. Grasping the chinchilla's head and jaw, he arched the neck awkwardly backwards. The chinchilla squealed. The farmer then pulled sharply on the animal's tail, breaking his neck. He tossed the jerking chinchilla to the floor, where the animal writhed in continuous spasms. We asked if he was ever bothered by the killings. “I don't feel anything,” he replied, and moments later, added, “I could do this all day.”
*7 Other chinchillas are electrocuted so that they won't thrash around and ruin their coats. Carrying a chinchilla by her tail, the farmer pulled a rusty wire apparatus from a drawer, dipped the sharp clamps into a jar of water, and attached one clamp to the chinchilla's metal ear tag and the other to her foot. He plugged the device into a wall socket and dropped the chinchilla to the counter. The surge of electricity stiffened her. Her tail stuck straight out, her chest heaved, and a minute later, a yellow trickle ran down the counter-she had lost control of her bladder.
Performed this way, electrocution sends a current through the heart and immobilizes the animal, but it does not stop brain activity. The chinchillas suffer the pain of a full-blown heart attack until their hearts finally stop beating. The farmer admitted that he had been told by a veterinarian to stun the chinchillas first. But he said he didn't see why stunning them and then electrocuting them would be any different from just electrocuting them, so he doesn't do it.
After unplugging the chinchilla, the farmer clipped her arms and legs to a pelting board in a spread-eagled position. Slitting her open, he cut her face away from her skull and cut her hands off. Working her pelt away from her body, he pulled her arms out of her skin, which turned inside out like socks. Saying, “She doesn't need these anymore,” he took scissors and cut off her whiskers, then her ears. Her tail and feet soon followed; they were dumped, along with her naked, skinned body, into a garbage bucket, like so much trash.
Pls.' Resp. Ex. 3, Investigator's Notebook: One Day on a Fur Farm. The article is accompanied by a number of pictures of the chinchillas.
PETA also put clips of the video taken by the Scheins on their website. The website solicits donations at a number of places. The plaintiffs submitted a DVD as a motion exhibit, which shows six short clips taken from the entire streaming video on the defendant's website. Each clip is separated by a few seconds of black screen and silence. The first clip shows the area of the ranch where the chinchilla cages are kept. The second shows Ms. Ouderkirk shaking a chinchilla to fluff up its fur. In the third clip, Mr. Ouderkirk asks the Scheins to keep his face out of the video, which they do. It shows Mr. Ouderkirk killing a chinchilla by cervical dislocation. The chinchilla makes some squeaking sounds, which Mr. Ouderkirk comments on. Mr. Ouderkirk puts the euthanized chinchilla on the floor and it shakes for about 10 or 20 seconds. The audio portion includes his statement: “I can do this all day long, but I don't need the experience.” The fourth clip shows Mr. Ouderkirk euthanizing another chinchilla by cervical dislocation. The next three clips show Mr. Ouderkirk euthanizing chinchillas by electrocution. Mr. Ouderkirk's face was captured on camera, but the image is blurred out. The final clip shows Mr. Ouderkirk pelting a chinchilla.
*8 Mr. Ouderkirk testified that PETA's publication of these clips is misleading and “meant to inflame people against” him. Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 52. He believes the PETA-edited video shows “it as a continuous type operation or movement” that casts him “in a very negative light.” Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 49. He states that “it doesn't take a rocket scientist to figure out they spliced that all together.” Ibid. Ms. Ouderkirk states the video makes her husband look lazy because he sits in an office chair when he moves about the chinchilla cages. She says that the video inaccurately suggests that Mr. Ouderkirk “does this for pleasure; he's doing it because it doesn't bother him to kill animals and he does it for pleasure one after the other, basically is what they're implying.” Def.'s Mot. Summ. J. Ex. 2, J. Ouderkirk Dep. at 53. It portrays him as if “he likes to torture them ... like the mentality of the mass murderer, he likes to kill people.” Ibid.
The plaintiffs both claim that PETA edited the video to show Mr. Ouderkirk saying, “I could do this all day,” cutting off the rest of his sentence. Id. at 50; Ex. 2, J. Ouderkirk Dep. at 63. However, the DVD submitted by the plaintiffs, which they represented is a copy of what was produced by the defendant on its website, contains Mr. Ouderkirk's entire statement, “I could do this all day but I don't need the experience.” Pls.' Resp. Ex. 4, DVD. They also both believe, however, that the DVD makes them look cruel because it shows them carrying chinchillas by their tails, which apparently is the proper way to carry a chinchilla.
Ms. Ouderkirk also believes that the sound on the DVD was dubbed in one scene that shows Mr. Ouderkirk killing a chinchilla by cervical dislocation during which the animal makes a squealing sound. However, the DVD submitted includes Mr. Ouderkirk's comment on the squeaking, saying “I heard an audible snort.”
The plaintiffs also take issue with the article written by the Scheins, which derides the practices of carrying the chinchillas by their tails and weaning young chinchillas from their mothers. The Ouderkirks insist that these are proper and accepted farm practices. Ms. Ouderkirk also expressed concern about the article's use of the words “festering trash heap” to describe the area where pelted carcasses are disposed. She says that it was unlikely that any pile of carcasses was present at the ranch at the time of the Scheins' visit due to the limited pelting that had been taking place. Ms. Schein admitted at her deposition that she never saw the pile of animals she described as “festering,” but she stated that Mr. Ouderkirk referred to the carcass pile as Mount Chinchilla
On August 10, 2004, PETA sent a letter to the USDA complaining about the way the Ouderkirks operate their farm and posted a copy of the letter on its website. The letter identified the plaintiffs by name and contains the plaintiffs' address. PETA enclosed the videotape taken by the Scheins. PETA lodged objections to the Ouderkirks' practice of euthanizing chinchillas by electrocution and cervical dislocation; represented that the method is disapproved by the American Veterinary Medical Association due to the size of the animals; advocated killing chinchillas by poisoning with carbon monoxide as the “preferred killing method”; and asked the USDA to investigate the Ouderkirks' farm. The USDA responded a week later advising that the Ouderkirks let their license lapse in May 2004, so they no longer were conducting activity regulated by the Animal Welfare Act.
*9 Shortly thereafter, however, the plaintiffs were contacted by employees of the USDA, who wanted to inspect the ranch. Representatives from that agency and the Michigan Department of Agriculture came out to the plaintiffs' property, toured the ranch, looked at the cages and feeding systems, and inspected the equipment and animals. The plaintiffs applied to renew their license at that time. The USDA representative told Mr. Ouderkirk that he could no longer kill the chinchillas through electrocution or cervical dislocation; he was instructed to use the oxygen deprivation method instead. Mr. Ouderkirk does not believe electrocution and cervical dislocation are illegal, but he states that his license would not have been renewed if he continued to use those methods. Mr. Ouderkirk was also told to bury the carcasses of any dead chinchillas. A short time later, the agent returned and watched Mr. Ouderkirk euthanize an animal via the oxygen deprivation method, which Mr. Ouderkirk believes is more inhumane than the other methods. At that point, the plaintiffs' USDA license had been renewed.
After PETA publicized the plaintiffs' practices, Mr. Ouderkirk's coworkers at Dow Chemical began making comments to him about euthanizing chinchillas. Within a week, an unknown person at his work called out “hey, killer” to him. Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 21. Another coworker, Jeff Mansfield, introduced Mr. Ouderkirk to someone as “Dow Corning's mass murderer .” Id. at 21, 26. Another coworker named John told a famously bad joke that has previously involved gerbils and substituted chinchillas. Id. at 26-27. Mr. Ouderkirk's union had purchased a rabbit from a local fair. When they were trying to decide what to do with it, someone suggested that they “give it to Robin, he'll know what to do with it.” Id. at 28. Someone else put a cartoon up on the refrigerator in the break room that “showed a group of people dressed up like animals and the caption over the top was, Fleeing Ouderkirks Ranch, don't let them pull your tail.” Id. at 30.
The plaintiffs began receiving letters and emails protesting their treatment of the chinchillas, some of which are threatening. On August 27, 2004, they received a letter from someone calling himself “Harry Lunchbucket” that threatened a night invasion of the farm at which the Ouderkirks would be sexually assaulted and killed. The letter was postmarked from Detroit. The plaintiffs turned this letter in to the local police, who stated they would contact the FBI, although the plaintiffs have not heard from the police about any investigation. Mr. Ouderkirk believes the sender of the letter was reacting to the publicity from PETA, although he acknowledges there is nothing on PETA's website encouraging people to threaten him and his wife. He insists, however, that the letter would not have been sent had PETA not publicized his ranching practices on the internet. Ms. Ouderkirk also acknowledged that PETA did not encourage people to send her emails, but she did testify that PETA was inciting people to threaten her and her husband because “they published all of our information on the Internet.” Def.'s Mot. Summ. J. Ex. 2, J. Ouderkirk Dep. at 35.
*10 Most of the letters and emails do not contain threats. They do accuse the plaintiffs of engaging in immoral and wrongful behavior and insult them, sometimes using vile and obscene language. Many of the communications make specific reference to PETA's website as the source of the writers' knowledge of the Ouderkirks' ranching practices, which the writers protest. The plaintiffs have no evidence that any of these letters were sent by PETA employees or members, although the plaintiffs believe that they are a result of PETA's publications.
The plaintiffs have also received telephone calls about their ranching practices. One caller stated, “how can you do this, shame on you, you deserve to die, I'm going to tell my friends in Hollywood.” Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 65. Mr. Ouderkirk could not remember specifically what was said in other calls. Ms. Ouderkirk believes these calls are a result of the statements and images on PETA's website.
The article written by the Scheins was republished in the December 2004 issue of PETA's magazine Animal Times. This article contained the plaintiffs' names and indicated they live in Michigan.
Ms. Ouderkirk testified that the plaintiffs' chinchilla farm has not suffered any financial loss as a result of the PETA publicity. She explained that although they do not have as many individuals coming to the ranch to buy chinchillas as pets, this loss in business has been outweighed by increases in sales to wholesalers. However, the plaintiffs believe their reputation has been damaged by PETA. Mr. Ouderkirk states that the negative publicity from PETA is “something that I have to deal with with almost every customer now.” Def.'s Mot. Summ. J. Ex. 1, R. Ouderkirk Dep. at 41. He has “a feeling of dread each night when” he goes outside to do chores. Id. at 44. He fears that someone could be waiting to harm him. Each Sunday on his way home from church, he fears someone could have been at his house while he was at church. Mr. Ouderkirk states he often gets up in the middle of the night and looks outside to see if anyone is driving slowly by his house. Before any of this occurred, the Ouderkirks suffered an electrical fire in their home, and Mr. Ouderkirk since has been treating for post-traumatic stress syndrome. He states that he has “mentioned” the PETA situation “at least once during a counseling session” for his PTSD from the house fire. Id. at 47.
Ms. Ouderkirk also states that she is fearful that someone inspired by PETA may harm her. Before the PETA publicity, the plaintiffs never locked their doors. Now they have installed alarms. Ms. Ouderkirk stated that her family is also concerned for her safety, and she does not feel safe at night.
In late 2005, someone broke into the plaintiffs' barn when they were out of town for a weekend. When they returned, there was a dent in the barn door and the door jamb was broken, but nothing was missing, not even the expensive tools, and no animals were taken. Mr. Ouderkirk does not know who broke into the barn; Ms. Ouderkirk wonders if animal activists were responsible.
*11 The plaintiffs also believe their reputation has been damaged. Ms. Ouderkirk harbors that sentiment because the number of individuals coming to buy chinchillas for pets has decreased. But she admits that her reputation has not been damaged among others in the chinchilla industry, her church community, or people she knows from school.
On April 18, 2005, the plaintiffs filed their complaint, which has been amended once and pleads the four counts noted above. The defendant filed its summary judgment motion after the conclusion of discovery.
The Court first must address the defendant's challenge to the Court's subject matter jurisdiction. The basis of the argument is that discovery has demonstrated that the plaintiffs cannot prove more than $75,000 in damages because any emotional distress suffered by the plaintiffs came about through the actions of third parties.
Federal courts have jurisdiction “of all civil actions where the matter in controversy exceeds the sum or value of $75,000, exclusive of interest and costs, and is between ... citizens of different States.” 28 U.S.C. § 1332(a)(1). The amount in controversy is assessed as of the time the complaint is filed. Rosen v. Chrysler Corp., 205 F.3d 918, 920-21 (6th Cir.2000). Generally, the amount claimed by the plaintiff in his or her complaint determines whether the jurisdictional amount is satisfied. Ibid. If challenged by the defendant, the complaint will only be dismissed if “it appears to a legal certainty that the plaintiff in good faith cannot claim the jurisdictional amount.” Massachusetts Cas. Ins. Co. v. Harmon, 88 F.3d 415, 416 (6th Cir.1996). The Supreme Court set forth this test nearly seventy years ago in St. Paul Mercury Indemnity Co. v. Red Cab Co., 303 U.S. 283, 288-89, 58 S.Ct. 586, 82 L.Ed. 845 (1938):
The rule governing dismissal for want of jurisdiction in cases brought in the federal court is that, unless the law gives a different rule, the sum claimed by the plaintiff controls if the claim is apparently made in good faith. It must appear to a legal certainty that the claim is really for less than the jurisdictional amount to justify dismissal. The inability of plaintiff to recover an amount adequate to give the court jurisdiction does not show his bad faith or oust the jurisdiction. Nor does the fact that the complaint discloses the existence of a valid defense to the claim. But if, from the face of the pleadings, it is apparent, to a legal certainty that the plaintiff cannot recover the amount claimed or if, from the proofs, the court is satisfied to a like certainty that the plaintiff never was entitled to recover that amount, and that his claim was therefore colorable for the purpose of conferring jurisdiction, the suit will be dismissed.
Ibid. (footnotes omitted).
The plaintiffs have pleaded that their damages exceed $75,000 as a result of “harm in their interests in privacy resulting from this invasion of privacy, mental and emotional injuries, punitive, special, and exemplary damages.” Am. Compl. at 6, 7. They have shown since that they have been victimized by an onslaught of communiques protesting their ranch operation, some of which have threatened assault, torture, and death. They have alleged that these contacts have been provoked by the defendant's wrongful conduct. The defendant insists that the complaint lacks merit, but that is not the test to determine jurisdiction. The Sixth Circuit has observed that “[t]he test for whether the jurisdictional amount has been met considers whether the plaintiff can succeed on the merits in only a very superficial way.” Kovacs v. Chesley, 406 F.3d 393, 396 (6th Cir.2005). The plaintiffs' assessment of the value of their unliquidated damages generally is accepted for jurisdiction purposes when the allegation is made in good faith. Wood v. Stark Tri-County Bldg. Trades Council, 473 F.2d 272, 273 (6th Cir.1973). In Kovacs, the court noted that “most courts have found a legal certainty that more than the jurisdictional amount could not be recovered only where the applicable state law barred the type of damages sought by the plaintiff.” Kovacs, 406 F.3d at 396 (quoting Wood, 473 F.2d at 274).
*12 In this case, the plaintiffs seek punitive damages, which are not available under Michigan law. Casey v. Auto-Owners Ins. Co., 273 Mich.App. 388, ----, --- N.W.2d ----, ---- (2006) (stating that “[p]unitive damages, which are designed to punish a party for misconduct, are generally not recoverable in Michigan”). However, the plaintiffs can establish the requisite amount in controversy with their other damages, which they are entitled to recover and, based on the information gleaned from the discovery, they pleaded in good faith. If the defendant's false light portrayal wrongfully set in motion the chain of events that led to the harassment of the plaintiffs by provoked extremists espousing the defendant's cause, then the defendant is accountable for the consequences of its actions. Cf. Phinney v. Perlmutter, 222 Mich.App. 513, 537, 564 N.W.2d 532 (1997) (holding that “[g]enerally in tort cases actual damages include compensation for mental distress and anguish”).
The Court is satisfied that it has jurisdiction to adjudicate the claims and, therefore, that part of the defendant's motion for summary judgment will be denied.
The defendant next argues that the undisputed facts show that it is entitled to judgment as a mater of law as to all four of the counts in the amended complaint. A motion for summary judgment under Federal Rule of Civil Procedure 56 presumes the absence of a genuine issue of material fact for trial. The Court must view the evidence and draw all reasonable inferences in favor of the non-moving party, and determine “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251-52, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). The “[s]ummary judgment procedure is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, 477 U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (internal quotes omitted).
A fact is “material” if its resolution affects the outcome of the lawsuit. Lenning v. Commercial Union Ins. Co., 260 F.3d 574, 581 (6th Cir.2001). “Materiality” is determined by the substantive law claim. Boyd v. Baeppler, 215 F.3d 594, 599 (6th Cir.2000). An issue is “genuine” if a “reasonable jury could return a verdict for the nonmoving party.” Henson v. Nat'l Aeronautics & Space Admin., 14 F.3d 1143, 1148 (6th Cir.1994) (quoting Anderson, 477 U.S. at 248). Irrelevant or unnecessary factual disputes do not create genuine issues of material fact. St. Francis Health Care Ctr. v. Shalala, 205 F.3d 937, 943 (6th Cir.2000). When the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party,” there is no genuine issue of material fact. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Thus a factual dispute that “is merely colorable or is not significantly probative” will not defeat a motion for summary judgment that is properly supported. Kraft v. United States, 991 F.2d 292, 296 (6th Cir.1993); see also Int'l Union, United Auto., Aerospace and Agric. Implement Workers of Am. v. BVR Liquidating, Inc., 190 F.3d 768, 772 (6th Cir.1999).
*13 The party bringing the summary judgment motion has the initial burden of informing the district court of the basis for its motion and identifying portions of the record that demonstrate the absence of a genuine dispute over material facts. Mt. Lebanon Pers. Care Home, Inc. v. Hoover Universal, Inc., 276 F.3d 845, 848 (6th Cir.2002). The party opposing the motion then may not “rely on the hope that the trier of fact will disbelieve the movant's denial of a disputed fact” but must make an affirmative showing with proper evidence in order to defeat the motion. Street v. J.C. Bradford & Co., 886 F.2d 1472, 1479 (6th Cir.1989). A party opposing a motion for summary judgment must designate specific facts in affidavits, depositions, or other factual material showing “evidence on which the jury could reasonably find for the plaintiff .” Anderson, 477 U.S. at 252. If the non-moving party, after sufficient opportunity for discovery, is unable to meet his or her burden of proof, summary judgment is clearly proper. Celotex Corp., 477 U.S. at 322-23.
The party who bears the burden of proof must present a jury question as to each element of the claim. Davis v. McCourt, 226 F.3d 506, 511 (6th Cir.2000). Failure to prove an essential element of a claim renders all other facts immaterial for summary judgment purposes. Elvis Presley Enters., Inc. v. Elvisly Yours, Inc., 936 F.2d 889, 895 (6th Cir.1991). It must be emphasized, however, that “[i]n evaluating the evidence, [the court] ‘draw[s] all reasonable inferences therefrom in a light most favorable to the non-moving party.’ “ Rodgers v. Banks, 344 F.3d 587, 595 (6th Cir.2003).
The plaintiffs' claims are based entirely on state law. Therefore, the Court must apply the law of the forum state's highest court. Erie R.R. v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 82 L.Ed. 1188 (1938). If the state's highest court has not decided an issue, then “the federal court must ascertain the state law from ‘all relevant data.’ “ Garden City Osteopathic Hosp. v. HBE Corp., 55 F.3d 1126, 1130 (6th Cir.1995) (quoting Bailey v. v. & O Press Co., 770 F.2d 601, 604 (6th Cir.1985)). “Relevant data includes the state's intermediate appellate court decisions, as well as the state supreme court's relevant dicta, restatements of the law, law review commentaries, and the majority rule among other states.” Ososki v. St. Paul Surplus Lines, 156 F.Supp.2d 669, 674 (E.D.Mich.2001) (internal quotes and citation omitted) (citing Angelotta v. Am. Broad. Corp., 820 F.2d 806, 807 (6th Cir.1987)).
The defendant argues first that the plaintiffs' intrusion on seclusion claim cannot succeed because the plaintiffs invited the Scheins onto their property and gave them permission to video tape the events that occurred, thereby waiving their right to privacy. The defendant also states that the plaintiff cannot show that the matter intruded upon was secret or private, and privacy cannot be invaded where a defendant gives publicity to a business or activity in which a plaintiff is engaged in dealing with the public.
*14 The plaintiffs respond that the methods of euthanasia they use are secret and private, as evidenced by Mr. Ouderkirk's testimony that he did not disclose his methods to people who asked, instead telling them only that he kills the animals as quickly and humanely as possible. When he allowed the Scheins to record him euthanizing the animals, Mr. Ouderkirk specifically asked them to keep his face out of the picture, and all euthanasia was done behind closed doors and out of public sight. The plaintiffs also state that although they consented to the video taping, the scope of consent was limited to reference purposes, and the defendant's use of the video exceeded the plaintiffs' consent. They also argue that the methods by which the defendant obtained the video is objectionable and unreasonable because the Scheins lied about intending to purchase the ranch, and the Scheins behaved improperly by going to church with them. Finally, the plaintiffs contend that disclosing a person's name and address is actionable if done for the purpose of causing harm; PETA intended them harm as shown by evidence that PETA distributed stickers that contain a bull's eye target and the words, “If you wear fur watch your back”; PETA paid the legal fees of Rodney Coronado, who fire bombed a mink lab at Michigan State University; PETA hired Gary Yourofsky, who the plaintiffs state was convicted of “raiding a mink farm”; and PETA encourages direct action against animal abusers.
Michigan courts have described the elements of intrusion on seclusion in slightly different ways. In Duran v. Detroit News, Inc., the court of appeals stated that “[i]n order to establish an action for intrusion, a plaintiff must show: (1) an intrusion by the defendant, (2) into a matter that the plaintiff has a right to keep private, (3) by the use of a method that is objectionable to the reasonable person.” Duran v. Detroit News, Inc., 200 Mich.App. 622, 630, 504 N.W.2d 715, 720 (1993). In Lewis v. LeGrow, the court listed the elements as follows: “(1) the existence of a secret and private subject matter; (2) a right possessed by the plaintiff to keep that subject matter private; and (3) the obtaining of information about that subject matter through some method objectionable to a reasonable man.” Lewis v. LeGrow, 258 Mich.App. 175, 193, 670 N.W.2d 675, 687 (2003). “Intrusion upon a person's seclusion or solitude is analogous to trespass.” Duran, 200 Mich.App. at 630, 504 N.W.2d at 720. “An action for intrusion upon seclusion focuses on the manner in which the information was obtained, not on the information's publication.” Lewis, 258 Mich.App. at 193-94, 670 N.W.2d at 687-88.
Under either formulation, the plaintiffs have the burden of showing that the subject matter of the defendant's disclosure was “private” or “secret.” The essence of their claim is that agents of PETA used deception and trickery to gain access to the plaintiffs' ranch in order to expose their methods and practices of raising and killing chinchillas. Certainly the plaintiffs cannot claim that their involvement in chinchilla ranching, breading and raising the animals, and even harvesting their pelts was in any way secret. “There is no liability when the defendant merely gives further publicity to information about the plaintiff that is already public.... Nor is [a party's] privacy invaded when the defendant gives publicity to a business or activity in which the plaintiff is engaged in dealing with the public.” Fry v. Ionia Sentinel-Standard, 101 Mich.App. 725, 729-30, 300 N.W.2d 687, 689-90 (1980) (quoting 3 Restatement Torts 2d, § 652D, comment b, pp. 385-386). Here, the plaintiffs testified that they were active in industry associations, many of their customers posted information about their ranch in the Internet, and the plaintiffs themselves conducted seminars open to the public for a small fee on their methods and practices.
*15 The plaintiffs do contend that their euthanasia methods were private, however. But this argument is contradicted in large measure by Robin Ouderkirk's testimony in which he acknowledged that his practices were not secret, although he did not make a point of discussing euthanizing the animals with people outside the industry. He maintained that he treated the animals humanely and had nothing to hide.
More importantly, the Ouderkirks specifically consented to allowing the Scheins to videotape their operation, including the processes used to euthanize the animals. “Under tort law principles, a person who consents to another's conduct cannot bring a tort claim for the harm that follows from that conduct.” Smith v. Calvary Christian Church, 462 Mich. 679, 689, 614 N.W.2d 590, 594 (2000). Michigan courts have held that consent can vitiate an intrusion on seclusion claim, even when the consent is obtained by fraud and even where the scope of consent is exceeded.
For instance, in Lewis v. LeGrow, the defendant secretly videotaped his sexual activity with three women, the plaintiffs. A videotape showing the defendant having sex with each of the plaintiffs mysteriously ended up on the door step of one of the plaintiffs. The plaintiffs admittedly had consented to the sex, but they denied consenting to the video recording. The defendant claimed they did consent. The court of appeals stated “there can be no invasion of privacy under the theory of intrusion upon the seclusion of plaintiffs if plaintiffs consented to defendant's intrusion (videotaping).” Lewis, 258 Mich.App. at 194, 670 N.W.2d at 688. Because the plaintiffs had the right to keep sexual details secret, the secret taping of intimate acts could be found objectionable, and the fact dispute on the issue of consent, the court of appeals held that the plaintiffs had presented sufficient evidence to get to the jury on their intrusion on seclusion claim. The court held that “the scope of a waiver or consent will present a question of fact for the jury ... unless reasonable minds cannot disagree that the plaintiffs consented to the activity about which they complain.” Lewis, 258 Mich.App. at 195, 670 N.W.2d at 688.
There is no dispute here that the plaintiffs consented to the videotaping because they believed that the Scheins were interested in purchasing their herd of chinchillas, nor is there any question that the Scheins used deception for the specific purpose of gaining access to the ranch and recording the activity there. Once the plaintiffs consented to allow the videotaping, however, it is not reasonable for to them to believe that they could limit or restrict the dissemination of the tape absent a specific agreement to that effect. Nor will Michigan courts allow deception to void the consent when the activity exposed involves a commercial endeavor where no embarrassingly intimate details of anybody's life were publicized. American Transmission, Inc., v. Channel 7, 239 Mich.App. 695, 708, 609 N.W.2d 607, 614 (2000).
*16 In American Transmission, the court of appeals adopted the rationale of the Seventh Circuit on its way to holding that the plaintiff could not sustain a trespass claim against agents of a local television news station who sent decoy customers into the plaintiff's shops to record its practices. The news station was doing a report on transmission shops that charged customers for expensive and unnecessary repairs, and in compiling its video record its agents used deception and hidden cameras to gain access. The plaintiff admittedly consented to access, albeit as a result of the deception. The court cited Desnick v. Am. Broadcasting Companies, 44 F.3d 1345, 1351-53 (7th Cir.1995), for the proposition that consent to enter one's property is not vitiated by fraud when the activity disclosed is of a commercial-as opposed to a personal or private-nature. The Michigan court adopted Desnick's rationale, American Transmission, 239 Mich.App. at 709, 609 N.W.2d at 614 (“We likewise find Desnick persuasive and adopt its reasoning.”), which is worthy of replication here.
In Desnick, the television show Prime Time Live broadcast a segment about an eye clinic. The producer of the show misled the owner of the clinic, telling him that the show would cover large cataract practices. The producer promised not to conduct any “ambush” interviews or undercover surveillance. Based on these promises, the clinic's owner, Dr. Desnick, allowed the show's crew to film a cataract operation and interview employees and patients. However, the producers also sent in seven undercover patients with hidden cameras, interviewed a number of former patients and employees who had bad things to say about the practices of the clinic, and did an ambush interview of Dr. Desnick at an airport. Dr. Desnick and two of the clinic's other doctors sued the show's network, the producer, and a reporter, alleging, among other things, trespass and invasion of privacy. The Seventh Circuit analyzed the trespass claim in conjunction with the right of privacy claim, beginning with the observation that:
The Desnick Eye Center would not have agreed to the entry of the test patients into its offices had it known they wanted eye examinations only in order to gather material for a television expose of the Center and that they were going to make secret videotapes of the examinations. Yet some cases ... deem consent effective even though it was procured by fraud. There must be something to this surprising result. Without it a restaurant critic could not conceal his identity when he ordered a meal, or a browser pretend to be interested in merchandise that he could not afford to buy ... The fact is that consent to an entry is often given legal effect even though the entrant has intentions that if known to the owner of the property would cause him for perfectly understandable and generally ethical or at least lawful reasons to revoke his consent.
Desnick, 44 F.3d at 1351. The court drew a further analogy to the tort of battery, observing that a person who obtains consent from a woman to have sex by agreeing to pay does not commit a battery when he uses counterfeit currency, but another who has “consensual” sex knowing that he has a venereal disease does, as does the medical impersonator or psychiatrist who has sex under the guise of medical treatment. And a curious neighbor who poses as a meter reader to gain access to a home just to satisfy his curiosity about the interior commits a trespass, even though the homeowner consented to the entry. The court then posed the question:
*17 How to distinguish the two classes of case-the seducer from the medical impersonator, the restaurant critic from the meter-reader impersonator? The answer can have nothing to do with fraud; there is fraud in all the cases. It has to do with the interest that the torts in question, battery and trespass, protect. The one protects the inviolability of the person, the other the inviolability of the person's property. The woman who is seduced wants to have sex with her seducer, and the restaurant owner wants to have customers. The woman who is victimized by the medical impersonator has no desire to have sex with her doctor; she wants medical treatment. And the homeowner victimized by the phony meter reader does not want strangers in his house unless they have authorized service functions ...
There was no invasion in the present case of any of the specific interests that the tort of trespass seeks to protect. The test patients entered offices that were open to anyone expressing a desire for ophthalmic services and videotaped physicians engaged in professional, not personal communications with strangers (the testers themselves). The activities of the offices were not disrupted ... No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the testers recorded their own conversations with the Desnick Eye Center's physicians. There was no violation of the doctor-patient privilege. There was no theft, or intent to steal, trade secrets; no disruption of decorum, of peace and quiet; no noisy or distracting demonstrations. Had the testers been undercover FBI agents, there would have been no violation of the Fourth Amendment....
The right of privacy embraces several distinct interests, but the only ones conceivably involved here are the closely related interests in concealing intimate personal facts and in preventing intrusion into legitimately private activities, such as phone conversations.
Id. at 1353.
In the present case, there likewise was no intrusion on private, intimate, or personal aspects of the plaintiffs' lives. Ouderkirk gave permission for the taping in an email that makes no reference to any restriction on her consent. She wrote in her email to Schein: “We have no problem with a video camera but it is not the easiest thing to do during the hands-on time.” Pls.' Resp. Ex. 2, Email at 6 (Feb. 27, 2004). In addition, when the Scheins recorded Mr. Ouderkirk euthanizing the chinchillas, he specifically asked them to keep his face out of the video, which suggests that he contemplated that the tape might be shown to other people. Moreover, the plaintiffs opened up their operation to anyone wanting to buy a chinchilla or anyone willing to pay the seminar fee. “No embarrassingly intimate details of anybody's life were publicized in the present case. There was no eavesdropping on a private conversation; the [Scheins] recorded their own conversations with the [plaintiffs].” Id. at 1353. The undisputed facts show here that the plaintiffs cannot establish essential elements of their intrusion on seclusion claim. The defendant, therefore, is entitled to summary judgment on that count.
*18 The defendants argue next that the appropriation of plaintiffs' likenesses claim must fail because the defendant had a constitutional right to report on matters of public concern, and it did not exploit the plaintiffs' likenesses for commercial purposes. The plaintiffs state that the defendant's actions are not constitutionally protected because their use of the plaintiffs' likeness went beyond giving the public newsworthy information, sinking to a morbid prying of their private lives. The plaintiffs also state that the defendant used the story to solicit donations, making the use of the plaintiffs' images commercial.
The interested protected by the appropriation of likeness tort is
violated whenever “the defendant makes use of the plaintiff's name or likeness for his own purposes and benefit....” [3 Restatement, Torts, 2d, § 652C] comment b. Thus, in contrast to the other forms of invasion of privacy, there need be no allegation that a statement about a plaintiff was an intrusion upon seclusion or private matters or that it was in any way false. Instead, any unauthorized use of a plaintiff's name or likeness, however inoffensive in itself, is actionable if that use results in a benefit to another.
Perhaps because this theory of liability is so far-reaching, courts that have recognized the appropriation tort have also uniformly held that the First Amendment bars appropriation liability for the use of a name or likeness in a publication that concerns matters that are newsworthy or of legitimate public concern.
Battaglieri v. Mackinac Ctr. For Pub. Policy, 261 Mich.App. 296, 301, 680 N.W.2d 915, 919 (2004).
In Battaglieri, the plaintiff was president of a teachers' union. The defendant was a “think tank” that often advocated for positions the union disagreed with. When the plaintiff held a press conference to announce the establishment of a competing think tank, he said some good things about the defendant's efforts in the field. The defendant quoted the plaintiff in a fund-raising letter sent to 20,000 homes. The plaintiff sued, alleging misappropriation of his likeness. The court of appeals held that the defendant's use of the plaintiff's name and statement was protected by the First Amendment:
“If a communication is about a matter of public interest and there is a real relationship between the plaintiff and the subject matter of the publication, the matter is privileged.” Haskell [v. Stauffer Communications, Inc., 26 Kan.App.2d 541],545, 990 P.2d 163 [ (1999) ]. The privilege exists because dissemination of information regarding matters of public concern is necessary for the maintenance of an informed public.... Whether the privilege applies depends on the character of the publication. Dickerson [ & Assoc., LLC v. Dittmar, 34 P.3d 995, 1003 (Colo., 2001) ]. A defendant can be “liable for the tort of misappropriation of likeness only if defendant's use of plaintiff's likeness was for a predominantly commercial purpose.... The use must be mainly for purposes of trade, without a redeeming public interest, news, or historical value.” Tellado v. Time-Life Books, Inc., 643 F.Supp. 904, 909-910 (D.N.J.1986). The question whether a publication is sufficiently a matter of public interest to be protected by the privilege is ordinarily decided by the court as a question of law.
*19 Battaglieri, 261 Mich.App. at 301-02, 680 N.W.2d at 919-20. Even though the letter sought donations, it contained much information on matters of public concern, and the commercial purpose was somewhat minor:
Clearly, the letter conveyed a great deal of information about public policy questions facing Michigan in education and other areas of general interest. Its reference to plaintiff and his statement was made in the context of that, to illustrate how well Mackinac has been doing in advocating for the policies it supports. Further, plaintiff Battaglieri's action in calling the press conference itself illustrates that the educational issues addressed in the letter were of public interest, so much so that the founding of a think tank to advocate a competing viewpoint on those issues was newsworthy.
We acknowledge that the Freedom Fund letter also had a “pecuniary” or “commercial” purpose to the extent that it was also a clear request for charitable contributions to support Mackinac's work. Nonetheless, a publication that has “commercial undertones” may still be protected if it concerns a legitimate matter of public concern. See, e.g., Ault v. Hustler Magazine, Inc. ., 860 F.2d 877, 883 (C.A.9, 1988). “The cases uniformly apply a newsworthiness privilege to matters ... even though they are published to make a profit.” Haskell, supra at 545, 990 P.2d 163. A different approach “would preclude the publication of much news and other matters of legitimate public concern.” Dickerson, supra at 1004.
Battaglieri, 261 Mich.App. at 302-03, 680 N.W.2d at 920.
The Court finds in this case that the primary use made of the plaintiffs' likenesses by the defendant was to advocate against the chinchilla trade and advance the defendant's cause. Although there were references to fund raising, like the letter in Battaglieri, that was not the primary purpose. The methods and practices of raising and destroying animals, especially for commercial purposes, has been recognized as a matter of public concern. The Animal Welfare Act, 7 U.S.C. § 2131 et. seq. contains the following statement: “The Congress further finds that it is essential to regulate, as provided in this chapter, the transportation, purchase, sale, housing, care, handling, and treatment of animals by carriers or by persons or organizations engaged in using them for research or experimental purposes or for exhibition purposes or holding them for sale as pets or for any such purpose or use.” 7 U.S.C. § 2131. Other courts have recognized the public's interest in the humane treatment of animals. See, e.g., Huntingdon Life Sci., Inc. v. Stop Huntingdon Animal Cruelty USA, Inc., 129 Cal.App.4th 1228, 1246, 29 Cal.Rptr.3d 521, 536 (2005) (“Animal testing is an area of widespread public concern and controversy, and the viewpoint of animal rights activists contributes to the public debate.”); Harkins v. Atlanta Humane Soc., 273 Ga.App. 489, 490-91, 618 S.E.2d 16, 18 (2005) (statements of animal rights activists about human society were protected by First Amendment); Farm Sanctuary, Inc. v. Dep't of Food & Agric., 63 Cal.App.4th 495, 504, 74 Cal.Rptr.2d 75, 79 (1998) (ritual slaughter exception to statute requiring that animals be treated humanely involves an issue of public concern); McGill v. Parker, 179 A.D.2d 98, 106-07, 582 N.Y.S.2d 91, 96 (1992) (“treatment of carriage horses has been a matter of public concern and controversy”); Safarets, Inc. v. Gannett Co., Inc., 80 Misc.2d 109, 113, 361 N.Y.S.2d 276, 280 (1974) (article dealing with humane treatment of animals and birds, or conversely, prevention of cruelty to them, involves a subject of general public concern).
*20 The defendant's website containing the article and video about the plaintiffs solicits donations, but the Court determines that no reasonable fact finder could conclude that the “defendant's use of plaintiff's likeness was for a predominantly commercial purpose” or that PETA's publication was entirely “without a redeeming public interest, news, or historical value.” Battaglieri, 261 Mich.App. at 301, 680 N.W.2d at 919. Likewise, although the defendant's website and newsletter do solicit donations, they also contain much information on animal rights, a matter of some public concern.
The Court finds, therefore, that the defendant had a right under the First Amendment to disseminate the information containing the plaintiffs' likenesses. Winstead v. Sweeney, 205 Mich.App. 664, 517 N.W.2d 874 (1994), cited by the plaintiffs, does not require a contrary result. There, the defendant newspaper reporter wrote an article about “unique love relationships.” The defendant included quotes from the plaintiff's ex-husband about the plaintiff, who was identified only by her first name. “The details of the article included that ‘Denise’ had several abortions, engaged in partner swapping, and was involved in a surrogate parenting relationship with her former husband, ‘Tim,’ and her maid of honor, ‘Linda,’ because ‘Denise’ was unable to have children.” Id. at 666, 517 N.W.2d at 875. The plaintiff sued for publication of embarrassing facts, and the defendant asserted the First Amendment privilege. The court discussed the limits of the privilege:
In determining what is a matter of legitimate public interest, account must be taken of the customs and conventions of the community; and in the last analysis what is proper becomes a matter of the community mores. The line is to be drawn when the publicity ceases to be the giving of information to which the public is entitled, and becomes a morbid and sensational prying into private lives for its own sake, with which a reasonable member of the public, with decent standards, would say that he had no concern.
Id. at 670-71, 517 N.W.2d at 877. The court acknowledged that “the subject of the article (unique love relationships) constitutes a newsworthy topic.” Id. at 674, 517 N.W.2d at 878. But the court vacated the summary judgment for the defendant and remanded for evaluation of the particular facts about the plaintiff published in the article. In other words, if the published facts are personal and intimate, they go beyond matters of public concern and fall outside the First Amendment privilege. The facts disclosed here-the names, location, and ranching practices of the plaintiffs-cannot be considered personal and intimate, and the ranching practices, as noted earlier, qualify as public matters.
The defendant, therefore, is entitled to summary judgment on this count.
The defendant attacks the plaintiffs' false light claim by arguing that the facts disclosed were substantially true.
*21 “In order to maintain an action for false-light invasion of privacy, a plaintiff must show that the defendant broadcast to the public in general, or to a large number of people, information that was unreasonable and highly objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and placed the plaintiff in a false position.” Porter v. Royal Oak, 214 Mich.App. 478, 486-87, 542 N.W.2d 905, 909 (1995). Some cases also require that “[t]he actor must have had knowledge of or acted in reckless disregard as to the falsity of the publicized matter and the false light in which the other would be placed.” Early Detection Ctr., P.C., v. New York Life Ins. Co., 157 Mich.App. 618, 630, 403 N.W.2d 830, 835 (1986); see also Detroit Free Press, Inc. v. Oakland County Sheriff, 164 Mich.App. 656, 666, 418 N.W.2d 124, 128-29 (1987). However, not all of the cases include this as an element. For example, Porter v. Royal Oak does not mention that requirement, although it rejects the plaintiff's claims because the publication at issue was true. Likewise, Duran v. Detroit News, Inc., 200 Mich.App. 622, 630, 504 N.W.2d 715, 720 (1993), does not discuss this requirement but dismisses the plaintiff's claim for failure to show the publication was false. In all events, if the contested information is true, the cause of action fails. Porter, 214 Mich.App. at 486-87, 542 N.W.2d at 909.
The plaintiffs believe that they were falsely depicted by PETA as cruel, incompetent, lazy, and greedy. For example, PETA stated in its article that the plaintiffs “already told us his profit margin didn't factor in veterinary care.” Pls.' Resp. Ex. 3, Investigator's Notebook: One Day on a Fur Farm. The plaintiffs state in their brief that veterinarian inspections are performed annually, although they do not support this allegation with citation to any deposition or affidavit. But Ms. Ouderkirk did testify that “Chinchillas are one of the healthiest animals, requiring no vaccinations, no veterinary care to speak of.” Def.'s Mot. Summ. J. Ex. 2, J. Ouderkirk Dep. at 66.
The plaintiffs also point to the PETA article's statement that Mr. Ouderkirk “scoot[ed] alongside the cages in an office chair, killing one after another without exerting himself.” Pls.' Resp. Ex. 3, Investigator's Notebook: One Day on a Fur Farm. Although the video plainly shows Mr. Ouderkirk sitting in the office chair, the plaintiffs claim this is false because Mr. Ouderkirk has bad knees, as the Scheins knew. The PETA article refers to the plaintiffs' compost pile as “the festering trash heap he called ‘Mount Chinchilla.’ “ Pls.' Resp. Ex. 3, Investigator's Notebook: One Day on a Fur Farm. The plaintiffs believe this characterization implies that they keep their ranch unsanitary, even though Ms. Schein admitted at her deposition that she never saw this pile.
The plaintiffs also argue that the video on the defendant's website depicts Mr. Ouderkirk stating, “I could do this all day,” as he kills chinchillas using the cervical dislocation technique. Pls.' Resp. Ex. 4, DVD. They contend that the clip falsely casts Mr. Ouderkirk as “a sadistic, emotionless killer” and an “inhuman monster and despicable person,” Pls. Resp. Br. at 16, whereas in fact Mr. Ouderkirk told the Scheins that he does not enjoy killing animals.
*22 Finally, in a letter to the USDA, PETA employee Mary Beth Sweetland accused the plaintiffs of improperly using electrocution and cervical dislocation; the plaintiffs claim that the accusation is false because they were not under USDA regulations at that time, and the AVMA guidelines allow for cervical dislocation of chinchillas without prior stunning.
Except for the statement about the compost pile “festering,” none of the statements cited by the plaintiffs is literally false. For instance, although chinchillas may not require much veterinarian care, the defendant's statement that the plaintiffs' do not factor in veterinary care is true. The statement that Mr. Ouderkirk euthanized the chinchillas while sitting in an office chair is true, as acknowledged by the plaintiffs. Even Ms. Sweetland's opinions in her letter to the USDA that the plaintiffs' euthanasia techniques were inhumane finds some support in the AVMA literature. The thrust of the plaintiffs' argument, however, is that the defendant did not present other facts that would have cast them in a more favorable light.
Although this issue has not arisen in Michigan, other courts have held that “recovery for a false light tort may not be predicated on a rule that holds a media defendant liable for broadcasting truthful statements and actions because it failed to include additional facts which might have cast the plaintiff in a more favorable or balanced light.” Machleder v. Diaz, 801 F.2d 46, 55 (2d Cir.1986). A defendant may not recover based on a claim that “[d]espite the truth of such statements there exist additional circumstances which when expanded, cast the plaintiff in a more favorable light more in keeping with reality.” Goodrich v. Waterbury Republican-American, Inc., 188 Conn. 107, 132, 448 A.2d 1317, 1331 (1982). The Court believes that the Michigan courts would adopt such a rule, particularly in light of the common understanding that defamation law “overlooks minor inaccuracies and concentrates upon substantial truth.” Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 516, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991). Michigan courts adhere to the substantial truth doctrine. Collins v. Detroit Free Press, Inc., 245 Mich.App. 27, 33, 627 N.W.2d 5, 9 (2001) (stating that “[t]o avoid liability, it is not necessary for ‘defendants to prove that a publication is literally and absolutely accurate in every minute detail.’ Rather, substantial truth is an absolute defense to a defamation claim”) (internal quotes and citations omitted).
The defendant's statements in this case were substantially true. The Court, therefore, will dismiss the false light claim.
Lastly, the defendant argues that its conduct was not extreme or outrageous, and therefore the plaintiff cannot prove an essential element of its claim of intentional infliction of emotional distress (IIED). The plaintiffs counter with the argument that a jury could conclude that the defendant's conduct was extreme and outrageous because the Scheins misrepresented themselves, established trust with the plaintiffs, asked the plaintiffs to demonstrate euthanasia, and participated in it.
*23 To prevail on a claim of intentional infliction of emotional distress, a plaintiff must show:
(1) extreme and outrageous conduct, (2) intent or recklessness, (3) causation, and (4) severe emotional distress. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 602, 374 N.W.2d 905 (1985); Johnson v. Wayne Co., 213 Mich.App. 143, 161, 540 N.W.2d 66 (1995). Liability for such a claim has been found only where the conduct complained of has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.
Haverbush v. Powelson, 217 Mich.App. 228, 233-34, 551 N.W.2d 206, 209 (1996).
The emotional distress experienced by the plaintiff must be severe. Roberts v. Auto-Owners Ins. Co., 422 Mich. 594, 608-09, 374 N.W.2d 905, 911 (1985) ( “The law intervenes only where the distress inflicted is so severe that no reasonable man could be expected to endure it.”) (quoting Restatement Torts, 2d, § 46, comment j, p. 77).
The Court finds that the defendant's conduct was not so extreme as to meet the very high threshold of intolerance required by this tort, as it is defined under state law. Undercover investigations have been found not to involve extreme and outrageous conduct. In Arim v. General Motors Corp., 206 Mich.App. 178, 520 N.W.2d 695 (1994), the defendants conducted an undercover investigation of a transmission shop that led to fraud charges being brought. The court dismissed the plaintiffs' IIED claim, stating “the trial court properly granted summary disposition pursuant to MCR 2.116(C) (8) of plaintiffs' claims of intentional infliction of emotional distress. A review of plaintiffs' complaint does not reveal any allegations of outrageous conduct.” Id. at 196, 520 N.W.2d at 703. Similarly, in Labensky v. County of Nassau, 6 F.Supp.2d 161 (E.D.N.Y.1998), the defendant investigated the plaintiff for drug use, and the plaintiff sued, alleging IIED. “Labensky was not the victim of outrageous government conduct; she was simply the target of a police undercover operation. She was never threatened in any way and she was never deprived of her power to refuse to procure cocaine for O'Leary and Cohen. Any emotional distress felt by Labensky was of her own making.” Id. at 178.
Undercover investigations are one of the main ways our criminal justice system operates. In addition, television shows like PrimeTime Live and Dateline often conduct undercover investigations to reveal improper, unethical, or criminal behavior. Often, these investigations involve misrepresentations and deception by the investigators. The Court cannot conclude that an undercover investigation is “intolerable” in contemporary society. The publication of the videotape on the defendant's website also is not outrageous because “the truthful publication of and accurate representations of [the plaintiffs' actions] cannot constitute outrageous conduct.” Andrews v. Prudential Sec., Inc., 160 F.3d 304, 309-10 (6th Cir.1998).
*24 The plaintiffs understandably are upset that an animal rights group whose methods sometimes are unethical and aggressive have intruded upon their commercial enterprise. However, raising animals for pets and their pelts is not universally approved, and the activity brings with it no small degree of controversy. The plaintiffs have a right to engage in the activity for both profit and amusement, and the defendant has a right to object publically to the activity, as long as its methods are not illegal. Although each might point to the other as stimulating a sense of outrage, the Court cannot conclude that the plaintiffs have shown that the defendant has engaged in conduct that was “so extreme in degree, as to go beyond all possible bounds of decency and to be regarded as atrocious and utterly intolerable in a civilized community.” Haverbush, 217 Mich.App. at 233-34, 551 N.W.2d at 209. The IIED count, therefore, will be dismissed.
The Court concludes that it has subject matter jurisdiction over the dispute raised in the pleadings, and the plaintiffs have not come forward with facts sufficient to create genuine issues for trial. The defendants are entitled to judgment as a matter of law. The plaintiffs had filed a motion for a temporary injunction, which it had agreed to consolidate with the determination of the matter on the merits. The Court will deny that motion as well. Finally, there are some procedural motions that remain pending, which are rendered moot by the Court's determination today.
Accordingly, it is ORDERED that the defendant's motion for summary judgment [dkt # 22] is GRANTED.
It is further ORDERED that the plaintiffs' motion for a preliminary injunction [dkt # 20] is DENIED.
It is further ORDERED that the plaintiffs' motion in limine [dkt # 37] and amended motion to compel discovery [dkt # 43] are DENIED as moot.