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Greschner v. Becker

United States District Court, D. Arizona

July 25, 2016

Steven Greschner, Plaintiff,
Andrew Becker, et al., Defendants.



         Pending before the Court is Defendants Andrew Becker, et al.’s motion for summary judgment (Doc. 75) pursuant to Federal Rule of Civil Procedure 56. For the following reasons the Court grants the motion.[1]


         Shortly after the September 11, 2001 terrorist attacks, Plaintiff Steven Greschner founded an Arizona corporation, Hummingbird Defense Systems, Inc. (“HDSI”). Defendant’s Statement of Facts[2] (“DSOF”) ¶ 8. At the time, Plaintiff’s only experience was in sales and HDSI’s employees consisted of Plaintiff, his attorney, and his secretary. DSOF ¶¶ 18, 20. In 2001, HDSI entered into the government security software business offering facial recognition and command and control software from third parties. Id. ¶ 9, Ex. D at 89–90. HDSI was involved in eleven major projects from December 2001 to March 2006.[3] (Doc. 76, Ex D.) Plaintiff admitted to doing “a lot of outsourcing” and did not provide any record that HDSI employed any engineers. DSOF ¶ 19. HDSI’s “Director of Engineering, ” Kenneth Kaplan (“Kaplan”), who was not employed until August 2002, had no engineering degree and only had the job title because “it was granted to me by the owner of the company.” Id. ¶ 21.

         In 2013, Defendants Ryan Gabrielson, a journalist, and Andrew Becker, an investigative reporter (collectively the “Reporters”), wrote an article (the “Article”) on a potential data breach of the Arizona Counterterrorism and Information Center (“ACTIC”), which was published by Defendants ProPublica, Inc. (“ProPublica”) and the Center for Investigative Reporting (“CIR”) on August 26, 2014. Id. ¶¶ 1–2. The Reporters’ year-long investigation included reviewing tens of thousands of pages of documents and conducting more than 50 interviews. Id. ¶ 10. The Article’s initial draft was also edited by Defendants Amy Pyle, the Editor in Chief of CIR, and the managing editor of ProPublica. Id. ¶ 12. Entitled “Data breach mystery leads from Arizona counterterrorism site to China, ” the Article focused on a Chinese National named Lizhong Fan (“Fan”) who had access to five million Arizona driver’s license records and left Arizona in 2007 with hard drives, laptops, cellular phones, and the source code used at the ACTIC. Id. ¶ 4, Ex. C. At the time, Fan was an HDSI contractor, who was originally hired after Plaintiff’s then-wife, Grace Li, recommended him for employment. Id. ¶ 5.

         On October 23, 2014, this case was removed from Arizona Superior Court to this Court and Plaintiff filed his First Amended Complaint alleging that the Article falsely stated numerous facts amounting to defamation. (Doc. 1.) Defendants filed a motion to dismiss, which was granted in part and denied in part on February 18, 2015. (Doc. 18.) The Court concluded that Plaintiff sufficiently alleged that the Article contained the following potentially defamatory statements: (1) HDSI’s “technical capabilities were lacking” (the “Technical Capabilities” statement); (2) “Hummingbird . . . struggled to get government work” (the “Government Work” statement); and (3) “Hummingbird, without vetting Fan further, sought his work visa, Greschner said, adding that he assumed law enforcement or other government officials took a closer look at the Chinese National” (the “Vetting” statement). (Id.)


         I. Legal Standard

         Summary judgment is appropriate if the evidence, viewed in the light most favorable to the nonmoving party, demonstrates “that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). Substantive law determines which facts are material and “[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A fact issue is genuine ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’” Villiarimo v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir. 2002) (quoting Anderson, 477 U.S. at 248). Thus, the nonmoving party must show that the genuine factual issues “‘can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.’” Cal. Architectural Bldg. Prods., Inc. v. Franciscan Ceramics, Inc., 818 F.2d 1466, 1468 (9th Cir. 1987) (quoting Anderson, 477 U.S. at 250).

         Although “[t]he evidence of [the non-moving party] is to be believed, and all justifiable inferences are to be drawn in [its] favor, ” the non-moving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party cannot avoid summary judgment by relying solely on conclusory allegations unsupported by facts. See Taylor v. List, 880 F.2d 1040, 1045 (9th Cir. 1989). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: (A) citing to particular parts of materials in the record . . . or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact.” Fed.R.Civ.P. 56(c). “A trial court can only consider admissible evidence in ruling on a motion for summary judgment, ” and evidence must be authenticated before it can be considered. Orr v. Bank of Am., 285 F.3d 764, 773 (9th Cir. 2002).

         II. Analysis

         Authentication is required for admissibility “and this condition is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Id. (internal quotation marks and citation omitted). “In a summary judgment motion, documents authenticated through personal knowledge must be ‘attached to an affidavit that meets the requirements of [Fed. R. Civ. P.] 56(e) and the affiant must be a person through whom the exhibits could be admitted into evidence.’” Id. at 773–74 (quoting Canada v. Blain’s Helicopters, Inc., 831 F.2d 920, 925 (9th Cir. 1987)). Here, Plaintiff attached 17 exhibits to his Response (Doc. 79) without authenticating the exhibits with an affidavit. Therefore, these exhibits cannot be considered in this Motion. Id. at 773 (reaffirming that “unauthenticated document cannot be considered in a motion for summary judgment”).

         A. Limited Purpose Public Figure

         Plaintiff is a limited purpose public figure. Whether a person is a public figure can be resolved by “looking to the nature and extent of an individual’s participation in the particular controversy giving rise to the defamation.” Gertz v. Robert Welch, Inc., 418 U.S. 323, 351–52 (1974). In considering whether an individual is a limited purpose public figure, the Ninth Circuit has also considered the following: (1) the existence of a public controversy when the statements were made; (2) “whether the alleged defamation is related to the plaintiff’s participation in the controversy;” and (3) whether the plaintiff “voluntarily ...

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