United States District Court, D. Arizona
G. Campbell United States District Judge.
Plaintiff Corey Clark filed a complaint in April 2016 against
Defendant John Minore alleging various defamation-related
claims. Doc. 1. Defendant moves for summary judgment, arguing
that Plaintiff's discovery disclosures have failed to
provide any evidence or witnesses to prove his allegations.
Doc. 35. The Court ordered supplemental briefing and evidence
regarding the applicability of Arizona's absolute
privilege for attorney statements in court proceedings. Docs.
44, 50. The briefing is now complete and oral argument will
not aid the Court's decision. See Fed. R. Civ.
P. 78(b); LRCiv 7.2(f). For reasons stated below, the Court
will enter summary judgment for Defendant.
has sued Defendant, an attorney for Plaintiff's wife in
their divorce case, for Defendant's speech during a court
hearing on April 21, 2015, and a police report Defendant
filed that made the same assertions. Doc. 1 at 2; Doc. 40 at
2-3, ¶¶ 3, 5-6. Plaintiff alleges that Defendant
made various false statements and threats in the hearing and
police report, and bases his claims in this case on those
statements. He sues Defendant for various torts and one
federal crime, including (1) defamation and libel, (2)
commercial disparagement and trade libel, (3)
misappropriation of image or likeness, (4) trade malpractice,
(5) false light invasion of privacy, (6) injurious falsehood,
(7) fraud upon the court, and (8) false statements. Doc. 1 at
4-11. Plaintiff seeks $22.5 million in damages, an injunction
barring further defamatory statements, and an order vacating
the state-court divorce judgment. Id. at 11-14.
motion is not carefully focused on relevant legal issues, and
Plaintiff's response wanders through wrongdoing of his
wife, his wife's step-father, and the judge, various
violations of his parental rights, and finally to the court
proceeding where the allegedly tortious speech occurred.
their briefing, the parties did not address the most glaring
deficiency in this case - the absolute privileges that apply
to statements made by lawyers in court and in complaints to
police. The Court ordered supplemental briefing and evidence
on Defendant's role in the April 2015 hearing as
permitted by Rule 56(f)(2). Docs. 44, 50. Having received the
supplemental filings, the Court now enters summary judgment
judgment is appropriate if the evidence, viewed in the light
most favorable to the non-moving party, shows “that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Absolute Immunity - Participants in Court
the area of absolute privileges, one of the most common is
that involving the participant in judicial
proceedings.” Green Acres Tr. v. London, 688
P.2d 617, 621 (Ariz. 1984). “The privilege protects
judges, parties, lawyers, witnesses and jurors. The defense
is absolute in that the speaker's motive, purpose or
reasonableness in uttering a false statement [does] not
affect the defense.” Id.
Arizona Supreme Court derives “[a]n attorney's
absolute privilege to defame in connection with a judicial
proceeding” from the Restatement (Second) of Torts.
Id. The relevant section provides:
An attorney at law is absolutely privileged to publish
defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if
it has some relation to the proceeding.
Restatement (Second) of Torts § 586. The immunity
“focuses on the status of the actor” as a lawyer
and “immunizes an attorney for statements made
‘while performing his function as such.'”
Green Acres, 688 P.2d at 621 (quoting § 586
cmt. c). The immunized statements “need not be
‘strictly relevant, ' but need only have
‘some reference to the subject matter of the proposed
or pending litigation.'” Id.
parties dispute whether Defendant was a participant in the
April 2015 hearing. Doc. 45 at 2-3; Doc. 46 at 7-8. Yuma
County Superior Court records resolve this issue. Defendant
was not present to represent his client - Plaintiff's
former wife - when the hearing began. Doc. 51-1 at 2. For
this reason, the minute entry suggests that Mrs. Clark
appeared in propria persona. Id. But
Defendant arrived later, and both the minute entry and the
transcript reflect his appearance as counsel for Mrs. Clark.
Id. at 2, 52. ...