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Duggar v. City of Springdale

United States District Court, W.D. Arkansas, Fayetteville Division

October 12, 2017

JILL DILLARD; JESSA SEEWALD; JINGER VUOLO; and JOY DUGGAR PLAINTIFFS
v.
CITY OF SPRINGDALE, ARKANSAS; WASHINGTON COUNTY, ARKANSAS; KATHY O'KELLEY, in her individual and official capacities; ERNEST CATE, in his individual and official capacities; RICK HOYT, in his individual and official capacities; STEVE ZEGA, in his official capacity; BAUER PUBLISHING COMPANY, LP.; BAUER MAGAZINE, LP.; BAUER MEDIA GROUP, INC.; BAUER, INC.; HEINRICH BAUER NORTH AMERICA, INC.; BAUER MEDIA GROUP USA, LLC; and DOES 1-10, inclusive DEFENDANTS and JOSHUA DUGGAR PLAINTIFF
v.
CITY OF SPRINGDALE, ARKANSAS; WASHINGTON COUNTY, ARKANSAS; THE STATE OF ARKANSAS, DEPARTMENT OF HUMAN SERVICES; DOUG SPROUSE, in his official capacity; KATHY O'KELLEY, in her official and individual capacities; ERNEST CATE, in his official capacity; RICK HOYT, in his official capacity; STEVE ZEGA, in his official capacity; BAUER PUBLISHING COMPANY, LP.; BAUER MAGAZINE, LP.; BAUER MEDIA GROUP, INC.; BAUER, INC.; HEINRICH BAUER NORTH AMERICA, INC.; BAUER MEDIA GROUP USA, LLC; CROSS, GUNTER, WITHERSPOON & GALCHUS, P.C.; and DOES 1-10, inclusive DEFENDANTS

          MEMORANDUM OPINION AND ORDER

          TIMOTHY L. BROOKS UNITED STATES DISTRICT JUDGE.

         Currently before the Court in the case of Dillard et al. v. City of Springdale et al., Case No. 5:17-cv-5089 ("the Dillard Case"), are:

• the Motion to Dismiss (Doc. 43), Memorandum of Law in Support (Doc. 44), and Declaration of Elizabeth A. McNamara in Support (Doc. 45), filed by Defendants Bauer Publishing Company, L.P., Bauer Magazine, L.P., Bauer Media Group, Inc., Bauer, Inc., Heinrich Bauer North America, Inc., and Bauer Media Group USA, LLC (collectively, "the Bauer Defendants"); the Response in Opposition (Doc. 54) filed by Plaintiffs Jill Dillard, Jessa Seewald, Jinger Vuolo, and Joy Duggar (collectively, "the Dillard Plaintiffs"); and the Bauer Defendants' Reply (Doc. 58);
• the Motion to Consolidate (Doc. 41) and Brief in Support (Doc. 42) filed by Defendants City of Springdale ("the City"), Ernest Cate in his official and individual capacities, and Kathy O'Kelley in her official and individual capacities (collectively, "the Dillard Springdale Defendants"); the Bauer Defendants' Motion to Consolidate (Doc. 48); the Dillard Plaintiffs' Response in Opposition (Doc. 49) to both Motions to Consolidate; and the Dillard Springdale Defendants' Reply (Doc. 52); and
• the Bauer Defendants' Motion to Stay (Doc. 46) and Memorandum of Law in Support (Doc. 47); Plaintiffs' Response in Opposition (Doc. 53); and the Bauer Defendants' Reply (Doc. 59).

         Also currently before the Court in the case of Duggar v. City of Springdale et al., Case No. 5:17-cv-5125 ("the Duggar Case"), are:

• the Bauer Defendants' Motion to Dismiss (Doc. 40), Memorandum of Law in Support (Doc. 41), and Declaration of Elizabeth A. McNamara in Support (Doc. 42); Plaintiff Joshua Duggar's Response in Opposition (Doc. 54); and the Bauer Defendants' Reply (Doc. 58);
• the Motion to Dismiss (Doc. 33) and Brief in Support (Doc. 34) filed by Defendant Cross Gunter Witherspoon & Galchus, P.C. ("Cross Gunter"); Plaintiff Joshua Duggar's Response in Opposition (Doc. 48); and Cross Gunter's Reply (Doc. 53);
• the Motion to Dismiss (Doc. 15) and Brief in Support (Doc. 16) filed by Defendants City of Springdale ("the City"), Doug Sprouse in his official capacity, Kathy O'Kelley in her official and individual capacities, and Ernest Cate in his official capacity (collectively, "the Duggar Springdale Defendants"); Plaintiff Joshua Duggar's Response in Opposition (Doc. 30); and the Duggar Springdale Defendants' Reply (Doc. 37);
• the Motion to Dismiss (Doc. 25) and Brief in Support (Doc. 26) filed by Defendants Washington County ("the County"), Rick Hoyt in his official capacity, and Steve Zega in his official capacity (collectively, "the Duggar Washington County Defendants"); and Plaintiff Joshua Duggar's Response in Opposition (Doc. 31); and
• the Duggar Springdale Defendants' Motion to Consolidate (Doc. 17) and Brief in Support (Doc. 18); the Bauer Defendants' Motion to Consolidate (Doc. 27); Plaintiff Joshua Duggar's Response in Opposition to both Motions to Consolidate (Doc. 29); and the Duggar Springdale Defendants' Reply (Doc. 38).

         For the reasons given below, the aforementioned Motions to Dismiss are all GRANTED, and all of the other aforementioned Motions are MOOT.

         I. BACKGROUND

         These two lawsuits arise out of essentially the same set of alleged facts and circumstances. The Dillard Case was filed in this Court on May 1.8, 2017, by the Dillard Plaintiffs, who are all sisters. The Duggar Case was filed in this Court on July 6, 2017, by the Dillard Plaintiffs' older brother, Joshua Duggar. Although there are some differences between the two Complaints with respect to the finer details of their factual allegations, as well as with respect to the identities of some Defendants, both Complaints revolve around the same general series of allegations, which the Court will summarize here as context for what follows.

         Both Complaints allege that in 2015, the Bauer Defendants caused stories to be published in a web and print media tabloid publication called "In Touch Weekly, " about an investigation that had been conducted nearly a decade earlier by the Springdale Police Department and the Washington County Sheriffs Office into allegations that Joshua Duggar had sexually molested the Dillard Plaintiffs while he and they were all minors. Both Complaints allege that the Bauer Defendants published official reports of these investigations that had been obtained from the City and County pursuant to Freedom of Information Act ("FOIA") requests, which had been submitted to the City and County by the Bauer Defendants' lawyers at Cross Gunter. Both Complaints allege that the City's and County's FOIA responses were under redacted, such that once they were published by the Bauer Defendants, it was easy for readers to infer that the Dillard Plaintiffs were among Joshua Duggar's victims.

         Both Complaints bring four tort claims against each of the Bauer Defendants: three for various types of Invasion of Privacy, and one for Outrage. The Bauer Defendants have filed motions to dismiss these claims in both cases, arguing (among other things) that it would violate the First Amendment for them to be held liable for these activities. The Court will rule on both of these motions below.

         Additionally, and unlike in the Dillard Case, the Duggar Complaint brings one claim against Cross Gunter, for the tort of Invasion of Privacy. Cross Gunter has filed a motion to dismiss that claim, which the Court will rule on below.

         Both Complaints bring claims against their respective Springdale and Washington County Defendants for alleged violations of the Plaintiffs' federal and state constitutional due-process rights-of privacy, along with tort claims for Invasion of Privacy and Outrage. The Springdale and Washington County Defendants filed motions to dismiss in both cases, asserting (among other things) that they were entitled to various types of immunity. The Court has already ruled in a prior order on the Dillard Springdale and Washington County Defendants' motions to dismiss, ...


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