Date: 08-30-2007

Case Style: Aundra Anderson v. Kimberly Lohman Suiters, et al.

Case Number: 06-6134

Judge: Briscoe

Court: United States Court of Appeals for the Tenth Circuit on appeal from the Western District of Oklahoma

Plaintiff's Attorney:

Micheal Salem of Salem Law Office, Norman, Oklahoma, for Plaintiff-Appellant.

Defendant's Attorney:

David A. Schultz of Levine, Sullivan, Koch & Schultz, New York, New York (Michael Berry of Levine, Sullivan, Koch & Schultz, New York, New York; Robert D. Nelon and Jon Epstein of Hall, Estill, Hardwick, Gable, Golden and Nelson, Oklahoma City, Oklahoma; Jonathan Donnellan and Kristina Findikyan, of Counsel, The Hearst Corporation, New York, New York, with him on the brief) for Defendants-Appellees.

Description:

Aundra Anderson appeals several district court rulings in this action brought pursuant to 42 U.S.C. § 1983 and Oklahoma state tort law. She had sued Kimberly Lohman, a reporter from local television station KOCO-TV ("KOCO"), and the company that owns and operates KOCO (Ohio/Oklahoma Hearst-Argyle Television, Inc.) (hereinafter "the media defendants"), along with Officer Don Blake of the Norman Police Department. Anderson appeals 1) the district court's order partially granting the media defendants' motion to dismiss by dismissing her federal right to privacy and state intrusion upon seclusion claims, and 2) the district court's order granting the media defendants' motion for summary judgment on her publication of private facts claim. She contends the district court erred in concluding that the media defendants were not state actors, and in concluding that her allegations and proffered evidence failed to support her state law tort claims against them. Additionally, she challenges the district court's denial of leave to amend her complaint to add claims against the media defendants for promissory estoppel and tortious or malicious interference with a contract. We exercise jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

I

Anderson alleges that she was raped by her estranged husband while she was unconscious. Anderson did not know of the rape until June, 2003, when she found a videotape of the incident. Anderson gave the videotape to Officer Blake and agreed to press charges after Blake promised that the videotape would be kept confidential and would be used only for law enforcement purposes. Anderson alleges that Blake told her that the only people who would see the tape would be himself, his partner, a judge, and a jury.

Before any charges had been filed in Anderson's case, Blake gave an interview to Lohman about Anderson's allegations. By this time, Anderson's husband had already been arrested on other sexual assault charges involving other alleged victims. Blake showed Lohman the videotape, and Lohman asked if she could record it to obtain a "head shot" of the alleged perpetrator. Aplt. App. at 336. Blake contends that he agreed to allow Lohman to record and display the videotape's contents on the air, so long as the broadcast was limited to a view of the perpetrator's face and was "tasteful." Id. at 337. Lohman promised Blake she would only use a view of the perpetrator's face in her report.

Anderson alleges that, before the news segment aired, Blake contacted her by telephone and said that he wanted her to speak with Lohman. Anderson replied that she did not want to talk to the press, but Blake put Lohman on the telephone anyway. Anderson refused to answer most of Lohman's questions. During their conversation, Lohman told Anderson that she had viewed the videotape. Anderson alleges that she never authorized Lohman to view or use the videotape in any way. During the 10:00 p.m. newscast of July 3, 2003, KOCO aired Lohman's story about Anderson's allegations, including excerpts from the videotape.

Several days after the broadcast, charges were filed against Anderson's husband for crimes committed against Anderson. After the July 3rd KOCO broadcast, Anderson refused to cooperate with the district attorney's office, and the charges involving Anderson were eventually dropped. Anderson then filed this § 1983 action against Blake and the media defendants. Anderson alleged that all of the defendants had violated her federal constitutional right to privacy in the videotape. She also asserted that the media defendants had invaded her privacy rights under Oklahoma tort law.1

The district court denied Blake's motion to dismiss based on qualified immunity, which we affirmed. See Anderson v. Blake, 469 F.3d 910 (10th Cir. 2006).2 As for the claims against the media defendants, the district court granted their motion to dismiss pursuant to Rule 12(b)(6) as to Anderson's right to privacy and intrusion upon seclusion claims, but denied their motion to dismiss as to Anderson's publication of private facts claim. Subsequently, the district court granted the media defendants summary judgment on Anderson's publication of private facts claim. The district court also denied Anderson's request to amend her complaint to add claims against the media defendants for promissory estoppel and tortious or malicious interference with a contract. After the district court certified its summary judgment order as a final judgment under Rule 54(b),3 Anderson filed the instant appeal. Anderson contends that the district court erred by dismissing her right to privacy and intrusion upon seclusion claims against the media defendants, by granting the media defendants' motion for summary judgment on her publication of private facts claim asserted against the media defendants, and by denying her motion to amend her complaint against them.

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To survive as a claim arising under the federal constitution and § 1983, Anderson's right to privacy claim must allege that the media defendants were state actors. Scott v. Hern, 216 F.3d 897, 906 (10th Cir. 2000). The Supreme Court has explained that the state action doctrine requires that the constitutional deprivation "‘be caused by the exercise of some right or privilege created by the State or by a rule of conduct imposed by the state or by a person for whom the State is responsible'" and that "‘the party charged with the deprivation must be a person who may fairly be said to be a state actor.'" Johnson v. Rodrigues, 293 F.3d 1196, 1202 (10th Cir. 2002) (quoting Lugar v. Edmondson Oil Co., Inc., 457 U.S. 922, 937 (1982)). The Supreme Court has outlined four tests to determine whether private actors, such as the media defendants, should be considered state actors: "(1) the public function test, (2) the nexus test, (3) the symbiotic relationship test and (4) the joint action test." Id. at 1202-03.

* * *

Outcome: The district court’s rulings are AFFIRMED. Anderson’s motion for leave to submit a CD-ROM of the broadcast under seal is GRANTED.

Plaintiff's Experts: Unknown

Defendant's Experts: Unknown

Comments: None