20-532-cv Powell v. Jones-Soderman

UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT

SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

At a stated term of the United States Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 26th day of February, two thousand twenty-one.

PRESENT: DENNIS JACOBS, JOSEPH F. BIANCO, MICHAEL H. PARK, Circuit Judges. _____________________________________

Scott Powell,

Plaintiff-Appellee,

v. 20-532-cv

Jill Jones-Soderman,

Defendant-Appellant,

Foundation for the Child Victims of the Family Courts,

Defendant. _____________________________________

FOR PLAINTIFF-APPELLEE: John R. Williams, New Haven, CT.

FOR DEFENDANT-APPELLANT: DAVID K. LUDWIG (Thomas K. Hedemann, Nicholas E. Gaglio, on the brief), Axinn, Veltrop & Harkrider LLP, Hartford, CT. Appeal from a judgment of the United States District Court for the District of Connecticut

(Spector, M.J.).

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court is AFFIRMED.

Defendant-Appellant Jill Jones-Soderman appeals from a judgment of the district court,

entered on January 16, 2020, finding liability and awarding Plaintiff-Appellee Scott Powell

damages on his claims for defamation per se and invasion of privacy pursuant to Connecticut law.

Powell brought various state law claims against Jones-Soderman arising from her publication of

allegedly defamatory statements on her public website falsely accusing Powell of sexually abusing

his two minor children. The parties consented to have a United States magistrate judge conduct

all proceedings in the case. See

(c). Following a bench trial, Magistrate Judge

Robert M. Spector found that Jones-Soderman was liable for defamation per se and invasion of

privacy because she had acted with reckless disregard for the veracity of the defamatory statements

and awarded Powell $40,000 in general damages for emotional distress, as well as $60,000 in

economic damages for lost income. 1 We assume the parties’ familiarity with the underlying facts,

procedural history, and issues on appeal, which we reference only as necessary to explain our

decision to affirm.

On appeal, Jones-Soderman raises three challenges to the district court’s findings of fact

and conclusions of law. First, she argues that the district court failed to consider whether Powell

1 With respect to the remaining claims, Magistrate Judge Spector found that Jones-Soderman was not liable for intentional or negligent infliction of emotional distress because Powell had failed to submit sufficient evidence that any emotional distress that he suffered as a result of Jones-Soderman’s defamatory statements was severe.

2 had sufficiently proven the falsity of her statements, as required to overcome her First Amendment

defense to Powell’s defamation claim. Second, Jones-Soderman contends that the district court

erroneously concluded that Powell had sufficiently proven she had acted with the degree of fault

necessary to overcome her First Amendment defense and failed to adequately consider her

purported good faith belief in the truth of her statements. Finally, she asserts that the district court

erred in calculating Powell’s damages award for lost income.

Generally, “[o]n appeal from a bench trial, we review findings of fact for clear error and

conclusions of law de novo.” Copeland v. Vance,

(2d Cir. 2018) (internal

quotation marks omitted). However, “in cases raising First Amendment issues [the United States

Supreme Court has] repeatedly held that an appellate court has an obligation to make an

independent examination of the whole record in order to make sure that the judgment does not

constitute a forbidden intrusion on the field of free expression.” Bose Corp. v. Consumers Union

of U.S., Inc.,

(1984) (internal quotation marks omitted); accord Celle v. Filipino

Rep. Enters. Inc.,

(2d Cir. 2000). In reviewing the record and evaluating

the evidence, we give “special deference . . . to a trial judge’s credibility determinations.” Bose

Corp.,

.

I. Falsity

The First Amendment requires that “in a suit by a private plaintiff involving a matter of

public concern, . . . allegedly defamatory statements must be provably false, and the plaintiff must

bear the burden of proving falsity.” Flamm v. Am. Ass’n of Univ. Women,

(2d

Cir. 2000). As an initial matter, we disagree with Jones-Soderman’s contention that the district

court “failed to make any factual findings with respect to the truth or falsity of [her] statements.”

3 Appellant’s Br. at 17. The district court recounted Powell’s trial testimony in which he, among

other things, vehemently denied the false accusations, and stated that there was “never a scintilla

of truth to any of those accusations.” Powell v. Jones-Soderman,

, 367 (D.

Conn. 2020) (alteration and internal quotation marks omitted). The district court also

summarized, in detail, the evidence in the record that supported a finding that the defamatory

statements were false, including the fact that the Connecticut Superior Court had previously

discredited the allegations that Powell had sexually abused his two children. Moreover, in its

legal reasoning, the district court cited case authority that pertained to circumstances where

defamatory statements are “demonstrably false and groundless.”

(internal quotation

marks omitted). In short, based on the analysis contained in the Memorandum of Decision, it is

clear that the district court found that Powell had sufficiently proven that the defamatory

statements were false.

We also are unpersuaded by Jones-Soderman’s argument that the trial evidence did not

support a falsity finding as to her defamatory statements. 2 As outlined in the district court’s

findings of fact, the Connecticut Superior Court, pursuant to a March 21, 2016 emergency

application bringing sexual abuse allegations against Powell and seeking to transfer custody of his

children, conducted a full evidentiary hearing regarding those allegations and concluded that

2 Jones-Soderman observes that it remains an open question under federal law as to whether falsity must be established by clear and convincing evidence or by a preponderance of the evidence; but she does not argue which burden of proof should apply. Instead, she asserts that “[i]rrespective of which standard applies, the evidence falls far short of showing that [her] . . . statements are false.” Appellant’s Br. at 19. She has thereby waived any argument that the higher burden of proof should apply to falsity; so we do not address that issue on appeal. See United States v. Botti,

(2d Cir. 2013) (“[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived.”).

4 Powell did not present “an immediate and present risk of physical danger or psychological harm”

to his children, and that the children should be returned to his “sole legal and physical custody.”

Powell, 433 F. Supp. 3d at 366 (internal quotation marks omitted). Thus, in conjunction with

Powell’s trial testimony, the findings of the Connecticut Superior Court (which Jones-Soderman

concedes were introduced into the trial record for the truth of the matters asserted), provided a

sufficient basis for the district court to find that Powell had proven the falsity of the alleged

defamatory statements.

II. Fault

The First Amendment also requires a plaintiff alleging defamation to prove that the

defendant acted with some degree of fault. See Flamm,

. Jones-Soderman asserts

that the First Amendment requires Powell to prove that she acted with actual malice. Contrary to

her argument, however, it is clearly established, under federal law, that the requisite degree of fault

a private individual alleging defamation must prove is the “constitutional minimum of negligence.”

Lerman v. Flynt Distrib. Co.,

(2d Cir. 1984); see also Gertz v. Robert Welch,

Inc.,

(1974). Having relied on the wrong legal standard, Jones-Soderman has

failed to even argue that she has not acted negligently in publishing the defamatory statements,

and as a result, she has waived any such argument on appeal. 3 See Gross v. Rell,

(2d Cir. 2009). Accordingly, we agree with the district court that the First Amendment did not

protect Jones-Soderman from liability for publishing the alleged defamatory statements.

3 In any event, as discussed below, we conclude that there was a more than sufficient basis for the district court’s finding, under Connecticut law, that Jones-Soderman had published those statements with a higher degree of fault—namely, actual malice.

5 To the extent that Jones-Soderman contends that Powell has failed to prove actual malice

under state law (rather than in connection with her First Amendment defense), we also find that

argument to be unavailing. In Connecticut, “[a] defendant may shield h[er]self from liability for

defamation by asserting the defense that the communication is protected by a qualified privilege.”

Gleason v. Smolinski,

, 948 n.32 (Conn. 2015) (first alteration in original) (internal

quotation marks omitted). However, a plaintiff may prove actual malice to defeat a qualified

privilege defense. See

“[A]ctual malice requires a showing that a statement was made with

knowledge that it was false or with reckless disregard for its truth.” Gambardella v. Apple Health

Care, Inc.,

(Conn. 2009). “[R]eckless disregard may be found when an

individual publishes defamatory statements with a high degree of awareness of probable falsity or

entertained serious doubts as to the truth of the publication.”

(alterations and internal

quotation marks omitted).

There is no basis to disturb the finding by the district court, after weighing the evidence

and making the necessary credibility determinations at trial, that Jones-Soderman had published

statements accusing Powell of sexually abusing his two minor children with reckless disregard for

their truth. In making this determination regarding scienter, the district court relied on, inter alia,

the following evidence: (1) Jones-Soderman had been paid and retained by Powell’s ex-spouse to

conduct an evaluation so that she could try to regain custody of the two children, who were in

Powell’s custody; (2) prior to publishing the allegations on her website, Jones-Soderman had

reviewed clinical findings in an expert’s 2011 report revealing that Powell’s children may have

suffered from various psychological disorders that would strongly militate against the credibility

of the children’s sexual abuse accusations against Powell and “conclud[ing] that the children were

6 not being truthful in making allegations of sexual abuse,” Powell, 433 F. Supp. 3d at 363;

(3) Jones-Soderman was “well aware that the earlier court records [in 2011] documented a history

of neglect by [Powell’s ex-spouse] and that [a Connecticut judge] had transferred custody to

Powell only after considering [the expert’s] reports and hearing evidence from witnesses,

including [Department of Children and Families (“DCF”)] workers, school officials, [the ex-

spouse’s] therapist, and a former nanny of the children, id. at 371–72; (4) “Jones-Soderman was

aware, as [the Connecticut Superior Court] had noted, that previous allegations of the children

against Scott Powell of sexual assault, harm, emotional neglect, [and] physical and emotional

abuse were investigated by DCF, and the police, and have always been unfounded,” id. at 372

(internal quotation marks omitted); and (5) “Jones-Soderman was well aware . . . , in particular,

that [the Connecticut Superior Court] had based [its] April 2016 decision to return [the children]

to Scott Powell’s custody on a consideration of a substantial amount of evidence, including the

complex history of this custody dispute in which there had been absolutely no support for the

allegations of physical or sexual abuse” and “[t]his evidence consistently raised doubt as to the

veracity of the claims [the children] leveled against their father,” id. at 375–76. As to Jones-

Soderman’s claim that she was acting in the best interest of the children in publishing these

allegations, the district court noted that, even though she acknowledged that she was a legally

“mandated reporter” of sexual abuse as an unlicensed counselor, she did not call DCF to report

any of these allegations of abuse, and that her inaction “weigh[ed] against” her purported purpose.

Id. at 363.

In sum, this evidence, as well as the other evidence in the trial record thoroughly analyzed

by the district court, provided a sufficient basis for the district court to conclude that Jones-

7 Soderman acted with actual malice by virtue of her reckless disregard for the truth of her

statements, particularly because under Connecticut law, “[i]t is axiomatic that a defendant who

closes h[er] eyes to the facts before h[er] cannot insulate h[er]self from a defamation charge merely

by claiming that [s]he believed h[er] unlikely statement.” 4 Gambardella,

.

Accordingly, we conclude that Connecticut’s qualified privilege defense did not protect Jones-

Soderman from liability for publishing the alleged defamatory statements.

Powell also prevailed on a false-light invasion of privacy claim under Connecticut law,

which likewise requires a showing that Jones-Soderman acted with knowledge or in reckless

disregard of the falsity of her statements. See Goodrich v. Waterbury Republican-Am., Inc.,

(Conn. 1982). We affirm on the basis of the same evidentiary showing.

III. Economic Damages for Lost Income

With respect to the award of economic damages, Jones-Soderman argues that the district

court improperly awarded Powell damages for lost income because Powell had failed to present

sufficient evidence that Jones-Soderman’s defamatory statements caused him to lose his summer

job. To recover economic damages under Connecticut law, “the plaintiff must prove that he

suffered economic loss that was legally caused by the defendant’s defamatory statements.”

4 Jones-Soderman also makes the related argument that the district court incorrectly concluded that she had acted with actual malice in light of the fact that it also found that she “had a good-faith belief in the truth of her statements.” Appellant’s Br. at 25. However, we disagree with Jones-Soderman’s interpretation of the district court’s ruling on whether she was publishing the statements in good faith. In fact, the district court stated, in its Memorandum of Decision that “professions of good faith [are] unlikely to prove persuasive when the publisher’s allegations are so inherently improbable that only a reckless [wo]man would have put them in circulation,” and then found “[t]hat is precisely the situation in this case.” Powell, 433 F. Supp. 3d at 375 (alterations, emphasis, and internal quotation marks omitted); see also id. at 376 (citing law regarding good faith and finding “Jones-Soderman’s testimony is simply not credible”). It is thus clear that the district court did not credit Jones-Soderman’s assertions that she had published her defamatory statements in good faith, and properly applied Connecticut law.

8 DeVito v. Schwartz,

(Conn. App. Ct. 2001). “Damages are recoverable only

to the extent that the evidence affords a sufficient basis for estimating their amount in money with

reasonable certainty.” Am. Diamond Exch., Inc. v. Alpert,

(Conn. 2011)

(internal quotation marks omitted). However, Connecticut courts have noted “that there are

circumstances in which proof of damages may be difficult and that such difficulty is, in itself, an

insufficient reason for refusing an award once the right to damages has been established.”

(internal quotation marks omitted).

Powell testified that for more than a dozen years leading up to 2016, he worked as a director

at a summer day camp for children ages three to ten. Powell further explained that, immediately

after Jones-Soderman published her statements accusing him of sexually abusing his own children,

the summer camp did not rehire him as a summer camp director and simply told him that they

wanted to go in a different direction. In view of the fact that Jones-Soderman’s sexual abuse

accusations spoke directly to Powell’s capacity to work with children at a summer camp, and

considering Powell’s long tenure at the summer camp and the camp’s sudden refusal to rehire him

immediately following the publication of Jones-Soderman’s statements, we conclude that there is

sufficient evidence to support a reasonable inference that Jones-Soderman’s defamatory

statements caused Powell to lose his summer position as a camp director.

Although Jones-Soderman also asserts that the district court miscalculated Powell’s award

of economic damages by failing to consider whether Powell was able to recoup lost income from

his summer camp position by earning additional summer income from his normal job as an

independent contractor, we find that argument equally unpersuasive. Powell testified at trial that

his contractor business suffered because Jones-Soderman’s defamatory statements precluded him

9 from advertising his business online, but explained that it was very difficult to put a figure on the

extent to which his business was damaged. Because the district court could not calculate how

much Powell’s contractor business was actually damaged by the defamation, the district court only

awarded Powell $60,000 in lost income, an objectively ascertainable figure that included four years

of lost salary as a result of not having been rehired at the summer camp since 2016. Given the

district court’s conclusion that it could not determine the portion of the contractor business that

was lost because of the defamation, it would have been speculative on this record to conclude, as

Jones-Soderman urges, that Powell actually reaped a net gain of income from that business (due

to additional work that he may have performed over the summer) that should be deducted from the

lost summer camp income. Accordingly, based on the scant evidence in the record regarding the

details of Powell’s contractor business, the district court did not err when it failed to use any

income from the contractor business to offset the award of lost income from the summer camp

position.

* * *

We have considered all of Jones-Soderman’s remaining arguments and find them to be

without merit. For the foregoing reasons, the judgment of the district court is AFFIRMED.

FOR THE COURT: Catherine O’Hagan Wolfe, Clerk of Court

10