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IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Robert E. Murray, et al., Civil Action No. 2:13-cv-1066 Plaintiffs, Judge Gregory L. Frost v. The Huffington Post.com, Inc., et al., Defendants. MOTION TO DISMISS (Oral Hearing Requested)

Defendant Wilfred Michael Stark III hereby moves under Federal Rule of Civil Procedure 12(b)(6) to dismiss the complaint for failure to state a claim upon which relief can be granted. For the reasons set forth in the accompanying Memorandum in Support of Defendant Starks Motion to Dismiss, the Court should grant the motion. Defendant Stark respectfully requests oral argument on this motion.

Respectfully submitted,

/s/ James L. Hardiman________________ James L. Hardiman (0031043) TRIAL COUNSEL jhardiman@acluohio.org Jennifer Martinez Atzberger (0072114) jatzberger@acluohio.org Drew S. Dennis (0089752) ddennis@acluohio.org American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Ph: (216) 473-2220 Fax: (216) 473-2210

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David E. Halperin (District of Columbia 426078) Pro hac vice motion pending 1530 P Street NW Washington DC 20005 davidhalperindc@gmail.com Ph: (202) 905 3434 Fax: (202) 362 8512

CERTIFICATE OF SERVICE I hereby certify that on October 28, 2013 I electronically filed the foregoing Motion with the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all counsel of record. : Respectfully submitted,

/s/ James L. Hardiman________________ James L. Hardiman (0031043) TRIAL COUNSEL jhardiman@acluohio.org Jennifer Martinez Atzberger (0072114) jatzberger@acluohio.org Drew S. Dennis (0089752) ddennis@acluohio.org American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Ph: (216) 473-2220 Fax: (216) 473-2210 David E. Halperin (District of Columbia 426078) Pro hac vice motion pending 1530 P Street NW Washington DC 20005 davidhalperindc@gmail.com Ph: (202) 905 3434 Fax: (202) 362 8512

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MEMORANDUM IN SUPPORT OF MOTION TO DISMISS INTRODUCTION Defendant Wilfred Michael Stark III (Stark), a citizen of Virginia, published an article (the Article) on the Huffington Post website blog (Huffington Post blog) making arguments about public policy issues relating to Virginia gubernatorial candidate Ken Cuccinelli and to plaintiff Robert Murray (Murray), the president, chief executive officer, and chairman of plaintiff Murray Energy Corporation (Murray Energy.) Murray and Murray Energy sued Stark, along with the Huffington Post and its officials, for defamation and false light invasion of privacy, in the Court of Common Pleas, Belmont County, St. Clairsville. Defendants removed this action to this Court based on diversity jurisdiction. Starks article contains no false statements of fact, nor is it misleading, nor does it place Murray in a false light. More importantly, for purposes of this Motion to Dismiss, the statements in the Article about which Plaintiffs complain are not assertions of fact. Rather, the Complaint takes issue only with opinions offered by Stark in the Article. Under Ohio law, such statements are not actionable as either defamation or false light invasion of privacy. These types of statements are clearly protected by the Ohio Constitution. Even if the Complaint were interpreted to allege false statements of fact, this Court should dismiss for the additional reason that Complaint does not allege any facts to support the assertion that Stark acted with actual malice, that is, with knowledge that a statement was false or with reckless disregard for whether a statement was false the legal threshold for a defamation claim brought by a public figure, or for a false light claim. Rather, the Complaint seeks to avoid this issue by making the incredible legal claim that Murray is not a public figure, with no specific

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factual assertions included to back up that claim. However, the Complaint itself, with its attached and referenced documents, makes plain that Murray is a public figure, and one who has actively sought the spotlight. Accordingly, the Complaint fails to state a claim upon which relief can be granted, and Stark respectfully requests that the Court dismiss this action with prejudice.

BACKGROUND The Complaint alleges that, on or about September 20, 2013, Defendants published an article on the Huffington Post blog, under Starks byline, titled Meet the Extremist Coal Baron Bankrolling Ken Cuccinellis Campaign. The Complaint specifies four alleged assertions in the article that Plaintiffs contend are false and defamatory: (i) Murray announced he was firing more than 150 of his miners following and in response to President Obamas reelection in 2012; (ii) Murrays firing of 150 of his miners was the fulfillment of a promise i.e. a promise to fire his miners if Obama won reelection; (iii) Murray is an extremist; (iv) Murray fires his workforce wholesale in fits of spite when electoral results disappoint him; The actual statements made by Stark in the article are: (1) (2) (3) (4) Murray announced he was firing more than 150 of his miners. Firing so many employees may well have been the fulfillment of a promise. Murray is an extremist billionaire. Murray fires his workforce wholesale in fits of spite when electoral results disappoint him. LAW AND ARGUMENT I. The alleged false and defamatory statements, to the extent they were actually asserted, are expressions of opinion on public policy matters and not actionable as defamation or false light invasion of privacy

(a) Defamation

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There are constitutional limits on the type of speech which may be the subject of state defamation actions. Milkovich v. Lorain Journal Co., 497 U.S. 1, 16 (1990). Under Ohio law, statements of opinion may not be the subject of such a suit, for either defamation or false light invasion of privacy. All of the statements alleged by the Plaintiffs to be defamatory are statements of opinion. Therefore, this Court should dismiss the Complaint. The U.S. Supreme Court has repeatedly protected speech that a reasonable reader would recognize as spirited argument or opinion, rather than assertions of fact. Referring to a real estate developers negotiating position as blackmail was not a legitimate basis for a defamation action, because it could not reasonably imply that the developer engaged in the actual crime of blackmail, as even the most careless reader must have perceived that the word was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the developer's] negotiating position extremely unreasonable. Greenbelt Cooperative Publishing Assn., Inc. v. Bresler, 398 U.S. 6, 13-14 (1970). Using the word traitor in the definition of a labor scab was not a legitimate basis for a defamation action, because it was used "in a loose, figurative sense" and was "merely rhetorical hyperbole, a lusty and imaginative expression of the contempt felt by union members." Letter Carriers v. Austin, 418 U.S. 264, 284-286 (1974). In Milkovich v. Lorain Journal Co., 497 U.S. at 19-20, the U.S. Supreme Court ruled that a statement on matters of public concern must be provable as false before there can be liability under state defamation law, at least in situations where a media defendant is involved. Statements also are protected if they cannot reasonably [be] interpreted as stating actual facts about an individual. Id., at 20, quoting Hustler Magazine v. Falwell, 485 U.S. 46, 50 (1988). This provides assurance that public debate will not suffer for lack of imaginative expression or the rhetorical hyperbole which has traditionally added much to the discourse of our Nation. Id.

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The Court in Milkovich, a case that arose in Ohio, while reaffirming the aforementioned federal constitutional protections relevant to state defamation claims, declined to declare an express separate constitutional privilege for 'opinion. 497 U.S. at 21. However, the Ohio Supreme Court subsequently ruled that "regardless of the outcome in Milkovich [t]he Ohio Constitution provides a separate and independent guarantee of protection for opinion ancillary to freedom of the press." Vail v. Plain Dealer Publishing Co., 72 Ohio St. 3d 279, 281, 649 N.E.2d 182, 185 (1995). Thus, under Ohio law, statements of opinion are non-actionable per se. In Wampler v. Higgins, 93 Ohio St. 3d 111, 752 N.E.2d 962 (2001), the Ohio Supreme Court held that this guarantee of protection for opinion applies to media defendants and non-media defendants alike. In Vail, the court reaffirmed that Ohio would continue to apply the four-factor totality of the circumstances test adopted in its pre-Milkovich decision Scott v. News-Herald, 25 Ohio St. 3d 243, 496 N.E.2d 699 (1986), to determine whether a statement is actionable fact or nonactionable opinion: The court should consider: (1) the immediate context of the statement, and (2) the broader context in which the statement appeared. (3) the specific language used, and (4) whether the statement is verifiable. Vail, 72 Ohio St.3d at 282. The determination as to whether an allegedly defamatory statement is one of fact or of opinion is a question of law to be decided by the court. Scott, 25 Ohio St.3d at 250. Thus, it is a determination appropriate for resolution on a motion to dismiss for failure to state a claim. Two of the four factors in the Scott / Vail test relate to Starks Article as a whole, so we address them first, and then evaluate the other two factors with respect to each statement that Plaintiffs contend is false and defamatory.

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In analyzing the immediate context of the statement, Ohio courts assess the entire article or column, Wampler, 93 Ohio St. 3d at 130, quoting Ollman v. Evans, 750 F.2d 970, 979 (1984), cert. denied, 471 U.S. 1127 (1985). The court in Vail framed the question this way: Is the column characterized as statements of objective facts or subjective hyperbole? 72 Ohio St.3d at 186. In this case, as in Wampler, the gist of the subject article as a whole is an expression of opinion. 93 Ohio St.3d at 130. The title of the Article Meet the Extremist Coal Baron Bankrolling Ken Cuccinellis Campign -- makes plain that the writer is offering an opinion essay. The entire Article is written in an aggressive tone, questioning the conduct and ethics of Virginia Republican gubernatorial candidate Ken Cuccinelli, criticizing the behavior of Robert Murray, and concluding by raising questions about whether Murrays campaign contributions to Cuccinelli may be a bid for improper influence over the candidate: So that's Cuccinelli's largest individual donor from the last cycle. $30,000 from an extremist billionaire that is funding an Obama impeachment effort, that allegedly extorts money from his low-wage employees, and fires his workforce wholesale in fits of spite when electoral results disappoint him. In light of the Consol and Star Scientific scandals, Murray's status as the largest individual donor to Cuccinelli's campaign should raise questions in Virginia: What does Bob Murray expect in return for his investment? (It's worth noting that Murray Energy has no mining presence in Virginia.) What promises has Cuccinelli made to Murray Energy and Bob Murray? Does Murray Energy have any pending business before the state of Virginia? Does Bob Murray have any business before the Office of the Attorney General?

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As in Vail, The general tenor of the column is sarcastic, more typical of persuasive speech than factual reporting. 72 Ohio St.3d at 280. As with Scott and Wampler, the writers mind is certainly made up and the average reader viewing the words in their internal context would be hard pressed to accept [his] statements as impartial reporting. Wampler, 93 Ohio St.3d at 130, quoting Scott, 25 Ohio St.3d at 253. The court in Vail further stated that in considering this first factor, The authors reputation as an opinionated columnist must be considered. 72 Ohio St.3d at 282. Stark has a reputation as an opinionated columnist. His own description of himself on the Huffington Post blog reads: Mike Stark is a University of Virginia law student, a marine, extreme political activist and a citizen journalist.1 On his blog, Fossil Agenda, Stark strongly criticizes fossil fuel energy industries, with a particular emphasis on coal.2 Another website Stark has maintained, Stark Reports, criticizes and documents Starks efforts to confront conservatives including radio host Rush Limbaugh and television host Sean Hannity.3 There is also a Wikipedia page devoted to Stark, and it describes his activism and criticism directed at conservative television host Bill OReilly and Virginia Republican Senator George Allen.4 Stark is a persistent, aggressive critic of the coal industry, political conservatives, and others, and an advocate for policy reforms. Thus, the immediate context factor strongly favors viewing Starks statements in the article as opinion, not fact. The same is true of the second Scott / Vail factor; the broader context in which the statement appeared. Some types of writing or speech by custom or convention signal to readers and listeners that what is being read or heard is likely to be opinion, not fact. Wampler, quoting

1
2

http://www.huffingtonpost.com/mike-stark/ http://fossilagenda.com/about/ 3 http://www.starkreports.com/ 4 http://en.wikipedia.org/wiki/Mike_Stark

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Ollman, 750 F.2d at 983. In Vail and in Wampler, the court found it significant that the subject article appeared on a newspaper opinion page, a placement that signals to readers that they are being exposed to personal opinions of the writer. Vail, 72 Ohio St.3d at 282. Articles so placed are distinguished from a news story which should contain only statements of fact or quotes of others, but not the opinion of the writer of the story. Id. The Court may take judicial notice that the Huffington Post blog is a well-known forum for people to write opinion articles the online equivalent of a newspaper editorial page.5 Featured writers on a given day may include: liberal media watchdog David Brock; Christian progressive advocate Jim Wallis; Douglas Holtz-Eakin, president of the conservative American Action Forum; Diann Rust-Tierney, Executive Director of the National Coalition to Abolish the Death Penalty; and Craiglist founder Craig Newmark. For the most part, contributors to the Huffington Post blog are not writing straight news stories. Instead they are largely advocates for causes, writing pieces containing opinion and analysis. The Court in Vail also found -- supporting the conclusion that the broader context factor pushed in favor of finding that a statement was opinion -- the fact that the article at issue appeared in the midst of a political campaign, which provided the subject for the column. 72 Ohio St.3d at 282. The same is true for Starks Article, which was about Virginia candidate Cuccinelli and Murrays support for his campaign. Accordingly, the two contextual Scott / Vail factors weigh heavily in favor of a finding that the alleged defamatory statements in the Article are protected opinion. So do the other two Scott / Vail factors, which focus on the specifics of the statements themselves -- the specific language used, and whether the statement is verifiable.

http://www.huffingtonpost.com/the-blog/

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Alleged statement (i) Plaintiffs claim that the Article asserts, Murray announced he was firing more than 150 of his miners following and in response to President Obamas reelection in 2012. In fact, the relevant sentence reads, merely, Murray announced he was firing more than 150 of his miners. Plaintiffs cannot and do not assert that the actual statement in the Article is false, because it is true Murray did make that announcement. Instead, Plaintiffs impute an additional assertion to this sentence, namely that Murray announced the firings in response to President Obamas reelection in 2012. Plaintiffs invent that the sentence makes the factual assertion that Murray fired the workers in response to the election. The sentence makes no such assertion. And to the extent that Plaintiffs may surmise from the remainder of the article that Stark believes and wishes to imply that Murray fired the workers in response to the election, that would be Plaintiffs conjecture about Starks conjecture or opinion about why Murray fired the workers. Stark cannot purport to know what precisely motivated Murray to fire his workers. No one, not a historian evaluating corporate documents, nor a psychiatrist examining Murray, nor even Murray himself, would be able to verify precisely why Murray made the decision that he made. Stark could, at most, only offer his opinion. See Bentkowski v. Scene Magazine, 637 F.3d 689, 694 (6th Cir. 2011) (under Ohio law, an articles purported claim that a public official had improper motives in sending a letter is not verifiable because there are no objective tests to determine a persons internal motivation). Opinion is not actionable as defamation, and a plaintiffs conjecture about a defendants opinion certainly is not actionable as defamation.

Alleged statement (ii) Plaintiffs claim that the Article asserts, (ii) Murrays firing of 150 of his miners was the fulfillment of a promise i.e. a promise to fire his miners if Obama won reelection. In fact,

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the Article states, Firing so many employees may well have been the fulfillment of a promise (emphasis added). As actually presented, rather than as distorted by Plaintiffs, this sentence is clearly not an assertion of fact, but rather an expression of an opinion about how the firings might have related to statements made by Murray. As with alleged statement (i), Stark cannot purport to know what precisely motivated Murray to fire his workers. No one would be able to verify Murrays precise motivation. Stark could, at most, only offer his opinion. Opinion is not actionable as defamation. Alleged statement (iii) Plaintiffs accurately plead that the Article refers to Murray as an extremist. (Specifically, Stark used the phrase extremist billionaire using extremist not as a noun but as an adjective modifying the word billionaire.) Under the Scott / Vail test, a court must determine whether a reasonable reader would view the words used to be language that normally conveys information of a factual nature or instead hype or opinion. Vail, 72 Ohio St.3d at 282. The Court must examine whether the alleged defamatory statement has a precise meaning and thus is likely to giver rise to clear factual implications. Wampler, 93 Ohio St.3d at 127-28, quoting Ollman, 750 F.2d at 979-80. A classic example of a statement with a well-defined meaning is a an accusation of a crime or disciplinary rule violation, Wampler, Ohio St. 3d at 128, Vail, Ohio St. 3d at 182, whereas statements that are loosely definable or variously interpretable cannot in most contexts support an action for defamation.... Readers are considerably less likely to infer facts from an indefinite or ambiguous statement than one with a commonly understood meaning. Wampler, 93 Ohio St.3d at 128, quoting Ollman, 750 F.2d at 979-980. Calling someone an extremist -- a person who holds extreme or fanatical political or religious views, especially one who resorts to or advocates extreme action (Oxford Dictionaries

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online) -- is not alleging a fact. Readers will be unable to infer specific facts from such a statement, and such statement is not susceptible to being proven or disproven. Extremism is in the eye of the beholder. Calling someone an extremist is an expression of opinion or rhetorical hyperbole about where a person fits on a scale of views. Indeed, Murrays suing because Stark called him an extremist is quite comparable to a claim rejected as non-actionable by the court in Wampler, where the defendants description of the rent proposed by plaintiff was described as exorbitant. Exorbitant means (of a price or amount charged) unreasonably high. (Oxford Dictionaries online.) Just as one cannot verify that a price is unreasonably high, one cannot verify that someones views are unreasonably radical, fanatical, or extreme. The court in Wampler stated that the defendants description of Wamplers proposed rent as exorbitant, much like his characterization of Wampler as ruthless, and his distaste for Wamplers faceless, mindless, or heartless corporate vendee, are standardless statements not amenable to objective proof or disproof. 93 Ohio St.3d at 129. The court in Wampler, also compared the use of those adjectives in the case to the rejected defamation claim in Buckley v. Littell, 539 F.2d 882 (2nd Cir. 1976), in which the court held that an accusation that a columnist was a fellow traveler of fascists was susceptible of widely differing interpretations. Id. See also Condit v. Clermont County Review, 110 Ohio App. 3d 755 (1996) (reference to plaintiff as a "fascist" was too general to be verifiable). Like the phrase fellow traveler of fascists, the word extremist is imaginative expression, a label used by one actor in the political arena to express an opinion about another. It is not an assertion of fact. Alleged statement (iv) Plaintiffs accurately plead that the Article alleges that Murray fires his workforce wholesale in fits of spite when electoral results disappoint him. This sentence, as with statements (i) and

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(ii), offers Starks opinion about why Murray fired his employees. Again, what precisely motivated Murray to fire his workers cannot be known and cannot be proven true or false. A fit of spite is neither the formal designation of a crime, nor a medical diagnosis, nor any other specific factual description -- it is rhetorical hyperbole, expressing the writers dismay with Murrays behavior in the political arena. The additional element is the word wholesale, as used in the context of 150 workers being fired in the same day. Wholesale means being sold in large quantities to be retailed by others. (Oxford Dictionaries online.) No reasonable reader would believe that Murray was selling his workers in large quantities. Wholesale in this context is clearly being used as rhetorical hyperbole or imaginative expression, as a metaphor to describe the large number of workers fired on a single day. It is not an assertion of fact, nor is it subject to verification. Other statements The Complaint further alleges that the defamatory statements include (v) other statements contained in the Article. But an element of a Complaint plainly cannot survive a motion to dismiss without alleging any facts, so the Court should dismiss this element, along with the others. All four of the factors deemed relevant by the Ohio Supreme Court to determine whether a statement is an actionable fact or a non-actionable opinion strongly favor the conclusion that each statement at issue in this case is an opinion, not fact. Accordingly, this Court should dismiss Count One of the Complaint. (b) False light invasion of privacy In order to prevail on a claim of false light defamation of privacy, the statement made must be untrue. Welling v. Weinfeld, 113 Ohio St.3d 464, 471; 866 N.E.2d 1051 (2007). The test of

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whether challenged statements are actually false is the same for a claim of false light invasion of privacy as it is for a claim of defamation. See Christiansen v. Pricer, 2010-Ohio2718, 2010 Ohio App. LEXIS 2238, 2010 WL 237782 (2010) (dismissing false light claims, including as to some assertions that the court determined to be constitutionally protected opinion), discretionary appeal not allowed, 126 Ohio St. 3d 1601, 2010 Ohio 4928, 935 N.E.2d 47 (2010). If the statements cited in the Complaint are non-actionable opinion, rather than actionable fact, for defamation law purposes, then they also cannot be the basis of a false light claim. Accordingly, this Court should also dismiss Count Two of the Complaint. Even if the Complaint contained any allegation that the Article included false statements of fact, any such allegation is not actionable under standards established by the U.S. Supreme Court. The First Amendment requires that a public figure may not recover damages for defamation unless he or she proves that the statement was made with actual malice -- that is, with knowledge that it was false or with reckless disregard of whether it was false or not. New York Times v. Sullivan, 376 U.S. 254, 279-280 (1964); Curtis Publishing Co. v. Butts, 388 U.S. 130 (1967) (extending the rule to non-government public figures). Moreover, [a] showing of New York Times malice is subject to a clear and convincing standard of proof. Milkovich, 497 U.S. at 15, quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342 (1974). Moreover, under Welling v. Weinfeld, 113 Ohio St.3d at 473, a plaintiff, public figure or not, may not prevail on an Ohio false light invasion of privacy claim unless there is such knowledge that the information is false or there is reckless disregard for the truth the same standard that applies to defamation claims brought by public figures. Plaintiffs allege, Complaint 20, that Robert Murray is neither a public figure nor a limited public figure in that he has neither voluntarily sought public media attention, nor has he achieved

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such status by reason of the notoriety of his achievements. This is a bare recitation of the legal test for public figure status, without factual support, and it is directly contradicted by the Complaint as a whole. The complaint attaches the Article at issue in this case, which recounts the following facts, among others: (1) Murray was the keynote speaker at the Bluefield Coal Show, where he called for the impeachment of President Obama. Starks article contains a hyperlink to an article in The Intelligencer / Wheeling News-Register describing Murrays September 2013 speech at this coal show in southern West Virginia. (2) Murray appeared at a 2012 Mitt Romney campaign speech, at which Romney nodded toward Murray and said, "I tell ya, you've got a great boss. He runs a great operation here." Starks article contains a hyperlink to an article in The New Republic magazine describing the Romney campaign event, which was held at Murray Energys Century Mine in Beallsville, Ohio. (3) Murray told his miners that their attendance at the Romney event was mandatory. Starks article contains a hyperlink to an article in the Cleveland Plain Dealer describing August 2012 comments made by Murray in Tampa, Florida, at an Ohio delegation (4) Murray exchanged pleasantries and small talk with Ohio Attorney General Mike DeWine before breakfast was served. Then Murray made extensive comments to the Plain Dealer reporter about the Romney event and his workers attendance at it. (5) Murray responded to President Obamas reelection with the prayer. Starks Article includes the text of the publicly-released prayer, which declared that the American people have decided that America must change its course, away from the principals of our

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Founders, that Americans will pay the price in their reduced standard of living and, most especially, reduced freedom, and then concluded:

Lord, please forgive me and anyone with me in Murray Energy Corp. for the decisions that we are now forced to make to preserve the very existence of any of the enterprises that you have helped us build. We ask for your guidance in this drastic time with the drastic decisions that will be made to have any hope of our survival as an American business enterprise.

Starks article contains a hyperlink to an article in the Washington Post. According to this Washington Post story, Murrays prayer first appeared on the website of the Intelligencer/Wheeling News-Register, and, The newspaper said Murray supplied his text. The Washington Post confirmed its legitimacy with a company spokesman, Gary M. Broadbent. The Post story also recounts that on November 7, 2012, the day after the presidential election, Murray laid off 156 workers, blaming a war on coal by the Obama administration. The Post article further noted, Murray Energy is the countrys largest privately owned coal mining company, with about 3,000 employees producing about 30 million tons of bituminous coal a year, according to its Web site.

All of these facts have been brought into this Court by means of the Complaint, and they are not disputed by any other facts presented. Collectively, they make plain that Plaintiffs claim that Murray is not a public figure lacks credibility and cannot be sustained. Murray is the well-known head of one of the countrys largest corporations, and he has, by his own admission, deliberately asserted himself into public controversies about public policy, politics, and elections.

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Given that the Complaint itself makes plain that Robert Murray is a public figure, given that the Complaint does not deny that Murray Energy is a public figure, and given the requirements of Ohio defamation and false light invasion of privacy law, Plaintiffs cannot survive a Rule 12(b)(6) motion brought by defendant Stark without alleging information regarding actual malice on Starks part. However, the Complaint does not plead any specific facts indicating the Stark or the other defendants acted with actual malice. As with its claim that Robert Murray is a public figure, the Complaint offers only a bare legal assertion in this regard, along the lines of Defendant committed an assault or Defendant was negligent. Although states of mind may be pleaded generally, a defamation plaintiff must still point to details sufficient to render a claim [of actual malice] plausible. Pippen v. NBCUniversal Media, LLC, 7th Cir. April 19, 2013. See also Mayfield v. NASCAR, 674 F.3d 369 (2012)(a mere recitation of the legal standard of actual malice insufficient to survive motion for judgment on the pleadings). In Pippen, the Seventh Circuit rejected a defamation claim against media company defendants brought by a public figure even where the reports about the plaintiff were indeed false and defendants had many ways to learn that their reports were false. In this case, the Complaints only arguably relevant assertion -- that the defendants did not contact Murray or his representatives to seek comment in advance of publication -- is hardly a specific allegation pointing to reckless disregard for the truth; as shown above, any factual assertions made in Starks Article already had been reported earlier in respected mainstream press outlets, with passage of time that would have permitted Murray to obtain a correction had a report been inaccurate. Stark did not act with reckless disregard for the truth by reporting information already reported in those publications. See Schatz v. Republican State Leadership Comm., 669 F.3d 50 (1st Cir. 2012) (to make out a plausible malice claim, a plaintiff must still lay out

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enough facts from which malice might reasonably be inferred, as was not the case where what defendant alleged was consistent with published news reports). Accordingly, the requisite factual pleading of actual malice is absent, and the Court should dismiss each count in the Complaint on this basis as well. CONCLUSION Plaintiff Robert Murray is a sophisticated man. He may well be aware that his Complaint has no merit under established legal precedents. He knows, for example, after eagerly seizing the spotlight of media coverage, that he is a public figure. But he also likely realizes that a lawsuit like this has the effect of diverting resources that a writer or activist like Mike Stark might otherwise use to expose and question the actions of Murray, Murray Energy, and the coal industry. This kind of lawsuit could also deter others from engaging in commentary and criticism about Murray and these issues. Indeed, it appears that Murray is engaged in an ongoing effort to sue his critics for defamation. We note that Murray currently has at least two lawsuits for defamation pending in Cuyahoga County state court, one against a media defendant, Robert E. Murray, et al. v. Chagrin Valley Publishing Company, et al., Case No. CV-13-911106, and one against a citizen activist defendant, Robert E. Murray, et al. v. James Ciocia, et al., Case No. CV-13-8010571. Another defamation action that Murray filed last year in Belmont County state court, over an article in the Charleston (West Virginia) Gazette, was removed to this Court and subsequently dismissed. Robert E. Murray, et al. v. Daily Gazette Co., et al., 2:12-cv-00767 (SD Ohio). To the extent that this lawsuit may have the purpose or the effect of chilling free speech on matters of public concern, it is precisely the kind of situation the courts have sought to address in cases like New York Times v. Sullivan and Vail v. Plain Dealer. Given the

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constitutional requirements of those cases, and the failure of the Complaint to plead a case for defamation under Ohio law there is no basis to sustain the Complaint.. WHEREFORE, for the reasons stated immediately above, Defendant Stark respectfully requests that this Court dismiss the Complaint for failure to state a claim upon which relief may be granted. Mr. Stark also requests an opportunity for an oral hearing in order to persuade the Court to act decisively at the motion to dismiss stage, before Mr. Stark is required to expend additional time and expense on this oppressive lawsuit.

Respectfully submitted,

/s/ James L. Hardiman________________ James L. Hardiman (0031043) TRIAL COUNSEL jhardiman@acluohio.org Jennifer Martinez Atzberger (0072114) jatzberger@acluohio.org Drew S. Dennis (0089752) ddennis@acluohio.org American Civil Liberties Union of Ohio Foundation 4506 Chester Avenue Cleveland, OH 44103 Ph: (216) 473-2220 Fax: (216) 473-2210 David E. Halperin (District of Columbia 426078) Pro hac vice motion pending 1530 P Street NW Washington DC 20005 davidhalperindc@gmail.com Ph: (202) 905 3434 Fax: (202) 362 8512

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Case: 2:13-cv-01066-GLF-TPK Doc #: 13 Filed: 11/01/13 Page: 20 of 20 PAGEID #: 112

IN THE UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

Robert E. Murray, et al., Civil Action No. 2:13-cv-1066 Plaintiffs, Judge Gregory L. Frost v. Magistrate Judge Terence Kemp The Huffington Post.com, Inc., et al., Defendants.

[Proposed] ORDER This matter having come before the Court on Defendant Wilfred Michael Stark IIIs Motion to Dismiss and the opposition thereto, and the Court having considered the matter, it is hereby ORDERED that Defendant Wilfred Michael Stark IIIs Motion to Dismiss is GRANTED, and this action is hereby DISMISSED WITH PREJUDICE.

SO ORDERED. Dated: _______________ United States District Judge Copies to: _______________________________