Hobgood v. Northwest Arkansas Newspapers, LLC

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Daniel Hobgood
v. 	Case No. 20-cv-156-LM
Northwest Arkansas Newspapers, LLC,
d/b/a Arkansas Online
REPORT AND RECOMMENDATION
Plaintiff James Daniel Hobgood has sued the defendant,
Northwest Arkansas Newspapers, LLC, d/b/a Arkansas Online
(“Arkansas Online”) for defamation. 	Hobgood’s complaint (Doc.
No. 1) has been referred to the undersigned magistrate judge for
preliminary review, pursuant to LR 4.3(d) and 28 U.S.C. §
1915(e)(2). 	For the reasons that follow, the district judge
should dismiss plaintiff’s complaint because plaintiff has
failed to state a cause of action.
I. 	Preliminary Review Standard
The magistrate judge conducts a preliminary review of
complaints, like the plaintiff’s, which are filed in forma
pauperis. 	See LR 4.3(d). 	The magistrate judge may recommend to
the district judge that one or more claims be dismissed if,
among other things, the court lacks jurisdiction, a defendant is
immune from the relief sought, or the complaint fails to state a
claim upon which relief may be granted. 	See 28 U.S.C. §
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1915(e)(2); LR 4.3(d). 	In conducting its preliminary review,
the court construes pro se complaints liberally. 	See Erickson
v. Pardus, 551 U.S. 89, 94 (2007) (per curiam). 	The complaint
must contain “sufficient factual matter, accepted as true, to
‘state a claim to relief.’” 	Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). 	Here, the complaint fails to
state a claim upon which relief may be granted.
II. 	Background1
In 2016, plaintiff pled guilty in federal court to
cyberstalking, see 18 U.S.C. § 2261A(2), preserving his right to
appeal the district court’s denial of his motion to dismiss the
indictment. 	Complaint (Doc. No. 1) at 3; Hobgood II, 868 F.3d
at 746. 	He was sentenced to one year and one day in prison and
ordered to pay the victim $2387.91 in restitution. 	Id.
1The relevant facts set forth herein, taken as true for the
purposes of preliminary review, are derived from the complaint,
the Eighth Circuit Court of Appeals’s affirmance of Hobgood’s
conviction, 	United States v. Hobgood, 868 F.3d 744 (8th Cir.
2017) (“Hobgood II”), and from the docket of Hobgood’s criminal
proceedings, U.S. v. Hobgood, Cr. No. 5:15CR50083-001 (W.D.
Ark., indictment filed Oct. 28, 2015) (“Hobgood I”), and U.S. v.
Hobgood, Cr. No. 5:17-cr-50024-001 (W.D. Ark., complaint filed
March 6, 2017) (“Hobgood III”), of which the court takes
judicial notice. 	See Aponte–Torres v. Univ. of P.R., 445 F.3d
50, 55 (1st Cir. 2006) (court in determining if complaint meets
notice pleading standard may consider facts properly subject to
judicial notice); see also Maher v. Hyde, 272 F.3d 83, 86 (1st
Cir. 2001) (federal courts may take judicial notice of
proceedings in other courts if relevant to matters at hand).
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In May 2017, while Hobgood’s appeal of his cyberstalking
conviction was pending, Hobgood pleaded guilty to criminal
contempt, in violation of 18 U.S.C. § 401(3). 	See Hobgood III,
Plea Agreement (Doc. No. 11) filed May 19, 2017. 	The contempt
proceedings stemmed from Hobgood’s violation of his conditions
of release pending appeal of Hobgood I.
Following both of Hobgood’s convictions, prosecutors
transmitted statements about the case that received media
coverage. 	Complaint (Doc. No. 1) at 6. 	Defendant Arkansas
Online, a news organization based in Fayetteville, Ark.,
published two items that plaintiff claims defamed him. 	First,
in September 2016, Arkansas Online published an article entitled
“Man who sent letter claiming woman in Arkansas was stripper,
escort, gets prison.” 	Complaint (Doc. No. 1) at 8-9. 	He
asserts that the accompanying article
mindlessly copied many of the government’s lies, which
made me look like I had been dishonest, instead of
honest. 	The article also incorrectly indicated that
[the target of his cyberstalking] had broken off our
relationship instead of me, implying that I had done
what I did because of the relationship’s dissolution.
This is demonstrably false. Finally, the article
inaccurately portrayed that I had admitted guilt to
what the government falsely alleged.
Id. at 9.
Next, following plaintiff’s apprehension for violating his
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conditions of release pending appeal in Hobgood II,2
Arkansas Online published an article that, Hobgood claims,
contained false information. 	Hobgood takes specific issue
with:
1) a headline reading “Ongoing cyber stalking lands
Virginia man jail time;
2) use of an unflattering photograph constituting an
invasion of his privacy;
3) including the following first sentence: “A Virginia man
was ordered jailed by a federal judge Monday for continuing
to harass a woman on social media even after he had pleaded
guilty to her cyber stalking.”
Complaint (Doc. No. 1) at 9.
III. Legal Analysis
Under New Hampshire law, “[t]o establish defamation, there
must be evidence that a defendant . . . publish[ed] . . . a
false and defamatory statement of fact about the plaintiff to a
third party.” 	Independent Mech. Contractors, Inc. v. Gordon T.
Burke & Sons, Inc., 	635 A.2d 487, 492 (N.H. 1993) (citing
2At the end of Hobgood’s hearing for violating his release
conditions pending appeal, the court requested that the United
States Attorney’s office prosecute Hobgood for criminal
contempt, the proceeding which eventually became Hobgood III.
See Hobgood I, Order Revoking Bond and Initiating Criminal
Contempt Proceedings (Doc. No. 61) (Order entered Jan. 25,
2017).
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Restatement (Second) of Torts § 558 (1977)).3 	The court will
address each instance of alleged defamation separately.
A. September 2016 publication
Plaintiff alleges that the September 2016 Arkansas Online
article was “demonstrably false.” 	Complaint (Doc. No. 1) at 9.
This assertion of falsity, however, is undercut by the facts
underlying Hobgood’s 2016 guilty plea. 	The court in Hobgood II
described the facts to which Hobgood stipulated as part of his
plea:
Hobgood and the government stipulated to the following
facts. In September 2014, KB met Hobgood and had a
brief romantic relationship with him in Richmond,
Virginia. KB began rebuffing Hobgood's advances, and
in January 2015, she moved to Arkansas. KB alleges
that Hobgood, still living in Richmond, began
contacting her via e-mail, Facebook messages, and
third-party text messages to demand that she apologize
to him in person for her treatment of him. KB did not
do so.
KB alleges that Hobgood then created publicly
accessible social media accounts in which he portrayed
KB as an exotic dancer and prostitute. Hobgood also
sent letters to KB's employer through the mail and
over the Internet claiming that KB was an exotic
dancer and prostitute. Hobgood contacted KB and KB's
family by e-mail, stating that unless she apologized
to him, he would continue to make these
representations. According to KB, Hobgood's actions
caused her substantial emotional distress and
3The court need not decide at this stage of the case whether
New Hampshire law applies to this case. 	It is beyond serious
dispute that a plaintiff in a defamation suit must, at a
minimum, allege that a defendant’s allegedly defamatory
statement was false, regardless of the forum.
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contributed to her need for short-term
hospitalization.
Law enforcement investigators eventually contacted
Hobgood about his conduct. Hobgood admitted sending
KB, her family, and her employer communications by e-
mail, telephone, and mail, in which he stated that KB
was an exotic dancer. Hobgood told investigators that
he would not stop contacting KB until he caused her to
lose her job, or caused her to “repent” for the
unspecified wrong that she committed against him.
Investigators also were able to corroborate that
Hobgood was responsible for the publicly accessible
social media accounts that portrayed KB as an exotic
dancer and prostitute.
Hobgood II, 868 F.3d at 746 (emphasis added). 	The court’s
description echoes the language in Hobgood’s signed plea
agreement, in which he concedes that “the Government could prove
[those] facts beyond a reasonable doubt.” 	Hobgood I, Cr. No.
5:15CR50083-001, Plea Agreement (ECF Doc. No. 27) (W.D. Ark.
April 13, 2016) (“Plea Agreement”). 	Given the specific content
of his signed plea agreement, Hobgood’s defamation claim based
on the September 2016 article is barred by the doctrine of
judicial estoppel.
“Judicial estoppel is an equitable doctrine that prevents a
litigant from taking a litigation position that is inconsistent
with a litigation position successfully asserted by him in an
earlier phase of the same case or in an earlier court
proceeding.” 	RFF Family P’ship, LP v. Ross, 814 F.3d 520, 527
(1st Cir. 2016). 	Three conditions must be satisfied to impose
judicial estoppel: 	(1) the earlier and later litigation
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positions of the party to be estopped must be clearly
inconsistent; (2) that party must have persuaded the court to
adopt and rely on the earlier position; and (3) that party must
stand to gain an unfair advantage if the new position is adopted
by the court. 	Id. at 528. 	“Courts typically invoke judicial
estoppel when a litigant tries to play fast and loose with the
courts.” 	Id. at 527-28.
Here, all of the criteria our Court of Appeals set forth in
RFF Family P’ship are satisfied. 	First, the statement that
plaintiff now claims is false is directly contradicted by the
facts he admitted the government could prove beyond a reasonable
doubt in his criminal case. 	Next, the court in his criminal
case undoubtedly relied on plaintiff’s prior position in
accepting the plea agreement which, by its terms, was not
binding on the court. 	Plea Agreement ¶ 24. 	Finally, plaintiff,
by essentially repudiating his signed plea agreement, would gain
an unfair advantage if he was permitted to prosecute a
defamation lawsuit against a defendant whose challenged
statement is, according to the public record, accurate. 	See
Robinson v. Globe Newspaper Corp., 26 F. Supp. 2d 195, 200 (D.
Me. 1998) (applying judicial estoppel to plaintiff who pleaded
guilty in prior case and later sued newspaper for defamation).
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B. 	January 2017 Publication
Plaintiff asserts that neither the headline nor the text of
the stories following his 2017 apprehension was factually
accurate. 	The public record flatly contradicts this claim. 	As
described above, Hobgood was ordered to jail by a federal judge
for continuing to harass a woman on social media during the
pendency of his appeal after his prior guilty plea in Hobgood I.
The transcript of his revocation hearing (conducted the day
before the publication at issue) contains testimony that
Hobgood, using a Facebook account he created under a fictitious
name – his father’s name spelled backwards – posted derogatory
comments about KB on a Facebook page created by KB’s wedding
photographer. 	He also attached links to web pages he created
that further denigrated KB’s character. 	See Hobgood II,
Transcript of Bond Revocation Hearing (Doc. No. 62), (Jan. 23,
2017).
Not only does the transcript of the proceedings demonstrate
that the challenged publication was not inaccurate, but
Hobgood’s subsequent guilty plea reinforces that finding. 	In
his signed guilty plea, Hobgood agreed that the following facts
are “true and undisputed”:
d. 	On October 10, 2016, [investigators for the
U.S. Department of Homeland Security were] contacted
by [K.B.] and advised that after her wedding, on or
about October 8, 2016, her photographer posted
pictures of the ceremony on her Facebook and Instagram
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business profile. Shortly after uploading the images,
a user profile utilizing the name "Semaj Dranoel"
commented, "Yeah, 'love."' and then attached a link
directing to "The Dirty" website of walmart-executive-
[KB]-leads-double-life. An additional post by "Semaj
Dranoel", captured by the Victim, on the
photographer's account commented, "Maybe she'll be
more faithful now and stop lying about being raped and
such. IDK, I doubt it." and then again attached a link
to "The Dirty" website of walmart-executive-[KB]-
leads-double-life.
e. A continued review of the "Semaj Dranoel" user
profile by H.S.I. found several other posts on or
about October 10, 2016 referencing the victim's
wedding photos. Those comments and postings included
additional references to [KB]’s wedding, including Mr.
Hobgood's predictions the marriage would fail due to
[KB's] lack of faithfulness, as well as links to The
Dirty website. Postings were also made by Mr. Hobgood
to [KB]' s grandmother's Facebook page including
comments similar to those mentioned above.
f. 	On November 9, 2016, H.S.I. received
documents subpoenaed from Facebook which showed the
"Semaj Dranoel" profile was registered to Comcast
Cable out of Richmond, Virginia during the time
periods of the offending posts.
g. 	On December 7, 2016, H.S.I. was again
contacted by the Victim and alerted to additional
online postings, publicly available through the
"phantomforjustice.blogspot.com". There were two
stories or blogs posted on this site entitled "The
Injustice of Our Justice System" and "The Case Against
[KB] (and her accomplices)". Both stories or biogs
were written as an interview piece where HOBGOOD
provided quoted material of his ongoing criminal
proceedings, the government officials involved and
alleged lies and manipulation portrayed by the Victim.
These entries were, in fact written by Mr. Hobgood,
under the pseudonym, Randall Stephens, a character
from the movie, "The Shawshank Redemption." 	Through
its investigation, H.S.I. identified that these
postings had been made through Comcast, and the LP.
address located at the address in Manakin Sabot,
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Virginia where HOBGOOD lived at the time of the
postings.
Hobgood III, Plea Agreement (Doc. No. 11), (May 9, 2017).
Hobgood did not appeal his contempt conviction.4
As with the defamation claim based on the 2016 publication,
application of judicial estoppel to Hobgood’s own sworn
admissions foreclose him from making arguments to the contrary
in a subsequent defamation suit.5 	RFF Family P’ship, supra;
Robinson, supra.
IV. Conclusion
For the reasons set forth herein, the undersigned
recommends that the district judge assigned to this case dismiss
it for failure to state a claim upon which relief can be
granted. 	Moreover, given the undisputed public record, there is
no realistic possibility that amending the complaint would alter
this outcome.
Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
4The district court rejected Hobgood’s habeas petition
seeking to overturn both convictions. 	See Hobgood I, Opinion
and Order (Doc. No. 73) (Oct. 30, 2018).
5There is no legal authority for Hobgood’s apparent claim
that the publication of “an unflattering picture” accompanying a
story about an arrest can support a defamation claim.
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R. Civ. P. 72(b)(2). 	The fourteen-day period may be extended
upon motion. 	Failure to file objections within the specified
time waives the right to appeal the district court’s order. 	See
Santos-Santos v. Torres-Centeno, 842 F.3d 163, 168 (1st Cir.
2016).
__________________________
Andrea K. Johnstone
United States Magistrate Judge
March 3, 2020
cc: 	James Daniel Hobgood
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