Hobgood v. Hearst Communications Inc.

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
James Daniel Hobgood
v. 	Case No. 19-cv-642-LM
Hearst Communications, Inc.,
d/b/a/ 40/29 News
REPORT AND RECOMMENDATION
Plaintiff James Daniel Hobgood has sued the defendant,
Hearst Communications, Inc., d/b/a 40/29 News (“Hearst”) 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
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claim upon which relief may be granted. 	See 28 U.S.C. §
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, 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
1 The relevant facts set forth herein, taken as true for the
purposes of preliminary review, are derived from the Complaint,
the Eight 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 trial court’s 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”), 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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pay the victim $2387.91 in restitution. 	Id. 	Following
Hobgood’s conviction, prosecutors transmitted statements about
the case that received media coverage. 	Complaint (Doc. No. 1)
at 6. 	Subsequently, defendant 40/29, a television station in
Fort Smith, Arkansas, published the following statement on its
website and Facebook page, which Hobgood claims is false and
defamatory:
Prosecutor’s Office: A woman stopped seeing James
Hobgood and moved to Arkansas. 	So, he went online to
make it look like she was an exotic dancer in an
attempt to get her fired unless she “repented for the
perceived wrong she committed against him.”
Id. at 7.2
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
Restatement (Second) of Torts § 558 (1977)).3
2 Although plaintiff devotes much of his complaint to contesting
the underlying facts of his conviction, his defamation claim is
based only on the above quoted language.
3 The 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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Plaintiff alleges that “not one factual assertion [in
the 40/29 report] was accurate. 	Complaint (Doc. No. 1) at
8. 	This assertion of falsity, however, is undercut by the
facts underlying plaintiff’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
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
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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 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
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.
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Here, all of the criteria our Court of Appeals set forth in
Ross 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).
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.
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Any objections to this Report and Recommendation must be
filed within fourteen days of receipt of this notice. 	See Fed.
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
October 18, 2019
cc: 	James Daniel Hobgood
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