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Alexander v. The Times-Picayune L.L.C.

Court of Appeals of Louisiana, Fourth Circuit

May 31, 2017

DWAYNE G. ALEXANDER
v.
THE TIMES-PICAYUNE L.L.C; DAVID HAMMER

         APPEAL FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-11890, DIVISION "M" Honorable Paulette R. Irons, Judge.

          Robert G. Harvey, Sr. LAW OFFICE OF ROBERT G. HARVEY, SR., COUNSEL FOR PLAINTIFF/APPELLANT.

          Loretta G. Mince Molly L. Wells FISHMAN HAYGOOD, L.L.P., COUNSEL FOR DEFENDANT/APPELLEE.

          Court composed of Chief Judge James F. McKay, III, Judge Roland L. Belsome, Judge Terrel J. Broussard, Pro Tempore.

          ROLAND L. BELSOME JUDGE.

         Dwayne Alexander appeals the trial court's granting of Defendants' Special Motion to Strike and resulting dismissal of the petition with prejudice. For the reasons that follow, the judgment is affirmed.

         Statement of the Case

         Mr. Alexander is a former Private Investigator ("PI"). The Times-Picayune published two news articles written by reporter David Hammer. The first news article at issue was published on July 2, 2009, and reported that the Louisiana State Board of Private Investigators (the "Board") issued a cease and desist order to Mr. Alexander for his failure to maintain a PI license. The October 24, 2011 news article reported that Mr. Alexander had been arrested in St. Charles Parish for providing PI services without possessing a valid license.

         Mr. Alexander filed suit against Defendants on December 16, 2015, alleging that he was defamed by these news articles. Defendants responded by filing a Special Motion to Strike the petition under La. C.C.P. art. 971. Defendants' motion argued that Mr. Alexander could not establish a probability of success because his claims had prescribed. The trial court granted the motion on the grounds of prescription and dismissed the claims.

         Mr. Alexander filed a motion for new trial. Defendants filed a motion to fix attorneys' fees and costs. Mr. Alexander's motion for new trial was denied and Defendants' motion was granted. It is this judgment from which Plaintiff appeals.

         Issues on Appeal

         Mr. Alexander contends that the trial court erred in granting Defendants' Special Motion to Strike. He claims that La. C.C.P. art. 971 did not apply to his claims because he is not a public official or figure and the claims do not relate to a public issue. He also argues that even if Article 971 did apply, the court improperly granted the motion on the basis of prescription. He further asserts that the trial court was required to give him the opportunity to amend his petition before dismissing his claims. Finally, he claims that attorney's fees and costs were improperly awarded to Defendants.

         Standard of Review

         "Appellate courts review a trial court's ruling on a special motion to strike using the de novo standard of review because it involves an issue of law; the issue on review is thus whether the trial court was legally correct."[1]

         Law and Discussion

         Applicability of the Special Motion to Strike to Mr. Alexander's Claims

         On appeal, Mr. Alexander argues that the La. C.C.P. art. 971 Special Motion to Strike does not apply to his claims because he is not a public official or public figure and that his claims do not relate to a public issue.

         La. C.C.P. art. 971(A)(1) states that "[a]cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim." The purpose of the Article 971 Special Motion to Strike is "to screen out meritless claims pursued to chill one's constitutional rights under the First Amendment of the United States Constitution to freedom of speech and press."[2] The party that files the motion "has the initial burden of proving that „the cause of action arises from an act in the exercise of his right of free speech regarding a public issue.'"[3]

         La. C.C.P. art. 971(F)(1)(c) provides that an act in furtherance of a person's right to free speech under the First Amendment includes "[a]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest." The content, form, and context of the statement(s) at issue must be examined to establish if speech is a matter of public concern.[4]

         Defendants asserted in the motion that Mr. Alexander's claims arose from acts in furtherance of the right of free speech and in relation to a public issue. The first article that Mr. Alexander claims he was defamed by was published on July 2, 2009, and reported that the Board had issued a cease and desist order to Mr. Alexander because he failed to maintain a PI license. Specifically the 2009 article focused on Alexander's earnings of more than $522, 000 from the City of New Orleans during 2007 and 2008 for services he conducted after his license lapsed in 2006. The second article at issue was published on October 21, 2011, and ...


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