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BEVERLY ENTERPRISES v. TRUMP

March 5, 1998

BEVERLY ENTERPRISES, INC. and DONALD L. DOTSON, Plaintiffs,
v.
ROSEMARY TRUMP and THE SERVICE EMPLOYEES INTERNATIONAL UNION, LOCAL 585, Defendants.



The opinion of the court was delivered by: LANCASTER

MEMORANDUM

 LANCASTER, J.

 March 5, 1998

 This is an action in defamation. Plaintiffs, Beverly Enterprises Inc. ("Beverly"), and its Senior Vice-President for Labor and Employment, Donald L. Dodson, allege that defendant, Rosemary Trump, defamed them on two separate occasions: first, at a political rally for the Dole-Kemp presidential campaign in August, 1996; and second, at a Town Hall meeting at the Allegheny County Courthouse in May, 1997. Plaintiffs seek money damages.

 Defendants have filed a motion to dismiss under Fed.R.Civ.P. 12(b)(6). Defendants contend that the statements Ms. Trump allegedly made at the Dole-Kemp rally are, as a matter of law, incapable of defamatory meaning. They further contend that the statements she made at the Town Hall meeting enjoy absolute testimonial immunity.

 For the reasons that follow, the motion will be granted.

 I. STANDARD OF REVIEW

 When the court considers a Rule 12(b)(6) motion to dismiss, the issue is not whether the plaintiff will prevail in the end or whether recovery appears to be unlikely or even remote. The issue is limited to whether, when viewed in the light most favorable to the plaintiff, and with all well-pleaded factual allegations taken as true, the complaint states any valid claim for relief. See ALA, Inc. v. CCAIR, Inc., 29 F.3d 855, 859 (3d Cir. 1994).

 In deciding a 12(b)(6) motion to dismiss, courts consider the allegations contained in the complaint, exhibits attached to the complaint, and matters of public record. See 5A Wright & Miller, Federal Practice and Procedure § 1357 n.40. A court may also consider any irrefutably authentic documents that a defendant attaches as an exhibit to the motion to dismiss if the plaintiff's claim is based in whole or in part on the documents. See Pension Benefit Guar. Corp. v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir. 1993).

 Accordingly, in deciding defendants' motion, the court has considered, in addition to plaintiffs' complaint, a copy of the Federal Procurement and Assistance Integrity Act ("HR 1624"). The court has also considered a video-tape of the May, 1997, Town Hall meeting at which Ms. Trump is alleged to have made some of the defamatory statements on which plaintiffs' claim is based. Both of these items were attached to the motion to dismiss.

 II. DISCUSSION

 A. The Dole-Kemp Rally

 These defamation claims stem from a long-standing acrimonious labor dispute between Beverly, the nation's largest private provider of nursing home care, and the Service Employees International Union ("SEIU"), whose local affiliates represent a substantial number of Beverly's employees. Rosemary Trump is the president of Local 585 of the SEIU. The dispute has led to a series of strikes, lockouts, and the filing of charges and counter charges of unfair labor practices with the National Labor Relations Board. Defendants contend that the statements Ms. Trump allegedly made at the Dole-Kemp rally were uttered in the midst of the labor dispute, were mere rhetorical insults not to be taken literally, and are not actionable as defamation. The court agrees.

 In a defamation claim, the court must first determine, as a matter of law, whether the publication is capable of defamatory meaning. See Thomas Merton Center v. Rockwell Int'l Corp., 497 Pa. 460, 442 A.2d 213, 215-16 (Pa. 1981). The burden is on the complaining party to establish that the publication being challenged is defamatory. If the court concludes that the publication is not capable of defamatory meaning, the case ...


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