United States District Court, E.D. Pennsylvania
case involves allegations of defamation arising from a 2013
biography entitled Norman Mailer: A Double Life.
From 1983 to 1992, Plaintiff Carole Mallory was romantically
involved with the late American writer Norman Mailer. In
2013, six years after Mailer's death, Defendant Simon and
Schuster, Inc. published Norman Mailer: A Double
Life, written by Defendant J. Michael Lennon. The
biography “captures Mailer in all his sharp
complexities and shows us how he self-consciously invented
and reinvented himself throughout his lifetime.” J.
Michael Lennon, Norman Mailer: A Double Life, inside
cover (2013). Though the biography discusses Mallory and
Mailer's relationship, Mallory was never contacted to
review the book before publication. She now brings this suit
for defamation, alleging that the biography mischaracterized
her relationship with Mailer as being “strictly
sexual” when in fact the two were in a
“long-time, loving relationship.” (Doc. No. 61 at
¶ 10.) Defendants have filed a Motion for Summary
Judgment, which is now ripe for a decision. (Doc. Nos.
Carole Mallory has worked as a supermodel, writer, and
journalist. (Doc. No. 61 at ¶ 10.) She currently resides
in Pennsylvania. (Id. at ¶ 3.) In the 1970s and
1980s, she appeared in films including The Stepford
Wives. (Doc. No. 101 at 4.) During the 1980s and 1990s,
Mallory had an eight-year affair with Norman Mailer.
(Id. at 6.) Mallory is the author of a 2009 memoir
titled Loving Mailer, which chronicles the affair.
(Id. at 5.) Mallory and Mailer's relationship is
at the heart of the instant lawsuit.
Mailer: A Double Life (the “Biography”) was
written by Defendant J. Michael Lennon and published by
Defendant Simon & Schuster, Inc. in 2013. (Id.
at 6.) According to the inside cover of the book:
Michael Lennon knew Mailer for thirty-five years, and in
writing this biography, he has had the cooperation of
Mailer's late widow, Norris Church,  his ex-wives, and
all of his children, as well as his sister, Barbara. He also
had access to Mailer's vast, unpublished correspondence
and papers, and he interviewed dozens of people who knew
Mailer. Norman Mailer: A Double Life gives us the
man in full, a remarkable and unique figure in the context of
Michael Lennon, Norman Mailer: A Double Life (2013).
contests her portrayal in the Biography. She alleges that the
Biography suggests false perceptions of her relationship with
Norman Mailer, implying that their relationship was based
solely on sex, money, and publicity. (Doc. No. 101 at 15.)
She further claims that Defendant Lennon never attempted to
contact her to confirm facts regarding her relationship with
Mailer. (Id. at 13.) According to Mallory, if Lennon
had made an effort to interview her, she would have informed
him that various statements made in the Biography are false.
(Doc. No. 61 at ¶ 13.) Specifically, Mallory objects to
Lennon's portrayal of her as a “venal harlot”
who seduced celebrities to advance her career and who was
only interested in Mailer for his wealth and professional
notes that the Biography has been published to third parties
and is available for purchase both in stores and online.
(Id. at ¶ 14.) She claims that as a result of
Defendants' “malicious publication, ” her
reputation has been diminished and she has suffered severe
emotional distress and financial loss. (Id. at
October 6, 2014, Mallory instituted this action pro se
against Defendants Simon and Schuster, Inc. (“S & S
Publishers”), Ivan Fisher, Esquire (Mailer's
lawyer), author J. Michael Lennon, the estate of Norman
Mailer, the estate of Norris Church, and Jack Scovil
(Mailer's literary agent). (Doc. No. 1.) As a pro se
litigant, she filed an Amended Complaint on October 9, 2014
(Doc. No. 3), and a Second Amended Complaint and then a Third
Amended Complaint on November 3 and 5, 2014, respectively
(Doc. Nos. 12, 7).
filed a Motion to Dismiss on January 16, 2015. (Doc. No. 37.)
On May 11, 2015, the Court held a hearing on the Motion.
(Doc. No. 57.) Mallory had obtained counsel prior to the
hearing, and her lawyer appeared on her behalf. On June 17,
2015, Mallory filed a counseled Fourth Amended Complaint
(“FAC”), which became the operative pleading in
this case. (Doc. No. 61.) In Count I of the FAC, Mallory set
forth four separate theories of defamation: (1) defamation;
(2) defamation per se; (3) false light; and (4) commercial
disparagement-injurious falsehood. (Id. at 6.) On
July 9, 2015, Defendants filed a Motion to Dismiss the
(Doc. No. 65.) Mallory filed a Response in Opposition to the
Motion, and Defendants filed a Reply. (Doc. Nos. 70, 72.) On
March 10, 2016, by Order and Opinion, the Motion to Dismiss
was granted in part and denied in part. (Doc. Nos. 75-76.)
Plaintiff's commercial disparagement-injurious falsehood
claim was dismissed in its entirety. (Id.) In
addition, certain statements Plaintiff relied upon to support
a defamation claim were found to be incapable of defamatory
meaning, and therefore part of this claim was also dismissed.
(Id.) Thereafter, Defendants S & S Publishers
and J. Michael Lennon filed an answer to the FAC. (Doc. No.
discovery was completed, Defendants filed a Motion for
Summary Judgment. (Doc. Nos. 93-94.) On January 31, 2017,
Plaintiff filed a Response in Opposition to the Motion. (Doc.
No. 101.) On February 14, 2017, Defendants filed a Reply.
(Doc. No. 106.)
summary judgment is an extraordinary remedy. Summary judgment
is appropriate “if the movant shows that there is no
genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.” Fed.R.Civ.P.
56(a). In reaching this decision, the court must determine
whether “the pleadings, depositions, answers to
interrogatories, admissions, and affidavits show there is no
genuine issue of material fact and that the moving party is
entitled to judgment as a matter of law.” Favata v.
Seidel, 511 F. App'x 155, 158 (3d Cir. 2013)
(quoting Azur v. Chase Bank, USA, Nat'l
Ass'n, 601 F.3d 212, 216 (3d Cir. 2010) (quotation
omitted)). A disputed issue is “genuine” only if
there is a sufficient evidentiary basis on which a reasonable
jury could find for the non-moving party. Kaucher v. Cty.
of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
(1986)). For a fact to be considered “material, ”
it “must have the potential to alter the outcome of the
case.” Favata, 511 F. App'x at 158. Once
the proponent of summary judgment “points to evidence
demonstrating no issue of material fact exists, the
non-moving party has the duty to set forth specific facts
showing that a genuine issue of material fact exists and that
a reasonable factfinder could rule in its favor.”
Id. (quoting Azur, 601 F.3d at 216
(internal quotation marks omitted)).
deciding a motion for summary judgment, “[t]he evidence
of the nonmovant is to be believed, and all justifiable
inferences are to be drawn in his favor.” Id.
(quoting Chambers ex rel. Chambers v. Sch. Dist. of
Philadelphia Bd. of Educ., 587 F.3d 176, 181 (3d Cir.
2009) (quotation omitted)). The Court's task is not to
resolve disputed issues of fact, but to determine whether
there exist any factual issues to be tried.
Anderson, 477 U.S. at 247-49. Whenever a factual
issue arises which cannot be resolved without a credibility
determination, at this stage the Court must credit the
non-moving party's evidence over that presented by the
moving party. Id. at 255. If there is no factual
issue, and if only one reasonable conclusion could arise from
the record regarding the potential outcome under the
governing law, summary judgment must be awarded in favor of
the moving party. Id. at 250.
noted above, Plaintiff alleges claims of defamation,
defamation per se, and false light. Each claim will be
discussed in turn, starting with the defamation claim.
Mallory's Defamation Claim
argue in the Motion for Summary Judgment that Plaintiff's
defamation claim should be dismissed for two reasons. (Doc.
No. 94 at 26.) First, Defendants contend that the two
statements alleged to be defamatory are not capable of
defamatory meaning as a matter of law. (Id.) Second,
Defendants argue that Plaintiff has failed to identify
evidence showing a genuine issue of material fact regarding
whether Defendants acted with actual malice. (Id. at
26-27.) For reasons that follow, this Court agrees and will
grant summary judgment on the defamation claim.
successfully establish a claim of defamation,  a plaintiff has
the burden of proving:
(1) The defamatory character of the communication;
(2) Its publication by the defendant;
(3) Its application to the plaintiff;
(4) The understanding by the recipient of its defamatory
(5) The understanding by the recipient of it as intended to
be applied to the plaintiff;
(6) Special harm resulting to the plaintiff from its