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Rose v. Dowd

United States District Court, E.D. Pennsylvania

July 14, 2017

PETER ROSE, Plaintiff,
v.
JOHN DOWD, Defendant.

          MEMORANDUM

          TUCKER, C.J.

         This action arises out of Plaintiff Peter Rose's allegations that, in part, Defendant John Dowd defamed Plaintiff when Defendant made certain on-air statements during a radio broadcast. Presently before the Court are Defendant John Dowd's Motion to Dismiss Complaint (Doc. 12), Plaintiff Peter Rose's Memorandum of Law in Opposition to Defendant John Dowd's Motion to Dismiss (Doc. 16), and the Reply Brief in Support of Defendant John Dowd's Motion to Dismiss Complaint (Doc. 18). Upon careful consideration of the Parties' submissions and exhibits, and for the reasons set forth below, Defendant's Motion is GRANTED IN PART AND DENIED IN PART.

          I. FACTUAL AND PROCEDURAL BACKGROUND

         Because the Court writes primarily for the parties, it sets forth only those facts that are relevant to its conclusion. Plaintiff Peter Rose is a former Major League Baseball ("MLB") player and manager. (Compl. ¶ 5.) In 1984, Rose became a player-manager for the Cincinnati Reds (the "Reds"). (Compl. ¶ 10.) Rose retired as a player in 1986 but remained a manager until August 1989. (Compl. ¶ 11.)

         In 1989, MLB began investigating Rose to determine whether he engaged in conduct not in the best interests of baseball. (Compl. ¶ 13.) In February 1989, the Office of the Commissioner of MLB engaged John Dowd, a practicing attorney, to act as special counsel to confidentially investigate Rose. (Compl. ¶¶ 14-15.) Dowd interviewed a number of people, including Michael Bertolini. (Compl. ¶¶ 16-17.)

         In May 1989, Dowd issued the "Dowd Report, " in which he concluded that Rose had bet on the Reds from 1985 to 1987 in violation of Major League Rule 21. (Compl. ¶ 18.) In August 1989, the investigation ended in a confidential agreement between Rose and the Office of the Commissioner of MLB, and Rose accepted a disciplinary sanction. (Compl. ¶ 19.) As part of this sanction, Rose was placed on the ineligible list and effectively banned from working or participating in MLB events. (Compl. ¶ 19.)

         On June 23, 2015, sports radio show host Jim Rome interviewed Dowd. CBS Sports Radio and its affiliate radio stations broadcast the interview. (Compl. ¶ 41.) During the interview Dowd stated:

It's just this terrible arrogance that affects this guy and his people and you know, shame on him; he's now been caught bare ass in front of this commissioner, and I love it. And now, he's standing out there naked .... He had Bertolini running young women down in Florida for his satisfaction, so you know he's just not worthy of consideration or to be a part of the game; this is not who we want in the game of baseball.

(Compl. ¶ 42.) Rose claims Dowd's comment about Bertolini "running young women" was intended to harm Rose. (Compl. ¶ 43.)

         On July 13, 2015, Bill Werndl, a radio sports broadcaster with the AM radio station WCHE 1520 in West Chester, Pennsylvania, interviewed Dowd by telephone. (Compl. ¶¶ 45- 47.) The interview was broadcast to WCHE 1520's listening audience. (Compl. ¶ 47.) During the interview, Dowd was asked, "do you find [Rose] a likeable person? Not a likeable person? Do you see the window inside his soul and forget about all this [betting]?" (Compl. ¶ 48.) Dowd responded:

No. I've been asked that question - whether he had any moral bearings at all. And the answer is no. You know, there is a lot of other activity. He constantly violated the concept of laws. Michael Bertolini, you know, told us that he not only ran bets but he ran young girls for him down at spring training, ages 12 to 14. Isn't that lovely. So that's statutory rape every time you do that. So, he's not . . . he's just not, you know, the kind of person that I find very attractive. He's a street guy.

(Compl. ¶ 48.)

         The station broadcast the interview and posted it on the station's website. (Compl. ¶ 49.) Rose argues that Dowd's statements that Bertolini "ran young girls" for Rose were false and malicious accusations of statutory rape that were designed to injure him. (Compl. ¶¶ 50-51.) Dowd's statements were republished and reported. (Compl. ¶¶ 51, 56.)

         MLB executive John McHale, Jr. advised Rose's representatives that MLB had no information to support Dowd's accusation that Bertolini "ran young girls" for Rose. (Compl. ¶ 53.) In August 2015, Bertolini's attorney released a public statement that:

[Bertolini] categorically denies the allegation. He never did any such thing, nor did Pete Rose, nor did Mike say anything to Dowd about the subject. The story is libelous to him and to Rose and should be retracted immediately.

(Compl. ¶ 55.)

         The Skechers Agreement

         In April 2014, Rose entered into an agreement with Skechers for Rose to do an advertising campaign, which would be launched by a television commercial. (Compl. ¶ 84.) The contract term was from October 1, 2014 to December 31, 2015, and included an extension option. (Compl. ¶ 85.) A Skechers commercial featuring Rose began airing in the months preceding the National Football League's Super Bowl XLIX and aired during the Super Bowl on February 1, 2015. (Compl. ¶¶ 86-87.) Rose contends that the commercial was successful, and as a result, another Skechers commercial featuring Rose was under consideration. (Compl. ¶ 89.) Ultimately, Skechers did not exercise its extension option. (Compl. ¶¶ 90-91.) Rose alleges that he would have earned at least $250, 000.00 had Skechers exercised its extension option and launched another commercial. (Compl. ¶ 90.)

         On July 6, 2016, Rose filed a complaint against Dowd for defamation per se (Count 1), defamation (Count 2), and tortious interference with existing or prospective contractual relationship (Count 3). On August 9, 2016, Defendant moved to dismiss Plaintiffs Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. On December 19, 2016, the Court held Oral Argument on Defendant's Motion.

          II. STANDARD OF REVIEW

         Federal Rule of Civil Procedure 12(b)(6) permits a court to dismiss a complaint for "failure to state a claim upon which relief can be granted." To survive a motion to dismiss under Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal,556 U.S. 662, 678 (2009) (quoting Bell Atlantic Corp. v. Twombly,550 U.S. 544, 570 (2007)). A claim is plausible on its face "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. ...


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