Kenneth Seaton v. TripAdvisor LLC

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 13a0255p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
-
KENNETH M. SEATON, dba Grand Resort
Plaintiff-Appellant, --
Hotel and Convention Center,
-
No. 12-6122
,
>
-
v.
-
Defendant-Appellee. N-
TRIPADVISOR LLC,
Appeal from the United States District Court
for the Eastern District of Tennessee at Knoxville.
No. 3:11-cv-00549—Thomas W. Phillips, District Judge.
Argued: July 30, 2013
Decided and Filed: August 28, 2013
Before: MOORE, CLAY, and WHITE, Circuit Judges.
_________________
COUNSEL
ARGUED: Todd A. Shelton, JOHN ROGERS LAW GROUP, Greeneville, Tennessee,
for Appellant. Laura R. Handman, DAVIS WRIGHT TREMAINE LLP, New York,
New York, for Appellee. ON BRIEF: Todd A. Shelton, John T. Milburn Rogers, JOHN
ROGERS LAW GROUP, Greeneville, Tennessee, Sidney Gilreath, GILREATH &
ASSOCIATES, Knoxville, Tennessee, for Appellant. Laura R. Handman, James
Rosenfeld, Samuel M. Bayard, DAVIS WRIGHT TREMAINE LLP, New York, New
York, S. Russell Headrick, BAKER, DONELSON, BEARMAN, CALDWELL &
BERKOWITZ, Knoxville, Tennessee, for Appellee.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Plaintiff Kenneth Seaton is the sole
proprietor of Grand Resort Hotel and Convention Center (“Grand Resort”) located in
Pigeon Forge, Tennessee. Defendant TripAdvisor LLC ranked Grand Resort number
1
No. 12-6122 Seaton v. TripAdvisor LLC Page 2
one on its “2011 Dirtiest Hotels” list. Seaton filed suit in Tennessee state court, alleging
claims for defamation and false-light invasion of privacy based on TripAdvisor’s
placement of Grand Resort on the “2011 Dirtiest Hotels” list. After removing the case
to federal court, TripAdvisor filed a motion to dismiss, asserting that Grand Resort’s
placement on the list is protected under the First Amendment. Seaton moved to amend
his complaint, seeking to add two additional claims: “trade libel/injurious falsehood”
and tortious interference with prospective business relationships. The district court
granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend as being
futile. For the reasons set forth in this opinion, we AFFIRM the district court’s grant
of TripAdvisor’s motion to dismiss and its denial of Seaton’s motion to amend his
complaint.
I. BACKGROUND
According to the complaint, Grand Resort has operated since 1982 and has
“established itself as a valuable business in the state and county, [and] it justly and
properly gained and kept the confidence and goodwill of the public generally, including
many tourists that travel to The Great Smoky Mountains for vacation.” R.1-1 (Compl.
at ¶ 5) (Page ID #5). Defendant TripAdvisor “is a worldwide company and subsidiary
of Expedia, Inc. which is in the business of doing surveys of hotels and restaurants
throughout the world.”1 Id. at ¶ 3 (Page ID #4). “On January 25, 2011, . . . TripAdvisor
published a survey which concluded that . . . Grand Resort . . . was the dirtiest hotel in
America.” Id. at ¶ 7 (Page ID #5).
On October 11, 2011, Seaton filed suit against TripAdvisor in the Circuit Court
for Sevier County, Tennessee. In his initial complaint, Seaton alleged, among other
things, that TripAdvisor
published its allegations . . . to cause the public to cease and refrain from
doing business with [Grand Resort] and to cause great injury and
irreparable damage to and to destroy [Grand Resort’s] business and
1
Because the facts used throughout this opinion are taken from Seaton’s complaint and proposed
amended complaint, we caution readers that, in reality, TripAdvisor’s website might function differently
than explained here.
No. 12-6122 Seaton v. TripAdvisor LLC Page 3
reputation by false and misleading means[. TripAdvisor] caused the [list]
to be published in the industry, including CNN, ABC, NBC, and WATE,
defaming [Grand Resort’s] business with unsubstantiated rumors and
grossly distorted ratings and misleading statements to be used by
consumers.
...
TripAdvisor used a rating system which is flawed and inconsistent and
distorts actual performance and perspective.
Id. at ¶ 7, 9 (Page ID #5–6). Although it is not entirely clear from the complaint, it
appears that Seaton alleged two claims under Tennessee law: defamation and false-light
invasion of privacy. See R. 25 (D. Ct. Op. at 6) (Page ID #271). Seaton sought five-
million dollars of compensatory damages and five-million dollars of punitive damages.
R. 1-1 (Compl. at ¶ 11) (Page ID #6).
TripAdvisor removed the case to the Eastern District of Tennessee on November
17, 2011 on the basis of diversity jurisdiction, Seaton being a citizen of Tennessee and
TripAdvisor being organized in Delaware with its principal place of business in
Massachusetts. R. 1 (Not. of Removal) (Page ID #1–3). Shortly thereafter, TripAdvisor
filed a motion to dismiss for failure to state a claim under Federal Rule of Civil
Procedure 12(b)(6), attaching a screenshot of the “2011 Dirtiest Hotels” feature that
appeared on its website. R. 7 (Mot. to Dismiss) (Page ID #39–40); R. 8-1 (Def. Ex. A)
(Page ID #66). This “2011 Dirtiest Hotels” list “as reported by travelers on
TripAdvisor” contains: “Grand Resort Hotel & Convention Center[,] Pigeon Forge,
Tennessee” next to the number “1” position; a photograph of a ripped bedspread; a
quotation that “‘There was dirt at least 1/2” thick in the bathtub which was filled with
lots of dark hair.’”; and a thumbs-down image beside the statement “87% of reviewers
do not recommend this hotel.” Id.
On March 31, 2012, Seaton moved to amend his complaint. The proposed
amended complaint added facts, including “different configurations” of the “2011
Dirtiest Hotels” list, and two claims: tortious interference with prospective business
relationships and “trade libel/injurious falsehood.” R. 16-1 (Am. Compl. at ¶¶ 9, 24–32)
(Page ID #205–06, 210–13). Seaton also expanded his allegations:
No. 12-6122 Seaton v. TripAdvisor LLC Page 4
TripAdvisor used a flawed, inconsistent, unsupported, and improper
system or method of naming and/or designating the Grand Resort Hotel
and Convention Center as the dirtiest hotel in the United States or in
placing the Grand Resort Hotel and Convention Center on the “2011
Dirtiest Hotels” list.
...
By relying, in part or in whole, upon . . . unverifiable data, and further
applying such faulty methodology, TripAdvisor knew or should have
known the statements it made regarding the “Dirtiest Hotels” list were
false and defaming to the Plaintiff and TripAdvisor acted with negligence
or reckless disregard for the truth or falsity of the statements.
Id. at ¶¶ 13, 14 (Page ID #207–08).2 On August 22, 2012, the district court granted
TripAdvisor’s motion to dismiss, reasoning that the list is protected opinion—it reflects
TripAdvisor’s users’ subjective opinions—and therefore is not capable of being
defamatory. R. 25 (D. Ct. Op. at 6–13) (Page ID #271–78). The district court denied
Seaton’s motion to amend his complaint, finding that the additions would be futile
because the added claims also require Seaton to show that TripAdvisor published false
statements. Id. at 15–17 (Page ID #280–82). This timely appeal followed.
II. ANALYSIS
“[I]n cases raising First Amendment issues[,] an appellate court has an obligation
to make an independent examination of the whole record in order to make sure that the
judgment does not constitute a forbidden intrusion on the field of free expression.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 17 (1990) ( internal quotation marks and
alteration omitted). In the present case, we are confident that the district court’s
judgment does not intrude on the First Amendment because the district court properly
granted TripAdvisor’s motion to dismiss and denied Seaton’s motion to amend the
complaint. Seaton did not state a plausible claim for defamation because TripAdvisor’s
placement of Grand Resort on the “2011 Dirtiest Hotels” list is not capable of being
defamatory. Placement on the “2011 Dirtiest Hotels” list constitutes protected opinion
2
Seaton sought also to add two defendants in his proposed amended complaint: TripAdvisor
Holdings, LLC and Expedia, Inc. Given that Seaton does not address this in his brief on appeal, the
proposed additional defendants do not appear to have any effect on Seaton’s appeal.
No. 12-6122 Seaton v. TripAdvisor LLC Page 5
because the list employs loose, hyperbolic language and its general tenor undermines
any assertion by Seaton that the list communicates anything more than the opinions of
TripAdvisor’s users. Seaton failed to state a plausible claim for false-light invasion of
privacy because he did not allege that he was personally named on the list and because
Grand Resort, as a business, cannot make such a claim under Tennessee law. Seaton’s
claim for trade libel/injurious falsehood is not plausible, as pleaded by Seaton, because
it requires proof of publication of a false statement of fact regarding Grand Resort;
Seaton cannot prove falsity because the placement of hotels on TripAdvisor’s list
constitutes protected opinion. Finally, Seaton did not state a plausible claim for tortious
interference with prospective business relationships because, as he acknowledges, it
relies on the “2011 Dirtiest Hotels” list being defamatory.
We review de novo both the district court’s grant of a Rule 12(b)(6) motion to
dismiss and its denial of a motion to amend the complaint when it concludes that such
an amendment would be futile. Louisville/Jefferson Cnty. Metro Gov’t v. Hotels.com,
L.P., 590 F.3d 381, 384 (6th Cir. 2009); Dubuc v. Green Oak Twp., 312 F.3d 736, 743
(6th Cir. 2002). “To survive a motion to dismiss, 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)). Although “[m]atters outside of the pleadings are not to be
considered by a court in ruling on a 12(b)(6) motion to dismiss,” documents attached
“‘to a motion to dismiss are considered part of the pleadings if they are referred to in the
plaintiff’s complaint and are central to [the plaintiff’s] claim.’” Weiner v. Klais & Co.,
108 F.3d 86, 88–89 (6th Cir. 1997) (quoting Venture Assocs. Corp. v. Zenith Data Sys.
Corp., 987 F.2d 429, 431 (7th Cir. 1993)).3
3
Rather than address Seaton’s claims in his complaint and then proceed to address the (same)
claims made in his proposed amended complaint, this opinion analyzes each of Seaton’s claims by type.
In addition to making this opinion easier to follow, this is appropriate because Seaton’s arguments on
appeal do not distinguish between the allegations made in his complaint and in his proposed amended
complaint.
No. 12-6122 Seaton v. TripAdvisor LLC Page 6
A. Defamation
“To establish a prima facie case of defamation in Tennessee, the plaintiff must
establish that: 1) a party published a statement; 2) with knowledge that the statement is
false and defaming to the other; or 3) with reckless disregard for the truth of the
statement or with negligence in failing to ascertain the truth of the statement.” Sullivan
v. Baptist Mem’l Hosp., 995 S.W.2d 569, 571 (Tenn. 1999). “The question of whether
[a writing] was understood by its readers as defamatory is a question for the jury, but the
preliminary determination of whether the [writing] is ‘capable of being so understood
is a question of law to be determined by the court.’” McWhorter v. Barre, 132 S.W.3d
354, 364 (Tenn. Ct. App. 2003) (quoting Memphis Publ’g Co. v. Nichols, 569 S.W.2d
412, 419 (Tenn. 1978)). In the present case, Seaton’s claim for defamation turns on
whether TripAdvisor’s “2011 Dirtiest Hotels” list is capable of being understood as
defamatory.
Although the Supreme Court has refused to give blanket First Amendment
protection for opinions, its precedents make clear that the First Amendment does protect
“statements that cannot reasonably be interpreted as stating actual facts about an
individual.” Milkovich, 497 U.S. at 20 (internal quotation marks and alteration omitted).
In so stating, the Supreme Court reaffirmed its prior decisions that protect statements
employing “loose, figurative, or hyperbolic language which would negate the impression
that the writer was seriously maintaining” an assertion of fact.4 Id. at 20–21. The Court
noted further that this impression could also be negated by “the general tenor of [an]
4
See Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (“It is simply impossible
to believe that a reader who reached the word ‘blackmail’ in either article would not have understood
exactly what was meant: it was Bresler’s public and wholly legal negotiating proposals that were being
criticized. No reader could have thought that either the speakers at the meetings or the newspaper articles
reporting their words were charging Bresler with the commission of a criminal offense. On the contrary,
even the most careless reader must have perceived that the word was no more than rhetorical hyperbole,
a vigorous epithet used by those who considered Bresler’s negotiating position extremely unreasonable.”);
see also Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264,
285–86, (1974) (“It is similarly impossible to believe that any reader of the Carrier’s Corner would have
understood the newsletter to be charging the appellees with committing the criminal offense of treason.
As in Bresler, Jack London’s ‘definition of a scab’ is merely rhetorical hyperbole, a lusty and imaginative
expression of the contempt felt by union members towards those who refuse to join.”).
No. 12-6122 Seaton v. TripAdvisor LLC Page 7
article.”5 Id. at 21. Tennessee courts, of course, adhere to Milkovich.6 See Hibdon v.
Grabowski, 195 S.W.3d 48, 63 (Tenn. Ct. App. 2005) (“[S]tatements that cannot
‘reasonably [be] interpreted as stating actual facts about an individual’ because they are
expressed in ‘loose, figurative or hyperbolic language,’ and/or the content and tenor of
the statements ‘negate the impression that the author seriously is maintaining an
assertion of actual fact’ about the plaintiff are not provably false and, as such, will not
provide a legal basis for defamation.”) (quoting Milkovich, 497 U.S. at 21); Farmer v.
Hersh, No. W2006-01937-COA-R3-CV, 2007 WL 2264435, at *5 (Tenn. Ct. App. Aug.
9, 2007) (“Mere hyperbole or exaggerated statements intended to make a point are not
actionable defamatory statements.”); Shamblin v. Martinez, No. M2010-00974-COA-R3-
CV, 2011 WL 1420896, at *6 (Tenn. Ct. App. Apr. 13, 2011) (Statement could not be
construed as defamatory because “rhetorical hyperbole and matters of opinion . . . cannot
be reasonably interpreted as stating actual facts about the Plaintiffs.”).
Seaton failed to state a plausible claim for defamation because TripAdvisor’s
“2011 Dirtiest Hotels” list cannot reasonably be interpreted as stating, as an assertion of
fact, that Grand Resort is the dirtiest hotel in America. We reach this conclusion for two
reasons. First, TripAdvisor’s use of “dirtiest” amounts to rhetorical hyperbole. Second,
the general tenor of the “2011 Dirtiest Hotels” list undermines any impression that
TripAdvisor was seriously maintaining that Grand Resort is, in fact, the dirtiest hotel in
5
We recognize that Milkovich is cited often for reaffirming that “a statement on matters of public
concern must be provable as false before there can be liability under state defamation law, at least in
situations . . . where a media defendant is involved.” 497 U.S. 19–20 (citing Phila. Newspapers, Inc. v.
Hepps, 475 U.S. 767 (1986)). We need not make this determination in the present case, however, because
the other precedents reaffirmed in Milkovich provide ample protection for TripAdvisor’s placement of
Grand Resort on the list.
6
In fact, Tennessee might offer more protection than the First Amendment. As explained by the
Tennessee Court of Appeals,
Article I, Section 19 of the Tennessee Constitution provides at least as much protection
of the freedoms of speech and press as the First Amendment. Doe v. Doe, 127 S.W.3d
728, 732 (Tenn. 2004); City of Cleveland v. Wade, 206 S.W.3d 51, 56 n.6 (Tenn. Ct.
App. 2006). It could provide more. Leech v. Am. Booksellers Ass’n, Inc., 582 S.W.2d
738, 745 (Tenn. 1979). In fact, the Tennessee Supreme Court has held that its
protections of the freedoms of speech and press are “substantially stronger” than the
First Amendment because “it is clear and certain, leaving nothing to conjecture and
requiring no interpretation, construction, or clarification.” Press, Inc. v. Verran,
569 S.W.2d [435, 442 (Tenn. 1978)].
Lewis v. NewsChannel 5 Network, L.P., 238 S.W.3d 270, 288 (Tenn. Ct. App. 2007).
No. 12-6122 Seaton v. TripAdvisor LLC Page 8
America. For these reasons, TripAdvisor’s placement of Grand Resort on the “2011
Dirtiest Hotels” list constitutes nonactionable opinion.
The use of the word “dirtiest” “negate[s] the impression that” TripAdvisor is
communicating assertions of fact. Milkovich 497 U.S. at 21. “Dirtiest” is a loose,
hyperbolic term because it is the superlative of an adjective that conveys an inherently
subjective concept. Here, no reader of TripAdvisor’s list would understand Grand
Resort to be, objectively, the dirtiest hotel in all the Americas, the North American
continent, or even the United States. Instead, “even the most careless reader must have
perceived” that “dirtiest” is simply an exaggeration and that Grand Resort is not,
literally, the dirtiest hotel in the United States. See Greenbelt Coop. Publ’g Ass’n v.
Bresler, 398 U.S. 6, 14 (1970). Thus, it is clear to us, as it would be to any reader, that
TripAdvisor is not stating that Grand Resort is the dirtiest hotel in America as an actual
assertion of fact. See id. at 20.
The general tenor of the “2011 Dirtiest Hotels” list buttresses the conclusion that
readers would understand that by placing Grand Resort on the list, TripAdvisor is not
stating an actual fact about Grand Resort. On the webpage in which the list appears,
TripAdvisor states clearly “Dirtiest Hotels - United States as reported by travelers on
TripAdvisor.” The implication from this statement is equally clear: TripAdvisor’s
rankings are based on the subjective views of its users, not on objectively verifiable
facts.7 With this, readers would discern that TripAdvisor did not conduct a scientific
study to determine which ten hotels were objectively the dirtiest in America. Readers
would, instead, understand the list to be communicating subjective opinions of travelers
who use TripAdvisor. Also on the list, the entry for Grand Resort includes a photograph
7
At oral argument, Seaton argued that his claim for defamation was based also on TripAdvisor’s
misrepresentation of its users’ survey responses. That is, Seaton newly contended that contrary to
TripAdvisor’s assertion that the “2011 Dirtiest Hotels” list is based on “report[s] by travelers on
TripAdvisor,” TripAdvisor’s users did not give Grand Resort the lowest ratings for cleanliness (the survey
question used by TripAdvisor to determine “dirtiest.”). We need not decide whether this new allegation
would suffice to assert a plausible claim for defamation because our review of the record reveals that
Seaton did not make this specific allegation in his complaint or in his proposed amended complaint.
Similarly, Seaton asserted at oral argument that his claim for defamation was predicated on TripAdvisor’s
reliance on undisclosed facts—its users’ reviews and survey responses. Again, although this could perhaps
be the basis for a defamation claim, our review of the record establishes that Seaton did not make this
allegation in his complaint or his proposed amended complaint.
No. 12-6122 Seaton v. TripAdvisor LLC Page 9
of a ripped bedspread and a quotation from a TripAdvisor user: “‘There was dirt at least
1/2” thick in the bathtub which was filled with lots of dark hair.’”8 R. 8-1 (Def. Ex. A)
(Page ID #66). No one reading the list would understand these two examples to be the
determinative factors in what constitutes the dirtiest hotel in America. Readers would,
instead, reasonably interpret these as entertaining examples of the specific experiences
of two of TripAdvisor’s users. Thus, the immediate context of Grand Resort’s
placement on the “2011 Dirtiest Hotels” supports the conclusion that the list cannot
reasonably be understood as communicating that Grand Resort is, in fact, the dirtiest
hotel in America.
The quotations regarding other hotels on the “2011 Dirtiest Hotels” list confirm
that the list cannot be reasonably understood as asserting that the hotels on the list are,
in fact, the ten dirtiest hotels in America. Beside each of the nine other hotels on the list
is one of the following:
• Hotel #2: “Had to go buy socks so my feet wouldn’t touch the carpet.”
• Hotel #3: “They have dead roaches all over the hotel.”
• Hotel #4: “The bathtub was full of dirty black stuff.”
• Hotel #5: “Hold your nose for the garbage smell.”
• Hotel #6: “Probably more sanitary to sleep in the bathroom of the room.”
• Hotel #7: “Crusty white stains on the blankets and sheets.”
• Hotel #8: “Mouse feces located around the base of the bathroom.”
• Hotel #9: “Camp out on the beach instead.”
• Hotel #10: “25 bug bites between the two of us.”
8
Seaton did not make specific allegations regarding these quotations in his complaint or proposed
amended complaint. We note that even if the complaint or proposed amended complaint had alleged that
TripAdvisor’s users’ statements are defamatory, TripAdvisor cannot be held liable for its users’ statements
under the Communications Decency Act, 47 U.S.C. § 230(c)(1).
No. 12-6122 Seaton v. TripAdvisor LLC Page 10
R. 8-1 (Def. Ex. A) (Page ID #66). It is clear that these are dramatic examples of
TripAdvisor’s users’ experiences at these various hotels and serve the function of
entertaining readers. Thus, the hyperbolic nature of these quotes highlights why the
general tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that the list
cannot reasonably be understood as asserting that these are, in fact, the ten dirtiest hotels
in America. Further, the lack of a recurring theme of what TripAdvisor’s users
considered to be dirty in each of the hotels on the list underscores why any reader would
understand the list not to be communicating anything more than the experiences of
individual users of TripAdvisor. In other words, the meaning of “dirtiest” is not easily
pinned down when read beside these quotations; therefore, readers would not interpret
“dirtiest” as making an assertion of fact. See Levinsky’s, Inc. v. Wal-Mart Stores, Inc.,
127 F.3d 122, 129 (1st Cir. 1997) (“The vaguer a term, or the more meanings it
reasonably can convey, the less likely it is to be actionable.”). Therefore, the general
tenor of the entire “2011 Dirtiest Hotels” list supports our conclusion that TripAdvisor’s
placement of Grand Resort as the dirtiest hotel in America cannot reasonably be
understood as communicating an actual fact about Grand Resort.
The thrust of Seaton’s argument on appeal is that Grand Resort’s placement on
the list connotes an assertion of fact when the “2011 Dirtiest Hotels” list is considered
in its broader context. Seaton points to the fact that TripAdvisor considers itself to give
the “World’s Most Trusted Travel Advice” and to “share the whole truth about hotels.”
Appellant Br. at 29; R. 16-1 (Am. Compl. at ¶ 9) (Page ID #206). These statements,
which Seaton characterizes as bolstering the credibility of the list, do not, however, have
any bearing on whether placement on the list can “reasonably be interpreted as stating”
an actual fact about Grand Resort. Milkovich, 497 U.S. at 20. Instead, TripAdvisor’s
claim of trustworthiness relates to its conveyance of its individual users’ personal
opinions. Further, “top ten” lists and the like appear with growing frequency on the web.
It seems to us that a reasonable observer understands that placement on and ranking
within the bulk of such lists constitutes opinion, not a provable fact. See, e.g., Reader’s
Digest, Reader’s Digest Trust Poll: The 100 Most Trusted People in America (2013),
http://www.rd.com/slideshows/readers-digest-trust-poll-the-100-most-trusted-people-
No. 12-6122 Seaton v. TripAdvisor LLC Page 11
in-america (stating that Tom Hanks is the most trusted person in America and showing
that Judith Sheindlin, “Judge Judy,” is more trusted than all nine Supreme Court
Justices); Vogel v. Felice, 26 Cal. Rptr. 3d 350, 361 (Cal. Ct. App. 2005) (“[I]t is
inconceivable that placement on the ‘Top Ten Dumb Asses’ list [appearing on a website]
could be understood to convey any imputation of provable defamatory fact.”).
Therefore, contrary to Seaton’s arguments on appeal, the broader context into which the
“2011 Dirtiest Hotels list” fits supports our conclusion that TripAdvisor’s placement of
Grand Resort on the list cannot reasonably be interpreted as stating an actual fact.
Seaton’s final argument is that “the percentage of negative reviews attributed to
each of the ten hotels on the ‘2011 Dirtiest Hotels’ list does not correlate to each hotel’s
one through ten ranking, exposing the flawed methodology or arbitrary manner by which
the list was created.” Appellant Br. at 30. This assertion matches Seaton’s allegations
made in his complaint and proposed amended complaint but does not advance his
argument on appeal because it does not undermine the conclusion that placement on the
list cannot reasonably be interpreted as stating actual facts. See R. 1-1 (Compl. at ¶ 9)
(Page ID #6) (“Trip[A]dvisor used a rating system which is flawed and inconsistent and
distorts actual performance and perspective.”); R. 16-1 (Am. Compl. at ¶ 13) (Page ID
#207) (“TripAdvisor used a flawed, inconsistent, unsupported, and improper system or
method of naming and/or designating the Grand Resort Hotel and Convention Center as
the dirtiest hotel in the United States or in placing the Grand Resort Hotel and
Convention Center on the ‘2011 Dirtiest Hotels’ list.”). Further, in Compuware Corp.
v. Moody’s Investors Services, Inc., we made clear that the subjective weighing of
factors cannot be proven false and therefore cannot be the basis of a defamation claim.
499 F.3d 520, 529 (6th Cir. 2007) (“A Moody’s credit rating is a predictive opinion,
dependent on a subjective and discretionary weighing of complex factors. We find no
basis upon which we could conclude that the credit rating itself communicates any
provably false factual connotation. Even if we could draw any fact-based inferences
from this rating, such inferences could not be proven false because of the inherently
subjective nature of Moody’s ratings calculation.”); see Milkovich, 497 U.S. at 19–21
(reaffirming that the First Amendment protects statements that are not capable of being
No. 12-6122 Seaton v. TripAdvisor LLC Page 12
proven false). Therefore, even if Seaton is correct that TripAdvisor employed a “flawed
methodology” in creating the list, his claim for defamation still fails because
TripAdvisor’s method of compiling its user reviews and surveys, as alleged by Seaton,
is “inherently subjective [in] nature” and therefore protected under Compuware. 499
F.3d at 529.
In sum, Seaton failed to state a plausible claim for defamation because
TripAdvisor’s placement of Grand Resort on the “2011 Dirtiest Hotels” list is not
capable of being understood as defamatory; it is protected, nonactionable opinion.
TripAdvisor’s use of the word “dirtiest” constitutes loose, hyperbolic language, and the
general tenor of the “2011 Dirtiest Hotels” list makes clear that placement on the list
cannot reasonably be interpreted as stating actual facts about Grand Resort. Seaton’s
arguments to the contrary are unavailing. For these reasons, we affirm the district
court’s grant of TripAdvisor’s motion to dismiss and its denial of Seaton’s motion to
amend the complaint as futile.
B. False-Light Invasion of Privacy
Tennessee recognizes the separate, but related, tort of false-light invasion of
privacy, which requires: (1) publicity, (2) that places the plaintiff in a false light, (3) that
is “highly offensive to a reasonable person,” and (4) that the defendant knew of or acted
with reckless disregard to the “falsity of the publicized matter and the false light in
which the other would be placed.” West v. Media Gen. Convergence, Inc., 53 S.W.3d
640, 643–44 (Tenn. 2001). Discussing the parameters of false-light invasion of privacy,
the Supreme Court of Tennessee explained that:
[T]he right to privacy is a personal right. As such, the right cannot attach
to corporations or other business entities, may not be assigned to another,
nor may it be asserted by a member of the individual’s family, even if
brought after the death of the individual. Therefore, only those persons
who have been placed in a false light may recover for invasion of their
privacy.
Id. at 648 (internal citation omitted).
No. 12-6122 Seaton v. TripAdvisor LLC Page 13
In the case at hand, Seaton did not allege in his complaint or in his proposed
amended complaint that he was named personally in Trip Advisor’s list, and our own
review of the list confirms why: Trip Advisor named only Grand Resort. Therefore,
Seaton cannot recover under his own theory of the case because he did not make
plausible allegations that he was placed personally in a false light. Id. Further, Seaton
cannot recover on behalf of Grand Resort because it is a business and as such does not
have the right under Tennessee law to recover for a violation of its privacy. Id.Therefore, we affirm the district court’s grant of TripAdvisor’s motion to dismiss and
its denial of Seaton’s motion to amend his complaint as futile because Seaton failed to
allege a plausible claim for false-light invasion of privacy.9
C. Trade Libel/Injurious Falsehood
As noted by the district court, “[t]o the extent that Tennessee common law
recognizes trade libel and injurious falsehood as causes of action, such claims require
proof of the publication of a false statement of fact.” Seaton v. TripAdvisor, LLC, 2012
WL 3637394, at *8 (E.D. Tenn. Aug. 22, 2012) (citing Kan. Bankers Sur. Co. v. Bahr
Consultants, Inc., 69 F. Supp. 2d 1004, 1015 (E.D. Tenn. 1999); AmMed. Direct, LLC
v. Liberty Med. Supply, Inc., 2009 WL 3680539, at *8 (M.D. Tenn. Sept. 23, 2009);
Medison Am., Inc. v. Preferred Med. Sys., LLC, 548 F. Supp. 2d 567, 584 (W.D. Tenn.
2007)). On appeal, Seaton concedes the same: “Trade libel . . . includes, as an element,
proof of publication of a false statement of fact regarding the plaintiff’s business,
causing damages to the business.” Appellant Br. at 39–40. Seaton cannot prove falsity,
however, because Grand Resort’s placement on TripAdvisor’s list constitutes protected
opinion. Restatement (Second) of Torts § 623A cmt. c (1977) (“There is no recovery in
9
Although this was not the rationale used by the district court, we may affirm the district court’s
judgment on any basis supported by the record. Schlaud v. Snyder, 717 F.3d 451, 459 n.6 (6th Cir. 2013).
This is not to say that the district court’s rationale was wrong. To the contrary, we agree with the district
court that Seaton cannot prove falsity, an element of false-light invasion of privacy, because Grand
Resort’s placement on TripAdvisor’s list constitutes protected opinion. We note also that Seaton’s claims
for false-light invasion of privacy, trade libel/injurious falsehood, and tortious interference with
prospective business relationships appear to be an attempt to bypass the First Amendment. See
Compuware, 499 F.3d at 529 (“[S]tricter scrutiny may be warranted where a plaintiff attempts to use a
state-law claim to avoid the strict requirements for establishing a libel or defamation claim.”) (internal
quotation marks omitted); Boladian v. UMG Recordings, Inc., 123 F. App’x 165, 169 (6th Cir. 2005) (“A
party may not skirt the requirements of defamation law by pleading another, related cause of action.”).
No. 12-6122 Seaton v. TripAdvisor LLC Page 14
defamation for the expression of a mere opinion that does not carry by implication the
allegation of defamatory facts.”); id. § 626 cmt. a (“This Section [Disparagement of
Quality - Trade Libel] is a special application of the general principle stated in § 623A,
to which reference should be made. The Comments under that Section are all applicable
here, so far as they are pertinent. The particular form of injurious falsehood that
involves disparagement of quality is commonly called “trade libel.”); Robert D. Sack,
Sack on Defamation: Libel, Slander and Related Problems § 13:1.4[D] (4th ed. 2012).
Therefore, we affirm the district court’s denial of Seaton’s motion to amend his
complaint to add this claim of trade libel/injurious falsehood as futile.
D. Tortious Interference with Prospective Business Relationships
Tortious interference with prospective business relationships has the following
elements under Tennessee law:
(1) an existing business relationship with specific third parties or a
prospective relationship with an identifiable class of third persons; (2)
the defendant’s knowledge of that relationship and not a mere awareness
of the plaintiff’s business dealings with others in general; (3) the
defendant’s intent to cause the breach or termination of the business
relationship; (4) the defendant’s improper motive or improper means; and
finally, (5) damages resulting from the tortious interference.
Trau-Med of Am., Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 701 (Tenn. 2002) (citations
and emphasis omitted); see R. 25 (D. Ct. Op. at 15–16) (Page ID #280–81). Under
Tennessee law, “improper means” includes defamation. Trau-Med of Am., Inc.,
71 S.W.3d at 701 n.5. On appeal Seaton notes that “[t]ortious interference with
prospective business relationships, under Tennessee law, is a similar claim [to trade
libel/injurious falsehood] in the sense that it requires improper conduct, which could
include defamation, resulting in damages to business relationships.” Appellant Br. at 40.
The district court held that because Seaton relied solely on defamation to establish
improper means, his claim for tortious interference with prospective business
relationships fails. Seaton does not argue that the district court held wrongly that his
claim for tortious interference with prospective business relationships required proof of
No. 12-6122 Seaton v. TripAdvisor LLC Page 15
defamation; instead, he challenges the district court’s determination that the “2011
Dirtiest Hotels” list is not defamatory. Id. Because we agree with the district court that
Grand Resort’s placement on the list is not capable of being understood as defamatory,
Seaton failed to state a plausible claim for tortious interference with prospective business
relationships. Therefore, we affirm the district court’s denial of Seaton’s motion to
amend his complaint to add this claim of tortious interference with prospective business
relationships as futile.
III. CONCLUSION
For the reasons set forth in this opinion, we AFFIRM the district court’s
judgment granting TripAdvisor’s motion to dismiss and denying Seaton’s motion to
amend his complaint as futile.