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Harp v. Glock

United States District Court, E.D. Wisconsin

April 25, 2019

REBECCA I. HARP, Plaintiff,
ALLISON GLOCK, Defendant. REBECCA I. HARP, Plaintiff,



         On September 1, 2016, the Investigation Discovery channel aired an episode of the true-crime series Unraveled entitled “Never Say Goodbye.” The episode, which was produced by NBCUniversal Media, LLC, focuses on a thirteen-year relationship between two high-school and collegiate women's basketball players, Malika Willoughby and Rosalind “Roz” Ross. In 2011, Ms. Willoughby pleaded guilty to a homicide charge that arose out of her shooting Ms. Ross a year earlier. These events were the subject of an article authored by Allison Glock and published in ESPN The Magazine in 2012. Ms. Glock appears in the episode and offers commentary and opinions.

         On July 9, 2018 and July 27, 2018, Rebecca Harp-Ms. Willoughby's mother- filed separate civil actions in this court against Ms. Glock and NBCUniversal. In each action, Ms. Harp, who is pro se, alleges that the episode contains defamatory statements and depictions about her relationship with her daughter and her daughter's childhood. These actions were consolidated. Before consolidation, each defendant filed a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6). Later, Ms. Harp filed a motion to amend her complaint against NBCUniversal only. NBCUniversal does not oppose the motion to amend, but it states that if the court grants leave to amend it will file a motion to dismiss the amended complaint. Ms. Harp has also filed a motion for summary judgment against Ms. Glock.

         As explained below, the episode itself, which is properly considered part of the plaintiff's complaint against each defendant, provides enough factual matter about Ms. Harp's claims to resolve each defendant's motion to dismiss. Moreover, Ms. Harp's proposed amended complaint, even if filed, would not change the result of the motions to dismiss or alter the course of future litigation. For these reasons, I will address each defendant's motion to dismiss in this order and deny Ms. Harp's motion for leave to file the amended complaint. I also deny the plaintiff's motion for summary judgment because it relies on defendant Allison Glock's failure to respond to requests for admissions that Ms. Harp served on her before the parties conferred under Federal Rule of Civil Procedure 26(f). Because the requests for admission were prematurely served, see Fed. R. Civ. P. 26(d)(1), Ms. Glock is not deemed to have admitted anything by failing to respond.

         I. The Episode Is Part of the Complaint

         When deciding a motion to dismiss under Rule 12(b)(6), a court usually cannot consider materials outside the plaintiff's complaint unless the court treats the motion as one for summary judgment. See Fed. R. Civ. P. 12(d); Reed v. Palmer, 906 F.3d 540, 549 (7th Cir. 2018); Santana v. Cook County Bd. of Review, 679 F.3d 614, 619 (7th Cir. 2012). However, the court may, without treating the motion as one for summary judgment, consider materials outside the complaint when they are mentioned in the complaint, concededly authentic, and central to the plaintiff's claim. See, e.g., Hecker v. Deere & Co., 556 F.3d 575, 582 (7th Cir. 2009).

         In the present case, the episode containing the allegedly defamatory statements meets these conditions. The plaintiff refers to it in her complaints, and because the episode contains the allegedly defamatory statements, it is central to her claims. Moreover, I do not understand the plaintiff to dispute the authenticity of the copy of the episode that NBCUniversal filed on DVD with its motion to dismiss. See No. 18-C-1159 ECF No. 17-2. Although the plaintiff previously stated that the DVD she received from NBC's counsel “has nothing on it, ” ECF No. 22 at 9, counsel later provided her with a second copy, ECF No. 23-1. Since receiving the second copy of the DVD, the plaintiff has not disputed its authenticity. Accordingly, in deciding the motions to dismiss, I will consider the episode as it appears on the DVD. Moreover, to the extent the complaint's allegations contradict or mischaracterize the contents of the episode, I will disregard them. See Forrest v. Universal Sav. Bank, F.A., 507 F.3d 540, 542 (7th Cir. 2007) (on a motion to dismiss, the court “is not bound by the party's characterization of an exhibit and may independently examine and form its own opinions about the document”).

         II. The Allegedly Defamatory Content

         A. The Episode

         The episode is approximately 45 minutes long. After a brief introduction, the episode depicts, though dramatic reenactments and narration, the circumstances under which Roz and Malika met each other.[1] The skyline of downtown Milwaukee is shown, followed by a shot of a playground in what appears to be a residential neighborhood in the city. The camera moves to an indoor basketball court. While a reenactment is depicted, the narrator explains that Roz and Malika met at a local basketball summer league in the summer of 1997. At that time, Roz was seventeen years old and Malika was fourteen. The narrator explains that both girls were excellent basketball players and became friends after impressing each other on the basketball court.

         The reenactment shows Roz and Malika spending time together, and the narrator explains that Malika began to hang out, regularly, at Roz's house. As the reenactment shows Malika having dinner with Roz's family, the narrator states, “Looking around the table, Malika sees a family dynamic very different from her own. She lives in a tough neighborhood a few miles from Roz with her mother, who works as a bus driver, and two younger sisters, one who has cerebral palsy.” When the narrator says the words “tough neighborhood, ” images of what appears to be a residential neighborhood in the City of Milwaukee are shown.

         At this point, Allison Glock is shown in a studio. She states, “Malika's home life was really challenging. She had a disabled sister whom she was, ah, largely responsible for, and she was under extreme stress and duress from a very early age.” The episode returns to the reenactment, where actresses portray Malika and her mother.[2] The actress playing Malika's mother asks Malika to help with her sister. The actress playing Malika responds, “Okay Mom, I'll be right there.” We then see Pamela Collins, Roz's mother, in the studio. She states, “I think Malika did have to grow up fast because she had to take care of her sisters.” Roz's father, Willie Edward Collins, is also shown in the studio. He states, “One time Malika did mention something to me that she really didn't have a life for herself, you know, mother always had her watching other kids.” Spencer Ross, Roz's brother, appears next. He states, “I know that Malika took on a lot of adult responsibilities as far as making sure her younger sister was okay and taking care of her, um, disabled sister. It was a lot on Malika's plate.” While the Ross family speaks, the actress playing Malika is shown sitting in her home, looking lonely.

         The episode returns to the reenactment. It shows the actress portraying Harp coming home from work. As soon as she sits down, Malika excitedly runs to her. She says, “Hey Mom, I waited for you to get home so I could tell you about this awesome play I did.” Before Malika finishes, her mother interrupts, “Not now, honey, I just got home, I'm tired, and I have to find your sister's medication.” As her mother says these words, Malika's smile fades. She says “Okay. Maybe later.” The actor portraying Ms. Harp wonders whether she left Malika's sister's medication in the kitchen. After she gets up to look, the camera lingers on Malika's face for several seconds to show her disappointment. After this scene, the reenactment shows Malika and Roz having fun together. The narrator states, “With Roz, Malika can forget her burdens, and she feels at home in a way she never has before.”

         In the scenes that follow, the reenactment shows Malika and Roz becoming closer. Spencer Ross states that it was almost like the two of them “shut everyone else out.” The episode returns to Ms. Glock, who states “For Malika, Roz was a safe shore and I think the person who really loved her, or at least that she felt loved by.” The reenactment shows the girls holding hands. The narrator states, “Then, one day in late summer, their relationship takes a tentative step in a more intimate direction.” The reenactment shows Roz giving Malika a ring, and Malika kissing Roz. Then we see Glock in the studio, who says “I feel like it genuinely was, um, a love that sprung up organically from their relationship, and I, I wouldn't say one knew before another.”

         The episode depicts and explains how the girls' families disapproved of their romantic relationship. A psychotherapist is shown in the studio; she explains some of the challenges that gay and lesbian teenagers face. The reenactment shows Roz's father learning that the girls were in love and ordering Roz to stop seeing Malika. The reenactment then turns to Malika and her mother in their home. Malika is shown on the couch when her mother asks what she's doing and sits down next to her. Malika tells her mother she's doing homework. Her mother says, “Let's see, ” and looks in one of Malika's notebooks. She discovers a Polaroid picture of Roz and Malika kissing. Malika's mother confronts Malika about the picture, and Malika describes it as “nothing, ” saying that the girls were just “kidding around.” Malika's mother is upset, and Malika says it won't happen again. Malika's mother replies, “It better not.” Malika says she's sorry, and her mother gets up from the couch in anger. We then see Patricia Collins in the studio, who states, “'Cuz her mother didn't accept it. You know, she didn't accept her being gay. She didn't want her daughter-she didn't want a gay daughter.” The episode continues to show Roz's conflict with her father and then explains that the adversity the girls faced caused their bond to strengthen.

         Next, the episode shows Malika's love for Roz beginning to veer into unhealthy territory. Allison Glock states, “I think that initially, Malika felt like she'd, you know, won a lottery or something to be on the arm of Roz and to bask in the sort of attention that Roz would commonly get. But as their relationship progressed, it became a source of jealousy, um, and insecurity for Malika.” The episode shows that, in the fall, Roz left Milwaukee to attend college in Oklahoma on a basketball scholarship while Malika finished high school. The narrator states, “It's the first time the girls have been separated, and Malika is miserable.” The reenactment shows Malika sitting at home when her mother enters the room. Her mother states, “C'mon, you're moping around all the time now. It's because of that Roz girl, isn't it? I told you she wasn't good for you in the first place.” After Malika replies, “Mom, she was fine, ...

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