Defaming Like a Rockstar? No, Said Court in Lawsuit Against DaBaby

An interesting illustration of the defamation per se / per quod distinction, recognized in some states.

Rapper DaBaby was found not liable for breach of contract or battery in this case two weeks ago as to one plaintiff (Carey) and for $100 in damages as to another (Anyadike), apparently conveniently offset by $100 that DaBaby would get from the two in a counterclaim invasion of privacy and unauthorized use of name or likeness counterclaim. But the defamation claims against DaBaby had been thrown out in September, in an opinion (Carey v. Kirk) by Judge Jose Martinez (S.D. Fla.) that was just posted on Westlaw in the last couple of days:

Sometimes being a Rockstar, or simply acting like one, has consequences. Plaintiffs' case arises out of a physical altercation between Defendant Jonathan Kirk, a/k/a DaBaby, and Plaintiffs Kenneth Carey and Steve Anyadike….

The incident giving rise to this lawsuit can best be described as a Big Business deal gone wrong. Kirk entered into a written agreement with Anyadike to make a "social media drop" and event walkthrough at a show scheduled to take place on January 2, 2020, at a nightclub in Pembroke Pines, Florida. In exchange, Anyadike agreed to pay Kirk a $20,000 engagement fee. What actually happened on January 2, 2020 is in much dispute. But one thing is clear: Kirk hit Anyadike. His reasons for doing so, however, are hotly contested by the parties. Premised on this background, Plaintiffs filed suit against Kirk ….

[T]he Court finds that the only claims that survive summary judgment are Anyadike's claim against Kirk for breach of contract (Count I), and Carey's claims against Kirk for assault (Count II) and battery (Count III). Further, because the Court finds Kirk liable for assault (Count II) and battery (Count III) as to Anyadike, this claim also proceeds to trial for a determination of Anyadike's damages….

The parties cross-move for summary judgment on the defamation claims (Count VI). For the following reasons, the Court grants Kirk's motion for summary judgment on this claim….

A common law claim for defamation in Florida requires the following elements: "(1) publication; (2) falsity; (3) actor must act with knowledge or reckless disregard as to the falsity on a matter concerning a public official, or at least negligently on a matter concerning a private person; (4) actual damages; and (5) statement must be defamatory." A "defamatory" communication is one that "tends to harm the reputation of another as to lower him or her in estimation of community or deter third persons from associating or dealing with the defamed party."

Plaintiffs bring both a per se and per quod defamation action. Defamation per se must be "actionable on its face" and does not "require[] additional explanation of the words used to show that they have a defamatory meaning and that the person defamed is the plaintiff." Defamation per quod, on the other hand, "requires additional explanation of, or an interpretation of innuendo suggested by the words used to demonstrate the defamatory meaning or that the plaintiff is the subject of the statement." The critical distinction between the two is that in per se cases, the Court may only consider the "'four corners' of the publication and 'the injurious nature of the statement' must be apparent from the words of the publication itself."

"[T]here is no strict requirement in Florida that an allegedly defamed person be named in a publication for the statement to be actionable." But it has long been held that if a person alleging defamation is not named in the defamatory publication, "the communication as a whole [must] contain[] sufficient facts or references from which the injured person may be determined by the persons receiving the communication." The Court must determine "whether 'the average person upon reading [the] statements could reasonably have concluded that the plaintiff[s] [were] implicated[.]" …

Plaintiffs maintain they were defamed by the lyrics in the following songs by Kirk:

• Talk About It: "Court Days for the New Year … 20 on a lawyer, twenty seven thousand for a jet I never boarded …"
• Talk About It: "A rich nigga can't rob a broke nigga and you know that, lock a nigga up in South Florida like Kodak, quarter million dollars in my motha fucking tote bag, think I like to fight til a nigga get a toe tag[]";
• Life Is Good: "I can't entertain all that flodgin, … I got fools try to sue up the boss … I got dudes trying to sue down in Florida[.]" …

Plaintiffs [also] claim they were defamed by Kirk's Instagram post … [that] reads: "Don't allow yourself to be mislead [sic] by janky promoters and lazy ass grown men itching for the opportunity to file a lawsuit that they won't win."

As an initial matter, the Court grants summary judgment as to the statements made in the police report. Unlike Plaintiffs' allegations in the Amended Complaint, the allegedly defamatory statements made in the police report were attributed to Carey, not Kirk….

The Court now turns to the remaining statements and begins with defamation per se. Kirk argues that Plaintiffs' claims fail under this theory. In response to Defendants' Motion, Plaintiffs merely argue that Kirk admitted that the lyrics in his song Talk About It related to Plaintiffs. But Plaintiffs miss the mark. The relevant inquiry is whether, based on the four comers of the publication, i.e., the song, the average person could reasonably have concluded that Plaintiffs were implicated. This question must be answered in the negative.

Without additional explanation of the words in the songs, the injurious nature of Kirk's lyrics, if any, is not apparent. As a person in the public eye, Kirk could have been referencing any other lawsuit he was involved in and could have been talking about other individuals trying to sue him. Based on the face of the statements in Kirk's songs, it is not apparent that the words of the publication relate to Plaintiffs.

As to Kirk's Instagram publication, Plaintiffs' own arguments rebut a finding of per se defamation. Plaintiffs maintain that the timing of the Instagram post was near the time the Incident occurred and that this, coupled with the words in the post, is sufficient to associate the post with Plaintiffs. Plaintiffs' position therefore implies that extrinsic facts are necessary to establish that the statements made in the Instagram post are defamatory. Accordingly, Plaintiffs' claim for defamation per se fails and Kirk is granted summary judgment on this claim.

Moving on to defamation per quod. Kirk argues that there is no evidence that "any of Kirk's social media posts or songs would be recognized by readers as referencing Plaintiffs indirectly." Even if Plaintiffs could point to a published statement that constituted defamation, Defendants contend, Plaintiffs' claims fail because they cannot prove special damages. Special damages are "actual, out of pocket losses; that is, realized or liquidated loss." To succeed on their defamation per quod action, Plaintiffs must prove "actual economic damage."

Here, there is no evidence that Plaintiffs suffered actual, economic damages as a result of the purported defamation. Carey stated at his deposition that the only change to his business relationship with artists after the Incident is that the artists will now ask for full payment in advance, not that they would not enter into business with him at all. Importantly, Plaintiffs were unable to point to any events that were canceled as a result of the purportedly defamatory statements in the songs, rather than the Incident itself.

While Carey points to a Cardi-B show that was planned to take place after the January 2, 2020 event, he concedes this show was canceled because he could no longer afford to pay for it since he was counting on the money from the January 2, 2020 event. Plaintiffs also admit that soon after the Incident, the COVID-19 pandemic hit the country and put a halt on entertainment shows. The canceled Cardi-B show thus were not a result of the purportedly defamatory statements in Kirk's songs.

Moreover, as result of the pandemic, Anyadike pivoted into a different career—he now owns a "successful studio in Baltimore, Maryland[.]" Therefore, Anyadike is essentially seeking damages for a job he is no longer interested in pursuing. Finally, the record is devoid of any evidence that Plaintiffs have spent any money to rehabilitate their reputation as promoters.

Because Plaintiffs have failed to present evidence of actual, out of pocket losses they incurred as a result of the allegedly defamatory statements made against them, summary judgment is granted in Kirk's favor as to Plaintiffs' claims for defamation per quod.…

Congratulations to Drew Findling and Zack Kelehear (Findling Law Firm) and Scott Cagan and Brian Bieber (GrayRobinson, P.A.), who represented Kirk.