The Volokh Conspiracy
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Default Judgment in Libel Case: No More "Lucy and the Football"
From Judge Carlton Reeves' decision today in Andreacchio v. Yax (S.D. Miss.):
Plaintiff Rae Andreacchio is the mother of Christian Andreacchio, a young man who allegedly "died under suspicious circumstances" in 2014. She resides in Lauderdale County, Mississippi, where she is a mental health service provider.
Defendant Karen Yax is a "prominent social media figure" known to her followers as "The Critical Kay." She operates a webcast where she discusses "real-crime stories." She is a resident of Michigan.
On March 21 and April 11, 2021, Yax discussed Christian Andreacchio's death on her webcast. Yax stated that Rae Andreacchio has "really dominated the narrative about this case via intimidation, bullying, outright lies … , bribery, getting people drunk, [and] getting young people drunk," among other claims. Yax also stated, "I really do believe that Hayes [Mitchell, a different patient,] was treated by Rae, and Hayes is now dead with a drug overdose …. He's dead also by self-harm. So, she has a son that is dead by self-harm. And she has a patient who is dead by self-harm."
Andreacchio contends that these statements "leave[] the false impression that [she] had somehow caused—or contributed—to their deaths." Andreacchio adds that these statements have "defamed or painted [her] in a false light, thereby causing her to suffer injury to her reputation and/or emotional damage." Accordingly, she filed this suit against Yax on June 4, 2021, alleging defamation and false light invasion of privacy.
Yax filed her answer on June 24, 2021, in which she asserted that this Court lacks personal jurisdiction over her. Yax then filed a motion to dismiss on August 12, 2021, which this Court subsequently denied on November 19, 2021.
For the order denying the motion, see here; the key rationale was that "A review of the available communications suggests that the defendant intentionally and purposely wished her words to impact the plaintiff in Mississippi," which led to a conclusion that Mississippi courts (state and federal) had personal jurisdiction over the lawsuit based on those communications. Back to the default judgment opinion:
On November 30, 2021, the Magistrate Judge assigned to this case scheduled a telephonic case management conference for December 14, 2021. Court staff mailed and emailed notice of the hearing to Yax. On December 14, however, Yax failed to dial-in to the conference. After issuing an Order to Show Cause, the Magistrate Judge sanctioned Yax $100. Docket Nos. 15 and 17. Yax timely paid the sanction. Discovery commenced.
In August 2022, Yax moved to have a fast-approaching settlement conference conducted by telephone or video. The Magistrate Judge denied the request but postponed the settlement conference to allow Yax additional time to make travel arrangements. The Magistrate Judge further ordered the parties to confer and select mutually-agreeable dates to hold the conference in person. Andreacchio says Yax "refused to comply with the Court's order to confer … [and] pick a date for the settlement conference."
On September 1, 2022, the Magistrate Judge scheduled a settlement conference for October 18, 2022. Yax was directed to appear in person. A Text-Only Order dated October 14 repeated this instruction. Yax, however, failed to appear.
Andreacchio subsequently moved for sanctions pursuant to Rule 16(f) for Yax's failure to attend the settlement conference, and filed the present motion for default judgment under Rules 16(f) and 37(b)(2)(A)(vi)…. Yax argues that her absence from the settlement conference was due to "economic constraints, lack of access to reasonable legal counsel, and … a legitimate fear for her physical safety, mental health and well-being ….."
In reply, Andreacchio contends that Yax's "poverty is very much in doubt," observing that Yax mailed her original motion to dismiss from Honolulu, Hawaii.
On February 1, 2023, the undersigned scheduled a motions hearing for March 20, 2023. The scheduling Order specifically noted the following: "The defendant is reassured that she will not waive her personal jurisdiction defense merely by appearing for a hearing in this case. She has already preserved her jurisdictional defense for further review." On March 10, the Magistrate Judge granted Andreacchio's motion for Rule 16(f) sanctions in the amount of $895.67. That sum is due to the Clerk of Court on or before May 1, 2023.
On March 20, Yax did not appear at the motions hearing before the undersigned. The Court denied Yax's outstanding motions as abandoned and pledged to rule on the outstanding motion for default judgment in due course….
[T]he Fifth Circuit has reframed the standard for default judgments into one with four requiring findings: that "(1) the discovery violation was committed willfully or in bad faith; (2) the client, rather than counsel, is responsible for the violation; (3) the violation substantially prejudiced the opposing party; and (4) a lesser sanction would not substantially achieve the desired deterrent effect." … In this case, the plaintiff has demonstrated all four elements of the applicable legal standard.
First, Yax has repeatedly violated Court Orders by failing to participate in telephonic and in-person hearings. These violations have been knowing and willful. Although she acknowledges in her filings that her presence would be "beneficial to the court in adjudicating this unfortunate matter," she has texted a third-party explaining that she will not come to Mississippi for this case, "Ever." [See the image reproduced at the start of the post. -EV]
Despite the undersigned's Order reassuring Yax that she would not forfeit her personal jurisdiction defense by appearing for a motions hearing, she failed to attend that, too. And while Yax protests that she lacks funding to participate in this litigation, the excuse only goes so far, since she could have participated in the telephonic case management conference without incurring any cost.
Second, because Yax is proceeding pro se, there is no question that she (and not an attorney) is solely responsible for her conduct.
Next, there is ample record evidence that Yax's failures to appear have prejudiced the opposing party. Every time the plaintiff and her attorney travel to Jackson for a hearing, they incur nearly $900 in expenses. When she plays this game of "Lucy and the football," therefore, Yax is running up her opponent's bill. That is the definition of prejudice.
Lastly, a lesser sanction would not substantially achieve Yax's participation in this lawsuit. Warnings and show cause orders have borne no fruit. If Yax lacks resources, a third award of monetary sanctions would be pointless. Incarceration, meanwhile, would likely be too severe a sanction. "Given this record, it is unclear what lesser sanctions could have been appropriate following the district court's warnings and second chances."
For these reasons, and on this record, the rare sanction of default judgment is warranted….
Andreacchio's motion for default judgment is granted. An evidentiary hearing is necessary to determine an appropriate amount of damages. One will be scheduled shortly. Yax is invited to participate.
Congratulations to Matthew Wilson, who represents Andreacchio. For a different case arising out of the death of Andreacchio's son, see Distributing Government-Released Autopsy Photos in Controversial Case Isn't Tortious.
