Date: 10-27-2013

Case Style: Christy L. Kellerhals v. This Land Press, LLC

Case Number: CJ-2012-2781

Judge: Jefferson D. Sellers

Court: District Court, Tulsa County, Oklahoma

Plaintiff's Attorney: Joel Wohlgemuth, Jo Lynn Jeter, and Lauren Anne Lindsey for Christy L. Kellerhals

Defendant's Attorney: Jason Sean Taylor, Melinda Louise Kirk, and Chris M. Warzecha for This Land Press, LLC and Joshua Kline

Scott A. Graham and Edward Glen Lindsey for Kenna B. Roberts

Sheton Lynn Benedict for Tulsa Police Department

Description: Christy L. Kellerhals sued This Land Press, LLC, Keena B. Roberts, Joshua Kline, Michael Mason and Vince Lovoi on invasion of privacy (publication of private facts), slander and libel per se, intentional infliction of emotional distress and unauthorized use of another person's right of publicity theories claiming:

1. Plaintiff, Christy L. Kellerhals, is an individual who resides in Tulsa County, Oklahoma.

2. Defendant This Land Press, LLC (“This Land”) is a domestic Oklahoma limited liability company. This Land terms itself a “new media company,” and is based in Tulsa, Oklahoma. This Land produces a bi-weekly “broadsheet” (this term refers to the 1art of the various newspaper formats), a print magazine, a weekly television show, audio programs, digital publications, and books.

3. Defendant Keena Brooke Roberts is an individual who resides in Osage County, Oklahoma.

4. Defendant Joshua Kline, an individual, is a contributing editor of This Land Press, LLC. Upon information and belief, Mr. Kline resides in Tulsa County, Oklahoma.

5. Jurisdiction and venue in this Court are proper. BACKGROUND ALLEGATIONS

6. Plaintiffjoined the Tulsa Police Department (“TPD”) as a Field Officer in January of 2000. Plaintiff currently serves as a Field Officer in the Mingo Valley division of the TPD.

7. In 2001, Plaintiff met Shawn King (“King”), currently a Captain in the TPD. King and Plaintiff became friends and remained so for several years, In approximately 2007, Plaintiff and King became romantically involved. They continued to maintain an exclusive relationship for approximately two and a half years. After their relationship ended, Plaintiff and King maintained an excellent personal and professional rapport.

8. During the course of Plaintiff and King’s relationship, the couple shared private photographs of a sexual nature between themselves, and recorded videos of themselves engaged in sexual activities. Plaintiff and King intended these pictures and videos to be viewed exclusively by them and did not share these sensitive and private materials with others.

9. In 2009, King established a relationship with Defendant Keena Roberts. During this time, King moved in with Roberts.

10. Shortly thereafter, Roberts contacted Plaintiff via private message on Facebook, and told Plaintiff to cease her contact with King. Plaintiff responded that King had willingly been spending time with Plaintiff.

11. Following this exchange, a complaint was filed against Plaintiff with the TPD’s Internal Affairs department (“Internal Affairs”), alleging that Plaintiff had used her departmentissued computer to harass and threaten Roberts. The Internal Affairs investigation found no evidence of such threats or harassment.

12. In November of 2011, Roberts became suspicious of King and began searching the home they shared for signs of impropriety. Roberts broke the lock on a closet door and located a password-protected laptop computer inside. Upon information and belief, Roberts then utilized a computer forensics expert to “crack” the laptop’s password to gain access and review the contents of the laptop.

13. Roberts discovered the private images and videos of a sexual nature which had been exchanged between Plaintiff and King. Roberts’ viewing of the images enraged her, and she then set out on a course of events designed to destroy the private and professional lives of Plaintiff and King.

14. Among other things, Roberts submitted the stolen laptop to TPD Internal Affairs and filed a complaint. When Roberts provided the laptop to Internal Affairs, she affixed to it a “post-it” note, which stated the password she had illegally retrieved. Internal Affairs returned the laptop without reviewing the materials contained therein. Tulsa Police Chief Chuck Jordan later issued a statement noting that the TPD was “unable to legally access that information” because the materials in question “were stored on a privately owned computer and were password protected.”

15. Unsatisfied with this result, Roberts delivered the stolen laptop to the Federal Bureau of Investigation, which likewise declined to take action.

16. Roberts then presented the stolen laptop and private materials contained therein to Defendant This Land. On April 26, 2012, This Land published an article on its website, www.thislandpress.com, authored by Defendant Joshua Kline, a contributing editor of This Land, titled “Conduct Unbecoming: Tulsa Police Captain, Officer Ensnared in Sex Scandal” (the “Article”).

17. On April 27, 2012, Joshua Kline was interviewed on “the Big Bad Morning Show” on 92.1 FM, The Beat, one of Tulsa’s highest rated radio morning shows, During this interview, Kline discussed Plaintiff and directed listeners to the Article appearing on This Land’s website.

18. The Article discussed intimate details of the relationship between Plaintiff and King. The Article states that King took videos of himself “masturbating” and “sent the videos to a subordinate Tulsa Police officer with whom he was having a sexual relationship.” The Article also states that Roberts had discovered a “series of sexually explicit text message exchanges between King and Tulsa Police Officer Christy Kellerhals, a subordinate who works out of east Tulsa’s Mingo Valley Division.” The Article goes on to describe the discovery of “thousands of pornographic images and videos involving King and Kellerhals.”

19. Above the Article, This Land included two pictures of Plaintiff from the stolen materials with her name beneath them. One of the images depicted Plaintiff leaning forward to reveal cleavage in a decommissioned TPD shirt. This image had been taken by Plaintiff at home, while off-duty, and sent to King solely for his viewing.

20. At the time the materials were obtained by Kline and This Land, both were aware of the inappropriate and illegal manner in which the materials described in the Article were obtained by Roberts. Indeed, Kline stated in the Article that Roberts located the laptop “locked in a closet of King’s personal bathroom.”

21. On April 27, 2012, after apparently realizing the potential legal implications of publishing these images, This Land removed the pictures of Plaintiff and replaced them with an image of a TPD badge.

22. The Article received significant attention, despite the fact that there was no allegation that Plaintiff had engaged in any inappropriate conduct, or engaged in sexual conduct while on-duty. Numerous individuals commented on the online Article. The comments included derogatory remarks about Plaintiff and a threat directed at Plaintiff; which stated: “you are going to spend the rest of you [sic] days having to look over your shoulder.,.”

23. As a result of the Article, several other news organizations ran stories about the information written by Kline and published by This Land.

24. At all times relevant to this action, the employees and agents of This Land who made the statements referenced above, or participated in their making, specifically including Kline, were acting on behalf of This Land, as its duly authorized agents. Thus, all of their acts and omissions are attributable to This Land.

COUNT I

INVASION OF PRIVACY — PUBLICATION OF PRIVATE FACTS

(Against all Defendants)

25. Plaintiff incorporates the allegations of paragraphs 1 through 24 above as if set forth in Count Tin fhll.

26, This is a claim against Defendants This Land, Roberts, and Kline for invasion of privacy by publication of private facts.

27. Defendants’ conduct resulted in the publication of images and facts about Plaintiff which were intended to remain private and were shared with King in the utmost confidence that they would not be publicly disseminated.

28. The publication of these facts and images would be highly offensive to a reasonable person because of their extremely intimate and private nature, and the public embarrassment and harm to reputation which inevitably resulted from their publication.

29. These private images and facts about Plaintiff were publicly disclosed by Roberts to Joshua Kline and This Land (among others), and were publicly disclosed by Kline and This Land to the general public.

30. The private images and facts about Plaintiff are of no legitimate public concern. The facts involve an intimate relationship between two consenting adults. The conduct on the part of Plaintiff described in the Article did not occur during the course of her duties as a police officer. Moreover, the relationship between King and Plaintiff was appropriate in light of the fact that King was at no time her supervising officer. To the extent the Article contained any issues of public concern, those related exclusively to King, not Plaintiff, and were discovered by Defendants through unlawifil means. Any alleged matter of public concern could have, and should have, been reported without any mention of Plaintiff or use of her likeness.

31. As a direct result of Defendants’ conduct, Plaintiff has suffered, and will continue to suffer, substantial damages in an amount to be proven at trial, but which exceeds $10,000 and also exceeds the amount-in-controversy requirement of 28 U.S.C. § 1332.

32. In addition, the above-described conduct of Defendants is intentional, with malice, in reckless disregard of the rights of Plaintiff; grossly negligent, and otherwise wrongful for purposes of 23 0/cIa. Stat. § 9.1 such that they should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and worth of Defendants, to render the consequences of their conduct an example to themselves and others and, in any event, in an amount at least equal to the actual damages awarded to Plaintiff for Defendants’ public disclosure of private facts.

COUNT II

INVASION OF PRIVACY — INTRUSION UPON SECLUSION

(Against all Defendants)

33, Plaintiff incorporates the allegations of paragraphs 1 through 32 above as if set forth in Count II in full.

34. This is a claim against Defendants This Land, Roberts, and Kline for invasion of privacy by intrusion upon seclusion.

35. Defendants’ acquisition and publication of the extremely private images and information about Plaintiff constitute a non-consensual intrusion upon the solitude and seclusion of Plaintiffs private affairs.

36. This intrusion is highly offensive to a reasonable person because of the intimate and private nature of the information acquired and published, and the resulting public embarrassment and harm to reputation.

37. As a direct result of Defendants’ conduct, Plaintiff has suffered, and will continue to suffer, substantial damages in an amount to be proven at trial, but which exceeds $10,000 and also exceeds the amount-in-controversy requirement of 28 U.S.C. § 1332.

38. In addition, the above-described conduct of Defendants is intentional, with malice, in reckless disregard of the rights of Plaintiff, grossly negligent, and otherwise wrongful for purposes of 23 0/cia. Stat. § 9.1 such that they should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and worth of Defendants, to render the consequences of their conduct an example to themselves and others and, in any event, in an amount at least equal to the actual damages awarded to Plaintiff for Defendants’ intrusion upon seclusion.

COUNT Ill

INVASION OF PRIVACY — APPROPRIATION

(Against all Defendants)

39. Plaintiff incorporates the allegations of paragraphs 1 through 38 above as if set forth in Count III in full.

40. This is a claim against Defendants This Land, Roberts, and Kline for invasion of privacy by appropriation.

41. Kline authored, and This Land published, the Article containing Plaintiffs name and likeness for the purpose profiting financially.

42. Kline and This Land were not given permission by Plaintiff to publish her name or likeness.

43. The pictures and descriptions of Plaintiff had no relationship or relevance to the alleged purpose of the Article, and were used purely to bring attention to the Article at the expense of substantial harm to Plaintiff’s reputation.

44. The information about Plaintiff contained in the Article was not of any legitimate public concern.

45. As a direct result of Defendant’s conduct, Plaintiff has suffered, and will continue to suffer, substantial damages in an amount to be proven at trial, but which exceeds $10,000 and also exceeds the amount-in-controversy requirement of 28 U.S.C. § 1332.

46. In addition, the above-described conduct of Defendants is intentional, with malice, in reckless disregard of the rights of Plaintiff, grossly negligent, and otherwise wrongful for purposes of 23 0/cia. Stat. § 9.1 such that they should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and worth of Defendants, to render the consequences of their conduct an example to themselves and others and, in any event, in an amount at least equal to the actual damages awarded to Plaintiff for Defendants’ appropriation.

COUNT LV

DEFAMATION — SLANDERILIBEL PER SE

(Against This Land and Kline)

47. Plaintiff incorporates the allegations of paragraphs 1 through 46 above, as if set forth in Count IV in frill.

48. This is a claim against Defendants This Land and Kline for defamation.

49. The Article authored by Defendant Kline and published by This Land contained materially false statements regarding the number of images and videos involving Plaintiff found on King’s laptop.

50. These false statements were made in bad faith, with malice, and with the specific intent of harming Plaintiff’s career and reputation. Further, the false statements about Plaintiff made by Defendants were unprivileged as they did not relate to any matter of public concern.

51. Defendants’ false statements constitute slander per se and libel per se in that they tended to injure Plaintiff in her business and in that they tended to deprive Plaintiff of public confidence.

52. It was reasonably foreseeable to Defendants when they made the false representations regarding Plaintiff that other persons would re-publish those statements to third parties.

53. Such re-publications did, in fact, occur, and Defendants are liable for such republications.

54. Plaintiff was injured by Defendants’ false representations in that she suffered special damages.

55. As a direct result of Defendants’ conduct, Plaintiff has suffered, and will continue to suffer, substantial damages in an amount to be proven at trial, and which includes, but is not limited to, the special damages suffered by Plaintiff; which sum exceeds $10,000 and also exceeds the amount-in-controversy requirement of 28 U.S.C. § 1332.

56. In addition, the above-described conduct of Defendants is intentional, with malice, in reckless disregard of the rights of Plaintiff, grossly negligent, and otherwise wrongful for purposes of 23 OkIa. Stat. § 9.1 such that they should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and worth of Defendants, to render the consequences of their conduct an example to themselves and others and, in any event, in an amount at least equal to the actual damages awarded to Plaintiff for Defendants’ defamation.

COUNT V

INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS

(Against all Defendants)

57. Plaintiff incorporates the allegations of paragraphs 1 through 56 above, as if set forth in Count V in full.

58. This is a claim against Defendants This Land, Roberts, and Kline for intentional infliction of emotional distress.

59. Defendants intentionally and/or recklessly made public highly confidential and intimate details of Plaintiffs private life.

60. Defendants’ conduct in this regard was extreme, outrageous, and beyond all standards of decency in a civilized society.

61. Plaintiff suffered severe emotional distress as a result of Defendants’ conduct.

62. As a direct result of Defendants’ conduct, Plaintiff has suffered, and will continue to suffer, substantial damages in an amount to be proven at trial, but which exceeds $10,000 and also exceeds the amount-in-controversy requirement of 28 U.S.C. § 1332.

63. In addition, the above-described conduct of Defendants is intentional, with malice, in reckless disregard of the rights of Plaintiff, grossly negligent, and otherwise wrongful for purposes of 23 OkIa. Stat § 9.1 such that they should be punished by an award to Plaintiff of exemplary and punitive damages in an amount sufficient, taking into consideration the assets and worth of Defendants, to render the consequences of their conduct an example to themselves and others and, in any event, in an amount at least equal to the actual damages awarded to Plaintiff for Defendants’ intentional infliction of emotional distress. PRAYER FOR RELIEF

WHEREFORE, Plaintiff, Christy Kellerhals, prays for judgment against Defendants, as follows:

A. Damages, including without limitation damages for emotional distress, pain and suffering, and loss of reputation, in an amount to be proved at trial, but which exceed $75,000.00, with respect to each Count;

B. Punitive and exemplary damages in an amount sufficient to render the consequences of their conduct an example to themselves and others, and in any event, in an amount at least equal to the greater of $500,000.00, or twice the actual damages awarded; C. Pa award of all costs incurred by Plaintiff in bringing and prosecuting this action, including reasonable attorney fees; D. Pre-judgment interest; and E. Such other relief to which Plaintiff is entitled at law or in equity.

Defendant This Land Press appeared and answered as follows:

1. In response to Paragraph 1 of the Petition, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations related to the residence of Plaintiff and therefore deny the same.

2. In response to Paragraph 2 of the Petition, Defendants admit This Land is based in Tulsa, Oklahoma, it is an Oklahoma limited liability company and it terms itself as a “new media” company. Further, Defendants admit that This Land produces a bi-weekly brosheet available in pnnt and on-line, a weekly television show, and audio programs. However, Defendants deny the remaining allegations contained therein.

3. In response to Paragraph 3 of the Petition, Defendants are without knowledge or information sufficient to form a belief as to the truth of the allegations related to the residence of Defendant Roberts and therefore deny the same.

4. In response to Paragraph 4 of the Petition, Defendants admit the allegations contained therein.

5. In response to Paragraph 5 of the Petition, Defendants admit the allegations contained therein.

BACKGROUND ALLEGATIONS

6. In response to Paragraph 6 of the Petition, Defendants are aware that Plaintiff is a member of the Tulsa Police Department and worked out of the Mingo Valley Division but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

7. In response to Paragraph 7 of the Petition, Defendants are aware that Plaintiff and Shawn King, a Captain in the Tulsa Police Department, were in a sexual relationship but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

8. In response to Paragraph 8 of the Petition, Defendants are aware of photographs, images and videos of a sexual nature and activities related to Plaintiff and King but deny the remaining allegations.

9. In response to Paragraph 9 of the Petition, Defendants are aware of a relationship between King and Roberts but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

10. In response to Paragraph 10 of the Petition, Defendants are aware there were communications between Plaintiff and Defendant Keena Roberts but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

11. In response to Paragraph 11 of the Petition, Defendants are aware of a Tulsa Police Department investigation regarding harassment of Defendant Roberts by Plaintiff but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

12. In response to Paragraph 12 of the Petition, Defendants were told by Defendant Roberts that in November 2011 she became suspicious of Shawn King and searched her home for signs of impropriety and found a laptop in a locked closet in her bathroom but are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

13. In response to Paragraph 13 of the Petition, Defendants are aware that Defendant Roberts discovered sexually explicit photographs, images and videos of Plaintiff and Shawn King, but deny the photographs, images and videos were private and are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

14. In response to Paragraph 14 of the Petition, Defendants admit they are aware that Defendant Roberts provided a laptop to the Internal Affairs Division of the Tulsa Police Department, submitted a complaint, and that Tulsa Police Chief Chuck Jordan issued a statement regarding why the computer was not examined. However, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

15. In response to Paragraph 15 of the Petition, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

16. Tn response to Paragraph 16 of the Petition, Defendants admit that This Land published an article on its website, www.thislandpress.com, authored by Kline, a contributing editor of This Land, titled “Conduct Unbecoming: Tulsa Police Captain, Officer Ensnared in Sex Scandal.” However, Defendants deny all remaining allegations.

17. In response to Paragraph 17 of the Petition, Defendants admit that Kline was interviewed on the “Big Bad Morning Show” on 92.1 FM and that he discussed information contained in the article referenced in Paragraph 16 of the Petition. However, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

18. Tn response to Paragraph 18 of the Petition, Defendants admit that the Article speaks for itself but deny any remaining allegations contained therein.

19. In response to Paragraph 19 of the Petition, Defendants admit that This Land initially posted two photographs of Plaintiff but deny all remaining allegations contained therein.

20. In response to Paragraph 20 of the Petition, Defendants admit that the Article speaks for itself but deny any remaining allegations contained therein.

21. Tn response to Paragraph 21 of the Petition, Defendants admit that the images were removed and replaced with the image of a TPD badge; however, Defendants object to the remaining allegations as an attempt to invade the attorney-client privilege or to suggest some legal issue and therefore deny the remaining allegations.

22. In response to Paragraph 22 of the Petition, Defendants admit that individuals commented on the online Article but deny the remaining allegations contained therein.

23. In response to Paragraph 23 of the Petition, Defendants admit that other media ran stories; however, Defendants are without knowledge or information sufficient to form a belief as to the truth of the remaining allegations and therefore deny the same.

24. In response to Paragraph 24 of the Petition, Defendants object to the extent these allegations call for a legal conclusion. Further, Defendants object to the assumption that all “statements referenced above” are admitted as averred. Defendants deny the allegations contained therein.

COUNT I

Invasion of Privacy — Publication of Private Facts

(Against all Defendants)

25. In response to Paragraph 25 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

26. In response to Paragraph 26 of the Petition, Defendants admit Plaintiff labeled this claim as one for invasion of privacy by publication of private facts but deny Plaintiff has stated a claim for invasion of privacy by publication of private facts.

27. Tn response to Paragraph 27 of the Petition, Defendants deny the allegations contained therein.

28. In response to Paragraph 28 of the Petition, Defendants deny the allegations contained therein.

29. In response to Paragraph 29 of the Petition, Defendants deny the allegations contained therein.

30. Tn response to Paragraph 30 of the Petition, Defendants deny the allegations contained therein.

31. In response to Paragraph 31 of the Petition, Defendants deny the allegations contained therein.

32. Tn response to Paragraph 32 of the Petition, Defendants deny the allegations contained therein.

COUNT II

Invasion of Privacy — Intrusion Upon Seclusion

(Against all Defendants)

33. Tn response to Paragraph 33 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

34. In response to Paragraph 34 of the Petition, Defendants admit Plaintiff labeled this claim as one for invasion of privacy by intrusion upon seclusion but deny Plaintiff has stated a claim for invasion of privacy by intrusion upon seclusion.

35. In response to Paragraph 35 of the Petition, Defendants deny the allegations contained therein.

36. In response to Paragraph 36 of the Petition, Defendants deny the allegations contained therein.

37. Tn response to Paragraph 37 of the Petition, Defendants deny the allegations contained therein.

29. In response to Paragraph 29 of the Petition, Defendants deny the allegations contained therein.

30. Tn response to Paragraph 30 of the Petition, Defendants deny the allegations contained therein.

31. In response to Paragraph 31 of the Petition, Defendants deny the allegations contained therein.

32. Tn response to Paragraph 32 of the Petition, Defendants deny the allegations contained therein.

COUNT II

Invasion of Privacy — Intrusion Upon Seclusion

(Against all Defendants)

33. Tn response to Paragraph 33 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

34. In response to Paragraph 34 of the Petition, Defendants admit Plaintiff labeled this claim as one for invasion of privacy by intrusion upon seclusion but deny Plaintiff has stated a claim for invasion of privacy by intrusion upon seclusion.

35. In response to Paragraph 35 of the Petition, Defendants deny the allegations contained therein.

36. In response to Paragraph 36 of the Petition, Defendants deny the allegations contained therein.

37. Tn response to Paragraph 37 of the Petition, Defendants deny the allegations contained therein.

38. Tn response to Paragraph 38 of the Petition, Defendants deny the allegations contained therein.

COUNT III

Invasion of Privacy — Appropriation

(Against all Defendants)

39. In response to Paragraph 39 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

40. In response to Paragraph 40 of the Petition, Defendants admit Plaintiff labeled this claim as one for invasion of privacy by appropriation but deny Plaintiff has stated a claim for invasion of privacy by appropriation.

41. In response to Paragraph 41 of the Petition, Defendants admit that Kline authored and This Land published the Article containing Plaintiff’s name and, initially, Plaintiff’s likelness, but deny the remaining allegations contained therein.

42. In response to Paragraph 42 of the Petition, Defendants object on the grounds that it assumes Plaintiff’s permission was legally required and therefore deny the allegations contained therein.

43. In response to Paragraph 43 of the Petition, Defendants deny the allegations contained therein.

44. In response to Paragraph 44 of the Petition, Defendants deny the allegations contained therein.

45. In response to Paragraph 45 of the Petition, Defendants deny the allegations contained therein.

46. In response to Paragraph 46 of the Petition, Defendants deny the allegations contained therein.

COUNT IV

Defamation — Slander/Libel Per se

(Against This Land and Kline)

47. In response to Paragraph 47 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

48. In response to Paragraph 48 of the Petition, Defendants admit Plaintiff labeled this claim as one for defamation-slander/libel per se but deny Plaintiff has stated a claim for invasion of privacy by appropriation.

49. In response to Paragraph 49 of the Petition, Defendants deny the allegations contained therein.

50. In response to Paragraph 50 of the Petition, Defendants deny the allegations contained therein.

51. In response to Paragraph 51 of the Petition, Defendants deny the allegations contained therein.

52. In response to Paragraph 52 of the Petition, Defendants deny the allegations contained therein.

53. In response to Paragraph 53 of the Petition, Defendants deny the allegations contained therein.

54. In response to Paragraph 54 of the Petition, Defendants deny the allegations contained therein.


55. Tn response to Paragraph 55 of the Petition, Defendants deny the allegations contained therein.

56. Tn response to Paragraph 56 of the Petition, Defendants deny the allegations contained therein.

COUNT V

Intentional Infliction of Emotional Distress

(Against all Defendants)

57. In response to Paragraph 57 of the Petition, Defendants adopt previous responses to the allegations set forth hereinabove as if fully set forth and incorporates the same by reference.

58. In response to Paragraph 58 of the Petition, Defendants admit Plaintiff labeled this claim as one for intentional infliction of emotional distress but deny Plaintiff has stated a claim for intentional infliction of emotional distress.

59. In response to Paragraph 59 of the Petition, Defendants deny the allegations contained therein.

60. In response to Paragraph 60 of the Petition, Defendants deny the allegations contained therein.

61. In response to Paragraph 61 of the Petition, Defendants deny the allegations contained therein.

62. In response to Paragraph 62 of the Petition, Defendants deny the allegations contained therein. 63. In response to Paragraph 63 of the Petition, Defendants deny the allegations contained therein.

DEFENSES

1. Some or all of Plaintiff’s allegations fail to state a claim upon which relief can be granted against Defendants.

2. Some or all of Plaintiff’s claims may be barred by the relevant statute of limitations, and/or the doctrine of waiver, estoppel, and/or release.

3. Consent was not required with respect to Plaintiff’s claim for invasion of privacy by appropriation.

4. Images captured on public property are not private with respect to Plaintiff’s claims for invasion of privacy by intrusion upon seclusion and by publication of private facts.

5. Defendants did not commit any act of legally actionable intrusion with respect to Plaintiff’s claim for invasion of privacy for intrusion upon seclusion.

6. Plaintiff waived her privacy rights by voluntary and intentional relinquishment or abandonment of her known rights with respect to each of Plaintiffs claims for invasion of privacy.

7. Defendants have qualified privileges with respect to Plaintiffs claim of invasion of privacy by publication of private facts and defamation.

8. The information published by Defendants was for the public benefit/interest.

9. The information published by Defendants was newsworthy and of legitimate public interest.

10. Defendants’ publications in this matter are protected speech under the First Amendment of the Constitution of the United States of America and under the Constitution of the State of Oklahoma.

11. Defendants’ publications in this matter are fair comment.

12. The matters/statements contained in the Defendants’ publications are true.

13. Any damages suffered by Plaintiff are a result of her own conduct and in no way were caused by or attributed to Defendants.

14. Defendants reserve the right to amend, supplement or change any defenses as discovery proceeds.

WHEREFORE, Defendants pray: (a) that judgment be granted in their favor and against Plaintiff on the claims asserted in the Petition; (b) that Plaintiff take nothing by reason thereof; (c) that Defendants be awarded its costs of defending this action, including reasonable attorney’s fees; and (d) any other and further relief be afforded to Defendants that is just and proper.

JURY TRIAL DEMANDED.

Joshua Kline, Michael Mason, Vincent Lovoi, and Keena B. Roberts appeared and answered.

Defendant Keena Roberts' Motion to Dismiss asserted:

The Supreme Court of Oklahoma formally recognized all four torts of invasio of privacy as set out in The Second Restatement of Torts. McCormack v. Oklahoma Pub. CO., 613 P.2d 737, 740. Under the tests set forth in The Restatement, all three claims for invasion of privacy against Defendant Roberts should be dismissed for failure to state claims for which relief can be granted. While Plaintiff has tactfully alleged the exact elements of each tort, there is no set of facts that can support the claims beyond baseless allegations and entitle Plaintiff to relief from Defendant Keena Roberts.

1. FIRST CLAIM: PUBLICATION OF PRIVATE FACTS—R2D § 652 D

a. Elements:

i. Public disclosure

ii. Of a private fact

iii. Which would be offensive and objectionable to a reasonable person

iv. That is not of public concern//newsworthy

Plaintiff’s first claim of invasion of privacy by publication of private facts must be dismissed based on the pleading because there is no set of facts that would entitle Plaintiff to relief from Defendant Keena Roberts. To sustain a claim of invasion of privacy by publication of private facts, Plaintiff would have to show that Roberts publicly disclosed Plaintiff’s private facts, which were not newsworthy, and such action would be considered offensive and objectionable to a reasonable person. Plaintiff fails to sufficiently allege facts against Roberts, and instead uses a sensationalized story to feign hami. Dismissal is the only appropriate action.

The tort of invasion of privacy intends to protect the personal lives of individuals from invasive publications of private facts. The First Amendment right to Freedom of Speech tempers this individual protection, as the interest of privacy must be balanced with the freedom of the press. Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975). As now applied, the test is that where private facts relate to a newsworthy topic of public concern, there is no invasion of privacy. Id.

In Gray v. Udevitz, the Tenth Circuit held that even street level policemen, not only high ranking officers, qualify as public officials. 656 F.2d 588 at 591. The Second Restatement of Torts § 652 D, Official Comment (e) outlines how voluntary public figures, which specifically includes police officers, have a broader scope of public interest into their lives. R.2d Torts § 652(D) cmt. (e). This scope can extend beyond the circumstances which made them public officials. Id Together, case law has created a lowered standard for the publication of private facts of public officials because the public has a heightened concern and interest into their personal lives. Here, because Plaintiff is a police officer, any private fact that relates to a public concern must be considered newsworthy and therefore is not actionable. Because the public has a legitimate interest in a sex scandal about a Police Captain and alleged actions while on-duty and with other officers, any private fact surrounding that issue is not to be treated as an invasion of privacy. Therefore, because the facts in question about Plaintiff stemmed from a newsworthy story of legitimate public interest, there is no cause of action which could provide Plaintiff relief from Defendant Keena Roberts.

b. SECOND CLAIM: INTRUSION UPON SECLUSION

i. R.2d § 652 B Elements

1. Intentional intrusion,

2. On the solitude or seclusion of another or his private affairs, and

3. Which is highly offensive to a reasonable person

Invasion of privacy by intrusion upon seclusion requires not only a specific intent on the part of the invader, but also an actual seclusion on the part of the Plaintiff. The situation here is completely devoid of those two elements. Neither was Roberts acting with the intent of offensively invading the seclusion of Plaintiff, nor had Plaintiff secluded and protected the information that was later presented to This Land Press. Therefore, without any facts to support the requisite elements of this tort as against Defendant Roberts, the claim must be dismissed.

Through the entire course of Roberts’s actions, starting with accessing the computer and ending with sharing her concerns with the newspaper, her only intent was to bring Captain Shawn King’s scandalous story to justice. When she was granted no recourse from governmental agencies, she utilized her last resort of appealing to the public. BackgroundAllegations, ¶J 14, 15, 16. Plaintiff was nothing more than an unforeseen part of Captain King’s story, and was of no consequence to the actions taken by Defendant Roberts.

For a claim of invasion upon seclusion to stand, there must first be a protected seclusion to invade, Plaintiff openly admits that Captain Shawn King was living at Defendant Roberts’ house while in possession (on a computer) of the images that later appeared in This Land Press’ online article. Background Allegations, ¶ 8, 9. Plaintiff also admits that the access to the photos in question originated in Defendant Roberts’ own house. BackgroundAllegations, ¶J 12, 13. In alleging this claim, Plaintiff overlooks the fact that she neither has a right to solitude within the home of another, nor has she taken any steps to preserve the seclusion of the images that she freely shared with a third party via electronic transmission through cyberspace. Even if Defendant Roberts had acted with intent to intrude on the seclusion of Plaintiff, it could not have been accomplished by entering a room in Defendant’s own house and accessing a computer not owned by Plaintiff.

Furthermore, this claim cannot be supported by any facts as to pass the test of a reasonable person finding this intrusion to be highly offensive. While Oklahoma has little analogous case law, the Superior Court of New Jersey has ruled on a strikingly similar situation. In White v. White, a husband, who was in the process of divorce but still living in a living room of the marital home, sued his wife for accessing files which originated in his private email but were saved to a publicly accessible place on their shared computer. 334 N.J.Super. 211(2001). Accordingly, the court held:

The crux of the issue is that the intrusion must be ‘highly offensive to a reasonable person.’ And that conclusion turns on one’s reasonable expectation of privacy. A ‘reasonable person’ cannot conclude that an intrusion is ‘highly offensive’ when the actor intrudes into an area in which the victim has either a limited, or no expectation of privacy. Expectations of privacy are established by general social nomis. And, using a Fourth-Amendment analysis for purposes of analogy, one’s expectation of privacy must be reasonable- objectionably reasonable. A person’s expectation of privacy to a room used for storage and to which others have keys and access is not reasonable. Plaintiff’s subjective belief that the room was private is ‘irrelevant’.

Id., at 222, 223. Where Plaintiff knew that once-private images were stored on a computer of a separate individual, who was admittedly no longer in a relationship with her, and that the computer was kept at the residence of a third-party, there can be no objectionably reasonable expectation of privacy. Plaintiff alleged no steps taken to ensure the privacy of the images and facts about her sexual encounters with Captain Shawn King. Without a reasonable expectation of privacy, there can be no intrusion which is highly offensive. Therefore, because these essential elements cannot be supported by any factual scenario presented by Plaintiff, even when taken as true, the claim must be dismissed.

c. THIRD CLAIM—APPROPRIATION OF LIKENESS OR IMAGE

i. R,2d § 652 C elements:

1. Appropriation

2. Of a name or likeness of another

3. For one’s own use or benefit

Plaintiff fails to state a claim for which relief can be granted for the use of her image and likeness by This Land Press, so the claim against Defendant Roberts should be dismissed. Until the value of the name has in some way been appropriated, there is no tort for appropriation. LeFlore v. Reflections of Tulsa, 708 P.2d 1068 (1985). This is a cause of action for when the value of an individual’s name or image has been used without consent by another for their commercial benefit or personal use. The Petition clearly alleges that Defendants This Land Press and Joshua Kline benefitted financially from the publication of the article, however no such mention of a use or benefit to Roberts was alleged. Plaintiff’s failure to allege any facts which would support a finding that Defendant Roberts has personally benefitted from providing This Land Press with the story about Captain Shawn King mandates that the claim against Roberts be dismissed for failing to allege an essential element to the claim.

Even if the Court believes that Roberts has appropriated Plaintiffs image, the count still must fall. Appropriations which are only incidental to the main purpose of the work at hand are not actionable. The Second Restatement of Torts § 652 C, cmt d. states “the value of the plaintiffs name is not appropriated by mere mention of it, or by reference to it in connection with legitimate mention of his public activities; nor is the value of his likeness appropriated when it is published for purposes other than taking advantage of his reputation, prestige, or other value associated with him, for purposes of publicity.” No person is inmiune from their name, likeness, or image being used in conjunction with issues of public concern. Because the purpose of the published story was regarding the sexual scandal about a Tulsa Police Captain, and was not intended to benefit from the value of Plaintiff’s name or image, the use was nothing more

than incidental. Therefore, any appropriation of Plaintiff’s name or image is not actionable, and the existing claim against Defendant Roberts should be dismissed.

2. FIFTH CLAIM: Intentional Infliction of Emotional Distress—R.2d § 46.

a. Elements:

i. Extreme and outrageous conduct

ii. Intentionally or recklessly done

iii. Which caused severe emotional distress

Plaintiffs claim against Defendant Roberts for Intentional Infliction of Emotional Distress should be dismissed because there is no set of facts which could entitle Plaintiff to relief. This claim is nothing more than an attempt of Plaintiff to vengefully seek punitive damages from Defendants, especially Roberts.

The Supreme Court of Oklahoma has adopted the legal standard for this claim which is set forth in The Second Restatement of Torts. Breeden v. League Services Corp., 575 P.2d 1374 (1978). The Court there set forth a test which begins with the court making a determination on whether a defendant’s conduct rises to the level of so extreme and outrageous and whether such severe emotional distress can be found as to permit recovery. Only where this dual first-prong is satisfied may ajury determine whether both elements have in fact occurred. Id. at 1377, 8.

For conduct to reach the level of becoming a cause of action, it must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Id. at 1378. In deciding on this standard, the Court looked to several authorities on torts, including Prosser himself, who stated:

“There is the further and still more significant, evident of serious danger of fictitious claims and vexatious suits in such ease. Petty insults or indignity lacks, from its very nature, any convincing assurance that the asserted mental distress is genuine, or that it is serious, and unreasonable. When a citizen who has been called a son of a bitch testifies that the epithet had destroyed his slumber, mined his digestion, wrecked his nervous system, and permanently impaired his health, other citizens who on occasion have been called the same thing without catastrophic harm may have legitimate doubts that he was really so upset, or that if he were his sufferings could possibly be so reasonable and justified under the circumstances as to be entitled to compensation. Accordingly, it is generally held that there can be no recovery for mere profanity, obscenity, or abuse, without circumstances of aggravation, or for insults, indignities, or threats which are considered to amount to nothing more than mere annoyances.”

Applying these standards to the facts alleged in Plaintiff’s petition, there is no viable claim or entitlement to relief as against Defendant Keena Roberts. To begin with, the actions of Roberts, as alleged in the Petition, demonstrate the lack of intentional or reckless intent to cause Plaintiff harm. Defendant Roberts sought help first from the Tulsa Police Department Internal Affairs, and then from the Federal Bureau of Investigation.

Background Allegations, ¶J 13, 14. Plaintiff admits that it was only once these agencies denied her help that she went to the press with the story of Captain Shawn King. BackgroundAllegations, ¶ 16. If Defendant Roberts had any intent to harm Plaintiff, the press would have been the first option sought; however because Defendant Roberts was only concerned with bringing attention to the scandal surrounding a Tulsa Police Captain, the press was her last resort. Even where the allegations of Plaintiff are taken as true as to the intentional or reckless motive of Defendant Roberts, the action is far from rising to the requisite level of actionable behavior, While having a story published in a small local newspaper may have embarrassed Plaintiff, it cannot be argued that Roberts’ action of presenting the laptop to This Land Press rises to the level of conduct which is neither ‘beyond all bounds of decency’ nor can be regarded as ‘utterly intolerable in a civilized community,’ and therefore is not actionable. Hurt feelings do not make a cause of action. Eddy v. Brown, 715 P.2d 74(1986).

Further, the allegation that Plaintiff has been suffered severe emotional distress is without merit. As Prosser commented, the fear of fictitious and vexatious claims is a greater concern than is an unconvincing claim about petty insults or indignities. As there is no set of facts to support Plaintiffs allegations about Defendant Roberts’ actions rising to the level of extreme and outrageous, there is also no set of facts that could support that Plaintiff suffered such extreme emotional toil from this public embarrassment as to justif’ any cause of action. Therefore, this claim must be dismissed as to Defendant Roberts.

WHEREFORE: Defendant Keena Roberts prays this Court dismiss the Petition, grant her an award of her attorneys fees, and any other relief that the Court deems just and proper.

Outcome: Settled and dismissed with prejudice.

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