Clark v. Time Inc.

Citations: 242 F. Supp. 3d 1194; 102 Fed. R. Serv. 1165; 2017 U.S. Dist. LEXIS 38498; 2017 WL 1021454Docket: Case No. 15-9090-DDC-KGG

Court: District Court, D. Kansas; March 16, 2017; Federal District Court

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The case involves a lawsuit filed by Terry J. Clark against Time Inc. and Heartland Golf Development II, LLC, stemming from an article published on May 29, 2014, on GOLF.com, which criticized Clark, then General Manager of Hillcrest Country Club, by referring to him as "Vlad the Impaler." Clark claims the article contains false statements that have harmed his reputation and emotional well-being, leading to two legal claims: defamation and intentional infliction of emotional distress, both under Kansas law. The defendants filed motions for summary judgment, asserting there are no genuine issues of material fact warranting a trial. 

Additionally, Clark filed two motions to strike the defendants' summary judgment motions, arguing they failed to serve him with a required notice for pro se litigants. The court denied these motions, explaining that the defendants were not obligated to serve the notice since Clark was represented by counsel at the time the motions were filed. The court also addressed the defendants’ own motions to strike certain materials submitted by Clark in response to their summary judgment motions, granting some and denying others.

Plaintiff was required to respond to defendants' summary judgment motions within 21 days, by August 5, 2016, according to D. Kan. Rule 6.1(d). He failed to file responses by this deadline, instead submitting a motion to remove his attorney, Dan Williams, due to disagreements on case strategy, and simultaneously requesting an extension until August 22 to respond to the motions. A telephone conference on August 9, 2016, resulted in the magistrate judge granting both the attorney's withdrawal and the plaintiff's extension request. Subsequently, plaintiff proceeded pro se and timely filed his responses by the extended deadline.

The court noted that since plaintiff had legal representation when the defendants filed their motions, they were not obligated to serve him with a Pro Se Notice under D. Kan. Rule 56.1(f). Although the defendants could have served this notice to aid the plaintiff in understanding summary judgment procedures, their failure to do so did not warrant striking their motions, especially since the plaintiff was not harmed by the omission. The plaintiff demonstrated familiarity with the relevant rules, cited D. Kan. Rule 56.1 in his responses, and complied with both federal and local rules regarding summary judgment, including addressing each numbered statement of fact and supporting his claims of disputed facts with appropriate citations. Additionally, he provided further factual statements to contest the summary judgment, aligning with the requirements of D. Kan. Rule 56.1(b)(2).

Under D. Kan. Rule 56.1(b)(2), a party opposing summary judgment must present any additional facts in separately numbered paragraphs with record citations. The plaintiff complied with local rules by appending summary judgment materials to his responses, including 22 exhibits for defendant Heartland Golf and 14 exhibits for defendant Time Inc. Consequently, the plaintiff cannot claim that the lack of a Pro Se Notice hindered his response to the summary judgment motions. The court's decision to grant summary judgments against the plaintiff was based on the merits of his claims and not on his understanding of summary judgment rules. The court subsequently denied the plaintiff's Motions to Strike the defendants' summary judgment motions.

Regarding the defendants’ Motions to Strike, they sought to exclude Debra Taylor’s Affidavit, arguing it should be excluded because the plaintiff did not identify her in his Rule 26 disclosures. Federal Rule 37(c)(1) mandates automatic exclusion of undisclosed evidence unless the failure is justified or harmless. The court will consider factors such as prejudice to the defendants, the ability to cure this prejudice, disruption to trial proceedings, and the moving party’s intent. The factors indicated that the Affidavit should be excluded due to the defendants' surprise and prejudice from the lack of notice regarding Ms. Taylor. The plaintiff's prior deposition contradicted the Affidavit's assertions, complicating the situation further. Reopening discovery to address this issue would disrupt the proceedings and require additional time, which the court also considered.

Plaintiff's failure to disclose Ms. Taylor as a witness is deemed willful, as he has known her since childhood and discussed the article relevant to the lawsuit with her. Despite knowing her well, he did not include her in disclosures. Plaintiff claims he could not disclose her affidavit because it was only recently obtained, but the court notes he had access to its substance beforehand. Ms. Taylor’s affidavit mentions that she has been advised by plaintiff on business matters since 2012 and that she faced harassment from her bank linked to plaintiff's involvement in a project. The court finds that the failure to disclose Ms. Taylor justifies exclusion of her affidavit, yet declines to exclude it entirely as the late disclosure is deemed harmless. However, paragraphs 13 and 14 of the affidavit are excluded due to inadmissible hearsay, which cannot be considered on summary judgment as it would be inadmissible at trial. Hearsay statements made by Ms. Taylor regarding conversations with a banker about plaintiff's reputation do not meet any exceptions to the hearsay rule. Additionally, defendants request to strike a document marked as Exhibit 190 that plaintiff claims contains internet comments about Hillcrest Country Club, arguing it was not disclosed as required by Rule 26. Plaintiff defends that he only recently obtained the document.

Comments from 2012 and 2013 were available to the plaintiff before disclosure, leading defendants to argue for exclusion due to lack of justification. The court opts not to determine whether the non-disclosure was justified, instead excluding the document on the basis of lack of authentication, as only admissible evidence can be considered in summary judgment (Fed. R. Civ. P. 56(c)(2)). To authenticate evidence, the proponent must provide sufficient evidence to support its claimed identity (Fed. R. Evid. 901(a)). The court finds that the plaintiff failed to authenticate Exhibit 190, which purportedly contained genuine internet comments, as the plaintiff did not respond to challenges regarding its authenticity.

Defendants also moved to strike specific paragraphs (11-13 and 15-20) from plaintiff's Affidavit, which included inadmissible hearsay—out-of-court statements by four individuals about the article in question, offered to prove its falsity. The court agrees these statements constitute hearsay and there is no applicable exception, rendering them inadmissible for summary judgment.

Furthermore, defendants sought to strike Exhibit 155, described by the plaintiff as containing emails from Chad Weinand. The plaintiff did not respond to this motion, resulting in a waiver of the right to contest the request. The court treats the motion as uncontested and excludes Exhibit 155 for multiple reasons: it violates the best evidence rule, as the plaintiff did not provide the original emails but merely a copied document, which the court considers inadmissible (citing United States v. Jackson). Additionally, Exhibit 155 contains hearsay, further supporting its exclusion.

Plaintiff's attempt to use Mr. Weinand's out-of-court statements to establish the falsity of an article is deemed inadmissible hearsay, leading to the exclusion of Exhibit 155. The court partially grants and denies defendants' motions to strike, allowing Ms. Taylor’s Affidavit but striking paragraphs 13 and 14 due to hearsay. Other summary judgment materials are struck for lack of authentication, hearsay, or not being the best evidence. Even if this material were considered, it would not create genuine issues of fact regarding the plaintiff's defamation claim or support a claim for intentional infliction of emotional distress, warranting summary judgment against both claims. 

Defendants' summary judgment motions, filed separately, argue that the plaintiff's claims fail as a matter of law. The court concurs and will address the motions collectively. Key facts include the publication of a May 29, 2014 article by Time Inc. about Hillcrest Country Club, which describes the club's history and resurgence. Authored by John Garrity, the article reflects his personal connection to the club and its significance in his life. The court assesses all facts in the light most favorable to the plaintiff when considering the summary judgment motions.

Mr. Garrity's article employs hyperbolic language to critique Hillcrest Country Club's management and financial struggles, particularly under the leadership of the former General Manager, referred to as "Vlad the Impaler." This pseudonym symbolizes the damaging impact of his management style, which allegedly led to significant member attrition. The article highlights Hillcrest's financial difficulties when purchased by David Francis in 2006, exacerbated by a nationwide real estate downturn that led to the closure of over 600 golf courses.

Mr. Francis attempted to improve the situation by hiring a business partner, but this partner's "management rampage" further alienated club members. The article details various actions attributed to "Vlad," including a controversial directive to stop serving Heinz ketchup and a lawsuit against former members for breach of contract. It also criticizes his neglect of the golf course, mentioning significant deferred maintenance and a poorly executed replacement of a Donald Ross-designed green.

The narrative culminates with Francis's decision to fire "Vlad," which sparked a series of lawsuits that drew media attention. The article concludes by describing the dire state of Hillcrest, now financially crippled and lacking in staff and membership. Additionally, statements from Heartland Golf representatives, including Francis and the current General Manager Kurt Everett, further illustrate the club's operational issues and mismanagement under "Vlad."

Francis expresses distress over the destruction of a golf course, taking responsibility for not intervening sooner and emphasizing that the incident does not reflect his family's values or integrity. He asserts that they have consistently fulfilled their commitments. Everett describes the golf course as a valuable and intellectually engaging asset worth preserving. 

John Garrity, a seasoned sports writer and former Special Contributor to Sports Illustrated, authored the article in question after extensive research, including interviews with current and former Hillcrest Country Club management, employees, and members. He conducted independent research on country club finances and operations but found no reason to doubt the article's accuracy, believing its statements to be true. Garrity received no compensation from Hillcrest Country Club, only his standard pay from Sports Illustrated.

The plaintiff learned about the article in September 2014 and consulted his attorney after reading it. Initially unfamiliar with the historical figure Vlad the Impaler, he discussed the article's content only with his attorney. Six months later, he reached out to Chad Weinand and Rusty Hamman, both familiar with the golf course's operations. Both contacts dismissed the article as false, with Weinand describing it as "a pack of lies." The plaintiff also shared his opinions about the article with friends, including John Miles and Debby Taylor, both of whom did not believe the article's claims. He further contacted Steve Vockrodt, a former reporter, to investigate the article further.

Plaintiff indicated willingness to discuss inaccuracies in an article with Mr. Vockrodt, suggesting that Mr. Garrity was using Sports Illustrated to harm his reputation. Following the article's publication, plaintiff applied for jobs at ClubCorp and Billy Casper Golf, receiving only confirmation of his application with no further communication. He also contacted Brookridge Country Club but received no response, and expressed interest in a management position at Sycamore Ridge Golf Course without any follow-up. Plaintiff did not pursue other job applications, business transactions, or financing since the article’s release. He claimed no economic losses or lost opportunities due to the article; however, he reported experiencing significant anxiety, leading him to take prescription medication starting around March or April 2016. Previously, he had taken anxiety medication in 2011 after being fired from Hillcrest Country Club. Despite these claims, he provided no documentation of medical treatment related to the article.

Other publications have reported on plaintiff's management of Hillcrest Country Club, detailing issues such as a pending foreclosure sale and ownership disputes with David Francis. Articles highlighted the decline in membership and disputes between plaintiff and Francis, including a legal battle that involved plaintiff's refusal to leave the clubhouse after being fired. The coverage noted that Hillcrest faced numerous lawsuits and significant management challenges during plaintiff's tenure.

Francis and the plaintiff engaged in litigation over ownership of Hillcrest Country Club after their partnership soured, resulting in a significant decline in club membership. A former club president noted severe neglect, describing the club's condition with dead trees and deferred maintenance. The plaintiff made controversial design alterations to the Donald Ross-designed golf course, which were criticized by golf writer John Garrity, who likened the changes to putting a mustache on the Mona Lisa. Following a publication by The Kansas City Star, the plaintiff contacted journalist Steve Vockrodt to investigate and write about their legal dispute, resulting in an article detailing how mismanagement led to a mass exodus of club members. Former members expressed dissatisfaction with the management, citing a decline in services and overall quality. The article further described ongoing litigation between Francis and the plaintiff, focusing on personal property disputes, including a missing gun. Francis's legal team raised concerns over the plaintiff's failure to return the gun after they were ordered by the judge to do so, claiming the plaintiff could not locate it. Public court filings reflected club members' opinions on the plaintiff's management style, contributing to the negative perception and legal battles surrounding the club.

Hillcrest Country Club's Chapter 11 bankruptcy filing outlines significant issues related to its management under the plaintiff, who served as General Manager. Despite initial improvements, the club was never profitable, with membership plummeting from approximately 250 in 2008 to less than 50 by 2010 due to economic downturns and management practices. By early 2011, a management reorganization was deemed necessary, leading to the plaintiff's termination.

Former members provided sworn statements criticizing the plaintiff's management style, reporting aggressive behavior and disdain towards members. Allegations included threats of lawsuits against resigning members and derogatory treatment of club members. Specific incidents noted included the expulsion of a member for criticizing management via email, with the member finding the content of the email largely valid.

Additionally, members expressed dissatisfaction with the golf course's condition during the plaintiff's tenure, citing inadequate maintenance such as uncut grass and poor service standards. Complaints highlighted the club's decision to reduce mowing to save costs, resulting in delays and confusion for golfers. Members also criticized unauthorized redesigns of the golf course that deviated from an established master plan, which diminished the overall quality and enjoyment of the club. The excessive growth of grass and amateurish modifications contributed to a significant downturn in the club's appeal.

Plaintiff served as General Manager of Hillcrest Country Club, overseeing all operations, including a new green project. He described club members derogatorily and portrayed himself as attempting to rectify the club's financial issues. During his tenure, he hosted a conservative talk radio show under the name Gabby Haze, where he criticized Democratic officials and created parodies of various public figures. His local activism earned him media recognition, including a listing in the Olathe News as one of the community's notable figures, highlighting his grassroots influence and polarizing presence.

Regarding legal standards, summary judgment is granted when the moving party proves no genuine dispute exists over any material fact and is entitled to judgment as a matter of law, with courts viewing evidence favorably for the non-moving party. A genuine issue of fact arises if reasonable jury conclusions could differ, and a material issue is essential for claim resolution. The moving party holds the burden of proof in establishing the appropriateness of summary judgment.

The moving party in a summary judgment motion does not need to disprove the non-movant’s claims but must demonstrate an absence of evidence supporting those claims. If this initial burden is met, the non-moving party must then provide specific facts indicating a genuine issue for trial regarding the matters for which it bears the burden of proof, substantiated by affidavits, depositions, or specific exhibits. Summary judgment is a legitimate procedural tool aimed at expediting the resolution of cases.

In this context, the plaintiff has asserted two claims under Kansas law: defamation and intentional infliction of emotional distress, with the defendants moving for summary judgment on both. The court examines each claim, starting with defamation, which encompasses both libel and slander. To succeed, a plaintiff must show that the defendant made false and defamatory statements, communicated them to a third party, and caused reputational harm. A corporation can be held liable for defamatory remarks made by its agents within the scope of their authority. Truth and privilege are recognized as defenses against defamation claims, with qualified privilege requiring the plaintiff to prove the statements were false and made with actual malice.

In this case, the court finds no genuine issues of material fact regarding the plaintiff's defamation claim. Specifically, there is insufficient evidence to show that the plaintiff suffered reputational harm due to the article in question or that any of its statements were false and defamatory. Consequently, the court grants summary judgment against the plaintiff's defamation claim based on these findings.

The plaintiff has failed to provide admissible evidence that prospective employers did not hire him due to the publication of an article. His claim of suffering anxiety as a result of the article is insufficient for a defamation action in Kansas, which requires proof of injury to reputation. As established in Kansas case law, defamation claims focus on reputational harm rather than personal sensitivities. Without evidence demonstrating damage to his reputation, the plaintiff's claim cannot succeed. The plaintiff's reliance on Debra Taylor’s affidavit is problematic because it contains hearsay, and even if considered, it does not create a factual dispute. In his deposition, the plaintiff acknowledged that he had not lost any business opportunities due to the article. Taylor expressed doubts about hiring the plaintiff after reading the article but continued to employ him and did not attribute her decision not to hire him again to the article's contents. Additionally, while Taylor mentioned harassment from her bankers after they found information about the plaintiff online, she did not specify whether it was the article in question. The plaintiff’s assertion that his reputation has suffered because searches will reveal the article is speculative and unsupported, as it assumes that the article would be found and would lead to a negative perception of him. Overall, mere speculation is insufficient to counter a motion for summary judgment.

Plaintiffs' defamation claim is dismissed due to a lack of evidence demonstrating that the article harmed their reputation. The court identifies two reasons for granting summary judgment: first, there is insufficient evidence for a jury to determine that the article was damaging; second, the statements in question are neither false nor defamatory. For a defamation claim to succeed, a statement must be both false and defamatory. A statement is considered defamatory if it diminishes the plaintiff's esteem or incites negative feelings towards them. The court must evaluate whether a statement can convey a defamatory meaning by considering the full context of the communication. 

The falsity requirement stipulates that published statements must not be true; if they are substantially true, liability does not arise. Additionally, statements of opinion are not actionable unless they imply undisclosed defamatory facts. The determination of whether a statement is factual or opinion-based is a legal question for the court, which must analyze the communication's overall nature. 

Plaintiff's arguments regarding the defamatory nature of the article are described as generalized, labeling the article as a "malicious hit piece" aimed at damaging his reputation. The only specific statement identified by the plaintiff as defamatory is the use of the name "Vlad the Impaler," which he claims is unprofessional and undermines the rule of law. Although the plaintiff referenced additional purportedly defamatory statements elsewhere, defendants argue that his failure to include these in the Pretrial Order waives his right to rely on them, as the Pretrial Order governs the case unless modified by the court.

Claims, issues, defenses, or damage theories not included in the pretrial order are waived, regardless of their presence in the complaint. In evaluating whether statements made by the plaintiff are defamatory, the court must consider if they are false and capable of conveying a defamatory meaning. A defamatory statement must harm the plaintiff’s reputation or evoke negative feelings and must imply disgrace. The plaintiff has failed to provide admissible evidence showing that the alleged statements diminished his reputation or caused derogatory opinions about him, leading the court to doubt their defamatory nature.

The first statement in question identifies David Francis as the owner of Hillcrest Country Club since 2006. The plaintiff argues this is false, as the corporate entity, Heartland Golf, owns the club, although Francis and his family members are the equity owners. The court finds the distinction too minor to be actionable, akin to a previous case where a slight discrepancy was deemed insignificant for defamation claims.

The second statement refers to the former General Manager's actions as a "management rampage," described as "disturbing." The plaintiff acknowledges that the term "disturbing" is an editorial comment and therefore an opinion, which cannot form the basis of a defamation claim as it cannot be proven true or false. The court notes that while opinions can support defamation actions, they must imply undisclosed defamatory facts to be actionable. In this case, the characterization of a "management rampage" does not meet that threshold, as it is subjective and not factually verifiable.

Mr. Garrity disclosed the basis for his opinion that the plaintiff engaged in a management rampage, supported by substantially true facts. Legal precedent indicates that a statement is not actionable for defamation if the essence of the claim is true, regardless of minor inaccuracies. In this case, the article mentions an incident where the former General Manager reprimanded a member for leaving a drink on the piano, to which the plaintiff admitted he likely commented. Additionally, the article states that the club sued members attempting to resign, a claim supported by uncontroverted evidence that the club engaged in such lawsuits. There is a minor distinction regarding whether the plaintiff or the corporation initiated the suits, which does not undermine the truth of the statement.

The article also asserts that the plaintiff's management caused a decline in club membership, with evidence supporting this during the plaintiff's tenure. Even if the plaintiff contests certain events cited by Mr. Garrity, the discrepancies are insufficient to substantiate a defamation claim, as technical differences are deemed non-actionable.

Regarding a claim about the removal of Heinz ketchup, the plaintiff argues this statement is false, asserting he did not order products based on political beliefs. However, he does not demonstrate how this statement is defamatory, especially as it aligns with his expressed political views. The article’s use of the phrase "Cherchez la femme" is not directed at the plaintiff but rather refers to John Kerry’s wife, thus not constituting defamation.

Lastly, the article claims the plaintiff removed benefits for club members, including social memberships for widows of former club presidents. The plaintiff counters that there is no evidence provided by the defendants to substantiate this claim about membership rule changes.

Plaintiff acknowledged enforcing membership rules at Hillcrest Country Club and assumed full responsibility for club operations, indicating that statements regarding his enforcement are substantially true. The article reported a decline in club membership from approximately 250 in 2008 to fewer than 50 by 2010, a fact supported by bankruptcy documents and news reports, which the plaintiff did not contest. Regarding lawsuits against club members attempting to resign, the plaintiff admitted that the club initiated such actions, but he argued that the club, not he personally, filed them. However, since plaintiff claimed overall responsibility for club actions, the distinction is seen as minor and not sufficient to deem the statement false. Additionally, former members corroborated that the plaintiff boasted about these lawsuits, leaving no triable issue regarding their truth. Changes made to the golf course, including the ninth green, were acknowledged by the plaintiff, who confirmed his involvement in supervising these modifications. Hyperbolic statements in the article about Donald Ross were deemed rhetorical and not actionable. Lastly, claims that the plaintiff neglected maintenance of the golf course are presented as opinion rather than factual assertions.

Mr. Garrity, in an affidavit, maintains that he believed and continues to believe that the plaintiff did not adequately maintain the golf course during his tenure as General Manager. This belief is based on information from club employees and members, who provided sworn testimony about deferred maintenance and poor conditions, including infrequent mowing. Several newspaper articles prior to the GOLF.com article in question also addressed maintenance issues at the club, with one article featuring a quote from a former member criticizing the club's upkeep.

The plaintiff's sole counter-evidence is his own affidavit, claiming that the comments about poor maintenance are "completely false" and detailing maintenance projects he oversaw. However, this affidavit is merely his opinion and does not substantiate the falsity of Garrity's statements, which are deemed not provable as true or false. Furthermore, Garrity disclosed the basis of his opinion, and summary judgment facts indicate that the information he relied upon is largely true, thus undermining the plaintiff's defamation claim regarding the golf course's condition.

The plaintiff also challenges statements about renovations at the clubhouse, a tarp-covered pool, and a closed picnic area as defamatory. However, these statements refer to conditions after the plaintiff's employment ended and do not directly implicate him, with the plaintiff acknowledging that they do not disgrace him.

Additionally, statements regarding Mr. Francis’s efforts to save Hillcrest do not refer to the plaintiff and, therefore, cannot be considered defamatory. The article's reference to the term "Vlad the Impaler" is characterized as hyperbole rather than defamation, conveying Garrity's opinion of the plaintiff's harsh management style. As such, no reasonable jury could find these statements defamatory.

Plaintiffs' claims for defamation and intentional infliction of emotional distress have been dismissed by the court. Under Kansas law, the exaggerated description of the plaintiffs' management style does not constitute defamation, as no reasonable jury could determine that the statements were both false and defamatory. Consequently, the court grants summary judgment against the defamation claim.

Regarding intentional infliction of emotional distress, Kansas law requires a high standard for this tort, which includes four elements: intentional or reckless conduct by the defendant, extreme and outrageous conduct, a causal connection to the plaintiff’s mental distress, and that the distress is severe. The court finds that the evidence does not support a claim for either extreme and outrageous conduct or severe mental distress, as the conduct must exceed mere criticism or unkindness and be intolerable in a civilized society. The plaintiff's assertion that being misrepresented in an international publication constitutes extreme conduct is inconsistent with Kansas case law, which has upheld summary judgments in less compelling circumstances. Thus, the court agrees with the defendants that the claims for intentional infliction of emotional distress fail as a matter of law.

A Kansas court held that a hospital's erroneous communication of a patient's death did not constitute extreme and outrageous conduct necessary for a claim of intentional infliction of emotional distress. In Roberts v. Saylor, the court affirmed summary judgment favoring the defendants, including a doctor who made an inappropriate remark to a patient pre-surgery. The court concluded that no reasonable jury could find the defendants' conduct transcended societal decency standards. 

Additionally, the court found that the plaintiff failed to demonstrate the requisite extreme and severe mental distress. Under Kansas law, emotional distress must be severe enough that no reasonable person could be expected to endure it, and must exist as a genuine condition. The plaintiff claimed anxiety and other symptoms following the publication of an article but provided no medical evidence linking his distress to the article, nor did he seek treatment until nearly two years later. The court determined that the symptoms described did not rise to the level of extreme distress necessary for an outrage claim, noting that normal reactions to inconsiderate acts do not constitute actionable claims.

Summary judgment was affirmed, ruling that the plaintiff's experiences of chest pain, discomfort, and increased medication did not constitute extreme emotional distress. The court found no evidence linking the article's statements to the plaintiff's anxiety, especially as he had a pre-existing anxiety condition for which he had previously taken medication. The plaintiff only resumed medication over two years after the article's publication, making causation unreasonable to infer. The court concluded that there were no triable issues regarding the plaintiff's claim of severe emotional distress due to the article's content and granted summary judgment for the defendants. Additionally, the court addressed various motions to strike, granting some and denying others. The court emphasized that hyperbole in golf commentary does not meet the legal standards for defamation or emotional distress claims, ultimately leading to the granting of summary judgment for Heartland Golf and Time Inc.

Vlad the Impaler was infamous for torturing enemies by impaling them on sharp sticks, earning his moniker from this brutal method. As the plaintiff is proceeding pro se, the court interprets his filings liberally, applying a less rigorous standard than for those drafted by attorneys. Two affidavits submitted by the plaintiff face objections from the defendants: one is deemed inadmissible due to hearsay, and the other is challenged because the affiant was not disclosed in the plaintiff's Rule 26 disclosures. The court notes that the absence of a Pro Se Notice does not affect the admissibility of these affidavits in summary judgment. Furthermore, the plaintiff's statements regarding conversations with Ms. Taylor about a banker constitute double hearsay, which is inadmissible unless both statements meet an exception to the hearsay rule; however, the plaintiff fails to provide such exceptions. Although the court considers if the statements could be admissible under the "then-existing state of mind" exception, they ultimately do not qualify since they aim to prove a fact based on belief. A defamation claim under Kansas law requires false and defamatory words communicated to a third party that harm the plaintiff's reputation. The plaintiff's attempt to contest the facts related to Donald Ross, a prominent golf course designer, with Debra Taylor's affidavit does not succeed in providing a genuine dispute of material fact. The court applies Kansas law to the summary judgment motions, as agreed by both parties. Additionally, while the plaintiff mentions invasion of privacy in his response, no such claim is formally included in the Pretrial Order.

The Pretrial Order dictates the progression of litigation, allowing the trial court to exclude issues not included in it, as established in Berroth v. Farm Bureau Mut. Ins. Co. Inc. The court disregards the plaintiff's unpleaded claim and notes that the plaintiff's defamation claim is weakened by his status as a limited public figure, requiring proof of actual malice due to the qualified privilege associated with the allegedly defamatory statements. However, this privilege does not apply to publications made to the general public, such as internet articles, unless the defendant can demonstrate that the public has a legitimate interest in the communication. In this case, the article in question was indeed published online, qualifying it as a general public publication. Time Inc. failed to address whether the public had an interest in the management of a private golf club, which is necessary for applying the privilege defense. Additionally, the plaintiff had legal representation throughout the pretrial process, including the creation of the Pretrial Order and participation in the Final Pretrial Conference.