John O'Brien Dec. 28, 2012, 1:06pm
WHEELING – A federal judge has dismissed an Ohio man’s defamation lawsuit filed against two Wheeling-area news outlets.
On Dec. 21, Judge Irene Keeley adopted the report and recommendation of Magistrate Judge James Seibert, finding that Plaintiff Dennis Givens, who represented himself, made strictly state law claims in his federal complaint.
Givens alleged that in September 2011 WTOV-TV and Ogden Newspapers, which owns the Wheeling Intelligencer and News-Register, published a defamatory statement offered by Wheeling attorney Robert McCoid, who was also named as a defendant.
WTOV’s address is in Mingo Junction, Ohio, but the station argued diversity jurisdiction did not exist because Givens also lives in Ohio.
“The fact that both Plaintiff and WTOV are alleged to be citizens of the same state destroys complete diversity,” WTOV wrote in its motion to dismiss in May.
Ogden’s motion to dismiss revealed that the alleged defamation stemmed from three paragraphs of a routine court report that reported the continuance of an arraignment.
“Although Plaintiff alleges both diversity and federal question jurisdiction, he asserts only state-law tort claims,” Ogden wrote.
Seibert agreed in his report, issued Nov. 20.
“Plaintiff’s complaint avers that he is a United States citizen that resides in Ohio,” Seibert wrote. “Thus, if any defendant is also a citizen of Ohio, then this court lacks jurisdiction… to hear the case.”
“Again, a party seeking to invoke a federal court’s jurisdiction has the burden for establishing it, and in his response to WTOV’s motion to dismiss, Plaintiff submits a photocopied page from a West Virginia phone book that shows a West Virginia address for WTOV.
“However… just because a corporation has an address or does business in a state does not necessarily make it a citizen of that state. Instead, Plaintiff would have to show, by competent proof, that WTOV’s nerve center is in West Virginia in order to establish diversity, and this he has failed to do.”
Keeley decided Givens did not convincingly respond to Seibert’s report and adopted its findings. She added that Givens’ right to amend his complaint to include Ohio County Prosecuting Attorney Scott Smith as a defendant is futile.