                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 18-2847
                        ___________________________

                          Chyleina Herron; Cory Herron

                                     Plaintiffs - Appellants

                                         v.

  E.W. Scripps Company, an Ohio Corporation; Scripps Media, Inc., a Delaware
  Corporation and Subsidiary of E.W. Scripps Company; John Doe I, a Missouri
  resident and employee and/or agent of E.W. Scripps Company and/or Scripps
 Media, Inc., who has responsibility for the reporting, production, editing and/or
   airing of television news reports at KSHB-TV and KMCI-TV; Jane Doe I, a
  Missouri resident and employee and/or agent of E.W. Scripps Company and/or
 Scripps Media, Inc., who has responsibility for the reporting, production, editing
       and/or airing of television news reports at KSHB-TV and KMCI-TV

                                    Defendants - Appellees
                                  ____________

                     Appeal from United States District Court
                for the Western District of Missouri - Kansas City
                                 ____________

                            Submitted: June 12, 2019
                           Filed: September 11, 2019
                                  [Unpublished]
                                  ____________

Before GRUENDER, STRAS, and KOBES, Circuit Judges.
                          ____________

PER CURIAM.
       During a news segment about a man accused of tricking women into having
sex with him on camera, a television station included a clip of an interview in which
Chyleina Herron described how the same man had swindled her out of money in an
unrelated scheme. Chyleina and her husband sued the station, claiming that it had
falsely implied that she too had been tricked into having sex, based on the presence
of a banner on the bottom of the screen that read: “Man Charged with Tricking
Women into On-Camera Sex.” The district court1 dismissed her complaint, and we
affirm.

       After Mario Ambrose Antoine was arrested and charged with federal wire
fraud arising out of a sex-by-deception scheme, KSHB-TV covered the story in a
two-minute-and-twenty-second news segment, much of which discussed the facts
underlying the charges. But the segment also included a short clip from several years
earlier, in which Chyleina described how Antoine had defrauded her by promising
to be her wedding photographer and then absconding with her deposit. Even though
the “On-Camera Sex” banner remained at the bottom of the screen throughout the
segment, a voiceover explained that Chyleina’s interview was unrelated to Antoine’s
sex-by-deception scheme.

      Based on the news segment, which KSHB also posted online, the Herrons
sued the station’s owner and several of its employees in Missouri state court and
alleged that they had portrayed her in a false light. The defendants removed the case
to federal district court, which dismissed the complaint for failure to state a claim.
See Fed. R. Civ. P. 12(b)(6). We review this decision de novo, assuming “the facts
alleged in the complaint to be true.” Elmore v. Harbor Freight Tools USA, Inc., 844
F.3d 764, 766 (8th Cir. 2016).

      We apply Missouri law in this diversity case. See United Fire & Cas. Co. v.
Titan Contractors Serv., Inc., 751 F.3d 880, 883 (8th Cir. 2014). The Missouri


      1
      The Honorable Fernando J. Gaitan, Jr., United States District Judge for the
Western District of Missouri.

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Supreme Court has not definitively decided whether to recognize false-light claims.
See Meyerkord v. Zipatoni Co., 276 S.W.3d 319, 325 (Mo. Ct. App. 2008) (noting
this uncertainty). In the absence of clear guidance from the Missouri Supreme Court,
our task is to “predict” what it might do. United Fire & Cas. Co., 751 F.3d at 883.
In making this prediction, decisions of intermediate state courts “are particularly
relevant and must be followed when they are the best evidence of [state] law.” In re
Gen. Am. Life Ins. Co. Sales Practices Litig., 391 F.3d 907, 912 (8th Cir. 2004)
(citing Holden Farms, Inc. v. Hog Slat, Inc., 347 F.3d 1055, 1066 (8th Cir.2003)).

       The Missouri Court of Appeals has elaborated on false-light claims. In
particular, it has held that one element of proving such a claim is actual malice.
Borrowed from First Amendment defamation law, actual malice is “act[ing] with
knowledge of or with reckless disregard as to the falsity of the publicized matter and
the false light in which [an individual] would be placed.” Meyerkord, 276 S.W.3d
at 325–26. We must follow Meyerkord, because it is the clearest, most on-point
statement of Missouri law, and there is no indication that the Missouri Supreme
Court would disagree with it. See Holden Farms, Inc. 347 F.3d at 1066-67 (citing
West v. AT&T, 311 U.S. 223, 237 (1940)).

       The Herrons’ complaint, even construed in a light most favorable to them,
does not allege actual malice. In the news segment itself,2 the voiceover explains
that Chyleina was the victim of a separate, unrelated fraud, which made clear that
she was not involved in Antoine’s sex-by-deception scheme. To be sure, the station
could have also removed or altered the banner at the bottom of the screen during her
interview. But its failure to do so, in light of the unequivocal language of the

      2
       We may consider the actual video of the segment in analyzing the motion to
dismiss because it is “necessarily embraced by the complaint.” Ashanti v. City of
Golden Valley, 666 F.3d 1148, 1150–51 (8th Cir. 2012) (citation omitted)
(explaining that “documents necessarily embraced by the complaint are not matters
outside the pleading” (citation omitted)); see also Brownmark Films, LLC v. Comedy
Partners, 682 F.3d 687, 691 (7th Cir. 2012) (suggesting that “it makes eminently
good sense” to consider the contents of “television programs and similar works”
referenced in a complaint in deciding whether to grant a motion to dismiss).

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voiceover, is nothing “more than a [negligent] mistake.” Sigafus v. St. Louis Post-
Dispatch, L.L.C., 109 S.W.3d 174, 180 (Mo. Ct. App. 2003) (holding that more than
negligence is required for actual malice).

      We accordingly affirm the judgment of the district court.
                     ______________________________




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