                   NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
                              File Name: 05a0006n.06
                               Filed: January 3, 2005

                                                      03-2148

                               UNITED STATES COURT OF APPEALS
                                    FOR THE SIXTH CIRCUIT


ARMEN BOLADIAN, BRIDGEPORT MUSIC, INC.;                             )
NINE RECORDS, INC.; WESTBOUND RECORDS,                              )
INC.,                                                               )
                                                                    )          ON APPEAL FROM THE
         Plaintiffs-Appellants,                                     )          UNITED STATES DISTRICT
                                                                    )          COURT FOR THE EASTERN
v.                                                                  )          DISTRICT OF MICHIGAN
                                                                    )
UMG RECORDINGS, INC.; UNIVERSAL MUSIC                               )                     OPINION
& VIDEO DISTRIBUTION CORP; MEIJER, INC.;                            )
WARREN GRIFFIN III p/k/a WARREN G.                                  )
individually and d/b/a MY KIDS MUSIC,                               )
                                                                    )
         Defendants-Appellees.                                      )




BEFORE: NORRIS, COOK, Circuit Judges; BECKWITH, District Judge.*

         ALAN E. NORRIS, Circuit Judge. This appeal stems from a long-running dispute between

plaintiff Armen Boladian and “funk” musician George Clinton. Plaintiff alleges that the lyrics of

a song performed by Clinton defamed him, invaded his privacy, caused him emotional distress, and

unjustly enriched defendants. The district court granted defendants’ Fed. R. Civ. P. 12(b) motion

to dismiss. On appeal, plaintiff raises two issues: 1) the district court should have remanded the

matter to state court because diversity jurisdiction was lacking; and 2) the district court erred when



         *
         The Honorable Sandra S. Beckwith, Chief United States District Judge for the southern District of Ohio, sitting
by designation.
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Boladian v. UMG Recordings, Inc.

it concluded that the language at issue constituted the kind of “rhetorical hyperbole” that falls

outside the ambit of a traditional defamation claim.

                                                 I.

       Plaintiff Boladian filed a verified complaint in Michigan state court on November 2, 2002

on behalf of himself and three recording companies that he owns: Bridgeport Music, Inc., Nine

Records, Inc., and Westbound Records, Inc. (collectively “plaintiffs”). Each of these entities is a

Michigan corporation or, in the case of Boladian, a Michigan resident. Named as defendants were

UMG Recordings, Inc., Universal Music & Video Distribution, Corp., the rapper Warren Griffin III

(performing as Warren G and doing business as My Kids Music), and Meijer, Inc., (collectively

“defendants”).

       The lyrics that plaintiffs allege are defamatory can be found in a song written by Griffin

called “Speed Dreamin’.” Clinton performed the fourth verse of this song on a commercially

released album called “The Return of the Regulator.” The complaint alleges that the verse contains

several references to Boladian that are defamatory:

               The Lyrics refer to Armen Boladian. The disputes and litigation between
       Armen Boladian and George Clinton and concerning George Clinton’s music is well
       known to virtually everyone in the music business, and in particular to those persons
       involved in the rap music business. The reference by Clinton to “Armen” in the
       Lyrics would be understood by such persons as referring to Armen Boladian. The
       Lyrics, including the statements that refer to the “sorrows and horrors” of Boladian’s
       abuse, that Boladian is a “disgrace to the species”, and “got it [killing] comin’” are
       false and defamatory. . . .

                                               ....




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                The Lyrics are false and malicious and are injurious to Boladian in his
       profession and employment. In addition, the Lyrics impeach Boladian’s integrity,
       virtue, and reputation, and are likely to lower Boladian’s reputation in the estimation
       of others in the music industry with whom Boladian deals on a daily basis. The
       Lyrics will also deter others, including those having business relationships with
       Boladian, from doing business with Boladian. Publication of the Lyrics constitutes
       defamation per se.

Complaint at ¶¶ 11, 13.

       Defendants removed the matter to federal court, invoking diversity jurisdiction pursuant to

28 U.S.C. § 1332. According to the notice of removal, UMG Recordings and Universal Music are

Delaware corporations with their principal places of business in California. Griffin, who was never

served with the complaint, is a resident of California. Meijer is a Michigan corporation with its

principal place of business in that state, which would normally destroy diversity jurisdiction. 28

U.S.C. § 1332. The notice of removal, however, alleges that the joinder of the company was

fraudulent:

       Defendants UMG Recordings and Universal Music assert that Plaintiffs cannot
       establish a cause of action against Defendant Meijer, Inc. under state law. Plaintiffs
       complaint fails because they are and will be unable to establish that Defendant
       Meijer, Inc., the alleged distributor of the allegedly defamatory music, “had any
       knowledge that the [albums] in question contained the allegedly [defamatory]
       material.” Dworkin v. Hustler Magazine, Inc., 611 F. Supp. 781, 785 (D. Wyo.
       1985).

Notice of Removal at ¶ 12 (citation omitted).

       Defendants filed a motion to dismiss and plaintiffs responded with their own motion to

remand. The district court held a hearing on both motions on July 2, 2003, at the conclusion of

which it ruled from the bench. On July 21, the court issued an order formally denying the motion

to remand and granting the motion to dismiss.

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                                                  II.

       Before reaching the substantive issues, we must determine whether the district court had

jurisdiction over the suit. This court has outlined the proper approach to allegations of fraudulent

joinder at some length:

                When reviewing the denial of a motion to remand a case to state court, we
       first look to determine whether the case was properly removed to federal court. See
       Ahearn v. Charter Township of Bloomfield, 100 F.3d 451, 453 (6th Cir. 1996). When
       an action is removed based on diversity, we must determine whether complete
       diversity exists at the time of removal. Indeed, “[d]iversity jurisdiction attaches only
       when all parties on one side of the litigation are of a different citizenship from all
       parties on the other side of the litigation.” SHR Ltd. Partnership v. Braun, 888 F.2d
       455, 456 (6th Cir. 1989); accord Strawbridge v. Curtiss, 3 Cranch 267, 7 U.S. 267,
       2 L.Ed. 435 (1806). In this regard, a party “seeking to bring a case into federal court
       carries the burden of establishing diversity jurisdiction.” [Certain Interested
       Underwriters at Lloyd’s, London, England v.] Layne, 26 F.3d at 41; Her Majesty The
       Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d 332, 339 (6th
       Cir. 1989) (stating that “[t]he party seeking removal bears the burden of establishing
       its right thereto”).

                Moreover, this Court has recognized that fraudulent joinder of non-diverse
       defendants will not defeat removal on diversity grounds. See Alexander v. Electronic
       Data Sys. Corp., 13 F.3d 940, 949 (6th Cir. 1994); accord Triggs v. John Crump
       Toyota, Inc., 154 F.3d 1284, 1287 (11th Cir.1998) (noting that “[f]raudulent joinder
       is a judicially created doctrine that provides an exception to the requirement of
       complete diversity”). To prove fraudulent joinder, the removing party must present
       sufficient evidence that a plaintiff could not have established a cause of action
       against non-diverse defendants under state law. See Alexander, 13 F.3d at 949.
       However, if there is a colorable basis for predicting that a plaintiff may recover
       against non-diverse defendants, this Court must remand the action to state court. The
       district court must resolve “all disputed questions of fact and ambiguities in the
       controlling . . . state law in favor of the non removing party.” Id. All doubts as to the
       propriety of removal are resolved in favor of remand. See id.

Coyne v. American Tobacco Co., 183 F.3d 488, 492-93 (6th Cir. 1999).




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       As Coyne emphasizes, the burden of proof rests with the party seeking to remove the action

to federal court. Id. at 493; accord Jerome-Duncan, Inc. v. Auto-By-Tel, L.L.C., 176 F.3d 904, 907

(6th Cir. 1999). Furthermore, the motive in joining a party is immaterial to the determination

regarding fraudulent joinder. Jerome-Duncan at 907.

       The complaint alleged only that Meijer, which sold the album containing the lyrics at issue,

either knew or reasonably should have known that the entire composition would be available on the

internet; it does not allege that Meijer reviewed or otherwise had knowledge of the lyrics.

Complaint at ¶9. Under Michigan law, a distributor who has knowledge that a publication contains

libelous matter is subject to liability unless it can show that it was in the dark about the contents.

Bowerman v. Detroit Free Press, 287 N.W. 642, 645 (Mich. 1939) (newspaper distributor not liable

for libel contained in newspaper if he can prove lack of knowledge of libel and that ignorance of

libel not due to his own negligence).

       In this case, defendants attached a declaration by a “buyer merchandiser” employed by

Meijer to their brief in opposition to plaintiffs’ motion to remand. This individual stated the

following:

               Meijer purchases hundreds of thousands of compact discs and
               cassette tapes each year for retail sale in its stores. It purchases these
               works from a distributor, who warrants that they do not infringe the
               property rights of any third party. The products are delivered in
               sealed packages that Meijer does not open or review prior to sale. As
               a general matter, Meijer does not listen to the works it purchases for
               retail sale, and is unaware of the lyrics of any of the products it sells.

               In this case, Meijer did not inspect, did not listen to, and was unaware
               of any lyrics on the album “The Return of the Regulator,” including



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Boladian v. UMG Recordings, Inc.

               the lyrics to the song “Speed Dreamin,’” before that album was
               purchased and sold by Meijer stores.

       During argument to the district court, counsel for defendants suggested that the appropriate

approach in a case with First Amendment aspects could be found in Lewis v. Time, Inc., 83 F.R.D.

455 (E.D. Cal. 1979), which states that a federal court may retain jurisdiction when fraudulent

joinder is alleged, but will allow plaintiffs to move for remand if subsequent discovery reveals that

diversity jurisdiction was lacking at the time of the initial motion to remand. Id. at 462. In Lewis,

plaintiff sued Time magazine and a non-diverse retailer that distributed it. The district court rejected

the argument that remand was required: “Adherence to a ritualistic ‘all doubts resolved in favor of

remand’ rule where a serious claim of fraudulent joinder is raised in an action implicating First

Amendment values would undermine the special responsibility of the federal courts in such cases.”

Lewis at 462; see also Ludwig v. Learjet, Inc., 830 F. Supp. 995, 998 n.5 (E.D. Mich. 1993) (an

“absolute standard is too onerous . . . [and] excessively burdensome for a defendant to have to

disprove any possibility of liability”). The Lewis court went on to dismiss the claim against the

distributer because the plaintiff had not specifically pleaded that the distributor either knew, or

should have known, of the libelous contents of the article. Moreover, such knowledge cannot be

presumed. Id. at 464-65.

       In the instant case, the complaint fails to state a viable claim of defamation against Meijer

because it premises liability solely upon the theory that the retail chain sold “Speed Dreamin’” and

“reasonably should have known that the entire composition including the Lyrics would be publicly

available on the internet at a number of websites within days or weeks of its release.” Complaint



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at ¶ 9. However, these allegations are not enough to satisfy the requirements of Michigan law,

which requires that the elements of a claim of defamation be specifically pleaded, see Stencel v.

Augat Wiring Sys., 173 F. Supp.2d 669, 680 (E.D. Mich. 2001),1 and that the publisher of statements

alleged to be defamatory knew or should have known of their content. Bowerman, 283 N.W. at 645.

The complaint makes no claim that Meijer had any familiarity with the lyrics prior to distributing

the album containing them but instead premises liability upon the act of distribution to an internet

audience. This is not enough. To hold otherwise would be to impose a duty on retailers of books

and music to screen these products for potential defamatory material. Not only would that burden

be onerous, it could potentially have a chilling effect upon protected speech because retailers, in an

abundance of caution, might stop selling some categories of artistic products, such as rap music, to

avoid liability. See Bowerman, 283 N.W. at 645 (“In these days of speedy dissemination of news

its seems unreasonable to hold that a local distributor . . . should be required to check the contents

of each issue for libelous matter in order to protect himself against liability for damages.”); Lewis,

83 F.R.D. at 465 (“A distributor normally has no direct involvement in the preparation or production




       1
        The district court in Stencel summarized the elements of a defamation claim to include:

                (1) a false and defamatory statement concerning the plaintiff, (2) an unprivileged
                publication to a third party, (3) fault amounting to at least negligence on the part of
                the publisher, and (4) either actionability of the statements irrespective of special
                harm, or the existence of special harm caused by the publication. These elements
                must be specifically pleaded, including the allegations with respect to the
                defamatory words, the connection between the plaintiff and the defamatory words,
                and the publication of the alleged defamatory words.

       Id. (citing Gonyea v. Motor Parts Federal Credit Union, 480 N.W.2d 297 (1991).


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of an allegedly libelous article. . . . Accordingly, the danger in self-censorship is more threatening

that it is with the original publisher . . . .”).

        The only other count of the complaint that named Meijer as a party defendant was that of

unjust enrichment. Because plaintiffs have failed to show that their defamation claim against

defendants was viable, their derivative claim of unjust enrichment against Meijer also fails. A party

may not skirt the requirements of defamation law by pleading another, related cause of action.

Hustler Magazine v. Falwell, 485 U.S. 46, 53 (1988) (intentional infliction of emotional distress

claim not a stand-in for defamation).

        For these reasons, we hold that plaintiffs “could not have established a cause of action

against the non-diverse defendant[] under state law.” Coyne, 183 F.3d at 493. Accordingly, the

district court properly concluded that it retained diversity jurisdiction.

        We now turn to the district court’s grant of judgment to defendants, a decision that we review

de novo. Eubanks v. CBSK Fin. Group, Inc., 385 F.3d 894, 897 (6th Cir. 2004). Furthermore, this

court is required to construe the complaint in the light most favorable to the plaintiffs, accept all of

the complaint’s factual allegations as true, and determine whether the plaintiff undoubtedly can

prove no set of facts in support of the claims that would entitle plaintiff to relief. Meador v. Cabinet

for Human Res., 902 F.2d 474, 475 (6th Cir. 1990).

        Michigan courts have defined the elements of defamation as follows:

        1) a false and defamatory statement concerning the plaintiff, 2) an unprivileged
        communication to a third party, 3) fault amounting to at least negligence on the part
        of the publisher, and 4) either actionability of the statement irrespective of special
        harm or the existence of special harm caused by publication.



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Rouch v. Enquirer & News of Battle Creek, Michigan, 487 N.W.2d 205, 211 (Mich. 1992) (citing

Locricchio v. Evening News Ass’n., 476 N.W.2d 112 (Mich. 1991)); In re Kennedy, 249 F.3d 576,

582 (6th Cir. 2001) (citing Michigan law).

       Under Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), a defamation claim cannot be

brought based upon statements that do not state actual, objectively verifiable facts about a plaintiff.

Id., 497 U.S. at 17-21. Even speech that is crude – what the Court calls “rhetorical hyperbole,”

“vigorous epithet,” and “loose, figurative, or hyperbolic language” – merits protection. Id. at 17-21;

accord In re Chmura, 626 N.W.2d 876, 886 (Mich. 2001) (“before a . . . public communication is

tested for falsity, the communication at issue must involve objectively factual matters”). Thus, in

Ireland v. Edwards, 584 N.W.2d 632 (Mich.App. 1998), the court concluded that an allegation that

someone was an “unfit mother” was subjective and a second statement, that a mother “never spent

a moment with [her] child,” could be viewed as “rhetorical hyperbole” and, therefore, a claim for

defamation did not lie. Id. at 637-38. Morever, context is critical, id. at 638, and whether a

statement is susceptible to defamatory interpretation is an issue of law for the court to decide.

Kevorkian v. Am. Med. Ass’n, 602 N.W.2d 233, 236 (Mich. App. 1999).

       Applying this analytical framework to the lyrics of “Speed Dreamin’,” we conclude that

plaintiffs have failed to meet their burden of showing an actual, objectively verifiable defamatory

statement. There was no specific allegation, such as an act of child abuse, that could be proven;

rather, the abuse was the kind of inchoate “loose, figurative” language that the Court referred to in

Milkovich. For instance, the statement that “Armen” is a “disgrace to the species,” represents the

kind of puerile taunt that, for better or worse, is typical of rap music. See Milkovich at 17 (“use of

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the word “traitor” in literary definition of a union “scab” not basis for a defamation action under

federal labor law since used “‘in a loose, figurative sense” and was “merely rhetorical hyperbole,

a lusty and imaginative expression of the contempt felt by union members’”) (quoting Letter

Carriers v. Austin, 418 U.S. 264, 284-286 (1974).

       Plaintiffs direct our attention to Rodriguez v. Panayiotou, 314 F.3d 979 (9th Cir. 2002), in

which the ninth circuit allowed a defamation action against pop star George Michael to go forward

in part because Michael, who in a song described a sexual encounter with plaintiff policeman,

enjoyed celebrity status. By analogy, plaintiffs argue that George Clinton enjoys such status, and

his defamatory statements (as promulgated by defendants) must be evaluated in that light.

Rodriguez arose after Michael pleaded no contest to charges of disorderly conduct stemming from

illicit behavior in a men’s restroom. Thereafter, he released a song that parodied the incident. In

the course of promoting the song, Michael gave interviews in which he stated that Rodriguez, the

officer who had arrested him, had enticed him into a sexual encounter. The ninth circuit

characterized the inquiry in these terms: “[T]he dispositive issue in this case is whether a reasonable

fact finder reading or listening to the statements made by Michael could conclude that they ‘imply

a provably false factual assertion.’” Id. at 985 (quotation omitted). In reaching an affirmative

conclusion, the court looked to the totality of the circumstances and found that “Michael’s

statements asserted the precise factual nature of his accusation.” Id. at 987. It went on to note,

“[s]imilarly the colorful and humorous language Michael used to speak about the incident did not

‘negate the impression that [Michael] was seriously maintaining [that Rodriguez] committed [the

lewd act].’” Id. (citation omitted).

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        The feature of Rodriguez that distinguishes it from the case before us is that the statements

describe a specific event: an incident in a men’s room that resulted in an arrest. In our case, the

statements do not relate to a specific time period or locale and are therefore not susceptible to being

proven objectively false. Consistent with Milkhovich, we conclude that the complaint fails to state

a claim of defamation because it fails to allege facts about defendant Boladian that are susceptible

to verification.

        Having held that the dismissal of plaintiffs’ defamation claim was proper, it follows that the

claims of Boladian’s companies fall away, as do the claims of false-light infliction of emotional

distress and unjust enrichment, which hinge upon the existence of statements capable of being

proved false. See Porter v. Royal Oak, 542 N.W.2d 905, 909 (Mich. 1995) (action for false-light

invasion of privacy requires broadcast to public “information that was unreasonable and highly

objectionable by attributing to the plaintiff characteristics, conduct, or beliefs that were false and

placed the plaintiff in a false position”).

                                                 III.

        The judgment of the district court is affirmed.




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