                                                                NOT PRECEDENTIAL

                        UNITED STATES COURT OF APPEALS
                             FOR THE THIRD CIRCUIT
                                 ______________

                                       No. 16-1362
                                     ______________

                              RENITA HILL, an individual,

                                                                Appellant
                                             v.

                            WILLIAM HENRY COSBY, JR.,
                       an individual, also known as BILL COSBY
                                    ______________

                     On Appeal from the United States District Court
                        for the Western District of Pennsylvania
                             (D.C. Civ. No. 2-15-cv-01658)
                     Honorable Arthur J. Schwab, U.S. District Judge
                                   ______________

                                 Argued October 7, 2016

              BEFORE: SHWARTZ, COWEN, and ROTH, Circuit Judges

                                (Filed: December 14, 2016)

                                     ______________

                                        OPINION
                                     ______________

George M. Kontos, Esq. (Argued)
Claire McGee, Esq.
Kontos Mengine Law Group
603 Stanwix Street


*This disposition is not an opinion of the full court and pursuant to I.O.P. 5.7 does not
constitute binding precedent.
Two Gateway Center, Suite 1228
Pittsburgh, PA 15222

                     Counsel for Appellant


Angela C. Agrusa, Esq. (Argued)
Liner
1100 Glendon Avenue
14th Floor
Los Angeles, CA 90024

Brian C. Bevan, Esq.
Efrem M. Grail, Esq.
The Grail Law Firm
436 Seventh Avenue
Koppers Building, 30th Floor
Pittsburgh, PA 15219

Marshall M. Searey, III, Esq.
Christopher Tayback, Esq.
Quinn Emanuel Urquhart & Sullivan
865 South Figueroa Street
10th Floor
Los Angeles, CA 90017

Emily M. Smith, Esq.
Quinn Emanual Urquhart & Sullivan
711 Louisanna Street
Suite 500
Houston, TX 77002

                    Counsel for Appellee



COWEN, Circuit Judge


      Plaintiff Renita Hill appeals from the order of the United States District Court for

the Western District of Pennsylvania granting Defendant William H. Cosby, Jr.’s motion

                                            2
to dismiss her complaint pursuant to Federal Rule of Civil Procedure 12(b)(6) for failure

to state a claim upon which relief can be granted. We will affirm.

                                             I.

      According to Hill’s complaint, Cosby—“an internationally known comedian, actor

and author” (A45)1—drugged and sexually assaulted her. Specifically, the alleged abuse

began in (approximately) 1983, when she was a sixteen-year-old high school student

recruited by Cosby to co-host a children’s television program. Cosby presented himself

as Hill’s mentor and paid for her college tuition. The alleged abuse ended around 1987,

after she had completed her second year in college (at which time Hill cut off any contact

with Cosby, and he stopped paying her tuition). Hill claimed that Cosby would meet her

in his hotel room and give her a drink containing drugs that affected her consciousness,

memory, and perception (and when she indicated that she did not want to drink, Cosby

would threaten to terminate “his purported tutelage” (A49)). “While she was in this

semi-conscious or unconscious state, Renita was sexually assaulted by Defendant

Cosby.” (Id.)

      Hill allegedly did not come forward at the time of the abuse because she was too

intimidated and afraid to do so. While “Cosby was extremely powerful, wealthy and

influential in status,” Hill “was young, impressionable, and seemingly powerless.” (Id.)

She also did not know that other women had allegedly suffered similar abuse. For the

next twenty years, Hill maintained her silence. In 2005, Andrea Constand claimed that

Cosby had drugged and sexually assaulted her. In the civil lawsuit she filed against

      1
          “A” refers to the appendix, and “SA” refers to the supplemental appendix.
                                             3
Cosby, Constand named thirteen other alleged victims, and, before her case was settled, a

number of these women had come forward with their own accusations. On or about

November 13, 2014, Barbara Bowmen “penned an op-ed in the Washington Post titled

‘Bill Cosby raped me. Why did it take 30 years for people to believe my story?’” (A50.)

More accusers then came forward.

       Emboldened by these women’s example, Hill decided to share her own story. On

November 20, 2014, she was interviewed by Ralph Ianotti, a reporter with KDKA. “In

the interview, Renita revealed much of the above-mentioned fact pattern and explained

that she felt compelled to come forward after hearing Cosby’s [sic] criticize the other

woman who came forward.” (A51.)

       According to Hill, Cosby retaliated against her and the other abuse victims by

publishing statements designed to bring into question their honesty and motivations. Hill

highlighted three such statements: (1) a November 21, 2014 statement by Cosby’s

attorney, Martin Singer, Esq., given to The Washington Post for use in an article

published on November 22, 2014 entitled “‘Bill Cosby’s legacy, recast: Accusers speak

in detail about sexual-assault allegations’” (“Singer Statement”) (A52); (2) a statement

made by Cosby himself during an interview conducted on or about the same day by

Florida Today (“Florida Today Statement”); and (3) a December 15, 2014 letter

published by The Washington Post written by his wife and business manager, Camille

Cosby (“Camille Cosby Statement”).




                                             4
       According to Singer:

       The new, never-before-heard claims from women who have come forward
       in the past two weeks with unsubstantiated, fantastical stories about things
       they say occurred 30, 40, or even 50 years ago have escalated far past the
       point of absurdity.

       These brand new claims about alleged decades-old events are becoming
       increasingly ridiculous and it is completely illogical that so many people
       would have said nothing, done nothing, and made no reports to law
       enforcement or asserted civil claims if they thought they had been assaulted
       over a span of so many years.

       Lawsuits are filed against people in the public eye every day. There has
       never been a shortage of lawyers willing to represent people with claims
       against rich, powerful men, so it makes no sense that not one of these new
       women who just came forward for the first time now ever asserted a legal
       claim back at the time they allege they had been sexually assaulted.

       This situation is an unprecedented example of the media’s breakneck rush
       to run stories without any corroboration or adherence to traditional
       journalistic standards. Over and over again, we have refuted these new
       unsubstantiated stories with documentary evidence, only to have a new
       uncorroborated story crop out of the woodwork. When will it end?

       It is long past time for this media vilification of Mr. Cosby to stop.


(A51-A52.)

       In her complaint, Hill focused on the following excerpt from Cosby’s Florida

Today interview:

       I know people are tired of me not saying anything, but a guy doesn’t have
       to answer to innuendos. People should fact-check. People shouldn’t have
       to go through that and shouldn’t answer to innuendos.

(A52.) Cosby provided the District Court with the Florida Today Statement in its

entirety:



                                              5
       So today I was informed of this radio station that is offering money for
       people to stand up and heckle in order to collect prizes and money.

       The thing is, these people are prodding and pushing people and asking
       people to have a frat house mentality. Now suppose someone brings a
       weapon or decided to do more foolishness. There will be announcements
       made and the stations made some disclaimers, but what if people don’t
       listen to what they said and they entice violence. That’s not good for
       anyone.

       When you go to a civil rights march or something like that, at least there are
       meetings and some organization to it and people understand how to behave.
       There may be people coming to the show that don’t know exactly what to
       do; there is no organization to it all.

       I know people are tired of me not saying anything, but a guy doesn’t have
       to answer to innuendos. People should fact-check. People shouldn’t have
       to go through that and shouldn’t answer to innuendos.

(SA2 (emphasis omitted) (citing A52).)

       Hill alleged that Camille Cosby questioned the victims’ honesty by stating that

“‘[T]here appears to be no vetting of my husband’s accusers before stories are published

or aired.’” (A53.) “In an apparent attempt to cast further doubt on the honestly [sic] of

Defendant Cosby’s accusers, Camille Cosby also compared the accusations to alleged

rape accusations at the University of Virginia, which eventually were proven to have

been fabricated.” (Id.) According to Cosby, his wife stated the following:

       I met my husband, Bill Cosby, in 1963, and we were married in 1964. The
       man I met, and fell in love with, and whom I continue to love, is the man
       you all knew through his work. He is a kind man, a generous man, a funny
       man, and a wonderful husband, father and friend. He is the man you
       thought you knew.

       A different man has been portrayed in the media over the last two months.
       It is the portrait of a man I do not know. It is also a portrait painted by
       individuals and organizations whom many in the media have given a pass.


                                             6
       There appears to be no vetting of my husband’s accusers before stories are
       published or aired. An accusation is published, and immediately goes viral.

       We all followed the story of the article in “Rolling Stone” concerning
       allegations of rape at the University of Virginia. The story was heart-
       breaking, but ultimately appears to be proved to be untrue. Many in the
       media were quick to link that story to stories about my husband – until that
       story unwound.

(SA2-SA3 (emphasis omitted) (citing A52-A53).)

       Hill filed a civil action against Cosby in the Pennsylvania Court of Common Pleas

of Allegheny County. She asserted three claims: (1) defamation/defamation per se; (2)

false light; and (3) intentional infliction of emotional distress (or “IIED”). Cosby

removed the action to the District Court on diversity grounds, and he moved to dismiss

for failure to state a claim upon which relief can be granted.2

       The District Court granted Cosby’s motion and dismissed Hill’s complaint with

prejudice. See Hill v. Cosby, 15CV1658, 2016 WL 491728 (W.D. Pa. Feb. 9, 2016).

                                             II.

       The District Court did not commit reversible error by granting Cosby’s motion to

dismiss under Rule 12(b)(6).3 We begin with Hill’s defamation claim and, specifically,


       2
         Meanwhile, the United States District Court for the District of Massachusetts
denied Cosby’s motion to dismiss the defamation claims brought by three other alleged
victims. See Green v. Cosby, 138 F. Supp. 3d 114 (D. Mass. 2015).
       3
         The District Court possessed subject matter jurisdiction pursuant to 28 U.S.C. §
1332, and we have appellate jurisdiction under 28 U.S.C. § 1291.

       The Court exercises plenary review over a district court’s order granting a motion
to dismiss for failure to state a claim upon which relief can be granted. See, e.g., Fowler
v. UPMC Shadyside, 578 F.3d 203, 206 (3d Cir. 2009). “‘To survive a motion to
dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face.’” Black v. Montgomery Cty., 835 F.3d 358,
                                              7
the Singer Statement. Assuming that a reasonable recipient could read the attorney’s

statement as offering an opinion—on the basis of underlying facts—that Hill lied, we

nevertheless determine that Singer disclosed these underlying facts. We also conclude

that no reasonable recipient could interpret Cosby’s Florida Today Statement as implying

the existence of undisclosed defamatory facts. The Camille Cosby Statement similarly

failed to implicate underlying facts regarding Hill’s accusations or to satisfy the “of and

concerning” requirement. Insofar as each statement was not capable of a defamatory

meaning, the sum total of such statements did not rise to the level of actionable

defamation. Likewise, the District Court properly disposed of Hill’s false light and IIED

claims.

       “‘[A]lthough a defamation suit has profound First Amendment implications, it is

fundamentally a state cause of action.’” Tucker v. Fischbein, 237 F.3d 275, 281 (3d Cir.

2001) (quoting McDowell v. Paiewonsky, 769 F.2d 942, 945 (3d Cir. 1985)). Under

Pennsylvania law,4 the plaintiff must show, inter alia, “[t]he defamatory character of the

communication.” 42 Pa. Cons. Stat. Ann. § 8343(a)(1). If the court determines as a

matter of law that the communication is not capable of having such a meaning, the claim

must be dismissed. See, e.g., Remick v. Manfredy, 238 F.3d 248, 261 (3d Cir. 2001).

364 (3d Cir. 2016) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). While
conclusory allegations must be set aside, well-pleaded facts are to be accepted as true,
and the complaint must be construed in the light most favorable to the plaintiff. See, e.g.,
Fowler, 578 F.3d at 210-11.
       4
         The parties agree that Pennsylvania law applies, and we therefore must predict
how the Pennsylvania Supreme Court would rule if faced with the issue. See, e.g.,
Spence v. ESAB Grp., Inc., 623 F.3d 212, 216 (3d Cir. 2010). In making such a
prediction, we must look, inter alia, to decisions of state intermediate appellate courts as
well as rulings by federal courts interpreting Pennsylvania law. See, e.g., id. at 216-17.
                                             8
However, this non-defamatory reading must constitute “the only reasonable”

interpretation of the statement for the court to dismiss the defamation cause of action.

Zartman v. Lehigh Cty. Humane Soc’y, 482 A.2d 266, 269 (Pa. Super. Ct. 1984)

(emphasis in original). A statement is defamatory in nature “if it ‘tends so to harm the

reputation of another as to lower him in the estimation of the community or to deter third

persons from associating or dealing with him.’” Remick, 238 F.3d at 261 (quoting

Tucker, 237 F.3d at 282). A statement may be considered to have a defamatory meaning

if its context creates a defamatory implication, “i.e., defamation by innuendo,” Mzamane

v. Winfrey, 693 F. Supp. 2d 442, 477 (E.D. Pa. 2010) (citations omitted), but this concept

of innuendo cannot be used to introduce new matter or to enlarge the natural meaning of

the words used, see, e.g., Sarkees v. Warner-W. Corp., 37 A.2d 544, 546 (Pa. 1944).

“‘[I]t is well settled that the use of catchy phrases or hyperbole does not necessarily

render statements defamatory that would otherwise be non-actionable.’” Remick, 238

F.3d at 262 (quoting Redco Corp. v. CBS, Inc., 758 F.2d 970, 972 (3d Cir. 1985)).

Similarly, a statement must be provable as false to give rise to a claim of defamation.

See, e.g., Milkovich v. Lorain Journal Co., 497 U.S. 1, 19-20 (1990).

       “Under the First Amendment there is no such thing as a false idea. However

pernicious an opinion may seem, we depend for its correction not on the conscience of

judges and juries but on the competition of other ideas.” Gertz v. Robert Welch, Inc.,

418 U.S. 323, 339-40 (1974) (footnote omitted); see also, e.g., U.S. Healthcare, Inc. v.

Blue Cross of Greater Philadelphia, 898 F.2d 914, 927 n.13 (3d Cir. 1990) (characterizing

Gertz reasoning as dictum but recognizing that it is regularly cited). Statements that

                                              9
provide the facts on which the opinion-holder bases his or her opinion, known as “pure”

opinions, are not actionable. See, e.g., Milkovich, 497 U.S. at 17-23; U.S. Healthcare,

898 F.2d at 927 n.13; Redco, 758 F.2d at 972; Restatement (Second) of Torts § 566 cmt.

(b). However, so-called “mixed” opinions, which imply—yet fail to disclose—the

underlying facts may give rise to a defamation cause of action:

       Although there may be no such thing as a false opinion, an opinion which is
       unfounded reveals its lack of merit when the opinion-holder discloses the
       factual basis for the idea. If the disclosed facts are true and the opinion is
       defamatory, a listener may choose to accept or reject it on the basis of an
       independent evaluation of the facts. However, if an opinion is stated in a
       manner that implies that it draws upon unstated facts for its basis, the
       listener is unable to make an evaluation of the soundness of the opinion. In
       such circumstances, if the underlying facts are false, the Constitution does
       not protect the opinion. See Restatement (Second) of Torts § 566A.

Redco, 758 F.2d at 972; see also, e.g., Remick, 238 F.3d at 261 (“In Pennsylvania, an

opinion cannot be defamatory unless it ‘may reasonably be understood to imply the

existence of undisclosed defamatory facts justifying the opinion.” (quoting Baker v.

Lafayette Coll., 532 A.2d 399, 402 (Pa. 1987))); Restatement (Second) of Torts § 566

cmt. (b).

       While Hill contends that the Singer Statement implied that she was a liar (and an

extortionist), Cosby insists that this response by an attorney to serious public accusations

of wrongdoing made against his client in the midst of a heated public dispute could not

reasonably be understood to imply the existence of any defamatory facts. We assume

that a reasonable recipient could read the Singer Statement as proffering an opinion—




                                             10
based on underlying facts—that Hill lied. Singer nevertheless disclosed the factual basis

for his opinion.5

       “[E]ven if Singer’s Statement does imply Ms. Hill is a liar, it is still not actionable

because it includes the facts supporting that implication.” (Appellee’s Brief at 18 (citing

Redco, 758 F.2d at 972).) Responding to a media firestorm in which several women

(including Hill) had made public accusations of serious wrongdoing against Cosby,

Singer explained on his client’s behalf why he believed these accusations were nothing

but lies: (1) the alleged acts of abuse “occurred 30, 40, or even 50 years ago;” (2) “it is

completely illogical that so many people would have said nothing, done nothing, and

made no reports to law enforcement or asserted civil claims if they thought they had been

assaulted over a span of so many years;” and (3) “[l]awsuits are filed against people in

the public eye every day,” and “[t]here has never been a shortage of lawyers willing to

represent people with claims against rich, powerful men, so it makes no sense that not

one of these new women who just came forward for the first time now ever asserted a

legal claim back at the time they allege they had been sexually assaulted.” (A51-A52.)

       5
          However, no reasonable recipient could find that Singer characterized Hill and
the other alleged victims as extortionists. It appears that the whole gist of the statement
was to characterize the accusers’ claims as unsubstantiated, fantastical, absurd,
ridiculous, and uncorroborated—in other words—as “lies.” The attorney thereby seemed
to call into question the veracity of the abuse allegations on the grounds that the alleged
victims did not report or file litigation at the time the alleged abuse occurred many years
ago, even though these individuals purportedly would have had no problem in obtaining
legal representation to file a lawsuit against such a wealthy defendant. Applying Florida
law, the Massachusetts district court in Green determined that this Singer Statement was
capable of a defamatory meaning because it could be read to imply that the allegations
were false and without merit, but it did not consider whether Singer also implied that his
client’s accusers were extortionists. See Green, 138 F. Supp. 3d at 136-37.

                                             11
Like the boxer’s letter terminating the plaintiff’s engagement as his special counsel at

issue in Remick, 238 F.3d at 252-53, 261-62, or the 60 Minutes segment regarding the

safety of multi-piece tire rims manufactured by the plaintiff considered in Redco, 758

F.2d at 971-73, Singer’s disclosure of the facts supporting his opinion allowed the

recipient to draw his or her own conclusions “on the basis of an independent evaluation

of the facts,” id. at 972. The Singer Statement thereby “adequately disclosed” the factual

basis for the attorney’s opinion.6 Id.


       6
         We acknowledge that Cosby unsuccessfully raised this disclosure argument in
Green, but we have serious doubts with respect to the Massachusetts district court’s
ruling on this point (which, in any event, is not binding on this Court). Even though the
Green court acknowledged that “[t]he truth of portions of the statement, such as the
length of time between when the incidents allegedly occurred and the date on which any
particular allegation became public, is uncontested,” Green, 138 F. Supp. 3d at 136, it did
not really explain why (as Hill puts it) the Singer Statement “relies on undisclosed facts”
(Appellant’s Brief at 11 (emphasis omitted)), see Green, 138 F. Supp. 3d at 136-37.

        Hill cites, inter alia, to a Pennsylvania Superior Court ruling concluding that a
letter from an attorney requesting that the Pennsylvania Attorney General conduct an
investigation into the actions of a city council member regarding the retention of special
counsel for the city was capable of a defamatory meaning. But she recognizes that this
letter “set forth evidence that supported the defendant’s belief as to why he believed the
councilman violated the statutes.” (Appellant’s Reply Brief at 3 n.1 (discussing Green v.
Mizner, 692 A.2d 169 (Pa. Super. Ct. 1997)).) In comparison, this Court has determined
that significantly less detailed statements satisfied the disclosure requirement. Remick,
238 F.3d at 252-53, 261-62 (concluding that boxer disclosed factual basis for opinion that
plaintiff failed to provide adequate representation by identifying five specific instances of
such deficient representation); Redco, 758 F.2d at 971-72 (agreeing with district court
that factual bases for all stated opinions were adequately disclosed in news story
regarding multi-piece tire rims); see also, e.g., Roma v. United States, 344 F.3d 352, 361
(3d Cir. 2003) (“We are not bound by the interpretations of intermediate state appellate
tribunals, however, if other sources present ‘a persuasive indication that the highest state
court would rule otherwise.’” (quoting U.S. Underwriters Ins. Co. v. Liberty Mut. Ins.
Co., 80 F.3d 90, 93 (1996))).


                                             12
       We further conclude that no reasonable recipient could read Cosby’s Florida

Today Statement as implying the existence of undisclosed defamatory facts. Cosby

criticized a radio station’s attempt to get “people to stand up and heckle in order to collect

prizes and money,” questioning whether thereby encouraging “people to have a frat

house mentality” could lead to violence. (SA2.) While he arguably characterized the

accusations against him as “innuendos,” Cosby did so in order to explain why he refused

to offer any response of his own to these innuendos—and then invited the recipient to

conduct his or her own investigation. As the District Court aptly explained, asking the

public to investigate and draw its own conclusions “is a far cry from labelling Plaintiff

(and the other women who have made similar public assertions) as liars or extortionists.”

Hill, 2016 WL 491728, at *6; see also, e.g., Purcell v. Ewing, 560 F. Supp. 2d 337, 342

(M.D. Pa. 2008) (“The title of the posting (‘Look at the pictures’) and its opening

sentence (‘If one looks at the photos’) invite readers to evaluate the photograph and form

their own conclusions.”).

       Similarly, we agree with the District Court that the Camille Cosby Statement did

not constitute actionable defamation. A defamation plaintiff bears the burden of proving

the “application [of the communication] to the plaintiff” and “[t]he understanding by the

recipient of it as intended to be applied to the plaintiff.” 42 Pa. Cons. Stat. Ann. §

8343(a)(3), (5). “This statement targets the media as much, and arguably more so, than

the accusers, by claiming that the media failed to properly source or ‘vet’ Plaintiff’s and

the other women’s stories before publishing them.” Hill, 2016 WL 491728, at *6. In

fact, the Camille Cosby Statement—unlike the Singer Statement and the Florida Today

                                             13
Statement—was made more than a month after Hill herself had come forward with her

accusations against Cosby. Camille Cosby went on to refer to what Hill calls an

infamous scandal involving false rape allegations at the University of Virginia, but we

believe that no reasonable recipient could find that this final statement implied the

existence of specific undisclosed facts known to Camille Cosby regarding Hill’s

allegations against her husband. After all, this recipient would know that Camille Cosby

was not only Cosby’s business manager. She was also his wife, and it is understandable

that someone would defend his or her spouse against public accusations of wrongdoing

without thereby implicating any specific facts regarding a particular accusation.

       According to Hill, the three statements, when combined together, “demonstrate

their defamatory nature based upon undisclosed, false facts.” (Appellant’s Brief at 19

(emphasis omitted).) We do not agree. Insofar as each statement (which was made by

different people at different times) was not capable of a defamatory meaning, the sum

total of these statements likewise did not rise to the level of actionable defamation.

       Finally, the District Court appropriately disposed of Hill’s non-defamation causes

of action. “Plaintiff agrees with the court below that Pennsylvania courts apply the same

analysis for both defamation and false light.” (Id. at 23.) Thus, because this Court has

determined that none of the statements were defamatory in nature, her false light claim

fails. Hill further acknowledges that “Pennsylvania has yet to uphold such an IIED claim

in a defamation context.” (Id. at 29.) Even if we were inclined to agree with Hill that an

IIED claim could be based on allegedly defamatory language, we refuse to allow such a



                                             14
novel claim to go forward “after concluding as a matter of law that the language itself is

not defamatory.”7 Hill, 2016 WL 491728, at *9.

                                            III.

       For the foregoing reasons, we will affirm the District Court’s order granting

Cosby’s motion to dismiss.




       7
         The District Court did not commit reversible error by dismissing Hill’s
complaint with prejudice. Hill acknowledges that leave to amend should be granted
“[u]nless amendment would be futile.” (Appellant’s Brief at 9 (citing Chemtech Int’l,
Inc. v. Chem. Injection Techs., Inc., 170 F. App’x 805 (3d Cir. 2006)).) There is no
indication that the various deficiencies identified by this Court could be remedied in an
amended complaint. In re Burlington Coat Factory Sec. Litig., 114 F.3d 1410, 1434
(holding that futility is a proper justification for denying leave to amend).
                                            15
