Ad agency head Scott Brandon sued Donald Wizeman “claiming that Wizeman was the author of Myrtle Beach Insider and that Wizeman had defamed him by publishing a June 2007 post calling him a ‘failed lawyer’ and criticizing one of his ad agency’s campaigns. Wizeman denied that he was the author of Myrtle Beach Insider, but admitted agreeing with its content.” Note, however, some oddities that make the case far from typical: Wizeman did not hire a lawyer at first and claims to have been unaware of some key proceedings that were decided against him, and the judge awarded summary judgment to the plaintiff, which is extremely unusual in defamation cases. [Sam Bayard, Citizen Media Law; Mike Cherney, Myrtle Beach Sun-News]
P.S. Some commenters are reading the case as one of “defendant doesn’t show up to contest complaint, gets hit with default judgment”; I wasn’t sure from the story (and am still not sure) that the sequence of events was that cut and dried. Obviously, it doesn’t count as especially odd if an absent litigant gets hit with a big judgment.
Update Aug. 2009: Case settled [Citizen Media Law]
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Specifically, according to Citizen Media Law, it was the summary judgment hearing which Wizeman missed. (Wizeman claimed he didn’t receive notice of it.) If he missed the hearing, I assume he also failed to submit an affidavit in opposition to the motion.
Under those circumstances, against a non-appearing defendant, obtaining summary judgment in a defamation or any other case isn’t highly unusual. Perhaps it should be (the rules require that the defendant be given the benefit of any doubt as to the facts), but judges take a dim view of defendants who fail to appear for court.
You really can’t draw any conclusions from a case like this where summary judgment is granted. Suing someone who does not defend the case and getting a “recovery” is pretty easy.
As far as I can see, calling someone a “failed lawyer” and criticizing an ad campaign do not constitute defamation. Certainly whether a person is a “failed lawyer” is a matter of opinion, not fact. A plaintiff’s motion for summary judgment should succeed only if, even construing the facts in the manner most favorable to the defendant, the plaintiff will win. Doesn’t that mean that if the plaintiff has not made a case as a matter of law, in this case failing to allege a false and defamatory factual statement, the court should dismiss the motion for summary judgment sua sponte?
Most courts do not require that a non-movant respond by affidavit or otherwise to defeat a motion for summary judgment. The movant still must meet his burden of persuasion.
There are many judges, however, who would treat a motion as confessed when the non-movant fails to show up for the hearing.