By Jeff Birren, Senior Writer
There are undoubtedly potential defamation plaintiffs who decline to sue out of a concern that hidden past events could come to light during the litigation. Lenny Dykstra likely had no such fears when he sued a former teammate and his publishers for defamation because his past was well known, including, according to the United States District Court, being “among other things, racist, misogynist, and anti-gay, as well as a sexual predator, a drug abuser, a thief and an embezzler” (Lenny Dykstra v. St. Martin’s Press, LLC, MacMillan Publishing Group, LLC, Ronald Darling and Daniel Paisner, (Paisner was Darling’s “ghostwriter”) Supreme Court of the State of New York, Case No. 15367/2019, Decision + Order on Motion (5-29-20)) (“Dykstra”) at 13).
That was the problem. When Dykstra sued based on comments in Darling’s 2019 book, 108 Stitches, the Court found that in light of “Dykstra’s poor and mean-spirited behavior particularly toward various groups including racial minorities, women, and the LGBTQ community—this Court finds that, as a matter of law, the reference cannot ‘induce an evil opinion of [Dykstra] in the minds of right-thinking persons’ …as that ‘evil opinion has long existed’” (Id. at 17). Consequently, “this Court sees no legal basis for why it should use its very limited time and resources litigating whether Dykstra engaged in yet another example of bigoted behavior over thirty-years ago in a court of law” (Id. at 18).
Background
Darling and Dykstra were on the New York Mets that played Boston in the 1986 World Series. The Mets lost the first two games and Game 3 was in Boston. Dennis Boyd was the Sox’ pitcher. According to Darling, while Boyd was warming up, Dykstra was in the on-deck circle, “shouting every imaginable and unimaginable insult in his direction—foul, racist, hateful, hurtful stuff… this stuff coming out of Lenny’s mouth was beyond the pale…” (Id. at 3). “Dennis looked rattled” and Dykstra opened the game with a home run that helped the Mets “take back some of the momentum we’d lost in the opening games at Shea” (Id.). The Mets won the Series.
Darling went on to become a baseball announcer and studio analyst. He published a first book about that Series in 2009.He returned to it for 108 Stitches. This book is the subject of Dykstra’s lawsuit. Dykstra played twelve years in MLB and, among other things, wrote House of Nails: A Memoir of Life on the Edge, published in 2016. At the time, Dykstra gave an interview to the New York Times.
The interview was based on the book and his career, and the resulting story recounted Dykstra’s use of steroids while playing baseball, “paying detectives $500,000 to dig up dirt on umpires so that he could suborn their objectivity by telling them embarrassing things about their private lives while at bat” and his “bankruptcy fraud case that got him jail time” (New York Times, Richard Sandomir, “Lenny Dykstra Crawls from a Hole He Joyfully Dug For Himself” (7-9-16)). And that is just what Dykstra had to say about himself.
A former employee, Christopher Frankie had previously written the book Nailed! about Dykstra. According to a Philadelphia Inquirer review, the book portrayed Dykstra as “sexist, racist, sexual deviant and one of the biggest all-around lowlifes you’ll ever come across” (theinquirer.com, Matt Romanowski, “New book: Lenny Dykstra is a racist, sexist and pervert” (3-25-13)). Supposedly, Dykstra liked to “leave a large amount of feces in the toilet . . . so he could hear the shrieks of the hotel’s grossed-out maids,” “once told a female executive, in a meeting, that he had “impregnated three women in the same night and made them all get abortion,” “referred to Tiger Woods and Derek Jeter as “darkies,” said Willie Mays was his “field n____er” (Id.). It states that Dykstra had referred to “Venus and Serena Williams as ‘baboons,” and called then Boston Celtics Head Coach Doc Williams a “spear-chucker” (Dykstra at 14). It also mentioned that Dykstra “was sentenced in March of 2012 to three years in prison for his role in a grand theft auto scheme” (Id.). This is not the only source of such material.
In 2009 a New York Daily News headline proclaimed that Dykstra was “nailed as a racist in mag” (Dykstra at 5). That same year another former Dykstra employee published an article in GQ Magazine with the title: “You Think Your Job Sucks? Try Working for Lenny Dykstra” (Id.). A 2013 headline from Philadelphia in 2013 stated that “Lenny Dykstra is Grosser, More Racist, More Self-Destructive than You Thought” (Id.), and the Dykstra ruling cites yet another source that states Dykstra was “a racist, a sexist, a homophobe and a financial flop” (Id. at 14). That was not all.
Recently sportscasting.com posted that in 2010 “he was accused of hiring escorts and writing bad checks” and in 2011 he “was accused of assaulting his housekeeper” “and was arrested and charged with bankruptcy fraud. Also in 2011, Dykstra was charged with 25 misdemeanor and felony counts of grand theft auto, attempted grand theft auto, identity theft and other crimes” (sportscasting.com, Mike Thompson, “Lenny Dykstra Acts as a Sex Therapist” (4-14-20)). These events all pre-dated Darling’s book.
Darling’s first book had recounted the story concerning Dykstra and Dennis “Oil Can” Boyd, saying it was “tasteless” as Dykstra was “running his mouth every which way.” It was “venomous chatter” (Dykstra at 15). Dykstra’s insults were “too offensive to be shown in print” (Id. at 16). Dykstra did not sue.
Darling’s second book added some additional information about that verbal assault, stating that it was “racist” and Darling compared the taunts “to attacks that Jackie Robinson had endured” (Id.). This time, Dykstra sued.
The Lawsuit
Dykstra alleged that the “reference tarnishes ‘the New York Mets’ 1986 World Series championship, by falsely claiming that [Dykstra’s] legendary home run sparked the Mets comeback was the result of racist taunts’” (Id. at 4). He claimed that the reference “forever branded [him a racist]” that is it was “maliciously stated,” that it harmed “his ability to earn a living going forward,” and subjected him to “emotional distress, mental anguish, shame, disgrace, ridicule, loss of standing in the entertainment community, and irreparable harm to his professional reputation” (Id.). He sought an “unspecified sum to compensate him for ‘loss of opportunities, financial damages, emotional distress and mental anguish’ as well as attorney’s fees and punitive damages” (Id.).
The Response
The defendants filed motions to dismiss. Darling did so “based on documentary evidence” and for failure to state a claim, alleging that Dykstra was “’a classic libel-proof plaintiff whose reputation is so bad that he cannot be defamed.” He also argued that the story was “substantially true” and that the emotional distress claim “is duplicative of his defamation claim” (Id.).
The Publisher Defendants’ arguments “are somewhat similar to those of Darling” (Id. at 7). They further asserted that the complaint did not establish “actual malice” (Id.). They also argued that Dykstra was a “libel-proof plaintiff” so that “any harm from the reference was incremental” and that the intentional infliction claim was “duplicative” of the libel claim (Id.). Paisner added that the allegations against him were “mere surmise and conjecture” (Id.). Dykstra opposed the motions.
He resisted applying the libel-proof plaintiff doctrine, claiming that “there is no definitive record (something akin to a criminal conviction) sufficient to establish” that Dykstra’s reputation “could suffer no harm” from the book (Id. at 5). He also claimed that his reputation was not as bad as Darling suggested and even if it was bad, Darling had delegitimized the Mets’ 1986 Championship, “sullied his reputation all around the county, exposed Dykstra to public ridicule and disgrace as a racist, and resulted in the loss of business opportunities and standing in the entertainment and sports communities” (Id.).
He further asserted that applying the incremental harm doctrine is inappropriate at the pleading stage (Id.), that although the defendants had invoked the words “substantial truth” they did not argue that the reference is substantially true, merely that “they seek to compare the relative impact of truth and falsity” (Id. at 6). Finally, he argued that his intentional distress damages were separate from the damages “that are ‘narrowly attributable to’ the reference in the book” (Id.).
Dykstra made similar arguments concerning the Publisher Defendants, adding that as to actual malice, they “purposefully avoided the truth in publishing the reference” (Id. at 7). The defendants filed reply briefs.
Among his arguments, Darling asserted that the Court “has been presented with ‘a wealth of statements from Dykstra himself as well as other broadly-circulated and uncontested news reports that illustrate Dykstra’s ubiquitously negative reputation’” (Id. at 6).
The Ruling
The Court began by stating that a court “must afford the pleading a liberal construction” and give the plaintiff “the benefit of every possible inference” (Id. at 7). It listed the elements of defamation and included a definition of “actual malice” (Id. at 9). It noted that the defendants had not argued that the reference was “not defamatory as a matter of law” but rather that it was non-actionable “because Dykstra’s reputation for bigotry and unsportsmanlike conduct is so poor that his reputation cannot suffer further damage from the reference’s publication” (Id.). The Publisher Defendants also argued that the “defamation action must be dismissed against them because they did not publish the reference with actual malice” (Id.). The Court then applied the law to the facts.
Dykstra had “conceded that he is a public figure” so the question was whether he “set forth sufficient factual allegations” to demonstrate that the book had been “published with actual malice” (Id. at 11). Dykstra claimed that the comparison to racist threats made against Jackie Robinson were “alarming” compared to anything that he might have said, that Darling’s previous book had mentioned the incident but without the alleged racist statement, that there is no video evidence that supported the allegation, that it was done to defame and sell books, and that the publisher failed to investigate and verify the allegations. This was not enough.
“These allegations alone are insufficient to constitute actual malice” (Id. at 12). A failure to investigate is not sufficient to establish reckless disregard and the “case at hand is not such an extreme case that a failure to investigate could be so gross as to constitute willful avoidance of knowledge” (Id.). “Notably, nowhere in the amended complaint or in the opposition papers is there any allegation that, prior to the publication of the book, Publisher Defendants were aware of anyone denying the reference” (Id.) (italics in the original).
Furthermore, they published Darling’s first book that had a reference to “the same ‘unprintable’ insults consisting of ‘hateful, hurtful declaration[s]’ and “unsuitable comments’ by Dykstra toward Boyd” and “there was no response by Dykstra” and that was “all the more reason for Publisher Defendants to have accepted what Darling wrote” (Id. at 13). Finally, “Dykstra already had such a poor reputation for bigoted behavior and unsportsmanlike conduct further militates against” a finding of “actual malice.”
The Libel-Proof Plaintive Doctrine
The Court stated that “this doctrine was first articulated by a federal district court” in 1981 and “achieved further support when the Second Circuit cited and discussed [that case] with approval in Herbert v. Lando, 781 F. 2nd 298 [2d Cir.] cert denied, 476 U.S. 1182 (1986)” (Id. at 10). The “doctrine is not limited to plaintiffs with criminal records” (though Dykstra had such a record), and it had been applied “in a non-criminal context at the motion to dismiss stage” (Id.).
However, it “is only applied in rare circumstances” when “free speech interests should prevail over the interests of an individual who, due to an already soiled reputation, would not be entitled to recover anything other than nominal damages” (Id.).
The question was thus whether Dykstra was barred recovery due to the “libel-proof plaintive doctrine.” The “Court finds that the case at hand is one of those rare circumstances” (Id.). Dykstra already “had a reputation—largely due to his autobiography—of being willing to do anything to benefit himself and his team, including using steroids and blackmailing umpires” and referred to “Dykstra’s criminal convictions” (Id.).
Consequently, Darling’s “book has not exposed Dykstra to any further ‘public contempt, ridicule, aversion or disgrace’” (Id.) (emphasis in the original). What follows is three full pages of such behavior and comments, some of which has already been mentioned.
Moreover, from “a sportsmanship perspective, Dykstra’s hurling insults at an opposing pitcher to ultimately thrown him off his game is hardly as disgraceful as his self-portrayal of abusing steroids or blackmailing umpires” (Id. at 14). The Court noted that Dykstra never “brought a libel suit” against anyone for such reporting and “never filed defamation suits against the publishers of prior reports of his crimes” (Id. at 14). That was not all.
“In addition, Dykstra’s disreputability extends beyond the field. Reportedly, he has been the subject of ‘at least 24 legal actions, including 18 [within a year]’ for nonpayment and breach of contract. In one instance, it was reported that he asked his former driver Paul Lee to ‘rough up’ and ‘hurt’ his former pilot and ‘shut him up’ about his non-payments” (Id. at 16).
“Separately, Dykstra has reportedly made discriminatory comments against an employee who was gay” (Id.). “Relatedly, Dykstra has built his reputation as a misogynist. In his book, Frankie asserts that Dykstra wanted to list oral sex as one of the job requirements for his female employees” (Id.). “Further, in 2012, Dykstra pleaded no contest to charges of lewd conduct and assault with a deadly weapon relating to an incident with a female employee” (Id.).
The Court summarized by stating the “nature and seriousness of Dykstra’s criminal offenses, which include fraud, embezzlement, grand theft, and lewd conduct and assault with a deadly weapon, and notably the publicity they received, have already establish his general bad reputation for fairness and decency far worse than the alleged racially charged bench-jockeying could” (Id. at 16).
In a footnote the Court stated that “this litany is only based on the exhibits submitted on this motion. It does not include and this Court does not consider, in its decision, the negative publicity one comes across during a quick Google search for Dykstra” and it cited several more articles. (Id., at 17, FN 3).
Finally, the Court added that Dykstra “had failed to state how he had been damaged other than in a conclusory fashion” (Id.). His remedy thus lay not in the courts but given his “apparent attraction to the spotlight” but “in telling his own story to the public” (Id.). The question was whether Dykstra “had a reputation capable of further injury when the reference was published. This Court finds that Dykstra lacked such a reputation at the time of publication” (Id. at 18).
The Court then dealt with the intentional infliction of emotional distress claim. That was held to be “duplicative, as the underlying allegations fall within the ambit of Dykstra’s defamation cause of action” (Id.). “Moreover, Darling and Publisher Defendants’ alleged conduct is not outrageous by any stretch of the imagination” (Id.). The Court ordered the all of claims dismissed and directed the clerk of the court to tax costs (Id. at 19).
Conclusion
Thomas Jefferson stated in a 1807 letter that “[d]efamation is becoming a necessary of life; insomuch, that dish of tea in the morning or evening cannot be digested without this stimulant” (Thomas Jefferson, The Life and Selected Writings, ed. Koch & Pedon, The Modern Library, at 582 (1944)). Dykstra is that rare defamation plaintiff who to date could not get passed an initial motion to dismiss due to his reputation and Dykstra has profited from creating that reputation. Dykstra’s Wikipedia biography goes on for pages with this material, much not mentioned here. There is an old adage in the law that “bad facts make bad law. Sometimes bad facts make good law.
