Fox News is again asking a New York federal judge to dismiss a lawsuit filed against the network by the parents of murdered Democratic National Committee staffer Seth Rich after an appeals court revived the dispute last fall.
Joel and Mary Rich in March 2018 sued Fox News, as well as reporter Malia Zimmerman and guest Ed Butowsky, for intentional infliction of emotional distress and tortious interference. They claim a story that linked their son to internal DNC emails that were published by WikiLeaks was part of a scheme between Butowsky and former homicide detective Rod Wheeler. The Riches claim Fox and Butowsky convinced them to hire Wheeler to investigate their son’s murder and then with the ex-cop to develop a fictional story that painted their son as a traitor — one that caused Wheeler to violate a non-disclosure agreement he struck with the Riches.
In August 2018, U.S. District Court Judge George B. Daniels dismissed their complaint, finding the “crux” of the conduct attributed to Fox News is defamation, and the plaintiffs couldn’t circumvent New York law that says you can’t defame the dead by repackaging the conduct as intentional infliction of emotional distress.
However, the 2nd Circuit Court of Appeals revived the matter in September 2019. It found the parents’ distress to be separate from any hypothetical harm to their late son’s reputation, and that Zimmerman and Butowsky “had enough specific knowledge of the family and the circumstances surrounding Seth’s murder to be keenly aware of the Riches’ susceptibility to emotional distress.” It also reopened the door for the Riches to argue Fox News caused Wheeler to breach his NDA.
On Friday, the network filed another motion to dismiss.
Fox News says the family’s negligent supervision claim fails because they didn’t sufficiently allege that the network was on notice that Zimmerman and Wheeler would engage in a “campaign of emotional torture.” Instead, Fox argues, the complaint merely alleges Zimmerman and Wheeler had previously made erroneous statements on matters of public concern.
The network also argues that it can’t be held vicariously liable for any intentional infliction of emotional distress inflicted by Wheeler or Butowsky because they’re not employees. The claim for conspiracy to inflict emotional distress fails, too, Fox argues, because it’s redundant and because the Riches failed to plead that the parties intentionally participated in the conspiracy.
Read the full filing below.