REPORT AND RECOMMENDATION
JANIE S. MAYERON, Magistrate Judge.
The above matter came before the undersigned on defendants' Motion to Dismiss [Docket No. 46]. Pursuant to this Court's Order of May 1, 2013 [Docket No. 50], this Report and Recommendation is based on the parties' written submissions.
This matter has been referred to the undersigned Magistrate Judge for a Report and Recommendation by the District Court pursuant to 28 U.S.C. § 636(b)(1)(A), (B) and Local Rule 72.1(c).
A. Plaintiff's Complaint
Plaintiff is a prisoner incarcerated at a federal prison in California. Plaintiff, who is pro se, has sued the Star Tribune Media Company, LLC ("Star Tribune"), publisher Dan Browning and Star Tribune reporter David Chanen for the Star Tribune's reporting on plaintiff's criminal case.
On August 13, 2012, Chief Judge Michael Davis sentenced plaintiff to 324 months (27 years) in prison for his role in a fraud and identify theft scheme. See United States v. Okeayainneh, 11-cr-87(MJD/JJK), Judgment in a Criminal Case [Docket No. 759]; Transcript of Sentencing Hearing, pp. 32-33 [Docket No. 880].
Plaintiff's Complaint alleged that defendants defamed him by publishing the following false and defamatory statement in the Star Tribune newspaper on August 6, 2012: "Later this month, Julian Okeayainneh, one of the ring's kingpins is scheduled to be sentenced to life in prison', the longest punishment handed down for an identity theft case." Complaint, p. 1. Plaintiff alleged that his reputation was "injured and ridiculed" as a result of this defamatory statement. Id., ¶6. According to plaintiff, there was no evidence that he could be sentenced to life in prison and the United States sought a term of imprisonment of thirty years, with four consecutive two year terms, for a total of thirty-eight years. Id., ¶7 (citing Government's Response to Defendants' Sentencing Positions, 11-cr-87(MJD/JJK) [Docket No. 727]). Plaintiff contended that the defendants failed to follow their "standard procedure" in investigative reporting when they falsely reported that plaintiff would be sentenced to life in prison. Id., ¶8. Plaintiff did not identify this "standard procedure".
Plaintiff sued under 42 U.S.C. §1983, alleging that "a civil rights lawsuit is actionable under §1983 if the defamatory statement is based on the lies of the Star Tribune Media Company, LLC Publishers." Id., ¶9 (citing Martinez v. City of Schenectady , 115 F.3d 111, 115 (2nd Cir. 1997)). Plaintiff alleged that the federal court has jurisdiction over this matter pursuant to 42 U.S.C. §§1983, 1985; 28 U.S.C. §§1343, 2201, 2202 and 1367(a). Id., ¶1. As relief, plaintiff sought compensatory damages in an amount to be determined by a jury and a declaratory judgment that defendants violated his constitutional rights. Complaint, Prayer for Relief, ¶¶1-6.
A document entitled "Plaintiff Julian Okeayainneh Affidavit in Support of Tort Claim of "Defamation of Character" and Imposition of Lien Upon Defendants" ("Pl. Aff.") [Docket No. 2] was filed the same day the Complaint was filed. In this affidavit, plaintiff described in more detail how he believed defendants injured him though their publication of the allegedly defamatory statement about his sentencing. Plaintiff stated that as a customer of the Star Tribune newspaper, he had a right to enforce the Star Tribune's "specific performance in media and investigative journalism" through a "specific performance lien, " which plaintiff alleged was a Fifth Amendment right. Id., ¶2. Plaintiff further contended that defendants violated their "code of ethics" by publishing the false statement and violated his Fourteenth Amendment right to Equal Protection. Id., ¶5(B). Plaintiff stated that defendants "conspired with other persons, known and unknown to the plaintiff in the State of Minnesota and elsewhere without lawful justification in publishing a defamatory statement against Plaintiff Julian Okeayainneh, a resident-customer to the United States to the United States federal corporate." Id., ¶5(C). Plaintiff claimed that he "seized [defendants] property with a Fifth Amendment U.S. Constitutional Consensual Commercial lien for Commercial Tort Claim Compensation." Id . Plaintiff stated that he was assessing damages against defendants at a rate to be determined by a jury commencing on August 6, 2012 and continuing until plaintiff's release from prison. Id., ¶7.
B. Defendants' Motion to Dismiss
In lieu of answering, defendants moved to dismiss the Complaint. Defendants' Memorandum of Law in Support of Motion to Dismiss ("Def. Mem."), p. 1 [Docket No. 47]. Defendants moved for dismissal under Fed.R.Civ.P. 12(b)(1), lack of subject matter jurisdiction and 12(B)(6), failure to state a claim. Id.
Defendants admitted that the supposedly defamatory statement about plaintiff being "scheduled to be sentenced to life in prison" appeared in a news report authored by Chanen and published on August 6, 2012. Id., p. 2; Chanen Decl., ¶2. Chanen stated that he relied on the Government's Position on Defendants' Sentencing [11-cr-87, Docket No. 718] when wrote his story. Chanen Decl., ¶3. That filing noted that "[t]he Pre-Sentence Report (PSR) prepared by the United States Probation Office correctly calculated defendant Okeayainneh's advisory guidelines sentence to be life imprisonment plus two years for each of the Aggravated Identity counts of conviction." Def. Mem., p. 4 (quoting Government's Position on Defendants' Sentencing, p. 2). Furthermore, this statement was also borne out by statements made at the Sentencing Hearing by the Government's attorney and the court. Transcript of Sentencing Hearing at 30 (statement by government attorney that "We could have asked for life. We did not."); id. at 31-32 (court stating that "The presentence investigation advisory guideline calculations have been given, but I will give them again.... [I]mprisonment range of life plus 24 months consecutive....").
Defendants argued that plaintiff's assertion that he had a cause of action for defamation under §1983 did not change the fact that defamation is a state law cause of action and does not give rise to federal question jurisdiction. To the extent that plaintiff was alleging that defendants violated his constitutional rights, he failed to allege that the defendants carried out their actions under color of state law-a prerequisite for a constitutional claim. Def. Mem., pp. 5-6. As a result, the Court lacks jurisdiction under 28 U.S.C. §1331. Defendants also argued that the Court lacked diversity jurisdiction under 28 U.S.C. §1332 because plaintiff failed to allege damages in excess of $75, 000. Id., p. 6.
Regarding the merits of plaintiff's defamation cause of action, defendants alleged the sentencing statement was "substantially true" and thus, could not be defamatory under Minnesota law. Id., p. 9 (citing Jadwin v. Minneapolis Star & Tribune Co. , 390 N.W.2d 437, 441 (Minn.Ct.App. 1986)). Under Minnesota law, a cause of action for defamation requires (1) a false and defamatory statement about the plaintiff; (2) an unprivileged publication to a third party; (3) a tendency to harm plaintiff's reputation in the community; and (4) fault amounting to at least negligence. Id., p. 7. According to defendants, nothing in the Complaint refuted that plaintiff was scheduled to be sentenced to life in prison, only that Chief Judge Davis ultimately sentenced plaintiff to twenty-seven years in ...