UTAH – January 30, 2015 ATTORNEYS
AT BALLARD SPAHR LLP HIT COURT FILING OUT OF THE PARK WITH DEFENDANT’S ANSWER
TO DIAMOND RANCH ACADEMY’S COMPLAINT
It is not often that one reads
court filings with a grin. Ballard Spahr LLP submitted a brilliant, even
humorous response to the complaint filed by Diamond Ranch Academy’s (DRA)
attorneys against Ms. F----, alleging defamation—including both libel and slander.
The Bazelon Center for Mental Health Law? Spice things up, eh? We shall savor every bite.
If one is familiar with the burgeoning, multi-billion dollar so-called Therapeutic Teen Industry, this case is worth a read... Seriously, there is humor to be found in this filing, which is
welcome by children’s rights advocates in what they rightly view as a
sinister, dark industry. An industry, where accountability appears virtually non-existent.
The “Thirteenth Defense” in this filing actually
defines slander to DRA’s attorney’s and the Court, as not applicable, because slander
is oral, not written. “Plaintiff’s Amended Complaint and the slander and slander per se
causes of action asserted therein are barred because Plaintiff’s alleged
defamatory statements are all written—not spoken.” Go ahead chuckle. It is pretty comical.
The “Twenty-Fourth Defense” in the filing is
a gift that would keep on giving for the defense and those individuals referred
to as “Survivors of DRA,” if this case goes to court. “Some or all of the damages of
which DRA complains were the result of the fault and/or actions of DRA itself,
were the result of the fault and/or actions of persons or entities over whom or
over which Ms. ----- has no control, and/or were the result of intervening
causes.” Advocates are hearing
potential witnesses for the defense are wishing for a subpoena to give testimony—such
testimony...that apparently no sane facility would welcome in the public
arena, let alone their own lawsuit.
Ballard Spahr, in its filing, cites
California’s Anti-SLAAP law, Utah’s Anti-SLAAP Act, along with the First and
Fourteenth Amendment, the Utah Constitution et
al. The Counterclaim Рtouch̩.
Whatever the outcome, it is clear the Ballard Spahr LLP group is quite capable, assembled quite an army with foresight, and the “JV” team in DC could benefit from them. One can only hope that the cognitive capabilities of the Court far exceed attorney’s having to define “slander.”
If you wish to read the original complaint:
ANSWER TO THE COMPLAINT:
* Note: Court document was modified into
MS Word. Some identifiers were removed.
Case 2:14-cv-00751-TC Document
25 Filed 01/30/15 Page 1 of 25
Anthony C. Kaye ()
Zaven A. Sargsian ()
BALLARD SPAHR LLP
201 South Main Street, Suite
800
Salt Lake City, Utah 84111-2221
Telephone: --------; Facsimile:
--------
kaye@ballardspahr.com
sargsianz@ballardspahr.com
Daniel M. Benjamin (admitted pro
hac vice)
Edward Chang (admitted pro
hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California
92101-8494
Telephone: (619) ---------; Facsimile:
-------
benjamind@ballardspahr.com
Ira A. Burnim (admitted pro
hac vice)
Jennifer Mathis (admitted pro
hac vice)
Julia Graff (admitted pro
hac vice)
Andrew Christy (admitted pro
hac vice)
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 15th St. NW, #1212
Washington, DC 20005
Telephone: --------; Facsimile:
----------
irab@bazelon.org
jenniferm@bazelon.org
juliag@bazelon.org
andrewc@bazelon.org
Attorneys for Defendant, C------
F----
IN THE UNITED STATES
DISTRICT COURT
DISTRICT OF UTAH, CENTRAL
DIVISION
DIAMOND RANCH ACADEMY,
INC.,
Plaintiff,
v.
C------ F----,
Defendant.
|
ANSWER OF DEFENDANT C------
F---- AND COUNTERCLAIM
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell
|
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 2 of 25
Defendant C------ F---- (“Ms. F----”
or “Defendant”) hereby responds to the Amended Complaint (Dkt. No. 23) filed by
DIAMOND RANCH ACADEMY, INC. (“DRA” or “Plaintiff”) as follows:
FIRST DEFENSE
Ms. F---- responds to the
individually numbered paragraphs of the Amended Complaint as follows:
NATURE OF THE ACTION
1. Ms. F---- admits that
Plaintiff purports to bring an action as described in Paragraph 1 and Ms. F----
speaks publicly and continues to make public statements about Plaintiff. Ms. F----
denies that she has made statements that were and are false, unsupported,
offensive, defamatory and injurious to DIAMOND RANCH ACADEMY’s professional
reputation. Ms. F---- is without knowledge or information sufficient to form a
belief as to the truth of the remaining allegations in Paragraph 1, and, on
that basis, denies those allegations.
JURISDICTION
2. Ms. F---- states that, to
the extent the allegations in Paragraph 2 are legal conclusions, they require
no answer. Ms. F---- admits that Plaintiff seeks damages in excess of $75,000
and that Plaintiff and Ms. F---- are citizens of different states. Ms. F----
denies that she caused damages in any amount to Plaintiff. Ms. F---- denies the
remaining allegations in Paragraph 2.
3. Ms. F----
states that, to the extent the allegations in Paragraph 3 are legal
conclusions, they require no answer. Ms. F---- denies the remaining allegations
in Paragraph 3.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 3 of 25
4. Ms. F---- states that, to
the extent the allegations in Paragraph 4 are legal conclusions, they require
no answer. Ms. F---- denies the remaining allegations in Paragraph 4.
VENUE
5. Ms. F---- states that, to
the extent the allegations in Paragraph 5 are legal conclusions, they require
no answer. Ms. F---- denies the remaining allegations in Paragraph 5.
PARTIES
6. Ms. F---- is without
knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 6, and, on that basis, denies those allegations.
7. Ms. F---- admits the
allegations in Paragraph 7.
FACTUAL ALLEGATIONS
8. Ms. F---- admits the
allegations in Paragraph 8.
9. Ms. F---- is without
knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 9, and, on that basis, denies those allegations.
10. Ms. F---- denies the
allegations in Paragraph 10.
11. Ms. F---- states that, to
the extent the allegations in Paragraph 11 are legal conclusions, they require
no answer. Ms. F---- admits that certain statements were posted on the website
located at http://www.drasurvivors.com, as discussed further below. Ms. F----
is without knowledge or information sufficient to form a belief as to the truth
of the remaining allegations in Paragraph 11, and, on that basis, denies those
allegations.
(a) Ms. F---- denies that, on
August 1, 2014, she posted a comment that “DRA is not a legitimate treatment
facility and that its methods are unethical and illegal” on the Facebook page
entitled “I survived Diamond Ranch Academy.” Between May
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 4 of 25
and June 2012, the statement
“Diamond Ranch Academy is NOT a legitimate treatment facility and their methods
are unethical, illegal and abusive” was posted on the website located at
http://www.drasurvivors.com. Ms. F---- admits that, on January 26, 2014, the
statement “They end up paying tens or even hundreds of thousands of dollars for
‘treatment’ that is at best ineffective and at worst abusive, neglectful, and
even fatal, and that often creates new problems or exacerbates existing
problems rather than fixing any issues that the child may have” was posted at
http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F----
denies that the “abusive, and fatal” statement was posted in “Letter to DRA
Parent” on June 28, 2013 or “About Diamond Ranch Academy, Overview.” Ms. F----
admits that “Letter to DRA Parent” posted on June 28, 2013 was removed from the
public website before the Complaint was served on Ms. F----. Ms. F---- denies
that “About Diamond Ranch Academy, Overview” was republished. Changes, if any,
to “About Diamond Ranch Academy, Overview” were not substantive and not
material and changes, if any, occurred before service of the Complaint on Ms. F----.
Ms. F---- denies the remaining allegations in Paragraph 11(a).
(b) Ms. F---- admits that on
January 26, 2014, the statement “They end up paying tens or even hundreds of
thousands of dollars for ‘treatment’ that is at best ineffective and at worst
abusive, neglectful, and even fatal, and that often creates new problems or
exacerbates existing problems rather than fixing any issues that the child may
have” was posted at
http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F----
denies that the “DRA physically, emotionally and psychologically abuses its
students” statement was posted in “Letter to DRA Parent” posted on June 28,
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 5 of 25
2013. Ms. F----
admits that, on June 19, 2012, the statements “However, that is not what former
students of this school are saying… They indicate that children who have attend
DRA were “physically, emotionally and psychologically abused” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- admits that “Letter to DRA Parent” posted on June 28, 2013 was
removed from the public website before the Complaint was served on Ms. F----.
Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished.
Changes, if any, to “About Diamond Ranch Academy, Overview” were not
substantive and not material and changes, if any, occurred before service of
the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in
Paragraph 11(b).
(c) Ms. F---- admits
that the statement “Former students report that DRA owners and staff completely
disregard the rights, individual needs and welfare of the children in their
care” was posted at http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- denies that the “DRA owners and staff ‘completely disregard the
rights, individual needs and welfare’ of its students” statement was removed
from the website located at http://www.drasurvivors.com.
Ms. F---- denies the remaining allegations in Paragraph 11(c).
(d) Ms. F---- admits
that the statement “Tuition for DRA can cost roughly $6000 a month and anywhere
from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a child” was
changed to “Tuition for DRA can cost roughly $6000 a month and anywhere from
$72,000 - $200,000 (or more)” on October 18, 2014 and then to “Tuition for DRA
can cost roughly $6000 a month and anywhere from $72,000 –
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 6 of 25
$200,000 (or more)
depending on the length of time the child is enrolled” on October 24, 2014 and
posted at
http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- admits that the statement “It is the opinion of DRA Survivors that
these strip searches are not only unnecessary and overused (multiple times a
day) but used as a means of humiliation and dehumanization” was posted at http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- denies that the “dehumanizes children” statement was posted in “Letter
to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to DRA Parent”
posted on June 28, 2013 was removed from the public website before the
Complaint was served on Ms. F----. Ms. F---- denies the remaining allegations
in Paragraph 11(d).
(e) Ms. F---- admits
that the statement “Deceptive marketing techniques are nothing new to the
troubled teen industry, often when explaining the aspects of the program they
use commonly known words to describe their program in order bring credibility
to methods” was posted at http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- denies that “About Diamond Ranch Academy, Overview” was republished.
Changes, if any, to “About Diamond Ranch Academy, Overview” were not
substantive and not material and changes, if any, occurred before service of
the Complaint on Ms. F----. Ms. F---- denies the remaining allegations in
Paragraph 11(e).
(f) Ms. F---- admits
that the statement “According to former students, ‘Restraint’ (which DRA claims
to be use as a last resort only) is actually a violent and painful form of
torture” was posted at http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- denies that “About Diamond Ranch Academy, Overview” was
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 7 of 25
republished. Changes, if any,
to “About Diamond Ranch Academy, Overview” were not substantive and not
material and changes, if any, occurred before service of the Complaint on Ms. F----.
Ms. F---- denies the remaining allegations in Paragraph 11(f).
(g) Ms. F---- admits that the
statements (i) “Restraining a student may happen for any violation of the
school’s rules, and is doled out by unlicensed, therapeutically unqualified
staff members that many former students refer to as ‘grown up bullies,’” (ii)
“Although DRA does employ licensed social workers and a small population of
trained therapists, the majority of staff responsible for the children in their
day to day activities are NOT licensed- many have little education beyond a
high school diploma,” (iii) “According to licensing records, there are no
licensed Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident
supervising physician, their Clinical Director has only a license in Social
Work,” and (v) “No staff on campus have certifications in Child Development,
Abnormal Psychology or Applied Behavior Analysis” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits
that the statement “Are you aware that the staff employed by DRA who are
responsible for the children’s daily activities are all unqualified, improperly
trained and underpaid” was posted at
http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/ on
May 5, 2013. Ms. F---- admits that the statements “Most will describe them as
overgrown bullies, unqualified and unfit to be working with children” and “I
also think their parents don’t deserve to be lied to and sold a bill of goods
that is simply impossible for such unqualified people to deliver” were posted
in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that “Letter to
DRA Parent” posted on June 28, 2013
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 8 of 25
was removed from the public
website before the Complaint was served on Ms. F----. Ms. F---- denies that
“About Diamond Ranch Academy, Overview” was republished. Changes, if any, to
“About Diamond Ranch Academy, Overview” were not substantive and not material
and changes, if any, occurred before service of the Complaint on Ms. F----. Ms.
F---- denies the remaining allegations in Paragraph 11(g).
(h) Ms. F---- admits that on
August 23, 2012, the statement “In reality, it is nothing more than a private
prison, where due process of the law and even the most basic of human rights
are violated without any reason other than their parents felt they needed help
and ‘it looked nice in the brochures’” was posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits
that the statement “It is a privately-run teen prison, where due process of the
law and even the most basic human rights of children may be violated without
cause, legal repercussion or the ability for a student who has become the victim
of abuse to voice their grievance” was posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that
“About Diamond Ranch Academy, Overview” was republished. Changes, if any, to
“About Diamond Ranch Academy, Overview” were not substantive and not material
and changes, if any, occurred before service of the Complaint on Ms. F----. Ms.
F---- denies the remaining allegations in Paragraph 11(h).
(i) Ms. F---- admits that the
statement “Is sending your child away worth the risk that they will be abused…
or that they will never come back at all” was posted at
http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- denies that
“About Diamond Ranch Academy, Overview” was republished. Changes, if any, to
“About
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 9 of 25
Diamond Ranch Academy,
Overview” were not substantive and not material and changes, if any, occurred
before service of the Complaint on Ms. F----. Ms. F---- denies the remaining
allegations in Paragraph 11(i).
(j) Ms. F---- admits that the
statements (i) “It is the opinion of DRA Survivors that these strip searches
are not only unnecessary and overused (multiple times a day) but used as a
means of humiliation and dehumanization” and (ii) “Still considered an
experimental therapy and outlawed as cruel and unusual punishment in some
states, Aversion Therapy is cautioned to be used with reservation in adequately
regulated environments and only by responsible mental health professionals”
were posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F----
also admits that the statements (iii) “Are you aware that strip searches are
used often and for little to no reason at all,” (iv) “Considering contraband is
nearly impossible to acquire in DRA, this is not used for safety reasons, it is
used as punishment and humiliation,” (v) Are you aware that the meals provided
in this stage consist of nothing but plain oats and “burnt” rice and lentils,”
(vi) “Are you aware that this meager meal plan could last anywhere from 3 weeks
to several months,” and (vii) “Are you aware that this meal plan constitutes
starvation” were posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/
on May 5, 2013. Ms. F---- admits that the statement “Not to mention that the
‘therapy’ used in DRA, called Aversion Therapy, has been outlawed in most state
prisons, because it has been deemed to be ‘cruel and unusual punishment’” was
posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits that
“Letter to DRA Parent” posted on June 28, 2013 was removed from the public
website before the Complaint was
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 10 of 25
served on Ms. F----. Ms. F----
denies that “About Diamond Ranch Academy, Overview” was republished. Changes,
if any, to “About Diamond Ranch Academy, Overview” were not substantive and not
material and changes, if any, occurred before service of the Complaint on Ms. F----.
Ms. F---- denies the remaining allegations in Paragraph 11(j).
(k) Ms. F---- admits that, on
August 23, 2012, the statement “This leads to many incidents going unreported,
and the children being denied adequate medical care if the medical staff is not
on duty” was posted at http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- admits that the statement “All he needed was an extra dose of the medication
he was already on and that was already in the possession of the DRA staff, but
rather than give it to him, they neglected his requests for medical attention”
was posted at
http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/. Ms. F----
admits that the statements “Are you aware that a child died in Diamond Ranch
Academy?” and “Do you know that they refused him medical care and all he needed
was an extra dose of his medication and that family would still have their
son?” were posted in “Letter to DRA Parent” on June 28, 2013. Ms. F---- admits
that “Letter to DRA Parent” posted on June 28, 2013 was removed from the public
website before the Complaint was served on Ms. F----. Ms. F---- denies that
“About Diamond Ranch Academy, Overview” was republished. Changes, if any, to
“About Diamond Ranch Academy, Overview” were not substantive and not material
and changes, if any, occurred before service of the Complaint on Ms. F----. Ms.
F---- denies the remaining allegations in Paragraph 11(k).
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 11 of 25
(l) Ms. F---- admits that the
statement “The truth is, Diamond Ranch Academy is not a therapeutic boarding
school, it is a behavior modification program that employs techniques of
seclusion, forced labor, physical violence, fear based control and brainwashing
methods that violate all basic human rights and could certainly be considered
child abuse, if not actual torture” was posted at
http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/ on August 17,
2012. Ms. F---- denies the remaining allegations in Paragraph 11(l).
(m) Ms. F---- admits that the
statement “They end up paying tens or even hundreds of thousands of dollars for
‘treatment’ that is at best ineffective and at worst abusive, neglectful, and
even fatal, and that often creates new problems or exacerbates existing
problems rather than fixing any issues that the child may have” was posted at
http://drasurvivors.com/diamond-ranch-academy-show-its-true-colors/ on January
26, 2014. Ms. F---- denies the remaining allegations in Paragraph 11(m).
(n) Ms. F---- admits that the
statement “They do not provide real therapy, they do not follow clinical
standards, they physically and psychologically abuse children and they scam
their parents out of millions of dollars” was posted at
http://drasurvivors.com/10-m-in-dra/ on June 28, 2013. Ms. F---- admits that
“Letter to DRA Parent” posted on June 28, 2013 was removed from the public
website before the Complaint was served on Ms. F----. Ms. F---- denies the
remaining allegations in Paragraph 11(n).
(o) Ms. F---- admits that the
statements (i) “Restraining a student may happen for any violation of the school’s
rules, and is doled out by unlicensed, therapeutically
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 12 of 25
unqualified staff
members that many former students refer to as ‘grown up bullies,’” (ii) “Although
DRA does employ licensed social workers and a small population of trained
therapists, the majority of staff responsible for the children in their day to
day activities are NOT licensed- many have little education beyond a high
school diploma,” (iii) “According to licensing records, there are no licensed
Ph.D’s or Psy.D’s on campus,” (iv) “DRA does not employ a resident supervising
physician, their Clinical Director has only a license in Social Work,” and (v) “No
staff on campus have certifications in Child Development, Abnormal Psychology
or Applied Behavior Analysis” were posted at
http://drasurvivors.com/about-diamond-ranch-academy/.
Ms. F---- also admits that the statements “Are you aware that the staff employed
by DRA who are responsible for the children’s daily activities are all
unqualified, improperly trained and underpaid?” and “Are you aware that their
medical staff is not usually present on campus and that the staff member tasked
with administering medication is not a licensed medical professional?” were
posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/
on May 5, 2013. Ms. F---- denies that “About Diamond Ranch
Academy, Overview” was republished. Changes, if any, to “About Diamond Ranch
Academy, Overview” were not substantive and not material and changes, if any,
occurred before service of the Complaint on Ms. F----. Ms. F---- denies the
remaining allegations in Paragraph 11(o).
(p) Ms. F---- admits
that the statement “With a long history of abuse, dangerous policies and a
wrongful death, Diamond Ranch Academy is absolutely no place for a depressed
child with suicidal tendencies” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/
on July 9,
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 13 of 25
2013. Ms. F---- also
admits that the statement “Are you aware that former clients of DRA have
reported that they/ their children were systematically abused in DRA” was
posted at
http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/
on May 5, 2013. Ms. F---- denies the remaining allegations in
Paragraph 11(p).
(q) Ms. F---- admits that the statement “What
is called ‘The program’ of Diamond Ranch Academy is not a clinically approved
or evidenced based method of rehabilitation, but an experimental form of
behavior modification that utilizes the response to fear to ensure submission
to the program’s doctrine” was posted at http://drasurvivors.com/about-diamond-ranch-academy/. Ms. F---- also admits that the statement “This experimental
therapy is not clinically approved treatment, but quite simply a form of
corporal punishment” was posted at http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/
on July 9, 2013. Ms. F---- also admits that the statement “Are you
aware that the ‘therapy’ provided by DRA is NOT a clinically approved
treatment, but an experimental therapy called ‘behavior modification’ based on
the principals of Aversion Therapy, or in more simple terms, corporal
punishment” was posted at http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/
on May 5, 2013. Ms. F---- denies that “About Diamond Ranch Academy,
Overview” was republished. Changes, if any, to “About Diamond Ranch Academy,
Overview” were not substantive and not material and changes, if any, occurred
before service of the Complaint on Ms. F----. Ms. F---- denies the remaining
allegations in Paragraph 11(q).
Case
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(r) Ms. F---- admits that the
statement “Our message is clear; Diamond Ranch Academy is NOT a legitimate
treatment facility and their methods are unethical, illegal and abusive” was
posted at http://www.drasurvivors.com between May and June 2012. Ms. F----
denies that the “sidebar of Diamond Ranch Academy Survivors website” was
republished. Changes, if any, to the “sidebar of Diamond Ranch Academy Survivors
website” were not substantive and not material and changes, if any, occurred
before service of the Complaint on Ms. F----. Ms. F---- denies the remaining
allegations in Paragraph 11(r).
12. Ms. F---- denies the
allegations in Paragraph 12.
13. Ms. F---- denies the
allegations in Paragraph 13.
14. Ms. F---- denies the
allegations in Paragraph 14.
15. Ms. F---- denies the
allegations in Paragraph 15.
16. Ms. F---- denies the
allegations in Paragraph 16.
FIRST CAUSE OF ACTION
(Libel against all
Defendants)
17. Ms. F---- repeats and
reincorporates by reference her denials and admissions of Paragraphs 1 through
16 as if set forth fully herein.
18. Ms. F---- denies the
allegations in Paragraph 18.
19. Ms. F---- denies the
allegations in Paragraph 19.
20. Ms. F---- denies the
allegations in Paragraph 20.
21. Ms. F---- denies the
allegations in Paragraph 21.
22. Ms. F---- denies the
allegations in Paragraph 22.
Case
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23. Ms. F---- denies the
allegations in Paragraph 23.
24. Ms. F---- denies the
allegations in Paragraph 24.
25. Ms. F---- denies the
allegations in Paragraph 25.
26. Ms. F---- denies the
allegations in Paragraph 26.
SECOND CAUSE OF ACTION
(Libel Per Se against all
Defendants)
27. Ms. F---- repeats and
reincorporates by reference her denials and admissions of Paragraphs 1 through
26 as if set forth fully herein.
28. Ms. F---- denies the
allegations in Paragraph 28.
29. Ms. F---- denies the
allegations in Paragraph 29.
30. Ms. F---- denies the
allegations in Paragraph 30.
31. Ms. F---- denies the
allegations in Paragraph 31.
32. Ms. F---- denies the
allegations in Paragraph 32.
33. Ms. F---- denies the
allegations in Paragraph 33.
34. Ms. F---- denies the
allegations in Paragraph 34.
35. Ms. F---- denies the
allegations in Paragraph 35.
36. Ms. F---- denies the
allegations in Paragraph 36.
37. Ms. F---- denies the allegations
in Paragraph 37.
38. Ms. F---- denies the
allegations in Paragraph 38.
39. Ms. F---- denies the
allegations in Paragraph 39.
40. Ms. F---- denies the
allegations in Paragraph 40.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 16 of 25
THIRD CAUSE OF ACTION
(Slander against all
Defendants)
41. Ms. F---- repeats and
reincorporates by reference her denials and admissions of Paragraphs 1 through
40 as if set forth fully herein.
42. Ms. F---- denies the
allegations in Paragraph 42.
43. Ms. F---- denies the
allegations in Paragraph 43.
44. Ms. F---- denies the
allegations in Paragraph 44.
45. Ms. F---- denies the
allegations in Paragraph 45.
46. Ms. F---- denies the
allegations in Paragraph 46.
47. Ms. F---- denies the
allegations in Paragraph 47.
48. Ms. F---- denies the
allegations in Paragraph 48.
49. Ms. F---- denies the
allegations in Paragraph 49.
50. Ms. F---- denies the
allegations in Paragraph 50.
FOURTH CAUSE OF ACTION
(Slander Per Se against all
Defendants)
51. Ms. F---- repeats and
reincorporates by reference her denials and admissions of Paragraphs 1 through
50 as if set forth fully herein.
52. Ms. F---- denies the
allegations in Paragraph 52.
53. Ms. F---- denies the
allegations in Paragraph 53.
54. Ms. F---- denies the
allegations in Paragraph 54.
55. Ms. F---- denies the
allegations in Paragraph 55.
56. Ms. F---- denies the
allegations in Paragraph 56.
Case
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57. Ms. F---- denies the
allegations in Paragraph 57.
58. Ms. F---- denies the
allegations in Paragraph 58.
59. Ms. F---- denies the
allegations in Paragraph 59.
60. Ms. F---- denies the
allegations in Paragraph 60.
61. Ms. F---- denies the
allegations in Paragraph 61.
62. Ms. F---- denies the
allegations in Paragraph 62.
63. Ms. F---- denies the
allegations in Paragraph 63.
64. Ms. F---- denies the
allegations in Paragraph 64.
FIFTH CAUSE OF ACTION
(Intentional Interference
with Prospective Economic Advantage against all Defendants)
65. Ms. F---- repeats and
reincorporates by reference her denials and admissions of Paragraphs 1 through
64 as if set forth fully herein.
66. Ms. F---- is without
knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 66, and, on that basis, denies those allegations.
67. Ms. F---- is without
knowledge or information sufficient to form a belief as to the truth of the
allegations in Paragraph 67, and, on that basis, denies those allegations.
68. Ms. F---- denies the
allegations in Paragraph 68.
69. Ms. F---- denies the
allegations in Paragraph 69.
70. Ms. F---- denies the
allegations in Paragraph 70.
71. Ms. F---- denies the
allegations in Paragraph 71.
72. Ms. F---- denies the
allegations in Paragraph 72.
73. Ms. F----
denies the allegations in Paragraph 73.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 18 of 25
74. Ms. F---- denies the
allegations in Paragraph 74.
75. Ms. F---- denies each and
every allegation in the Amended Complaint that is not expressly admitted
herein.
SECOND DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein fail to state a claim upon which
relief can be granted.
THIRD DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred by the applicable statutes
of limitations.
FOURTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are subject to California’s
anti-SLAPP statute, Code Civ. Proc. § 425.16, and Ms. F---- intends to file an
Anti-SLAPP motion under that statute at the time required.
FIFTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred because Plaintiff’s
alleged defamatory statements are true or substantially true.
SIXTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred because Plaintiff’s
alleged defamatory statements are privileged and concern matters of legitimate
public interest.
SEVENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred because Plaintiff’s
alleged defamatory statements were made by Ms. F---- without actual malice.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 19 of 25
EIGHTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred because Plaintiff’s
alleged defamatory statements were not made by Ms. F---- with knowledge that
they were false or with reckless disregard of whether the alleged defamatory
statements were false or not.
NINTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred by the common law fair
comment and/or fair report privileges.
TENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred because Plaintiff’s
alleged defamatory statements are incapable of conveying defamatory meaning,
constitute nonactionable opinion, and/or constitute rhetorical hyperbole.
ELEVENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of actions asserted therein are barred by the doctrine of
laches, waiver, estoppel, and/or other equitable defenses.
TWELFTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under Utah Code §§ 45-2-3
and 45-2-10 and/or California Civil Code § 47.
THIRTEENTH DEFENSE
Plaintiff’s Amended Complaint
and the slander and slander per se causes of action asserted therein are barred
because Plaintiff’s alleged defamatory statements are all written—not spoken.
Case 2:14-cv-00751-TC Document
25 Filed 01/30/15 Page 20 of 25
FOURTEENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under 47 U.S.C. § 230 and/or
Utah Code § 45-2-5
FIFTEENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under the First and
Fourteenth Amendments to the United States Constitution.
SIXTEENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under Article I, Sections
1 and 15 of the Utah Constitution and/or under Article I, Sections 1 and 2 of
the California Constitution.
SEVENTEENTH DEFENSE
Plaintiff’s injuries, if any,
are the result, in whole or in part, of its own actions and contributory fault.
EIGHTEENTH DEFENSE
Plaintiff failed to mitigate
any damages that it allegedly suffered.
NINETEENTH DEFENSE
Plaintiff’s claims are barred,
in whole or in part, because Plaintiff’s alleged damages, if any, are
speculative.
TWENTIETH DEFENSE
Plaintiff failed to adequately
plead and/or cannot prove special damages.
TWENTY-FIRST DEFENSE
This Court lacks personal
jurisdiction over Ms. F----.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 21 of 25
TWENTY-SECOND DEFENSE
Venue in this Court is
improper.
TWENTY-THIRD DEFENSE
DRA has suffered no compensable
damages as a result of Ms. F----’s alleged conduct.
TWENTY-FOURTH DEFENSE
Some or all of the damages of
which DRA complains were the result of the fault and/or actions of DRA itself,
were the result of the fault and/or actions of persons or entities over whom or
over which Ms. F---- has no control, and/or were the result of intervening
causes.
TWENTY-FIFTH DEFENSE
At all times relevant to this
action, Ms. F---- exercised the requisite degree of care and prudence in
undertaking any of Plaintiff’s alleged defamatory statements.
TWENTY-SIXTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under the single
publication rule.
TWENTY-SEVENTH DEFENSE
Plaintiff’s Amended Complaint
and the causes of action asserted therein are barred under the Noerr-Pennington
doctrine.
TWENTY-EIGHTH DEFENSE
In accordance with Rule 11 of
the Federal Rules of Civil Procedure, Ms. F---- reserves the right to assert
additional defenses as the case proceeds.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 22 of 25
COUNTERCLAIM
Counterclaim Plaintiff C------
F---- (“Ms. F----” or “Counterclaim Plaintiff”), hereby counterclaims against
DIAMOND RANCH ACADEMY, INC. (“DRA” or “Counterclaim Defendant”) as follows:
PARTIES
1. DRA is a corporation
organized and existing under the laws of the State of Utah.
2. Ms. F---- is a citizen and
resident of the State of California.
JURISDICTION AND VENUE
3. The Court has jurisdiction
over this matter under 28 U.S.C. § 1332 because there is complete diversity
between Counterclaim Plaintiff and Counterclaim Defendant and the amount in
controversy exceeds $75,000.00, exclusive of interest and costs.
4. Assuming (without conceding)
that venue is proper as to DRA’s Complaint, then venue is proper in this Court
pursuant to 28 U.S.C. § 1391(b)(1).
GENERAL ALLEGATIONS
5. This is a precautionary
counterclaim stated in the alternative to the California Anti-SLAPP motion Ms. F----
intends to separately file. Ms. F---- believes that California law should
control as the Anti-SLAPP law applicable to this case. Under California’s law,
that issue is addressed via motion, not a counterclaim. However, in the event
that Utah law controls as the applicable Anti-SLAPP law, Ms. F---- will pursue
this counterclaim under Utah law.
6. On January 7, 2015, DRA
filed its Amended Complaint against Ms. F---- [Dkt. No. 23].
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 23 of 25
7. DRA alleges Ms. F---- made, inter
alia, the following defamatory statements: “[t]hat DRA employs an
unqualified, underqualified, and improperly trained staff” [Dkt. No. 23 at ¶
11(g)]; “[t]hat DRA engages in improper strip searches, . . . humiliation, . .
. and the starvation of its students” [Dkt. No. 23 at ¶ 11(j)]; “[t]hat members
of DRA’s medical staff are not licensed medical professionals or are
underqualified” [Dkt. No. 23 at ¶ 11(o)]; “[t]hat DRA has a ‘history of abuse’,
‘dangerous policies’ and a ‘wrongful death’” [Dkt. No. 23 at ¶ 11(p)]; and
“[t]hat DRA’s therapy techniques are not ‘clinically approved’, ‘but quite
simply a form of corporal punishment.’” [Dkt. No. 23 at ¶ 11(q)].
8. According to DRA’s Amended
Complaint, these statements are from “DRA Survivors Utah DHS Licensing Office
Complaint” prepared by Ms. F---- and emailed by her to to KRAnderson@Utah.gov
and kstettler@Utah.gov and posted on May 5, 2013. [Dkt. No. 23 at ¶ 11]
9. On or about May 5, 2013, Ms.
F---- contacted the Utah Department of Human Services, Office of Licensing
about the state’s licensing of DRA and DRA’s operations.
10. On or about May 5, 2013,
Ms. F---- posted a copy of her e-mail to the Utah Department of Human Services,
Office of Licensing to the Diamond Ranch Academy Survivors website at the
following URL:
http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/.
11. Ms. F---- exercised her
protected right of freedom of speech under the United States Constitution, the
California Constitution and the Utah Constitution to influence legislative and
executive decisions.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 24 of 25
12. By filing its lawsuit, DRA
seeks to prevent Ms. F---- from exercising her right to freedom of speech
protected by the United States Constitution, the California Constitution and
the Utah Constitution, participating in a process of government (i.e.,
licensing of treatment facilities), and speaking out to protect the public’s
interest.
FIRST CAUSE OF ACTION
(Violation of Utah’s
Anti-SLAPP Act Utah Code §§ 78B-6-1401 to 1405)
13. Ms. F---- incorporates all
other paragraphs of this Counterclaim as if fully set forth here.
14. Ms. F---- made statements
to the Utah Department of Human Services, Office of Licensing questioning the
licensure of DRA and seeking to influence the process of government.
15. DRA filed its lawsuit
against Ms. F---- to prevent her from participating in the process of
government.
16. DRA’s lawsuit against Ms. F----
has prohibited Ms. F---- from exercising her right to freedom of speech
protected by the United States Constitution, the California Constitution and
the Utah Constitution and participating in the process of government in
violation of Utah’s Anti-SLAPP Act, Utah Code §§ 78B-6-1401 to 1405.
17. DRA commenced or continued
their lawsuit against Ms. F---- for the purpose of harassing, intimidating,
punishing, or otherwise maliciously inhibiting her from exercising her rights
granted under the First Amendment to the United States Constitution.
18. As a result of DRA’s
strategic lawsuit against public participation, Ms. F---- is entitled to costs
and reasonable attorneys’ fees.
19. Additionally, Ms. F---- is
entitled to compensatory damages.
Case
2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 25 of 25
REQUEST FOR RELIEF
WHEREFORE, having answered the
allegations and claims in the Amended Complaint, Ms. F---- respectfully
requests the following relief:
1. That the Amended Complaint
be dismissed with prejudice and that DRA take nothing thereby;
2. That Ms. F---- be awarded
her attorneys’ fees and costs as permitted by law; and
3. That Ms. F---- be awarded
such other and further relief as the Court deems just and equitable.
WHEREFORE, on her Counterclaim,
Ms. F---- requests that judgment be entered in her favor as follows:
1. For a judgment in favor of
Ms. F---- and against DRA for Ms. F----’s costs, attorneys’ fees, and interest
on such amounts as permitted by law;
2. For compensatory damages as
permitted by law; and
3. For such other and further
relief as the Court determines is just.
JURY DEMAND
Ms. F---- hereby demands a jury
trial of all issues in this action triable as of right by a jury.
DATED this 30th day of January
2015.
/s/ Edward Chang
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Daniel M. Benjamin, Esq.
(admitted pro hac vice)
Edward Chang, Esq. (admitted pro
hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant, C------
F----
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