 | |||
| Lady Justice |
A PERSPECTIVE
Sculptors throughout the ages created various depictions of Lady
Justice, (Themis, a goddess in Greek mythology). Whether nude, scantily draped,
or blindfolded, Lady Justice embodies celestial order on Earth. Holding her
infamous scales of justice, she represents the personification of
righteousness.
Lady Justice and Children's Rights Advocates would agree with Albert Einstein, "If I were to remain silent, I'd be guilty of complicity."
Lady Justice and Children's Rights Advocates would agree with Albert Einstein, "If I were to remain silent, I'd be guilty of complicity."
Even though justice is sought within our court system, it does
not always prevail. Within the Therapeutic Teen Industry (TTI), that
encompasses so-called residential treatment facilities and wilderness programs
(aka boot camps) for tweens, teens, and youths, it is no secret that
accountability and oversight is negligible, even if under the façade of
oversight. Documents attest to deaths,
attempted suicides, rapes, physical and emotional abuse of children within
these facilities, yet accountability remains close to nil. These facilities run rampant, afforded carte
blanche in doing so, often protected by a township or county where the facility
resides, often protected by various state entities charged with protecting our
children, or wrongly given free reign because of religious affiliation. Who is
going to stop negligent facilities and their staff, staff and student
perpetrators (due to a facility hiring staff without appropriate background
checks; accepting a student in violation of their own admission’s guidelines
for the ‘bang of the buck’), or hosting states that violate the Interstate Compact
for the Protection of Children (ICPC)—who?
Each year, Departments of Human Services and Child
Protective Services across the country, log hundreds upon hundreds of
investigative reports where abuse has transpired against our children with in the
TTI—that is if a ‘supervisor ‘does not deem, “it is within her job scope to
change reports”; or, the facilities themselves operate under a ‘containment’
policy. If DHS responds, “We are not in business to put facilities out of
business…” Why bother with investigative reports? How many children at one
facility who attempted suicide within 10 months are enough to justify a
facility intervention by a state? Lady
Justice might deem one child was too many… Georgia’s DHS apparently thought
16 children (two, a re-attempt) attempting suicide within 10 months was chicken
feed at the former Ridge Creek School.
Where is the outrage? Each complicit individual walked away, unscathed
with licenses intact. Ring a bell? It should! Why? It is the modus operandi in states dealing with
allegations of egregious abuse and negligence, even fraud, apparently inherent
in the TTI facilities.
The TTI industry is growing at an enormous rate. Healthcare conglomerates are building assets
within the TTI industry, as the financial gain is more than palatable. We find our Special Needs children targeted in
marketing campaigns for the last few years, as Autism became the in Vogue diagnosis replacing the
previously sought after children diagnosed with ADD, then ADHD, and ODD.
The TTI industry players are perceptive; they
follow trends quite astutely—now on the gain are alcohol and drug rehabs, plus mental
health facilities… Essentially, nothing
has changed, accept the TTI has upped the ante and bounty on children’s
heads—the TTI still markets to treat any anomaly known to adolescents and now
younger children—still a one-stop drop
off service. Across our nation, the
strong TTI lobbies and markets to our judges, juvenile justice departments, psychiatrists,
psychologists, boards of education, our Department of State, and to our
Congress—where [they] are apparently deaf, too.
Or, perhaps, simply too tied to their investments?
Who can stop this madness? A burgeoning multi-billion-dollar
industry, where educational consultants were already daydreaming of bank
deposits with the dawn of Obamacare. Does it matter to them that a 12-year-old
Special Needs child is sharing a bedroom with a 17-year-old sexual predator?
What? You forgot to disclose to the child’s parents that the offender was
adjudicated for rape? Cha-ching. It is
not Lady Justice blinded by greed
here.
Dedicated advocates and activists for children exist for a
reason. They seek justice that does not
come for the abused, as there are no checks and balances, or oversight, and
certainly no accountability. Giving
voice to those who cannot speak is righteous in a ‘just’ society. The TTI appears
determined to silence children’s rights advocates and survivors of an apparent,
abhorrent industry. Silence is not an
option. The intrinsic reward is the safety and well-being of our children; it
is not a financial, residual bounty. Moreover, yes, Lady Justice carries a double-edged sword, another embodiment that
reminds us… to listen, give credence, and rights to all sides, which includes
our most precious children, not just their captors. Conglomerates may not subsidize our lobby, but child advocates and
activists remain determined to expose the truth to protect our future—our
children.
Florida’s Dozier School Children had no voice. Hell, America did
not even know they existed, until they were unearthed. There is no licensing or oversight in Florida
to this day. The Judge Rotenberg Center in Massachusetts still shocks children…
they have no voice… even the Department of State recommends the facility, while
the UN equated the facility program to torture. Then, we have the former New
Bethany Home for Girls of Arcadia, Louisiana. Their cries—silenced for over 30
years. The owner, Mack W. Ford, was never prosecuted for allegations of rampant
abuse and rape; he got off easy—he died.
TTI defamation lawsuits will no doubt continue against child
advocates and activists for children’s rights, as numerous facilities and their
minions appear beyond narcissistic. Who could blame them? After all, an oligarchy is First Amendment
free.
Lady Justice is watching one such defamation lawsuit filed against a child advocate; actually, one of three current lawsuits involving Diamond Ranch Academy (DRA), deemed a therapeutic boarding school in Utah. Diamond Ranch Academy vs. ------- ----- aka ------- -------.
On 03-09-2015, attorneys for the defense filed a motion to
dismiss, along with six affidavits in support of the motion, including Ms. _______’s
affidavit and those affidavits of ‘survivors’ of DRA. The ‘survivor’ affidavits
appear damning and read like a horror tale, but of no surprise to those
familiar with the TTI.
Additionally, the defense invoked California’s anti-SLAPP and Utah’s own one-year statute
of limitations for defamation. For
those familiar with law, an instantaneous smile of acknowledgment tantamount to
veteran MSM anchor Chris Matthews’ exhortation, “I felt this thrill going up my
leg.”
One might have imagined attacking a lone advocate for
children’s rights might have appeared as a
slam dunk to DRA’s attorneys. That is, until Lady Justice and ‘her’ minions arrived… a Dream Team indeed.
But, again, this is Utah. However, it would be a welcome
surprise if any Utah judge ruled for
the defense in a TTI case, as it will be a win ‘for the children left behind
and those to come.’
Read the Defense Motion to Dismiss, The Defendant's Special Motion to Strike, and Two of the Six Affidavits in Support of Defendant's Special motion to Strike (links provided below "Motion to Dismiss.")
MOTION TO DISMISS
Case
2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 1 of 27
Anthony C. Kaye
Zaven A. Sargsian
BALLARD SPAHR LLP
One Utah Center, Suite 800
201 South Main Street
Salt Lake City, Utah 84111-2221
Telephone: ----------; Facsimile:
-----------
kaye@--------------------
sargsianz@--------------------
Edward Chang (admitted pro
hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: --------; Facsimile:
------------
benjamind@--------------
change@--------------
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@------------
jenniferm@------------
juliag@-----------
andrewc@----------------
Attorneys
for Defendant and Counterclaim Plaintiff, ------- -------
IN THE UNITED STATES
DISTRICT COURT
DISTRICT OF UTAH, CENTRAL
DIVISION DIAMOND RANCH ACADEMY, INC.,
Plaintiff and Counterclaim
Defendant,
v.
------- -----,
Defendant and Counterclaim
Plaintiff.
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|
DEFENDANT’S RULE 12(C)
MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM IN SUPPORT
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell
|
Defendant -------
-------1 (“Defendant” or “Ms. -------”), through counsel, Ballard Spahr LLP,
pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, submits this
Motion for Judgment on the Pleadings (the “Motion”) and moves the Court to
dismiss Plaintiff Diamond Ranch Academy, Inc.’s (“Plaintiff” or “DRA”) claims
with prejudice.
INTRODUCTION
Ms. -------
advocates on behalf of youth admitted into residential treatment programs. She
has long been active in this space. During her efforts to combat abuses against
adolescents, she learned of DRA’s facility and programs in Hurricane, Utah.
Based on perceived and documented abuses at DRA, Ms. -------, around May 2012,
established a website, www.drasurvivors.com (“the website”), to inform and
educate the public. Much of the content on the website was created in June and
July of 2012. The website has been updated periodically, but since 2013, few
changes have been made to its content. This Motion addresses the reality that
Plaintiff has slept on its rights.
Plaintiff’s
claims for defamation are barred by Utah’s one-year statute of limitations.
Plaintiff filed its complaint on October 16, 2014. Utah has a one-year statute
of limitations for defamation; therefore, any claims based on statements
published before October 16, 2013, are time-barred. At least 17 of the
18 statements included in Paragraph 11, which Plaintiff paraphrases, are based
on source statements that were posted on the website outside the statute of
limitations period. Plaintiff became aware of these statements sometime between
June 2012 and
____________________________________
1 Ms. ----- legally changed her name to ------- in August of
2014 and shall herein be referred to as Ms. -------.
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27
February 2013. Having failed to timely commence an action,
Plaintiff may not rely on these statements, and to the extent it does,
Plaintiff’s defamation claims must be dismissed.
Separately, Ms.
------- requests that Plaintiff’s third and fourth causes of action for slander
be dismissed. Aside from one conclusory allegation concerning an alleged
defamatory oral statement, Plaintiff makes no attempt to allege facts
supporting a slander claim. Plaintiff has therefore failed to state a claim for
which relief may be granted, and its claims should be dismissed.
ARGUMENT
A motion for
judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss
under Rule 12(b)(6). Thayer v. Washington Cty. Sch. Dist., 781 F. Supp.
2d 1264, 1267 (D. Utah, Feb. 14, 2011). In other words, a “court is to presume,
for purposes of considering the motion, that all well-pleaded allegations by
the non-movant are true and all reasonable inferences are made in favor of the
non-movant.” Id. The Court should not, however, give any presumption of
truth to “[l]egal conclusions, deductions, and opinions couched as facts,” Heffner
v, Delta Air Lines, Inc., No. 2-02-cv-1378-DS, 2003 WL 23354484, at *1 (D.
Utah Oct. 21, 2003), nor “to ‘allegations that contradict matters properly
subject to judicial notice’ or to material attached to or incorporated by
reference into the complaint.” Ford v. Artiga, No. 2:12-cv-02370, 2013
WL 3941335, at *3 (E.D. Cal., July 30, 2013) (unpublished) (citing Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)).
In considering
this Motion, the Court may consider not only “the complaint, but also
‘documents incorporated into the complaint by reference, and matters of which a
court may take judicial notice.’” Hogan v. Winder, No. 2:12-cv-123 TS,
2012 WL 4356326, at *3 (D. Utah,
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Sept. 24, 2012) (citing Tellabs, Inc. v. Makor Issues
& Rights, Ltd., 551 U.S. 308, 322 (2007)). This Court should take
judicial notice of the date when the allegedly defamatory content was
published. As the Tenth Circuit has said, “[i]t is not uncommon for courts to
take judicial notice of factual information found on the world wide web.” O’Toole
v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (holding
that “[u]nder the circumstances . . . the district court abused its discretion
by failing to take judicial notice of the actual earnings history provided by
Northrop Grumman on the internet as required by Rule 201(d).”).
Here, the Court
should take judicial notice of three things: (1) the specific language that
Plaintiff alleges is defamatory and its location on the Internet;2 (2) the
information contained in the website logs;3 and (3) information on the “Wayback
Machine.”4 The information contained in the website logs and the Wayback
Machine provide the date on which each alleged defamatory statement was
originally published and, where applicable, the date on which certain
alleged defamatory statements were changed. These dates will assist the
Court in determining whether the alleged defamatory statements were published
outside the statute of the limitations
__________________________________________
2 Because Plaintiff paraphrased the alleged defamatory
statements in the Amended Complaint, it is important that the Court take notice
of the specific language underlying Plaintiff’s allegations.
3 Although the website logs provide the specific dates when
the publications or updates occurred, information on the wayback machine is
sufficient to evidence the date of publication or update, and, where relevant,
that the update did not substantively modify the language of the original
publication.
4 As one court stated, “[t]he ‘wayback machine’ refers to
the process used by the Internet Archive Company, www.archive.org, to allow
website visitors to search for archived web pages of organizations.” See
Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, n. 29 (D. Md., 2007)
(noting that a court ruled the Wayback Machine a reliable source).
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period. A
judicial finding of these dates is appropriate in this case. See Mitchell v.
Lewis, No. 0:11-2860-CMC-PJG, 2012 WL 137471, n.2 (D. S.C. Jan. 4, 2012)
(taking judicial notice of the date Plaintiff was booked into a correction
facility); Wilson v. City of Phil., No. 04-5396, 2010 WL 1254111, n.4
(E.D. Pa., Mar. 31, 2010) (taking judicial notice of biographical information,
specifically an employment date, located on a law firm’s website).
The Court may also consider the webpages
where the alleged defamatory statements were published, and the content within
them, because Plaintiff refers to the website as the source of each of Ms.
-------’s allegedly defamatory statements. (Compl. ¶¶ 10–11 (alleging that Ms.
------- attacked Plaintiff “through her website (www.drasurvivors.com),
Facebook pages (https://www.facebook.com/groups/ 314152158598304/?ref=br_tf)
and others”).) Because the “referenced websites are incorporated by reference
in the Complaint, they may be considered on a motion to dismiss.” C.M. v.
Fletcher Allen Health Care, Inc., No. 5:12-cv-108, 2013 WL 4453754, n.1 (D.
Vt. Apr. 30, 2013); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d
315, 319 & n.1 (S.D.N.Y. 2006) (taking notice of a website on a motion for
judgment on the pleadings where the website was incorporated by reference in
the complaint); Atl. Recording Corp. v. Project Playlist, Inc., 603 F.
Supp. 2d 690, 694, n.3 (S.D.N.Y. 2009) (“Some of the facts are drawn from the
Court’s own review of [a referenced] website. Because the website is
incorporated by reference into the Complaint, the Court may consider it on a
motion to dismiss.”).
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I.
PLAINTIFF’S COMPLAINT ALLEGES DEFAMATORY STATEMENTS THAT ARE OUTSIDE THE
STATUTE OF LIMITATIONS PERIOD AND CANNOT THEREFORE FORM THE BASIS OF A
DEFAMATION ACTION AGAINST MS. -------.
A significant number of the alleged
defamatory statements of which Plaintiff complains were posted to the website
outside the one-year statute of limitations. Plaintiff’s First Amended
Complaint paraphrases all of the alleged defamatory statements in Paragraph
11’s lettered subparagraphs (“Alleged Defamatory Statements”). With the
exception of sub-paragraph (m), the underlying source statements for
sub-paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (n),
(o), (p), (q), and (r) were all published outside the applicable statute of
limitations period.5 See infra Section III.
5 The
remaining allegations, in sub-paragraphs (e), (m), and (o), should be dismissed
under California’s anti-SLAPP statute. These allegations are likewise subject
to, and barred by Ms. -------’s counterclaim against Plaintiff.
In Utah, an action for libel or slander
“may be brought within one year.” Utah Code Ann. § 78B-2-302(4). The one-year
limitation period begins “to run [when] the libel is known or is reasonably
discoverable by the plaintiff.” Treff v. Kearns-Tribune Corp., No.
981053-CA, 1998 WL 1758417, at *1 (Utah Ct. App. 1998). Here, Plaintiff filed
its complaint against Ms. ------- on October 16, 2014. Thus, any Alleged
Defamatory Statement published before October 16, 2013 was
published outside Utah’s one-year statute of limitations provided Plaintiff
either knew about the statements or the statements were reasonably discoverable
to Plaintiff. First, all the Alleged Defamatory Statements were published
before October 16, 2013. Second, Plaintiff knew or should have known about the
Alleged Defamatory Statements well before October 16,
________________________
5 The remaining allegations, in
sub-paragraphs (e), (m), and (o), should be dismissed under California’s
anti-SLAPP statute. These allegations are likewise subject to, and barred by Ms.
-------’s counterclaim against Plaintiff.
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2013. In fact, Plaintiff
created a competing website6 to rebut Ms. -------’s website,
www.therealdrasurvivors.com, on February 22, 2013.7 Plaintiff
unquestionably knew about the site as early as February 22, 2013, if not
earlier. Further, this Court can rule, as a matter of law, that the
alleged libel was “reasonably discoverable by the plaintiff” at the time it was
published online. See Russell v. Standard Corp., 898 P.2d 263, 264–65
(Utah 1995).8
6 This website was registered to Andrew Vance, a current DRA employee who
previously held the position of Public Relations Director. See Bio of
Andrew Vance, DIAMOND RANCH ACADEMY (last visited on Mar. 5, 2015) at
http://www.diamondranchacademy.com/staff/andrew-vance-2, attached hereto as
Exhibit 1. Besides the similarity between www.DRAsurvivors.com and
www.therealdrasurvivors.com, Plaintiff lifted language directly from
www.drasurvivors.com and placed it on its competing website.
7 See Screenshot
of the Real Diamond Ranch Academy Survivors Website captured from Wayback
Machine on December 12, 2013 at
http://web.archive.org/web/20131212033306/http://www.therealdrasurvivors.com/,
attached hereto as Exhibit 2.
8 The court in Russell held that “an alleged defamation is reasonably
discoverable, as a matter of law, at the time it is first published and
disseminated in a newspaper that is widely available to the public.” Russell
v. Standard Corp., 898 P.2d 263, 264-65 (Utah 1995). Although Russell dealt
with a newspaper, if a newspaper, with subscribers, is widely available to the
public, then a fortiori a publicly available website is “widely
available to the public.” Russell applies with equal applicability in
this case.
II. THIS COURT SHOULD APPLY
THE SINGLE PUBLICATION RULE, AND SHOULD BAR THE PLAINTIFF’S CLAIMS THAT ARE
BASED ON ALLEGATIONS OF DEFAMATORY STATEMENTS THAT OCCURRED OUTSIDE THE
LIMITATIONS PERIOD.
Plaintiff’s claims cannot rely on the
Alleged Defamatory Statements because, as explained above, the Alleged Defamatory
Statements were published outside the one-year limitations period and have not
been substantively modified since. First, this Court should apply the “single
publication rule” and reject the “continuous publication rule.” The single
publication
_________________________________
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rule provides that the
“one-year limitations period begins to run when publication of the libelous
statement is complete.” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp.,
512 F.3d 137, 142 (5th Cir. 2007). In contrast, the “continuous publication
rule” states that “each time a viewer accesses [an] article from [a] website a ‘republication’
occurs for statute of limitations purposes.” Id. As the Fifth Circuit
noted in a recent case, the “continuous publication rule” is “virtually always
rejected” by courts and “[e]very case to consider the issue has applied the
single publication rule to publicly available Internet articles.” Id. at
143, 144 (emphasis added) (“strong policy considerations support application of
the single publication rule to information publicly available on the
Internet.”). Although Utah courts have not decided this issue,9 the vast
majority of courts, including the Tenth Circuit, have found the single
publication rule to be controlling.10
9 It appears that no Utah case has decided whether the “single
publication rule” applies in Utah. Yeager v. Frot Knox Sec. Products,
No. 14-4011, 2015 WL 525688, at *6 (10th Cir., Feb. 10, 2015) (unpublished)
(stating that the parties “spar[ed] over such unsettled issues as . . . whether
the Utah courts would recognize [the single publication rule] for the type of
state torts alleged here.”). Id. A federal court here in Utah did,
however, recently reject the continuous publication rule. See Mathison v.
CLC Consumer Servs., 2013 WL 632108, *7 (D. Utah, Feb. 20, 2013) (rejecting
plaintiff’s argument, in response to a statute of limitations defense, that
defendant “continued to republish defamatory statements well into 2010.”).
10 In McBride, “[s]ome of the allegedly defamatory
statements [were] blocked by Wyoming’s one-year statute of limitations.” McBride
v. Peak Wellness Ctr, Inc., 688 F.3d 698, 710 (10th Cir. 2012). There, the
Tenth Circuit stated that “[a]lthough McBride argue[d] the statements form[ed]
a pattern constituting a single ‘continuing tort’ that survives the statute of
limitations, the continuing-tort doctrine [was] inapplicable . . . because each
statement was a discrete, potentially actionable occurrence.” Id. (citing
Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002)).
Although the vast majority of courts
across the country have adopted the single publication rule, a number of those
jurisdictions have recognized an exception to the single
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publication
rule, known as “republication.” Importantly, the republication exception is
construed narrowly. Clark v. EA Entertainment Tele., LLC, No.
3:13-00058, 2014 WL 5106897, at *2, 3 (M.D. Tenn., Oct. 10, 2014) (noting that
the republication doctrine is “narrowly construed”); see also Salyer v. So.
Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 914 (W.D. Ky. 2009)
(noting that republication is a narrow exception to the single publication
rule). In the Internet age, parties have litigated whether “non-substantive
modifications . . . constitute ‘republication’ so that the statute of
limitations commences anew upon ‘republication.’” Clark v. Viacom, Int'l,
Inc., No. 3:12-0675, 2013 WL 1245681, at *4 (M.D. Tenn. March 23, 2013).
“As a leading treatise [has] observed, ‘[m]odifications . . . , such as minor
changes or addition of material irrelevant to the alleged defamatory
material, or changes in the manner in which the material may be accessed,
do not ordinarily constitute a new publication.’” Id. (citing Sack on
Defamation: Libel, Slander, and Related Problems § 7:2.1) (emphasis added).11 In
other words, republication occurs only when (1) the alleged defamatory
material complained of (2) is substantively modified. See Salyer
v. Southern Poverty Law Ctr., Inc., 701 F. Supp. 2d 912 (W.D. Ky., Dec. 7,
2009). This is because a broad exception to the single publication rule would
implicate the “potential for
______________________________
11 See also Salyer v. Southern Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 918 (W.D. Ky., 2009) (stating
that “[t]raditional republication occurs when the substance of the
previously published defamatory statements are altered . . . . Neither of those
methods of republication occurred in this case. The hyperlinks, while adding a
new method of access to ‘A Few Bad Men,’ did not restate the allegedly
defamatory statements and did not alter the substance of that article in
any manner.”) (emphasis added); In re Phil. Newspapers, LLC, 690 F.3d
161, 175 (3d Cir. 2012) (“Websites are constantly linked and updated. If each
link or technical change were an act of republication, the statute of
limitations would be retriggered endlessly and its effectiveness essentially
eliminated.”); Shepard v. TheHuffingtonPost.com, Inc., No. 12-1513
(PAM/SER), 2012 WL 5584615, at *2 (D. Minn., Nov. 15, 2012) (holding that
adding “hyperlinks to the original article, . . . do[es] not restart the
statute of limitations.”).
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endless retriggering of the statute of limitations,
multiplicity of suits and harassments of defendants,’” and may have a “serious
inhibitory effect on the open, pervasive dissemination of information and ideas
over the Internet.” Nationwide Bi-Weekly Admin., 512 F.3d at 144.
Two cases are
instructive on this issue. In Salyer, the plaintiff (an individual)
brought an action against the Southern Poverty Law Center (“SPLC”) alleging
that SPLC published defamatory statements about him online. Salyer, 701
F.Supp.2d at 913. The alleged defamatory statements were found in an article
that was posted to SPLC’s website around 2006 and was not altered until 2008. Id.
at 914. Although the court adopted the single publication rule, the issue was
whether “a narrow exception to the single publication rule called
‘republication,’ could provide a way for Plaintiffs to avoid dismissal.” Id.
(emphasis added). The court noted the difficulty in “applying the
traditional republication exception in the context of material published on the
internet.” Id. at 915 (“Very little case law . . . directly addresses
these issues.”). In its discussion, the court said that other courts had found
that republication occurs when “new substantive information was added to
the actual webpage defaming the plaintiffs.” Id. at 917 (emphasis
added). The court held that there was no such republication by SPLC. It said
that the defamatory material “was never modified in any manner until
Plaintiff’s name was removed.” Id. It further said that “[w]hile other
portions of the . . . website may have changed, those portions were unrelated
to the defamatory statements,” and that there were no “substantive
changes that [would] trigger[] republication.” Id. at 917–18
(emphasis added). The court concluded by stating that “the lack of substantive
changes strongly suggests the absence of republication.” Id. at 918
(emphasis added).
Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 11 of 27
In another case, plaintiff alleged
“twenty-seven (27) libelous statements published by Defendants on the
Internet.” Clark v. Viacom Int'l, 2013 WL 1245681, at *1. The court
first noted that the “single publication rule applies to information published
on the Internet.” Id. at *3 (citations omitted). It then addressed
whether “certain non-substantive modifications to the Defendants’ website at
issue constitute ‘republication’ so that the statute of limitations commences
anew upon ‘republication.’” Id. at *4. The court, first, said that
plaintiffs had “earlier conceded the absence of substantive material to the
alleged defamatory articles”—and this alone was sufficient. Id. The
court, however, continued on to state that, “[i]n any event[,] courts have
rejected this republication argument.” Id. It noted that, “[a]s a
leading treatise [has] observed,” “‘[m]odifications of a website, such as minor
changes or addition of material irrelevant to the allegedly defamatory material
. . . do not ordinarily constitute a new publication.’” Id.
Here, as explained below, certain of the
Alleged Defamatory Statements have not been updated or edited at all since
their original publication (much less substantively). The source statements for
the following have not been changed since before October 16, 2013: Paragraph 11
(a), (k), (l), (n), (o), (p), (q), (r). The allegations in these specific
sub-paragraphs were published outside the limitations period, and were never
updated. Of the remaining Alleged Defamatory Statements, where there have been
changes, such changes were non-substantive or simply were not changes to
the Alleged Defamatory Statements that Plaintiff specifically complains of.
Sub-paragraphs 11(b), (d), (g) were updated, but the updates were to delete
language that Plaintiff alleges is defamatory and were otherwise not
substantively modified. Only the Alleged Defamatory Statements in
sub-paragraphs (c), (e), and (h) had something added to them. If,
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however, the Court focuses on
the “specific language complained of,” it will observe that additions to
original posts were not substantive and did not go to the specific language
Plaintiff alleges is defamatory. In short, Plaintiff should not be allowed to
rely on the Alleged Defamatory Statements in claiming libel.
III. ALL OF THE ALLEGED
DEFAMATORY STATEMENTS WERE PUBLISHED OUTSIDE THE LIMITATIONS PERIOD AND WERE
EITHER NOT MODIFIED AFTER PUBLICATION OR WERE NOT SUBSTANTIVELY MODIFIED AFTER
PUBLICATION.
Ms. ------- restates12 the Alleged
Defamatory Statements found in Plaintiff’s Amended Complaint and responds to
them below:
12 Plaintiff paraphrases many of the statements it
alleges are defamatory. For this reason, as explained earlier, the Court should
take judicial notice of the actual source statements as found on the website.
13 Declaration of ------- ------- in Support of
Defendant’s Rule 12(c) Motion for Judgment on the Pleadings (hereinafter “-------
Decl.”) ¶ 2(a)(i), Filed concurrently herewith. Plaintiff also claims that this
was based on a “comment dated August 1, 2014, directed to several people on the
Facebook page entitled ‘I survived Diamond Ranch Academy.’” (Compl. ¶ 11(a).)
It is unclear what Facebook post Plaintiff is referring to.
(a) DRA is not a
legitimate treatment facility and that its methods are unethical and illegal,
abusive, and fatal.
This Alleged Defamatory Statement is based
on two posts. The first post states, “Our message is clear; Diamond Ranch
Academy is NOT a legitimate treatment facility and their methods are unethical,
illegal and abusive.” This statement was originally published in 2012.13 Plaintiff
alleges that this statement was “posted on Diamond Ranch Academy Survivors
website, June 28, 2013, but removed from [sic] site following the filing
of the original Complaint in this
___________________________
12 Plaintiff paraphrases many
of the statements it alleges are defamatory. For this reason, as explained
earlier, the Court should take judicial notice of the actual source statements
as found on the website.
13 Declaration of -------
------- in Support of Defendant’s Rule 12(c) Motion for Judgment on the
Pleadings (hereinafter “------- Decl.”) ¶ 2(a)(i), Filed concurrently herewith.
Plaintiff also claims that this was based on a “comment dated August 1, 2014,
directed to several people on the Facebook page entitled ‘I survived Diamond
Ranch Academy.’” (Compl. ¶ 11(a).) It is unclear what Facebook post Plaintiff
is referring to.
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matter.”14 (Compl. ¶ 157(a).) Logic dictates that removing a
post cannot be considered a “substantive modification.” Based on the original
publication date, this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
14 A ruling by the Court that deletion of language alleged
to be defamatory results in “republication,” will cause perverse incentives. In
the future, defendants that are asked by potential plaintiffs to remove
language will refuse to do so at the fear of triggering “republication.” This
cannot be the result. Defendants should be allowed to freely remove language
without fear of causing republication.
15 ------- Decl. ¶ 2(b)(i).
16 Id. ¶ 2(b)(ii).
17 The indented language tracking the Alleged Defamatory
Statement, indicates what language was added and what language was deleted. The
language in bold was added, the language with a strikethrough was deleted.
18 ------- Decl. ¶ 2(b)(ii).
(b) DRA physically, emotionally and psychologically
abuses its students.
This Alleged
Defamatory Statement is based on two posts. One post was originally published
on June 28, 2013, and stated, “They do not provide real therapy, they do not
follow clinical standards, they physically and psychologically abuse children .
. . .”15 This post has not been modified. The second post was published
originally on June 19, 2012, and at that time stated, “However, that is not
what survivors of this school are saying … They indicate that children who have
attend[ed] DRA were ‘physically, emotionally and psychologically abused.’”16 This
second post was updated on October 24, 2014 to state:17
However, that is
not what survivors former students of this school are saying …, They
indicate that these advertisements are nothing short of a lie and that the
children who have attend DRA are were “physically,
emotionally and psychologically abused.”18
___________________________
14 A ruling by the
Court that deletion of language alleged to be defamatory results in
“republication,” will cause perverse incentives. In the future, defendants that
are asked by potential plaintiffs to remove language will refuse to do so at
the fear of triggering “republication.” This cannot be the result. Defendants
should be allowed to freely remove language without fear of causing
republication.
15 ------- Decl. ¶ 2(b)(i).
16 Id. ¶ 2(b)(ii).
17 The indented language tracking the Alleged Defamatory
Statement, indicates what language was added and what language was deleted. The
language in bold was added, the language with a strikethrough was deleted.
18 ------- Decl. ¶ 2(b)(ii).
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As is apparent,
the October 24, 2014 update did not substantively modify the alleged defamatory
language. This Court should therefore look to the original publication date of
June 19, 2012 for purposes of the statute of limitations. Based on the original
publication dates, this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
(c) That DRA owners and staff “completely disregard
the rights, individual needs and welfare” of its students.
This Alleged
Defamatory Statement is based on one post, which was originally published on
June 19, 2012. It stated: “This program employs MANY policies that have been
determined to be abusive and they completely disregard the rights, individual
needs and welfare of these children . . . .” 19 On October 27, 2014, it was
updated to state:
The October 27,
2014 update did not substantively modify the alleged defamatory language. This
Court should therefore look to the original publication, which was on June 19,
2012. Based on the original publication date, this Alleged Defamatory Statement
was published outside the limitations period and cannot form the basis of a
defamation claim.
__________________________
19 Id. ¶
2(c)(i).
20 Id.
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(d) DRA unlawfully incarcerates children and
dehumanizes children.
This Alleged
Defamatory Statement is based on two posts. One post was published on June 19,
2012 and stated that “[t]uition for DRA can cost roughly $6000 a month and
anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a
child and break their will.”21 This post was updated on March 26, 2014, October
18, 2014, and October 24, 2014 to state:
Tuition for DRA
can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply
to unlawfully incarcerate and break their will depending on the length
of time the child is enrolled .22
As is noticeable,
the update deleted language Plaintiff alleges is defamatory. A deletion of
language, especially language Plaintiff alleges is defamatory, cannot be
considered a substantive modification sufficient to trigger “republication.”
The other part of
the Alleged Defamatory Statement—i.e., the “dehumanizes children”
allegation—was part of a post published on June 19, 2012, which stated, “It is
the opinion of DRA Survivors that these strip searches are not only unnecessary
but used purposely as a means of dehumanization, and humiliation.”23 This post
was updated on October 27, 2014 to state:
It is the opinion
of DRA Survivors that these strip searches are not only unnecessary and
overused (multiple times a day) but used purposefully as a means of
humiliation and dehumanization, and humiliation.24
___________________
21 Id. ¶
2(d)(i).
22 Id.
23 Id. ¶
2(d)(ii).
24 Id.
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Here also, the
update did not substantively modify the alleged defamatory language. This Court
should therefore look to the original publication of both posts—June 19, 2012.
Based on the original publication date, this Alleged Defamatory Statement was
published outside the limitations period and cannot form the basis of a
defamation claim.
(e) DRA engages in deceptive and dishonest marketing
techniques.
This Alleged
Defamatory Statement is based on a post that was originally published on June
19, 2012. That post stated, “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 incompetent methods in order to
obstruct the truth and make claims to such impossibilities as a ‘miracle cure’
for adolescent behavior.”25 On October 27, 2014, the language of this post was
substantially deleted to state:
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 incompetent methods in order to obstruct the truth and make claims to
such impossibilities as a ‘miracle cure’ for adolescent behavior program
in order bring credibility to methods.26
As is apparent,
the update deleted language that Plaintiff complains is defamatory, and only
added “program in order bring credibility to methods.” This update did not
substantively modify the language. This Court should therefore look to the
original publication date, which was on June 19, 2012. Based on the original
publication date,
__________________________
25 Id. ¶
2(e)(i).
26 Id.
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this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
(f) DRA employs a violent and painful form of torture
as punishment.
This Alleged
Defamatory Statement is based on a post that was originally published on August
23, 2012. That post stated, “Most importantly, what is called ‘restraint’ and
promised to parents to be used as a last resort is in all actuality a violent
and painful form of torture used as punishment.”27 This post was updated on
October 27, 2014 to state:
As is apparent,
the update did not substantively modify the alleged defamatory language. This
Court should therefore look to the original publication, which was on August
23, 2012. Based on the original publication date, this Alleged Defamatory
Statement was published outside the limitations period and cannot form the
basis of a defamation claim.
(g) DRA employs an unqualified, improperly trained
staff.
This Alleged
Defamatory Statement is based on posts that were originally published in 2012
and 2013. The first post, published on June 18, 2012, stated, “Despite the
dangerous nature of such techniques and the misuse of them by unqualified,
improperly trained staff, ‘restraints’
___________________________
27 Id. ¶ 2(f)(i).
28 Id.
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have become a staple of the ‘therapy’ administered by DRA.”29
This post was updated on October 27, 2014 to state:
Despite Restraining
a student may happen for any violation of the dangerous nature of such
techniques schools rules, and the misuse of them is doled
out by unlicensed, therapeutically unqualified, improperly
trained staff “restraints” have become a staple of the “therapy” administered
at DRA, members that many former students refer to as “grown up
bullies.”30
Although the
update added content to the post, it did not substantively modify the specific
language Plaintiff alleges is defamatory, i.e., the statement about
“unqualified, improperly trained staff.” This Court should therefore look to
the original publication, which was on June 18, 2012.
There are also
two other posts that this allegation may be based on. The first states, “Most
will describe them as overgrown bullies, unqualified and unfit to be working
with children . . . . 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.”31 This was originally published on June 28, 2013, and has not
changed. The second post states, “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?”32 This post was published on May 5, 2013,
and, also, has not been changed. Based on the original publication dates, this
Alleged Defamatory Statement was published outside the limitations period and
cannot form the basis of a defamation claim.
______________
29 Id. ¶
2(g)(i).
30 Id.
31 Id. ¶
2(g)(ii).
32 Id. ¶ 2(g)(iii).
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(h) DRA operates a “private prison, where due process
of the law and even the most basic of human rights are violated.”
The Alleged
Defamatory Statement is based on a post that was originally published on June
19, 2012. The original post stated, “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’.”33 This post was later updated, on
October 27, 2014, to state:
Although the
update added content to the post, it did not substantively modify the specific
alleged defamatory language. This Court should therefore look to the original
publication, which was on June 19, 2012. Based on the original publication
date, this Alleged Defamatory Statement was published outside the limitations
period and cannot form the basis of a defamation claim.
(i) When a parent sends a child to DRA, the child will
be “abused”, and may “never come back at all.”
The Alleged Defamatory Statement is based on a post that was
originally published on June 19, 2012. The original post stated, “… and if
sending their child away is worth the risk that
_________________________
33 Id. ¶
2(h)(i).
34 Id.
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they might be abused, or never come back at all. RIP James
Shirley.”35 This post was later updated, on October 27, 2014, to state, “Is sending
their your child away is worth the risk that they might will
be abused,… or that they will never come back at all.?
RIP James Shirley.”36 As is noticeable, the update did not substantively
modify the allegedly defamatory language. This Court should therefore look to
the original publication, which was on June 19, 2012. Based on the original
publication date, this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
35 Id. ¶ 2(i)(i).
36 Id.
37 Id. ¶ 2(j)(i).
38 See supra n. 20 (this is the same post as
paragraph 11(d) of Plaintiff’s complaint).
39 ------- Decl. ¶ 2(j)(ii).
40 See http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/.
(j) DRA engages in improper strip searches, “cruel and
unusual punishment”, dehumanization, humiliation, and the starvation of its
students.
This Alleged
Defamatory Statement is based on a few posts. The first post was originally
published on June 19, 2012 and stated, “It is the opinion of DRA Survivors that
these strip searches are not only unnecessary but used purposely as a means of
dehumanization, and humiliation.”37 This was updated on October 27, 2014, but
was not substantively modified—as explained in (d) above.38 The second source
statement for the Alleged Defamatory Statement was originally published on May
5, 2013, and stated “Are you aware that this meal plan constitutes starvation.”39
This post was not updated, and the content remains the same.40 The
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last source statement for the Alleged Defamatory Statement
was originally published on June 28, 2013, and stated, “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’.”41 This
post has not been modified.42 In short, the source statements underlying this
Alleged Defamatory Statement were either not substantively modified, or not
modified at all. This allegation cannot therefore form the basis of Plaintiff’s
claims.
41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where the
statement that “DRA’s students are denied adequate . . . food” is published.
44 Id. ¶ 2(k)(ii).
(k) DRA’s students are denied adequate medical care
and food.
This Alleged
Defamatory Statement is based on two posts. The first post was originally
published on June 19, 2012, and was updated on August 23, 2012. Both the
original publication date and update are outside the limitations period. The
post reads, “This leads to many incidents going unreported, and the children
being denied adequate medical care if the medical staff is not on duty.”43 The
second post stated, “Are you aware that a child died in Diamond Ranch Academy?
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 his son?”44 This post
was originally published on June 29, 2013, and has not been changed. Based on
the original publication dates, this Allegedly Defamatory Statement was
published outside the limitations period and cannot form the basis of
Plaintiff’s defamation claims.
___________________
41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This
page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where
the statement that “DRA’s students are denied adequate . . . food” is
published.
44 Id. ¶ 2(k)(ii).
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(l) DRA employs “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.”
This Alleged
Defamatory Statement is based on a single post. The post was published on
August 17, 2012, and stated, “The truth is, Diamond Ranch Academy . . . 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.”45 This post has not been updated.46 Based on the
original publication date, this Alleged Defamatory Statement was published
outside the limitations period and cannot form the basis of a defamation claim.
(n) DRA does not provide “real therapy”, does not
follow clinical standards, “physically and psychologically” abuses children,
and “scams parents out of millions of dollars.”
This Alleged Defamatory Statement was
published on June 28, 2013. The post reads, “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.”47 This
content has been removed. As explained above, logic dictates that removal of
content that Plaintiff alleges was defamatory cannot be considered a substantive
modification.48 Based on the
________________
45 Id. ¶ 2(l).
46 See http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/.
47 ------- Decl. ¶ 2(n)(i).
48 This page appears to have been taken
down. See http://drasurvivors.com/letter-to-dra-parent/ (last visited
Mar. 4, 2015) (noting that the page cannot be found).
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original publication date, this
Alleged Defamatory Statement was published outside the limitations period and
cannot form the basis of a defamation claim.
(o) Members of DRA’s
medical staff are not licensed medical professionals.
This Alleged Defamatory Statement was
published on May 5, 2013. The post reads, “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?”49 This post
has not been updated and remains the same. Based on the original publication
date, this Alleged Defamatory Statement was published outside the limitations
period and cannot form the basis of a defamation claim.
(p) DRA has a “long
history of abuse, dangerous policies and a wrongful death.”
This Alleged
Defamatory Statement was published on July 9, 2013. The post reads, “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.”50
This post has not been updated and remains the same.51 A second post described
the “abuse” experienced by children. The second post stated, “Are you aware
that former clients of DRA have reported that they/their children were
systematically abused in DRA? . . . Are you aware that this policy has been
directly responsible for the wrongful death of a 14-year-old student?”52 This
post was originally published on May 5, 2013 and has not been changed. Based on
the original
__________________________
49 ------- Decl. ¶ 2(o)(i).
50 ------- Decl. ¶ 2(p)(i).
51 See http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/.
52 ------- Decl. ¶ 2(p)(ii).
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publication date, this Alleged Defamatory Statement was
published outside the limitations period and cannot form the basis of a
defamation claim.
(q) DRA’s therapy techniques are not “clinically
approved”, “but quite simply a form of corporal punishment.”
This Alleged
Defamatory Statement was published on July 9, 2013. The relevant part of the
post states, “This experimental therapy is not clinically approved treatment,
but quite simply a form of corporal punishment.”53 The alleged defamatory
language has not been changed or updated.54 A second post, published on June
19, 2012, states:
What is called ‘therapy’ is not a clinically approved method
of rehabilitation, it is an experimental psychological treatment that utilizes
the response to fear, intimidation and the human longing for love and
acceptance as weapons against their psyche and forced upon them to ensure
absolute submission to the program’s doctrine.55
This post was changed on October 27, 2014 to read:
What is called ‘therapy’ ‘The program’ of Diamond
Ranch Academy is not a clinically approved or evidence based method
of rehabilitation, it is but an experimental psychological
treatment form of behavior modification that utilizes the response to fear,
intimidation and the human longing for love and acceptance as weapons against
their psyche and forced upon them to ensure absolute submission to
the program’s doctrine.56
Although there was language added, the language did not
substantively modify the statement. Lastly, there was a third post on May 5,
2013. That stated “Are you aware that the ‘therapy’ provided by DRA is NOT a
clinically approved treatment, but an experimental therapy called
____________________________
53 ------- Decl. ¶ 2(q)(i).
54 See supra n. 39.
55 ------- Decl. ¶ 2(q)(ii).
56 Id.
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‘behavior modification’ based on the principals of Aversion
Therapy, or in more simple terms, corporal punishment.”57 This statement is
similar to the above statement, and was not changed. Based on the original
publication date, this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
(r) DRA is not a legitimate treatment facility and
that its methods are unethical, illegal, abusive and fatal.
This Alleged Defamatory Statement is based on
the same source statements as that of Paragraph 11(a).58 As explained above,
this Alleged Defamatory Statement was published in 2012. Based on the original
publication date, this Alleged Defamatory Statement was published outside the
limitations period and cannot form the basis of a defamation claim.
IV. DRA’S CAUSES OF ACTION FOR SLANDER SHOULD BE
DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE DRA MAKES NO CLAIM THAT THE
ALLEGED DEFAMATORY STATEMENTS WERE COMMUNICATED ORALLY.
“Slander and
libel are a subset of defamation.” Jensen v. Sawyers, 2005 UT 81,¶ 33,
n.6, 130 P.3d 325. Slander is the “publication of defamatory matter by spoken
words,” whereas libel “consists of the publication of defamatory matter by
written or printed words . . . .” Id. Plaintiff’s complaint includes two
causes of action for slander—slander and slander per se. (Compl. ¶¶ 41–64.)
Plaintiff, however, does not allege any specific defamatory statements that
were published orally. Plaintiff’s third and fourth causes of action should
therefore be dismissed.
______________________
57 Id. ¶
2(q)(iii).
58 Id. ¶ 2(a)(i).
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DRA’s Complaint
lists in Paragraph 11 all the statements allegedly made by Ms. -------. But
Paragraph 11 makes no allegation that Ms. ------- communicated these statements
orally. To the contrary, Plaintiff expressly alleges that the Allegedly
Defamatory Statements were “originally published and/or re-published by -------,
in writing.” In paragraph 12, Plaintiff throws in a conclusory allegation that
“[u]pon information and belief, ------- also made other defamatory statements,
both in writing and orally.” But Plaintiff fails to identify any oral
communication. See Zoumadakis v. Uintah Basin Med. Ctr., Inc., 2005 UT
App 325, ¶ 3, 122 P.3d 891 (“Utah law requires a defamation complaint to be
dismissed for lack of particularity only where it contains nothing more than
general, conclusory allegations of defamation.”); Green v. Lexis-Nexis,
513 Fed.Appx. 772, 773 (10th Cir. 2013) (unpublished) (stating that
“‘[t]hreadbare recital of elements of a cause of action, supported by mere
conclusory statements, do not suffice.’”).
Although a
litigant may draft a complaint broadly by including several causes of action,
here DRA has thrown in everything but the kitchen sink in bringing this
defamation action. But in doing so, it neglected to identify any statements
that were actually oral and that could thereby constitute slander. Because DRA
does not allege separate facts for its slander claims, and concedes that all
the Alleged Defamatory Statements listed in paragraph 11 were written, this
Court should grant Ms. -------’s Motion and dismiss DRA’s third and fourth
causes of action.
CONCLUSION
This Court should
dismiss with prejudice Plaintiff’s defamation claims to the extent that
Plaintiff’s claims rely on any of the Alleged Defamatory Statements identified
above. These statements were published outside the limitations period and
either have never been updated or,
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if updated, were not substantively modified. This Court
should also dismiss Plaintiff’s third and fourth causes of action. Although
Plaintiff claims slander, Plaintiff does not identify any oral communications.
DATED this
9th day of March 2015.
/s/ Anthony C. Kaye ____________________
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Edward Chang, Esq. (admitted pro hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant and Counterclaim Plaintiff, ------- -------
DEFENDANT ------- ------- MOTION TO STRIKE :
http://jilliestake.blogspot.com/p/blog-page_13.html
AFFIDAVITS OF "SURVIVORS" IN DEFENSE OF DEFENDANT'S SPECIAL MOTION TO STRIKE:
http://jilliestake.blogspot.com/p/blog-page_62.html
http://jilliestake.blogspot.com/p/diamond-ranch-academy-vs.html
DEFENDANT ------- ------- MOTION TO STRIKE :
http://jilliestake.blogspot.com/p/blog-page_13.html
AFFIDAVITS OF "SURVIVORS" IN DEFENSE OF DEFENDANT'S SPECIAL MOTION TO STRIKE:
http://jilliestake.blogspot.com/p/blog-page_62.html
http://jilliestake.blogspot.com/p/diamond-ranch-academy-vs.html
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