DIAMOND RANCH ACADEMY: GRIEVING PARENTS FILE NEGLIGENCE LAWSUIT

Editorial:

Hurricane, Utah--Diamond Ranch Academy (DRA) appears entrenched in yet another horrific lawsuit. Parents, still grieving the loss of their son who perished while under DRA's care, are suing the facility. 

In September of 2013, a young man took his life by hanging himself (utilizing a 'belt' his parents state was supplied by DRA to a 'suicidal child') over a non-collapsible shower rod (Utah's Department of Human Services cited DRA after the young man's death and DRA installed collapsible shower rods.)
http://jilliestake.blogspot.com/2013/11/diamond-ranch-academy-confirmation.html

Questions arise: 

• Why was a previously diagnosed suicidal child even considered as an applicant and admitted? Admission guidelines? Even some of the most notoriously abusive facilities have stated they do not accept children with former or current suicidal ideations. 
• Qualifications of DRA? A contracted-out, adjunct, forensic psychologist with offices in Utah and Nevada?  FACT: DRA is NOT a mental health facility, nor are they licensed or qualified as such.

Well-deserved lawsuit? Read DRA's 'amended answer to the complaint,' below and decide for oneself.

According to the DRA attorney's 'amended answer to the complaint,' [they]blame the death of this suicidal child (citing his age of 16), on the child himself, his mental health issues, and his parents. 
  
Additionally, DRA attorneys deny in their filing that the child was unsupervised. Who thought this one up? So, logic dictates that if the child was supervised... how in hell did this happen?

THE COMPLAINT:
     (Note: reformatted for viewing, every effort was made to remove family identifiers)

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH, CENTRAL DIVISION----- ------ -------  and------- --------, individually and as the natural parents and heirs of
M.L., a minor, deceased,
Plaintiffs,
vs.
DIAMOND RANCH ACADEMY, a
corporation,
Defendant.

COMPLAINT AND JURY
DEMAND
Civil No. ____________
Honorable ________________
Plaintiffs, ---- ------- ------- and ------- -------, individually and as the natural parents and heirs of M.L., a deceased minor, by and through their counsel of record, Dewsnup, King & Olsen, hereby complain of Diamond Ranch Academy and allege the following:

 Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 2 of 12

 PARTIES

1. M.L., a deceased minor child, resided in Hurricane, Utah, at the time of his death but was a citizen of Colorado and was domiciled there. M.L. is the son of ---- ------- ------- and ------- ------- (the “--------”).
2. Plaintiff ---- ------- ------- is the natural father of M.L., a minor who was sixteen years old at the time of the incident that gives rise to this action. ---- ------- ------- is a citizen of Colorado.
3. Plaintiff ------ - ------- is the natural mother of M.L. and is a citizen of Colorado.
4. Diamond Ranch Academy (“DRA”) is a Utah corporation with its principal place of business in Hurricane, Utah.

JURISDICTION

5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332because there is complete diversity of citizenship between Plaintiffs and Defendant and because the amount in controversy exceeds $75,000, exclusive of interest and costs.
6. Plaintiffs have complied with all requirements of Utah Code Annotated, §§78B-3-401, et seq., in order to bring an action against Diamond Ranch Academy pursuant to the Utah Health Care Malpractice Act.

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 3 of 12

 GENERAL ALLEGATIONS OF FACT

7. DRA is a residential treatment center and therapeutic boarding school in Hurricane, Utah, for troubled youth between the ages of 12 and 18.
8. DRA holds itself out as “an industry leader in helping youth realize their potential.” It represents that its students “become their best selves in a structured elite private school environment with a personalized therapeutic approach” and promises that “[t]he challenges you are facing with your child today do not need to limit the possibilities of tomorrow.”
9. DRA employs, among others, licensed clinical social workers. DRA’s theme is “Healing Families One Youth at a Time.”
10. M.L. was a sixteen-year-old boy who suffered from severe depression and had a history of suicide attempts.
11. Before M.L.’s enrollment at DRA, he attempted suicide twice. On one occasion M.L. tried to take his own life by hanging himself by the neck in the shower.
12. M.L.’s parents, the --------, were very worried about their son’s safety, not knowing what he was capable of doing in the future. They felt helpless not knowing what they could do to help their son.
13. The -------- sought an intervention treatment provider that could effectively care for their son and keep him safe.
14. In their search for a provider, the ------- came in contact with DRA.

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 4 of 12

15. DRA assured the -------- that if they enrolled M.L. at DRA, DRA would care for M.L. and keep him safe, and that DRA’s program would help him overcome his hardships.
16. DRA also assured the -------- that DRA staff were trained to keep and capable of keeping M.L. safe from suicide attempts.
17. DRA further assured the -------- that the DRA facility was a safe place for their son.
18. In furtherance of keeping M.L. safe, DRA told the -------- that M.L.’s bedroom would be under constant video surveillance.
19. DRA also told the -------- that DRA personnel would, at all times, be monitoring the video surveillance images of M.L.’s bedroom.
20. Video camera surveillance equipment was present in M.L.’s bedroom during M.L.’s residence at DRA, including the day he committed suicide.
21. The DRA Parent Manual states in part: “Our program is proven effective – and we guarantee it – when the program is followed closely and when the parentssupport it completely.”
22. The DRA Parent Manual further states: “We recognize how difficult a decision it was to intervene on your child’s behalf. We also recognize how difficult it is toplace the care of you child in the hands of another. Please take comfort in knowing that we take our responsibility very seriously.”

 Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 5 of 12

23. On June 23, 2013, relying on DRA’s assurances that M.L. would be properly supervised and kept safe, the -------- enrolled M.L. at DRA, and M.L. moved into the facility.
24. On June 23, 2013, the day M.L. was enrolled at DRA, ------- ------- gave DRA a summary of M.L.’s suicide attempts. This summary included an account that M.L. had previously attempted suicide by hanging himself in the shower.
25. M.L.’s pre-participation physical evaluation also noted his suicide attempt history.
26. DRA knew of M.L.’s need for supervision and treatment.
27. On July 18, 2013, DRA took M.L. off of self-harm watch.
28. On August 7, 2013, M.L. was psychologically evaluated by C.Y. Roby, Ph.D., NCCE (“Dr. Roby”), at DRA’s request.
29. On August 30, 2013, DRA received Dr. Roby’s report.
30. Dr. Roby’s report indicated that M.L. was at risk for suicide and/or self-injurious behavior. Dr. Roby strongly recommended that this risk be taken seriously.
31. In addition to having Dr. Roby’s report, DRA was in possession of and had read M.L.’s journals containing a drawing of a boy hanging from the neck.
32. On September 6, 2013, M.L. attended a football game pep rally in the DRA gym. While there, he was visibly upset and seen crying by another DRA student. When the pep rally concluded, M.L. left the gym unsupervised and unaccounted for. 

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 6 of 12

33. After the pep rally, at approximately 4:22 p.m., M.L. entered his bedroom unsupervised.
34. At approximately 4:36 p.m., M.L. reviewed a suicide note he had written.
35. At approximately 4:38 p.m., M.L. entered his bathroom with his suicide note in hand and closed the door. He was clothed and wearing the belt DRA sold to him.
36. At approximately 5:01 p.m., while giving prospective clients a tour of the facilities and M.L.’s room, a DRA staff member opened the bathroom door and discovered M.L. hanging by the neck from a non-breakaway shower rod with the belt DRA sold to him.
37. When the staff member discovered M.L. and saw him hanging from the shower rod, he closed the bathroom door and ushered the prospective clients away.
38. Moments after the first staff member opened and closed the door on M.L., another staff member opened the bathroom door, looked at M.L., closed the door on him again, and walked away.
39. M.L. was left hanging from his neck until approximately 5:04 p.m., when DRA staff removed him from the hanging position and then administered CPR.
40. Approximately 2 ½ minutes passed between the time M.L. was discovered and the time he was removed from the shower rod.
41. Ultimately, M.L. was left unsupervised for a total of 39 minutes.
42. Two days later, on September 8, 2013, M.L. died as a result of the injuries he sustained from his September 6, 2013 suicide attempt.

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 7 of 12

FIRST CLAIM FOR RELIEF
(Negligence/Knowing and Reckless Indifference)

43. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.
44. DRA was acting in loco parentis and had a special legal relationship with M.L.
45. DRA had a duty to exercise reasonable care in the treatment and supervision of M.L.
46. DRA knew that M.L. had a history of attempted suicide and that M.L.’s suicidal condition should be taken seriously.
47. DRA knew that leaving M.L. unsupervised involved an extreme degree of risk, considering the probability and magnitude of the potential harm that such a lack of supervision presented to M.L.’s life and safety.
48. Despite DRA’s knowledge of the risks that the lack of supervision of M.L. presented, DRA recklessly allowed M.L. to remain alone and unsupervised for more than thirty minutes, behind a closed door in a bathroom with a non-breakaway shower rod, with a belt to hang himself with.
49. DRA breached the duty that it owed to M.L. and the --------, thereby creating a substantial risk of, and in fact causing, serious bodily injury and death to M.L.
50. DRA’s breaches of duty included, among other things:
a. Failing to provide M.L. with adequate supervision and care;

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 8 of 12

b. Failing to provide and/or follow policies and procedures related to supervision and care of M.L., its suicidal patient, including but not limited to its line-of-sight policy;
c. Failing to properly assess, document, and treat M.L.’s suicidal condition;
d. Failing to appropriately train staff;
e. Failing to install breakaway shower rods and shower heads in
M.L.’s bathroom;
f. Failing to heed Dr. Roby’s report and take M.L.’s risk of suicide seriously;
g. Providing M.L. with the belt he hanged himself with; and
h. Not acting immediately when it discovered M.L. but instead putting its public relations ahead of M.L.’s life.
51. DRA’s acts and omissions manifested a knowing and reckless indifference toward and a disregard of the rights of others, including M.L. and the --------.
52. As a direct and proximate result of DRA’s acts and omissions, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort,
companionship, society, guidance, love, affection, association, services and support of their son; and the permanent destruction of their family unit. 

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 9 of 12

53. As a direct and proximate result of DRA’s acts and omissions, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to M.L.’s untimely death and have incurred funeral and burial expenses as a result of his death.

SECOND CLAIM FOR RELIEF
(Breach of Fiduciary Duty)

54. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.
55. DRA owed a fiduciary duty to Plaintiffs and/or their son.
56. DRA breached the fiduciary duty it owed to Plaintiffs and/or their son.
57. As a direct and proximate result of DRA’s acts and omissions, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort,
companionship, society, guidance, love, affection, association, services and support of their son; and the permanent destruction of their family unit.
58. As a direct and proximate result of DRA’s acts and omissions, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to M.L.’s untimely death and have incurred funeral and burial expenses as a result of his death.

THIRD CLAIM FOR RELIEF
(Premises Liability)

59. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 10 of 12

60. M.L. was DRA’s invitee.
61. DRA owed M.L. a duty of care to eliminate unreasonably dangerous conditions on its property and to take reasonable measures to ensure a safe physical environment in the DRA facility.
62. DRA was aware that the shower rods in the DRA facility were non breakaway types and that the presence of such shower rods presented a dangerous
condition to its invitee, M.L.
63. Given M.L.’s history of suicide attempts and Dr. Roby’s evaluation, DRA should have expected that M.L. would have encountered and been harmed by, or would fail to protect himself from this dangerous condition of non-breakaway shower rods in the DRA bathrooms.
64. Three days after M.L.’s death, on September 11, 2013, the Utah Department of Human Services determined that DRA was in violation of Utah Admin. Code R501-19-7.B.2 for failing to provide a safe physical environment for consumers.
This violation was due in part to the presence of permanently affixed shower rods in the DRA facility bathrooms.
65. DRA breached its duty to its invitee, M.L., and failed to exercise reasonable care by:
a. Failing to prevent or rectify the unreasonably dangerous condition of non-breakaway shower rods on the property, which was a proximate cause of M.L.’s injury and death; and 

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 11 of 12

b. Failing to protect its invitee, M.L., from the unsafe condition and hazard of non-breakaway shower rods and shower heads on the property.
66. As a direct and proximate result of DRA’s breach of duty, M.L. was subjected to the dangerous conditions on DRA’s property that contributed to M.L.’s
injury and death.
67. As a direct and proximate result of DRA’s negligence, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort, companionship,
society, guidance, love, affection, association, services and support of their son; and thepermanent destruction of their family unit.
68. As a direct and proximate result of DRA’s negligence, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to his untimely death, and have incurred funeral and
burial expenses as a result of his death.

PRAYER FOR RELIEF

WHEREFORE, Plaintiffs pray for judgment against Defendant, DRA, as follows:

1. For general damages in an amount to be proved at trial;
2. For special damages in an amount to be proved at trial;

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 12 of 12

3. For punitive damages in an amount sufficient to punish DRA and to deter DRA and others in similar situations from engaging in such conduct in the future; and
4. For such other costs, expenses, attorney’s fees, and other relief the Court finds appropriate under the circumstances.

JURY DEMAND

Plaintiffs hereby demand a trial by jury.
DATED this 29th day of March, 2016.

DEWSNUP, KING & OLSEN
/s/ Charles T. Conrad
David R. Olsen
Paul M. Simmons
Charles T. Conrad

Attorney for Plaintiffs
Plaintiffs’ Address:
c/o DEWSNUP, KING & OLSEN
36 S. State Street, Suite 2400
Salt Lake City, Utah 84111

AMENDED ANSWER TO COMPLAINT:

(Note: reformatted for viewing, every effort was made to remove family identifiers)

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 1 of 8

Gregory J. Sanders, USB No. 2858
Sarah C. Vaughn, USB No. 14615
KIPP AND CHRISTIAN, P.C.
Attorney for Defendants
10 Exchange Place, 4th Floor
Salt Lake City, Utah 84111
gjsanders@kippandchristian.com
svaughn@kippandchristian.com
Telephone: (801) 521-3773

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION---- ------- ------- and ------- - -------, AND HEIRS OF M.L., a minor, deceased,
Plaintiff,
v.
DIAMOND RANCH ACADEMY, a corporation
Defendants.

Civil No. 2:16-CV-00252-BCW

AMENDED ANSWER OF DEFENDANT

Discovery Tier 3
Defendant, by and through counsel, hereby answers the complaint of plaintiff as follows:

FIRST DEFENSE
Plaintiff fails to state a claim upon which relief may be granted.

SECOND DEFENSE
The following responses correspond numerically to the allegations of the complaint:
1.-3. Admitted subject to discovery showing otherwise.
4. Admitted 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 2 of 8

5.-6. Admitted.
7. Admitted with the addition that the school is licensed to treat people older than 18 years of age.
8. Admitted.
9. Admitted.
10. Admitted M.L. was 16 years old and had mental health issues. The allegation is otherwise denied.
11. Admitted that suicide attempts were reported. Otherwise denied for insufficient information.
12.-13. Denied for insufficient information.
14. Admitted.
15. Admitted.
16. Denied.
17. Admitted consistent with published material. Otherwise denied as vague.
18. Denied.
19. Denied.
20. Admitted.
21. Admitted only that the manual contains that statement. Denied that it is relevant here where M.L. did not complete the programs and the parents were not supportive.
22 Admitted.
23. Admitted only that he was enrolled. The allegation is otherwise denied for 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 3 of 8

insufficient information.
24. Admitted that ------- ------- gave a summary including mention of M.L.’s suicide attempts. However, the summary downplayed the suicide attempts as not having been done with intent to die but as a cry for help. In fact, ------- stated in the summary that the parents wanted to enroll M.L. not because of suicide attempts but because he ran away from home.
25. Admitted so far as consistent with the evaluation record.
26. Admitted.
27. Admitted.
28. Admitted.
29. Admitted.
30. Denied.
31. Denied.
32. Admitted only that M.L. attended a rally. The allegation is otherwise denied.
33. Admitted that he entered his bedroom. Denied that he was unsupervised.
34. Denied for insufficient information.
35. Admitted.
36.-38. These allegation confuse timing and the identities of the persons involved in the scene described. It is admitted that a staff member looked in the bathroom briefly and then sought assistance. The remainder of the allegations are denied as inaccurate.
39. Denied as to timing. The allegation is otherwise admitted. 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 4 of 8

40. Denied.
41. Denied.
42. Admitted.
43. The responses to allegations numbered one through 42 are incorporated herein.
44. Denied.
45. Admitted so far as consistent with applicable law.
46. Admitted.
47. Denied in that plaintiffs wrongfully assume here that the mental condition of M.L. was static.
48. Denied.
49. Denied.
50. Denied.
51. Denied.
52. Denied.
53. Denied.
54. The responses to allegations numbered 1 through 53 are incorporated herein.
55. Denied.
56. Denied.
57. Denied.
58. Denied.
59. The response to allegations numbered 1 through 58 are incorporated herein. 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 5 of 8

60. Admitted so far as consistent with applicable law.
61. Admitted so far as consistent with applicable law.
62. Denied.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
67. Denied.
68. Denied.

THIRD DEFENSE
The fault of all persons whose acts or failure to act contributed to the alleged injuries of the plaintiff should be compared and allocated including any act or failure to act of the plaintiff.

FOURTH DEFENSE
Notice is hereby given pursuant to DUCivR 9-1 that defendant seeks to allocate fault to the person described in the complaint as “M.L”. The factual and legal basis upon which fault can be allocated is that M.L. was of sufficient age and, despite having mental health issues, was able to comprehend the nature of the act of suicide and elected to commit that act as a conscious choice

FIFTH DEFENSE
The plaintiff allegations of wrongdoing by the defendant, if assumed to be accurate, only present on opportunity for M.L. to act. They are not actual causes of the suicide. The actual cause of the suicide are the mental health issues of M.L. including the extraordinarily poor

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 6 of 8

relationship with his parents to whom fault should be allocated.

SIXTH DEFENSE
The suicide of M.L. was a deliberate conscious act on the part of M.L. whose mental health issues did not prevent him from appreciating the nature and seriousness of that act. Consequently, any resulting claim has been waived, barred, or estopped by the deliberate decision made by M.L.

SEVENTH DEFENSE
From the discovery of M.L. to the time he was taken down made no medical difference. Plaintiffs fail to state a claim.

EIGHTH DEFENSE
To the extent M.L. concealed suicidal ideation from therapists and staff of the defendant such concealment is another form of bar, waiver, or estoppel of the claims made.

NINTH DEFENSE
M.L. in his suicide note made statements that were consistent with his continuing expression of estrangement with his parents and constitutes a known and conscious waiver of any benefit to his parents from his passing, including the claim now asserted.

TENTH DEFENSE

Any allegation not specifically admitted is denied.

WHEREFORE, defendant asks this court to enter judgment of no cause of action upon the complaint of the plaintiffs and to award the defendant such costs and attorney’s fees incurred in defense of this action as may be appropriate in law and in fact.

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 7 of 8

DATED this 26th day of April, 2016,
KIPP AND CHRISTIAN, P.C.
/s/ Gergory J. Sanders
GREGORY J. SANDERS
SARAH C. VAUGHN
Attorneys for Defendants

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 8 of 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 26th day of April, 2016, a true and correct copy of the foregoing AMENDED ANSWER OF DEFENDANT was e-filed and sent to the following:
David R. Olsen
Timothy M. Simmons Charles T. Conrad
DEWSNUP, KING, & OLSEN
36 South State Street, Suite 2400
Salt Lake City, Utah 84111--0024
/s/ Cheryl Browning

 

DIAMOND RANCH ACADEMY RECEIVES ANSWER TO THEIR COMPLAINT—AND THEN SOME!

 

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  – touché.

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:

http://jilliestake.blogspot.com/2014/11/diamond-ranch-academy-doubles-down-with.html

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

change@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 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 14 of 25

(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 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 15 of 25

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 2:14-cv-00751-TC Document 25 Filed 01/30/15 Page 17 of 25

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----