EPeete_Motion1_12323
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Jan 9, 2024
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Uploaded by JudgeRoseToad15
IN THE DISTRICT COURT
TEXARKANA
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BETTY BOOP
Plaintiff
v.
JOHN SMITH.
Defendant
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Case No.: 15-5545
Before the Honorable Judge
Pollex
MOTION TO DISMISS
Joe Doe
585 Main St
Texarkana, 45854
Telephone: (485)879-5555
Attorney for Defendant
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DEFENDANT’S
MOTION TO DISMISS
Now comes Defendant, John Smith, by and through undersigned counsel, and hereby
moves this Court to Dismiss Plaintiff’s Complaint for the reasons that appear in the following
memorandum.
Respectfully Submitted,
/s/ Joe Doe__________________
Joe Doe
585 Main St
Texarkana, 45854
Telephone: (485)879-5555
Attorney for Defendant
MEMORANDUM IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS
I.
STATEMENT OF THE FACTS
1.
John Smith didn’t defame anyone. He made a comment during a private call with
his wife.
2.
May 21 Plaintiff took $500 from the cash register at her workplace. Complaint at
¶3
3.
Plaintiff states that Defendant saw Plaintiff take the money and called the police.
Complaint at ¶5
4.
Plaintiff states she was arrested. Complaint at ¶6
5.
Plaintiff states when she arrived to work the next day, she overheard John Smith
on the phone with his wife and he stated “He caught another employee stealing
and she was arrested”. Complaint at ¶7
6.
John Smith also never stated the name of the employee.
II.
STANDARD OF REVIEW
A motion to dismiss, pursuant to Fed. R. Civ. P. 12(b)(6), questions the sufficiency of the
pleadings.
Dotson v. Wilkinson
, 477 F.Supp. 2d 838, 844 (N.D. Ohio 2007). Under Fed. R. Civ.
P. 8(a)(2), a pleading must contain a “short and plain statement of the claim showing that the
pleader is entitled to relief.”
As the Supreme Court held in
Bell Atlantic Corp. v. Twombly
, 550
U.S. 544 (2007), the pleading standard Rule 8 announces does not require “detailed factual
allegations.
“To survive a motion to dismiss, a complaint must contain ‘sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal
, 129 S.
Ct. 1937, 1949 (2009) (
citing Bell Atlantic Corp. v. Twombly
, 550 U.S. 544 (2007)).
Heightened
fact pleading of specifics is not required.
Twombly
, 550 U.S. at 570. A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.
Iqbal
, 129 S. Ct. at 1949.
Plaintiff has not fulfilled her obligation to set forth sufficient factual allegations, which when
taken as true, establish the essential elements of the aforementioned claims.
III.
LAW AND ARGUMENT
The Plaintiff has the burden of proof by clear and convincing evidence.
Barnett v. Denver
Publishing Co
., 36 P.3d 145, 147 (Colo. App. 2001). To state a claim for defamation under
Colorado law, a plaintiff must allege: (i) a defamatory statement; (ii) published to a third party;
(iii) the existence of special damages or actionability absent special damages; and (iv) actual
malice.
Card v. Blakeslee
, 937 P.2d 846, 850 (Colo. App. 1996); Barnett, 36 P.3d at 147.
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Four elements are necessary to establish a defamation action, whether for slander or libel,
to wit: (1) defamatory language; (2) about the plaintiff; (3) which is published; and (4) which
causes injury to reputation.”
McBrearty v. Kentucky Community and Technical College System
,
262 S.W.3d 205, 213 (Ky.App. 2008). Notwithstanding, Texarkana adheres to the legal principle
that the truth is an absolute defense for an action of slander regardless of the intent of the
publishers.
Bell v. Courier-Journal & Louisville Times Co.
, 402 S.W.2d 84, 87 (Ky. 1966).
In
this case, Plaintiff stated she took $500 from the cash register at her place of work, with the
intention of returning the money the next day.
She admits in her Complaint that she was having
difficulty coming up with money too by the complete series of her favorite television show,
MacGuyver, and was viewing the money as a loan. She also admits she was arrested, but the
charges were dropped when she returned the money.
The Plaintiff has not alleged that the statement was made to a third party.
He stated that
the statement was a conversation between husband and wife, but makes no mention of it being
spread any further than that. Thus, even when taken as true, the alleged publication of the
statement to Ms. Smith is insufficient to state a claim for defamation. Further, the Plaintiff has
not alleged facts showing that the statement was made with actual malice or caused damage.
IV. CONCLUSION
For the foregoing reasons the Defendants’ Motion to Dismiss should be granted and the
complaint dismissed in its entirety.
Respectfully submitted,
/s/ Joe Doe__________________
Joe Doe
585 Main St
Texarkana, 45854
Telephone: (485)879-5555
Attorney for Defendant