BRITT INTERACTIVE LLC et al v. A3 MEDIA LLC et al

Filing 203

ENTRY ON MOTION TO DISMISS - For the reasons stated above, the Court GRANTS in part and DENIES in part Joshua Brown's Motion to Dismiss (Filing No. 132 ), and GRANTS in part and DENIES in part the Britt Parties' Motion for Partial Dismis sal (Filing No. 134 ). The Motions to Dismiss as they relate to the Counterclaimants' claims of tortious interference with business relationships, defamation, and franchise fraud under Ind. Code § 23-2-2.5-27 are dismissed without prej udice. However, the Motions to Dismiss with regard to the Counterclaimants' franchise fraud claim under Ind. Code § 23-2-2.7-2 are dismissed with prejudice. Furthermore, the Motions to Dismiss in relation to Brown's immunity defense and the Britt Parties' anti-SLAPP defenses are DENIED. The Counterclaimants are granted leave of twenty-one days (21) from the date of this Entry within which to file an Amended Counterclaim and Third- Party Complaint, if any. (See Entry.) Signed by Judge Tanya Walton Pratt on 5/16/2017. (JLS)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION
BRITT INTERACTIVE LLC, and
TOWNEPOST NETWORK INC.,
Plaintiffs and Counterclaim Defendants,
v.
A3 MEDIA LLC, COLLECTIVE
PUBLISHING LLC, YELENA LUCAS, NEIL
LUCAS, JANELLE MORRISON, CHILLY
PANDA MEDIA, LLC, DANN VELDKAMP,
and JODY VELDKAMP,
Defendants, Counterclaimants and Third
Party Plaintiffs,
TOM BRITT, JEANNE BRITT, JOSHUA
BROWN, and TONI FOLZENLOGEL,
Third Party Defendants.

)
)
)
)
)
) Case No. 1:16-cv-02884-TWP-DML
)
)
)
)
)
)
)
)
)
)
)
)
)
)

ENTRY ON MOTIONS TO DISMISS
Before the Court is a Motion to Dismiss filed by Third-Party Defendant Joshua Brown
(“Brown”) (Filing No. 132), and a Motion for Partial Dismissal filed by Counterclaim Defendants
Britt Interactive, LLC (“Britt Interactive”) and TownePost Network, Inc. (“TownePost”), as well
as Third-Party Defendants Tom Britt (“Mr. Britt”) and Jeanne Britt (collectively, the “Britt
Parties”).

(Filing No. 134.)

Counterclaimants A3 Media LLC (“A3 Media”), Collective

Publishing, LLC (“Collective Publishing”), Neil Lucas (“Mr. Lucas”), Yelena Lucas (“Mrs.
Lucas”), Chilly Panda Media, LLC (“Chilly Panda”), Dann Veldkamp, Jody Veldkamp, and
Janelle Morrison (collectively, “the Counterclaimants”), oppose the Motion to Dismiss and the
Motion for Partial Dismissal. (Filing No. 157.) For the following reasons, the Court GRANTS
in part and DENIES in part the respective motions to dismiss.

I. BACKGROUND
The following facts are not necessarily objectively true, but as required when reviewing a
motion to dismiss, the Court accepts as true all factual allegations in the Counterclaim and ThirdParty Complaint and draws all inferences in favor of the Counterclaimants. See Bielanski v.
County of Kane, 550 F.3d 632, 633 (7th Cir. 2008).
Mr. Britt founded Britt Interactive in 2003 and published a monthly newsletter and
magazine, known as Geist Community Newsletter. (Filing No. 62 at 42.) Shortly after launching
Geist Community Newsletter, Britt Interactive sold licenses to its methods for producing the Geist
Community Newsletter, as well as specific community-based domain names to allow third parties
to create new community-based newsletters. Id. at 42-43. On December 21, 2012 and October
17, 2013, respectively, Britt Interactive entered into a License Agreement with A3 Media, operated
by Mr. and Mrs. Lucas, to produce monthly local publications in Zionsville and Carmel, Indiana.
Id. at 43. The magazines were known as “Zionsville Community Newsletter” and “Carmel
Community Newsletter” (collectively, “the Newsletters”). Id.
Pursuant to the License Agreements, Britt Interactive retained ownership of the
Newsletters, as well as their website domains, “atZionsville.com” and “atCarmel.com.” Id. at 48.
Britt Interactive also retained the naming rights of the Newsletters and domains, as well as
ownership of the business processes, customer data, intellectual property and design. Id. at 47-48.
Britt Interactive was, however, required to provide management services to A3 Media, including
services related to vendor management, invoices, accounts receivable, accounts payable,
accounting, income statements, and banking, in exchange for a monthly management fee. Id. at
47-49.

2

The License Agreements also provided that A3 Media owns: (1) all advertising sales; (2)
all account receivables resulting from advertising sales; (3) all content created for the Newsletters;
(4) all advertisements produced in the Newsletters; (5) all stories published in the Newsletters; (6)
all videos created for the Newsletters; (7) all final digital files of the Newsletters’ content; (8) the
list of advertisers for the Newsletters; and (9) all liabilities associated with the Newsletters (the
“A3 Media Property”). Id. at 46-47. A3 Media further acquired a license to market the Newsletters
through Britt Interactive’s network and the License Agreements did not prohibit A3 Media from
publishing or marketing any other publications, nor did it contain any covenants not to compete.
Id. at 48-49.
In 2014, Mr. Britt established TownePost, which acquired all of Britt Interactive’s
intellectual property and License Agreements. (See Filing No. 3-2 at 5-6, 52.) 1 On February 1,
2014, Britt Interactive and TownePost informed Britt Interactive’s Licensees that customers and
Licensees should submit fees and payments to TownePost. Id. On July 21, 2015, TownePost
informed the Licensees that the names and logos of the publications would change from
“newsletter” to “magazine.” Id. at 35. A3 Media’s magazines changed from “Zionsville
Community Newsletter” and “Carmel Community Newsletter” to “Zionsville Magazine” and
“Carmel Magazine” (collectively, “the Magazines”). Id. On July 11, 2016, TownePost also
informed A3 Media, as well as other Licensees, that it was converting to the franchise model, and
offered to sale franchises as opposed to licenses. (Filing No. 32-4 at 1.) TownePost notified its
licensees, including A3 Media, that if they chose not to become franchisees, TownePost would
exercise its right to terminate their licensing agreements. Id.

1

Counterclaimants incorporated by reference Filing No. 3-2 and their Appendix of Exhibits at Filing No. 32 into their
Counterclaim and Third Party Complaint. (See Filing No. 62 at 43.)

3

On August 10, 2016, TownePost sent a follow-up letter to undecided licensees, including
A3 Media, asking them to inform TownePost of their franchising decisions by September 1, 2016.
Id. On August 15, 2016, despite TownePost’s request that its licensees respond to the franchise
option by September 1, 2016, Brown, on behalf of TownePost, sent a letter to Chilly Panda
terminating TownePost’s License Agreements with Chilly Panda. (Filing No. 32-5.)

In the

termination letter, TownePost claimed certain rights and proprietary interests. Id.
Thereafter, on August 22, 2016, A3 Media learned that TownePost continued to collect
advertising income on A3 Media’s behalf, as required by the License Agreements, but stopped
making weekly transfers of these funds to A3 Media. (Filing No. 32-7.) As a result, A3 Media
began invoicing its advertising customers directly in order to protect its advertising income.
(Filing No. 62 at 56.) On September 13, 2016, A3 Media informed TownePost that it would not
become a franchisee, effectively terminating the License Agreements. (Filing No. 32-8.) Despite
termination of the License Agreements, Britt Interactive published editions of the Magazines on
its own in early October 2016. (Filing No. 62 at 57.) Britt Interactive also represented to A3
Media’s advertising customers that Britt Interactive owned the Magazines, as well as all customer
relationships, accounts receivables, and income derived from the Magazines. Id.
On September 23, 2016, Britt Interactive and TownePost filed a Complaint and Motion for
Preliminary Injunction in the Hamilton Superior Court 3 (“Superior Court”) against A3 Media,
Mr. and Mrs. Lucas, and Collective Publishing, asserting tortious interference with contracts,
tortious interference with business relationships, conversion, trademark infringement, trademark
infringement pursuant to the Lanham Act, violations of Indiana trademark act, and breach of
contract. (Filing No. 3-2 at 13-22; Filing No. 3-3 at 3-7.) Thereafter, on October 11, 2016, Britt
Interactive and TownePost filed an Amended Complaint and a Temporary Restraining Order

4

(“TRO”) Motion. (Filing No. 3-4 at 7-42; Filing No. 3-3 at 43-50.) On October 17, 2016, the
Superior Court held a hearing and granted the TRO, restraining and enjoining Counterclaimants
from distributing October issues, and any subsequent issues of the Magazines, among other things.
(Filing No. 14.)
On October 21, 2016, Counterclaimants removed the case to federal court pursuant to 28
U.S.C. §§ 1441 and 1446. (Filing No. 3.) In response to Britt Interactive’s and TownePost’s
Second Amended Complaint (Filing No. 23), Counterclaimants filed their Answer, Counterclaim,
and Third-Party Complaint, asserting trademark infringement under Indiana and federal law;
copyright infringement; unfair competition; civil remedies under the Indiana Crime Victims Act;
breach of contract; tortious interference with business relationships; breach of fiduciary duties;
defamation; fraud; franchise fraud; constructive fraud; violations of the Federal Stored
Communications Act; and abuse of process. (Filing No. 62.)
Brown seeks to dismiss the Third-Party Complaint, arguing the tortious interference,
defamation, and franchise fraud claims are without merit and fails to state a ground upon which
relief can be granted. (Filing No. 132.) The Britt Parties also move the Court to partially dismiss
the Counterclaimants’ claims and Third-Party Complaint for the reasons alleged by Brown. (Filing
No. 134.) In response to the Motions to Dismiss, the Counterclaimants argue that they have pled
sufficient facts to support their claims for tortious interference with business relationships,
defamation, and franchise fraud. (Filing No. 157.)

5

II. LEGAL STANDARD
Federal Rule of Civil Procedure 12(b)(6) authorizes dismissal if the complaint fails to set
forth a claim upon which relief can be granted. “The purpose of a motion to dismiss is to test the
sufficiency of the complaint, not to decide the merits.” Gibson v. City of Chi., 910 F.2d 1510,
1520 (7th Cir. 1990). Accordingly, when analyzing a Rule 12(b)(6) motion to dismiss, a court
construes the complaint in the light most favorable to the plaintiff, accepts all factual allegations
as true, and draws all reasonable inferences in favor of the plaintiff. Tamayo v. Blagojevich, 526
F.3d 1074, 1081 (7th Cir. 2008).
At a minimum, the complaint must give the defendant fair notice of what the claim is and
the grounds upon which it rests; and the factual allegations must raise a right to relief above the
speculative level. See Bissessur v. Ind. Univ. Bd. of Trs., 581 F.3d 599, 602-03 (7th Cir. 2009);
Tamayo, 526 F.3d at 1081, 1083. While a complaint need not include detailed factual allegations,
a plaintiff has the obligation to provide the factual grounds supporting his entitlement to relief; and
neither bare legal conclusions nor a formulaic recitation of the elements of a cause of action will
suffice in meeting this obligation. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007); see also,
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“the pleading standard Rule 8 … demands more than
an unadorned, the-defendant-unlawfully-harmed-me-accusation” and “[t]hreadbare recitals of the
elements of a cause of action, supported by mere conclusory statements, do not suffice”).
Therefore, a complaint must generally contain enough facts to state a claim to relief that is
plausible on its face. Twombly, 550 U.S. at 570; Tamayo, 526 F.3d at 1083 (“[a] plaintiff still must
provide only enough detail to give the defendant fair notice of what the claim is and the grounds
upon which it rests, and, through his allegations, show that it is plausible rather than merely
speculative, that he is entitled to relief”).

6

III. DISCUSSION
Both Brown and the Britt Parties seek to dismiss the Counterclaimants’ tortious
interference with business relationships, defamation, and franchise fraud claims, arguing the
Counterclaimants failed to allege sufficient facts to support these claims. Brown and the Britt
Parties also assert that Indiana’s Anti-SLAPP Act is an affirmative defense to the
Counterclaimants’ defamation and tortious interference with business relationships allegations.
Brown further contends that he is entitled to immunity against the tortious interference with
business relationships and defamation claims because any actions that he took were made within
the scope of his attorney-client relationship with Britt Interactive and in connection with this
judicial proceeding.
A.

Attorney Immunity
As an initial matter, Brown argues he is immune from claims of tortious interference with

business relationships and defamation because he was acting within the scope of his legal
representation of Britt Interactive.
Under Indiana law, an attorney acting in his representative capacity cannot be held liable
for defamation or similar torts, such as tortious interference with a business relationship, as a result
of his actions in the course or context of a judicial proceeding. See Heckler & Koch, Inc. v. German
Sport Guns GmbH, 71 F. Supp. 3d 866, 894-95 (S.D. Ind. 2014); see also, Estate of Mayer v. Lax,
Inc., 998 N.E.2d 238, 249 (Ind. Ct. App. 2013) (absolute privilege against defamation claims for
relevant statements made within the course of a judicial proceeding may also apply to “[o]ther
torts related to defamation,” including tortious interference with a business relationship); Watson
Rural Water Co., Inc. v. Ind. Cities Water Corp., 540 N.E.2d 131, 139 (Ind. Ct. App. 1989) (stating

7

that representations “made within the context of litigation … are privileged and will not serve as
a basis for liability”).
Viewing the allegations in the Counterclaim and Third-Party Complaint in a light most
favorable to the Counterclaimants, the Court finds attorney immunity does not apply because the
actions giving rise to the claims against Brown took place prior to the start of litigation, and were
not made in the context of litigation. See Estate of Mayer, 998 N.E.2d at 247 (“Indiana law has
long recognized an absolute privilege that protects all relevant statements made in the course of a
judicial proceeding, regardless of the truth or motive behind the statements”) (emphasis added).
Accordingly, Brown’s Motion to Dismiss on this issue is denied.
B.

Tortious Interference with Business Relationships
Both Brown and the Britt Parties move to dismiss the Counterclaimants’ tortious

interference with business relationships claim. To establish a claim for tortious interference with
a business relationship under Indiana law, one must demonstrate: “(1) the existence of a valid
relationship; (2) the defendant’s knowledge of the existence of the relationship; (3) the defendant’s
intentional inference with that relationship; (4) the absence of justification; and (5) damages
resulting from defendant’s wrongful interference with the relationship.” Pierce v. Zoetis, Inc., 818
F.3d 274, 278 (7th Cir. 2016) (internal quotations omitted). A party bringing such a claim must
also “prove that the defendant committed an illegal act to achieve her end.” Id.
The Counterclaimants allege Brown and the Britt Parties “unjustifiably interfered” with A3
Media’s relationships with its advertisers and vendors, causing A3 Media damage, by: (1) “failing
to act as a servicing agent on behalf of A3 Media;” (2) “publishing the Magazines without A3
Media’s consent;” (3) “using the A3 Media Property without consent;” (4) failing to transfer
advertising income to A3 Media; (5) assigning the Agreements, or otherwise transferring A3

8

Media’s rights, to TownePost; (6) “misrepresenting Britt Interactive’s … relationship with A3
Media and status with regard to A3 Media’s Property to A3 Media’s Advertising Customers (as
well as the public)”; (7) “instituting this litigation”; and (8) carrying out a scheme to convert its
licensing arrangements to franchises. (Filing No. 62 at 63-64.)
The Court concludes that the Counterclaimants’ allegations fail to address whether Brown
and the Britt Parties acted intentionally when interfering with A3 Media’s business relationships,
as required by Indiana law. See Pierce, 818 F.3d at 278 (noting a plaintiff must prove “defendant’s
intentional interference with” a business relationship).

The Court also finds that the

Counterclaimants have presented no facts establishing that Brown’s and the Britt Parties’ actions
were illegal. See id. (under Indiana law, a “plaintiff must prove that the defendant committed an
illegal act” in order to prove tortious interference with a business relationship). Accordingly, the
Court grants Brown’s and the Britt Parties’ Motions to dismiss the claim for tortious interference
with business relationships.
C.

Defamation
Brown and the Britt Parties move to dismiss the Counterclaimants’ defamation claim. A

defamatory statement “is one that tends to harm a person’s reputation by lowering the person in
the community’s estimation or by deterring third parties from dealing or associating with the
person.” Kelley v. Tanoos, 865 N.E.2d 593, 596 (Ind. 2007) (internal quotations omitted). See
also, Lovings v. Thomas, 805 N.E.2d 442, 447 (Ind. Ct. App. 2004) (“Defamation is that which
tends to injure reputation or to diminish esteem, respect, good will, or confidence in the plaintiff,
or excite derogatory feelings or opinions about the plaintiff.”). To maintain an action for
defamation under Indiana law, a “plaintiff must demonstrate (1) a communication with defamatory
imputation; (2) malice; (3) publication; and (4) damages.” Kelley, 865 N.E.2d at 596-97.

9

To be held liable for defamation, a defendant must make a false statement of fact. See
Journal-Gazette Co., Inc. v. Bandido’s, Inc., 712 N.E.2d 446, 457 (Ind. 1999) (citing Heeb v.
Smith, 613 N.E.2d 416, 420 (Ind. Ct. App. 1993)).

However, while truth is a defense to

defamation, the literal truth is not required. See Masson v. New Yorker Magazine, Inc., 501 U.S.
496 (1991); Heeb, 613 N.E.2d at 420. A statement is sufficiently true if it has a “substantial basis
in the truth” and if the Agist@ or Asting@ of the statement is true. Brandom, 97 N.E.2d at 390-91;
Heeb, 613 N.E.2d at 421. “The test for determining whether a statement is substantially true is
whether any inaccuracies caused the statement to produce a different effect on the audience than
would have been produced had the literal truth been spoken.” Heeb, 613 N.E.2d at 421. See also,
Bandido’s, 712 N.E.2d at 457.
While defamation claims do not require parties to meet a heightened pleading standard, “a
plaintiff must still set out the operative facts,” including the allegedly defamatory statement, to
properly assert a claim for defamation. Trail v. Boys & Girls Clubs of Nw. Ind., 845 N.E.2d 130,
136 (Ind. 2006). Without the statement serving as the basis for a defamation claim, “the court
cannot actually determine if the statement is legally defamatory,” and “[t]he defendant is placed
on an unfair footing since the absence of the statement denies her the opportunity to prepare
appropriate defenses.” Id. (internal citations omitted). While the pleading does not need to
incorporate the literal statement, a party asserting a defamation claim must provide some context
as to when and how the allegedly defamatory statement was made “to allow the defendant to form
an appropriate response.” Farr v. St. Francis Hosp. & Health Ctr., 1:06-cv-779-SEB-JMS, 2007
WL 2793396, at *4 (S.D. Ind. Sept. 26, 2007). See also, Cowgill v. Whitewater Publ’g, No. 1:08cv-0258-JMS-DFH, 2008 WL 2266367, at *1 (S.D. Ind. May 29, 2008).

10

The Counterclaimants allege that Brown and the Britt Parties defamed them by
representing to A3 Media’s advertisers and vendors, as well as other third parties that: (1) Britt
Interactive owned the A3 Media Property; (2) Mr. and Mrs. Lucas were dishonest about their
ownership of the A3 Media Property; (3) Mr. and Mrs. Lucas attempted to steal or convert the A3
Media Property; and (4) Mr. and Mrs. Lucas engaged in deceptive business practices with their
advertisers and the general public. (Filing No. 62 at 65.)
The Court finds that the Counterclaimants failed to state “the number of speakers or
statements made, to whom the statements were made, or when and in what context the statements
were made.” See Farr, 2007 WL 2793396 at *4. Without providing the literal statements or
sufficient context for the statements, the Counterclaimants’ defamation claim is insufficiently pled
and Brown’s and the Britt Parties’ motions to dismiss this claim is granted.
D.

Franchise Fraud
Brown and the Britt Parties lastly move the Court to dismiss the Counterclaimants’

franchise fraud claim. Under the Indiana Franchise Disclosure Act (“IFDA”), “[i]t is unlawful for
any person in connection with the offer, sale or purchase of any franchise …, directly or indirectly:
(1) to employ any device, scheme or artifice to defraud…” Ind. Code § 23-2-2.5-27. The IFDA
defines “fraud” and “deceit” as:
any misrepresentation in any manner of a material fact, any promise or
representation or prediction as to the future not made honestly or in good faith, or
the failure or omission to state a material fact necessary to make the statements
made, in the light of the circumstances under which they were made, not
misleading.
Ind. Code § 23-2-2.5-1(f). While the Counterclaimants accurately state that a private right of
action exists to assert a claim of franchise fraud (Filing No. 157 at 9), a party asserting a claim of
franchise fraud “must nevertheless plead the facts and circumstances alleged to constitute fraud,

11

deceit or misrepresentation with at least the same degree of particularity and detail as would be
necessary to maintain an action for common law fraud.” Cont’l Basketball Ass’n, Inc. v. Ellenstein
Enter., Inc., 669 N.E.2d 134, 137 (Ind. 1996).
Pursuant to Federal Rule of Civil Procedure 9(b), a party alleging fraud or mistake “must
state with particularity the circumstances constituting fraud or mistake.” Fed. R. Civ. P. 9(b). To
meet the particularity standard, a party claiming fraud “must do more pre-complaint investigation
to assure that the claim is responsible and supported,” and “must provide ‘the who, what, when,
where, and how’” of the allegedly fraudulent activity. Borsellino v. Goldman Sachs Grp., Inc.,
477 F.3d 502, 507 (7th Cir. 2007) (citing U.S. ex rel. Gross v. AIDS Research Alliance-Chi., 415
F.3d 601, 605 (7th Cir. 2005)). Stated otherwise, a party alleging fraud must “identify the person
making the misrepresentation, the time, place, and content of the misrepresentation, and the
method by which the misrepresentation was communicated.” Wine & Canvas Dev., LLC v.
Weisser, 886 F. Supp. 2d 903, 944 (S.D. Ind. 2012) (internal quotations omitted).
The Counterclaimants have not pled their franchise fraud claim with sufficient
particularity. While the Counterclaimants assert that Brown and the Britt Parties created and
participated in a five-part “Franchise Conversion Scheme” through which they sought to convert
their licensing arrangements to franchises (Filing No. 62 at 52-53), the Counterclaimants have not
provided any factual allegations regarding who made a fraudulent misrepresentation, how the
misrepresentation was made, the timing or setting of the misrepresentation, or the content of the
misrepresentation.

See Weisser, 886 F. Supp. 2d at 944.

Accordingly, because the

Counterclaimants have not met the heightened pleading requirements set forth in Rule 9(b), their
franchise fraud claim under § 23-2-2.5-27 is insufficiently pled.

12

Furthermore, the Counterclaimants assert that Brown and the Britt Parties committed
franchise fraud in violation of § 23-2-2.7-2 “by coercing and/or forcing [Mr. and Mrs. Lucas, A3
Media, and Collective Publishing] to accept services which are neither necessary to the operation
of the Franchise, nor required by the Newsletter Agreements, or required by law” and “by
attempting to coerce [Mr. and Mrs. Lucas, A3 Media, and Collective Publishing] to enter into an
agreement with [the Britt Parties] by threatening to cancel their respective Newsletter
Agreements.” (Filing No. 62 at 70.) The Court finds the Counterclaimants’ assertion misplaced
because § 23-2-2.7-2 describes unlawful practices by a “franchisor who has entered into any
franchise agreement with a franchisee.” See Ind. Code § 23-2-2.7-2 (emphasis added). Because
the parties never formed a franchise agreement, Brown and the Britt Parties cannot be held liable
under § 23-2-2.7-2. Accordingly, the motions to dismiss the Franchise Fraud claim are granted.
E.

Indiana Anti-SLAPP Statute
In addition to arguing that the claims were insufficiently pled, Brown and the Britt Parties

assert a defense under Indiana’s Anti-SLAPP Act, Ind. Code §§ 34-7-7-1 et seq., for the
Counterclaimants’ tortious interference with business relationships and defamation claims. (Filing
No. 133 at 15; Filing No. 135 at 10.)
Indiana’s Anti-SLAPP Act provides a defense to “meritless suits aimed at silencing a
plaintiff=s opponents, or at least diverting their resources.” Brandom v. Coupled Prod., LLC, 975
N.E.2d 382, 385 (Ind. Ct. App. 2012) (quoting Hamilton v. Prewett, 860 N.E.2d 1234, 1241-42
(Ind. Ct. App. 2007)). The Anti-SLAPP statute “is intended to reduce the number of lawsuits
brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances.” Brandom, 975 N.E.2d at 385. The Indiana Anti-SLAPP
Act provides:

13

It is a defense in a civil action against a person 2 that the act or omission complained
of is: (1) an act or omission of that person in furtherance of the person’s right of
petition or free speech under the Constitution of the United States or the
Constitution of the State of Indiana in connection with a public issue; and (2) an act
or omission taken in good faith and with a reasonable basis in law and fact.
Ind. Code § 34-7-7-5.
The Anti-SLAPP Act further states that “the person who files a motion to dismiss must
state with specificity the public issue . . . that prompted the act in furtherance of the person’s right
of … free speech under the Constitution of the United States or the Constitution of the State of
Indiana.” Ind. Code § 34-7-7-9(b). The statute also requires that the Court base its decision on
“facts contained in the pleadings and affidavits filed and discovered under the expedited
proceeding.” Ind. Code § 34-7-7-9(c). A court shall grant an anti-SLAPP motion to dismiss if the
party filing the motion to dismiss “has proven, by a preponderance of the evidence, that the act
upon which the claim is based is a lawful act in furtherance of the person’s right of . . . free speech
under the Constitution of the United States or the Constitution of the State of Indiana.” Ind. Code
§ 34-7-7-9(d).
The Indiana Anti-SLAPP Act does not apply to the Counterclaimants’ tortious inference
with business relationships and defamation claims because Brown and the Britt Parties have not
adequately demonstrated that the Counterclaimants’ allegations constitute matters of public
interest.

While the Magazines may be of general interest to members of their respective

communities, statements and lawsuits relating to the ownership of the Magazines and the
intellectual property associated with the Magazines are not matters of public interest. Cf. Kadambi
v. Express Scripts, Inc., 86 F. Supp. 3d 900, 908-09 (N.D. Ind. 2015) (finding an individual

2

The Act defines “person” as either an individual or any other legal entity. Ind. Code § 34-7-7-4.

14

explanations regarding pharmaceutical services were not matters of public interest because the
individual explanations are much narrower in scope than pharmaceutical services generally, which
are matters of public interest). Accordingly, because these claims are not related to matters of
public interest, the Indiana Anti-SLAPP Act is not as a defense to the Counterclaimants’ tortious
interference with business relationships or defamation claims.
III.

CONCLUSION

For the reasons stated above, the Court GRANTS in part and DENIES in part Joshua
Brown’s Motion to Dismiss (Filing No. 132), and GRANTS in part and DENIES in part the
Britt Parties’ Motion for Partial Dismissal (Filing No. 134). The Motions to Dismiss as they relate
to the Counterclaimants’ claims of tortious interference with business relationships, defamation,
and franchise fraud under Ind. Code § 23-2-2.5-27 are dismissed without prejudice. However,
the Motions to Dismiss with regard to the Counterclaimants’ franchise fraud claim under Ind. Code
§ 23-2-2.7-2 are dismissed with prejudice. Furthermore, the Motions to Dismiss in relation to
Brown’s immunity defense and the Britt Parties’ anti-SLAPP defenses are DENIED. The
Counterclaimants are granted leave of twenty-one days (21) from the date of this Entry within
which to file an Amended Counterclaim and Third-Party Complaint, if any.
SO ORDERED.

Date: 5/16/2017

15

DISTRIBUTION:
E. Brenda Kpotufe
MATTINGLY BURKE COHEN & BIEDERMAN LLP
[e-mail]
Jonathan D. Mattingly
MATTINGLY BURKE COHEN & BIEDERMAN LLP
[e-mail]
Stephanie Maris
LAW OFFICE OF JOSH F. BROWN
[e-mail]
Joshua F. Brown
LAW OFFICES OF JOSH F. BROWN, LLC
[e-mail]
Ronald E. Elberger
BOSE MCKINNEY & EVANS, LLP
[e-mail]
P. Adam Davis
DAVIS & SARBINOFF LLC
[e-mail]
Matthew M. Cree
LAW OFFICE OF MATTHEW M. CREE, LLC
[e-mail]
Patrick James Olmstead, Jr.
PATRICK OLMSTEAD LAW, LLC
[e-mail]

16