PEOPLE FOR THE ETHICAL TREATMENT OF ANIMALS, INC. v. WILDLIFE IN NEED AND WILDLIFE IN DEED, INC. et al

Filing 52

ORDER granting Plaintiff's 26 Motion to Dismiss Counterclaim. Signed by Judge Richard L. Young on 1/8/2018. (TMD)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF INDIANA
NEW ALBANY DIVISION
PEOPLE FOR THE ETHICAL TREATMENT )
OF ANIMALS, INC.,
)
)
Plaintiff,
)
)
v.
)
)
WILDLIFE IN NEED AND WILDLIFE IN
)
DEED, INC.,
)
TIMOTHY L. STARK,
)
MELISA D. STARK,
)
)
Defendants.
)
)
)
MELISA D. STARK,
)
TIMOTHY L. STARK,
)
WILDLIFE IN NEED AND WILDLIFE IN
)
DEED, INC.,
)
)
Counter Claimants, )
)
v.
)
)
PEOPLE FOR THE ETHICAL TREATMENT )
OF ANIMALS, INC.,
)
)
Counter Defendant. )

4:17-cv-00186-RLY-DML

ENTRY ON PLAINTIFF’S MOTION TO DISMISS COUNTERCLAIM
On September 29, 2017, Plaintiff, People for the Ethical Treatment of Animals,
Inc., brought this present action against Defendants, Melisa D. Stark, Timothy L. Stark,
and Wildlife in Need and Wildlife in Deed, Inc., for alleged violations of the Endangered
Species Act, 16 U.S.C. §§ 1531, et. seq. (Filing No. 1). On October, 19, 2017,
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Defendants filed an Answer and a Counterclaim for defamation. (Filing No. 23).
Plaintiff now moves to dismiss Defendants’ Counterclaim under Rule 12(b)(6).
Defendants have not responded. For the reasons stated below, the court GRANTS
Plaintiff’s motion.
To make out a claim for defamation, Defendants bear the burden of establishing
the basic elements of defamation: “(1) a communication with a defamatory imputation;
(2) malice; (3) publication; and (4) damages.” Haegert v. McMullan, 953 N.E.2d 1223,
1230 (Ind. Ct. App. 2011). In their Counterclaim, Defendants allege:
1.

People for the Ethical Treatment of Animals, Inc. (PETA) is a radical,
extreme, militant, activist, animal rights group cloaked as a non-profit
organization to bully, harass, annoy, and to bring litigation under the
Endangered Species Act in order to further it’s [sic] efforts to fund
raise [sic] from members of the public who might believe themselves
to be in alliance with the objectives of the organization.

2.

PETA advances frivolous claims to fund further litigation to
accomplish what appears to be the goal of ending private ownership
of all animals, including typical household pets as well as all other
animals whether they be domestic or wildlife such as governed by the
USDA and to restrict private property rights of owners such as WIN.

3.

PETA sensationalizes and publicizes it’s [sic] actions against WIN
which acts to damage the business operations and day to day activities
of WIN constituting an unlawful taking and damaging of it’s [sic]
business and damaging it’s [sic] ability to conduct interstate
commerce.

4.

PETA makes claims that have acted to slander and defame the good
name of WIN causing both temporary and permanent economic
damage to WIN with a complete disregard to the truth.

5.

PETA has encouraged and allowed others to slander and defame WIN
to help advance the agenda of PETA.

(Filing No. 23, Answer to Complaint and Counterclaim at 2 ¶¶ 1-5).
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Defendants’ allegations fall well short of making out a claim for defamation.
Defendants have not identified nor listed any specific communications with a defamatory
imputation, which is required under Indiana law. See Haegert, 953 N.E.2d at 1230 (“[A]
plaintiff who sues for defamation must set out the alleged defamatory statement in the
complaint.”). Further, Defendants have not alleged that such communications were
published with malice. Defendants’ conclusory statements are simply insufficient to
sustain a claim of defamation. Board of Trustees of Purdue University v. Eisenstein, No.
45A04-1612-PL-2728, 2017 WL 4872915, at *12 (Ind. Ct. App. Oct. 30, 2017) (noting
that vague allegations about a defendant’s conduct are insufficient to support a
defamation claim).
Plaintiff also seeks dismissal under Indiana’s Anti-SLAPP statute which directs a
court to dismiss a claim of defamation if the court finds by the 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 petition or 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 Anti-SLAPP Statute
permits a successful defendant to be awarded attorney fees and costs for prevailing on a
motion to dismiss. Ind. Code § 34-7-7-7 (“A prevailing defendant on a motion to dismiss
made under this chapter is entitled to recover reasonable attorney’s fees and costs.”).
The court declines to award Plaintiff costs and fees under the Anti-SLAPP statute
since Defendants have not identified any statements or publications that are defamatory.
Fees and costs are only recoverable when a motion to dismiss is granted under that
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section. See Ind. Code § 34-7-7-7. Since the court is granting Plaintiff’s motion to
dismiss under Rule 12(b)(6) for failure to state a claim, and not under Indiana’s AntiSLAPP statute, the court declines Plaintiff’s request for fees.
For the reasons stated above, the court GRANTS Plaintiff’s Motion to Dismiss
Counterclaim (Filing No. 26).

SO ORDERED this 8th day of January 2018.

Distributed Electronically to Registered Counsel of Record.

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