Myers v. Powell

Filing 69

ORDER AND REASONS granting 68 Motion to Dismiss Defendant's Counterclaims. Defendant's counterclaims for defamation, defamation per se, and intentional infliction of emotional distress are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 1/30/2018. (cg)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
KIYANTE MYERS

CIVIL ACTION

VERSUS

NO. 12-2181

CLIFTON POWELL

SECTION “R” (5)
ORDER AND REASONS

Before the Court is plaintiff’s motion to dismiss defendant’s
counterclaims.1 For the following reasons, the Court grants the motion.

I.

BACKGROUND
This case arises out of allegations of sexual assault against Defendant

Clifton Powell.2 Plaintiff Kiyante Myers states that, on the night of August
28, 2011, she agreed to go out with Powell, and they initially engaged in
consensual sexual relations.3 Later that night, Powell allegedly wanted to
engage in sexual relations again, but Myers declined, saying that Powell had
been too rough the first time.4 After convincing Myers to acquiesce, Powell
allegedly pushed and choked Myers, penetrated her anus with his fingers,

1
2
3
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R. Doc. 68.
R. Doc. 1.
Id. at 3-4.
Id. at 4.

refused her request to stop, and forcefully continued having sex with her
against her will.5
Powell acknowledges having sexual relations with Myers on August 28,
2011, but he asserts that these relations were consensual.6 According to
Powell’s counterclaim, Myers requested a sexual assault examination at
University Hospital the next day.7 After speaking with Myers, a nurse at the
hospital contacted the New Orleans Police Department to report a sexual
assault.8 A police detective was then dispatched to the hospital to question
Myers about the alleged assault.9 According to Powell, the police detective
investigated Myers’s claim of sexual abuse and concluded that her allegations
were without merit.10 Powell was not arrested or charged with a criminal
offense against Myers.11

Id.
R. Doc. 61 at 10. The parties provide slightly different accounts of the
dates of these events. Myers asserts that the alleged sexual assault occurred
during the night of August 28, 2011, to August 29, 2011. See R. Doc. 1 at 1,
3-4. In his answer, Powell admits that he met Myers at a casino bar on the
evening of August 28, 2011, and agreed to go out with her that night. See
R. Doc. 1 at 3 ¶¶ 13-14; R. Doc. 61 at 3 ¶¶ 13-14. But Powell’s counterclaim
states that he engaged in consensual sexual relations with Myers in the late
hours of August 27, 2011, and on August 28, 2011. See R. Doc. 61 at 10.
7
R. Doc. 61 at 11.
8
Id.
9
Id.
10
Id. at 12.
11
Id.
2
5

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On August 31, 2012, Myers filed a complaint against Powell seeking
damages for assault, battery, and intentional infliction of emotional
distress.12 Powell did not answer or otherwise defend against the complaint,
and the Court entered default judgment against him on August 30, 2013.13
On June 27, 2016, Powell moved for relief from the default judgment.14
Powell argued that he was never properly served with process.15 Powell
further asserted that he was aware of Myers’s initial claim and fully
cooperated with the police investigation.16 Powell stated that he learned of
this lawsuit from a member of the media over one year after the police
investigation.17 Powell asserted that he hired an attorney to represent him in
this suit, but his attorney effectively abandoned him.18 On January 24, 2017,
the Court granted Powell’s motion to vacate the default judgment because of
improper service of process.19 The Court later granted Myers’s motion for a
new trial and reopened the case.20

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13
14
15
16
17
18
19
20

R. Doc. 1.
R. Doc. 31.
R. Doc. 36.
R. Doc. 36-1 at 10.
Id. at 18.
Id.
Id. at 19-20.
R. Doc. 55.
R. Doc. 58.
3

On April 3, 2017, Powell filed an answer and counterclaims for
defamation, defamation per se, and intentional infliction of emotional
distress.21 Myers now moves to dismiss the counterclaims under Federal
Rule of Civil Procedure 12(b)(6).22 Powell has not responded to this motion.

II.

LEGAL STANDARD
To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead

“sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially
plausible when the plaintiff pleads facts that allow the court to “draw the
reasonable inference that the defendant is liable for the misconduct alleged.”
Id. at 678. A court must accept all well-pleaded facts as true and must draw
all reasonable inferences in favor of the plaintiff.

See Lormand v. US

Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).
A legally sufficient complaint must establish more than a “sheer
possibility” that the plaintiff’s claim is true. Iqbal, 556 U.S. at 678. It need
not contain detailed factual allegations, but it must go beyond labels, legal

21
22

R. Doc. 61.
R. Doc. 68.
4

conclusions, or formulaic recitations of the elements of a cause of action. Id.
In other words, the face of the complaint must contain enough factual matter
to raise a reasonable expectation that discovery will reveal relevant evidence
of each element of the plaintiff’s claim. Lormand, 565 F.3d at 257. The claim
must be dismissed if there are insufficient factual allegations to raise a right
to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is
apparent from the face of the complaint that there is an insuperable bar to
relief, Jones v. Bock, 549 U.S. 199, 215 (2007).

III. DISCUSSION
A. Defamation
Powell asserts counterclaims of defamation and defamation per se.23
Under Louisiana law, “[f]our elements are necessary to establish a claim for
defamation: (1) a false and defamatory statement concerning another; (2) an
unprivileged publication to a third party; (3) fault (negligence or greater) on
the part of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of
East Baton Rouge, 935 So. 2d 669, 674 (La. 2006). “In other words, a
plaintiff must prove that the defendant, with actual malice or other fault,
published a false statement with defamatory words which caused plaintiff

23

R. Doc. 61 at 15-19.
5

damages.” Fitzgerald v. Tucker, 737 So. 2d 706, 715-16 (La. 1999) (internal
quotation omitted). Falsity, malice (or fault), and injury may be presumed if
“a plaintiff proves publication of words that are defamatory per se,” although
this presumption is rebuttable. Kennedy, 935 So. 3d at 675. “Words which
expressly or implicitly accuse another of criminal conduct . . . are considered
defamatory per se.” Id.
Powell’s counterclaim for defamation per se states that, “[o]n or about
August 28th and 29th, 2011, and at various times continuing through the
present day, Ms. Myers made false statements to third parties that Mr.
Powell assaulted, battered and raped her.”24 The counterclaim further states
that Myers and her attorneys or agents published defamatory statements to
third parties, and these statements tarnished Powell’s reputation and
resulted in negative media coverage and public reaction.25 But Powell’s
counterclaims for defamation per se and defamation provide no additional
details regarding any specific statements made after August 29, 2011. The
Court finds that Powell’s allegations that Myers made defamatory statements
after August 29, 2011 are too vague to raise his right to relief above a
speculative level. See Twombly, 550 U.S. at 555.

24
25

R. Doc. 61 at 15.
Id. at 16.
6

Myers argues that Powell is time-barred from bringing a defamation
claim based on statements made in August 2011.26 Defamation claims in
Louisiana are subject to the one year prescriptive period for delictual actions.
See Alexander v. Times-Picayune LLC, 221 So. 3d 198, 203 (La. App. 4 Cir.
2017); Clark v. Wilcox, 928 So. 2d 104, 112 (La. App. 1 Cir. 2005). The
prescriptive period “commences to run from the day injury or damage is
sustained.” La. Civ. Code art. 3492; see also Alexander, 221 So. 3d at 203
(“Generally, in the context of defamation, prescription begins to run from the
date of the publication of the allegedly defamatory remarks.”).
In Louisiana, “[t]he burden of proof is normally on the party pleading
prescription; however, if on the face of the petition it appears that
prescription has run . . . the burden shifts to the plaintiff to prove a
suspension or interruption of the prescriptive period.” Younger v. Marshall
Indus., Inc., 618 So. 2d 866, 869 (La. 1993); see also Eastin v. Entergy Corp.,
865 So. 2d 49, 54 (La. 2004). Because Powell asserts that Myers made false
statements in August 2011, his counterclaims for defamation and defamation
per se are facially prescribed. See Lyons v. Knight, 65 So. 3d 257, 260 (La.
App. 3 Cir. 2011). Powell has not responded to this motion, and has offered
no basis to infer that his claims are timely because of a suspension or

26

R. Doc. 68-1 at 7-8.
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interruption of the prescriptive period. Accordingly, the Court finds that
Powell’s counterclaims of defamation per se and defamation are prescribed.
B. Intentional Infliction of Emotional Distress
Powell’s counterclaim for intentional infliction of emotional distress is
subject to the same one year prescriptive period as his defamation claims,
and is based on the same factual allegations. See King v. Phelps Dunbar,
LLP, 743 So. 2d 181, 187 (La. 1999); see also La. Civ. Code art. 3492. Powell
asserts that he suffered emotional distress because of Myers’s defamatory
statements, and he offers no details regarding any specific conduct by Myers
after August 2011.27 Thus, this counterclaim is also prescribed.
Defendant has not responded to this motion or sought leave to amend
his counterclaims.

Because defendant’s counterclaims for defamation,

defamation per se, and intentional infliction of emotional distress have long
been prescribed, the Court dismisses these claims with prejudice.

27

R. Doc. 61 at 19-20.
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IV.

CONCLUSION
For the foregoing reasons, plaintiff’s motion is GRANTED.

Defendant’s counterclaims for defamation, defamation per se, and
intentional infliction of emotional distress are DISMISSED WITH
PREJUDICE.

30th
New Orleans, Louisiana, this _____ day of January, 2018.

_____________________
SARAH S. VANCE
UNITED STATES DISTRICT JUDGE

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