American Home Assurance Company et al v. Greater Omaha Packing Company Inc.
MEMORANDUM AND ORDER - Plaintiffs' motion to dismiss defendant's counterclaim (Filing No. 46 ) is denied. Defendant's motion for oral argument regarding motion to dismiss (Filing No. 54 ) is denied as moot. Defendant's motion in limine and request for oral argument (Filing No. 55 ) are denied as moot. Ordered by Senior Judge Lyle E. Strom. (TEL)
IN THE UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF NEBRASKA
AMERICAN HOME ASSURANCE
COMPANY and CARGILL MEAT
GREATER OMAHA PACKING COMPANY,)
MEMORANDUM AND ORDER
This matter is before the Court upon plaintiffs’ motion
to dismiss defendant’s counterclaim (Filing No. 46) and
defendant’s motion for oral argument regarding motion to dismiss
(Filing No. 54) and motion in limine and request for oral
argument (Filing No. 55).
After reviewing the motions, briefs,
and relevant law, the Court will deny plaintiffs’ motion to
dismiss and deny defendant’s motion for oral argument and motion
in limine and request for oral argument.
This lawsuit arises out of the sale of some raw beef
trim by defendant to Cargill Meat Solutions Corporation
(“Cargill”), which plaintiffs claim was contaminated with the
bacterium known as “E. coli 0157:H7.”
On February 1, 2012,
defendant filed an amended answer to plaintiffs’ complaint that
asserted a counterclaim against Cargill for tortious interference
with business relationships and expectancies (Filing No. 40).
Defendant’s counterclaim arises from a New York Times article
that allegedly contained false information supplied by Cargill’s
Defendant claims that one or more of its
existing and potential business customers learned about the false
information, leading them to terminate their business and/or
refuse to do business with defendant.
As result, defendant
claims it suffered damages.
On March 7, 2012, plaintiffs filed a motion to dismiss
defendant’s counterclaim under Federal Rule of Civil Procedure
12(b)(6) for failure to state a claim (Filing No. 46).
Plaintiffs have made three arguments in support of their motion
(Filing No. 47).
First, plaintiffs claim that defendant’s
tortious interference claim is barred by Nebraska’s one-year
statute of limitations for a defamation claim.
plaintiffs allege that defendant failed to plead its tortious
interference claim with particularity.
Lastly, plaintiffs argue
that the information Cargill’s representatives gave to the New
York Times is protected speech.
II. Standard of Review
The Federal Rules of Civil Procedure require a
counterclaim to allege “a short and plain statement of the claim
showing that the pleader is entitled to relief.”
Fed. R. Civ. P.
A counterclaim does not need “detailed factual
allegations” in order to survive a motion to dismiss under Fed.
R. Civ. P. 12(b)(6).
Bell Atlantic Corp. v. Twombly, 550 U.S.
554, 555 (2007).
Plaintiffs claim that this Court should dismiss
defendant’s tortious interference claim because it is based upon
In Nebraska, a claim of tortious
interference with business relationships and expectancies and a
claim of defamation are two separate and distinct torts, each
with its own unique elements.
Further, each of the two torts is
subject to a different statute of limitations.
are subject to a one-year statute of limitations, whereas
tortious interference claims are subject to a four-year statute
As defendant’s tortious interference claim is
based upon allegedly defamatory statements from a New York Times
article, plaintiffs argue defendant’s claim actually sounds in
defamation and should be dismissed because it is subject to a
one-year statute of limitations.
The question before the Court then is whether in
Nebraska a tortious interference claim based upon defamatory
statements can be considered a distinct claim from a claim of
The Nebraska Supreme Court has recognized that truth
may be an affirmative defense to a tortious interference claim
and also that “privileged statements” barred a claim for tortious
Reico v. Evers, 278 Neb. 405, 421, 771 N.W.2d 121,
133 (2009); Kocontes v. McQuaid, 279 Neb. 335, 353-54, 78 N.W.2d
410, 424-25 (2010).
Thus, the Court finds that in Nebraska a
tortious interference claim may be based upon defamatory
statements and considered a separate and distinct claim from a
claim of defamation.
The Court will deny plaintiffs’ motion on
Plaintiffs further claim that this Court should dismiss
defendant’s tortious interference claim because it does not state
a claim for relief, specifically because it fails to plead the
allegedly defamatory statements with particularity, and it does
not identify the specific business relationships and expectancies
with which Cargill interfered.
The Court has reviewed
defendant’s counterclaim and finds defendant has provided
plaintiffs with sufficient facts to survive Fed. R. Civ. P.
12(b)(6)’s liberal standards.
Thus, the Court will deny
plaintiffs’ motion on this ground.
Finally, plaintiffs claim defendant’s counterclaim
should be dismissed because it is based upon statements that
Cargill made to the New York Times, which are protected by the
absolute privilege defense.
Even if this claim has merit, it
requires that the Court consider detailed factual allegations,
which defendant disputes, and which are not contained within
Such factual analysis by the Court at
this state of the litigation would be improper.
plaintiffs claim defendant must show Cargill’s representatives
acted with actual malice as the New York Times Article addresses
a matter of “national public concern.”
As malice is not a
required element of tortious interference, the Court will
disregard this argument and will deny plaintiffs’ motion on this
IT IS ORDERED:
1) Plaintiffs’ motion to dismiss defendant’s
counterclaim (Filing No. 46) is denied.
2) Defendant’s motion for oral argument regarding
motion to dismiss (Filing No. 54) is denied as moot.
Defendant’s motion in limine and request for oral
argument (Filing No. 55) are denied as moot.
DATED this 7th day of June, 2012.
BY THE COURT:
/s/ Lyle E. Strom
LYLE E. STROM, Senior Judge
United States District Court
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