Barket v. Clark

Filing 15

ORDER granting in part and denying in part counterdefendant's 10 Motion to Dismiss. Signed by Judge James C. Mahan on 6/26/12. (Copies have been distributed pursuant to the NEF - ECS)

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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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2:12-CV-393 JCM (GWF)

STEVE BARKET,
Plaintiff,
v.
TOM CLARKE,

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Defendant.

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ORDER
Presently before the court is counterdefendant Steve Barket’s motion to dismiss. Doc. #10.
Counterclaimant Tom Clarke filed an opposition (doc. #11), to which Barket replied (doc. #14).

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Background

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Clarke runs training programs for various types of tactical teams and security personnel as

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well as providing consulting services for various movie and television producers regarding military

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and security operations. Countercl. at ¶ 4. Clarke asserts that the various members of his team were

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formerly associated with elite units of military and non-military organizations. Id. While the

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pleadings provide scant detail as to exactly what Barket’s profession is, it appears that he makes his

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livelihood from internet marketing and internet reputation management. Compl. ¶ 8. Barket claims

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that due to his profession his name is well known on the internet and highly valuable. Id. ¶ 9.

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Barket initially filed suit alleging violations of Anticybersquatting Consumer Protection Act,

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15 U.S.C. § 1125(d) and the Lanham Act, 15 U.S.C. § 1125(a) and 15 U.S.C. § 8131. Id. ¶ 1. These

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allegations

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James C. Mahan
U.S. District Judge

are premised on

Clarke’s

alleged

registration

of the domain

names:

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<stevebarketexpose.com>, <stevebarketvegas.com> and <stevebarketinfo.com>, as well as, the

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email address <[e-mail]>. Id.

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Clarke has counterclaimed, alleging negligence, negligent infliction of emotional distress,

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interference with contractual obligations, intentional interference with prospective economic

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advantage, defamation, and false light. Clarke’s claims are premised on allegations that Barket

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divulged sensitive information about Clarke, his staff of advisors, and his clientele on the internet

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beginning in, or around, 2011. Countercl. ¶ 5. Clarke claims that due to the many “sensitive areas”

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that Clarke and his staff have worked over the years, divulging this information has caused grave

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safety concerns for him and his staff. Id. at ¶ 6. Clarke further asserts that Barket posted information

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about Clarke’s fiancée, resulting in her being forced to relocate. Id. at ¶ 5.

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Discussion
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Standard of Review

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A plaintiff must include a “short and plain statement of the claim showing that the pleader

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is entitled to relief.” FED. R. CIV. P. 8(a)(2). The statement of the claim is intended to “give the

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defendant fair notice of what the claim is and the grounds upon which it rests.” Bell Atlantic Corp.

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v. Twombly, 550 U.S. 544, 555 (2007) (internal citations omitted). Pursuant to Federal Rule of Civil

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Procedure 12(b)(6), courts may dismiss causes of action that “fail[] to state a claim upon which relief

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can be granted.”

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Courts must “accept all factual allegations in the complaint as true.” Tellabs, Inc. v. Makor

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Issues & Rights, Ltd., 551 U.S. 308, 322 (2007). However, “[t]o survive a motion to dismiss, a

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complaint must contain sufficient factual matter . . . to state a claim to relief that is plausible on its

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face.” Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009) (internal citations omitted). Although “not

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akin to a ‘probability requirement,’” the plausibility standard asks for more than a sheer possibility

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that a defendant has acted unlawfully. Id.

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James C. Mahan
U.S. District Judge

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2.

Analysis

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I. Negligence

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Clarke claims that Barket acted negligently by breaching his duty to act reasonably and

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exercise ordinary care under the circumstances. In order to succeed on a negligence claim Clarke

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must allege: (1) defendant owed a duty to plaintiff; (2) defendant breached the duty; (3) the breach

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was the legal cause of plaintiff’s injuries; and (4) plaintiff suffered damages. See Scialabba v.

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Brandise Constr. Co., Inc., 112 Nev. 965, 968 (1996). The nature and extent of a Barket’s duty is

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decided by the court, but the determination of whether Barket used reasonable care under the

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circumstances is a question for the jury. See Lee v. GNLV Corp., 117 Nev. 291, 296 (2001). General

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negligence standards dictate a duty to use reasonable care to avoid foreseeable harm. See Butler v.

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Bayer, 123 Nev. 450, 454–55 (2007) (finding that a general standard of negligence is to exercise

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reasonable care under the circumstances).

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This court finds that Clarke made sufficient factual allegations to support a negligence claim.

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Clarke asserts that Barket breached a duty of care when he placed personal information about Clarke,

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his staff and his clientele on the internet. Countercl. ¶ 4–11. Barket allegedly acted unreasonably

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when he divulged personal information on the internet, especially in light of the sensitive nature of

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Clarke’s job. Id. Clarke claims that his grave concern for safety and his fiancée’s relocation were

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directly caused by Barket’s actions. Id. Furthermore, Clarke contends that as a result of Barket’s

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actions, his staff and their families had concerns for safety. Id. Clarke maintains that he suffered

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damages as a result of Barket’s behavior. Id.

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The allegations put forth by Clarke are sufficient to plead a claim for negligence.
Accordingly, Barket’s motion to dismiss the “negligence” claim is denied.

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ii. Negligent Infliction of Emotional Distress

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This court finds that Clarke made an insufficient showing for a negligent infliction of

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emotional distress claim. Clarke’s claim for negligent infliction of emotional distress fails, because

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Clarke alleges that he was the direct victim of Barket’s allegedly negligent actions. In Shoen v.

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Amerco, 111 Nev. 735, the Nevada Supreme Court explained that negligent infliction of emotional

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U.S. District Judge

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distress claims include “a bystander’s emotional injury caused by witnessing physical injury to a

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third-person caused by defendant’s negligence.” Id. at 748. However, a “direct victim,” as opposed

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to a bystander, can “assert a negligence claim that includes emotional distress as part of the damage

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suffered as well as an intentional tort cause of action.” Id.

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Accordingly, a direct victim, such as Clarke, may bring an intentional infliction of emotional

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distress claim, but may not assert a negligent infliction of emotional distress claim. Where the

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evidence “presents a close case of whether an intentional or a negligent act was committed” the

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direct victim may also seek recovery for emotional distress through a simple negligence claim. See

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Id.; see also Kennedy v. Carriage Cemetery Services, Inc., 727 F. Supp. 2d 925, 934-35 (D. Nev.

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2010) (“[a]lthough Shoen made emotional harm available as a measure of damages for a simple

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negligence claim, the case did not expand the NIED cause of action itself to include an alternative

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to IIED where the defendant’s extreme and outrageous conduct was merely negligent.”).

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Since Clarke has pled negligent infliction of emotional distress as a separate claim, Barket’s
motion to dismiss the “negligent infliction of emotional distress” claim is granted.

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iii. Interference with Contractual Relations

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Clarke claims that Barket interfered with Clarke’s contractual relations. In order to establish

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interference with contractual relations, Clarke must allege: (1) a valid and existing contract; (2)

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defendant’s knowledge of the contract; (3) intentional acts intended or designed to disrupt the

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contractual relationship; (4) actual disruption of the contract; and (5) resulting damage. Hilton

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Hotels Corp. v. Butch Lewis Prods., 109 Nev. 1043, 1048 (1993).

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This court finds that Clarke sufficiently pled an interference with contractual relations claim.

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Clarke asserts that he was engaged in valid and existing contracts with third parties, of which Barket

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had knowledge. Countercl. ¶ 16–19. Barket allegedly used his knowledge of Clarke’s existing

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contracts and made false, disparaging, and defamatory statements in the presence of and to third

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parties and competitors. Id. Clarke further maintains that Barket posted false, disparaging, and

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defamatory statements on the internet. Id.

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Accordingly, Barket acted intentionally to disrupt Clarke’s contracts by making false,

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disparaging and defamatory statements about Clarke to third parties and competitors. Id. Clarke

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contends that his contracts were disrupted as a result of the allegedly intentional conduct by Barket

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which, Clarke claims, interfered with his ability to conduct normal business. Id. Clarke asserts that

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the culmination of Barket’s actions resulted in damages. Id.

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The allegations put forth by Clarke are sufficient to plead a claim for interference with

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contractual relations. Accordingly, Barket’s motion to dismiss the “interference with contractual

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relations” claim is denied.

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iv. Intentional Interference with Prospective Economic Advantage

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Clarke claims that Barket’s conduct ruined Clarke’s reputation in the business and marketing

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community which caused the loss of prospective economic opportunity with respect to existing and

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prospective clients.

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In order to establish intentional interference with prospective economic advantage, Clarke

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must allege: (1) a prospective contractual relationship between Clarke and a third party; (2)

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knowledge by defendant of the prospective relationship; (3) intent to harm plaintiff by preventing

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the relationship; (4) the absence of privilege or justification by defendant; and (5) actual harm to

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plaintiff as a result of defendant’s conduct. See Wichinsky v. Mosa, 109 Nev. 84, 88 (1993).

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This court finds that Clarke sufficiently pled an intentional interference with prospective

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economic advantage claim. Clarke alleges that he had prospective contractual relationships with

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existing and prospective clients. Countercl. ¶ 21–23. Clarke claims that Barket knew of Clarke’s

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relationships. Id. Barket allegedly divulged personal and work related information about Clarke to

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third parties, competitors and posted this information on the internet. Id. Clarke asserts that Barket

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was aware of contractual relationships that Clarke had because he engaged in disclosing disparaging,

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false, and defamatory information to third parties and competitors. Id.

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Further, Clarke maintains that Barket, without right or justification, engaged in spreading

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false information to competitors and to third parties to intentionally harm any existing and future

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relationships of Clarke. Id. Clarke claims that Barket knew his conduct would substantially interfere

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with, disrupt and injure Clarke by causing loss of prospective economic opportunity with respect to

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existing and prospective clients. Id. Clarke contends that Barket substantially interfered with

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Clarke’s business and ruined his reputation. Id. Clarke asserts that as a result of Barket’s alleged

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behavior Clarke sustained damages. Id.

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The allegations put forth by Clarke are sufficient to plead a claim for intentional interference

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with prospective economic advantage. Accordingly, Barket’s motion to dismiss the “intentional

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interference with economic advantage” claim is denied.

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v. Defamation

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Clarke claims that Barket posted defamatory remarks on the internet. In order to prove a

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prima facie case for defamation Clarke must allege: (1) a false and defamatory statement made by

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defendant concerning plaintiff; (2) an unprivileged publication to a third party; (3) fault, amounting

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to at least negligence; and (4) actual or presumed damages. See Chowdhry v. NLVH, Inc., 109 Nev.

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478, 483 (1993). If the defamation tends to injure Clarke in his business or profession then it is

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considered per se, and damages will be presumed. Id. at 483–84.

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This court finds that Clarke sufficiently pled a defamation claim. Clarke claims that Barket

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made false, defamatory, disparaging, baseless, unsupported remarks and innuendos about Clarke

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including the following: (1) Barket asserts that Clarke claims he was in the military; (2) Barket

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allegedly made false statements about Clarke regarding his taxes and the IRS; and (3) Barket claims

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that Clarke filed for bankruptcy. Countercl. ¶ 24–28. Barket allegedly stated these claims in the

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presence of and to third parties. Id. Clarke asserts that Barket also posted these false comments on

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the internet without permission. Id. Barket’s alleged conduct would constitute and unprivileged

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publication to a third party because the statements were posted on the internet and were stated to and

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in the presence of third parties and competitors. Id.

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Clarke contends that Barket’s conduct adversely effected Clarke’s business. Id. Clarke

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asserts that Barket posted this information intentionally and maliciously on the internet in order to

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adversely effect Clarke’s business, reputation and goodwill. Id. Clarke maintains that he depends

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on his well established business reputation in order to successfully conduct business and Barket’s

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U.S. District Judge

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false statements and publications effected Clarke’s business. Id. Clarke alleges that Barket’s actions

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damaged him. Id.

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The allegations put forth by Clarke are sufficient to plead a claim for defamation. Therefore,
Barket’s motion to dismiss the “defamation” claim is denied.

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vi. False Light

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Clarke claims that Barket, without right or justification, published defamatory and

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disparaging statements to third parties that placed Clarke in a false light. To plead false light

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invasion of privacy, Clarke must allege: (1) defendant gave publicity to a matter concerning plaintiff

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that placed him before the public in a false light; (2) that the false light would be highly offensive

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to a reasonable person; and (3) defendant had knowledge of, or acted in recklessly disregard as to,

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the falsity of the publicized matter and the false light in which plaintiff would be placed. Vail v.

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Pioneer Mut. Life Ins. Co., No. 2:10-cv-233-JCM (LRL), 2010 U.S. Dist. LEXIS 107994, at *5–6

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(D. Nev. Oct. 6, 2010). False light also requires an implicit false statement of objective fact. Id.

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“The false light action differs from a defamation action in that the injury in privacy actions

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is mental distress from having been exposed to public view, while the injury in defamation actions

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is damage to reputation.” People for the Ethical Treatment of Animals v. Bobby Berosini, Ltd., 111

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Nev. 615, 622 n.4 (1995), overruled in part on other grounds by City of Las Vegas Downtown

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Redevelopment Agency v. Hecht, 113 Nev. 644, 650 (1997). A false light claim may be defamatory

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but there is no requirement for it to be defamatory. Id.

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The court addressed the facts as to this claim in its discussion of defamation. The facts

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alleged against Barket also meet the prima facie elements for false light. See Vail, 2101 U.S. Dist.

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LEXIS 107994, at *5–6. As explained above, Barket has allegedly published false statements about

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Clarke. Countercl. ¶ 24–34. Clarke asserts that the false light in which he was placed could be

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considered highly offensive to a reasonable person. Moreover, Clarke claims that Barket was

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reckless when he published the false statements concerning Clarke. Clarke maintains that his

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reputation was damaged as a result of Barket’s behavior. Id.

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James C. Mahan
U.S. District Judge

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The allegations put forth by Clarke are sufficient to plead a claim for false light. Therefore,
Barket’s motion to dismiss the “false light” claim is denied.

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Conclusion

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For the reasons state above,

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IT IS HEREBY ORDERED, ADJUDGED, AND DECREED, that counterdefendant’s

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motion to dismiss (docs. #10) be, and the same hereby is, GRANTED in part, and DENIED in part.

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DATED June 26, 2012.

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UNITED STATES DISTRICT JUDGE
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James C. Mahan
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