WALKER v. PETSENSE LLC et al

Filing 17

MEMORANDUM OPINION AND ORDER signed by JUDGE LORETTA C. BIGGS on 03/31/2021, that Defendants' Motion to Dismiss, (ECF No. 9 ), is GRANTED IN PART AND DENIED IN PART as follows: A. The motion is GRANTED with re spect to Plaintiff's claims for libel; B. The motion is further GRANTED with respect to Plaintiff's claims for slander to the extent that they rely on the aforementioned statements of opinion, accurate factual assertions, and vague stateme nts to the "general public" discussed above; and C. The motion is DENIED with respect to Plaintiff's claims for slander per se to the extent that Plaintiff bases her claims on Defendants' employees' interactions with state and local officials.(Taylor, Abby)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
STEPHANIE A. WALKER
Plaintiff,
v.
PETSENSE LLC and
TRACTOR SUPPLY COMPANY,
Defendants.

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1:20CV738

MEMORANDUM OPINION AND ORDER
Plaintiff Stephanie Walker initiated this action against Defendants Petsense, LLC
(“Petsense”) and parent corporation Tractor Supply Company on July 9, 2020 in North
Carolina state court with the filing of a pro se complaint. (ECF No. 5.) Plaintiff’s Amended
Complaint, which is the operative complaint in this litigation, seeks damages in excess of
twenty-five million dollars as a result of what she claims was the “intentional filing of false and
malicious animal cruelty accusations against her” and her animal rescue organization. (ECF
No. 6 at 1.) Defendants removed the action to this Court on the basis of diversity jurisdiction
pursuant to 28 U.S.C. § 1332, (ECF No. 1), and now move to dismiss Plaintiff’s Amended
Complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for failure to state
a cognizable claim upon which relief can be granted, (ECF No. 9).
I.

BACKGROUND
Plaintiff has been the director of Rita’s Angels, an animal rescue organization serving

North Carolina’s Lee County, for more than two years. (ECF No. 6 ¶¶ 2, 7.) Defendant

Petsense is a company that provides pet adoption services to the public and at one time
operated a store in the same county. (Id. ¶ 2.) Because Lee County’s local animal shelter was
not able to send its animals directly to Petsense’s store, Plaintiff’s organization worked with
Defendant to transport animals between the two locations while providing the animals with
medical care. (Id.)
Plaintiff claims that, despite this working relationship, a “false and malicious
defamatory” comment was posted on Rita’s Angels Facebook page in June 2019 by an account
bearing the name of Chris Eichele—the husband of Petsense’s Assistant Manager, Diane
Hamilton. (Id. ¶ 10.) This comment stated that the number of animals Plaintiff cared for
constituted a “hoarding level” and that all of the animals failed to receive the requisite medical
care. (Id. at 16.) The comment also stated that, after a fire, “[Lee County] removed 40+ dogs
from the home [that were] all covered in fleas and a few [were] sick to the point of major
[quarantine].” (Id.) Finally, the comment asserted that Rita’s Angels “put[s] cats in local pet
stores and leave[s] them there sick[,] and [they] have to be threatened with reporting to get
them to provide medical care.” (Id.)
In addition to this written statement, Plaintiff further alleges that Petsense employees
have made a number of inflammatory verbal declarations impugning Rita’s Angels to
government officers, including accusing her and her facility of animal cruelty in conversations
with local law enforcement, (id. ¶ 12), and stating to a North Carolina State Agriculture
Department official that Plaintiff had been negligent in her care of animals, (id. ¶ 13). Plaintiff
also accuses Petsense Manager “Ms. Mapauna” of telling a Petsense customer that Plaintiff
and her facility were “bad news,” that both “should be avoided at all costs,” and that she heard

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“more charges” were going to be brought against Plaintiff and/or her facility. (Id. ¶ 15.)
Plaintiff further contends that Ms. Mapauna and Ms. Hamilton made regular statements to the
general public accusing Plaintiff and her rescue of animal cruelty. (Id. ¶ 16.)
Plaintiff alleges that, as a result of these “knowingly false and malicious accusations”
intended to shift blame from Defendants, she has been subjected to “shame, ridicule, and
contempt within her community and among her peers” that have led to her experiencing
anxiety, fatigue, and depression. (Id. ¶¶ 17, 27, 30.) Further, Plaintiff contends that she and
her facility are no longer able to work with Lee County animal shelter due to the nature of
Defendants’ statements, (id. ¶ 19), nor are they able to fundraise through local stores as they
had previously, (id. ¶¶ 24).
II.

STANDARD OF REVIEW
A motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure

“challenges the legal sufficiency of a complaint,” including whether it meets the pleading
standard of Rule 8(a)(2). See Francis v. Giacomelli, 588 F.3d 186, 192 (4th Cir. 2009). Rule 8(a)(2)
requires a complaint to contain “a short and plain statement of the claim showing that the
pleader is entitled to relief,” Fed. R. Civ. P. 8(a)(2), thereby “giv[ing] the defendant fair notice
of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 555 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). To survive a Rule 12(b)(6)
motion to dismiss, “a complaint must contain 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 Twombly, 550 U.S. at 570). A complaint may fail to state a claim upon which relief
can be granted in two ways: first, by failing to state a valid legal cause of action, i.e., a cognizable

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claim, see Holloway v. Pagan River Dockside Seafood, Inc., 669 F.3d 448, 452 (4th Cir. 2012); or
second, by failing to allege sufficient facts to support a legal cause of action, see Painter’s Mill
Grille, LLC v. Brown, 716 F.3d 342, 350 (4th Cir. 2013).
In evaluating whether a claim is stated, “a court accepts all well-pled facts as true and
construes these facts in the light most favorable to the plaintiff” but does not consider “legal
conclusions, elements of a cause of action, . . . bare assertions devoid of further factual
enhancement[,] . . . unwarranted inferences, unreasonable conclusions, or arguments.” Nemet
Chevrolet, Ltd. v. Consumeraffairs.com, Inc., 591 F.3d 250, 255 (4th Cir. 2009) (citation and internal
quotation marks omitted). While a court’s evaluation of a Rule 12(b)(6) motion to dismiss is
“generally limited to a review of the allegations of the complaint itself,” a court can also
consider documents “attached to the complaint as exhibits.” Goines v. Valley Cmty. Servs. Bd.,
822 F.3d 159, 165–66 (4th Cir. 2016) (citation omitted).
When considering a Rule 12(b)(6) motion, a court must be mindful of the principle
that “a pro se complaint, however inartfully pleaded, must be held to less stringent standards
than formal pleadings drafted by lawyers.” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (per
curiam) (quoting Estelle v. Gamble, 429 U.S. 97, 106 (1976)); see also Noble v. Barnett, 24 F.3d 582,
587 n.6 (4th Cir. 1994). However, “[w]hile a pro se litigant’s pleadings are liberally construed,
a pro se complaint must still contain sufficient facts to raise a right to relief above the
speculative level and state a claim to relief that is plausible on its face.” Adams v. Sw. Va. Reg’l
Jail Auth., 524 F. App’x 899, 900 (4th Cir. 2013) (internal citation and quotations omitted).

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III.

DISCUSSION
While Plaintiff alleges several facts in her Amended Complaint, Defendants are correct

to point out that she “does not specify which causes of action she is asserting.” (ECF No. 10
at 1 n.1.) As discussed above, however, a court must construe a pro se complaint liberally and,
upon a motion to dismiss, consider whether the facts alleged state a cognizable claim even
when a plaintiff does not specify the legal basis upon which the complaint is grounded. Here,
Defendants move the Court to dismiss Plaintiff’s claims for defamation. (Id. at 1–2.)
Accordingly, the Court will focus its analysis on such claims.
To succeed on a defamation claim in North Carolina, “a plaintiff generally must show
that the defendant caused injury to the plaintiff by making false, defamatory statements of or
concerning the plaintiff, which were published to a third person.” Desmond v. News & Observer
Publ’g Co., 772 S.E.2d 128, 135 (N.C. Ct. App. 2015); see also Moore v. Cox, 341 F. Supp. 2d 570,
574 (M.D.N.C. 2004). The statement at issue must be “a statement of fact, not opinion, but
an individual cannot preface an otherwise defamatory statement with ‘in my opinion’ and claim
immunity from liability.” Desmond, 772 S.E.2d at 135 (citation and internal quotation marks
omitted). Whether a statement is fact or opinion is a question of law. Id. (quoting Lewis v.
Rapp, 725 S.E.2d 597, 602 (N.C. Ct. App. 2012)).
“North Carolina retains two distinct defamation torts—slander, which involves spoken
words, and libel, which involves written words.” Moore, 341 F. Supp. 2d at 574 (citing Eli Rsch.
Inc. v. United Commc’ns Grp., LLC, 312 F. Supp. 2d 748, 761 (M.D.N.C. 2004)). Each of these
categories “may be actionable per se or actionable per quod.” Id. A statement may be considered
actionable per se when its defamatory character is clear “when considered alone, without

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innuendo or explanatory circumstances.” Id. On the other hand, a statement may be
considered actionable per quod when the words appear defamatory “only in connection with
extrinsic, explanatory facts.”1 Id. Per se allegations provide “a prima facie presumption of
malice and a conclusive presumption of damages,” whereas those contentions alleged pro quod
are obligated to show special damages. Eli Rsch., 312 F. Supp. 2d at 761. Because Plaintiff
fails to explicitly name the type of defamation she is alleging, the Court will consider the
possible claims from the facts presented in the Amended Complaint.
A.

Libel

In the allegations set forth by Plaintiff, only the purported Facebook post from Mr.
Eichele’s account appears to be a written statement and therefore the only statement the Court
considers under a theory of libel. Defendants, however, argue that Mr. Eichele’s conduct is
not attributable to Defendants and therefore must be dismissed.

More specifically,

Defendants contend that they did not employ Mr. Eichele and, even if they had, they would
not be vicariously liable under a theory of respondeat superior for any statements he may have
made given that such a post would not have been in the scope of their employees’ work. (ECF
No. 10 at 5–7.)
Plaintiff, for her part, does not appear to dispute such contentions. Rather, in her
Response to Defendants’ Motion to Dismiss, she argues that the Court should read her
Amended Complaint to assert that Mr. Eichele’s wife, Petsense Assistant Manager Diane

A third type of libel, not at issue here, involves “publications susceptible of two interpretations one of which
is defamatory and the other not.” Renwick v. News * Observer Publ’g Co. 312 S.E.2d 405, 408 (N.C. 1984) (quoting
Arnold v. Sharpe, 251 S.E.2d 452, 455 (N.C. 1979)). To state such a claim, a complaint must allege that the
publication is “susceptible of two meanings, one defamatory, and that the defamatory meaning was intended
and was so understood by those to whom publication was made.” See id.
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Hamilton, “had access to her husband’s Facebook page on June 12th, 2019 while he was at
the store on her shift that evening.” (ECF No. 14 at 3.) This is, however, new information
not included in the Amended Complaint and, even if the Court were to credit this argument,
Plaintiff does not assert at any time that Ms. Hamilton did, in fact, write, publish, or authorize
such a post. (See ECF Nos. 6; 14.)
In sum, Plaintiff merely suggests that one of Defendants’ employees could have
published such a statement using a non-employee’s account.

These allegations, even

construed liberally on behalf of the Plaintiff, fail to raise the right to relief beyond a mere
speculative level and are therefore insufficient to state a cognizable claim against the
Defendants for libel per se or libel per quod. Accordingly, the Court dismisses all counts of libel
against Defendants in this case.
B.

Slander

The Court next considers the potential claims for slander in Plaintiff’s Amended
Complaint. As discussed above, North Carolina recognizes two types of slander—slander per
se and slander per quod. Donovan v. Fiumara, 442 S.E.2d 572, 574 (N.C. Ct. App. 1994). “Slander
per se is a false oral communication that amounts to (1) an accusation the plaintiff committed
a crime involving moral turpitude, (2) an allegation that impeaches the plaintiff in his trade,
business, or profession, or (3) an imputation that the plaintiff has a loathsome disease.” Eli
Rsch., 312 F. Supp. 2d at 761. Unlike slander per se, slander per quod “involves a spoken
statement of which the harmful character does not appear on its face as a matter of general
acceptance, but rather becomes clear ‘only in consequence of extrinsic, explanatory facts

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showing its injurious effect.’” Donovan, 442 S.E.2d at 574–75 (quoting Badame v. Lampke, 89
S.E.2d 466, 467–68 (N.C. 1955)).
As the Court observed earlier, Plaintiff appear to allege four instances of slander. First,
Plaintiff alleges that Defendants made false and malicious statements to law enforcement
officials regarding accusations of animal cruelty at the hands of Plaintiff. (ECF No. 6 ¶ 12.)
Second, Plaintiffs allege that Defendants made similar statements to a state Agriculture
Department official, accusing Plaintiff of negligent care of animals. (Id. ¶ 13.) Third, Plaintiff
contends that a Petsense employee told a customer that Plaintiff was “bad news,” “should be
avoided at all costs,” and was facing criminal charges. (Id. ¶ 15.) Fourth, and finally, Plaintiff
alleges that Petsense employees regularly communicated to the general public that Plaintiff
and her rescue acted with cruelty in their treatment of the animals in their care. (Id. ¶ 16.)
To begin, it appears that Plaintiff has stated a prima facie case of slander per se with
regards to alleged statements made to local law enforcement as well as state officials. She
contends that Defendants’ employees “knowingly made false and malicious statements”
asserting that Plaintiff and her rescue had engaged in animal cruelty and negligent care. (Id.
¶¶ 12–13.) She further states that the employees were “operating within the scope of their
employment” through their attempts to shift responsibility for the poor health of Petsense’s
animals towards Plaintiff. (Id. ¶¶ 17–18, 33.) Such statements are sufficient to state a claim
that Defendants made a false oral communication accusing Plaintiff of a crime of moral
turpitude or one which impeaches Plaintiff in her profession.
Defendants, however, argue that they have qualified privilege with respect to these
alleged statements. (ECF No. 10 at 7.) Under North Carolina law, a statement communicated

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under a qualified privilege that is made “without actual malice” will result in “no civil liability,
regardless of whether or not the communication is libelous per se or libelous per quod.” Ponder
v. Cobb, 126 S.E.2d 67, 78 (N.C. 1962) (alterations added). The elements for establishing such
a privilege are “[1] good faith, [2] an interest to be upheld, [3] a statement limited in its scope
to this purpose, [4] a proper occasion and [5] publication in a manner and to the proper parties
only.” Kinesis Advertising, Inc. v. Hill, 652 S.E.2d 284, 297 (N.C. Ct. App. 2007). In North
Carolina, qualified privilege is an affirmative defense that generally “must be specially
pleaded.” Stewart v. Nation–Wide Check Corp., 182 S.E.2d 410, 414 (N.C. 1971). A defendant
asserting this defense carries the burden of “establish[ing] facts sufficient to support this plea.”
Id.
Here, Defendants assert that the “alleged statements made to the state agency are
subject to a qualified privilege” and therefore Plaintiff’s claim for defamation pursuant to any
such statements should be dismissed. (ECF No. 10 at 8.) While Defendants may be able to
establish that they meet this standard in subsequent litigation, they have not met their burden
here. Plaintiff has plausibly alleged that the statements at issue were not made in good faith
by contending that Defendants made them despite knowing they were false and for the
purpose of shifting blame. (Id. ¶ 17.) In her Response, Plaintiff also contends that her rescue
“is not and was not [at the time of the statements] under the jurisdiction” of the state agency
in question, (ECF No. 14 at 4), thereby calling into question whether the statements were
made on a proper occasion and to the proper parties only. Construing all allegations at this
stage in favor of the nonmovant, the Court declines to dismiss the claims of slander per se as
they relate to the statements made to local law enforcement and state officials.

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The next statements at issue allegedly occurred at Defendants’ store. Plaintiff alleges
that she overheard Ms. Mapauna, the store manager, refer to her as “bad news” and a person
who “should be avoided at all costs.” (ECF No. 6 ¶ 15.) Further, Plaintiff contends that Ms.
Mapauna “also stated that she’d heard ‘more charges were coming’” against Plaintiff or her
rescue. (Id.) With regards to the statements that Plaintiff was “bad news” and should be
avoided, such assertions reflect the speaker’s opinion and therefore, as discussed above,
cannot be the basis for a defamation claim. Further, to the extent that Ms. Mapauna stated
that she had “heard ‘more charges were coming,’” Plaintiff does not dispute the truth of this
statement and acknowledges that she was “upset to hear that the manager knew of the
charges.” (Id.) Defendants are correct to point out that, under North Carolina law, “[t]he
truth of an allegedly defamatory statement is a complete defense to an action for defamation.”
Demarco v. Charlotte-Mecklenburg Hosp. Auth., 836 S.E.2d 322, 329 (N.C. Ct. App. 2019) (citation
omitted). Accordingly, the Court finds that Plaintiff has not alleged sufficient facts to survive
a motion to dismiss based on these statements.
Finally, Plaintiff alleges that Defendants’ employees made “knowingly false and
malicious statements to the general public accusing the Plaintiff and rescue of animal cruelty
towards the animals in Petsense management’s care.” (ECF No. 6 ¶ 16.) Defendants argue,
however, that these alleged statements lack the specificity required to survive a motion to
dismiss. (ECF No. 10 at 13–14.) The Court agrees. As noted above, a claim is sufficient
under Rule 8(a)(2) only when it “gives the defendant fair notice of what the claim is and the
grounds upon which it rests.” Twombly, 550 U.S. at 555 (quoting Conley, 355 U.S. at 47). These
contentions fail to specify to whom such comments were allegedly made, the contextual nature

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of such comments, what grounds Plaintiff has for her belief that these interactions occurred,
and how these statements could plausibly be said to have occurred in the furtherance of
Defendants’ interests.

Accordingly, the Court concludes that Plaintiff has not alleged

sufficient facts to state a claim for defamation with regards to these statements.
Therefore, the Court enters the following:
ORDER
IT IS THEREFORE ORDERED that Defendants’ Motion to Dismiss, (ECF No. 9),
is GRANTED IN PART AND DENIED IN PART as follows:
A.

The motion is GRANTED with respect to Plaintiff’s claims for libel;

B.

The motion is further GRANTED with respect to Plaintiff’s claims for slander

to the extent that they rely on the aforementioned statements of opinion, accurate factual
assertions, and vague statements to the “general public” discussed above; and
C.

The motion is DENIED with respect to Plaintiff’s claims for slander per se to

the extent that Plaintiff bases her claims on Defendants’ employees’ interactions with state
and local officials.
This, the 31st day of March 2021.
/s/ Loretta C. Biggs
United States District Judge

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