TIVERSA HOLDING CORP. et al v. LABMD, INC. et al

Filing 52

MEMORANDUM ORDER indicating that, for reasons stated more fully within, Defendants' Motion to Dismiss 36 Plaintiffs' First Amended Complaint 31 is denied. An appropriate Order follows. Signed by Judge Nora Barry Fischer on 4/21/14. (jg)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF PENNSYLVANIA
TIVERSA HOLDING CORP. and
ROBERT J. BOBACK,
Plaintiffs,
v.
LABMD, INC. and MICHAEL J.
DAUGHERTY,
Defendants.

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Civil Action No. 13-1296
Judge Nora Barry Fischer

MEMORANDUM ORDER
I.

INTRODUCTION
Presently before the Court is the Motion to Dismiss (Docket No. 36) filed by LabMD,

Inc. (“LabMD”) and Michael J. Daugherty (“Daugherty”) (collectively, “Defendants”), pursuant
to Federal Rule of Civil Procedure 12(b)(6) with respect to all claims pled in Tiversa Holding
Corp. (“Tiversa”) and Robert J. Boback’s (“Boback”) (collectively, “Plaintiffs), First Amended
Complaint of December 24, 2013. (Docket No. 31). Plaintiffs plead claims under the laws of
the Commonwealth of Pennsylvania for defamation, slander per se, commercial disparagement,
and trade libel, and seek in excess of $75,000.00 in damages, as well as injunctive relief. (Id.).
This Court exercises subject-matter jurisdiction over Plaintiff’s claims pursuant to 28 U.S.C. §
1332 (diversity). For the following reasons, Defendants’ Motion to Dismiss is DENIED.
II.

PROCEDURAL AND FACTUAL BACKGROUND
Sometime in 2008, Tiversa – a Delaware corporation with its principal place of business

in Pittsburgh, Pennsylvania, and operating as a cyber-intelligence company providing “data
protection and review” for clients – happened upon a file belonging to LabMD (the “File”).

(Docket No. 31 at 1 – 2). Tiversa had been conducting a search of peer-to-peer networks on
behalf of a client, and Tiversa’s search terms resulted in the discovery of the File on a computer
in San Diego, California. (Id. at 2). The File was comprised of approximately 1,718 pages of
“healthcare patient social security numbers, insurance information, and treatment codes.” (Id.).
The File was entitled “Insurance Aging” and was located on computers in Arizona, Costa Rica,
and London. (Id. at 3).
Tiversa identified LabMD as the source of the File. At that time, LabMD was a Georgia
corporation, with its principal place of business in Atlanta, Georgia. (Docket No. 37 at 10). It
functioned as a cancer detection facility performing testing and diagnostic services for urologists
in several states. (Id.). Tiversa concluded that LabMD inadvertently shared the File via a peerto-peer file-sharing program downloaded onto a LabMD computer. (Docket No. 31 at 3).
Following discovery of the File, and the sensitive information contained therein, Mr. Boback
contacted LabMD, and provided LabMD with a copy of the File. (Docket No. 31 at 3). Mr.
Boback offered Tiversa’s services to LabMD, as well. (Id. at 3). LabMD requested a quote for
the cost of Tiversa’s services, but ultimately declined to engage Tiversa. (Id.). No further
communications ensued. (Id.).
As a part of investigations into security breaches resulting from the use of peer-to-peer
networks, the Federal Trade Commission (“FTC”) “visited Tiversa, and attempted to obtain any
and all non-redacted files which contained more than 100 Social Security Numbers.” (Id. at 4).
Tiversa did not turn over the File. (Id.). An entity identified as the “Privacy Institute” received a
copy of the File.1 (Id.). A civil investigative demand (“CID”) was subsequently issued by the

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The First Amended Complaint appears to implicate, but does not explicitly state, that the Privacy Institute
was a recipient of the File. (Docket No. 31 at 4). The First Amended Complaint additionally fails to indicate under
what circumstances the Privacy Institute came into possession of the File, how the Privacy Institute was related to
Plaintiffs, what was the function of the Privacy Institute, or why the FTC requested the File from the Privacy

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FTC to the Privacy Institute, and on August 18, 2009, the Privacy Institute provided the File to
the FTC.2 (Id.). Following an investigation into LabMD, on or about August 29, 2013 the FTC
filed an administrative complaint against the company for failure to use reasonable measures to
protect the security of sensitive consumer data (i.e. the File). (Docket No. 31 at 4).
On September 24, 2013, Mr. Dougherty authored “The Devil Inside the Beltway” (the
“Book”). (Id.). The Book was marketed as a “Shocking Expose of the US Government’s
Surveillance and Overreach into Cybersecurity, Medicine and Small Business.” (Docket No. 31
at 4 – 5). As part of his promotional effort for the book, Mr. Dougherty created a website that
included a video “trailer” including commentary on Tiversa’s interaction with LabMD with
respect to the File. (Id. at 5). Among other things, the video included allegations that Tiversa
was part of a “Government Funded Data Mining & Surveillance” scheme, engaged in
“Psychological Warfare,” and assisted with “Abusive Government Shakedown[s].” (Id.).
Other promotional material included accusations by Mr. Dougherty that Tiversa’s actions
constituted “property theft,” that Tiversa “came in and affected our network,” and that when
LabMD declined Tiversa’s services, Tiversa gave the File to federal authorities as part of its
“extortion attempt.” (Id. at 5 – 6). Additionally, it was alleged that Tiversa did not find the File
“out in cyberspace,” but “took” LabMD’s property as part of a “government funded study.” (Id.
at 6).
The Book itself continued similar commentary on Tiversa’s conduct towards LabMD.
Mr. Dougherty indicated therein that Mr. Boback was a “con artist,” that LabMD was
Institute. (Id.). In responsive briefing, Plaintiffs indicate that they did turn the File over to the Privacy Institute.
(Docket No. 40 at 8).
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The First Amended Complaint appears to implicate, but does not explicitly state, that the CID request
included the File and that the Privacy Institute thereafter provided the file. (Docket No. 31 at 4). Further, the First
Amended Complaint fails to provide the exact nature of the Privacy Institute’s response to the CID, and in what
form it provided the File to the FTC. (Id.). In responsive briefing, Plaintiffs indicate that the Privacy Institute
provided the File to the FTC. (Docket No. 40 at 8).

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“entrapped” by Tiversa’s conduct, that Tiversa’s business was a “shakedown,” that Tiversa
engaged in “questionable practices,” that Tiversa “regularly contacted companies whose file they
had taken in order to solicit business,” that Tiversa’s use of the File constituted “theft,” that
Tiversa “showed our file to Congress,” that Tiversa “took” others’ property, and that Tiversa was
“snooping on the internet for other people’s property or sensitive data.” (Docket No. 31 at 7 –
9).
Mr. Dougherty continued his promotional efforts for the Book following its publication,
and also actively engaged in public commentary regarding his continued ill will towards Tiversa.
His statements were substantially similar to the aforementioned, including statements
characterizing Tiversa’s actions as extortion, collusion in a government conspiracy, and illegal
access of private information. (Id. at 9 – 10). Tiversa twice sent letters to Mr. Dougherty on
November 8, 2012 and October 17, 2013 informing Mr. Dougherty that his statements about
Tiversa were false, damaging, and harmful to Tiversa, and should be halted. (Id. at 11). Neither
Mr. Dougherty nor LabMD responded to the letters. (Id. at 11 – 12).
Plaintiffs thereafter filed a Complaint in this Court on September 5, 2013 against
Defendants. (Docket No. 1). Plaintiff’s First Amended Complaint followed on December 24,
2013, and alleged in Counts I through III that Defendants were liable for damage resulting from:
1. Defamation under 42 PA. CONS. STAT. §§ 8341, et seq;
2. Slander per se under the common law of Pennsylvania; and,
3. Commercial Disparagement/ Trade Libel under the common law of Pennsylvania.
(Docket No. 31 at 16 – 19).
Under Count IV of the First Amended Complaint, Plaintiffs also seek injunctive relief in
addition to monetary damages. (Id. at 19 – 20). In response, Defendants filed a Motion to

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Dismiss on January 21, 2014, with an accompanying brief. (Docket Nos. 36, 37). Plaintiffs filed
a Brief in Opposition on February 11, 2014. (Docket No. 40). A Reply Brief was filed by
Defendants on February 25, 2014. (Docket No. 41). Supplemental briefs were filed by Plaintiffs
and Defendants, respectively, on March 24 and 26, 2014. (Docket Nos. 48, 51). The matter is
now fully briefed and ripe for disposition.
III.

STANDARD OF REVIEW
Federal Rule of Civil Procedure 8(a)(2) requires that a complaint contain a short and

plain statement of a claim, and show that the pleader is entitled to relief. Dismissal of a
complaint or portion of a complaint is warranted under Federal Rule of Civil Procedure 12(b)(6)
when a claimant fails to sufficiently state a claim upon which relief can be granted. Avoiding
dismissal under Rule 12(b)(6) requires a pleading party’s complaint to provide “enough factual
matter” to allow the case to move beyond the pleading stage of litigation; the pleader must
“‘nudge his or her claims across the line from conceivable to plausible.’” Phillips v. County of
Allegheny, 515 F. 3d 224, 234 – 35 (3d Cir. 2008) (quoting Bell Atlantic Co. v. Twombly, 550
U.S. 544, 556, 570 (2007)).
In assessing the merits of a claim subject to a motion to dismiss, a court must engage in a
two-part analysis. Fowler v. UPMC Shadyside, 578 F. 3d 203, 210 – 11 (3d Cir. 2009). First,
factual and legal elements of a claim must be distinguished. Id. Second, it must be determined
whether the facts as alleged support a “plausible claim for relief.” Id. In making the latter
determination, the court must be mindful that the matter pleaded need not include “detailed
factual allegations,” Phillips, 515 F. 3d at 231 (quoting Twombly, 550 U.S. at 555), and the court
must construe all alleged facts, and draw all inferences gleaned therefrom, in the light most
favorable to the non-moving party. Id. at 228 (citing Worldcom, Inc. v. Graphnet, Inc., 343 F. 3d

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651, 653 (3d Cir. 2003)). Moreover, a pleading party need only “put forth allegations that ‘raise
a reasonable expectation that discovery will reveal evidence of the necessary element[s].’”
Fowler, 578 F. 3d at 213 (quoting Graff v. Subbiah Cardiology Associates, Ltd., 2008 WL
2312671 (W.D. Pa. June 4, 2008)). A well-pleaded complaint, even when “it strikes a savvy
judge that actual proof of . . . facts is improbable,” will not be dismissed as long as the pleader
demonstrates that his or her claim is plausible. Phillips, 515 F. 3d at 234 (quoting Twombly, 550
U.S. at 555 – 56).
Nevertheless, the facts provided do need to raise the expectation of relief above a purely
speculative level, and must include more than “labels and conclusions, and a formulaic recitation
of the elements of a cause of action.” Phillips, 515 F. 3d at 231 – 32 (quoting Twombly, 550
U.S. at 554 – 56). Rule 8(a)(2) “requires a ‘showing’ rather than a blanket assertion of an
entitlement to relief.” Id. at 232. “[T]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Fowler, 578 F. 3d at 211 (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)).
IV.

DISCUSSION
In the present Motion to Dismiss3 proceedings, Defendants argue that Counts I through

III of Plaintiffs’ First Amended Complaint should be dismissed in accordance with Rule 12(b)(6)
of the Federal Rules of Civil procedure because the facts as pled by Plaintiffs do not show an
entitlement to relief under the relevant laws. (Docket No. 37 at 28 – 38). Further, Plaintiffs’
request for an injunction at Count IV should be dismissed because such an award would be an
unconstitutional prior restraint on speech in violation of the First Amendment to the Constitution

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Although Defendants attack the propriety of this Court’s exercise of personal jurisdiction, as well as the
propriety of the Western District of Pennsylvania as the venue for the current action in the Motion to Dismiss, such
arguments under Rules 12(b)(2) and (3) of the Federal Rules of Civil procedure are subsequently withdrawn in
Defendants’ Reply Brief (Docket No. 42 at 10), and will not, therefore, be addressed by the Court in this Opinion.

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of the United States. (Docket No. 37 at 38 – 40). Plaintiffs respond by asserting that they have
provided adequate factual information to create a plausible entitlement to relief, and moreover
that the request for an injunction in this case would not constitute a prior restraint on free speech.
(Docket No. 40 at 17 – 30).
A. Capable of Defamatory Meaning
Defamation under the law of the Commonwealth of Pennsylvania requires Plaintiffs to
make specific showings. To this end, Plaintiffs must make a prima facie demonstration of: (1)
the defamatory character of the communication; (2) its publication by the defendant; (3) its
application to the plaintiff; (4) the understanding by the recipient of its defamatory meaning; and,
(5) the understanding by the recipient of it as intended to be applied to the plaintiff. Graboff v.
Colleran Firm, -- F. 3d --, 2014 WL 642951 at *4 (3d Cir. Feb. 20, 2014) (quoting Tucker v.
Fischbein, 237 F. 3d 275, 281 (3d Cir. 2001); 42 PA. CONS. STAT. § 8343(a)). Defendants first
contest Plaintiffs’ prima facie showing, at Count I, of the defamatory character of Mr.
Dougherty’s communications relative to Tiversa’s interactions with LabMD. (Docket No. 37 at
28 – 32).
As an initial matter, it is for the trial court to determine whether a statement is capable of
defamatory meaning. Graboff, 2014 WL 642951 at *4 (citing Thomas Merton Ctr. v. Rockwell
Int’l Corp., 442 A. 2d 213, 215 – 16 (Pa. 1981)). See also Burton v. Teleflex, Inc., 707 F. 3d
417, 434 (3d Cir. 2013) (“threshold issue”). A statement may properly be considered defamatory
if it “tends so to harm the reputation of another as to lower him in the estimation of the
community or to deter third persons from associating or dealing with him.” Graboff, 2014 WL
642951 at *4 (quoting Tucker, 237 F. 3d at 282). A statement may not be defamatory, however,

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if certain conditions are demonstrated by a defendant.

Defendants argue that two such

conditions exist. (Docket No. 37 at 28 – 32).
First, a statement may not be actionable when a defendant shows that it was purely
opinion. Green v. Mizner, 692 A. 2d 169, 174 (Pa. Super. Ct. 1997) (“[S]tatements of opinion,
without more, are not actionable.”). Yet, even opinions may constitute defamation if “reasonably
understood to imply the existence of undisclosed defamatory facts.” Id. Further explaining this
principle, the court in Mizner quoted the Restatement (Second) of Torts § 566 – adopted by
Pennsylvania courts – as follows:
A simple expression of opinion based on disclosed or assumed nondefamatory
facts is not itself sufficient for an action of defamation, no matter how unjustified
and unreasonable the opinion may be or how derogatory it is. But an expression
of opinion that is not based on disclosed or assumed facts and therefore implies
that there are undisclosed facts on which the opinion is based, is treated
differently. The difference lies in the effect upon the recipient of the
communication. In the first case, the communication itself indicates to him that
there is no defamatory factual statement. In the second, it does not, and if the
recipient draws the reasonable conclusion that the derogatory opinion expressed
in the comment must have been based on undisclosed defamatory facts, the
defendant is subject to liability.
Mizner, 692 A. 2d at 174 (quoting Restatement (Second) of Torts § 566, comment (c)).
Additionally, where a plausible defamatory interpretation of a statement co-exists with a
plausible non-defamatory interpretation, the issue must be resolved by a jury. Id.
In Mizner, the Pennsylvania Superior Court found that an alleged statement of opinion
was capable of defamatory meaning, because a reader could reasonably infer the existence of
undisclosed facts. Mizner, 692 A. 2d at 175. In Mizner, the defendant stated that the plaintiff
city councilman spent public funds “illegally,” and “unilaterally and without knowledge of the
other members of City Council,” in violation of state law. Id. These statements were considered
capable of defamatory meaning. Id. However, as has been pointed out by the Pennsylvania

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Supreme Court, simply using a term such as “blackmail,” which might imply some degree of
criminal behavior, is not itself necessarily adequate to impart upon a statement a defamatory
character.

Rush v. Philadelphia Newspapers, Inc., 732 A. 2d 648, 653 (Pa. 1999) (citing

Greenbelt Coop. Publ’g Assn., Inc. v. Bresler, 398 U.S. 6, 13 – 14 (1970)). Nonetheless, words
and phrases must be given the “significance that other people are likely to attribute to them.”
Krajewski v. Gusoff, 53 A. 3d 793, 802 (Pa. Super. Ct. 2012); Davis v. Resources for Human
Development, Inc., 770 A. 2d 353, 357 (Pa. Super. Ct. 2001) (finding capable of defamatory
meaning a letter written to a former member of a volunteer board which included the statement
that the plaintiff would be sent a “bill for the items that were missing out of [her hotel] room,”
which could reasonably be interpreted as implying the plaintiff had committed theft.).
Here, Plaintiffs put forth numerous examples of allegedly defamatory statements made by
Mr. Dougherty. The statements range from mere insults to accusations of criminal activity.
Defendants argue that these statements by Mr. Dougherty – when viewed in the context in which
the statements were made – could not be susceptible to any interpretation other than that of
opinion and hyperbole. (Docket Nos. 37, 42). Based upon the facts as pled by Plaintiffs in their
First Amended Complaint, the Court however finds multiple statements capable of defamatory
meaning.
Tiversa, a company providing data protection and review services, and styling itself as a
cyber-intelligence company, is accused of using proprietary software to illegally search private
files and use said files to extort other companies into engaging Tiversa’s services. (Docket No.
31 at ¶¶ 27-35). Tiversa is also accused of collusion in government shakedowns involving the
FTC. (Id. at ¶¶ 29, 33). Given Tiversa’s line of business, it is undisputable that such statements,
as pled by Plaintiffs, could clearly damage Tiversa’s reputation and motivate current and/or

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potential clients to avoid interacting with Plaintiffs.

See Krajewski, 53 A. 3d at 805 (“A

communication is also defamatory if it ascribes to another conduct, character or a condition that
would adversely affect his fitness for the proper conduct of his proper business, trade or
profession.”). Defendants’ arguments notwithstanding, the statements appearing in the Book and
other promotional materials disseminated publicly by Mr. Dougherty could reasonably be
interpreted by an audience – anyone listening to the radio, using the internet, or purchasing
books – that Plaintiffs were secretly stealing files from otherwise uncompromised private
networks to illegally force private entities to purchase unnecessary services in return for not
being reported to federal authorities.

As the Court must accept all factual statements in

Plaintiffs’ First Amended Complaint as true, Revell v. Port Auth. of New York, New Jersey, 598
F. 3d 128, 134 (3d Cir. 2010) (citing Gross v. German Found. Indus. Initiative, 549 F. 3d 605,
610 (3d Cir. 2008)), the Court can conclude nothing other than that many of Defendants’
statements went beyond mere opinion.
Second, defamation will not lie when statements made by a defendant were “substantially
true.” Graboff, 2014 WL 642951 at *4 (citing 42 PA. CONS. STAT. § 8343(b)(1); Dunlap v.
Philadelphia Newspapers, Inc., 448 A. 2d 6, 15 (Pa. Super. Ct. 1982)). In order to determine
truthfulness, the alleged defamatory statement must be “viewed in context,” because the fact that
a statement may be “literally accurate” will not save a defendant where “the implication of the
communication as a whole was false.” Id. (citing Baker v. Lafayette College, 532 A. 2d 399, 402
(Pa. 1987); Dunlap, 448 A. 2d at 15). The Court must consider the effect of a publication, in its
entirety, upon the minds of its audience. Green v. Mizner, 692 A. 2d at 172.
In the present case, the Court notes that Plaintiffs’ First Amended Complaint indicates
that the File was not found intentionally, but inadvertently while serving a client; Plaintiffs did,

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in fact, provide a copy of the File to Defendants when offering services; the File was not taken
from Defendants’ network, but was publicly available on other computers on a peer-to-peer
network; and, the File was not provided to the FTC by Plaintiffs, but by another party. (Docket
No. 31 at ¶¶ 11-26). Without rehashing all of the statements made by Mr. Dougherty in the
Book and in publicly disseminated promotional materials, and accepting all factual allegations
by Plaintiffs as true, in this Court’s mind, Plaintiffs have adequately averred that the statements
made by Mr. Dougherty were false. (Id. at ¶¶ 11-43). As such, and in light of the Court’s
finding that many of Mr. Dougherty’s statements went beyond mere opinions, the Court finds
that the Book and Mr. Dougherty’s public statements promoting same were sufficiently capable
of defamatory meaning.
B. Actual Malice
Defendants next argue that Plaintiffs were public figures, and failed to provide evidence
of “actual malice,” as required by law to support claims under Counts I through III of the First
Amended Complaint. (Docket No. 37 at 32 – 38). When a plaintiff is considered to be a “public
figure” for purposes of defamation actions, the plaintiff must demonstrate that an offending
statement was made with actual malice – “with knowledge that [the statement] was false or with
reckless disregard of whether it was false or not.” Lewis v. Philadelphia Newspapers, Inc., 833
A. 2d 185, 191 (Pa. Super. Ct. 2003) (quoting Curran v. Philadelphia Newspapers, Inc., 546 A.
2d 639, 642 (Pa. Super. Ct. 1988); New York Times Co. v. Sullivan, 376 U.S. 254, 279 – 80
(1964)). Negligence is not enough. Blackwell v. Eskin, 916 A. 2d 1123, 1125 (Pa. Super. Ct.
2007). Additionally, falsity and/or ill-will, while probative, are not necessarily sufficient to
establish actual malice. Lewis, 833 A. 2d at 192. The actual malice standard allows for the

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protection of robust public debate which includes “imaginative expression” and “rhetorical
hyperbole.” Id. at 191.
It is the Court’s responsibility to determine whether actual malice has been illustrated
with clear and convincing evidence. Id. at 192 (citing Sprague v. Walter, 656 A. 2d 890, 904
(Pa. Super. Ct. 1995)). “Moreover, evidence adduced is not adjudged by an objective standard;
rather, ‘actual malice’ must be proven applying a subjective standard by evidence ‘that the
defendant in fact entertained serious doubts as to the truth of his publication.’” Id. (citing
Curran, 546 A. 2d at 642). Actual malice may be shown by circumstantial evidence, but the
evidence must “tend to establish fabrication, or at least that the publisher had ‘obvious reasons to
doubt the veracity’” of his statements or the bases thereof. Lewis, 833 A. 2d at 192 (citing
Sprague, 656 A. 2d at 904). Recklessness “in the context of actual malice is not easily shown,”
Blackwell, 916 A. 2d at 1125, and “it will be a rare circumstance that a plaintiff will be
successful in proving awareness of falsehood from the mouth of the defendant.” Franklin
Prescriptions, Inc. v. The New York Times Co., 267 F. Supp. 2d 425, 438 (E.D. Pa. 2003). As
such, “objective circumstantial evidence can suffice to demonstrate actual malice.” Id. (quoting
Shiavone Constr. Co. v. Time, Inc., 847 F. 2d 1069, 1089 – 90 (3d Cir. 1988)). Neither can one
“escape liability by testifying that he published the article with a belief that the statements were
true.” Franklin Prescriptions, 267 F. Supp. 2d at 438 (citing Shiavone, 847 F. 2d at 1089 – 90).
While the Court reserves judgment with respect to Plaintiffs’ status as public figures prior
to discovery, the Court notes that even if Plaintiffs were public figures for purposes of this
action, actual malice is adequately pled in the First Amended Complaint. (Docket No. 31 at ¶¶
64-81). To this end, Plaintiffs allege that Defendants received direct notices from Plaintiffs both
before and after publication of the Book which advised that Mr. Dougherty was spreading false

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information about the nature of Plaintiffs’ work and their interactions with LabMD. (Docket No.
31 at ¶¶ 36-43). These letters went without response, and Mr. Dougherty did not change the
nature or content of his publications. (Id.). Plaintiffs also averred that Mr. Dougherty, having
personally interacted with Plaintiffs, was well aware of the facts and consciously disregarded
such in the Book and his promotional efforts. (Id. at ¶¶ 16-19). Given the Court’s duty to accept
all of Plaintiffs’ factual allegations as true and to draw all inferences therefrom in Plaintiffs’
favor, the Court is satisfied at this stage in the litigation that Plaintiffs have met their burden of
pleading actual malice.
C. Injunctive Relief
Defendants lastly argue that Count IV of the First Amended Complaint should be
dismissed. Defendants contend that the injunction sought by Plaintiffs would constitute an
impermissible prior restraint on free speech and that any such injunctive relief potentially
awarded in this case would not be upheld even if it is determined that Defendants defamed
Plaintiffs. (Docket No. 37 at 38-40). On this point, the parties debate the applicability of a
number of judicial decisions to analyze if the possible award of injunctive relief in the present
factual situation would be unconstitutional. (Docket Nos. 37, 40, 42). Nevertheless, the Court
need not decide this dispute at the Motion to Dismiss stage, because the issuance of any
injunction as a potential remedy is contingent upon the ultimate success of Plaintiffs’ defamation
claims. Accordingly, Defendants’ Motion to Dismiss Count IV is denied, without prejudice.
V.

CONCLUSION
Based upon the foregoing, accepting all factual allegations by Plaintiffs as true, and

drawing all inferences therefrom in favor of Plaintiffs as the non-moving party, the Court finds
that Plaintiffs have pled sufficient facts to demonstrate a plausible right to recovery against

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Defendants for defamation. Accordingly, Defendants’ Motion to Dismiss (Docket No. 36)
Plaintiffs’ First Amended Complaint (Docket No. 31) is denied. An appropriate Order follows.

s/ Nora Barry Fischer
Nora Barry Fischer
United States District Judge
Dated: April 21, 2014
cc/ecf: All counsel of record.

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