Bassford v. Bassford

Filing 16

ORDER granting in part and denying in part 8 Motion to Dismiss for Failure to State a Claim. Signed by Honorable David C Norton on November 17, 2021. (acho, )

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF SOUTH CAROLINA
BEAUFORT DIVISION
PATRICIA BASSFORD,

)
)
Plaintiff,
)
)
vs.
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SCOTT BASSFORD,
)
)
Defendant.
)
_______________________________________)

No. 9:21-cv-02351-DCN
ORDER

The following matter is before the court on defendant Scott Bassford’s
(“defendant”) motion to dismiss for failure to state a claim, ECF No. 8. For the reasons
set forth below, the court grants in part and denies in part the motion.
I. BACKGROUND
This case arises out of a dispute over the handling and disposition of the estate of
Steven Bassford (the “decedent”). Sometime before 2018, the decedent opened a joint
checking account with his son, defendant, at the SunTrust Bank (“SunTrust”) in Hilton
Head, South Carolina. On November 7, 2018, the decedent married plaintiff Patricia
Bassford (“plaintiff”). In February 2019, the decedent asked defendant to sign a form
agreeing to remove defendant as a joint owner of the SunTrust checking account.
Defendant executed the form, and the decedent made plaintiff a joint owner of the same
account in defendant’s stead.
The decedent died on or around February 20, 2021. Prior to his death, the
decedent had made plaintiff the sole beneficiary of his estate and investment accounts.
Additional lawsuits related to the estate and investment accounts were filed separately
and are currently pending before the court. See Raymond James & Assocs., Inc. v.
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Bassford, No. 9:21-cv-01825-DCN (D.S.C. 2021); Bassford v. Bassford, No. 9:21-cv02955-DCN (D.S.C. 2021). Following the decedent’s death, defendant allegedly
“became angry and resentful at Patricia” when he learned of his father’s decision. ECF
No. 1, Compl. ¶ 14. In late June 2021, about four months after the decedent’s death,
plaintiff alleges that defendant “falsely communicated to SunTrust Bank that Patricia
‘misappropriated funds in the SunTrust Checking account that belonged to Steven
Bassford [the decedent].’” Id. ¶ 15.
Without notifying plaintiff, SunTrust subsequently put a freeze on plaintiff’s
account, which prevented plaintiff from accessing the funds in the account or from
cashing a check. When plaintiff entered SunTrust to cash a check, bank employees
denied her request and informed her about the frozen account. SunTrust continued to
maintain the freeze on Patricia’s account, and it ultimately closed the account sometime
later.
On July 29, 2021, plaintiff filed the instant lawsuit against defendant in this court,
alleging defamation and negligence. Compl. On September 15, 2021, defendant filed his
motion to dismiss for failure to state a claim. ECF No. 8. Plaintiff responded in
opposition on September 27, 2021, ECF No. 11, and defendant replied on September 30,
2021, ECF No. 13. As such, the motion has been fully briefed and is now ripe for
review.
II. STANDARD
A. Motion to Dismiss
A Rule 12(b)(6) motion for failure to state a claim upon which relief can be
granted “challenges the legal sufficiency of a complaint.” Francis v. Giacomelli, 588

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F.3d 186, 192 (4th Cir. 2009) (citations omitted); see also Republican Party of N.C. v.
Martin, 980 F.2d 943, 952 (4th Cir. 1992) (“A motion to dismiss under Rule 12(b)(6) . . .
does not resolve contests surrounding the facts, the merits of a claim, or the applicability
of defenses.”). To be legally sufficient, a pleading must contain a “short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). A Rule 12(b)(6) motion should not be granted unless it appears certain that the
plaintiff can prove no set of facts that would support his claim and would entitle him to
relief. Mylan Labs., Inc. v. Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). When
considering a Rule 12(b)(6) motion, the court should accept all well-pleaded allegations
as true and should view the complaint in a light most favorable to the plaintiff.
Ostrzenski v. Seigel, 177 F.3d 245, 251 (4th Cir.1999); Mylan Labs., Inc., 7 F.3d at 1134.
“To survive a 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 Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Id.
III. DISCUSSION
Plaintiff raises two causes of action in her complaint: (1) defamation and (2)
negligence. Defendant moves to dismiss both causes of action for failure to state a claim.
The court addresses each in turn, finding that plaintiff has plausibly alleged defamation
but that her negligence claim is legally deficient.

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A. Defamation
In resolving the instant motion to dismiss, the court must consider whether
plaintiff has sufficiently alleged facts upon which she could sustain a successful
defamation action. This analysis requires balancing principles from both South Carolina
common law and the United States Constitution. Even if plaintiff has sufficiently alleged
the elements of a defamation cause of action under South Carolina law, her claims may
still be thwarted by First Amendment protections for certain kinds of speech. The court
considers each area of law in turn.
1. South Carolina Common Law Defamation
Defamation claims can be brought for either libel or slander. Parrish v. Allison,
656 S.E.2d 382, 388 (S.C. Ct. App. 2007). “Libel is the publication of defamatory
material by written or printed words,” while slander is “spoken defamation.” Id. To
bring a successful claim for defamation, a plaintiff must prove: “(1) a false and
defamatory statement was made; (2) the unprivileged publication of the statement was
made to a third party; (3) the publisher was at fault; and (4) either actionability of the
statement regardless of special harm or the publication of the statement caused special
harm.” Kunst v. Loree, 817 S.E.2d 295, 302 (S.C. Ct. App. 2018), reh’g denied (Aug.
16, 2018).
Plaintiff alleges that “Defendant falsely communicated to SunTrust Bank that
Patricia ‘misappropriated funds in the SunTrust checking account that belonged to Steven
Bassford.’” Compl. ¶ 15. Defendant responds that plaintiff “failed to plead the required
facts to properly state a claim for defamation.” ECF No. 8 at 5. The court disagrees,
finding that each element of defamation has been sufficiently pled.

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a. False and Defamatory Statement
Regarding the first element, “[u]nder common law, a defamatory communication
was presumed to be false, but truth could be asserted as an affirmative defense.” Parrish
v. Allison, 656 S.E.2d 382, 391 (S.C. Ct. App. 2007) (citing Beckham v. Sun News, 344
S.E.2d 603, 604 (S.C. 1986)). If there is a dispute regarding the truth of the defamatory
statement, it is a question for the jury to determine. Weir v. Citicorp Nat’l Servs., Inc.,
435 S.E.2d 864, 867 (S.C. 1993). Additionally, “[t]he publication of a statement is
defamatory if it tends 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.”
Fleming v. Rose, 567 S.E.2d 857, 860 (2002). The court finds that both components are
satisfied here. Since an allegedly defamatory communication is presumed false, the court
must presume that plaintiff did not misappropriate funds in the decedent’s account. In
any case, plaintiff alleges in the complaint that defendant’s statement was “falsely
communicated” to SuntTrust, Compl. ¶ 15, and the court must view the facts in a light
most favorable to the plaintiff on a motion to dismiss. Plaintiff also alleges that the
statements harmed her reputation and deterred third persons from dealing with her based
on the alleged fact that SunTrust froze her checking account as a direct consequence of
defendant’s statement. Thus, the court finds that plaintiff has sufficiently alleged that
defendant made a false and defamatory statement.
b. Unprivileged Publication to a Third Party
On the second element, defendant argues that plaintiff does not identify the
person to whom defendant allegedly made the statement but only alleges that the
statement was directed “to SunTrust Bank.” ECF No. 8 at 6. Defendant further accuses

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plaintiff of failing to identify any particular person by name or description “because she
cannot.” Id. (emphasis in original). To be sure, though naming the SunTrust employee
who received the allegedly defamatory statement would certainly have been preferable,
the complaint has alleged sufficient factual matter to survive a motion to dismiss.
Plaintiff’s allegations that defendant made the statement in late June 2021 and directed it
to SunTrust already distinguishes this case from those cited by defendant. In those cases,
the courts dismissed the defamation claims because they were not made to any
discernible individual, but rather were made to the general public. See Campbell v. Int’l
Paper Co., 2013 WL 1874850, at *4 (D.S.C. May 3, 2013) (dismissing defamation claim
where statement was simply alleged to have been made “publicly known”); Odom v.
CVS Caremark Corp., 2014 WL 7733823, at *4 (D.S.C. Dec. 12, 2014) (same, for
alleged statement that was published “to Plaintiff’s coworkers, DHEC, and the public at
large”); Colleton v. Charleston Water Sys., 225 F. Supp. 3d 362, 369 (D.S.C. 2016)
(same, for allegation that the speaker “was heard” when he made the statement); McNeil
v. S.C. Dep’t of Corr., 743 S.E.2d 843, 848 (S.C. Ct. App. 2013) (affirming lower court
dismissal of defamation claim where the plaintiff “pled [the defendant] made and
published statements that insinuated she was unfit in her business and profession”).
Here, the court can reasonably infer from the complaint that plaintiff is alleging that
defendant made the statements to a certain SunTrust employee. Defendant further argues
that to demonstrate publication to a third party, plaintiff must plead facts that include
“‘the time, place, content and listener of the alleged defamatory matter.’” ECF No. 8 at 5
(quoting Campbell, 2013 WL 1874850, at *3). However, defendant overlooks that the
Campbell court was quoting dicta and did not itself hold that a plaintiff is required to

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prove each of those elements in order to plead defamation. Campbell, 2013 WL
1874850, at *3. The court finds that there is no requirement that plaintiff specify the
precise individuals who heard the allegedly defamatory statement in her complaint. See
Butler v. Pennington, 2016 WL 7443257, at *6 (D.S.C. Nov. 28, 2016) (finding the
defendant in a counterclaim satisfactorily alleged that the plaintiff made defamatory
statements to “the press and to professional colleagues both inside and outside of the
Public Defender’s office”). Based on the facts asserted in the complaint, defendant is on
notice of what statement he is alleged to have made and that it was made to an employee
of SunTrust. Thus, plaintiff has alleged publication to a third party for purposes of this
motion to dismiss.
c. Fault
The complaint alleges that the defamatory statement was made by defendant, and
therefore, it sufficiently alleges that defendant is at fault for publishing the statement.
d. Actionability or Special Harm
Under the fourth element, a plaintiff must either prove that she suffered special
harm from the allegedly defamatory statement or demonstrate that the statement is
otherwise actionable. Defendant argues that plaintiff fails to specify whether the alleged
defamation was written or spoken, but the court finds the distinction immaterial for
purposes of this motion to dismiss. If the statement was written, it will generally be
considered actionable per se. See Holtzscheiter v. Thomson Newspapers, Inc., 506
S.E.2d 497, 502 (D.S.C. 1998) (“Essentially, all libel is actionable per se.”). Even if the
statement were spoken, defamation—including slander—is actionable per se when the
statements impute the plaintiff with one of the following acts or characteristics: “(1)

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commission of a crime of moral turpitude; (2) contraction of a loathsome disease; (3)
adultery; (4) unchastity; or (5) unfitness in one's business or profession.” Goodwin v.
Kennedy, 552 S.E.2d 319, 322–23 (S.C. Ct. App. 2001); see Holtzscheiter, 506 S.E.2d at
502. Plaintiff argues that the statement in question concerns the commission of a crime
of moral turpitude, and the court agrees. Misappropriation of funds is fairly characterized
as a crime of moral turpitude. C.f. Bell v. Bank of Abbeville, 38 S.E.2d 641, 644 (S.C.
1946) (recognizing slander was actionable per se because the allegedly slanderous
communication charged the plaintiff with larceny or breach of trust). If a statement is
actionable per se, common law malice and general damages are presumed. Erickson v.
Jones St. Publishers, LLC, 629 S.E.2d 653, 664 (S.C. 2006). Regardless of whether
defendant’s allegedly defamatory statement was libel or slander, as pleaded, it is
actionable per se, and the court finds that plaintiff has sufficiently alleged the final factor
to state a claim for defamation under South Carolina law. Therefore, the court denies the
motion to dismiss on the grounds that plaintiff failed to state a claim for defamation.
2. First Amendment Limitations
Although a plaintiff might be able to prove all of the elements of South Carolina
common law defamation, her claims may still be circumscribed by the First Amendment
protections of free speech. See CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 293
(4th Cir. 2008) (citing Milkovich v. Lorain J. Co., 497 U.S. 1, 20 (1990)) (“The
‘application of the state law of defamation’ is limited, of course, by the First Amendment
to the Constitution of the United States.”). The First Amendment imposes limitations,
which include (1) a higher standard that attaches to statements about public figures or
statements on matters of public concern, and (2) protection for statements that cannot

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reasonably be interpreted as stating actual facts about an individual. See id. Regarding
the first inquiry, here, plaintiff is not alleged to be a public figure. Furthermore, neither
party argues that the allegedly defamatory statement was on a matter of public concern,
nor does the court find that it was. See Kirby v. City of Elizabeth City, 388 F.3d 440,
446 (4th Cir. 2004) (“Speech involves a matter of public concern when it involves an
issue of social, political, or other interest to a community.”). Therefore, the additional
protections afforded to speech concerning either a public figure or a local public concern
do not apply.
The court next considers whether defendant’s allegedly defamatory statement is
unactionable due to its rhetorical or hyperbolic nature, such that it “cannot ‘reasonably
[be] interpreted as stating actual facts about an individual.’” Snyder v. Phelps, 580 F.3d
206, 218 (4th Cir. 2009) (quoting Milkovich, 497 U.S. at 20). This safeguard is
necessary to “provide[] assurance that public debate will not suffer for lack of
‘imaginative expression’ . . . which has traditionally added much to the discourse of our
Nation.” Milkovich, 497 U.S. at 20. The court finds that defendant’s statement, as
alleged in the complaint, that plaintiff “misappropriated funds in the SunTrust Checking
account that belonged to Steven Bassford,” Compl. ¶ 15, is not rhetorical hyperbole
because it could “reasonably be understood to convey a false representation of fact,” Choi
v. Kyu Chul Lee, 312 F. App’x 551, 553 (4th Cir. 2009). Any additional context that
could possibly reflect that the statement was a protected opinion is not properly before
the court on this motion to dismiss.

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Since the court finds no reason that the allegedly defamatory statement, as pled in
the complaint, is protected speech under the First Amendment, the court denies
defendant’s motion to dismiss plaintiff’s defamation cause of action.
B. Negligence
Defendant argues that plaintiff has failed to plead any facts to support a
negligence claim, including the existence of a duty owed by defendant to plaintiff. In
response, plaintiff argues that “a reasonable person has a duty to exercise reasonable care
to refrain from making defamatory statement about another” and that the harm that would
result from “negligently making such defamatory statements” is reasonably foreseeable.
ECF No. 13 at 5. In other words, plaintiff alleges the same facts and issues in the form of
a negligence claim for her second cause of action.
As defendant notes, this court has previously ruled that a “claim that a statement
constitutes libel or slander must be brought in a defamation cause of action, which is
grounded in and affected by both common and constitutional law.” McGlothlin v.
Hennelly, 370 F. Supp. 3d 603, 620 (D.S.C. 2019) (quoting Erickson, 629 S.E.2d at 373–
74). As such, this court in that case dismissed the plaintiff’s negligence cause of action.
Id.; see also Erickson, 629 S.E.2d at 673–74 (affirming dismissal of the plaintiff’s claim
that the defendant was negligent in making a defamatory statement because it would
allow plaintiffs to sneak into the courthouse through the back door when they were
unable to plead the strict elements of defamation through the front door). By plaintiff’s
own admission, plaintiff is alleging that “Defendant was negligent in . . . publishing a
defamatory statement regarding the Plaintiff.” ECF No. 13 at 4. The court sees no

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reason to depart from the court’s prior rulings and dismisses plaintiff’s negligence cause
of action.
IV. CONCLUSION
For the reasons set forth above, the court GRANTS IN PART and DENIES IN
PART the motion to dismiss.
AND IT IS SO ORDERED.

DAVID C. NORTON
UNITED STATES DISTRICT JUDGE
November 17, 2021
Charleston, South Carolina

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