Doe v. Andrews et al

Filing 62

MEMORANDUM OPINION OF THE COURT. Signed by District Judge Todd J. Campbell on 2/17/2016. (DOCKET TEXT SUMMARY ONLY-ATTORNEYS MUST OPEN THE PDF AND READ THE ORDER.)(jw)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF TENNESSEE
NASHVILLE DIVISION
JANE DOE
v.
JOSEPH McGREGOR ANDREWS,
et al.

)
)
) NO. 3-15-1127
) JUDGE CAMPBELL
)
)
MEMORANDUM

Pending before the Court are Plaintiff’s Motion for a More Definitive Statement and Motion
to Dismiss Defendant Andrews’ First Amended Counter-Complaint (Docket No. 47). For the reasons
stated herein, Plaintiff’s Motions are DENIED, with the exception of any claims for “continuing
defamation,” which are dismissed.
INTRODUCTION
This action involves an alleged sexual assault of Plaintiff Jane Doe by Defendant Andrews.
Plaintiff has sued Andrews for false imprisonment, assault, and intentional infliction of emotional
distress. Defendant Andrews has filed a counter-complaint against Plaintiff Doe. His First Amended
Counter-Complaint (Docket No. 46) alleges claims of libel, slander and intentional infliction of
emotional distress against Plaintiff Jane Doe. Defendant contends that Jane Doe has published
statements, verbally and via electronic communication, falsely stating that she was raped by
Defendant Andrews. Defendant avers that not only are these statements false, but also Jane Doe
knew they were false when she made them. Defendant claims that as a result of Jane Doe’s
defamatory statements, he has suffered embarrassment, humiliation, stress, anxiety, damage to his
public reputation for character and his standing in the community, and loss of enjoyment of life.

Defendant also asserts that he has suffered actual damages to his academic career and ultimately his
professional goals.
Plaintiff has moved to dismiss Defendant’s allegations or for a more definitive statement of
the allegations against her. Plaintiff contends that Defendant’s counterclaims are impermissibly
vague. Plaintiff also seeks attorneys’ fees and costs for any alleged defamation claims which
involved statements to law enforcement and statements made in connection with this lawsuit.
MOTIONS TO DISMISS
For purposes of a motion to dismiss, the Court must take all of the factual allegations in the
complaint as true. Ashcroft v. Iqbal, 129 S.Ct. 1937, 1949 (2009). 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. Id. 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. Threadbare recitals of the elements of a cause of action, supported by mere conclusory
statements, do not suffice. Id. When there are well-pleaded factual allegations, a court should
assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.
Id. at 1950. A legal conclusion couched as a factual allegation need not be accepted as true on a
motion to dismiss, nor are recitations of the elements of a cause of action sufficient. Fritz v. Charter
Township of Comstock, 592 F.3d 718, 722 (6th Cir. 2010).
LIBEL AND SLANDER
Under Tennessee law, the tort of defamation encompasses both libel and slander. Brown v.
Christian Brothers Univ., 428 S.W.3d 38, 50 (Tenn. Ct. App. 2013). Slander is spoken defamation,
and libel is written defamation. Id.; Quality Auto Parts Co., Inc. v. Bluff City Buick Co., Inc., 876
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S.W.2d 818, 820 (Tenn. 1994). The basis for an action for defamation, whether it be libel or slander,
is that the defamation has resulted in an injury to the person’s character and reputation. Id.
To establish a prima facie case of defamation, a person must prove that: (1) a party published
a statement; (2) with knowledge that the statement was false and defaming to the other; or (3) with
reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth
of the statement. Brown, 428 S.W.3d at 50. Publication means the communication of the defamatory
matter to a third person. Id. To be actionable, the alleged defamatory statement must constitute a
serious threat to the plaintiff’s reputation. Id. It is reputation which is defamed, reputation which
is injured, and reputation which is protected by the law of defamation. Id.
Plaintiff argues that the First Amended Counter-Complaint fails to provide Plaintiff sufficient
notice of each of the defamatory statements for which Defendant seeks to hold Plaintiff liable. The
content or substance of the alleged defamatory statements is simple and clear: that Defendant
Andrews raped Plaintiff. Defendant has sufficiently alleged the substance of the challenged
statements for purposes of a Motion to Dismiss.
Plaintiff contends that the recipients of the alleged defamatory statements are not clearly
identified. The Counter-Complaint identifies Hailey Smith, Kayleigh Palmisano, and Katharine
Burch as specific persons to whom Jane Doe “published” the false statements. Defendant Andrews
also alleges that Plaintiff made these statements to other, unidentified persons. For purposes of a
Motion to Dismiss, Defendant has sufficiently alleged to whom the alleged defamatory statements
were made. Pretrial discovery may or may not reveal the identities of more recipients, but the
allegations are sufficient at this stage of the litigation.

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Plaintiff maintains that Defendant has pleaded the timing of the allegedly defamatory
statements in a vague and unfair manner, precluding Plaintiff and the Court from gleaning whether
the slander claims are barred by the six-month statute of limitations. Plaintiff contends that the openended time frame of Defendant’s allegations leaves the door open for Defendant to expand or shift
the scope of his defamation claims. Defendant has asserted that Plaintiff has made defamatory
statements since April of 2015.
The Court knows of no requirement that a plaintiff (in this case, Defendant Andrews) plead
that the alleged actions occurred within the statute of limitations; statute of limitations is a defense,
involving facts and often raised at the summary judgment stage. Given the liberal pleading
requirements of Fed. R. Civ. P. 8 and the opportunity for extensive pretrial discovery, the Court finds
that the First Amended Counter-Complaint adequately alleges when the statements were made for
purposes of a Motion to Dismiss.
Next, Plaintiff argues that Defendant’s publication allegations are impermissibly tentative.
The Counter-Complaint alleges that the slanderous statements were made to at least three individuals
and the libelous statements were made “via electronic communication” and “presumably via text
message or other written communication.” Under the above standards for ruling on a Motion to
Dismiss, the Court finds that these allegations have facial plausibility and could give rise to an
entitlement to relief.
Plaintiff also contends that Defendant has pled no claim of damages resulting from the
alleged statements. As noted above, for defamation claims, it is reputation which is defamed,
reputation which is injured, and reputation which is protected by the law of defamation. The First
Amended Counter-Complaint alleges that Plaintiff’s defamation has resulted in, among other things,
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damage to Defendant’s public reputation for character and standing in the community. This alleged
defamation, if true, could constitute a serious threat to Defendant’s reputation. These allegations are
sufficient at this stage of the litigation.
Plaintiff argues that any defamation could not have caused damages to Defendant’s academic
career, but that argument concerning causation is for summary judgment or trial, not for a Motion
to Dismiss, where the Court must accept all the allegations of the Counter-Complaint to be true. The
damages and causal connection alleged are sufficient to survive a Motion to Dismiss. Plaintiff will
have the opportunity to depose Defendant Andrews and/or send written discovery to challenge these,
and other, allegations as the litigation proceeds.
Plaintiff asserts that any claims of “continuing defamation” should be dismissed. To the
extent Defendant has alleged continuing defamation, those claims are not recognized by Tennessee
courts and should be dismissed. Ward v. Knox County Bd. of Educ., 869 F.Supp 2d 866, 870 (E.D.
Tenn. 2012).
Plaintiff contends that Defendant’s slander claims are barred by the applicable statute of
limitations. Tennessee law provides that actions for slander must be commenced within six months
after the words are uttered. Tenn. Code Ann. § 28-3-103; Quality Auto Parts, 876 S.W.2d at 821.
Thus, to the extent Defendant Andrews alleges verbal defamation more than six months prior to his
Counter-Complaint, any such claims for slander will be barred. The Court cannot determine,
however, which specific slander may have occurred outside the six-month period without discovery
and further proceedings herein. As noted above, the allegations themselves are sufficient for
purposes of this Motion.

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For these reasons, the Court finds that Plaintiff’s Motion to Dismiss should be denied, with
the exception of any claims for continuing defamation.
Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress involves conduct which was (1) intentional or
reckless, (2) so outrageous that it is not tolerated by civilized society, and (3) resulted in serious
mental injury to the plaintiff. Rogers v. Louisville Land Co., 367 S.W.3d 196, 205 (Tenn. 2012).
There should be recovery only for serious or severe emotional injury, which is injury that occurs
where a reasonable person, normally constituted, would be unable to adequately cope with the
mental stress engendered by the circumstances of the case. Id.
Plaintiff argues that Defendant has failed to plead an “outrageous” act or a serious mental
injury. Defendant Andrews claims that the alleged defamation was intentional and reckless and has
resulted in embarrassment, humiliation, stress, anxiety, damage to his public reputation for character,
damage to his standing in the community, loss of enjoyment of life, and depression leading to
counseling with a psychologist.
If Defendant Andrews’ allegations are true, which the Court must assume for purposes of this
Motion, a trier of fact could ultimately find that the alleged defamation was sufficiently outrageous
to constitute intentional infliction of emotional distress. Falsely accusing someone of rape is a
serious matter, and serious and/or severe resulting injuries have been sufficiently pled for this cause
of action at this time.
MOTION FOR MORE DEFINITE STATEMENT
If a pleading fails to specify its allegations in a manner that provides sufficient notice, the
party against whom the allegations are made can move for a more definite statement under Fed. R.
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Civ. P. 12(e) before responding. Equal Employment Opportunity Comm’n. v. FPM Group, LTD, 657
F. Supp. 2d 957, 966 (E.D. Tenn. 2009). Rule 12(e) provides that a party may move for a more
definite statement of a pleading which is so vague or ambiguous that the party cannot reasonably
prepare a response. Id. In view of the notice pleading standards of Fed. R. Civ. P. 8 and the
opportunity for extensive pretrial discovery, courts rarely grant such motions. Id. A motion under
Rule 12(e) should not be granted unless the complaint is “so excessively vague and ambiguous as
to be unintelligible and as to prejudice the defendant seriously in attempting to answer it.” Id.
As explained above, the Court finds that Defendant Andrews’ First Amended CounterComplaint sufficiently alleges defamation at this stage of the litigation and sufficiently offers notice
to Plaintiff as to what matters are alleged, even if those matters must be further explored during
discovery. The Counter-Complaint is not so excessively vague and ambiguous as to be unintelligible
or as to prejudice Plaintiff seriously in attempting to answer it.
ANTI-SLAPP STATUTE
Plaintiff claims that Defendant Andrews abandoned his prior defamation theory in favor of
a new one and, therefore, she seeks an award of attorneys’ fees and costs pursuant to Tennessee’s
Anti-SLAPP statute, Tenn. Code Ann. § 4-21-1003. That law provides that any person who, in
furtherance of such person’s right of free speech or petition under the Tennessee or U.S.
Constitution, in connection with a public or governmental issue, communicates information
regarding another person to any agency of the federal, state or local government regarding a matter
of concern to that agency shall be immune from civil liability on claims based upon the
communication to the agency.

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Plaintiff’s request is premature. Once this case is completed, Plaintiff may, if appropriate,
file a motion to request fees and costs in accordance with the Local Rules of Court.
The Court notes, in addition, that the immunity provided by this statute does not apply if, as
alleged in this case, the person communicating such information knew the information to be false,
communicated information in reckless disregard of its falsity, or acted negligently in failing to
ascertain the falsity of the information if such information pertains to a person other than a public
figure. Tenn. Code Ann. § 4-21-1003(b).
CONCLUSION
Plaintiff is seeking relief prematurely. It may be that, after discovery, some or all of
Defendant Andrews’ claims will be dismissed - or they may not be. It is too early in the litigation
to determine the merits of these allegations, and for purposes of a Motion to Dismiss, Defendant has
adequately pled his claims.
For all these reasons, Plaintiff’s Motion for a More Definitive Statement and Motion to
Dismiss Defendant Andrews’ First Amended Counter-Complaint (Docket No. 47) are DENIED, with
the exception of any claim of “continuing defamation,” which is dismissed.
IT IS SO ORDERED.

___________________________________
TODD J. CAMPBELL
UNITED STATES DISTRICT JUDGE

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