Van Dyke v. Retzlaff

Filing 168

MEMORANDUM OPINION AND ORDER. It is therefore ORDERED that and Retzlaff's Motion for Leave to File Late Reply in Support of Retzlaff's Motion to Dismiss (Dkt. 155 ) is GRANTED. It is further ORDERED that Defendant Thomas Christopher Re tzlaff's Motion to Dismiss Plaintiff's Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. 129 ) is DENIED. It is further ORDERED that Retzlaff's Motion to Stay Discovery Until Ruling on Retzlaff's Motion to Dismiss (Dkt. 118 ); and Retzlaff's Motion to Stay Discovery Until Disposition of Retzlaff's Rule 12(b)(6) Motion to Dismiss (Dkt. 131 ) are DENIED as moot. Signed by District Judge Amos L. Mazzant, III on 5/14/2020. (baf, )

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United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

JASON LEE VAN DYKE
v.
THOMAS RETZLAFF, a/k/a DEAN
ANDERSON, d/b/a VIA VIEW FILES LLC,
and VIA VIEW FILES

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Civil Action No. 4:18-CV-247
Judge Mazzant

MEMORANDUM OPINION AND ORDER
Pending before the Court is Defendant Thomas Christopher Retzlaff’s Motion to Dismiss
Plaintiff’s Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. #129). Having
considered the motion and the relevant pleadings, the Court finds that the motion should be denied.
BACKGROUND
This suit concerns the volatile dealings between Plaintiff Jason Lee Van Dyke and
Defendant. There are three separate instances of conduct that led to the present case (Dkt. #113).
First, Defendant purportedly made statements about Plaintiff on his blog, “BV Files”
(Dkt. #113). There, Defendant’s alleged statements asserted that Plaintiff is a Nazi; a white
supremacist; a pedophile; and a drug addict (Dkt. #113 at p. 12). These purported statements also
portrayed that Plaintiff has a criminal record for abusing women; is involved in revenge
pornography; has engaged in unwanted sexual solicitations; was being treated and medicated for
mental illnesses; suffers from syphilis; and has engaged in other sexual misconduct (Dkt. #113 at
pp. 12–13).
Second, Plaintiff complains that Defendant contacted the law firm where Plaintiff was
employed, Karlseng, LeBlanc & Rich L.L.C. (Dkt. #113 at p. 18). Specifically, Defendant
contacted Plaintiff’s firm, telling the firm allegedly libelous information about Plaintiff (Dkt. #113

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at p. 18). As a result of Defendant’s disclosures, Plaintiff was fired from the firm (Dkt. #113 at
p. 18).
Lastly, Plaintiff attributes his arrest to Defendant’s conduct (Dkt. #113 at p. 20). To start,
Defendant allegedly fabricated emails between Plaintiff and Defendant, in which Plaintiff was
threatening Defendant (Dkt. #113 at p. 20). Defendant then shared those emails with the Oak Point
Police Department (Dkt. #113 at p. 20). Based on Defendant’s request and the emails he provided,
Oak Point Police arrested Plaintiff for third-degree felony obstruction or retaliation (Dkt. #113 at
p. 20). When the grand jury heard the evidence against Plaintiff on the lesser included crime of
misdemeanor harassment, the grand jury found that there was not enough evidence to prosecute
Plaintiff, and the case was no-billed (Dkt. #113 at p. 20).
Based on these facts, on March 28, 2018, Plaintiff initiated this suit against Defendant,
alleging that Defendant committed libel when he made defamatory statements about Plaintiff
(Dkt. #1, Exhibit 2; Dkt. #113). In addition to libel, Plaintiff asserted six alternative theories of
recovery against Defendant: business disparagement, intrusion on seclusion, tortious interference
with an existing contract, tortious interference with prospective relations, malicious criminal
prosecution, and intentional infliction of emotional distress (Dkt. #113 at pp. 12–22).
On March 1, 2020, Defendant filed his Rule 12(b)(6) motion to dismiss (Dkt. #129). On
March 4, 2020, Plaintiff filed his response (Dkt. #135). On April 17, 2020, Defendant filed his
reply.1

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Defendant was required to file his reply by March 11, 2020, but he did not do so until April 7, 2020 (Dkt. #141). As
such, Defendant requested leave to file the late reply, which was opposed by Plaintiff. See (Dkt. #155). Although
late, the Court finds that Defendant’s motion for leave to file a late reply should be granted.

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LEGAL STANDARD
The Federal Rules of Civil Procedure require that each claim in a complaint include a “short
and plain statement . . . showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). Each
claim must include enough factual allegations “to raise a right to relief above the speculative level.”
Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
A Rule 12(b)(6) motion allows a party to move for dismissal of an action when the
complaint fails to state a claim upon which relief can be granted. FED. R. CIV. P. 12(b)(6). When
considering a motion to dismiss under Rule 12(b)(6), the Court must accept as true all well-pleaded
facts in plaintiff’s complaint and view those facts in the light most favorable to the plaintiff.
Bowlby v. City of Aberdeen, 681 F.3d 215, 219 (5th Cir. 2012). The Court may consider “the
complaint, any documents attached to the complaint, and any documents attached to the motion to
dismiss that are central to the claim and referenced by the complaint.” Lone Star Fund V (U.S.),
L.P. v. Barclays Bank PLC, 594 F.3d 383, 387 (5th Cir. 2010). The Court must then determine
whether the complaint states a claim for relief that is plausible on its face. ‘“A claim has facial
plausibility when the plaintiff pleads factual content that allows the [C]ourt to draw the reasonable
inference that the defendant is liable for the misconduct alleged.’” Gonzalez v. Kay, 577 F.3d 600,
603 (5th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). “But where the wellpleaded facts do not permit the [C]ourt to infer more than the mere possibility of misconduct, the
complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’” Iqbal,
556 U.S. at 679 (quoting FED. R. CIV. P. 8(a)(2)).
In Iqbal, the Supreme Court established a two-step approach for assessing the sufficiency
of a complaint in the context of a Rule 12(b)(6) motion. First, the Court should identify and
disregard conclusory allegations, for they are “not entitled to the assumption of truth.” Iqbal, 556

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U.S. at 664. Second, the Court “consider[s] the factual allegations in [the complaint] to determine
if they plausibly suggest an entitlement to relief.” Id. “This standard ‘simply calls for enough
facts to raise a reasonable expectation that discovery will reveal evidence of the necessary claims
or elements.’” Morgan v. Hubert, 335 F. App’x 466, 470 (5th Cir. 2009) (citation omitted). This
evaluation will “be a context-specific task that requires the reviewing [C]ourt to draw on its judicial
experience and common sense.” Iqbal, 556 U.S. at 679.
Thus, “[t]o 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. at 678 (quoting
Twombly, 550 U.S. at 570).
ANALYSIS
After reviewing Plaintiff’s Third Amended Complaint, Defendant’s motion to dismiss, the
response, and the reply, the Court finds that Plaintiff has stated plausible claims for purposes of
defeating a Rule 12(b)(6) motion to dismiss.

CONCLUSION
It is therefore ORDERED that and Retzlaff’s Motion for Leave to File Late Reply in
Support of Retzlaff’s Motion to Dismiss (Dkt. #155) is GRANTED.
It is further ORDERED that Defendant Thomas Christopher Retzlaff’s Motion to Dismiss
Plaintiff’s Third Amended Complaint Pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. #129) is
DENIED.
It is further ORDERED that Retzlaff’s Motion to Stay Discovery Until Ruling on
Retzlaff’s Motion to Dismiss (Dkt. #118); and Retzlaff’s Motion to Stay Discovery Until
Disposition of Retzlaff’s Rule 12(b)(6) Motion to Dismiss (Dkt. #131) are DENIED as moot.

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IT IS SO ORDERED.
SIGNED this 14th day of May, 2020.

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AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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