Klocke v. The University of Texas at Arlington et al
Filing
272
MEMORANDUM OPINION AND ORDER re: 245 Motion for Summary Judgment filed by Nicholas Matthew Watson, 239 Motion for Partial Summary Judgment filed by Wayne M. Klocke. The court ORDERS that plaintiff's motion for partial summary judgment be , and is hereby, denied; defendant's motion for summary judgment be, and is hereby, granted; plaintiff take nothing on his claims against defendant; and, such claims be, and are hereby, dismissed with prejudice. (Ordered by Senior Judge John McBryde on 4/6/2022) (npk)
IN
WAYNE M. KLOCKE, INDEPENDENT
ADMINISTRATOR OF THE ESTATE OF
THOMAS KLOCKE,
§
§
§
§
Plaintiff,
§
§
vs.
§
NO. 4: 17-CV-285-A
§
NICHOLAS MATTHEW WATSON,
§
§
Defendant.
§
MEMORANDUM OPINION AND ORDER
Came on for consideration the motion of defendant, Nicholas
Matthew Watson, for summary judgment and the motion of
plaintiff, Wayne M. Klocke,
Independent Administrator of the
Estate of Thomas Klocke, for partial summary judgment. The
court, having considered the motions, the responses, the
replies, the record, and applicable authorities, finds that
plaintiff's motion should be denied and that defendant's motion
should be granted.
I.
Background
This lawsuit has a lengthy procedural history. It arises
out of events that occurred on May 19, 2016, during a class at
the University of Texas at Arlington ("UTA")
in which defendant
and Thomas Klocke ("Thomas") were students. Plaintiff originally
sued defendant and UTA. Doc.' 1. Shortly after the case was
filed,
the court granted defendant's motion to dismiss
plaintiff's claims pursuant to the Texas Citizens Participation
Act, Tex. Civ. Prac.
&
Rem. Code'§§ 27.001-.011 (West 2015),
("TCPA") and for plaintiff's failure to comply with the Texas
Defamation Mitigation Act, Tex. Civ. Prac.
§§ 73.051-.062
(West 2017),
&
Rem. Code
("DMA"). Doc. 38. The court ordered
that the dismissal of the claims against defendant be made
final. Doc. 77. As a matter of first impression, the Fifth
Circuit determined that the TCPA does not apply in federal court
and reversed the court's dismissal of the claims against
defendant and remanded for further proceedings. Klocke v.
Watson,
936 F.3d 240
(5th Cir. 2019).
While an interlocutory appeal of the dismissal of
plaintiff's claims against defendant was pending, the court
granted UTA's motion for summary judgment. Doc. 160. That ruling
was upheld on appeal. Klocke v. Univ. of Tex. at Arlington, 938
F. 3d 2 04
( 5th Cir. 2 o19)
[hereinafter "the UTA opinion"] .
Plaintiff's petition for writ of certiorari was denied. 140 s.
Ct. 1268
(2020).
After dismissing the claims against UTA, the court granted
defendant's motion for summary judgment. Doc. ·223. That ruling
1
The "Doc.
civil action.
11
reference is to the number of the item on the docket in this
2
was initially affirmed, Klocke v. Watson, 861 F. App'x 524
(5th
Cir. 2021), but later reversed on rehearing. No. 20-10103, 2021
WL 5871884 (5th Cir. Dec. 10, 2021).
The panel that most recently ruled says that this court
cannot rely on the Fifth Circuit's prior rulings as law of the
case. Klocke, 2021 WL 5871884, at *6 (referring to the summary
of undisputed facts in the UTA opinion as "our findings"). This
court did not believe that it was making credibility
determinations in reciting from the UTA opinion. As that panel
stated: "it is uncontradicted that Moore considered the
following in his decision." 938 F.3d at 211. The Fifth Circuit
recited the six items this court quoted in its opinion granting
defendant's first motion for summary judgment. 2020 WL 438114,
at *4
(quoting 938 F.3d at 211). The "credibility
determinations" for which the second panel faults the court were
those made by Moore in conducting his investigation on behalf of
UTA. That Moore determined that Thomas's version of the facts
was not credible is not disputed.' In any event, as defendant
points out, the second opinion did not find that there was a
genuine issue of material fact as to the falsity of defendant's
statements or that the court's initial legal analysis of the
evidentiary issues was wrong. Rather, it found that the court
Thus, it strikes the court that to find in favor of plaintiff would require
the court to overturn the judgment in UTA's favor after that judgment has
become final.
2
3
did not resolve certain evidentiary issues before granting
summary judgment and that it erred in finding that plaintiff had
waived an argument that defendant's allegations constituted
defamation per se and was unable to present competent evidence
of compensable damages. Doc. 251 at 7.
II.
Grounds of the Motions
Plaintiff seeks partial summary judgment that defendant
(a)
falsely published fact statements' that (1) damaged Thomas's
reputation, i.e., his occupation as a student and any future
occupation,
(2) Thomas threatened or made threats against
defendant, and (3) accused Thomas of sexual misconduct;
(b)
defamed Thomas as a matter of law; and (c) caused injury to
Thomas as a matter of law. Doc. 239.
Defendant seeks judgment that plaintiff take nothing on the
claims against him because (1) plaintiff cannot present
competent summary judgment evidence that defendant's statements
were false;
(2) plaintiff cannot establish that defendant's
publications constitute defamation per se;
(3) plaintiff's
claims are untimely; and (4) plaintiff's failure to comply with
the DMA bars him from recovering exemplary damages. Doc. 245.
In claiming that defendant published fact statements that Thomas threatened
or made threats against him and accused Thomas of sexual misconduct,
plaintiff grossly misrepresents the record. Defendant never made such fact
statements. Rather, plaintiff has created a straw man argument out of whole
cloth to support his theory of the case.
3
4
III.
Applicable Summary Judgment Standards
Rule 56(a) of the Federal Rules of Civil Procedure provides
that the court shall grant summary judgment on a claim or
defense if there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law. Fed.
R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
247 (1986). The movant bears the initial burden of pointing out
to the court that there is no genuine dispute as to any material
fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 325 (1986).
The movant can discharge this burden by pointing out the absence
of evidence supporting one or more essential elements of the
nonmoving party's claim, "since a complete failure of proof
concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Id. at 323.
Once the movant has carried its burden under Rule 56(a),
the nonmoving party must identify evidence in the record that
creates a genuine dispute as to each of the challenged elements
of its case. Id. at 324; see also Fed. R. Civ. P. 56(c)
asserting that a fact
the assertion by
in the record
("A party
. is genuinely disputed must support
citing to particular parts of materials
If the evidence identified could not
lead a rational trier of fact to find in favor of the nonmoving
party as to each essential element of the nonmoving party's
5
case, there is no genuine dispute for trial and summary judgment
is appropriate. Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 587, 597 (1986). In Mississippi Prot.
Advocacy Sys.,
&
Inc. v. Cotten, the Fifth Circuit explained:
Where the record, including affidavits,
interrogatories, admissions, and depositions could
not, as a whole, lead a rational trier of fact to find
for the nonmoving party, there is no issue. for trial.
929 F.2d 1054, 1058 (5th Cir. 1991).
The standard for granting a motion for summary judgment is
the same as the standard for rendering judgment as a matter of
law. Celotex Corp., 477 U.S. at 323. If the record taken as a
whole could not lead a rational trier of fact to find for the
nonmoving party, there is no genuine issue for trial.
Matsushita, 475 U.S. at 597; see also Mississippi Prot.
&
Advocacy Sys., 929 F.2d at 1058.
The mere existence of some alleged factual dispute between
the parties will not defeat an otherwise properly supported
motion for summary judgment. Anderson, 477 U.S. at 247-48.
Moreover,
"[w]hen opposing parties tell two different stories,
one of which is blatantly contradicted by the record, so that no
reasonable jury could believe it, a court should not adopt that
version of the facts for purposes of ruling on a motion for
summary judgment." Scott v. Harris, 550 U.S. 372, 380 (2007)
6
Although the court must resolve all factual inferences in
favor of the nonmovant, the nonmovant cannot manufacture a
disputed material fact where none exists. Albertson v. T.J.
Stevenson & Co.,
749 F.2d 223, 228
(5th Cir. 1984). He cannot
defeat a motion for summary judgment by relying on conclusory
allegations unsupported by concrete and particular facts. Duffy
v. Leading Edge Prods.,
Inc., 44 F.3d 308, 312
(5th Cir. 1995).
IV.
Undisputed Facts'
The record establishes the following undisputed facts:
On May 19, 2016, Thomas and defendant sat next to each
other in a class conducted by Dr. Long ("Long") at UTA. Doc. 252
at 24-25. Defendant did not know Thomas. Id. at 1,
1
3. Blake
Lankford ("Lankford") sat on the other side of Thomas.
Id. at
19, 24. An exchange occurred between defendant and Thomas by
typing on their respective computer screens and by spoken words.
Id. at 1-2,
1
4,
15-19; Doc. 242 at 12-14, 33. Lankford could
tell that defendant and Thomas were tense but he did not know
what was going on. Doc. 242 at 99. He did not hear or see any
exchange between the two, except that he heard defendant tell
Thomas he could leave. 5 Id. at 95, 97-98, 100, 102-04. At some
1
This section sets forth the facts established by the summary judgment
evidence. Admissibility of the evidence is considered in the "Analysis"
section of this opinion.
5 As discussed,
infra, Lankford told Moore that defendant had told Thomas to
leave. Doc. 252 at 201. At his deposition, three and one-half years after the
7
point, Thomas left and when he returned he took another seat on
the far side of the room. Id. at 100. Lankford did not recall
whether defendant was using his laptop or cell phone during
class. Id. at 111. He did not recall being asked whether he had
observed defendant laughing or causing a distraction or saying
that he did not see or hear defendant laughing or causing a
distraction.' Id. at 112-13. And, he could not say whether
defendant had engaged in distracting behavior. Id. at 119.
Immediately after the exchange, defendant posted on
Facebook:
The guy sitting next to me just typed into his
computer "ga;ys should die." Then told me I was a
"fa**ot" and that I should "kill myself." I haven't
felt this uncomfortable in a long time.
Doc. 252 at 2,
, 6, 28. He also sent an email to Long regarding
the exchange while class was ongoing. Id. at 2, , 5, 6. The
email to Long stated:
During the course of this morning's class, I sat next
to a student who made me feel massively uncomfortable.
He typed into his computer search bar "gays should
die" and then proceeded to call me a "fa***t" and that
I "should consider killing myself." I do not feel safe
in the class at this given time given the threatening
presence this student has provided.
incident 'occurred, Lankford recalled defendaht saying, ~well, if you don't
like it, then you can leave." Doc. 242 at 95.
6
It is clear from Lankford's deposition testimony_ that he simply did not
recall much regarding the exchange other than the tension between defendant
and Thomas and defendant's statement that Thomas should leave. Doc. 242, Ex.
L. He also recalled defendant saying that he was going to talk to the
professor about it. Id. at 101. His deposition took place three and one-half
years after the incident occurred. Doc. 252 at 253.
8
I sat this morning in the top right hand corner (from
your perspective) in class. Very top row, very corner
seat.
I sincerely appreciate in any help you can provide
with this issue.
Id. at 6. Defendant did not leave his seat during class. Doc.
242 at 70.
I_mmediately after class, defendant met with the group he
was to do a project with, which included Lankford. Defendant
told the group members about his exchange with Thomas during
class. Doc. 252 at 257. Lankford recalled defendant saying that
Thomas had made gay slurs and said that defendant should die or
kill himself. Id. at 257, 259. Defendant said that he was going
to talk to the professor about it. Id. at 257.
Defendant spoke to Long, who advised him to report the
incident to student services.' Doc. 252 at 2, , 8, 18, 27.
Defendant went to student services and spoke to Heather Snow
("Snow"), UTA's associate vice president and dean of students.
Id. at 2,
, 8, 21. Snow advised defendant to put his complaint
in writing, which he did by sending her an email. Id. at 2, , 8,
27, 242. The email stated:
This is Nicholas Watson. Today, May 19th, during my
8:00 AM organizational strategy course, MANA 4322-001.
We had to move classes from 153 to 154 due to a
computer issue. At this point, I sat next to the
student who was the aggressor, Thomas Klocke.
7
As Long was speaking to other students after class·, he noticed defendant
pacing and trying to get his attention. Long sensed that whatever defendant
had to say was urgent. Doc. 120 at 94-95.
9
After commenting about privilege in today's society,'
Thomas opened up his laptop and typed into his web
browser' s search bar, "Gays should die."
At which point, I typed into my search bar on my web
browser "I'm gay." I was confused and was trying to
understand why he was typing and showing me this.
After this, he acted like he was yawning and told me
that "well then you're a faggot."
I then told him, "I think you should leave." I felt
terribly scared and uncomfortable.
He then told me that "you should consider killing
yourself."
I approached my professor, Dr. Dwight F. Long,
regarding the incident after class. He advised I go to
student support services.
I then went to Heather Snow, this email recipient, who
advised me further.
Id. at 27. Snow sent the email to Daniel Moore ("Moore"),
associate director of academic integrity, for investigation
pursuant to UTA policies and procedures. Id. at 241.
After meeting with Snow, defendant made a second Facebook
post updating his friends on the situation:
The student that threatened me today has been removed
from the course pending investigation and the school
is taking preventive measures to assure my safe return
to class in the morning. I appreciate your concern and
positive thoughts. I was really scared and even cried
a bit. It's been a while since I have been approached
so hatefully like this. Thank you for your support.
8
Defendant later clarified that the sentence as typed would lead one to
believe Thomas had made the comment, but it was really defendant. Doc. 120 at
430.
10
Id. at 29.
Snow sent Moore an email telling him that she would be
sending a referral from a student "who felt threatened and
unsafe in class." Id. at 195; Doc. 242 at 51. She advised that
it would be appropriate to do an interim measure preventing
Thomas from attending class. Id. Moore sent Thomas a letter
dated May 19, 2016, telling him that he could not attend class
and was restricted from the building where class was held. Doc.
252 at 195-96. Thomas responded by email to Moore, stating that
he was "confused by these allegations as
[he] didn't violate the
Student Code of Conduct." Doc. 242 at 26; Doc. 252 at 196. On
May 20, 2016, Moore sent Thomas a letter setting a meeting for
May 23, 2016, to discuss the matter and advising that Thomas was
being investigated for allegations of "threat" and "harassment."
Doc. 252 at 196, 215. Enclosed with the letter was a copy of
defendant's email to Snow with defendant's name redacted. Id. at
208A. At the time he began his investigation, Moore thought that
Thomas's conduct might have constituted a threat. He believed
that the conduct constituted harassment in that the totality of
the allegations was sufficiently severe to create an objectively
hostile environment for defendant. Moore did not consider the
conduct to constitute sexual harassment.' Id. at 197. After he
Ultimately, Moore concluded that Thomas's conduct did not constitute a
threat. Doc. 252 at 202; Doc. 242 at 155.
9
11
sent the letter on May 20, Moore spoke with Thomas by phone to
answer questions and address Thomas's concerns. Thomas said he
knew what it was in reference to and did not dispute the
allegations defendant had made. He was stoic and unemotional and
did not protest being out of class. Nothing about the call made
Moore think that Thomas was the victim of or was being framed by
defendant. Thomas said they could talk more about it on Monday
at the scheduled meeting. Id. at 197-98.
As part of his investigation, Moore met with defendant,
Thomas, and Lankford. Id. at 199-201. Defendant made very clear
that he was scared of Thomas and did not feel comfortable being
in class with him. Defendant seemed genuinely scared and
worried. Id. at 198. Moore was left with the impression that
defendant was emotionally upset and fearful of Thomas. Moore
found defendant to be credible. Id. at 199. Moore spoke to Long,
who gave a description of his meeting with defendant that
matched what defendant had told Moore. Id.
On May 20, Thomas stayed in his room with the door closed
for a large part of the day. Doc. 242 at 127. He missed a
bachelor party prior to his sister's wedding. Id. Although
plaintiff, Thomas's father, had not seen that type of behavior
before, he did not talk to Thomas about the behavior that day or
the next. On May 22, Thomas asked to meet with plaintiff and
informed plaintiff then that he had been suspended from class.
12
Id. Thomas showed plaintiff the email that accompanied Moore's
May 20 letter. Thomas said that defendant sat next to him in
class and told him he was beautiful. Plaintiff's immediate
reaction was that Thomas needed to have a hearing. He was angry
that Thomas had been barred from class based on defendant's
allegations without any opportunity to give his side of the
story or to defend himself. Id. at 128.
Plaintiff appeared with Thomas on May 23 for the meeting
with Moore. The three met, then plaintiff left and Moore spoke
with Thomas. Moore told Thomas they could meet with plaintiff
present, but Thomas never requested (then or anytime thereafter)
that plaintiff participate. Doc. 252 at 199. Thomas told Moore
that defendant
(whose name he did not know) had told Thomas he
was beautiful, to which Thomas responded in his web browser,
"Stop--I'm straight." Defendant then typed "I'm gay." Thomas
said defendant kept looking at him and Thomas said "stop."
Defendant told Thomas to leave. Thomas said defendant started
typing on his phone and laughing, which was distracting to
Thomas. After some time, Thomas moved seats.
10
Thomas denied
saying ~gays should die," "you're a faggot," or "you shouid kill
10
Thomas later sent an email to Moore, expressing that he felt victimized and
that defendant was a threat to him, noting that he was "the one who moved to
alleviate any tension." Doc. 242 at 36. Moore took the email to be an
acknowledgment of the tension between Thomas and defendant, but found it to
be inconsistent with Thomas' s prior statement that he changed se·ats because
defendant was laughing and causing a distraction. Doc. 252 at 202.
13
yourself." Id. at 199-200. During the meeting, Thomas had a
sheet of paper that he kept referring to, which appeared to be a
script or an outline from which he did not deviate. Thomas
claimed to be scared of defendant, but could not say why.
Whenever Moore asked questions, Thomas would consult his
script. 11 Thqmas's responses to follow-up questions lacked any
substance and Moore found his version of events suspect. Id. at
200.
During the meeting, Moore told Thomas that he would be able
to work with his group and to go back into the business building
to do so, although he was not to attend class. Moore told Thomas
to prepare for his exam the following day and that Moore would
make arrangements for him to take it. Doc. 252 at 200; Doc. 242
at 34. One of Thomas's classmates saw Thomas on May 24 and noted
that he had not been in class for the exam. Thomas told his
group that he had to meet with Long to take the exam. Thomas
asked how the test was and seemed stressed after the group told
him it was hard. Doc. 242 at 135. On May 24, Moore met with
Lankford. Doc. 252 at 201. According to Moore, Lankford reported
that he heard defendant tell Thomas he should leave. 12 · Lankford
11
The record appears to contain two versions of the script. Doc. 120 at i823
and 1825. Each contains the notation "*Pause" after the opening line. Id.
12
As noted, at his deposition three and one-half years later, Lankford
recalled defendant saying, "Well, if you don't like it, then you can leave."
Doc. 242 at 104. Thomas's notes reflect that defendant "told me to leave in a
raised voice," Doc. 120 at 1825, or, alternately, "he told me to leave." Id.
at 1823.
14
looked over and saw that defendant and Thomas looked really
tense. After approximately fifteen minutes, Thomas left the
room. When he did so, Lankford leaned over and asked defendant
what happened. Defendant slid over his calendar with a note of
what Thomas allegedly said to defendant. Lankford confirmed the
substance of the note defendant had given Moore. 13 Lankford told
Moore that he did not see or hear defendant laughing or causing
a distraction. Thomas returned to the room about ten minutes
later and sat on the other side. After class, defendant
approached Long and Thomas was watching defendant. 14 Id.
On May 24, Moore and Snow emailed each other. Moore
reported that defendant and Thomas gave two completely different
accounts of what had happened and that the only witness,
Lankford, just heard defendant tell Thomas to leave. Doc. 242 at
54. Snow responded that if there was not enough to go on, they
should facilitate a very strict, professor supported no contact
order. Id. Moore responded that the defendant's account was more
believable (although he did not have anything to corroborate
The calendar note is found at Doc. 120 at 81. At his deposition, Lankford
could not recall whether defendant had sent him a note or what he said after
Thomas left. Doc. 252 at 257. When shown the note, he did not recall whether
defendant had showed it to him in class. Id. at 260.
14
The notes of Moore's meeting with Lankford are found at Doc. 120 at BB.
Lankford was apparently questioned about the notes of Moore's interview with
him, but that part of the deposition is not included in the summary judgment
evidence in support of the pending motions. Doc. 252 at 254 {referencing Ex.
u
6) .
15
it)
15
and that he would talk to Long about other options before
allowing Thomas back in class. Id. at 53. Moore had two
competing objectives:
On one hand, I thought that [Thomas's] conduct was a
policy violation, had caused a genuine fear for
[defendant], and [defendant] did not want [Thomas]
back in class. I thought [Thomas's] conduct was
sufficient to warrant discipline that did not allow
[Thomas] back for class sessions. On the other hand, I
knew [Thomas] needed the class to graduate and
intended on graduating in August. I did not want the
discipline to prevent [Thomas] from being able to do
so.
Doc. 252 at 203. Twenty-one minutes later he reported to Snow
that he had discussed the matter with Long and that Thomas would
be able to complete the class without attending. Doc. 242 at 53.
On May 24, Moore emailed Thomas to say that he had spoken
to Long and that Long would meet with Thomas one on one for any
instruction for the class and that he would be able to continue
work with his group as he had been to complete the projects.
Moore suggested that he and Thomas meet the next day to discuss
a final resolution. Thomas responded that he appreciated Moore's
work and his talking to Long and that he was able to meet May 25
at 10 a.m. Doc. 242 at 36.
In his declaration, Moore explained that by "corroborate it,". he meant that
he had no independent account from a person who overheard the entire exchange
between defendant and Thomas. He did have defendant's contemporaneous note,
the Facebook post', the email to Long, the report after class to Long, and
Lankford's testimony, all of which aligned with defendant's account. Doc. 252
15
at 203.
16
On May 25, Moore met with Thomas to explain his findings
and discipline. Thomas expressed concern that defendant could
look up where he lived. Moore reiterated that Thomas and
defendant were to have no contact. He told Thomas to let him
know if he felt he was being harassed or stalked. He told Thomas
that he could meet one on one with Long and continue working
with his group. Moore believed Thomas would be able to obtain
credits for the class and graduate in August. Thomas did not
protest the decision or ask any questions about it. Doc. 252 at
203. Thomas expressed concerns about his disciplinary record and
whether employers, graduate schools, or law schools would be
able to access it. Moore explained that the disciplinary record
was not on the academic transcript and would not be released
without Thomas's authority. Moore also explained that Thomas
could appeal the decision and told him how to do so. Id. at 204.
On May 31, 2016, Long met with Thomas and assured Thomas
that he was part of the class even though he could not attend;
that Long had Thomas "covered"; and that Thomas would get the
same grade as every other member of his group on class
participation, team presentation, and simulation. Doc. 120 at
96. Long told Thomas that he would not be negatively impacted by
his inability to attend class. Id. at 97. The meeting lasted
approximately fifteen minutes. Long kept trying to explain the
17
final exam to Thomas, who cut him off several times, saying
something to the effect of "I got this." Id. at 96-97.
On June 1, 2016, plaintiff played pool with Thomas at their
home. Thomas seemed unhappy and stressed, and,
in hindsight,
probably depressed. Doc. 242 at 129. He was withdrawn. Id. at
130. On June 2,
2016, Thomas committed suicide. Doc.
252 at 248.
Plaintiff has formed the belief that Thomas committed
suicide because
he was devastated by what had happened to him with
respect to his class. He was embarrassed, alienated.
He'd been isolated. He enjoyed his small group. He
told me so. He was upset that he wasn't able to
contribute. He was upset that he'd been barred from
the lectures, and he was going to get a grade that heprobably didn't meet his expectations or hopes. And he
was-he was distraught, severely distraught over thethe [] allegation and the fact that the university
had-the way they'd handled it.
Doc. 242 at 131-32. He has hired an expert who is expected to
testify
that Thomas [] was severely, adversely and immediately
impacted by the allegations lodged against him by
[defendant] and by the consequent and cascading
disciplinary actions levied against him by officials
from UTA without confirmatory evidence or witnesses
such that he took his life as a result.
Id. at 144-45.
On April 4, 2017, plaintiff filed his original complaint in
this action. Doc. 1. He sued defendant for defamation based on
the May 19, 2016 email to Snow. Id. at 25-26, 11 71-75. On
August 24, 2017, plaintiff sent a request for correction,
18
clarification, or retraction of the May 19 email. Doc. 252 at
251-52.
On September 30, 2019, plaintiff filed his amended.
complaint, this time alleging defamation based on the two
Facebook posts as well as the email to Snow. Doc. 177.
V.
Analysis
A.
Defamation in the Context of This Case
The elements of a defamation claim are:
(1) the publication
of a false statement of fact to a third party;
was defamatory concerning the plaintiff;
(2) the statement
(3) the publisher acted
with the requisite degree of fault; and (4) plaintiff suffered
damages, unless the statement was defamatory per se. Innovative
Block of S. Tex.; Ltd. v. Valley Builders Supply, Inc., 603
S.W.3d 409, 417
(Tex. 2020); In re Lipsky, 460 S.W.3d 579, 593
(Tex. 2015). 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.• Innovative Block, 603 S.W.3d at 417. In suits like
this one, truth is a defense. Warren v. Fed. Nat'l Mortg. Ass'n,
932 F.3d 378, 383
(5th Cir. 2019).
•tf a statement is not verifiable as false,
it is not
defamatory.• Dallas Morning News, Inc. v. Tatum, 554 S.W.3d 614,
624
(Tex. 2018).
"For a statement to be actionable in
19
defamation,
it must expressly or impliedly assert facts that are
objectively verifiable." Palestine Herald-Press Co. v. Zimmer,
257 S.W.3d 504, 509 (Tex. App.-Tyler 2008, pet. denied). But,
even when a statement is verifiable as faise,
it does not give
rise to liability if the entire context in which it was made
discloses that it is merely an opinion masquerading as a fact.
16
Tatum. 554 S.W.3d at 624.
Plaintiff makes clear in his summary judgment briefs that
"what the case is actually about" is defendant's publication to
UTA officials that Thomas threatened him and acted aggressively
toward him during a classroom encounter, which caused immediate
exclusion of Thomas from the class, causing damage to Thomas's
reputation and severe, compensable mental anguish resulting in
his suicide. Doc. 255 at 1-2; Doc. 240 at 1-2. According to
plaintiff, there was no threat and, therefore, defendant is
liable for defamation. Id. This argument overlooks that Thomas's
alleged statements constituted harassment under the UTA policy
and because defendant feared for his safety, excluding Thomas
from class was appropriate even though there was no threat as
such. Further, just because the definition of "threat" under UTA
policy was not met does not mean that defendant did not actually
feel threatened or that Thomas's words could not be perceived as
l6 For example,
what defendant perceived or felt, e.g., that he was scared,
his opinion.
20
is
a threat." In fact,
the UTA opinion held that UTA had reasonable
and nondiscriminatory reasons for excluding Thomas from class
because his alleged conduct was derogatory and physically
threatening. 938 F.3d at 211-12. Thus, it seems to the court
that the crux of the case is really whether Thomas said the
things defendant attributed to him. If he did, plaintiff cannot
prevail.
There was never a finding that the conduct did not occur.
As the summary judgment evidence establishes, defendant never used the word
"threatened" in his email to Snow. Rather, he wrote that he "felt terribly
scared and uncomfortable." Doc. 2 52 at. 27. He did refer to Thomas as the
"aggressor," but it was clear from the context that he meant that Thomas had
started the exchange and said the things related in the email, which
defendant found to be hostile and emotionally hurtful. Id. The first Facebook
post does not use the word "threatened" or the word "aggressor." Id. at 28.
The second Facebook post referred to Thomas as the student "that threatened
me today," making clear that defendant was scared and in fear for his safety.
Id. at 29. There is no evidence that defendant ever made any statement that
Thomas threatened to cause him physical harm. Rather, defendant felt
threatened. As defendant told Snow, what Thom~s said made him feel
uncomfortable and he was scared to go to class. Doc. 242 at 40.
Snow emailed Moore to tell him that she would be sending a referral
from a student nwho felt threatened and unsafe in a class." Doc. 252 at 195;
Doc. 242 at 51. She advised that it would be appropriate to .prevent Thomas
from attending class. Id. To protect defendant, Moore sent a letter to Thomas
telling him that he could not attend class. Doc. 252 at 195-96. He followed
up with a. letter advising Thomas that he was being investigated for
allegations of "t.hreat and "harassment" under the UTA policy. Id. at 196;
Doc. 242 at 28. At the time, Moore thought Thomas's conduct might have
constituted a threat. Doc. 252 at 196-97. He also determined that the conduct
alleged constituted harassment, but not sexual harassment. Id. at 197.
Although Moore ultimately determined that Thomas's conduct did not constitute
a threat under UTA policy, he perceived that defendant continued to be scared
of Thomas's attending class. See Doc. 242 at 53. Thus, he reached the
accommodation with Long to work personally with Thomas to finish the class.
Doc. 252 at 203. Thomas did not protest the decision or ask any queStions
about it. Id.
Plaintiff acknowledges that defendant was the student who felt
threatened. Doc·. 259 at 3. He has not pointed to summary judgment evidence
raising any genuine fact issue about whether defendant truly felt threatened.
He offers nothing but speculation in that regard, e.g., Lankford did not
observe any threatening behavior. There is no probat'ive summary judgment
evidence that defendant did not believe what he typed or that it was false.
17
11
21
To the contrary, Moore determined that defendant's version of
what happened was more credible. Nevertheless, plaintiff
contends that defendant cannot establish what Thomas said,
because his testimony is hearsay under Rule 801 of the Federal
Rules of Evidence. And, further, it would violite Rule 601(b) (3)
of the Texas Rules of Evidence, the "Dead Man's Rule."
Defendant, on the other hand, maintains that proof of Thomas's
version of the exchange is precluded as hearsay.
B.
Hearsay and the Dead Man's Rule
Defendant's testimony as to what Thomas said is admissible
under Fed. R. Evid. 801(d) (2) (A), as the statement of a party
opponent. Estate of Shafer v. Comm'r of Internal Revenue, 749
F. 2d 1216, 122 o ( 6th Cir. 1984) ; United States v. Estate of
Mathewson, No .. SA-11-CA-00018-FB, 2016 WL 7409855, at *4
(W.D.
Tex. April 19, 2016). However, because this is a state law
defamation case, state law governs the competency of witnesses
to testify. Fed. R. Evid. 601. Accordingly, the court considers
whether testimony regarding what Thomas said is barred by the
Dead Man's Rule.
Under the Dead Man's Rule, in a case like this where a
party is acting as administrator of a decedent's estate, one
party may not testify against another party about an oral
statement by a decedent. Tex. R. Evid. 601(b) (2). Exceptions
exist if
(A) the party's testimony about the statement is
22
corroborated, or (B) the opposing party calls the party to
testify at the trial about the statement. Tex. R. Evid.
60l(b) (3). Texas courts construe the Dead Man's Rule narrowly.
Lewis v. Foster, 621 S.W.2d 400, 404
(Tex. 1981); Quitta v.
Fossati, 808 S.W.2d 636, 641 (Tex. App.-Corpus Christi 1991,
writ denied). The rule does not prohibit testimony concerning
statements of the deceased that are properly corroborated. Fraga
v. Drake, 276 S.W.3d 55, 61 (Tex. App.-El Paso 2008, no pet.).
Corroborating evidence must tend to support some of the material
allegations testified to by the witness whose evidence is sought
to be corroborated and may come from any other competent witness
or other legal source, including documentary evidence. It need
not be sufficient standing alone, but must tend to confirm and
strengthen the testimony of the witness and show the probability
of its truth. Quitta, 808 S.W.3d at 641. For example,
corroborating evidence that shows conduct on the part of the
deceased that is generally consistent with the testimony is
sufficient. Id.
Plaintiff contends that neither of the exceptions applies.
First, he contends that defendant's corroborating evidence is
all self-serving. That does not mean, however, that it is not
admissible or corroborating. See Guzman v. Allstate Assurance
Co., 18 F.4th 157, 161 (5th Cir. 2021) (evidence proffered by one
side to defeat a motion for summary judgment will inevitably
23
appear self-serving). It is uncontroverted that immediately
following the exchange between Thomas and defendant, defendant
made his first Facebook post. He also sent an email to Long.
And, when. Thomas left his seat, defendant showed Lankford his
calendar with notes of what Thomas said. After class, defendant
told his group what.had happened. And, he discussed it with
Long, who advised him to go to student services. Defendant met
with Snow after speaking with Long, and Snow perceived that
defendant felt threatened and unsafe in class with Thomas. When
Moore first spoke with Thomas on May 20, Thomas said he knew
what it was in reference to and did not dispute the allegations.
Moore spoke with defendant and was left with the impression that
he was emotionally upset and fearful of Thomas. Moore spoke to
Long, whose description of his meeting with defendant matched
what defendant told Moore. All of these things tend to support
defendant's testimony as to what Thomas said.
The court notes that the Dead Man's Rule sought to prevent
one party from having an unfair advantage over another whose
lips had been sealed by death by excluding testimony that the
decedent might deny or contradict if living. Lewis, 621 S.W.2d
at 404. Although Thomas was not deposed at the time, he did have
24
an opportunity to refute the allegations. Notably, he did not do
so when he first spoke with Moore . 18 Doc. 252 at 198.
Even if the first exception did not apply, and the court is
satisfied that it does, the second exception does. Although the
rule speaks to calling the party to testify •at the trial" about
the statement, Texas intermediate appellate courts have long
recognized that affirmative use of deposition testimony,
interrogatories, or requests for admissions is sufficient. Dyson
v. Parker, No. 10-14-00232-CV, 2015 WL 5090730, at *3
(Tex.
App.-Waco Aug. 27, 2015, no pet.); Fraga, 276 S.W.3d at 61. It
does not appear that the Texas Supreme Court has addressed the
matter and the court has no reason to believe that it would
decide otherwise. Thus, the appellate opinions are
authoritative. Exxon Co., U.S.A. v. Banque de Paris et des PaysBas, 889 F.2d 674, 676 (5th Cir. 1989). Allowing the testimony
is fair,
because the pending motions for summary judgment are,
in effect, the trial in this case and plaintiff is relying on
defendant's testimony to establish his claim.
The next question is whether plaintiff can rely on Moore's
notes to establish that Thomas did not say the things defendant
attributes to him. Plaintiff argues that
(1) Thomas's denial of
defendant's allegations reflected in the notes is admissible
18 It was not until plaintiff became involved that Thomas
refuted the
allegations.
25
hearsay as Thomas's present sense impression, Fed. R. Evid.
803 (1);
(2) the notes are part of a disciplinary record, causing
them to be admissible as a record of regularly conducted
activity, Fed. R. Evid. 803(6); and (3) the denial is admissible
under the residual exception of Fed. R. Evid. 807. Doc. 240 at
11-12; Doc. 255 at 19-20. None of these arguments has merit.
Rule 803(1) excepts from the hearsay rule statements
"describing or explaining an event or condition, made while or
immediately after the declarant perceived it." The justification
for the exception is that the statement is recorded
contemporaneous with the event, such that there is almost no
likelihood of a deliberate or conscious misrepresentation." Rock
v. Huffco Gas
&
Oil Co., 922 F.2d 272, 280
(5th Cir. 1991).
Clearly, Thomas's statements made to Moore on May 23 about
events that occurred on May 19 are not present sense
impressions. 20
Plaintiff additionally aigues that Thomas's denial and
report of a completely different account of his encounter with
defendant are kept in the disciplinary file Moore obtained and
are therefore admissible under the business records exception of
Rule 803 (6). Doc. 240 at 12; Doc. 255 at 19'. Plaintiff does not
19
Defendant's Facebook posts and email to Long are present sense impressions.
That they should not be considered such is strengthened by Moore's
impression that Thomas was reading from a script in giving his version of
20
what transpired. Doc. 252 at 200. See Doc.
26
120 at 1823
&
1825.
cite to any summary judgment evidence supporting the contention
that the material is "kept in the disciplinary file Moore
obtained." In any event, although Moore acted in his regular
course of business in investigating the allegations and imposing
discipline, Thomas was not so acting in responding to Moore's
questions. His statements constitute double hearsay. That they
are contained in a business record does not, by itself, permit
their admission. Wilson v. Zapata Off-Shore Co., 939 F.2d 260,
271, 279
(5th Cir. 1991).
Finally, plaintiff argues that Thomas's denial is
admissible under the residual exception of Rule 807 of the
Federal Rules of Evidence. Doc. 240 at 12; Doc. 255 at 19-20.
The rule provides that a hearsay statement is not excluded if
(1)
it is supported by sufficient guarantees of trustworthiness-
after considering the totality of circumstances under which it
was made and evidence, if any, corroborating the statement; and
(2) it is more probative on the point for which it is offered
than any other evidence that the proponent can obtain through
reasonable efforts. The case upon which he relies, United States
v. Thunder Horse, 370 F.3d 745 (8th Cir. 2004), upheld the
admission of evidence of sexual abuse of a child in a criminal
case. The court noted that the child's young age was a factor
that substantially lessened the degree of skepticism with which
the court viewed her motives and mitigated in favor of the
27
trustworthiness of her declarations. 370 F.3d at 748. Plaintiff
fails to explain how the facts of this case compare to Thunder
Horse. Here, Thomas was a young adult who understandably had a
motive to lie. Plaintiff has not shown that this, or any other,
exception to the hearsay rule applies.
C.
Other Evidence
1.
Lankford's Testimony
In addition to Thomas's denial as reflected in Moore's
notes, which is inadmissible, plaintiff relies on Lankford's
testimony that he saw no evidence of threats or aggressive
behavior in the classroom as support for the falsity of
defendant's publications. Doc. 240 at 12; Doc. 255 at 21. That
Lankford did not recall much about the exchange between Thomas
and defendant except that they were tense does not rise to the
level of probative evidence. He could not say whether defendant
had engaged in any distracting behavior. His recollection that
defendant told Thomas that he could leave if he didn't like it2l
is hearsay and unreliable, being recalled three and one-half
years after the incident at issue. 22 Just after the incident,
21
It is interesting that this recollection was volunteered at the very
beginning of the deposition after Lankford had spoken to plaintiff's _counsel.
Doc. 252 at 255.
v The admissibility of Lankford 1 s testimony regarding what he heard defendant
say is a matter that the Fifth Circuit instructed this ·court to consider.
2021 WL 5871884,
at *2 n.2.
28
when he spoke with Moore, Lankford simply related that he heard
defendant tell Thomas he should leave. 23 Doc. 252 at 201.
In any event, what Lankford now claims to have heard might
support both versions of what happened; it does not necessarily
mean that Thomas's version was true. Defendant could have called
Thomas beautiful; Thomas could have responded that he was
straight; Defendant could have said he was gay; Thomas could
have called defendant a faggot; defendant could have told Thomas
he could leave if he didn't like it, i.e., sitting next to a gay
person; Thomas could have told defendant he should kill himself.
Thus, speculation about the meaning of what Lankford recalls
hearing does not raise a genuine fact issue for trial.
2.
Evidence of a Threat
Plaintiff relies on Moore's concession that he could not
find any evidence of a threat as support for defamation as a
matt~r of law. Doc. 240 at 12; Doc. 255 at 21-23. As discussed,
Moore ultimately found that Thomas's conduct did not meet the
definition of a threat under UTA policy. And, by saying that
there was no evidence· to corroborate defendant's version of the
facts, Moore meant that he had no independent account from a
person who overheard the entire exchange. Doc. 252 at 203. Based
There are other discrepancies between what Lankford told Moore at the time
and what he recalled three and one-half years later at his deposition. For
example, Lankford testified that he did not observe defendant approaching
Long after class, Doc. 242 at 106 1 whereas he told Moore that Thomas was
watching defendant talk to Long. Doc. 252 at 201; Doc. 120 at 88.
23
29
on Moore's investigation, he found defendant's allegations to be
more credible than those of Thomas." Again, that there was no
threat as such does not mean that defendant falsely reported
what Thomas said.
3.
The Speculative Opinions of Plaintiff and His Expert
The court set forth above the opinions of plaintiff and his
expert, Alan Berman, concerning the reason for Thomas's suicide.
Supra, at 18. Neither of those opinions would be admissible in
evidence at the trial of this action, nor is either of them
admissible as summary judgment evidence. Each of the opinions is
based on pure speculation.
Apropos to those opinions is the conclusion the Fifth
Circuit reached in its opinion in United States v. Robinson that
"suicide is a complicated phenomenon that may be caused by any
number of preceding events." 843 F. App'x 607, 609 (5th Cir.
2021). In Robinson, the Fifth Circuit rejected as a matter of
law the district court's finding that the suicide was the
product of the victim being distraught after his girlfriend's
death, which resulted from drugs they had obtained from the
defendant.
The court need only refer to the expert reports to fully
appreciate some of the factors that could have caused Thomas to
24
That Moore found defendant's version of what happened to be more credible
is some evidence of truth.
30
end his life. 25 Any conclusion that anything defendant said or
did caused Thomas's suicide would be pure speculation.
D.
Damages and Defamation Per Se
With regard to damages, the court first notes that although
plaintiff alleges defamation based on the two Facebook posts in
addition to the email to Snow, there is no evidence that Thomas
or UTA ever knew of the Facebook posts. Doc. 252 at llA (only
defendant's Facebook friends could see the posts). Plaintiff
does not refute this. Doc. 259. Indeed, he acknowledges that
"Thomas was wholly unaware" of the posts. Doc. 240 at 17.
Because the posts did not affect Thomas in some manner
particularly harmful to him, plaintiff cannot show that Thomas
was damaged by them. Cf. In re Lipsky, 460 S.W.3d at 596. In
other words, there was no actual injury. Innovative Block, 603
S.W.3d at 426; Brady v. Klentzman, 515 S.W.3d 878, 887 (Tex.
2017) .
Establishing an actual injury is necessary here, because
defendant's statements do not meet the definition of defamation
per se. A statement is defamation per se only if it falls into
one of four categories:
(1)
injury to a person's office,
profession, or occupation, Hancock v. Variyam, 400 S.W.3d 59, 66
(Tex. 2013),
(2) imputation of crime, Leyendecker
25
&
Assocs.,
~ee pages App. 006-007 of Berman report, Doc. 262. See also report of
defendant's expert, Morton Silverman, Doc. 269 at Appx 15-18, Appx 23-34.
31
Inc. v. Wechter, 683 S.W.2d 369, 374
(Tex. 1984),
(3) imputation
of loathsome disease, Memon v. Shaikh, 401 S.W.3d 407, 421 (Tex.
App.-Houston [14th Dist.]
2013, no pet.), or (4) imputation of
sexual misconduct. Memon, 401 S.W.3d at 421. Plaintiff says that
the second and fourth categories are at issue," and that the
court should take judicial notice of Texas Penal Code§ 22.01.
Doc. 240 at 16; Doc. 255 at 26.
Section 22.01 of the Texas Penal Code defines the offense
of assault. The only potentially applicable subsection is the
second, which provides that a person commits assault if the
person "intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse." Tex.
Penal Code§ 22.0l(a) (2). Nothing in defendant's Facebook posts
or email accuses Thomas of assault as defined in the Penal Code.
Defamation per se based on imputation of sexual misconduct
refers to allegations of sexual molestation, adultery, and
sexual assault. Cuba v. Pylant, 814 F.3d 701, 704-06
(5th Cir.
2016); Miranda v. Byles, 390 S.W.3d 543, 552 (Tex. App.-Houston
[1st Dist.] 2012, pet. denied); Fox v. Parker,
98 S.W.3d 713,
6
Plaintiff is no longer asserting that the first category applies. Other
courts have determined that a student is not by definition engaged in a
trade, profession, or business. See, e.g., Cain v. Atelier Esthetique Inst.
?.
of Esthetics,
Inc.,
182 F.
Supp.
3d 54,
73
(S.D.N.Y.
2016) (explaining why
extending the category to students makes little sense), aff'd, 733 F. App'x 8
(2d Cir. 2018); Kyung Hye Yano v. City Colleges of Chicago, No. 08CV4492 1
2013 WL 842644,
Cir. 2016).
at *6
(N.D.
Ill.
Mar.
6,
32
2013),
aff'd,
651 F. App'x 543
(7th
717
(Tex. App.-Waco 2003, pet. denied). Defendant did not make
any such allegations.
Finally, as this court has previously noted, suicide is
considered an unforeseeable intervening act. Doc. 228 at 14
(citing Estate of Ko by Hill v. Sears Roebuck
&
Co., 982 F.
Supp. 471, 475
(E.D. Mich. 1997); Speer v. United States, 512 F.
Supp. 670, 680
(N.D. Tex. 1981), aff'd, 675 F.2d 100 (5th Cir.
1982); Exxon Corp. v. Brecheen, 526 S.W.2d 519, 524
(Tex.
1975)). The ipse dixit of plaintiff or plaintiff's expert does
not make it otherwise.
E.
Timeliness of the Facebook Claims
The alleged defamation occurred on May 19, 2016. Plaintiff
filed his original complaint in this action on April 4, 2017. He
filed his amended complaint adding the claims based on the
Facebook posts on September 30, 2019, over three years after the
alleged defamation.
Defendant maintains that plaintiff's claims based on the
Facebook posts are untimely and cannot be pursued. Texas law
allows one year to bring a defamation claim, so these claims are
only timely if they relate back to the original complaint.
Schirle v. Sokudo USA, L.L.C., 484 F. App'x 893, 901
(5th Cir.
2012). Relation back is determined by Texas law, which governs
the defamation claims. Id.
(citing Fed. R. Civ. P. 15(c) (1)).
Under Texas law, a newly asserted claim relates back unless it
33
is "wholly based on a new, distinct, or different transaction or
occurrence.• Tex. Civ. Prac.
&
Rem. Code§ 16.068. Texas law
treats each alleged defamatory publication as a single
transaction. Id.; TV Azteca, S.A.B. de C.V. v. Trevino Ruiz,
S.W.3d 24, 33
611
(Tex. App.-Corpus Christi 2020, no pet.); Tex.
Disposal sys. Landfill, Inc. v. Waste Mgmt. Holdings,
Inc., 291
S.W.3d 563, 587 (Tex. App.-Austin 2007, pet. denied)
Thus,
separate instances of defamation do not relate back. TV Azteca,
611 S.W.3d at 33; Tex. Disposal, 291 S.W.3d at 587-88.
Plaintiff argues that he was precluded from timely
asserting his claims based on the Facebook posts because he
learned of the posts while his appeal of the dismissal of his
claims under the TCPA was pending. Doc. 255 at 23-25; Doc. 259.
He relies on cases noting that limitations is tolled for a
second cause of action in instances where the viability of that
second action necessarily depends upon the outcome of the first
case and pursuit of the second action prior to that outcome
would either be improper or result in judicial complication."
Castillo v. Branch Banking
&
Tr. Co., No. 05-19-00854-CV, 2020
WL 1983361, at *5 (Tex. App.-Dallas Apr. 27, 2020, pet. denied);
27 He also relies on cases pertaining to the identification of John Doe
defendants, which are not pertinent here. Green v. Doe, 260 F. App'x 717 (5th
Cir. 2007) i Carillo Rivera v. Manpowergroup US, Inc., No. EP-19-CV-00299-DCG,
2020 WL 5913832 (W.D. Tex. Oct. 6, 2020). Both cases applied Fed. R. Civ. P.
15(c) (1) (C) regarding relation back and the fact that the plaintiff was not
at fault in failing to timely identify the John Doe defendant. Here, nothing
prevented plaintiff from filing suit against defendant upon learning of the
Facebook posts.
34
Rogers v. Ricane Enters., Inc., 930 S.W.2d 157, 167 (Tex. App.Amarillo 1996, writ denied). In Rogers, the court declined to
apply tolling because the second action did not depend upon
successful outcome of the first. See Deutsche Bank Nat'l Tr. Co.
v. Ketmayura, No. A-14-CV-00931-LY-ML, 2015 WL 3899050, at *8
(W.D. Tex. June 11, 2015) (listing cases rejecting application of
tolling). That appears to be the case here where nothing would
have prevented plaintiff from filing suit against defendant
based on the Facebook posts at the time he learned of them.
Inasmuch as defamation claims are separate claims under Texas
law, the ruling on the appeal of the TCPA dismissal in this case
would not have precluded relief on the other claims.
F.
Failure to Comply with DMA
Finally, the parties agree that failure to comply with the
DMA requirement that a plaintiff request correction,
clarification, or retraction bars recovery of exemplary damages.
Hogan v. Zoanni, 627 S.W.3d 163
(Tex. 2021); Warner Bros. Ent.,
Inc. v. Jones, 538 S.W.3d 781, 812
(Tex. App.-Austin 2017),
aff'd, 611 S.W.3d 1 (Tex. 2020). Plaintiff did not timely make
such a request.''
28
He does not cite any authority to support the proposition that making a
request is not required if it would be futile.
35
G.
Conclusion
Based on the probative summary judgment evidence, plaintiff
has not established the falsity of defendant's publications,
that defendant defamed Thomas as a matter of law, or that
defendant caused injury to Thomas as a matter of law. Defendant,
on the other hand, has established his affirmative defense of
truth and plaintiff has not raised a genuine fact issue as to
truthfulness." No reasonable juror could reach any other finding
based on the summary judgment record.
VI.
Order
The court ORDERS that plaintiff's motion for partial
summary judgment be, and is hereby, denied; defendant's motion
for summary judgment be, and is hereby, granted; plaintiff take
nothing on his claims against defendant; and, such claims be,
and are hereby, dismissed with prejudice.
SIGNED April 6, 2022.
29
Additionally, defendant has established that the public.at ions do not
constitute defamation per se 1 that plaintiff's Facebook claims are untimely,
and that plaintiff's failure to comply with the DMA bars him from recovering
exemplary damages.
36
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