Garnett v. Remedi Seniorcare of Virginia, LLC et al

Filing 23

MEMORANDUM OPINION. Signed by District Judge Henry E. Hudson on 5/8/2017. (jsmi, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF VIRGINIA
Richmond Division

SADE GARNETT,

Plaintiff,
V.

Civil Action No. 3:17cvl28-HEH
REMEDI SENIORCARE

OF VIRGINIA, LLC,
Defendant.

MEMORANDUM OPINION

(Granting Motion to Dismiss)

Plaintiff Sade Gamett ("Plaintiff) brings this suit against her former employer,

Remedi SeniorCare of Virginia, LLC ("Defendant"). According to Plaintiff, on or about
January 15, 2015, one of her coworkers, Aaron Try, made two defamatory statements
about her: (1) "Sade was having surgery on her vagina because she got a [sexually

transmitted disease ("STD")] cause that's the only reason a female gets surgery on her

vagina;" and (2) "Sade was having a biopsy of her vagina." (Am. Compl.

7, 9-10, 21,

ECF No. 12.)

Plaintiff alleges that Try's employment duties include "communicating with others
at work." {Id. at 23.) She therefore contends that Try's statements were made "within
the scope and course of his employment." {Id. H21.) Plaintiff has sued Defendant for
defamation.

This matter comes before the Court on Defendant's Motion to Dismiss pursuant to

Federal Rule of Civil Procedure 12(b)(6). (ECF No. 14.) Its central argument is that

Try's statement is not defamatory as a matter oflaw.' The Court agrees and will grant
Defendant's Motion.

"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint;

importantly, it does not resolve contests surrounding the facts, the merits of a claim, or
the applicability of defenses." Republican Party ofN.C. v. Martin, 980 F.2d 943, 952
(4th Cir. 1992) (citation omitted). The Federal Rules of Civil Procedure "require[] only

'a short and plain statement of the claim showing that the pleader is entitled to relief,' in
order to 'give the defendant fair notice of what the ... claim is and the grounds upon

which it rests.'" Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley v.
Gibson, 355 U.S. 41,47 (1957)). A complaint need not assert "detailed factual
allegations," but must contain "more than labels and conclusions" or a "formulaic
recitation of the elements of a cause of action." Twombly, 550 U.S. at 555 (citations

omitted). Thus, the "[f]actual allegations must be enough to raise a right to relief above
the speculative level," to one that is "plausible on its face," rather than merely
"conceivable." Id. at 555, 570. In considering such a motion, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in the light most favorable to the

' Each side has filed memoranda supporting their respective positions. The Court will dispense
with oral argument because the facts and legal contentions are adequately presented in the
materials before the Court, and oral argument would not aid in the decisional process. E.D. Va.
Local Civ. R. 7(J).

plaintiff. T.G. Slater, 385 F.3d at 841 (citation omitted). Legal conclusions enjoy no
such deference. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

To state a claim for defamation under Virginia law, a plaintiff must establish three

elements: "(1) publication of (2) an actionable statement with (3) the requisite intent."
Schaecher v. Bouffault, 112 S.E.2d 589, 594 (Va. 2015) (quoting Tharpe v. Saunders,
737 S.E.2d 890, 892 (Va. 2013)). To be actionable, a statement must be both false and
defamatory—it must tend 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." Id. ( citations omitted).

Causes of action for defamation, while arising under state common law, are
subject to free speech protections of the First Amendment to the United States
Constitution. Milkovich v. Lorain Journal Co,, 497 U.S. 1, 14-17 (1990); Potomac Valve

& Fitting Inc. v. Crawford Fitting Co., 829 F.2d 1280, 1285 (4th Cir. 1987); Schaecher,
111 S.E.2d at 599-600. As such, "statements that cannot 'reasonably be interpreted as
stating actual facts' about an individual" are not subject to defamation liability.

Milkovich, 497 U.S. at 20 (quoting Hustler Magazine, Inc. v. Falwell, 485 U.S. 46, 50
(1988)).

In determining whether a statement is a non-actionable expression of opinion, the
Court "must consider the statement as a whole." Hyland v. Raytheon Tech. Services Co.,

670 S.E.2d 746, 751 (Va. 2009). It may not "isolate one portion of the statement at issue
from another portion of the statement." Id. Thus, even a statement which could be
verified as true or false "may still be protected if it can best be understood from its

language and context to represent the personal view of the author or speakerwho made
it." Potomac Valve, 829 F.2d at 1288.

Plaintiff alleges that Try made two defamatory statements: (1) "Sade was having
surgery on her vagina because she got a STD cause that's the only reason a female gets
surgery on her vagina;" and (2) "Sade was having a biopsy of her vagina." (Am. Compl.
11119-10.)
As an initial matter, Plaintiff concedes that the false statements about having

surgery and a biopsy are not actionable because they are not defamatory. (PL's Br.
Opp'n Mot. Dismiss 8, ECF No. 17.) Therefore, the Court need only determine whether
the portion of the statement regarding Plaintiff having an STD is actionable.
The law is clear that "even [a] statement capable of being proved false would be
understood as author's opinion where it was a conclusory punch line following fullydisclosed facts." Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1093 (4th Cir. 1993)

(citing Potomac Valve, 829 F.2d at 1289-90). In Potomac Valve, the Fourth Circuit
affirmed the district court's decision that an alleged statement was not defamatory. The
statement included an accusation that the plaintiff had designed a test of its products in
order to deceive its customers. Potomac Valve, 829 F.2d at 1285. While the court found

that the statement was verifiable—either the test was or was not designed to deceive the
customers—it was nonetheless a non-actionable opinion. When considered in the context
of the entire article in which it was published, the "statement is merely [the defendant's]
conclusion from the seven specific points he outlines in the text of the article." Id. at
1290.

4

Applying the same analysis in this case, the Court concludes that Try's remark

that"she got a STD" is not actionable. When thatportion of the statement is considered
in context, it is clearly only Try's opinion based on his faulty reasoning that "the only

reason a female gets surgery on her vagina" is because she has an STD. "The premise[]
is explicit, and the [listener] is by no means required to share in [Try's] conclusion."
Potomac Valve, 829 F.2d at 1290.

Standing alone, the statementthat Plaintiff has an STD may very well be

defamatory. However, the Court need not reach that issue because when considered in
context, no reasonable person would take Try's statement to be anything more than pure
conjecture.

Based on the foregoing. Defendant's Motion to Dismiss (ECF No. 14) will be
granted. This action will be dismissed without prejudice.

An appropriate Order will accompany this Memorandum Opinion.

Henry E. Hudson
United States District Judge
Date:

Richmond, V\rgiliia