IN THE COUNTY COURT OF THE SECOND JUDICIAL CIRCUIT IN AND FOR LEON COUNTY, FLORIDA LILLIAN TYSINGER, v. Plaintiff, Case No. 2017 CA 002520 RACHEL PERRIN ROGERS, Defendant. / I. Introduction MOTION TO DISMISS COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION Ms. Tysinger s Complaint is long on legal conclusions but short on ultimate facts. Fla. R. Civ. P. 1.110(b)(2). Ms. Tysinger claims that Ms. Perrin Rogers made defamatory statements but describes these statements only in general terms. Complaint at 10. Ms. Tysinger claims that Ms. Perrin Rogers intended for the publication of the defamatory statements whatever they actually were in credible internet news agencies but then fails to name any of these news agencies or state what these news agencies actually published. Id. at 11. Ms. Tysinger claims that Ms. Perrin Rogers acted intentionally or with gross negligence but then fails to allege a single fact ultimate or otherwise concerning Ms. Perrin Rogers s intent or gross negligence. Id. at 8. Ms. Tysinger claims harm from the defamatory statements (which we know little about) published in unnamed news outlets (which we know little about) as a result of Ms. Perrin Rogers s intentional or grossly negligent conduct (which we know little about) but then fails to include any facts concerning the alleged injury to her reputation, shame, humiliation, mental anguish and hurt feelings. Id. at 12. 1
Ms. Tysinger s Complaint even fails to allege all of the elements for her specific kind of defamation claim. Ms. Tysinger states that credible internet news agencies thought it important enough to publish defamatory statements about her. Id. at 8. Stated differently, Ms. Tysinger claims that the statements about her were newsworthy. Ms. Tysinger insists, however, that she is a private person absolved from the burden of proving through clear and convincing evidence that Ms. Perrin Rogers acted with actual malice. Id. at 4, 8. Ms. Tysinger does this to sidestep the high threshold for relief. She fails. Finally, Ms. Tysinger s count for intentional infliction of emotional distress dispenses with facts altogether. There, Ms. Tysinger simply realleges all preceding paragraphs. This is an improper pleading practice criticized by Florida courts. This Court should thus dismiss the Complaint for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). II. Applicable Legal Standards A motion to dismiss is appropriate where a complaint fails to allege ultimate facts the final and resulting facts reached by processes of logical reasoning from detailed or probative facts. See 40 Fla. Jur. 2d Pleadings 25 (citing Fla. R. Civ. P. 1.110(b)(2) and Kreizinger v. Schlesinger, 925 So. 2d 431, 432 (Fla. 4th DCA 2006)). Florida is a fact-pleading jurisdiction. Horwitz v. Kaske, 855 So. 2d 169, 172 (Fla. 5th DCA 2003) (citing Goldschmidt v. Holman, 571 So. 2d 422, 423 (Fla. 1990) and Continental Baking Co. v. Vincent, 634 So. 2d 242, 244 (Fla. 5th DCA 1994)). Florida s pleading rule forces counsel to recognize the elements of their cause of action and determine whether they have or can develop the facts necessary to support it. Id. at 172-73. At the outset of a suit, litigants must state their pleadings with sufficient particularity for a defense to be prepared. Id. at 173 (citing Arky, Freed, Stearns, Watson, Greer, Weaver & 2
Harris, P.A. v. Bowmar Instrument Corp., 537 So. 2d 561 (Fla. 1988)). As such, while courts must liberally construe, and accept as true, factual allegations in a complaint and reasonably deductible inferences therefrom, courts should dismiss complaints that rely on conclusory allegations, unwarranted deductions, or mere legal conclusions. W.R. Townsend Contracting, Inc. v. Jensen Civil Construction, Inc., 728 So. 2d 297, 300 (Fla. 4th DCA 1999). Dismissal is especially appropriate where, as here, a multi-count complaint realleges all preceding paragraphs. The First District called this type of pleading practice... improper. Frugoli v. Winn-Dixie Stores, Inc., 464 So. 2d 1292, 1293 (Fla. 1st DCA 1985). The Fourth District noted that this style of pleading has been condemned. RHS Corps. v. City of Boynton Beach, 736 So. 2d 1211, 1212-13 (Fla. 4th DCA 1999). The Fifth District agrees. Gerentine v. Coastal Sec. Sys., 529 So. 2d 1191, 1194 (Fla. 5th DCA 1988). Simply put, [t]his practice is an unnecessary hindrance to trial courts efforts to determine the facial validity of the various causes being asserted and serves only to confuse and delay. Chaires v. N. Fla. Nat l Bank, 432 So. 2d 183, 185 (Fla. 1st DCA 1983)). Complaints that rely on this practice should be dismissed. III. Argument This Court should dismiss Ms. Tysinger s Complaint for three reasons. First, the Complaint fails to allege ultimate facts for defamation. Fla. R. Civ. P. 1.110(b)(2). Second, the Complaint seemingly concedes Ms. Tysinger s status as a public figure but includes no allegations concerning actual malice, a necessary element of any defamation claim brought by a public figure like Ms. Tysinger. Third, the Complaint improperly incorporates all preceding paragraphs in the intentional infliction of emotional distress claim. 3
A. Complaint fails to allege ultimate facts To allege a claim for defamation, a private plaintiff must show that (1) the defendant published a false statement about the plaintiff, (2) to a third party, and (3) the falsity of the statement caused injury to the plaintiff with (4) fault amounting to at least negligence on the defendant s part. NITV, LLC v. Baker, 61 So. 3d 1249, 1252 (Fla. 4th DCA 2011) (citations omitted); see also Thomas v. Jacksonville TV, Inc., 699 So. 2d 800, 803 (Fla. 1st DCA 1997). Ms. Tysinger s Complaint falls short of appropriately pleading any of these elements. Elements 1 and 2 At no point in her Complaint does Ms. Tysinger provide the false statements that Ms. Perrin Rogers is alleged to have made. The only reference to such statements appears in paragraph 10 of the Complaint where Ms. Tysinger states generally that: 10.... Plaintiff has suffered special damages in that Defendant [sic] defamatory, false statements suggested that Plaintiff: a. had falsified text messages; b. was mentally ill; c. had threatened suicide; d. had engaged in numerous sexual encounters with people she worked with... thus imputing to Plaintiff a want of chastity; [sic] e. created an unsafe environment in the workplace and thus, Defendant requested the protection of law enforcement when Defendant knew that Plaintiff is not a risk to her safety and knew that such request would endanger Plaintiff s employment. Complaint at 10. So we do not know what any of the false statements actually were. Ms. Tysinger s Complaint goes on to say only this about the publication of the allegedly false statements: Defendant maliciously intended that Defendant s defamatory statement be published by credible internet news agencies resulting in the Defendant s defamation be published on the world wide web. Id. at 11. So we do not know the name of a single third 4
party that actually published Ms. Perrin Rogers s alleged statements or what was actually published. We know only that the third party is one of several credible internet news agencies somewhere on the world wide web. Id. Elements 3 and 4 Nor does Ms. Tysinger s Complaint provide facts concerning the third and fourth elements related to injury and Ms. Perrin Rogers s intentional or negligent conduct. As to injury, Ms. Tysinger s Complaint provides only this: 9. Plaintiff suffered actual damages as a result of such defamatory statements. 10. Statements published by Defendant were defamatory per se and defamatory on their face and thus, general damages to Plaintiff are presumed. *** 12. As a result of the malicious and false vulgar statement and vulgar symbols directed at Plaintiff, by Defendant, Plaintiff has suffered injury to her reputation, shame, humiliation, mental anguish and hurt feelings and will continue to suffer these injuries in the future. Complaint at 9-10, 12. There are no facts concerning the actual damages suffered. Id. at 9. Without identifying the alleged defamatory statements, claims that the statements were defamatory per se or defamatory on their face ring hollow as self-serving legal conclusions. Id. at 10. And without facts concerning the injury to [Ms. Tysinger s] reputation, shame, humiliation, mental anguish and hurt feelings, these statements serve only as conclusory allegations. Id. at 12. Ms. Tysinger s Complaint similarly fails to establish intent or negligence on Ms. Perrin Rogers s part. Instead, the Complaint offers these legal conclusions and conclusory allegations: 5. Defendant caused to be published defamatory statements concerning Plaintiff. *** 7. Defendant caused to be published defamatory statements that were false concerning Plaintiff. Such defamatory statements were of fact and not of opinion and thus not protected under the First Amendment of the United States 5
Constitution. Further, such defamatory statements were not published in a manner that would give rise to a qualified privileged. The defamatory statements were not made in good faith and were not made pursuant to any duty. Further, the defamatory statements were made outside of any official proceeding. 8. At the time Defendant caused to be published such defamatory statements, Defendant knew that such statements were false or acted with gross negligence concerning Plaintiff, who is a private person. *** 11. Defendant maliciously intended that Defendant s defamatory statements be published by credible internet news agencies resulting in the Defendant s defamation be published on the world wide web. Complaint at 5, 7-8, 11. These are not facts concerning Ms. Perrin Rogers s conduct. Without more facts concerning the allegedly false statements, their publication, the name of a single third party responsible for disseminating the statements, or the harm that Ms. Tysinger allegedly suffered or Ms. Perrin Rogers s conduct, the Complaint fails to give adequate notice of each element of a simple defamation claim let alone ultimate facts concerning each element. Fla. R. Civ. P. 1.110(b)(2). The law requires more. See supra Section II. B. Complaint fails to allege actual malice In fact, the law requires much more in a case like this. Ms. Tysinger claims that credible internet news agencies published the allegedly false statements about her that statements about her were newsworthy. Complaint at 8. Ms. Tysinger thus concedes that she is a public figure because she is either someone with the fame or notoriety necessary for credible news agencies to publish material about her or because she has thrust herself into a public controversy worthy of news coverage. 1 See Gertz v. Robert Welch, Inc., 418 U.S. 323, 351 (1974). As a 1 Whether someone is a public figure is a question of law for this Court to decide. See, e.g., Saro Corp. v. Waterman Broad. Corp., 595 So. 2d 87, 89 (Fla. 2d DCA 1992). According to the U.S. Supreme Court, one becomes a public figure in the following two instances: In some instances an individual may achieve such pervasive fame or notoriety that he becomes a public figure for all purposes and in all contexts. More commonly 6
public figure, Ms. Tysinger must allege and prove actual malice through clear and convincing evidence. Mike Marker, Inc. v. Petersen Publishing, LLC, 811 So. 2d 841, 845 (Fla. 4th DCA 2002) (citations omitted). Proving actual malice requires a showing that Ms. Perrin Rogers published false statements with knowledge that the statements were false or with reckless disregard for whether the statements were false. Id. This is a high threshold for relief. Id.; see also Dunn v. Air Line Pilots Ass n, 193 F.3d 1185, 1197-98 (11th Cir. 1999) (citations omitted). Ms. Tysinger s Complaint includes no ultimate facts concerning actual malice. Ms. Tysinger simply states that she is a private person, Complaint at 4, 8, and that no constitutional or other privileges apply. Id. at 5-7. The few facts that Ms. Tysinger does provide contradict these self-serving legal conclusions. Ms. Tysinger s Complaint shows that she is public figure about whom more than one new agency published articles stemming from this controversy. Id. at 11. As such, without ultimate facts concerning actual malice, Ms. Tysinger s Complaint fails to state a cause of action for defamation. C. Complaint improperly realleges all preceding paragraphs Finally, Ms. Tysinger s Complaint fails to state a cause of action for intentional infliction of emotional distress. This is a fact-specific tort requiring a plaintiff to demonstrate that: (1) the defendant acted recklessly or intentionally; (2) the defendant s conduct was extreme and outrageous; (3) the defendant s conduct caused the plaintiff s emotional distress and (4) plaintiff s emotional distress was severe. Johnson v. Thigpen, 788 So. 2d 410, 412 (Fla. 1st an individual voluntarily injects himself or is drawn into a particular public controversy and thereby becomes a public figure for a limited range of issues. In either case such persons assume special prominence in the resolution of public questions. Gertz, 418 U.S. at 351. A public controversy is one where a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of the dispute as opposed to a private dispute like a divorce. See id. 7
DCA 2001). Generally, the case is one in which the recitation of facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, Outrageous! Id. at 413 (citations omitted). The entirety of Ms. Tysinger s count for intentional infliction of emotional distress provides as follows: 13. Plaintiff realleged paragraphs 1 through 12 above. 14. Defendant engaged in extreme and outrageous conduct; that is beyond the bounds of decency, atrocious, horrifyingly wicked, and utterly intolerable in a civilized community. 15. Defendant's acts were intentional and reckless; that is the Defendant intended the behavior that Defendant engaged in knew or should have known that emotional distress to Plaintiff would likely result. 16. The conduct of Defendant in fact caused Plaintiff emotional distress. 17. Plaintiff in fact sustained severe emotional distress. See Dowling v. Blue Cross of Florida, Inc., 338 So. 2d 88, 89 (Fla. 1st DCA 1976) and Fletcher v. Florida Publ'g Co., 319 So. 2d 100, 112 (Fla. 1st DCA 1975). 18. As a result of the malicious actions directed at Plaintiff, by Defendant, Plaintiff has suffered injury to her reputation, shame, humiliation, mental anguish and hurt feelings and will continue to suffer these injuries in the future. Accordingly, Plaintiff seeks an award of money damages from Defendant that will fairly and adequately compensate Plaintiff for such injuries and will vindicate the wrongs maliciously and intentionally visited upon her by Defendant. Complaint at 13-18. These paragraphs are completely devoid of any facts. The two cases cited in paragraph 17 further undermine Ms. Tysinger s claim. Complaint at 17. In Fletcher, the First District affirmed the trial court s dismissal of a claim for intentional infliction of emotional distress, finding the detailed allegations sufficient to plead the claim but an unrebutted affidavit too much to overcome. Fletcher, 319 So. 2d. at 112. Dowling did not even get beyond the pleading stage. There, the First District affirmed the trial court s 8
dismissal with prejudice of complaint that included general allegations concerning allegations of sexual relationships at the workplace. Dowling, 338 So. 2d at 88-89. Fletcher and Dowling thus require a plaintiff to provide detailed facts concerning a claim for intentional infliction of emotional distress. Ms. Tysinger fails to do this. Notably, paragraph 13 s reallegation of all preceding paragraphs makes things even harder to decipher. Complaint at 17. This is a practice condemned by Florida courts and itself is a basis to dismiss Ms. Tysinger s Complaint. See supra Section II. IV. Conclusion This Court should dismiss Ms. Tysinger s Complaint for failure to state a cause of action. See Fla. R. Civ. P. 1.140(b)(6). The Complaint is devoid of ultimate facts. The facts actually provided in the Complaint simply create the need for Ms. Tysinger to allege more to allege actual malice. And the Complaint s reallegation of all preceding paragraphs flouts the generally recognized conventions of Florida pleading. Respectfully submitted by: /s/ Mohammad O. Jazil MOHAMMAD O. JAZIL (FBN 72556) mjazil@hgslaw.com JENNIFER A. TSCHETTER (FBN 497673) jtschetter@hgslaw.com HOPPING GREEN & SAMS, P.A. 119 South Monroe Street, Suite 300 Tallahassee, Florida 32301 Telephone: (850) 222-7500 Facsimile: (850) 224-8551 Dated: March 14, 2018 Counsel for Rachel Perrin Rogers 9
CERTIFICATE OF SERVICE I HEREBY CERTIFY that a true and correct copy of this Notice of Appearance has been furnished to the following via electronic mail, this 14 th day of March, 2018, to: Marie A. Mattox MARIE A. MATTOX, P.A. 310 East Bradford Road Tallahassee, Florida 32303 Telephone: (850) 383-4800 Facsimile: (850) 383-4801 marie@mattoxlaw.com michelle@mattoxlaw.com statecourt@mattoxlaw.com marlene@mattoxlaw.com Counsel for Plaintiff /s/ Mohammad O. Jazil Mohammad O. Jazil