Defamation

MEMORANDUM OPINION AND ORDER

THIS MATTER is before the Court on Defendants’ Motion for Summary Judgment on Plaintiffs’ Defamation Claims (“Motion”).

[Doc. 467.]

Having considered the submissions of the parties and the relevant law, the Court finds that Defendants’ Motion [Doc. 467] is well taken and is GRANTED.

I.

PROCEDURAL AND FACTUAL BACKGROUND

On April 12, 2012, Plaintiffs filed a Complaint for Declaratory and Affirmative Relief in the Second Judicial District Court, County of Bernalillo, New Mexico, styled Dusti Harvey et al. v. THI of New Mexico at Albuquerque Care Center, LLC et al., Case No. D-202-CV-2012-03585.

Plaintiffs named the following “THI Facility Defendants”:

THI of New Mexico at Albuquerque Care Center, LLC;

THI of New Mexico at Valle Norte, LLC;

THI of New Mexico at Vida Encantada, LLC;

THI of New Mexico at Casa Maria, LLC;

and

THI of New Mexico at Las Cruces, LLC.

Plaintiffs also named as Defendants THI of New Mexico, LLC;

THI of Baltimore, Inc.;1

Fundamental Administrative Services, LLC;

and

Christine A. Zack.

On July 3, 2012, Defendant Fundamental Administrative Services, LLC removed the action to this Court pursuant to 28 U.S.C. § 1441(a) because it is between citizens of different States and the amount in controversy exceeds the sum of $75,000.00, exclusive of interest and costs.

[Doc. 1.]

The primary issue in this case involves allegations by the THI Facility Defendants that Plaintiffs violated the confidentiality provisions contained in several settlement agreements when they made certain statements in subsequent lawsuits referencing aggregate settlement payments they had received from THI of Baltimore, Inc., and Fundamental Long Term Care Holdings.

[Doc. 162 at 16.]

Plaintiffs filed this action seeking a declaration that they did not breach the confidentiality provisions of the settlement agreements, and bringing claims for malicious abuse of process, prima facie tort, defamation and civil conspiracy.

[See Doc. 162.]

Each of the THI Facility Defendants filed counterclaims alleging breach of contract and malicious abuse of process, and seeking specific performance, injunctive relief, and declaratory judgment.

[See Docs. 70, 71, 72, 73, 74.]

Defendant THI of New Mexico also filed a counterclaim against the Plaintiffs asserting malicious abuse of process.

[See Doc. 105.]

A.                Plaintiffs’ Defamation Claim

On June 13, 2007, the Harvey Law Firm filed suit on behalf of their then-client James Tracy against, inter alia, THI of New Mexico at Valle Norte (“THINM Valle Norte”) for injuries sustained while a resident of Valle Norte (“Tracy Lawsuit”).

[Doc. 162 at 23, ¶ 130.]

At the time of filing the Tracy Lawsuit, Mr. Tracy represented to the Harvey Law Firm that he had suffered priapism,2 had undergone a delay in receiving treatment by the nursing home, and had experienced an amputation or auto-amputation of his penis.

See THI of New Mexico at Valle Norte v. Harvey, 802 F.Supp.2d 1257, 1260 (D.N.M. 2011).

The Tracy Lawsuit therefore alleged that, while under the care of THINM Valle Norte, Mr. Tracy suffered “injuries and harm,” including but not limited to a loss of his penis. Id.

THINM Valle Norte later learned, however, that Mr. Tracy had not suffered an amputation or auto-amputation of his penis after all. Id.

In June 2008, the Harvey Law Firm withdrew from representation.

Id. at 1261.

In July 2008,

Mr. Tracy voluntarily dismissed his lawsuit. Id. In August 2008, the district court granted THI’s motion for summary judgment. Id. All of Mr. Tracy’s claims were dismissed with prejudice.

[Doc. 467 at 6, ¶ 5.]

On September 20, 2010, THINM Valle Norte filed a complaint in federal court (“Valle Norte Lawsuit”) alleging that the Harvey Law Firm had initiated the Tracy

Lawsuit without probable cause.

[Doc. 467 at 6, ¶ 3.]

One of the attorneys representing THINM Valle Norte in the Valle Norte Lawsuit was Bryan J. Davis.

On November 16, 2010, the Albuquerque Journal published an article about the Valle Norte Lawsuit titled “Nursing Home Sues Over Case.”

[Doc. 467 at 6, ¶ 6.] Therein, Attorney Davis was quoted as saying,

“I think it’s a case that needs to be prosecuted to show lawyers in the state that you can’t just file garbage and expect to get away with it.”

[Doc. 467 at 6-7, ¶ 8; Doc. 467-2.]

Plaintiffs claim in their Complaint here that they were wrongfully disparaged and defamed by the Defendants because Attorney Davis stated in reference to the Tracy Lawsuit that

“you can’t just file garbage and expect to get away with it.”

[Doc. 162 at 24, ¶ 135.]

Plaintiffs also claim that Defendants’ disparagement and defamation was done purposefully and maliciously with the intent to injure their business and law practice and their personal and professional reputations.

[Doc. 162 at 24, ¶ 136.]

B.                The Albuquerque Journal Article

The Albuquerque Journal article “Nursing Home Sues Over Case” is a news story about THINM Valle Norte suing the Harvey Law Firm in federal court “over what it says was a false allegation that it was responsible for the amputation of a man’s penis.”

[Doc. 467-2.]

The article identifies the parties to the litigation as THI Valle Norte, Dusti Harvey, Feliz Rael, and the Harvey Law Firm. [Id.]

The article provides quotes from the federal court complaint stating that the nursing home was claiming the Harvey Law Firm had filed the Tracy Lawsuit “without probable cause to believe that the central allegation that he had suffered an amputation or auto-amputation of his penis was true,” and that “despite the lawsuit’s repeated claims that the patient – now deceased – had lost his penis, before-and-after photos prove that’s not the case.” [Id.]

The article also quotes directly from the Tracy Lawsuit wherein plaintiff “claimed Valle Norte nursing home, where the patient resided during April 2005, failed to adequately assess, evaluate or supervise nursing staff.

The result, the complaint said, was ‘severe delay in treatment of priapism resulting in loss of (his) penis.’” [Id.]

The article explains that the Harvey Law Firm eventually withdrew from representing Mr. Tracy and that the Tracy Lawsuit was dismissed on summary judgment before trial. [Id.]

The remainder of the article consists of several comments made on behalf of the parties. Attorney Jack Brant spoke on behalf of the Harvey Law Firm, and Attorney Bryan Davis spoke on behalf of THINM Valle Norte. The following comments are attributed to Attorney Jack Brant:

Attorney Jack Brant, who is representing the Harvey Law Firm, said misidentifying a claim doesn’t equate to malicious abuse of process.

“The important thing is, he did suffer a very serious injury to his penis and it caused a lot of distress and permanent impairment, pain, scarring,”

Brant said.

“Did they make representations his penis had been amputated or autoamputated? Yes. Maybe that’s not true. But in our view, it was still a valid lawsuit.”

“The claim in the underlying case, and what we contend in this case as well, is that he reported the condition to the nursing home people and they treated it as a joke and didn’t get him care,”

Brant said.

The following comments were attributed to Attorney Bryan Davis:

Bryan Davis, the attorney representing THI, said he believes the amputation claim wasn’t adequately investigated and was filed for the purpose of gaining a tactical advantage in other lawsuits against the nursing home.

“I think we will prove to the court that (the Harvey firm) did not investigate the claim in any significant manner. They took their client’s word for it that he had been horribly injured. It’s not like he slammed his finger in the door,”

Davis said.

Davis said THI is pressing its lawsuit to vindicate its rights and recoup the “hundreds of thousands of dollars” the corporation incurred in legal fees and costs.

“I think it’s a case that needs to be prosecuted to show lawyers in the state that you can’t just file garbage and expect to get away with it,” he said.

[Id.]

II.

SUMMARY JUDGMENT STANDARD

“The court shall grant summary judgment if the movant shows that 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).

“A fact is ‘material’ if, under the governing law, it could have an effect on the outcome of the lawsuit. A dispute over a material fact is ‘genuine’ if a rational jury could find in favor of the nonmoving party on the evidence presented.”

Adamson v. Multi Cmty. Diversified Servs., Inc., 514 F.3d 1136, 1145 (10th Cir. 2008) (internal citations omitted).

“The factual record and reasonable inferences therefrom are viewed in the light most favorable to the party opposing summary judgment.”

Byers v. City of Albuquerque, 150 F.3d 1271, 1274 (10th Cir. 1998).

“It is not [the court’s] province at the summary judgment stage to weigh the evidence or make credibility determinations.”

Sanders v. Sw. Bell Tele., L.P., 544 F.3d 1101, 1105-06 (10th Cir. 2008).

III. ANALYSIS

Defendants move this Court for summary judgment on Plaintiffs’ defamation claim, arguing that Attorney Davis’s characterization of the Tracy Lawsuit as “garbage” is unambiguously a nonactionable opinion.

[Doc. 467 at 15.]

The Court agrees that as a matter of law Attorney Davis’s comment is a statement of opinion and Defendants are therefore entitled to summary judgment in their favor.

Under New Mexico law, a prima-facie case of the tort of defamation includes:

(1) a published communication by the defendant;

(2) the communication includes an asserted statement of fact;

(3) the communication was concerning the plaintiff;

(4) the statement of fact is false;

(5) the communication was defamatory;

(6) the persons receiving the communication understood it to be defamatory;

(7) the defendant knew the communication was false or negligently failed to recognize that it was false, or acted with malice;

(8) the communication caused actual injury to the plaintiff’s reputation;

and

(9) the defendant abused its privilege to publish the communication.

Civ. UJI 13- 1002(B) NMRA.

The Supreme Court of the United States has held that under the First Amendment to the United States Constitution a statement can serve as a basis for a defamation claim only if it is a statement of fact and not of opinion.

Gertz v. Robert Welch, Inc., 418 U.S. 323, 339-40, 94 S.Ct. 2997, 3007 (1974).

Thus, “[a]n action for defamation lies only for false statements of fact and not for statements of opinion.”

Mendoza v. Gallup Indep. Co., 107 N.M. 721, 723, 764 P.2d 492, 494 (N.M. Ct. App. 1988)(citing Saenz v. Morris, 106 N.M. 530, 533, 746 P.2d 159, 162 (N.M. Ct. App. 1987)).

Whether statements are capable of a defamatory meaning is initially a question of law for the court.

Mendoza, 107 N.M. at 724-25, 764 P.2d at 495-96 (citations omitted).

Whether a statement asserts a fact turns on whether the statement is verifiable – whether it “is sufficiently factual to be susceptible of being proved true or false.”

Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 2707 (1990).

See Moore v. Sun Publ’g Corp., 118 N.M. 375, 382, 881 P.2d 735, 742 (N.M. Ct. App. 1994)

(New Mexico requires verifiability as the controlling element in determining whether a statement is fact or opinion).

In resolving the distinction between fact and opinion, the trial court should consider:

(1) the entirety of the publication;

(2) the extent that the truth or falsity of the statement may be determined without resort to speculation;

and

(3) whether reasonably prudent persons reading the publication would consider the statement to be an expression of opinion or a statement of fact.

Marchiondo v. Brown, 98 N.M. 394, 401, 649 P.2d 462, 469 (1982).

“If the material as a whole contains full disclosure of the facts upon which the [] opinion is based and which permits the reader to reach his own opinion, the court in most instances will be required to hold that it is a statement of opinion[.]”

Marchiondo, 98 N.M. at 404, 649 P.2d at 472

(quoting Kutz v. Independent Pub. Co., Inc., 97 N.M. 243, 245, 638 P.2d 1088, 1090 (N.M. Ct. App. 1981)).

The distinction [between statements of fact and opinion] frequently is a difficult one, and what constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole.

Thus, where potentially defamatory statements are published in a public debate, a heated labor dispute, or in another setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language which generally might be considered as statements of fact may well assume the character of statements of opinion.

Mendoza, 107 N.M. at 723, 764 P.2d at 494

(quoting Gregory v. McDonnell Douglas Corp., 131 Cal.Rptr. 641, 644, 552 P.2d 425, 428 (1976))(emphasis added).

“Some statements are clearly statements of opinion: What ought to be done, the propriety or aesthetic or moral worth of some act or object.”

Marchiondo, 98 N.M. at 400, 649 P.2d at 468

(quoting Marchiondo v. New Mexico State Tribune Co., 98 N.M. 282, 291, 648 P.2d 321, 330 (N.M. Ct. App. 1981)

(quoting R. Sack, Libel, Slander and Related Problems, § IV.2 at 155-56 (1980)).

Applying these standards to Attorney Davis’s statement, the Court finds it expresses opinion rather than fact.

Under the first prong identified in Marchiondo for distinguishing between fact and opinion, the Court considers the entirety of the article.

Here, the article is a news story reporting about a recently filed lawsuit.

Lawsuits inherently involve parties engaged in an adversarial process armed with opposing points of view about the facts and the law.

Parties engaged in litigation are typically deeply committed to their respective points of view and expect their lawyers to zealously assert their positions under the rules of the adversary system.3

Comments elicited by a reporter from the parties’ lawyers about the lawsuit would naturally reflect the parties’ conflicting positions.

In light of the nature and content of the communication taken as a whole, the readers in this instance could anticipate from the outset efforts by the parties’ lawyers to persuade others to their positions by use of “epithets, fiery rhetoric or hyperbole.”

Mendoza, 107 N.M. at 723.

Here, for example, on the one hand, Attorney Brant commented that when Mr. Tracy reported his priapism to the nursing home they treated it as a “joke.”

On the other hand, Attorney Davis referenced the Tracy Lawsuit as “garbage.”

Both of these expressions exemplify the very definition of hyperbole; i.e., exaggeration.

Considering the entirety of the article, the reader is alerted to the fact that Attorney Davis is commenting on behalf of his client and that his use of the adjective “garbage” was nothing more than rhetorical hyperbole.

See Marchiondo, 98 N.M. at 400, 649 P.2d at 468

(Statements regarding the propriety or aesthetic or moral worth of some act or object are clearly statements of opinions.);

see also Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir. 2002)

(holding that book authored by former presidential aide characterizing stories written about former president’s alleged affair with plaintiff as “trash,” “crap” and “garbage” were nothing more than generic invective and would not support a defamation claim).

Under the second prong of Marchiondo, the question is whether the truth or falsity of the statement may be determined without resort to speculation.

In other words, did Attorney Davis’s statement imply any undisclosed defamatory facts as the basis of his opinion?

See Kutz, 97 N.M. at 246, 638 P.2d at 1091

(holding that statements based on privately-held information that does not appear in the article create an issue of falsity or truth of the underlying but undisclosed facts).

Here, the article discloses the entirety of the factual basis for Attorney Davis’s opinion.

The names of the parties are disclosed.

The names of the lawyers representing the parties are disclosed.

The gist of both the Tracy Lawsuit and the Valle Del Norte Lawsuit is disclosed.

The readers know the overarching debate at play between the parties; i.e., whether representing in a lawsuit that a man’s penis had been amputated, inter alia, when his penis was in fact intact amounts to malicious abuse of process.

When Attorney Davis made his comment referencing the Tracy Lawsuit as “garbage,” the readers did not have to speculate about the basis for his opinion or question whether he was referring to something beyond the four corners of the article.

His comment was focused directly on the Harvey Law Firm’s filing of the Tracy Lawsuit and nothing more.

Plaintiffs themselves indicate that Attorney Davis was specifically referencing the Tracy Lawsuit when he stated “you can’t just file garbage and expect to get away with it.”

[Doc. 162 at 24, ¶ 135.]

Thus, Plaintiffs’ argument that Attorney Davis’s statement was meant to “brand Ms. Harvey as a dishonest lawyer, and her firm as a disreputable, perfidious firm” is unpersuasive because there is no implication that Attorney Davis was referring to anything other than the Tracy Lawsuit.

The reader here was left to reach his or her own opinion about whether or not the Tracy Lawsuit was “garbage” or a valid lawsuit, as represented by Attorney Brant, despite the misrepresentation regarding the amputated penis.

“If the material as a whole contains full disclosure of the facts upon which the [] opinion is based and which permits the reader to reach his own opinion, the court in most instances will be required to hold that it is a statement of opinion[.]”

Marchiondo, 98 N.M. at 404, 649 P.2d at 472.

Finally, under the third prong of the Marchiondo analysis, the question is whether a reasonably prudent person reading the publication would consider the statement to be an expression of opinion or a statement of fact.

As previously stated, the reader here was fully aware that the article was reporting on a recently filed lawsuit involving adversarial positions.

The article contained facts about both the Tracy Lawsuit and Valle Norte Lawsuit and included comments from the parties’ lawyers.

The Court is hard pressed to find that even a careless reader, after reading the entire article, would not have understood that Attorney Davis’s use of the adjective “garbage” was rhetorical hyperbole used for the sole purpose of advancing his client’s position.

In addition, other than Dusti Harvey stating that certain “categories of people” had mentioned the article to her [Doc. 510 at 4], Plaintiffs have not provided any evidence that anyone understood Attorney Davis’s comment to be a statement of fact.

That said, whether a statement is capable of a defamatory meaning is initially a question of law for the trial court, not a question of fact.

Mendoza, 107 N.M. at 110-111, 764 P.2d at 495-96.

In this case, a reasonably prudent person reading the article would consider Attorney Davis’s comment and the use of the adjective “garbage” as an expression of opinion.

Having applied the analysis as set forth by the New Mexico Supreme Court in Marchiondo v. Brown for distinguishing between fact and opinion, the Court finds as a matter of law that Attorney Davis’s comment is a statement of opinion and Defendants are entitled to summary judgment on Plaintiff’s defamation claim.

Given the Court’s ruling, the Court will not address Defendants’ arguments for summary judgment based on absolute privilege or whether THI Valle Norte can be held liable for Attorney Davis’s statement.

CONCLUSION

WHEREFORE, IT IS THEREFORE HEREBY ORDERED that Defendants’

Motion for Summary Judgment on Plaintiffs’ Defamation Claim [Doc. 467] is

GRANTED.

SO ORDERED THIS 31st day of March, 2014, in Albuquerque, New Mexico.

M. CHRISTINA ARMIJO
Chief Judge, United States District Court

Pursuant to Rule 56 of the Federal Rules of Civil Procedure, Defendants THI of New Mexico at Albuquerque Care Center, LLC, THI of New Mexico at Valle Norte, LLC, THI of New Mexico at Vida Encantada, LLC, THI of New Mexico at Casa Maria, LLC, THI of New Mexico at Las Cruces, LLC, THI of New Mexico, LLC (THINM) and Fundamental Administrative Services (FAS)1 (collectively, “Moving Defendants”), respectfully seek summary

judgment dismissing all of the Harvey Plaintiffs’2 defamation claims against them. In support, Moving Defendants submit their exhibits and state:

I.

INTRODUCTION AND BASIS FOR SUMMARY JUDGMENT

This case stems from the continuous, systemic, and repetitive breaches of ten specific confidentiality provisions by the Harvey Plaintiffs.

On behalf of herself and the Harvey Law Firm, LLC, Dusti Harvey signed ten settlement agreements containing explicit confidentiality provisions related to the settlement of lawsuits in which it had represented clients in claims against various Moving Defendants.

In exchange for the settlement agreements, including the confidentiality provisions, the Harvey Plaintiffs received monetary compensation.

Despite Harvey personally signing each confidentiality agreement, the Harvey Plaintiffs inexplicably proceeded to disseminate information in the public domain, breaching confidentiality.

As a result of these continuous breaches, in December 2011, each of the five independent nursing home Moving Defendants3 filed separate lawsuits against Harvey and the Harvey Law Firm in the appropriate New Mexico State court in an effort to redress these repeated violations of the distinct confidentiality.

Each of the five state court complaints asserted claims for breach of contract, specific performance, injunctive relief, and declaratory relief.

Thereafter, rather than seeking to consolidate those cases, the Harvey Plaintiffs instead

moved to stay each of them4 and, filed this retaliatory lawsuit against the five nursing home entities.

In addition, the Harvey Plaintiffs added as defendants three other entities and one individual (THI of New Mexico, LLC, THI of Baltimore, Inc., FAS, and FAS employee, Christine Zack).

The Harvey Plaintiffs contended that filing this suit, and including four additional parties which had not been involved in the five state court suits, and staying the five state court lawsuits while this suit was pending, was done to consolidate the cases and conserve judicial and economic resources.5

The Harvey Plaintiffs included among their six counts one for defamation.6

The Harvey Plaintiffs’ defamation claim is based upon a wholly separate and distinct lawsuit filed in September 2010 by THI of New Mexico at Valle Norte, LLC (“Valle Norte”) against the Harvey Plaintiffs (the “Valle Norte Lawsuit”).

Valle Norte filed the Lawsuit after the Harvey Plaintiffs filed and pursued a frivolous complaint against Valle Norte, related to a former resident at Valle Norte named James Tracy (the “Tracy Lawsuit”).

In the Lawsuit, Valle Norte sought damages from the Harvey Plaintiffs for malicious abuse of process and attorney deceit.

The Valle Norte Lawsuit was assigned to the Hon. William P. Johnson.

While Judge Johnson ultimately granted the Harvey Plaintiffs’ motion for summary judgment, he expressly found that Valle Norte “clearly had a good faith factual basis to believe that HLF’s conduct in the [Tracy Lawsuit] was wrongful” (UMF 11) and that there was evidence showing that HLF intended to deceive both Valle Norte and the district court (UMF 12).

The Harvey Plaintiffs’ cause of action for defamation in the case before this Court is based solely on a statement attributed to an attorney for Valle Norte during the pendency of the Valle Norte Lawsuit, as alleged in Paragraph 135 of the Second Amended and Interlineated Complaint, Dkt. 162 (“SAC”):

135. After the Valle Norte Suit was filed, THI, through counsel for Valle Norte, Bryan Davis, wrongfully disparaged and defamed HLF by stating in a reported news story in the Albuquerque Journal, published on or about November 16, 2010 and in reference to the Tracy Lawsuit that “you can’t just file garbage and expect to get away with it.”7

SAC at ¶¶ 135 and 168.

As explained below, Moving Defendants are entitled to summary judgment on the defamation claims against them because:

·         Mr. Davis’ allegedly defamatory statement is protected by the absolute privilege doctrine under New Mexico Supreme Court authority;

·         The Harvey Plaintiffs cannot establish a prima facie case of defamation against Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM, or FAS because none of these entities ever published a “defamatory” communication;

·         THINM is a holding company with no employees that could not, in any event, have made any actionable “defamatory” statement;

·         Mr. Davis’ use of imaginative expressions and rhetorical hyperbole are forms of nonactionable opinion, not statements of fact and, indeed, several courts have held that the use of the term “garbage” is not actionable;

and

·         Valle Norte cannot be held accountable for the statement of its outside counsel (Mr. Davis) in the Valle Norte Lawsuit.

The Harvey Plaintiffs’ defamation claims have no merit.

After a full opportunity for discovery, there is nary a shred of evidence or proof to support any claim for defamation against any of the Moving Defendants in this lawsuit.

No undisputed facts exist with respect to the Harvey Plaintiffs’ defamation claims and the Moving Defendants are entitled to summary judgment on this claim as a matter of law.

II.

UNDISPUTED MATERIAL FACTS

1.                  On July 7, 2007, the Harvey Plaintiffs filed a Complaint on behalf of James Tracy and against Valle Norte in the First Judicial District Court for the County of Santa Fe (the “Tracy Complaint”). The Tracy Complaint alleged that Mr. Tracy suffered injuries and harm while he was a resident of Valle Norte Caring Center and specifically alleged that

“Mr. Tracy suffered …. severe delay in treatment for priapism resulting in a loss of his penis ….

8 (Valle Norte Lawsuit, Dkt. 1 at ¶¶ 11 and 12).

2.                  After pictures ultimately revealed that Mr. Tracy did not, in fact, suffer from an “amputation” or “auto-amputation” of his penis as alleged, Valle Norte retained Bryan J. Davis of Davis & Gilchrist, P.C. to pursue a malicious abuse of process claim against the Harvey Plaintiffs.

(See Exhibit “A,” Excerpts from the Deposition testimony of Benjamin R. Ogletree —

in his capacity as 30(b)(6) witness for Valle Norte) — at 83).

1.                  On September 20, 2010, Mr. Davis filed Valle Norte’s Complaint in the Valle Norte Lawsuit against the Harvey Plaintiffs.

(Valle Norte Lawsuit, Dkt. 1).

2.                  Valle Norte’s Complaint alleged malicious abuse of process related to the Tracy case and attorney deceit, and asserted that:

(a) subsequent to filing the Tracy Complaint, the Harvey Plaintiffs repeatedly represented to counsel for Valle Norte that Mr. Tracy suffered an “amputation” or “auto-amputation” of his penis;

(b) the Harvey Plaintiffs prosecuted these baseless claims without any medical evidence to show that Mr. Tracy suffered an amputation or auto-amputation; and (c) only at mediation on April 7, 2008 were pictures produced by the Harvey Plaintiffs showing that Mr. Tracy’s penis was intact.

(Valle Norte Lawsuit, Dkt. 1 at pages 2-6).

3.                  Ultimately, all claims of Mr. Tracy in the Tracy Lawsuit were dismissed with prejudice.

(Valle Norte Lawsuit, Dkt. 1 at ¶ 37).

4.                  Approximately one month after Valle Norte Lawsuit was filed, a news story related appeared in the Albuquerque Journal in which attorneys for both Valle Norte and the Harvey Plaintiffs were quoted.

See Scott Sandlin, Nursing Home Sues Over Case, Albuquerque Journal (Nov. 16, 2010),

http://www.abqjournal.com/news/state/16232188459newsstate11-16-10.htm

(the “Sandlin Article”) (Ex. “B”).

5.                  The Sandlin Article contained numerous quotes attributed to counsel for each party discussing their respective opinions, beliefs, and arguments regarding the Valle Norte Lawsuit.

(Exhibit “B”).

6.                  The Sandlin Article includes the following statement attributed to Mr. Davis:

“I think it’s a case that needs to be prosecuted to show lawyers in the state that you can’t just file garbage and expect to get away with it.”

(Exhibit “B”).9

7.                  On August 4, 2011, Judge Johnson issued a Memorandum Opinion and Order Granting Defendants’ Motion for Summary Judgment (the “Valle Norte Opinion”) in the Valle Norte Lawsuit.10

8.                  The Valle Norte Opinion reflects that Valle Norte sued the Harvey Plaintiffs for pursuing the Tracy Lawsuit after learning that their client, Mr. Tracy, had no basis for his claim that he had “experienced an amputation or auto-amputation of his penis.” Valle Norte, 802 F. Supp. 2d at 1260.

9.                  The Valle Norte Opinion held:

“To be clear, the Court today finds only that the malicious abuse of process tort does not encompass claims such as [Valle Norte] brings here, because the tort is construed very narrowly and presents the potential for serious abuse by litigants and their lawyers. …

The Court does not, however, condone the inclusion of unfounded allegations in a complaint which are not supported by probable cause, or deliberately misrepresenting facts to an opposing party in informal communications or settlement negotiations.

On the undisputed facts, [Valle Norte] clearly had a good faith factual basis to believe that HLF’s conduct in the underlying lawsuit was wrongful.

But the evidence fails, as a matter of law, to support the claims alleged in the complaint.

Valle Norte, 802 F. Supp. 2d at 1265 (emphasis added).

10.              The Valle Norte Opinion also found: “Dr. Milroy, a urologist, issued a report after he examined Mr. Tracy’s condition in May of 2006, which documented the continued

existence of Mr. Tracy’s penis . . . HLF does not dispute that it possessed this report before filing suit, that it did not produce this report in discovery, and that it instead turned over a medical release after indicating that [Valle Norte] already had all relevant medical records in its possession… HLF’s argument that there is no evidence that the firm ‘intended’ to deceive [Valle Norte] or the district court, therefore, fails. There is undisputed evidence in the record from which a reasonable jury could infer that the firm deliberately withheld the evidence described above in order to mislead [Valle Norte] about the condition of Mr. Tracy’s penis.” Valle Norte, 802 F. Supp. 2d at 1266 (emphasis added).

1.                  The quotation contained in Paragraph 8, above, is the sole statement that the Harvey Plaintiffs rely upon for their defamation claims in this case. (Dkt. 162 at ¶¶ 135, 168).

2.                  The Harvey Plaintiffs have no damages as a result of the alleged defamation, as Ms. Harvey testified at her deposition:

Q.    And what’s each element of damages – as to each element of damages for defamation, what evidence do you have currently?

A.  I don’t know at this time.

Q. What witnesses will testify that can support the claim of damages for defamation?

A. I don’t know at this time. (Harvey Dep. 244:12-18).

3.                  Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM, and FAS were not parties to nor otherwise in any way involved in the Valle Norte Lawsuit. (Exhibits “C,” “D,” “E,” “F,” “G,” and “H”).11

4.                  THINM is a holding company with no employees that played no role in the day- to-day operations of any of the Moving Defendant facilities in this case. (Exhibit “G”).

III. STANDARD OF REVIEW

Rule 56(a) of the Federal Rules of Civil Procedure states:

“The court shall grant summary judgment if the movant shows that 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).

Initially, the party moving for summary judgment bears the burden of showing the absence of evidence to support the nonmoving party’s case.

Bacchus Indus., Inc. v. Arvin Indus., Inc., 939 F.2d 887, 891 (10th Cir. 1991).

Once that burden is met, the nonmoving party is required to designate specific facts showing that there is a genuine issue for trial.

See Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986).

But “the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment.”

Brubach v. City of Albuquerque, 893 F. Supp. 2d 1216, 1222 (D.N.M. 2012).

If there is no genuine issue of material fact in dispute, the movant is entitled to summary judgment in its favor as a matter of law. Id.

IV.
ARGUMENT AND AUTHORITIES

A.              HLF’s  Defamation  Claim  Fails  As  A  Matter  Of  Law  Because  Mr.  Davis’ Statement Is Protected By the Absolute Privilege Doctrine.

As the New Mexico Supreme Court recently reiterated, for almost 40 years, New Mexico courts have recognized that allegedly defamatory statements made by litigants or their attorneys after a lawsuit has been filed are absolutely privileged when the statements are reasonably related to the lawsuit.

See Helena Chem. Co. v. Uribe, 281 P.3d 237, 240 (N.M. 2012)

(allegedly defamatory statements made by litigants or their attorneys to the press after a lawsuit has been filed “are absolutely privileged if the statements are a repetition or an explanation of the allegations in the pleadings.”)12;

Romero v. Prince, 513 P.2d 717, 719-20 (N.M. Ct. App. 1973)

(allegedly defamatory statements are “absolutely privileged if the statement is … related to those proceedings.”) (emphasis added);

see also Gelinas v. Gabriel, 741 P.2d 443, 443-44 (N.M. Ct. App. 1987)

(approving Romero and holding that “[a]s long as the statement is reasonably related, that is all that is required”) (emphasis added);

Candelaria v. Robinson, 606 P.2d 196, 199 (1980) (same).

New Mexico courts follow the Restatement (Second) of Torts, which states:

An attorney at law is absolutely privileged to publish false and defamatory matter of another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as part of a judicial proceeding in which he [or she] participates as counsel, if it has some relation thereto.

Helena, 281 P.3d at 241

(citing Restatement (Second) of Torts, § 586 (1977) (emphasis added).

The policy underlying the absolute privilege doctrine is the desire to afford attorneys and litigants “the utmost freedom in their efforts to secure justice for their clients.”

Helena, 281 P.3d at 241 (quoting Romero, 513 P.2d at 719).

Last year, the New Mexico Supreme Court considered facts analogous to the case at bar and affirmed the district court’s grant of summary judgment — holding the absolute privilege doctrine barred a lawsuit for defamation against the attorney and his client for statements made at a press conference.

Helena, 281 P.3d at 247.

In Helena, the attorney and his client held a press conference one day after filing a toxic-tort lawsuit.

Id. at 246.

During that press conference, the client allegedly described her children’s medical issues as “upper respiratory problems, pneumonia and bad allergies, [and] bloody noses.”

Id.

Her attorney then stated,

“[t]he underground water has been contaminated.”

Id.

The defendant in the underlying toxic-tort case — a crop-protection company — claimed that the statements defamed it and, in turn, filed its own

lawsuit against the attorney and his client for defamation.

Id. at 240.

The attorney and client moved for summary judgment, asserting that the absolute privilege doctrine barred the defamation action as a matter of law because the statements were made in the course of pending litigation and were related to the judicial proceedings.

Id.

The Supreme Court affirmed the summary judgment granted by the district court and specifically rejected the court of appeals’ conclusion that the statements were not absolutely privileged because they were made in the presence of the press.

Id.241.13

The Helena Court’s analysis began with the premise that republishing, repeating, or explaining a complaint that was filed in good faith14 should be absolutely privileged because:

[i]n the age of digital communication, it is illogical to protect allegations in a publically filed complaint but not repetition or explanation of those same allegations outside the courthouse.

Id. at 246.

After reviewing the allegations in the complaint15, the Helena court held and recognized that the alleged defamatory statements were merely an explanation of various allegations in the complaint.

Id.

Significantly, the Helena court noted that providing the media with a description of the allegations underlying a lawsuit “has no practical effect different from providing the

pleadings to the media.”

Helena, 281 P.3d at 246-247, citing Dallas Indep. School Dist. v. Finlan, 27 S.W.3d 220, 239 (Tex. App. 2000)

(“The harm resulting to a defamed party from delivery of pleadings in a lawsuit to the news media could demonstratively be no greater than if the news media found the pleadings on their own.”).

Helena is directly on point and mandates that summary judgment be granted here.

The approach taken by the Supreme Court in Helena shows that Mr. Davis’ allegedly defamatory statement is merely an explanation of the allegations made by Valle Norte in the Valle Norte Lawsuit.

As a preliminary matter, the crux of the Valle Norte Lawsuit was that the Tracy Lawsuit16 was baseless and unfounded.

Valle Norte’s complaint in the Valle Norte Lawsuit stated, in part, The Harvey Plaintiffs “prosecuted Mr. Tracy’s baseless claims without any medical evidence to show that Mr. Tracy suffered an amputation or auto-amputation of his penis….”

Valle Norte Lawsuit, Dkt. 1 at ¶ 14. (Emphasis added).

The Valle Norte Lawsuit also alleged that the Harvey Plaintiffs sent “a compact disc containing 274 pages of medical records concerning Mr. Tracy — none of which evidenced any amputation or auto-amputation of Mr. Tracy’s penis.”

Valle Norte Lawsuit, Dkt. 1 at ¶ 17. (Emphasis added).

Furthermore, photographs presented by the Harvey Plaintiffs at mediation proceedings (nine months after the filing of the Tracy Lawsuit) “depicted an intact penis.”

Valle Norte Lawsuit, Dkt. 1 at ¶¶ 26, 27 (emphasis added).

Indeed, the complaint in the Valle Norte Lawsuit repeatedly alleged that the Harvey Plaintiffs continued to represent that Mr. Tracy had suffered an “auto-amputation” of his penis and demanded extraordinary amounts of money to settle the claim.

Valle Norte Lawsuit, Dkt. 1 at ¶¶ 14, 18, 21, 22, 27, 28, 29, 30, 31, 32 and 33.

Accordingly, as in Helena, Mr. Davis’s

statement merely repeats and explains the allegations in Valle Norte’s pleadings.

See Helena, 281 P.3d at 246.

Further, Mr. Davis’s statement neither described anything, nor had an effect, different from that which would have been accomplished had the media read the pleadings themselves.

Id.

Finally, the use of imaginative expressions like “garbage” (rather than “baseless”), to explain Valle Norte’s allegations and motivation to sue in the Valle Norte Lawsuit does not alter the protection provided to Mr. Davis’ statement by the absolute-privilege doctrine.

Simply put, it is not necessary for the privilege to attach that the words claimed to be defamatory be contained in a pleading.

Helena, 281 P.3d at 241, citing Romero, 513 P.2d at 720

(“it is not absolutely essential, in order to obtain the benefits of absolute privilege, that the language claimed to be defamatory be . . . contained in a pleading, brief, or affidavit.”);

accord, Superior Const., Inc. v. Linnerooth, 712 P.2d 1378, 1381 (N.M. 1986).

Instead, if the statement is “reasonably related” to the proceeding, the absolute privilege applies.

Romero, 513 P.2d at 720

(letter written by counsel during ongoing judicial proceeding was “reasonably related” to judicial proceeding; absolute privilege applied).

Mr. Davis’ explanation of Valle Norte’s claims and allegations in the Valle Norte Lawsuit is absolutely privileged. Summary judgment should be granted for all of the Moving Defendants.

A.              SUMMARY JUDGMENT IS PROPER BECAUSE HLF CANNOT ESTABLISH A PRIMA FACIE Case Of Defamation.

In the unlikely event that the Court does not apply the absolute privilege doctrine, the Harvey Plaintiffs’ defamation claim still fails as a matter of law.

In New Mexico, a prima facie case of defamation requires:

(1)   a published communication by the defendant;

(2) the communication includes

an asserted statement of fact;

(3) the communication was concerning the plaintiff;

(4) the statement of fact is false;

(5) the communication was defamatory;

(6) the persons receiving the communication understood it to be defamatory;

(7) the defendant knew the communication was false or negligently failed to recognize that it was false, or acted with malice;

(8) the communication caused actual injury to the plaintiff’s reputation;

(9) the defendant abused its privilege to publish the communication.

See Civ. U.J.I. 13-1002(B) N.M.R.A.

As an initial matter, HLF cannot establish the threshold element of its prima facie case of defamation against Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM, or FAS because it is undisputed that neither they, nor anyone on their behalf, made and/or published a “defamatory” statement.

Further, Mr. Davis’ statement is an opinion as a matter of law — rather than a statement of existing fact. All Moving Defendants are entitled to summary judgment.

1.                  Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM, and FAS Never Published A Defamatory Communication.

Under New Mexico law, to establish a claim of defamation, the plaintiff must first prove that the defendant published a communication.

See 13-1002(B).

In this case, however, it is undisputed that neither Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM, nor FAS ever published a defamatory communication.

Indeed, the SAC does not even allege that Albuquerque Care, Casa Maria, Las Cruces, or Vida Encantada did so. (Dkt. 162 at ¶ 135).

Nor is there any specific allegation with regard to a defamatory statement by or on behalf of FAS or THINM, as the sole plaintiff pursuing the Valle Norte Litigation was Valle Norte.

However, because the SAC asserts that these defendant facilities participated in a “civil conspiracy to commit” defamation, these Defendants join in this motion.

Simply put, Mr. Davis was not counsel to Albuquerque Care, Casa Maria, Las Cruces, Vida Encantada, THINM and FAS. (UMF 2 and 14).

Further, THINM is a holding company with no employees and it played no role whatsoever in the day-to-day operations of Valle Norte. (UMF 15).

Nary a shred of evidence exists that THINM was involved in any way in the Valle Norte Lawsuit or that THINM made the alleged statement “through counsel for Valle Norte.”

Summary judgment should be granted for each of these defendants.

2.                  Mr. Davis’ Use of Imaginative Expressions and Rhetorical Hyperbole Are Nonactionable Opinion, Not Statements of Fact and several courts have held that the use of the expression “garbage” is not actionable.

The Harvey Plaintiffs’ defamation claims also fail as a matter of law because Mr. Davis’ characterization of the Tracy Lawsuit as “garbage” is unambiguously nonactionable opinion.

See, e.g., Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 13-14 (1970)

(characterizing the plaintiff’s negotiating position as blackmail “was no more than rhetorical hyperbole, a vigorous epithet used by those who considered [the plaintiff’s] negotiating position extremely unreasonable.”);

Mikovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990); and Greenbelt Coop., 398 U.S. at 13-14

(use of imaginative expressions, rhetorical hyperbole, and epithets are forms of nonactionable opinion). In the law of defamation, it is beyond dispute that statements of mere opinion are not actionable.

Marchiondo v. Brown, 649 P.2d 462, 472 (N.M. 1982);

Heyward v. Credit Union Times, No. Civ 12-0258, 2012 WL 6632764, at *17 (D.N.M. Dec. 17, 2012)

(“[a]n action for defamation lies only for false statements of fact and not for statements of opinion.”).

In resolving the distinction between fact and opinion, the court should consider:

(i) the entirety of the publication;

(ii) the extent that the truth or falsity of the statement may be determined without resort to speculation;

and

(iii) whether reasonably prudent persons reading the publication would consider the statement to be an expression of opinion or a statement of fact.

Marchiondo, 649 P.2d at 469; see also Mendoza v. Gallup Independent Co., 764 P.2d 492, 494 (Ct. App. N.M. 1988).

Application of this test confirms that Mr. Davis’ “defamatory statement” is a statement of opinion rather than fact.

i.                         Considering the context of the entire publication, Mr. Davis’ statement is unambiguously a statement of opinion.

What constitutes a statement of fact in one context may be treated as a statement of opinion in another, in light of the nature and content of the communication taken as a whole.

Mendoza, 764 P.2d at 494, citing Gregory v. McDonnel Douglas Corp., 552 P.2d 425, 428 (Cal. 1976).

Thus, “[when] considering the ‘entirety’ requirement, the published statement must be read in context.”

Mendoza, 764 P.2d at 494.

In doing so, the court must consider all the words used, not merely a particular phrase or sentence; and it must consider all of the surrounding circumstances, including the medium used and the audience to which it is published.

Howell v. Enter. Publ’ng Co., LLC, 920 N.E.2d 1, 28 (Mass. 2010).

Most significantly, an alleged defamatory statement published in a

“setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of epithets, fiery rhetoric or hyperbole, language . . . may well assume the character of statements of opinion.”

Mendoza, 764 P.2d at 494, citing Gregory, 552 P.2d at 428.

Mendoza is particularly instructive in the context of Mr. Davis’ statement and the case at bar.

The Sandlin Article containing Mr. Davis’ comment discusses the positions of both sides to the Valle Norte Lawsuit.

That is, the article provides the opinions, beliefs, and arguments from counsel for Valle Norte (Mr. Davis) and counsel for the Harvey Plaintiffs (Mr. Jack Brant).

Thus, the following statements are weaved throughout the article in an adversarial exchange in which efforts to advocate and “persuade others” are to be expected:

·         [Mr. Davis] Bryan Davis, the attorney representing [Valle Norte], said he believes the amputation claim wasn’t adequately investigated and was filed for the purpose of gaining a tactical advantage in other lawsuits against the nursing home.

·         [Mr. Davis] “I think we will prove to the court that [the Harvey Plaintiffs] did not investigate the claim in any significant manner. They took their client’s word for it that he had been horribly injured.”

·         [Harvey Plaintiffs] Attorney Jack Brant, who is representing the Harvey Law Firm, said misidentifying a claim doesn’t equate to malicious abuse of process.

·         [Harvey Plaintiffs] “The important thing is, he did suffer a very serious injury to his penis and it caused a lot of distress and permanent impairment, pain, scarring,” Brant said. “Did they make representations his penis had been amputated or auto-amputated? Yes. Maybe that’s not true. But in our view, it was still a valid lawsuit.”

·         [Harvey Plaintiffs] “The claim in the underlying [i.e., Tracy] case, and what we contend in this case as well, is that he reported the condition to the nursing home people and they treated it as a joke and didn’t get him care.”

·         [Mr. Davis] Davis said [Valle Norte] is pressing its lawsuit to vindicate its rights and recoup the “hundreds of thousands of dollars” the corporation incurred in legal fees and costs.

·         [Mr. Davis] “I think it’s a case that needs to be prosecuted to show lawyers in the state that you can’t just file garbage and expect to get away with it,” he said.

See Sandlin Article, Exhibit “B” at Pages 1-2.

Considering the logical progression of the article, the Sandlin Article as a whole alerts readers that Mr. Davis’s statement — in context — reflected only his opinion.

See Mendoza, 764 P.2d at 495

(holding that a statement that “the [city] council has been taken over by the Mexican Mafia” in a newspaper column was an expression of opinion given the context of the entire publication);

Howell, 920 N.E.2d at 671-672

(“Damish called Savino and Howell ‘dogs’ who made ‘a mockery’ of public institutions by bringing their ‘quirky cravings’ into the workplace. He called the images ‘garbage.’ As a matter of law, these were statements of opinion.”) (emphasis added).

Moreover, Mr. Davis’ statement appears in an article that provides arguments between opposing counsel to a lawsuit, which by definition creates a “setting in which the audience may anticipate efforts by the parties to persuade others to their positions by use of fiery rhetoric or hyperbole . . . .”

Mendoza, 764 P.2d at 494.

Further, by discussing both sides of the Valle Norte Lawsuit, the Sandlin Article actually creates the opportunity for its audience to join one side of the discussion — further evidencing a statement of opinion rather than fact.

Gregory, 552 P.2d at 428.

In fact, the Sandlin Article even encourages its readers to submit their own comments based upon the opinions reflected in the article.

See Exhibit “B” at Page 2.

See Mendoza, 764 P.2d at 495

(supporting its holding that a statement was an opinion by stating that the subject article “invites readers to reach their own conclusions.”).

Under the first Marchiondo factor, Mr. Davis’ statement is an unambiguously an opinion.

i.                           Mr. Davis’ Statement Is Opinion Because the Sandlin Article Discloses the Factual Bases of the Statement.

Under Marchiondo’s second prong:

[I]f the material, as a whole, fully discloses the facts upon which the opinion is based and permits the reader to reach his own opinion, the statement is generally an opinion rather than an assertion of fact, and is absolutely protected.

Mendoza at 495, quoting Kutz v. Indep. Pub. Co., 638 P.2d 1088, 1090 (N.M. Ct. App. 1981).

Like the first factor, when resolving this question, a plaintiff cannot — as the Harvey Plaintiffs attempt to do here — isolate specific sentences and strip them of their overall meaning within the larger context of an entire publication.

See Mendoza, 764 P.2d at 495

(rejecting the plaintiff’s reliance on specific sentences and, instead, stating “[w]hen placed in context and read as a whole, we believe the column discloses the factual basis for the writer’s opinion….”).

Similarly, in Mendoza, the court of appeals held that saying the city council had been taken over by the “Mexican Mafia” was rhetorical hyperbole because the column disclosed the factual basis for the writer’s opinion.

Mendoza at 495.

In that case, the alleged defamatory statement arose out of the publication of a newspaper column in the Gallup Independent that described a “cartoon like” conversation between several individuals, two of whom were in town to investigate the city council.

Mendoza at 493.

During the exchange, one of the investigators said “[w]e have received a report that the council has been taken over by the Mexican Mafia.

What can you tell us about that?” Id.

In response, the investigators were told, in relevant part:

[T]he new mayor is known for shooting first and asking questions later . . .

He’s already taken one straw vote on replacing the city manager, however . . .

The vote was Munoz, Mendoza, and Gutierrez on one side and Richards and Hight on the other.

Id.

Mendoza, one of the individuals identified as supporting the replacement of the city manager, alleged that the statements imputed his involvement in corruption, dishonesty, criminal activity, and also linked him to the Mexican Mafia.

Id.

Applying the three Marchiondo factors, the court of appeals held the column expressed a statement of opinion rather than fact.

Id. at 494.

When the court reached the second factor, its analysis noted that “the factual basis for the writer’s [Mexican Mafia] opinion” had been disclosed — “namely, the straw vote to replace the city manager, and the ethnicity of the councilors [sic] who cast the votes.”

Id. at 495.

Based merely on those factual premises, the court held that “[t]he opinion leaves no room for speculation or implication that the writer has private knowledge of defamatory facts.”

Id.

Likewise, in Saenz v. Morris, 746 P.2d 159, 162 (N.M. Ct. App. 1987), the court of appeals held a statement was one of opinion when the source identified its factual premises and based a conclusion on those premises.

Saenz at 162.

There, a newspaper article said the plaintiff had spent “most of his career in an overseas agency closely linked to brutal police torture in Latin America.”

Id. at 161.

The newspaper article then identified the agency as the United States Office of Public Safety (OPS) [and stated that] while on special assignment for OPS in 1970 plaintiff advised the Columbian policy.

Id..

The article then quoted a source from the State Department to the effect that:

[P]olice torture was widespread in Latin America, that there was official United States knowledge of such torture, and that the OPS was involved with local police repression.

Id. at 161-162.

The article concluded that:

“Plaintiff must have known what was going on.”

Id. at 162.

Applying Marchiondo’s second factor, the Saenz court held

“[u]nder this standard, the statement that plaintiff must have known what was going on falls within the category of opinion rather than fact. The source identifies his factual premises, and he bases a conclusion on those premises.”

Id. at 162.

Accordingly, the court held the statement would not support a cause of action for defamation.

Id.

Just like the articles in Mendoza and Saenz, the Sandlin Article discloses the factual bases for Mr. Davis’ opinion.

In fact, the Sandlin Article provides the factual bases of each party’s statements and positions in the Valle Norte Lawsuit.

In addition to those statements from the Sandlin Article identified on Pages 17 and 18, supra, the Sandlin Article provides other factual premises upon which Mr. Davis’ opinion is based.

For example, after disclosing at the very top of the article that Valle Norte was previously a defendant in the (now dismissed) Tracy Lawsuit, which was “filed on behalf of a man who claimed to be injured while he resided at Valle Norte Caring Center,” the article proceeds to say:

·         [Valle Norte] is suing an Albuquerque law firm over what it says was a false allegation that it was responsible for the amputation of a man’s penis.

·         [Valle Norte] is accusing the Harvey Law Firm in federal court of malicious abuse of process and civil conspiracy for filing a negligence lawsuit against the company in state court.

·         [Valle Norte] claims attorneys Dusti Harvey and Feliz Rael filed the complaint on behalf of a client in district court in Santa Fe in 2007 “without probable cause to believe that the central allegation that he had suffered an amputation or auto-amputation of his penis was true.”

·         The [Valle Norte Lawsuit] complaint says despite the lawsuit’s repeated claims that the patient — now deceased — had lost his penis, before-and-after photos prove that’s not the case.

·         The initial [Tracy] lawsuit claimed Valle Norte nursing home, where the patient resided during April 2005, failed to adequately assess, evaluate or supervise nursing staff. The result, the complaint said, was “severe delay in treatment of priapism resulting in loss of (his) penis.” Priapism is persistent painful erection not related to sexual arousal.

See the Sandlin Article (Exhibit “B,” hereto).

Stated succinctly, when Mr. Davis’ statement is viewed in context and in light of the Sandlin Article as a whole, the publication provides the factual premises for Mr. Davis’ statement. Mr. Davis’ statement is pure opinion and cannot form the basis of a defamation claim.

ii.                          A reasonably prudent person would consider Mr. Davis’s statement to be an expression of opinion and extensive case law has held that use of the word “garbage” is not defamatory.

Perhaps the most important of the three Marchiondo factors is the third prong.

Simply put, “the crucial difference between [a] statement of fact and opinion depends upon whether ordinary persons hearing or reading the matter complained of would be likely to understand it as an expression of the speaker’s …. opinion, or as a statement of existing fact.”

Marchiondo, 649 P.2d at 472.

Courts also address this factor by placing the statement in context and by reading the publication as a whole.

Mendoza, 764 P.2d at 495.

In doing so, courts have held that “imaginative expressions” and “rhetorical hyperbole” are not actionable.

Greenbelt Coop., 398 U.S. at 14.

Further, the use of strong invectives, profanity or sarcastic language, and the use of epithets are not reasonably understood to be statements of fact; rather, they are expressions of opinion.

Mendoza at 496, citing Comm’ns Workers of Am., Local 8611 v. Archibeque, 735 P.2d 1141, 1144 (N.M. 1987)

(the characterization of a person as “amoral,” “totally void of character,” and “an embarrassment,” were rhetorical hyperbole and not misstatements of fact)

and

Old Dominion Branch No. 496, Nat’l Ass’n of Letter Carriers, AFL-CIO v. Austin, 418 U.S. 264, 286 (1974)

(the use of terms “scab” and “traitor” accompanied by highly derogatory definition, was “rhetorical hyperbole”).

Within this framework, courts from various jurisdictions have found statements that are remarkably similar to Mr. Davis — and statements that expressly include the term “garbage” — to be forms of nonactionable opinion.

In Flowers v. Carville, 310 F.3d 1118, 1127 (9th Cir. 2002), the court held that a statement criticizing the plaintiff’s story as “garbage” was not actionable.

Id. at 1127.

In that case, the plaintiff — who allegedly had an affair with President Clinton — gave her story of the affair to the Star.

Id.at 1122.

After the story ran, President Clinton’s aid (defendant James Carville) wrote a memoir in which he referred to plaintiff’s story as “trash,” “crap,” and “garbage.”

Id. at 1126-27 (emphasis added).

The Ninth Circuit held that these phrases are not actionable for defamation claims and held that “the trio of colorful waste metaphors — the references to the Star stories as ‘trash,’ ‘crap’ and ‘garbage’ — are not defamatory under Nevada law.”

Id. at 1127.

Instead, those words are “mere rhetorical hyperbole” and “nothing more than generic invective,” that cannot form the basis of a claim for defamation.

Id.

The Flowers court cited additional examples of similar statements, all of which were held to be nonactionable opinion, including:

·         Levinsky’s, Inc. v. Wal-Mart Stores, Inc., 127 F.3d 122, 129-30 (1st Cir. 1997)

(Wal- Mart’s reference to its competitor’s store as “trashy” was “squarely in the category of protected opinion” because the term is “quintessentially subjective” and constituted “loose language that cannot be objectively verified.”);

and

·         Thomas v. News World Comm’ns, 681 F. Supp. 55, 60, 63 (D.D.C. 1988)

(the Washington Times reference to protestors as “bums” and “pitiable lunatics” and deriding their protest signs as “garbage,” “trash,” and “gibberish,” was nonactionable opinion).

See also Ray v. City of Bossier City, 859 So.2d 264, 275 (Ct. App. 2003)

(referring to the conduct of two police officers as “garbage” was not actionable defamation).

The case law cited above is directly on point and overwhelming. Mr. Davis’ statement is not actionable, is protected as free speech by the United States Constitution and summary judgment must be granted.

A.              Valle  Norte  Cannot  Be  Held  Liable  For  The  Alleged  Statement  of  Its Outside Counsel, Mr. Davis.

As demonstrated in Exhibit “A,” Valle Norte retained Mr. Davis of Davis & Gilchrist, P.C. as outside counsel to pursue the Valle Norte Lawsuit against the Harvey Plaintiffs.

As such, Valle Norte cannot be held liable for alleged defamatory statements made by Mr. Davis.

An attorney who has been retained as outside counsel is not an employee or agent of the client.

Williams v. Burns, 463 F.Supp. 1278, 1284 (D. Colo. 1979).

As such, the client (i.e., Valle Norte) is not liable as a matter of law for any publication of defamatory matter made by its counsel.

Id., 463 F.Supp. at 1283-1284.

The torts of an independent contractor are generally the sole responsibility of that independent contractor, and there is no vicarious liability on the part of the employer:

Clients are not insurers of actions taken by attorneys, despite the fact that such actions are taken on the client’s behalf.

An attorney’s combination of education, experience and code of ethics effectively places the responsibility on him or her for any tortuous or unethical conduct.

Williams, 463 F.Supp. at 1285.

See also Green Acres Trust v. London, 688 P.2d 658, 665 (Ct. App. Ariz. 1983)

(in the absence of any evidence of either authorization or ratification summary judgment in favor of clients on defamation claim was proper, regardless of the liability of their attorneys).

For this additional reason, this motion should be granted in all respects.

CONCLUSION

Based upon the uncontested issues of material fact, the law with regard to defamation claims, and for all of the reasons described above, the Court should grant the Moving Defendants’ motion for summary judgment as to the defamation claims alleged against them as a matter of law.

The Moving Defendants request that the Court grant this Motion for Summary Judgment and dismiss all of the Plaintiffs’ claims and causes of action for defamation against all of the Moving Defendants with prejudice.

Respectfully submitted,

SERPE, JONES, ANDREWS, CALLENDER & BELL, PLLC

By:         /s/ John S. Serpe

John S. Serpe
NM Bar No. 126407

Randall Jones
NM Bar No. 126358

J. Jonathan Hlavinka
America Tower
2929 Allen Parkway, Suite 1600
Houston, Texas 77019

Telephone:       (713) 452-4400
Telecopy:         (713) 452-4499

ATTORNEYS FOR THI OF NEW MEXICO AT ALBUQUERQUE CARE CENTER, LLC, THI OF NEW MEXICO AT VALLE NORTE, LLC, THI OF NEW MEXICO AT VIDA ENCANTADA, LLC, THI OF NEW MEXICO AT  CASA  MARIA,  LLC,  THI  OF  NEW MEXICO AT LAS CRUCES, LLC, AND THI OF NEW MEXICO, LLC

THE SIMONS FIRM, LLP

By:      /s/ Faith Kalman Reyes

P.O. Box 5333
Santa Fe, NM 87502
(505) 988-5600

BRUNNER QUINN RICK L. BRUNNER PATRICK M. QUINN
35 North Fourth Street, Suite 200
Columbus, OH 43215
(614) 241-5550

ATTORNEYS FOR DEFENDANT FUNDAMENTAL ADMINISTRATIVE SERVICES, LLC