Plaintiffs' motion for partial summary judgment - National Center for ...

Case 2:08-cv-00575-GLF-NMK Document 60 Filed 11/16/09 Page 12 of 47
infliction of emotional distress. The Dennises now move for summary judgment on Freshwater’s
counterclaims, as Freshwater has failed to establish that the Dennises defamed him or that they
caused him severe emotional distress. Because the Dennises have satisfied all of the elements of
battery under Ohio law, and because Freshwater has admitted to actions that constitute clear
violations of the Establishment Clause, the Dennises also move for summary judgment on their
battery and Establishment Clause claims. 2
Summary judgment is proper on Freshwater’s counterclaims for defamation and
intentional infliction of emotional distress. Freshwater’s defamation counterclaim fails for three
reasons. First, the only publication of the allegedly defamatory statements that Freshwater
identifies with any specificity is the publication of these statements in the First Amended
Complaint. In arguing that statements contained in a complaint can serve as the basis for a
defamation counterclaim, Freshwater appears to overlook the fact that, under Ohio law,
statements contained in pleadings are absolutely privileged. And even if Freshwater claims that
the Dennises made defamatory statements outside of those contained in the First Amended
Complaint, he does not identify any such statements, let alone which member of the Dennis
family made such statements, when they made them, or to whom. Third, even assuming the
judicial privilege does not apply, the statements in question nonetheless are protected by a
qualified privilege. Finally, even if no privilege applies, Freshwater’s defamation counterclaim
still fails because he is a limited-purpose public figure who cannot prove that the Dennises acted
with actual malice in publishing the allegedly defamatory statements.
2 Plaintiffs’ claim for an Establishment Clause violation contains numerous other allegations aside from the
Ten Commandments posters and the Bibles in Freshwater’s classroom. (First Am. Compl. 10-69, 74-81 (Doc.
No. 11).) Freshwater disputes these other allegations in some measure, but does not dispute the facts that form the
basis of this motion. Plaintiffs, therefore, are moving for partial summary judgment as to liability on their
Establishment Clause claim.
2