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

Case 2:08-cv-00575-GLF-NMK Document 60 Filed 11/16/09 Page 30 of 47
statements at issue). Freshwater has fallen woefully short in his efforts to recover for
defamation, and as a result, the Dennises should be granted summary judgment on Freshwater’s
defamation counterclaim for this reason, too.
B. Freshwater’s Counterclaim For Intentional Infliction Of Emotional Distress
Likewise Should Be Dismissed On Multiple Grounds.
As an initial matter, if Freshwater’s defamation counterclaim fails, then so, too, should
his counterclaim for intentional infliction of emotional distress, as the allegedly “slanderous”
statements (Countercl. 5) that comprise the defamation counterclaim were the purported cause
of Freshwater’s emotional distress. See, e.g., Vail v. The Plain Dealer Publ’g Co., 649 N.E.2d
182, 186 (Ohio 1995) (“Since we have concluded that the [allegedly defamatory] statements at
issue are constitutionally protected speech, [appellant’s] claims for intentional infliction of
emotional distress must also fail.”); Martinez v. WTVG, No. L-07-1269, 2008 WL 1700443, at *8
(Ohio Ct. App. Apr. 11, 2008) (holding that, because news report on which appellant’s claim for
intentional infliction of emotional distress was privileged, “appellant’s intentional infliction of
emotional distress claim must fail”); see also A & B-Abell Elevator Co., 651 N.E.2d at 1295
(“[W]here claims . . . are based on statements that are qualifiedly privileged under defamation
law, the protection afforded those statements . . . must also apply in the derivative claims.”).
But even if this Court finds that Freshwater’s emotional-distress counterclaim is not
inextricably linked to his unsuccessful defamation counterclaim, his claim for intentional
infliction of emotional distress is meritless because he cannot satisfy the elements of this tort.
To withstand summary judgment on his intentional infliction of emotional distress counterclaim,
Freshwater must show that “(1) [party allegedly at fault] intended to cause emotional distress or
knew or should have known that [their] conduct would result in serious emotional distress to the
[claimant]; (2) [opposing party’s] conduct was outrageous and extreme and beyond all possible
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