Plaintiffs' reply in support of their motion for partial summary judgment

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Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 10 of 54 held liable for the statements of others. The bulk of the remaining statements on Freshwater’s list are either protected by an absolute judicial privilege or a qualified privilege. Any statements that are not privileged nonetheless fail to establish a claim for defamation, as Freshwater did not and cannot offer any evidence that the Dennises acted with actual malice in making them. The Dennises therefore should be granted summary judgment on Freshwater’s defamation counterclaim. Summary judgment is also proper on Freshwater’s counterclaim for intentional infliction of emotional distress, as Freshwater has likewise adduced no evidence to establish the elements of an emotional-distress claim. As to the Dennises’ battery and Establishment Clause claims, Freshwater tries to shift the focus away from his admission that he applied the Tesla coil to Zach’s arm to quibbling over immaterial facts that are irrelevant for summary-judgment purposes. He follows this up with a ratification argument that defies reason and lacks legal support. Freshwater next argues that the Dennises’ Establishment Clause claim is moot and that the Dennises lack standing to bring it. Neither argument is persuasive. Freshwater’s effort to avoid liability for his own misconduct by passing the blame onto Mount Vernon Middle School officials and onto members of the Fellowship of Christian Athletes (“FCA”) proves equally unsuccessful. And Freshwater presents no factual dispute to justify his Establishment Clause violations under the Supreme Court’s Lemon test. Because Freshwater has failed to demonstrate any genuine issues of material fact as to the Dennises’ battery and Establishment Clause claims, the Dennises should be granted summary judgment on these claims as well. Finally, the exhibits that Freshwater filed on January 7, 2010 constitute improper summary-judgment evidence upon which he should not be permitted to rely in defending against 3
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 11 of 54 the Dennises’ motion for summary judgment, which likewise requires summary judgment in the Dennises’ favor on Freshwater’s counterclaims. II. ARGUMENT Summary judgment is proper if “there is no genuine issue as to any material fact” and the moving party “is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(c). A party opposing summary judgment “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 252 (1986) (emphasizing that a “mere existence of a scintilla of evidence in support of the [nonmoving party’s] position will be insufficient” to withstand summary judgment and that “[f]actual disputes that are irrelevant or unnecessary will not be counted”); Fed. R. Civ. P. 56(e)(2) (“When a motion for summary judgment is properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a genuine issue for trial.”). Because Freshwater has offered nothing more than his own inconsistent testimony and denials, irrelevant arguments with no basis in law or fact, and improper summary-judgment evidence, the Dennises should be granted summary judgment on his counterclaims and on their own battery and Establishment Clause claims. A. Freshwater’s Defamation Counterclaim Is Entirely Unfounded And Therefore Should Be Dismissed. Freshwater offers a list of 42 items that he alleges constitute defamatory statements that “Plaintiffs, either one of the parents or the minor child” purportedly made “to the school administration, the public media, or through testimony.” (Counterclaimant/Def. Mem. in Opp. to Pls.’ Mot. for Partial Summ. J. at 4-7 (Doc. No. 70) (hereinafter “Hamilton Mem. in Opp.”)). Although Freshwater narrows the universe of potential statements by providing three potential 4
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Plaintiffs' reply in support of their motion for partial summary judgment

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