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

Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 12 of 54
speakers and three potential contexts in which allegedly defamatory statements were spoken, he
still fails to identify which member of the Dennis family made any particular statement on this
list, to whom that family member made a particular statement, or the context in which a
particular statement was made. Additionally, Freshwater has not provided the Court with any of
the publications in which any of these allegedly defamatory statements was made, forcing the
Court to take him at his word that the Dennises made these statements, which, in the case of
more than a third of the 42 items on Freshwater’s list, they did not.
Through significant research, the Dennises have been able to identify a speaker for nearly
all of the allegedly defamatory statements, to whom the speaker made each statement, and the
context in which the speaker offered each statement. This research unequivocally confirms that
Freshwater’s defamation counterclaim is entirely unfounded and therefore should be dismissed.
This is so for several reasons. First, the Dennises did not make and therefore cannot be held
liable for many of the allegedly defamatory statements on Freshwater’s list. Second, a number
of statements on the list were taken directly from Zach Dennis’s testimony during the
termination hearing. These statements are protected by an absolute privilege, or in the
alternative, by a qualified privilege. Third, other statements on the list were made by the
Dennises to investigators and are protected by a qualified privilege. Fourth, even if no privilege
applies to Zach’s testimony or to the Dennises’ statements to investigators, none of these
statements—or any of the remaining statements on Freshwater’s list—was made with actual
malice and thus cannot serve as the basis of Freshwater’s defamation counterclaim. Because
Freshwater has failed to produce any evidence whatsoever that the Dennises defamed him, the
Dennises should be granted summary judgment on this counterclaim.
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