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 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. 5
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 13 of 54 1. The Dennises Did Not Make Many Of The Allegedly Defamatory Statements And Therefore Cannot Be Held Liable For Them. More than a third of the statements that Freshwater claims are defamatory were not made by the Dennises. Statements 1, 3, 4, and 8 on Freshwater’s list are statements that the Dennises’ former counsel made to the media. Attorney Jessica Philemond provided the first statement on Freshwater’s list to WBNS-10TV. See Hamilton Mem. in Opp. at 4; WBNS-10TV, Teacher Accused of Burning Crosses Onto Students’ Arms, Apr. 28, 2008, http://www.10tv.com/live/ content/local/stories/2008/04/22/freshwater_investigation.html?type=rss&cat=&sid=102 (last visited Jan. 14, 2010). She made the third, fourth, and eighth statements on the list to The Columbus Dispatch. See Hamilton Mem. in Opp. at 1-2; The Columbus Dispatch, Religious ‘Healing’ Branding Charged, Apr. 23, 2008, http://www.dispatch.com/live/content/local_news /stories/2008/04/23/teacher_bible.html (last visited Jan. 14, 2010); The Columbus Dispatch, Report: Science Teacher Mixed Religion, Class, Jun. 19, 2008, http://www.dispatch.com/ live/content/local_news/stories/2008/06/19/mtvernon.html (last visited Jan. 14, 2010). Because counsel, and not the Dennises, made these statements, they cannot constitute defamation by the Dennises. Likewise, statements 7, 19, 20, 21, 22, 23, 24, 25, 26, 27, and 28 on Freshwater’s list are statements contained in a letter that Ms. Philemond sent to Mount Vernon City Schools Superintendent Stephen Short on April 14, 2008, while statement 29 is contained in a letter that Ms. Philemond sent to Mr. Short on April 21, 2008. (See Hamilton Mem. in Opp. at 4-6; Letter from Jessica Philemond to Stephen Short (Apr. 14, 2008) (attached as Ex. A); Letter from Jessica Philemond to Stephen Short (Apr. 21, 2008) (attached as Ex. B).) The Dennises did not draft or sign either of these letters and thus they, too, cannot be deemed defamatory. 6
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Plaintiffs' reply in support of their motion for partial summary judgment

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