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

More documents

Recommendations

Info

Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 18 of 54 Vernon School Board to conduct an independent investigation of the complaints against Freshwater, and likewise cannot support Freshwater’s claim of defamation. The allegedly defamatory statements are comprised of the HR On Call investigators’ summary of the Dennises’ concerns, not of direct quotes by the Dennises, making it difficult to determine which pieces of the statements, if any, contain words the Dennises actually used when speaking to investigators. See Hamilton Mem. in Opp. at 5; HR On Call Report at 1, 9 (attached as Ex. G). But even assuming for summary-judgment purposes that all of the statements fairly can be attributed to the Dennises, these statements do not save Freshwater’s defamation counterclaim from summary judgment, because they are qualifiedly privileged. The Dennises’ statements satisfy the five requirements, discussed supra, for earning a qualified privilege. Steve and Jenifer Dennis provided answers to the HR On Call investigators’ questions in good faith and did so to protect their child and other children from future harm, thus satisfying the first two qualified-privilege requirements. (Jenifer Dennis Decl. 8-11, 13-15 (attached as Ex. C to Pls.’ MSJ); Stephen Dennis Decl. 10-13, 15-17 (attached as Ex. D to Pls.’ MSJ).) The statements were made discretely to and at the request of investigators tasked by Mount Vernon school officials with looking into Freshwater’s inappropriate and unconstitutional conduct, meaning that the statements were properly limited in scope, were made on the proper occasion, and were supplied to the proper parties. Accordingly, a qualified privilege applies to the Dennises’ statements to HR On Call investigators and Freshwater cannot rely on them in asserting his defamation counterclaim. 4. Freshwater Is A Limited-Purpose Public Figure Who Cannot Show That The Dennises Acted With Actual Malice. Even if the Court concludes that Zach’s termination-hearing testimony and the statements that the Dennises made to HR On Call investigators are not privileged (which it should not), 11
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 19 of 54 Freshwater’s defamation counterclaim still fails, because Freshwater, as a limited-purpose public figure, must show that the allegedly defamatory statements were made with actual malice. Kassouf v. Cleveland Magazine City Magazines, Inc., 755 N.E.2d 976, 982-83 (Ohio Ct. App. 2001). The actual malice requirement applies with equal force to the five remaining statements on Freshwater’s list, two of which consist of the Dennises’ statements contained in a fax that their former counsel sent to media outlets and three of which consist of statements for which the speaker and context could not be identified. See Hamilton Mem. in Opp. at 4 (describing statements 5 and 6 contained in fax to media); Mount Vernon News, Investigation to Begin Into Allegations Against Teacher, http://www.mountvernonnews.com/local/08/04/23/ freshwater_upd.php4 (last visited Jan. 14, 2010) (containing statements from fax that Freshwater claims are defamatory); Def. Memo in Opp. at 4 (statement 4, the speaker of which is unknown); Mem. in Opp. at 7 (statements 41 and 42, the speakers of which are unknown). Significantly, Freshwater admits that he is a limited-purpose public figure. (See Hamilton Mem. in Opp. at 9 (“Freshwater is a public figure for a limited purpose in this matter”).) He also admits that he must show the Dennises acted with actual malice. (See id. at 9.) He fails to admit, however, that he has no evidence of malicious conduct by the Dennises. Indeed, the only “evidence” that Freshwater presents to support his claim that “Plaintiffs’ malicious intent can be inferred from several perspectives” (id. at 9) is wholly unsubstantiated and only demonstrates that Freshwater misapprehends the legal definition of “actual malice.” A&B-Abell Elevator Co., Inc. v. Columbus/Cent. Ohio Bldg. & Constr. Trades Council, 651 N.E.2d 1283, 1295 (Ohio 1995) (defining actual malice as acting “with knowledge that the statements [in question were] false or . . . with reckless disregard as to their truth or falsity”); see also Jacobs v. Frank, 573 N.E.2d 609, 613 (Ohio 1991) (noting that “actual malice requires 12
Page 1 and 2: Case 2:08-cv-00575-GLF-NMK Document
Page 17: Case 2:08-cv-00575-GLF-NMK Document
Page 69 and 70:
Case 2:08-cv-00575-GLF-NMK Document
Page 71 and 72:
Page 73 and 74:
Page 75 and 76:
Page 77 and 78:
Page 79 and 80:
Page 81:
Page 86:
Page 91 and 92:
Page 96:
Page 99 and 100:
Page 101 and 102:
Page 103 and 104:
Page 105 and 106:
Page 107 and 108:
Page 109 and 110:
Page 111 and 112:
Page 113 and 114:
Page 115 and 116:
Page 117 and 118:
Page 119 and 120:
Page 121 and 122:
Page 123 and 124:
Page 125 and 126:
Page 127 and 128:
Page 129 and 130:
Page 131 and 132:
show all

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

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?