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 20 of 54 more than evidence of ill will, spite, or ulterior motive; the libeled [party] must prove with convincing clarity that the defendant had a high degree of awareness of the probable falsity of the published statements”). Freshwater’s contention that malice can be inferred from the fact that the Dennises did not take Zach to a doctor is nonsensical. (See Hamilton Mem. in Opp. at 9.) Freshwater does not explain how the Dennises’ decision not to seek medical care for their son relates to any one of the 42 items on his list of allegedly defamatory statements, let alone how this decision translates into a malicious statement for the purposes of his defamation counterclaim. If anything, the Dennises’ decision not to visit a doctor, who, in turn, would have to report the injury and Freshwater’s role in it to Children’s Services, indicates a complete lack of malice and is consistent with the Dennises’ efforts to avoid making this matter public. (Jenifer Dennis Decl. 10-12, 16; Stephen Dennis Decl. 12-14, 18.) Freshwater’s assertion that the Dennises were “hypersensitive” (Hamilton Mem. in Opp. at 10) in complaining about Freshwater’s misconduct similarly falls short of establishing the requisite malice for sustaining a defamation claim. Whether the Dennises were “hypersensitive” in reporting Freshwater’s battery (which they were not) has nothing to do with whether they acted maliciously (which they did not). What is more, Freshwater provides no evidence whatsoever for his claim that “Plaintiffs went so far as to accuse Freshwater of having an ‘abortion van’ parked at the middle school and harassing their eighth grade son and keeping the student from attending a field trip.” (See Hamilton Mem. in Opp. at 10.) As is the case with the 42 items on his list of allegedly defamatory statements, Freshwater offers no proof as to who made this statement about the “abortion van” or the statement about the harassment of Zach 13
Case 2:08-cv-00575-GLF-NMK Document 75 Filed 01/14/10 Page 21 of 54 regarding the field trip. Without any evidence to back up his allegation that the Dennises made this statement, Freshwater’s attempt to show actual malice again fails. And whether “[r]easonable jurors could find minor Plaintiff lacks credibility” (id. at 11), about his claims that Freshwater led a prayer session for an unwell pastor during an FCA meeting is of no moment in determining whether Zach or his parents acted with malice. The same can be said for Freshwater’s attempt to impute malice to Jenifer Dennis by questioning her testimony about Freshwater’s use of the Tesla coil to burn Zach. (Id. at 10.) Freshwater should not be permitted to conflate credibility with malice in a last-ditch effort to salvage his defamation counterclaim. Because Freshwater has not supplied any viable evidence that the Dennises defamed him in any way, his counterclaim should be dismissed. B. Freshwater’s Counterclaim For Intentional Infliction Of Emotional Distress Is Similarly Unsupported And Should Be Dismissed. In his opposition to the Dennises’ motion for summary judgment, Freshwater devotes a mere two paragraphs to defending his counterclaim for intentional infliction of emotional distress, the first paragraph of which consists entirely of a recitation of the elements of this tort; the second of which fails to demonstrate how Freshwater has satisfied any of these elements. Although Freshwater correctly sets forth the elements he must satisfy to withstand summary judgment on his emotional distress counterclaim (see Hamilton Mem. in Opp. at 11 (quoting Pyle v. Pyle, 463 N.E.2d 98, 104 (Ohio Ct. App. 1983))), he fails to demonstrate that he has established any of these elements. The Dennises therefore should be granted summary judgment on Freshwater’s counterclaim for intentional infliction of emotional distress. 1 1 As the Dennises point out in their initial summary-judgment memorandum, if the Court grants summary judgment to the Dennises on Freshwater’s defamation counterclaim, the counterclaim for emotional distress also must be dismissed. 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] 14
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Plaintiffs' reply in support of their motion for partial summary judgment

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