IN THE CIRCUIT COURT OF THE EIGHTEENTH JUDICIAL CIRCUIT OF FLORIDA, IN AND FOR FRESNO COUNTY, FLORIDA
Case No.: 02-CA-YR01
DEFENDANT JANE JOHNSON’S MOTION TO DISMISS
COMES NOW, Defendant Jane Johnson by and through her attorney, Boss Partner, and pursuant to Rule 2.515 of the Florida Rules of Judicial Administration and Rule 1.140 of the Florida Rules of Civil Procedure, moves the Court to dismiss the suit in its entirety filed by the Plaintiff Douglas Smith with prejudice for the following reasons:
A. Failure to state a claim upon which relief may be granted.
1. Count I (defamation per se) of the Plaintiff’s Complaint fails to state a claim upon which relief can be granted because:
a). the Plaintiff cannot prove that what the Defendant allowed to be posted on her website is false. There is a video tape on the website showing that the Plaintiff was being abusive and threatening to a third party (Brenda) depicting that the comments about him were not false. He further fails to provide any evidence that the posts about his persona were a lie therefore they cannot give rise to an actionable defamation claim under Florida law, see Border Collie Rescue v. Ryan, 418 F. Suppd. 2d 1330, 1348 (M.D.Fla.2006).
b). the Plaintiff cannot provide evidence as to the injury caused to him by the statements posted on Johnson’s website.
c). the Defendant cannot be liable for any of the posts that producers place on her website because she has already forewarned them not to post anything false about their clients. The Plaintiff cannot prove that the Defendant showed any negligence in publishing the post as she had already warned people from making false claims on the website. This limits the Defendant’s liability in the case.
d). The Complaint brought before the Court fails to show or provide evidence that the Defendant was acting with ‘actual malice’, thereby failing to meet the standards set for free speech protections in the national and Florida Constitutions, see Mile Marker, Inc. v. Petersen Publi’g, L.L.C., 811 So.2d 841, 845 (Fla. 4th DCA 2002).
e). According to the law, Defendants cannot be held completely liable for any allegedly erroneous statements concerning a Plaintiff as this would be a violation of the former’s First Amendment Rights, see Gertz v. Robert Welch, Inc. 418 U.S. 323,340 (1974).
2. Count II (Invasion of Privacy) of the Plaintiff’s Complaint fails to state a claim upon which relief may be granted for the following reasons:
a). The Plaintiff has failed to show evidence of intrusion or to support his invasion of privacy claims by failing to show that the Defendant’s conduct was so outrageous and ‘so extreme in danger’ as to go beyond all bounds of decency recognized by the Floridian Constitution.
b). the Plaintiff has also failed to provide reasonable proof that the Defendant published private facts.
i). The video in question was taken outside of his private space
ii). The video does not disclose any private facts. The contents therein are of his lewd misconduct against another individual.
iii). The contents of the post are of public concern because there is a section of the public that needs to be aware of the Plaintiff’s behavior i.e. it is of public concern because producers need to be wary of customers such as the Plaintiff as such customers may become threats to their livelihoods.
For the reasons that have been described above, the Defendant respectfully seeks an Order from the Court dismissing the Complaint pursuant to Fla.R. Civ. P. 1.1140 (b) and for other relief as the Court may deem proper and necessary.
Respectfully submitted on behalf of Defendant
By: Aberdeen, Bernanke, and Claustrophobic Law Firm,
CERTIFICATE OF SERVICE
WE HEREBY CERTIFY that a true and correct copy of this motion to dismiss was served by U.S. Mail on 02/28/YR01 to the Plaintiff Douglas Smith, from Fresno, Florida.