Last week, I responded to the frivolous ridiculous lawsuit by Rifqa Bary's parent's attorneys here. Boiled down to its essential oils, it's free speech, stupid.
Tarazi’s response? He motions the court to treat our motion to dismiss as a motion for summary judgment, effectively asking the court to put the whole thing off so Tarazi can engage in a fishing expedition through discovery.
DEFENDANT GELLER’S RESPONSE IN OPPOSITION TO “MOTION OF PLAINTIFF TO TREAT DEFENDANT PAMELA GELLER’S MOTION TO DISMISS AS A SUMMARY JUDGMENT MOTION”
Defendant Pamela Geller, by and through her undersigned counsel, hereby responds in opposition to “Motion of Plaintiff to Treat Defendant Pamela Geller’s Motion to Dismiss as a Summary Judgment Motion” (Doc. No. 25). Plaintiff’s motion is a feckless attempt to avoid responding to Defendant Geller’s properly supported motion to dismiss the Amended Complaint under Rule 12(b)(6), Federal Rules of Civil Procedure, for failure to state a claim, and under Rule 12(b)(1), Federal Rules of Civil Procedure, for lack of subject matter jurisdiction so he can prolong this vexatious litigation and engage in a costly “fishing expedition.” As an initial matter, Plaintiff never bothers to explain how the vague and general discovery he proposes would produce any material fact that is relevant to the arguments raised in Defendant Geller’s motion to dismiss.
Indeed, conspicuously absent from Plaintiff’s motion is any discussion regarding the merits of Defendant Geller’s motion to dismiss (or any challenge to the authenticity or accuracy of the information contained in the attached exhibits for that matter). And the reason is obvious: Plaintiff’s Amended Complaint fails as a matter of law, and he knows it. No amount of discovery can change that conclusion. And this court need not consider matters outside of the pleadings to concur and dismiss the claims against Defendant Geller. Nevertheless, the exhibits attached to Defendant Geller’s declaration1 that were filed in support of her Rule 12(b)(6) motion are properly within the pleadings and can be considered by the court because the documents were specifically referred to by Plaintiff in his Amended Complaint.2 Venture Assocs. Corp. v. Zenith Data Sys. Corp., 987 F.2d 429, 431 (7th Cir. 1993) (“Documents that a defendant attaches to a motion to dismiss are considered part of the pleadings if they are referred to in the plaintiff’s complaint and are central to her claim.”); (see also Pl.’s Mot. at 2 (acknowledging that the court can properly consider for purposes of a motion under Rule 12(b)(6) exhibits attached to the defendant’s motion that are referred to in the complaint and citing Bassett v. National Collegiate Athletic Ass’n, 528 F.3d 426, 430 (6th Cir. 2008), for the legal authority to do so)).
Moreover, this court is not bound by the pleadings or documents referred to in the pleadings when considering Defendant Geller’s motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1). Nichols v. Muskingum Coll., 318 F.3d 674, 677 (6th Cir. 2003) (“[When] reviewing a 12(b)(1) motion, the court may consider evidence outside the pleadings.”). Consequently, Plaintiff’s arguments are without merit.
In his motion, Plaintiff makes the broad and vague statement that he “needs time for Discovery to develop the factual background with respect to both the general and broader context of the many defamatory statements by both Defendants.” (Pl.’s Mot. at 3). What “factual background” and “broader context” does he refer to? We know the specific statements that he claims are defamatory, and we know the context in which they were published.3 Those facts are alleged in the Amended Complaint. Moreover, we know, based on Plaintiff’s sworn admission, that no reasonable person could take Defendant Geller’s statements as factual or unbiased. (Am. Compl. at ¶ 22 (admitting that Defendant Geller “was never acting as an unbiased fair and impartial reporter with regard to the Rifqa Bary case”)). Thus, based on this admission and the facts alleged in the Amended Complaint in light of controlling case law, in particular, Scott v. News-Herald, 25 Ohio St. 3d 243 (1986) and Vail v. The Plain Dealer Publ’g Co., 72 Ohio St. 3d 279 (1995), this court must dismiss the defamation claim against Defendant Geller as a matter of law.
Consider further Plaintiff’s vague and conclusory “conspiracy” allegation. (See Am. Compl. at ¶ 31). This claim does not meet the minimum pleading requirements as set forth by the U.S. Supreme Court in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009), and must be dismissed as a matter of law. In his motion, Plaintiff unwittingly admits that his conclusory conspiracy claim is legally deficient. He acknowledges that he has no factual basis for making such a claim and that he hopes to find some evidence to support the claim by engaging in a vexatious fishing expedition. (See Pl.’s Mot. at 3 (requesting “time with Discovery . . . [to] develop the factual basis regarding the conspiracy issue”)). At the end of the day, this is a tacit admission that this claim is frivolous.
In the final analysis, this court should deny Plaintiff’s motion and direct him to respond without further delay to Defendant Geller’s motion to dismiss, which is properly before the court. Defendant Geller should not have to endure one more day of needless and costly litigation to defend against claims that fail as a matter of law.
Defendant Geller respectfully requests that the court deny Plaintiff’s motion and direct him to file a proper response to her motion to dismiss.
/s/ Patrick Dunphy Patrick Dunphy, Esq.* (OH Bar No. 0017827) FALKE & DUNPHY, LLC
/s/ David Yerushalmi David Yerushalmi, Esq.* LAW OFFICES OF DAVID YERUSHALMI,
/s/ Robert Muise Robert Muise, Esq.* Thomas More Law Center
1 The main and obvious purpose for filing Defendant Geller’s declaration was to authenticate the exhibits that were referred to in the Amended Complaint. Thus, the background information was necessary to establish the requisite personal knowledge to do so. The declaration does not create any material factual dispute. (See Pl.’s Mot. at 2 (incorrectly claiming that this declaration requires the court to convert the motion to dismiss to one for summary judgment)). The facts at issue (i.e., not the legal conclusions couched as facts) for purposes of Defendant’s motion are those facts alleged by Plaintiff in the Amended Complaint, including those relevant facts related to the documents referred to in the pleading. These facts, when viewed in light of the controlling law, compel this court to dismiss the claims against Defendant Geller.
2 In her declaration, Defendant Geller refers the court to the specific paragraph(s) in the Amended Complaint where the document is referenced. Indeed, Plaintiff admits in his motion that at least 12 of the exhibits are referred to and relied upon by him in the Amended Complaint (Pl.’s Mot. at 2), and are thus properly before this court for purposes of Defendant’s motion to dismiss under Rule 12(b)(6). Plaintiff never bothers to explain, however, why Defendant’s motion should not be granted based on these exhibits—or the facts as simply stated in the Amended Complaint.
3 The only discovery necessary in this case for purposes of a motion for summary judgment on the defamation claim is whether or not Plaintiff did make any false or misleading statements in a sworn affidavit filed in the Rifqa Bary case, which would then make the alleged defamatory statements true and thus not actionable as a matter of law. For purposes of Defendant Geller’s motion, however, we assume that the factual allegations (and not the legal conclusions) in the Amended Complaint are true. And based on these alleged facts and in light of controlling law, as noted briefly in this response and more thoroughly in Defendant’s motion to dismiss, the alleged statements are not defamatory and are in fact protected speech under the U.S. and Ohio Constitutions.