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Myers v. Powell

United States District Court, E.D. Louisiana

January 30, 2018


         SECTION “R” (5)



         Before the Court is plaintiff's motion to dismiss defendant's counterclaims.[1] For the following reasons, the Court grants the motion.

         I. BACKGROUND

         This case arises out of allegations of sexual assault against Defendant Clifton Powell.[2] Plaintiff Kiyante Myers states that, on the night of August 28, 2011, she agreed to go out with Powell, and they initially engaged in consensual sexual relations.[3] Later that night, Powell allegedly wanted to engage in sexual relations again, but Myers declined, saying that Powell had been too rough the first time.[4] After convincing Myers to acquiesce, Powell allegedly pushed and choked Myers, penetrated her anus with his fingers, refused her request to stop, and forcefully continued having sex with her against her will.[5]

         Powell acknowledges having sexual relations with Myers on August 28, 2011, but he asserts that these relations were consensual.[6] According to Powell's counterclaim, Myers requested a sexual assault examination at University Hospital the next day.[7] After speaking with Myers, a nurse at the hospital contacted the New Orleans Police Department to report a sexual assault.[8] A police detective was then dispatched to the hospital to question Myers about the alleged assault.[9] According to Powell, the police detective investigated Myers's claim of sexual abuse and concluded that her allegations were without merit.[10] Powell was not arrested or charged with a criminal offense against Myers.[11]

         On August 31, 2012, Myers filed a complaint against Powell seeking damages for assault, battery, and intentional infliction of emotional distress.[12] Powell did not answer or otherwise defend against the complaint, and the Court entered default judgment against him on August 30, 2013.[13]On June 27, 2016, Powell moved for relief from the default judgment.[14]Powell argued that he was never properly served with process.[15] Powell further asserted that he was aware of Myers's initial claim and fully cooperated with the police investigation.[16] Powell stated that he learned of this lawsuit from a member of the media over one year after the police investigation.[17] Powell asserted that he hired an attorney to represent him in this suit, but his attorney effectively abandoned him.[18] On January 24, 2017, the Court granted Powell's motion to vacate the default judgment because of improper service of process.[19] The Court later granted Myers's motion for a new trial and reopened the case.[20]

         On April 3, 2017, Powell filed an answer and counterclaims for defamation, defamation per se, and intentional infliction of emotional distress.[21] Myers now moves to dismiss the counterclaims under Federal Rule of Civil Procedure 12(b)(6).[22] Powell has not responded to this motion.


         To survive a Rule 12(b)(6) motion to dismiss, the plaintiff must plead “sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A claim is facially plausible when the plaintiff pleads facts that allow the court to “draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. at 678. A court must accept all well-pleaded facts as true and must draw all reasonable inferences in favor of the plaintiff. See Lormand v. U.S. Unwired, Inc., 565 F.3d 228, 232 (5th Cir. 2009).

         A legally sufficient complaint must establish more than a “sheer possibility” that the plaintiff's claim is true. Iqbal, 556 U.S. at 678. It need not contain detailed factual allegations, but it must go beyond labels, legal conclusions, or formulaic recitations of the elements of a cause of action. Id. In other words, the face of the complaint must contain enough factual matter to raise a reasonable expectation that discovery will reveal relevant evidence of each element of the plaintiff's claim. Lormand, 565 F.3d at 257. The claim must be dismissed if there are insufficient factual allegations to raise a right to relief above the speculative level, Twombly, 550 U.S. at 555, or if it is apparent from the face of the complaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (2007).


         A. Defamation

         Powell asserts counterclaims of defamation and defamation per se.[23]Under Louisiana law, “[f]our elements are necessary to establish a claim for defamation: (1) a false and defamatory statement concerning another; (2) an unprivileged publication to a third party; (3) fault (negligence or greater) on the part of the publisher; and (4) resulting injury.” Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669, 674 (La. 2006). “In other words, a plaintiff must prove that the defendant, with actual malice or other fault, published a false statement with defamatory words which caused plaintiff damages.” Fitzgerald v. Tucker, 737 So.2d 706, 715-16 (La. 1999) (internal quotation omitted). Falsity, malice (or fault), and injury may be presumed if “a plaintiff proves publication of words that are defamatory per se, ” although this presumption is rebuttable. Kennedy, 935 So.3d at 675. “Words which expressly or implicitly accuse another of criminal conduct . . . are considered defamatory per se.” Id.

         Powell's counterclaim for defamation per se states that, “[o]n or about August 28th and 29th, 2011, and at various times continuing through the present day, Ms. Myers made false statements to third parties that Mr. Powell assaulted, battered and raped her.”[24] The counterclaim further states that Myers and her attorneys or agents published defamatory statements to third parties, and these statements tarnished Powell's reputation and resulted in negative media coverage and public reaction.[25] But Powell's counterclaims for defamation per se and defamation provide no additional details regarding any specific statements made after August 29, 2011. The Court finds that ...

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