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Ormrod v. Hubbard Broadcasting, Inc.

United States District Court, D. New Mexico

March 22, 2018


          Sam Bregman Bregman & Loman, P.C. Albuquerque, New Mexico Attorneys for the Plaintiff

          Geoffrey D. Rieder Zachary R. Cormier Keleher & McLeod, P.A. Albuquerque, New Mexico and Travis G. Jackson Meghan Dimond Stanford Foster, Rieder & Jackson, P.C. Albuquerque, New Mexico Attorneys for the Defendant


         THIS MATTER comes before the Court on the Defendant's Motion to Dismiss Complaint for Defamation, filed July 11, 2017 (Doc. 5)(“Motion”). The Court held a hearing on October 23, 2017. The primary issues are: (i) whether the Court may properly consider, in ruling on the Motion under rule 12(b)(6) of the Federal Rules of Civil Procedure, the State of New Mexico Uniform Incident Report, filed July 11, 2017 (Doc. 5-2)(“Police Report”), when Plaintiff Daniel Ormrod did not attach it to or reference it in his Complaint for Defamation, filed June 6, 2017 in Ormrod v. Hubbard Broadcasting, Inc., No. D-202-CV-2017-04001 (Second Judicial District Court, County of Bernalillo, State of New Mexico), filed in federal court July 6, 2017 (Doc. 1-2)(“Complaint”); (ii) whether the fair report privilege shields Defendant Hubbard Broadcasting, Inc. (“KOB 4”) from Ormrod's defamation claim under New Mexico common law; and (iii) whether Ormrod, a public school teacher, is considered a public official for a defamation claim's purposes. The Court concludes that: (i) the Court may properly consider the Police Report in ruling on the Motion; (ii) the fair report privilege does not shield KOB 4 from liability on the facts before the Court; and (iii) Ormrod is not a public official for a defamation claim's purposes. Accordingly, the Court will deny the Motion.


         The Court draws its facts from Ormrod's Complaint. The Court accepts Ormrod's factual allegations as true for the limited purpose of deciding the Motion. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(“Iqbal”)(clarifying the “tenet that a court must accept as true all of the [factual] allegations contained in a complaint”)(alteration added)(citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)); Archuleta v. Wagner, 523 F.3d 1278, 1283 (10th Cir. 2008)(concluding that a court must “accept as true all well-pleaded facts, as distinguished from conclusory allegations” when deciding a motion to dismiss).

         Ormrod is a resident of Bernalillo County, New Mexico, and works for the Albuquerque Public Schools (“APS”) as a teacher at Dennis Chavez Elementary School. See Complaint ¶¶ 1, 3, 6, at 1-2. Hubbard Broadcasting (“KOB 4”) is a Minnesota corporation that operates the website and the Albuquerque television station KOB 4. Complaint ¶ 2, at 1. On or about May 5, 2016, KOB 4 reporter Erica Zucco received an anonymous news tip concerning allegations against Ormrod. See Complaint ¶ 6, at 2. Zucco then contacted APS Communication Director Monica Armenta and asked about the allegations. See Complaint ¶ 7, at 2. Armenta told Zucco that, as of that date, May 12, 2016, she did not know of any allegations against Ormrod. See Compliant ¶ 8, at 2. In fact, Ormrod had not been charged, nor was he ever charged, with a crime for any actions occurring on that date. See Complaint ¶ 9, at 2.

         Around this time, KOB 4 employee Johnny Chandler “obtained a form prepared by the Albuquerque Public Schools Police Department which was a notification to [Ormrod] of an investigation which necessitated that he be aware of his constitutional rights.” Complaint ¶ 10, at 2. “The document did not state [Ormrod] was being charged with a crime, nor did it indicate any criminal charges were being filed against [Ormrod].” Complaint ¶ 11, at 2. As professional journalists, Chandler, Zucco, and KOB 4 editors and reporters know that “criminal charges cannot be filed without a criminal complaint or grand jury indictment.” Complaint ¶ 12, at 2. Regardless, KOB 4 did not conduct any other research on the anonymous news tip and published a false news story concerning Ormrod. See Complaint ¶ 13, at 2. Specifically, KOB 4 falsely reported on its website, on May 12, 2016, that “Ormrod was charged with felony child abuse, ” Complaint ¶ 14, at 2, despite “not having any definitive information regarding any formal criminal charges” filed against Ormrod, Complaint ¶ 14, at 2.

         After publishing the story, KOB 4 confirmed that its reporting was false and changed the wording in subsequent news stories. See Compliant ¶ 15, at 3. Despite learning that Ormrod was not actually charged with “felony child abuse, ” KOB 4 “took no action to correct its May 12, 2016 . . . version of the story, nor did it issue any kind of retraction concerning its false reporting.” Complaint ¶ 16, at 3. KOB 4 keeps records of the number of people who visit its website for advertising purposes. See Complaint ¶ 17, at 2.


         Ormrod filed his Complaint in state district court on June 6, 2017. See Complaint at 1. The Complaint alleges a single count of defamation against KOB 4. See Complaint ¶¶ 20-28, at 3-4. KOB 4 removed the case to federal court on July 6, 2017, on the basis of diversity jurisdiction. See Notice of Removal, filed July 6, 2017 (Doc. 1)(“Notice of Removal”).[1]

         1. The Motion.

         KOB 4 contends that its news story was based on the Police Report, which identifies Ormrod's “offense” as “child abuse.” Motion at 2 (citing Police Report at 1). KOB 4 further argues that its story was also based on a letter which APS sent to the parents of Dennis Chavez Elementary students, stating that “‘Daniel Ormrod, a second-grade teacher here at Dennis Chavez, was cited on child abuse charges Friday stemming from an incident involving a student here.'” Motion at 2 (quoting Albuquerque Public Schools Letter at 1, filed July 11, 2017 (Doc. 5-3)(“APS Letter”)).

         KOB 4 next argues that the Court may consider three documents outside of the Complaint in ruling on the Motion. First, KOB 4 asserts that the Court should consider the KOB 4 News Story, filed July 11, 2017 (Doc. 5-1)(“News Story”), because Ormrod references it in the Complaint, and because of its “centrality to Plaintiff's claims and its undisputed authenticity.” Motion at 4. Second, KOB 4 avers that the Court should consider the Police Report, because the Complaint references it, and it is central to Ormrod's claims. See Motion at 5. Third, KOB 4 contends that the Court should also consider the APS Letter, because KOB 4's story was based, in part, on that letter. See Motion at 5.

         KOB 4 argues that “KOB's report is squarely protected by the Fair Report Privilege, ” so the Court should dismiss the case. Motion at 2. According to KOB 4 “‘[t]he essence of the fair report privilege is that no liability will attach for the republication of the defamatory statement so long as the republication is a fair and accurate report of an official action or public proceeding.'” Motion at 6 (quoting Stover v. Journal Publishing Co., 1985-NMCA-113, ¶ 14, 731 P.2d 1335, 1338). According to KOB 4, this privilege “applies to the republication of statements made in police reports.” Motion at 6 (citing Restatement (Second) of Torts § 611 cmt. h). KOB 4 further contends that the fair report privilege applies to the APS Letter. See Motion at 6 (citing Restatment (Second) of Torts § 611, at 297). According to KOB 4, it is not liable for defamation, because it fairly and accurately reported the APS Letter's and the Police Report's contents. See Motion at 7. KOB 4 therefore concludes that the Court should dismiss the Complaint. See Motion at 7.

         2. The Response.

         Ormrod responds to the Motion. See Plaintiff's Response to Defendant's Motion to Dismiss Complaint for Defamation, filed July 26, 2017 (Doc. 6)(“Response”). Ormrod first challenges the documents that KOB 4 wishes the Court to consider. Response at 3. Specifically, Ormrod asserts that, “first, the documents may not have been in the possession of the Defendant at the time of publication. Second, none of the documents provided reflect that Plaintiff was charged with a crime in court.” Response at 3. Ormrod continues that “none of the documents provided by Defendant in its motion were actually cited in the Plaintiff's complaint.” Response at 4.

         Ormrod next argues that the News Story which KOB 4 provides to the Court is “not the actual version web version which was published on its website.” Response at 5. Ormrod contends that the actual KOB 4 story is the one printed on the last page of the Response. See Response at 10. Ormrod also disputes KOB 4's use of the Police Report, arguing that KOB 4 did not receive it until after it published its story about Ormrod. See Response at 6. Ormrod then asserts that the Court should not consider the APS Letter, because it has not been authenticated, and it is unclear whether KOB 4 relied on this document in publishing its story. See Response at 6.

         Next, Ormrod contends that “New Mexico Case law has specifically rejected the assertion of the Fair Report Privilege when a journalist in a defamation case added additional facts not contained in a police report.” Response at 7 (citing Furgasson v. Clausen, 1989-NMCA-084, 785 P.2d 242). Finally, Ormrod argues that KOB 4 attempts to minimize the impact of its story, but that “the degree upon which the elements of defamation are to be satisfied is up to the trier to fact. Plaintiff's assertions at this point are questions of fact and do not belong in a motion to dismiss.” Response at 9. Ormrod concludes that the Court should deny the Motion. See Response at 9.

         3. The Reply.

         KOB 4 replies to the Response. See Reply in Support of Motion to Dismiss Complaint for Defamation, filed August 9, 2017 (Doc. 9)(“Reply”). KOB 4 first argues that the Police Report “was faxed from ‘APS Communications' as stated in the fax header, which would seem to be sufficient to establish its authenticity.” Reply at 1 (quoting Police Report at 1). KOB 4 argues that the Police Report and the APS Letter are central to Ormrod's claim, and their authenticity is established, so the Court should consider them. See Reply at 2.

         KOB 4 next argues -- for the first time in the Reply brief -- that Ormrod, as a public school teacher, is considered a public official for the purposes of a defamation claim, and, therefore, the actual malice standard for defamation should apply. See Reply at 2-3. According to KOB 4, Ormrod does not properly plead defamation with an actual malice standard in his Complaint and instead relies on a negligence standard. See Reply at 3. KOB 4 then re-asserts its arguments that the Court should consider the Police Report and the APS Letter. See Reply at 4. KOB 4 concludes that the Court should dismiss the Complaint. See Reply at 5.

         4. The Hearing.

         The Court held a hearing on October 23, 2017. See Draft Transcript of Motion Proceeding at 1:4 (taken October 23, 2017)(Court)(“Tr.”).[2] KOB 4 argued that a public school teacher is a public official, requiring Ormrod to plead actual malice. See Tr. at 10:20-25 (Rieder). The Court responded: “[B]ut those issues are for down the road, right, as to what the standard of inquiry is, or the scienter requirement. . . . [T]his motion is this privilege bars this claim regardless of whether the standard is intentional or actual or reckless.” Tr. at 11:3-9 (Court). KOB 4 replied: “[W]hat you're saying is correct. . . . [I]n this situation the problem with the way that the pleadings have been structured at this point is that . . . Mr. Bregman has really asserted a negligence standard which is not applicable, given the fact that Mr. Ormrod is a public official.” Tr. at 11:11-22 (Rieder). The Court then asked: “[B]ut does the proper scienter requirement have any impact under the application of this privilege?” Tr. at 11:24-12:1 (Court). KOB 4 replied: “[N]o.” Tr. at 12:2 (Rieder). KOB 4 then argued that Ormrod is a public official, because “under the first amendment the Court wants to protect people who are performing services that are fundamental to the democracy, including educating children.” Tr. at 17:22-25 (Rieder). KOB 4 added that the Court should consider the Police Report in deciding the Motion. See Tr. at 19:2-5 (Rieder).

         Ormrod then took the podium. See Tr. at 21:23 (Bregman). The Court asked Ormrod what exhibits it should consider when ruling on the Motion. See Tr. at 27:19-22 (Court). Eventually, Ormrod conceded that the Court could consider the APS Letter. See Tr. at 31:4-5 (Bregman). The Court then asked “in your view Mr. Bregman I can consider the two stories that KOB put out, and then I can also consider the letter from the APS, but not [the] police report, ” Tr. at 35:20-23 (Court), to which Ormrod replied “that's correct, ” Tr. at 35:24 (Bregman). Ormrod conceded, however, that the Police Report was authentic. See Tr. at 28:18-19 (Bregman)(“I'm not disputing that that police report was created.”). At the hearing's conclusion, the Court offered its inclination that the fair report privilege did not apply to KOB 4's story, and, consequently, the Court should deny the Motion. See Tr. at 37:4-8 (Court).

         LAW REGARDING RULE(12)(b)(6)

         Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). A complaint's sufficiency is a question of law, and, when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiff's favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)(“[O]nly if a reasonable person could not draw . . . an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir. 2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir. 2006)).

         A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp v. Twombly, 550 U.S. at 555 (citation omitted).

         To survive a motion to dismiss, a plaintiff's complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir. 2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)(emphasis omitted). The United States Court of Appeals for the Tenth Circuit has stated:

“[P]lausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief.

Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir. 2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570)(internal citations omitted). See Glover v. Gartman, 899 F.Supp.2d 1115, 1131 (D.N.M. 2012)(Browning, J.); Tavasci v. Cambron, No. CIV 16-0461, 2017 WL 3173011, at *14 (D.N.M. 2017)(Browning, J.).


         Generally, the sufficiency of a complaint must rest on its contents alone. See Casanova v. Ulibarri, 595 F.3d 1120, 1125 (10th Cir. 2010); Gossett v. Barnhart, 139 F. App'x 24, 24 (10th Cir. 2005)(unpublished)[3](“In ruling on a motion to dismiss, the district court is limited to the facts pled in the complaint.”). Emphasizing this point, the Tenth Circuit, in Carter v. Daniels, 91 F. App'x 83 (10th Cir. 2004)(unpublished), states: “When ruling on a Rule 12(b)(6) motion, the district court must examine only the plaintiff's complaint. The district court must determine if the complaint alone is sufficient to state a claim; the district court cannot review matters outside of the complaint.” 91 F. App'x at 85. There are three limited exceptions to this general principle: (i) documents that the complaint incorporates by reference, see Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007); (ii) “documents referred to in the complaint if the documents are central to the plaintiff's claim and the parties do not dispute the documents' authenticity, ” Jacobsen v. Deseret Book Co., 287 F.3d at 941; and (iii) “matters of which a court may take judicial notice, ” Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. at 322. “[T]he court is permitted to take judicial notice of its own files and records, as well as facts which are a matter of public record.” Van Woudenberg v. Gibson, 211 F.3d 560, 568 (10th Cir. 2000), abrogated on other grounds by McGregor v. Gibson, 248 F.3d 946, 955 (10th Cir. 2001). In Gee v. Pacheco, 627 F.3d 1178 (10th Cir. 2010), the defendants “supported their motion with numerous documents, and the district court cited portions of those motions in granting the [motion to dismiss].” 627 F.3d at 1186. The Tenth Circuit held that “[s]uch reliance was improper” and that, even if “the district court did not err initially in reviewing the materials, the court improperly relied on them to refute Mr. Gee's factual assertions and effectively convert the motion to one for summary judgment.” Gee v. Pacheco, 627 F.3d at 1186-87. In other cases, the Tenth Circuit has emphasized that, “[b]ecause the district court considered facts outside of the complaint, however, it is clear that the district court dismissed the claim under Rule 56(c) and not Rule 12(b)(6).” Nard v. City of Okla. City, 153 F. App'x 529, 534 n.4 (10th Cir. 2005)(unpublished). In Douglas v. Norton, 167 F. App'x 698 (10th Cir. 2006)(unpublished), the Tenth Circuit addressed an untimely filed charge with the Equal Employment Opportunity Commission -- which the court analogized to a statute of limitations -- and concluded that, because the requirement was not jurisdictional, the district court should have analyzed the question under rule 12(b)(6), and “because the district court considered evidentiary materials outside of Douglas' complaint, it should have treated Norton's motion as a motion for summary judgment.” 167 F. App'x at 704-05.

         The Court has previously ruled that, when determining whether a statute of limitations had been tolled in an action alleging fraud and seeking subrogation from a defendant, the Court may not use interviews and letters attached to a motion to dismiss, which evidence that a plaintiff was aware of the defendant's alleged fraud before the statutory period expired, in the Court's ruling. See Great Am. Co. v. Crabtree, No. CIV 11-1129, 2012 WL 3656500, at *3, **22-23 (D.N.M. Aug. 23, 2012)(Browning, J.). The Court determined that the documents did not fall within any of the Tenth Circuit's exceptions to the general rule that a complaint must rest on the sufficiency of its contents alone, as the complaint did not incorporate the documents by reference, or refer to the documents. See 2012 WL 3656500, at **22-23; Mocek v. City of Albuquerque, No. CIV 11-1009, 2013 WL 312881, at *50 (D.N.M. 2013)(Browning, J.)(refusing to consider statements that were not “central to [the plaintiff's] claims”).

         On the other hand, in a securities class-action, the Court has found that a defendant's operating certification, to which plaintiffs refer in their complaint, and which is central to whether the plaintiffs' adequately alleged a loss, falls within an exception to the general rule, and the Court may consider the operating certification when ruling on the defendant's motion to dismiss without converting the motion into one for summary judgment. See Genesee Cty Emps.' Retirement Sys. v. Thornburg Mortg. Secs. Trust 2006-3, 825 F.Supp.2d 1082, 1150- 51 (D.N.M. 2011)(Browning, J.); Mata v. Anderson, 760 F.Supp.2d 1068, 1101 (D.N.M. 2009)(Browning, J.)(relying on documents outside of the complaint because they were “documents that a court can appropriately view as either part of the public record, or as documents upon which the Complaint relies, and the authenticity of which is not in dispute”).


         Under Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938)(“Erie”), a federal district court sitting in diversity applies “state law with the objective of obtaining the result that would be reached in state court.” Butt v. Bank of Am., N.A., 477 F.3d 1171, 1179 (10th Cir. 2007). Accord Mem. Hosp. v. Healthcare Realty Trust Inc., 509 F.3d 1225, 1229 (10th Cir. 2007). The Court has held that if a district court exercising diversity jurisdiction cannot find a Supreme Court of New Mexico “opinion that [governs] a particular area of substantive law . . . [the district court] must . . . predict how the Supreme Court of New Mexico would [rule].” Guidance Endodontics, LLC v. Dentsply Int'l., Inc., 708 F.Supp.2d 1209, 1224-25 (D.N.M. 2010)(Browning, J.). “Just as a court engaging in statutory interpretation must always begin with the statute's text, a court formulating an Erie prediction should look first to the words of the state supreme court.” Peña v. Greffet, 110 F.Supp.3d 1103, 1132 (D.N.M. 2015)(Browning, J.).[4] If the Court finds only an opinion from the Court of Appeals of New Mexico, while “certainly [the Court] may and will consider the Court of Appeal[s'] decision in making its determination, the Court is not bound by the Court of Appeal[s'] decision in the same way that it would be bound by a Supreme Court decision.” Mosley v. Titus, 762 F.Supp.2d 1298, 1332 (D.N.M. 2010)(Browning, J.)(noting that, where the only opinion on point is “from the Court of Appeals, [] the Court's task, as a federal district court sitting in this district, is to predict what the Supreme Court of New Mexico would do if the case were presented to it”)(citing Wade v. EMCASCO Ins. Co., 483 F.3d 657, 666 (10th Cir. 2007)(explaining that, “[w]here no controlling state decision exists, the federal court must attempt to predict what the state's highest court would do, ” and that, “[i]n doing so, it may seek guidance from decisions rendered by lower courts in the relevant state”)).[5] The Court may also rely on Tenth Circuit decisions interpreting New Mexico law. See Anderson Living Trust v. WPX Energy Prod., LLC, 27 F.Supp.3d at 1243 & n.30.[6] Ultimately, “the Court's task is to predict what the state supreme court would do.” Wade v. EMCASCO Ins. Co., 483 F.3d at 666. Accord Mosley v. Titus, 762 F.Supp.2d at 1332 (citation omitted); Rimbert v. Eli Lilly & Co., 577 F.Supp.2d 1174, 1188-89 (D.N.M. 2008)(Browning, J.)(quoting Wade v. EMCASCO Ins. Co., 483 F.3d at 665-66). See in re Santa Fe Natural Tobacco Company Marketing & Sales Practices and Products Liability Litigation, No. MD 16-2695, 2017 WL 6550897, at *27 (D.N.M. 2017)(Browning, J.).


         Over fifty years ago, in New York Times v. Sullivan, 376 U.S. 254 (1964), the Supreme Court declared that state law defamation claims must be measured by standards that satisfy the First Amendment to the Constitution of the United States of America, which permits no law “abridg[ing] the freedom of speech, and of the press.” N.Y. Times v. Sullivan, 376 U.S. at 269. That holding is grounded in “a profound national commitment to the principle that debate on public issues should be unlimited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S. at 270. The protection of speech on issues of public concern extends even to false speech, so that the First Amendment's “freedom of expression . . . ha[s] the ‘breathing space'” it needs to survive. 376 U.S. at 271-72. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341 (1974)(“The First Amendment requires that we protect some falsehood in order to protect speech that matters.”).

         “[T]here is no federal cause of action for defamation.” Bartel v. FAA, 725 F.2d 1403, 1405 n.2 (D.C. Cir. 1984). See Estate of Ricci v. Salt Lake City Corp., 180 F. App'x 810, 813 (10th Cir. 2006)(unpublished)(“Further, [the plaintiff] has no § 1983 cause of action for defamation.”); DeCamp v. Douglas Cty. Franklin Grand Jury, 978 F.2d 1047, 1050 (8th Cir. 1992). The Court may only hear a state law defamation cause-of-action through exercising supplemental jurisdiction under 28 U.S.C. § 1367, see Fisher v. Lynch, 531 F.Supp.2d 1253, 1271 (D. Kan. 2008)(Vratil, J.)(“[U]nder Section 1367(a) . . . the Court may exercise supplemental jurisdiction over the [state law] defamation claim.”), or through its diversity jurisdiction under 28 U.S.C. § 1332, see Cleary Bldg. Corp. v. David A. Dame, Inc., 674 F.Supp.2d 1257, 1260 (D. Colo. 2009)(Arguello, J.)(“Plaintiff also alleges claims of [state] common law . . . defamation . . . . Jurisdiction is proper pursuant to . . . 28 U.S.C. § 1332 . . . .”).

         Under New Mexico law, a prima-facie case for defamation includes: (i) a published communication by the defendant; (ii) the communication includes an asserted statement of fact; (iii) the communication was concerning the plaintiff; (iv) the statement of fact is false; (v) the communication was defamatory; (vi) the persons receiving the communication understood it to be defamatory; (vii) the defendant knew the communication was false or negligently failed to recognize that it was false, or acted with malice; (viii) the communication caused actual injury to the plaintiff's reputation; and (ix) the defendant abused its privilege to publish the communication. See N.M. Rules Ann., Civ. UJI 13-1002(B).[7] See also Newberry v. Allied Stores, Inc., 1989-NMSC-024, ¶ 16, 773 P.2d 1231, 1236 (“Generally, the elements of a defamation action include: a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff.”)(citing N.M. Rules Ann., Civ. U.J.I. 13-1002); Heyward v. Credit Union Times, 913 F.Supp.2d 1165, 1185 (D.N.M. 2012)(Browning, J.).

         1. Statement of Fact.

         The Supreme Court has held that, under the First Amendment, a statement can serve as a basis for a defamation claim only if it is a statement of fact and not of opinion:

Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S., [sic] at 270 . . . . They belong to that category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any ...

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