United States District Court, D. New Mexico
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
MEMORANDUM OPINION AND ORDER
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
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
“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).
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 www.kob.com 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.
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
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.
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”).
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”)).
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.
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.
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.
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.
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.
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.
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.
Court held a hearing on October 23, 2017. See Draft
Transcript of Motion Proceeding at 1:4 (taken October 23,
2017)(Court)(“Tr.”). 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
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).
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)).
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).
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
“[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
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.).
REGARDING DOCUMENTS OUTSIDE THE PLEADINGS ON A MOTION TO
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)(“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.
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”).
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
REGARDING DIVERSITY JURISDICTION AND ERIE
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,
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”)). 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. 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.).
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.”).
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 . . . .”).
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). 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.).
Statement of Fact.
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 ...