United States District Court, D. New Mexico
Bregman The Bregman Law Firm, P.C. Attorneys for the
Zachary R. Cormier Geoffrey D. Rieder Keleher & McLeod,
P.A. and Meghan Dimond Stanford Jackson Loman Stanford &
Downey, P.C. and Travis G. Jackson Foster, Rieder &
Jackson, P.C. Attorneys for Defendant Hubbard Broadcasting,
Patrick J. Rogers Patrick J. Rogers, L.L.C. and Zachary R.
Cormier Geoffrey D. Rieder Keleher & McLeod, P.A. and
Gregg D. Thomas Jon M. Philipson Thomas & LoCicero P.L.
Tampa, Florida Attorneys for Defendant KOB-TV, LLC
MEMORANDUM OPINION AND ORDER
MATTER comes before the Court on the Motion to
Dismiss Defendant KOB-TV, LLC's Counterclaim for
Promissory Estoppel and Breach of Contract, filed May 21,
2018 (Doc. 77)(“Motion”). The Court held a
hearing on June 28, 2018. The primary issues are: (i) whether
Plaintiff Daniel Ormrod's demand that, if Defendant
KOB-TV, LLC (“KOB 4”) did not remove an allegedly
defamatory news article from its website, then Ormrod would
sue gave rise to a contractual obligation not to sue KOB 4;
and (ii) whether the same demand also gave rise -- under the
promissory estoppel doctrine -- to an enforceable promise not
to sue KOB 4. The Court concludes that: (i) Ormrod's
demand did not create a contract, so he did not incur a
contractual obligation not to sue KOB 4; and (ii)
Ormrod's demand was not a promise, so no legally
enforceable promise not to sue exists. Accordingly, the Court
will grant the Motion.
Court draws its facts from KOB-TV, LLC's Answer,
Defenses, and Counterclaim ¶¶ 1-29, at 8-13, filed
April 30, 2018 (Doc. 66)(“Counterclaim”). The
Court accepts KOB 4's factual allegations as true for the
limited purpose of deciding the Motion. See Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009)(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).
is a Delaware limited liability company whose sole member is
Hubbard Broadcasting, Inc., a Minnesota corporation with its
principal place of business in Minnesota. See
Counterclaim ¶ 1, at 8. Ormrod is a citizen of New
Mexico. See Counterclaim ¶ 2, at 8. The amount
in controversy in this case exceeds $75, 000.00. See
Counterclaim ¶ 4, at 9.
12, 2016, KOB 4 learned of a child abuse allegation involving
Ormrod, a teacher at Dennis Chavez Elementary School in
Albuquerque, New Mexico. See Counterclaim ¶ 6,
at 9. Specifically, KOB 4 received a police report describing
“the alleged completed commission of felony child abuse
by Ormrod.” Counterclaim ¶ 7, at 9. Allegedly,
Ormrod grabbed a student's arm, leaving multiple bruises.
See Counterclaim ¶ 8, at 9. KOB 4 published an
online news article saying that Ormrod had been charged with
felony child abuse. See Counterclaim ¶¶ 7,
9, at 9-10.
approximately 3:56 p.m., Ormrod's attorney, Sam Bregman,
called KOB 4, and said that he represented Ormrod and that
Ormrod had not been charged. See Counterclaim ¶
12, at 10. Bregman said that if KOB 4 did not remove the
article, he would sue. See Counterclaim ¶ 12,
at 10. After confirming with an Albuquerque Public Schools
employee that Ormrod had not been charged, KOB 4 “at
approximately 4:02 PM . . . updated the article to remove the
‘charged' language, and at approximately 4:08 PM .
. . removed Ormrod's name from the article.”
Counterclaim ¶ 14, at 11. KOB 4 also added an
editor's note stating “‘[t]he name of the
teacher being investigated has been removed as he does not
currently face charges. APS has since clarified that there is
only an investigation at this point. A letter home to parents
named the teacher involved.'” Counterclaim ¶
14, at 11 (quoting Article at 3, filed April 30, 2018 (Doc.
66-6)). Ormrod subsequently sued KOB 4. See
Counterclaim ¶ 15, at 11.
alleges a single count of defamation against KOB 4.
See Amended Complaint for Defamation ¶¶
22-30, at 3-4, filed March 20, 2018 (Doc. 42). KOB 4 later
filed two counterclaims against Ormrod, alleging one count of
promissory estoppel and one count of breach of contract.
See Counterclaim ¶¶ 16-29, at 11-13.
Ormrod subsequently filed the Motion. See Motion at
moves the Court to dismiss the two counterclaims.
See Motion at 1. Ormrod first argues that KOB 4
“does not state that Plaintiff explicitly stated he
would not file a lawsuit even if the defamatory story was
taken down.” Motion at 3. According to Ormrod,
“[i]t is not uncommon for an attorney, representing a
client, to make a demand upon an opposing party to cease and
desist from a certain action. The demand described under the
auspices of [KOB 4's] counterclaim is insufficient to
establish a contract.” Motion at 3. He also contends
that KOB 4 has not stated a claim for breach of contract,
“because it does not state there was any sufficient
consideration to establish a contract or the specificity
required under Hansen v. Ford Motor Co., ”
1995-NMSC-044, 900 P.2d 952. Motion at 4.
then asserts that KOB 4 has not pled facts sufficient to
satisfy promissory estoppel's elements. See
Motion at 3-4 (citing Eavenson v. Lewis Means, Inc.,
1986-NMSC-097, 730 P.2d 464). Finally, Ormrod contends that
the Counterclaim “fails to state whether the individual
who spoke to Plaintiff's counsel possessed the legal
authority to enter into a settlement and release agreement on
its behalf.” Motion at 4. Ormrod concludes that the
Court should grant the Motion. See Motion at 4.
responds to the Motion. See KOB-TV, LLC's
Response to Plaintiff Daniel Ormrod's Motion to Dismiss
Defendant KOB-TV, LLC's Counterclaim for Promissory
Estoppel and Breach of Contract, filed June 4, 2018 (Doc.
81)(“Response”). KOB 4 first contends that it has
sufficiently pled a claim for breach of a unilateral
contract. See Response at 5. According to KOB 4, a
unilateral contract exists between itself and Ormrod, because
Ormrod made an offer not to sue KOB 4 in exchange for KOB 4
removing from its website the news article, and KOB 4
accepted Ormrod's offer by removing the relevant
language. See Response at 6. KOB 4 adds that
“an agreement to forebear suit is sufficient
consideration in a unilateral contract.” Response at 8.
next argues that Ormrod breached the parties' alleged
contract. See Response at 10. According to KOB 4,
“despite accepting Ormrod's offer by removing the
‘charged' language, Ormrod has proceeded to sue
KOB-TV, causing KOB-TV unnecessary harm.” Response at
11. According to KOB 4, “Ormrod had a duty not to sue
KOB-TV. However, Ormrod breached his contractual obligation
by filing his lawsuit against KOB-TV.” Response at 11.
then contends that Ormrod's breach of the parties'
alleged contract caused KOB 4 damages. See Response
at 11. According to KOB 4, “but for Ormrod filing his
suit against KOB-TV, KOB-TV would not be damaged.”
Response at 11. Further, according to KOB 4, “as a
result of Ormrod's breach, KOB-TV has suffered damages,
including but not limited to, the attorneys' fees and
costs of defending against the suit by Ormrod.”
Response at 12. KOB 4 concludes that it has properly pled a
breach of contract claim. See Response at 12.
to its promissory estoppel claim, KOB 4 asserts that it has
properly pled all of that claim's elements. See
Response at 12. First, KOB 4 avers that Ormrod made a promise
inducing an action by promising not to sue if KOB 4 removed
language from its news article. See Response at 14.
According to KOB 4, “induced by that promise, KOB-TV
took the action of removing the language . . . from the news
article.” Response at 15. Second, KOB 4 contends that
it reasonably relied on Ormrod's promise. See
Response at 16. According to KOB 4, it “took the action
of removing the language based on the promise by Ormrod and .
. . the action was in direct response to Ormrod's promise
not to sue if the language was removed.” Response at
16. Third, KOB 4 contends that it substantially changed its
position by updating its news article and removing the
“charged” language. Response at 17. Fourth, KOB 4
avers that it “has sufficiently pleaded foreseeability,
noting that Mr. Bregman, on behalf of Ormrod, made a promise
to induce KOB-TV to take a certain action.” Response at
17. Finally, KOB 4 contends that “the [e]nforcement of
the promise is necessary to prevent injustice to KOB-TV,
including its expense of its continued defense of
Ormrod's lawsuit.” Response at 18. KOB 4 concludes
that the Court should deny the Motion. See Response
replies to the Response. See Plaintiff's Reply
in Support of his Motion to Dismiss Defendant KOB-TV,
LLC's Counterclaim for Promissory Estoppel and Breach of
Contract, filed June 21, 2018 (Doc. 88)(“Reply”).
Ormrod first contends that “the language plead by KOB
in its Counterclaim falls short of creating a
contract.” Reply at 1. According to Ormrod,
“there is simply no legal precedent to support
KOB's contention where a potentially defamed individual
calls a newsroom complaining about an error in a story,
convinces the news media entity to remove the story, then
somehow claim[s] an unwritten contract was created to forego
litigation.” Reply at 2. Ormrod continues that
“there is nothing in the words plead[ed] in the
counterclaim which explicitly state take down the false story
and my client will not sue you if you do.” Reply at 3.
According to Ormrod, KOB's characterization of his
statement as a “‘promise not to sue' is
simply self-serving commentary on the actual statement which
KOB claims created the contract.” Reply at 3 (quoting
Counterclaim ¶13, at 10).
next avers that KOB 4's promissory estoppel claim should
fail, because “KOB does not plead anything in its
counterclaim to substantiate a change in position.”
Reply at 5. According to Ormrod, “all [KOB 4] appeared
to do was remove the false claim that Plaintiff was charged
with a felony. The story was not removed and [KOB 4] does not
claim with any substance to have suffered a change in
position by simply correcting a story.” Reply at 5.
Ormrod concludes that the Court should dismiss KOB 4's
counterclaims. See Reply at 6.
Court held a hearing on June 28, 2018. See Draft
Transcript of Motion Hearing at 1:6-9 (taken June 28,
2018)(“Tr.”)(Court). Ormrod first argued that the
language “[r]emove from [KOB.com] within 10 minutes the
article containing the statement that Ormrod had been charged
or Ormrod would sue KOB-TV” does not create a contract.
Tr. at 3:18-25 (Bregman). According to Ormrod, “I
promised to them that I would sue them unless they did
something. I didn't promise that I would never sue
them.” Tr. at 3:25-4:3 (Bregman). Ormrod continued that
“[n]owhere did they allege that I said . . . I promise
not to sue you if you do this.” Tr. at 4:13-15
responded that Ormrod's words created a unilateral
contract, because “[t]he language is important, it
isn't take this down and I will sue you. It's take
this down or I will sue you, ” Tr. at 9:6-8 (Rogers),
and “what you're hearing now is, well, let's
transform that [‘or'] into an ‘and,
'” Tr. at 10:12-13 (Rogers). Ormrod replied that
“there is no way that you can say positively to someone
do something or I'm going to sue you and then say that
that is somehow a ...