Myers v. Powell, No. 2:2012cv02181 - Document 69 (E.D. La. 2018)
Court Description: ORDER AND REASONS granting 68 Motion to Dismiss Defendant's Counterclaims. Defendant's counterclaims for defamation, defamation per se, and intentional infliction of emotional distress are DISMISSED WITH PREJUDICE. Signed by Judge Sarah S. Vance on 1/30/2018. (cg)
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Myers v. Powell Doc. 69 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF LOUISIANA KIYANTE MYERS CIVIL ACTION VERSUS NO. 12-2181 CLIFTON POWELL SECTION “R” (5) ORD ER AN D REASON S Before the Court is plaintiff’s m otion to dism iss defendant’s counterclaim s.1 For the following reasons, the Court grants the m otion. I. BACKGROU N D 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, 20 11, 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 tim e.4 After convincing Myers to acquiesce, Powell allegedly pushed and choked Myers, penetrated her anus with his fingers, 1 2 3 4 R. Doc. 68. R. Doc. 1. Id. at 3-4. Id. at 4. Dockets.Justia.com 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, 20 11, but he asserts that these relations were consensual. 6 According to Powell’s counterclaim , Myers requested a sexual assault exam ination at University Hospital the next day.7 After speaking with Myers, a nurse at the hospital contacted the New Orleans Police Departm ent 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 m erit. 10 Powell was not arrested or charged with a crim inal offense against Myers.11 5 Id. R. Doc. 61 at 10 . The parties provide slightly different accounts of the dates of these events. Myers asserts that the alleged sexual assault occurred during the night of August 28, 20 11, to August 29, 20 11. See R. Doc. 1 at 1, 3-4. In his answer, Powell adm its that he m et Myers at a casino bar on the evening of August 28, 20 11, and agreed to go out with her that night. See R. Doc. 1 at 3 ¶¶ 13-14; R. Doc. 61 at 3 ¶¶ 13-14. But Powell’s counterclaim states that he engaged in consensual sexual relations with Myers in the late hours of August 27, 20 11, and on August 28, 20 11. See R. Doc. 61 at 10 . 7 R. Doc. 61 at 11. 8 Id. 9 Id. 10 Id. at 12. 11 Id. 2 6 On August 31, 20 12, Myers filed a com plaint against Powell seeking dam ages for assault, battery, and intentional infliction of em otional distress.12 Powell did not answer or otherwise defend against the com plaint, and the Court entered default judgm ent against him on August 30 , 20 13. 13 On J une 27, 20 16, Powell m oved for relief from the default judgm ent. 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 m em ber of the m edia 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 J anuary 24, 20 17, the Court granted Powell’s m otion to vacate the default judgm ent because of im proper service of process.19 The Court later granted Myers’s m otion for a new trial and reopened the case.20 12 13 14 15 16 17 18 19 20 R. Doc. 1. R. Doc. 31. R. Doc. 36. R. Doc. 36-1 at 10 . Id. at 18. Id. Id. at 19-20 . R. Doc. 55. R. Doc. 58. 3 On April 3, 20 17, Powell filed an answer and counterclaim s for defam ation, defam ation per se, and intentional infliction of em otional distress.21 Myers now m oves to dism iss the counterclaim s under Federal Rule of Civil Procedure 12(b)(6).22 Powell has not responded to this m otion. II. LEGAL STAN D ARD To survive a Rule 12(b)(6) m otion to dism iss, the plaintiff m ust plead “sufficient factual m atter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (20 0 9) (quoting Bell Atl. Corp. v. Tw om bly , 550 U.S. 544, 570 (20 0 7)). 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 m isconduct alleged.” Id. at 678. A court m ust accept all well-pleaded facts as true and m ust draw all reasonable inferences in favor of the plaintiff. See Lorm and v. US Unw ired, Inc., 565 F.3d 228, 232 (5th Cir. 20 0 9). A legally sufficient com plaint m ust establish m ore 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 m ust go beyond labels, legal 21 22 R. Doc. 61. R. Doc. 68. 4 conclusions, or form ulaic recitations of the elem ents of a cause of action. Id. In other words, the face of the com plaint m ust contain enough factual m atter to raise a reasonable expectation that discovery will reveal relevant evidence of each elem ent of the plaintiff’s claim . Lorm and, 565 F.3d at 257. The claim m ust be dism issed if there are insufficient factual allegations to raise a right to relief above the speculative level, Tw om bly , 550 U.S. at 555, or if it is apparent from the face of the com plaint that there is an insuperable bar to relief, Jones v. Bock, 549 U.S. 199, 215 (20 0 7). III. D ISCU SSION A. D e fam atio n Powell asserts counterclaim s of defam ation and defam ation per se. 23 Under Louisiana law, “[f]our elem ents are necessary to establish a claim for defam ation: (1) a false and defam atory statem ent 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. 20 0 6). “In other words, a plaintiff m ust prove that the defendant, with actual m alice or other fault, published a false statem ent with defam atory words which caused plaintiff 23 R. Doc. 61 at 15-19. 5 dam ages.” Fitzgerald v. Tucker, 737 So. 2d 70 6, 715-16 (La. 1999) (internal quotation om itted). Falsity, m alice (or fault), and injury m ay be presum ed if “a plaintiff proves publication of words that are defam atory per se,” although this presum ption is rebuttable. Kennedy , 935 So. 3d at 675. “Words which expressly or im plicitly accuse another of crim inal conduct . . . are considered defam atory per se.” Id. Powell’s counterclaim for defam ation per se states that, “[o]n or about August 28th and 29th, 20 11, and at various tim es continuing through the present day, Ms. Myers m ade false statem ents to third parties that Mr. Powell assaulted, battered and raped her.”24 The counterclaim further states that Myers and her attorneys or agents published defam atory statem ents to third parties, and these statem ents tarnished Powell’s reputation and resulted in negative m edia coverage and public reaction. 25 But Powell’s counterclaim s for defam ation per se an d defam ation provide no additional details regarding any specific statem ents m ade after August 29, 20 11. The Court finds that Powell’s allegations that Myers m ade defam atory statem ents after August 29, 20 11 are too vague to raise his right to relief above a speculative level. See Tw om bly , 550 U.S. at 555. 24 25 R. Doc. 61 at 15. Id. at 16. 6 Myers argues that Powell is tim e-barred from bringing a defam ation claim based on statem ents m ade in August 20 11. 26 Defam ation claim s in Louisiana are subject to the one year prescriptive period for delictual actions. See Alexander v. Tim es-Picay une LLC, 221 So. 3d 198, 20 3 (La. App. 4 Cir. 20 17); Clark v. W ilcox, 928 So. 2d 10 4, 112 (La. App. 1 Cir. 20 0 5). The prescriptive period “com m ences to run from the day injury or dam age is sustained.” La. Civ. Code art. 3492; see also Alexander, 221 So. 3d at 20 3 (“Generally, in the context of defam ation, prescription begins to run from the date of the publication of the allegedly defam atory rem arks.”). In Louisiana, “[t]he burden of proof is norm ally on the party pleading prescription; however, if on the face of the petition it appears that prescription has run . . . the burden shifts to the plaintiff to prove a suspension or interruption of the prescriptive period.” Younger v. Marshall Indus., Inc., 618 So. 2d 866, 869 (La. 1993); see also Eastin v. Entergy Corp., 865 So. 2d 49, 54 (La. 20 0 4). Because Powell asserts that Myers m ade false statem ents in August 20 11, his counterclaim s for defam ation and defam ation per se are facially prescribed. See Ly ons v. Knight, 65 So. 3d 257, 260 (La. App. 3 Cir. 20 11). Powell has not responded to this m otion, and has offered no basis to infer that his claim s are tim ely because of a suspension or 26 R. Doc. 68-1 at 7-8. 7 interruption of the prescriptive period. Accordingly, the Court finds that Powell’s counterclaim s of defam ation per se and defam ation are prescribed. B. In te n tio n al In flictio n o f Em o tio n al D is tre s s Powell’s counterclaim for intentional infliction of em otional distress is subject to the sam e one year prescriptive period as his defam ation claim s, and is based on the sam e factual allegations. See King v. Phelps Dunbar, LLP, 743 So. 2d 181, 187 (La. 1999); see also La. Civ. Code art. 3492. Powell asserts that he suffered em otional distress because of Myers’s defam atory statem ents, and he offers no details regarding any specific conduct by Myers after August 20 11.27 Thus, this counterclaim is also prescribed. Defendant has not responded to this m otion or sought leave to am end his counterclaim s. Because defendant’s counterclaim s for defam ation, defam ation per se, and intentional infliction of em otional distress have long been prescribed, the Court dism isses these claim s with prejudice. 27 R. Doc. 61 at 19-20 . 8 IV. CON CLU SION For the foregoing reasons, plaintiff’s m otion is GRANTED. Defendant’s counterclaim s for defam ation, defam ation per se, and intentional infliction of em otional distress are DISMISSED WITH PREJ UDICE. 30th New Orleans, Louisiana, this _ _ _ _ _ day of J anuary, 20 18. _____________________ SARAH S. VANCE UNITED STATES DISTRICT J UDGE 9
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