Opinion
No. 2:20-CV-00246-JRG-CRW
07-14-2021
Gayle Nicole DILLARD, individually and as a parent, guardian, and next friend to K.D., a minor, and Q.D., a minor, Plaintiff, v. Debbie RICHMOND, in her individual capacity, Stephen Dillard, and Michelle Dillard, Defendants.
James W. Friauf, Law Office of James W. Friauf, PLLC, Knoxville, TN, for Plaintiff. K. Erickson Herrin, Herrin, Booze & McPeak, Johnson City, TN, for Defendant Debbie Richmond. Joseph W. McMurray, R. Wayne Culbertson, P.C., Kingsport, TN, for Defendants Stephen Dillard, Michelle Dillard.
James W. Friauf, Law Office of James W. Friauf, PLLC, Knoxville, TN, for Plaintiff.
K. Erickson Herrin, Herrin, Booze & McPeak, Johnson City, TN, for Defendant Debbie Richmond.
Joseph W. McMurray, R. Wayne Culbertson, P.C., Kingsport, TN, for Defendants Stephen Dillard, Michelle Dillard.
MEMORANDUM OPINION AND ORDER
J. RONNIE GREER, UNITED STATES DISTRICT JUDGE
This matter is before the Court on Defendant Stephen Dillard's Motion to Dismiss and Motion for Hearing [Doc. 28], Mr. Dillard's Memorandum of Law [Doc. 30], Plaintiff Gayle Nicole Dillard's Response [Doc. 35], and Mr. Dillard's Reply [Doc. 40]. For the reasons herein, the Court will deny Mr. Dillard's motion.
I. BACKGROUND
Plaintiff Gayle Dillard alleges that, in August 2015, her former husband, Defendant Stephen Dillard, falsely reported to the Bristol Police Department that she had physically abused their biological child, Q.D. [Compl, Doc. 1, ¶ 12]. Ms. Dillard claims that the Bristol Police Department opened an investigation into Mr. Dillard's report and assigned Defendant Detective Debbie Richmond to it. [Id. ¶ 13]. According to Ms. Dillard, Detective Richmond engaged in a "highly-inappropriate personal relationship" with Mr. Dillard, [id. ¶ 61], and together, along with Mr. Dillard's mother, Michelle Dillard, they conspired to bring false allegations against Ms. Dillard in Sullivan County Criminal Court in April 2017, [id. ¶¶ 46, 65, 74]—allegations that rested in part on Mr. Dillard's coercion of K.D. and Q.D., whom he allegedly coached so they would blame Ms. Dillard for bruises on their bodies, when, in fact, he was responsible for them, [id. ¶¶ 39, 41–45]. These false allegations, Ms. Dillard claims, resulted in her eventual indictment on charges of child abuse and child endangerment. [Id. ¶ 46]. According to Ms. Dillard, however, she was found not guilty of these charges. [Id. ¶ 65]. The Sullivan County Criminal Court, she alleges, lifted all the restrictions on her visitation rights to Q.D. in May 2018 and entered an expungement order in December 2019. [Id. ¶¶ 50, 53, 55]. Ms. Dillard claims that she then filed an emergency petition to suspend Mr. Dillard's visitation rights to their minor children, K.D. and Q.D., over whom she now has sole custody, and her motion was granted. [Id. ¶¶ 52–53].
In November 2020, Ms. Dillard, K.D., and Q.D. brought suit in this Court against Mr. Dillard, alleging assault and battery, defamation, intentional infliction of emotional distress, malicious prosecution, fraud, and conspiracy to commit malicious prosecution. [Id. ¶¶ 68–75]. Ms. Dillard also sues Mr. Dillard's mother, Defendant Michelle Dillard, alleging the same claims except assault and battery. [Id. ¶¶ 76–81]. Lastly, Ms. Dillard sues Detective Richmond, alleging a violation of 42 U.S.C. § 1983 and several violations of state law. [Id. ¶¶ 58–67]. Mr. Dillard now moves for the dismissal of the claims against him, maintaining that the applicable statutes of limitation bar them and raising several other arguments for their dismissal. [Def.’s Mem. at 2–9]. Having carefully considered the parties’ arguments, the Court is now prepared to rule on Mr. Dillard's motion to dismiss.
Ms. Dillard pleads that the Court has supplemental jurisdiction over her state-law claims. [Compl. ¶ 7].
Mr. Dillard argues that the applicable statutes of limitation bar Ms. Dillard's claims, but he concedes they do not bar K.D.’s and Q.D.’s claims. [Def.’s Mem. at 2 n.1].
II. LEGAL STANDARD
Under Federal Rule of Civil Procedure 8(a)(2), "[a] pleading that states a claim for relief must contain ... a short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6), the plaintiff's complaint must contain "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, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is facially plausible when the plaintiff pleads facts that create a reasonable inference that the defendant is liable for the alleged conduct in the complaint. Id.
When considering a motion to dismiss under Rule 12(b)(6), a court accepts the allegations in the complaint as true and construes them in a light most favorable to the plaintiff. Mixon v. Ohio , 193 F.3d 389, 400 (6th Cir. 1999). "[T]he tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions," however. Iqbal , 556 U.S. at 678, 129 S.Ct. 1937. A plaintiff's allegations must consist of more than "labels," "conclusions," and "formulaic recitation[s] of the elements of a cause of action." Twombly , 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted); see Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 ("Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." (citation omitted)).
III. ANALYSIS
Mr. Dillard raises manifold arguments for the dismissal of Ms. Dillard's claims, ranging from the statute of limitations to immunity from civil liability. The Court will now proceed with these arguments on a claim-by-claim basis, as Mr. Dillard has done in his legal memorandum. [Def.’s Mem. at 2–9].
A. Statute of Limitations
" ‘Under the Erie doctrine,’ it is long settled, ‘federal courts sitting in diversity apply state substantive law and federal procedural law,’ " Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co. , 559 U.S. 393, 437, 130 S.Ct. 1431, 176 L.Ed.2d 311 (2010), and the same is true for federal courts with supplemental jurisdiction over state-law claims, Super Sulky, Inc. v. U.S. Trotting Ass'n , 174 F.3d 733, 744 (6th Cir. 1999). "Statutes of limitation are classified as substantive for Erie purposes," Phelps v. McClellan , 30 F.3d 658, 661 (6th Cir. 1994) (footnote omitted) (citing Guaranty Tr. Co. v. York , 326 U.S. 99, 110–11, 65 S.Ct. 1464, 89 L.Ed. 2079 (1945) ), but even though "state law sets the length of the statute of limitations, ‘federal law’ establishes when the ‘statute of limitations begins to run,’ " Winnett v. Caterpillar, Inc. , 609 F.3d 404, 408 (6th Cir. 2010) (quotation omitted). "Under federal law, as under most laws," the discovery rule—an equitable common-law rule—generally governs the question of when a statute of limitations begins to run, meaning that "the limitations clock starts ticking ‘when the claimant discovers, or in the exercise of reasonable diligence should have discovered, the acts constituting the alleged violation.’ " Id. (quotation omitted).
This same equitable rule—the discovery rule—generally applies under Tennessee law. See Pero's Steak & Spaghetti House v. Lee , 90 S.W.3d 614, 621 (Tenn. 2002) ("It is now well-established that, where applicable, the discovery rule is an equitable exception that tolls the running of the statute of limitations until the plaintiff knows, or in the exercise of reasonable care and diligence, should know that an injury has been sustained.").
1. Defamation
Mr. Dillard argues that Tennessee Code Annotated § 28-3-103 applies to Ms. Dillard's defamation claim. [Def.’s Mem. at 3]. Section 28-3-103 states that "[a]ctions for slanderous words spoken shall be commenced within six (6) months after the words are uttered." Relying on § 28-3-103, Mr. Dillard maintains that Ms. Dillard's claim is untimely because she "alleges that communication made by ... [him] were made on or about 2015" but did not file suit until 2020, well beyond the six-month timeframe. [Def.’s Mem. at 3]. In addition, Mr. Dillard rightly points out that the discovery rule does not apply to slander. [Id. ]; Hajiani v. ESHA USA, Inc. , No. 3:14-CV-594-TAV-HBG, 2017 WL 5163354, at *12 (E.D. Tenn. Nov. 7, 2017).
In response, Ms. Dillard contends that Tennessee Code Annotated § 28-3-104(a)(1)(A) governs her defamation claim. [Pls.’ Resp. at 5–7]. Subsection 28-3-104(a)(1)(A) provides that "[a]ctions for libel, injuries to the person, false imprisonment, malicious prosecution, or breach of marriage promise" must "commence[ ] within one (1) year after the cause of action accrued." Ms. Dillard views her claim as timely because her prosecution in Sullivan County, which arose from the Mr. Dillard's alleged defamatory statements, "continued until on or about December 4, 2019," when the case against her concluded with an expungement order. [Pls.’ Resp. at 6]; see [Compl. ¶ 55]. She brought suit for defamation in this Court within one year of that date, in November 2020. So, Ms. Dillard appears to be asserting that her defamation claim is timely because the harm that she suffered from Mr. Dillard's alleged defamatory statements continued through December 2019.
Ms. Dillard does not expressly plead whether the alleged defamatory statements were written or spoken, stating only that Mr. Dillard "made a false report" to police and "knowingly false allegations" before the Sullivan County Criminal Court. [Compl. ¶¶ 12, 46]. But because she argues in good faith that § 28-3-104(a)(1)(A) rather than § 28-3-103 applies to her claim, the Court presumes she is bringing a claim for libel and not slander. See generally Energy Conversion Devices Liquidation Tr. v. Trina Solar Ltd. , 833 F.3d 680, 688 (6th Cir. 2016) ("As the master of the complaint, the plaintiff may decide what claims to bring[.]").
Libel is written defamation, Quality Auto Parts Co. v. Bluff City Buick Co. , 876 S.W.2d 818, 820 (Tenn. 1994), and to state a claim for libel, a plaintiff must establish that "1) a party published a statement; 2) with knowledge that the statement is false and defaming to the other; or 3) with reckless disregard for the truth of the statement or with negligence in failing to ascertain the truth of the statement," Sullivan v. Baptist Mem'l Hosp. , 995 S.W.2d 569, 571–72 (Tenn. 1999) (citations omitted). Under § 28-3-104(a)(1)(A), a libel claim begins to accrue "upon the date the alleged defamatory language was published." Riley v. Dun & Bradstreet , 172 F.2d 303, 308 (6th Cir. 1949) (citation omitted). The term " ‘[p]ublication’ is a term of art meaning the communication of defamatory matter to a third person." Sullivan , 995 S.W.2d at 571–72 (quotation omitted). Neither party proposes that the discovery rule applies generally to libel claims in Tennessee or should apply specifically to the libel claim in this case. See Kinser v. Bechtel Power Corp. , 868 F. Supp. 2d 702, 704 (E.D. Tenn. 2012) ("Tennessee's discovery rule may apply in exceptionally rare instances where the ‘secretive or inherently undiscoverable’ nature of a libelous publication prevents a plaintiff from knowing or discovering through use of reasonable diligence he had been defamed." (citations omitted)). The Court will therefore hold to the common-law directive that a libel claim in Tennessee accrues "upon the date the alleged defamatory language was published." Riley , 172 F.2d at 308 (citation omitted).
Ms. Dillard appears to argue that Mr. Dillard "communicat[ed] ... defamatory matter to a third person" throughout the duration of her prosecution in Sullivan County Criminal Court, Sullivan , 995 S.W.2d at 571–72 (quotation omitted)—whether as an affiant or otherwise—until its resolution in or around December 2019, [Pls.’ Resp. at 6]. Although the Court, admittedly, has difficulty accepting Ms. Dillard's argument without relying on inferential patchwork that has only theoretical support from the allegations, the Court must be highly, if not inordinately, circumspect when determining whether a claim requires dismissal under a statute of limitations. See Cataldo v. U.S. Steel Corp. , 676 F.3d 542, 547 (6th Cir. 2012) ("[A] motion under Rule 12(b)(6), which considers only the allegations in the complaint, is generally an inappropriate vehicle for dismissing a claim based upon the statute of limitations,") unless "the allegations in the complaint affirmatively show that the claim is time-barred." (emphasis added). cf. Montesi v. Nationwide Mut. Ins. Co. , 970 F. Supp. 2d 784, 790 (W.D. Tenn. 2013) ("[I]t would be inappropriate to conclude as a matter of law that the claim is barred" under the statute of limitations when, "[t]heoretically," the court could not make "this determination ... based on the face of the complaint.").
The Court simply cannot affirmatively conclude that Ms. Dillard will be unable to prove any set of facts showing that Mr. Dillard made defamatory remarks during the various stages of her prosecution, through December 2019. And frankly, Mr. Dillard does not put forward a persuasive argument that would compel the Court to arrive at this conclusion. Mr. Dillard argues that Ms. Dillard's claim is untimely only because "the communication[s]" at issue "were made on or about 2015." [Def.’s Mem. at 3]. While, true, she alleges that Mr. Dillard "made a false report" to the police in 2015, [Compl. ¶ 12], Mr. Dillard looks past her assertions that he later made "knowingly false allegations" before the Sullivan County Criminal Court, [id. ¶ 46]. And notably, Mr. Dillard does not argue that Ms. Dillard impermissibly relies on the continuing defamation doctrine to support her claim, a doctrine that the Court declines to raise sua sponte on his behalf.
In Clark v. Viacom International, Inc. , 617 F. App'x 495 (6th Cir. 2015), the Sixth Circuit rejected the so-called "continuing defamation doctrine" in the context of defamation claims, stating that "Tennessee courts have never recognized a ‘continuing defamation’ " and "Tennessee therefore fully accepts the possibility that limitations principles may bar a libeled plaintiff from recourse, even where the libel continues to cause reputational harm." Id. at 500–01 (quotation and citation omitted).
Although Mr. Dillard has filed, with his reply brief, a transcript in which prosecutors, on November 12, 2019, announce their intention to dismiss the charges against Ms. Dillard, [Hr'g Tr., Doc. 40-3, at 3:6–10], the general rule on a motion to dismiss is that the Court ordinarily must confine itself to a review of the allegations that are within a complaint's four corners, not looking beyond them. In re Unumprovident Corp. Secs. Litig. , 396 F. Supp. 2d 858, 873 (E.D. Tenn. 2005). Some limited exceptions to this general rule do exist, including an exception for public records, Nieman v. NLO, Inc. , 108 F.3d 1546, 1554 (6th Cir. 1997), but Mr. Dillard cites no exception, and the Court is therefore inclined to adhere to the general rule and not consider the transcript. But even if the Court were to consider the transcript, it is not a final order of dismissal but only a transcript, so it leaves open the possibility the Sullivan County Criminal Court did not formally dismiss the charges against Ms. Sullivan until December 2019, as Ms. Sullivan suggests in her complaint.
Mr. Dillard's failure to cite precedent is a persistent problem throughout his motion to dismiss and one that Court will continue to highlight throughout this opinion. See E.D. Tenn. L.R. 7.1(b) (stating that a party's legal brief "shall include the factual and legal grounds which justify the ruling sought from the Court" (emphasis added)).
So rather than dismiss Ms. Dillard's claim as untimely under § 28-3-104(a)(1)(A), the more prudent approach is for the Court to allow the parties to develop the record as it pertains to nature and duration of the defamatory remarks that Mr. Dillard allegedly made. And the parties already seem intent on pursuing this course of action, having jointly moved the Court to order the production of the Bristol Police Department's investigative file. [Joint Mot., Doc. 43, at 1]. If appropriate, Mr. Dillard may later re-raise, in a motion for summary judgment, his argument that the statute of limitations bars Ms. Dillard's defamation claim. See generally Cataldo , 676 F.3d at 547 (recognizing that "[t]he statute of limitations is an affirmative defense" (citing Fed. R. Civ. P. 8(c) )).
The Court, however, must acknowledge one additional point. Mr. Dillard, with his reply brief, has also filed state-court documents in which a Vincent R. Gately, Jr., whom Mr. Dillard describes as Ms. Dillard's "paramour," [Def.’s Reply at 2], entered a best-interest plea in response to charges of aggravated child abuse and aggravated domestic assault of Q.D., [State-Court Docs., Doc. 40-1, at 1–9]. In acknowledging this document, the Court issues a word of caution to Ms. Dillard: she would do well to make sure—if she decides to move forward with this case—that the factual basis underlying her claims has evidentiary support. Otherwise the specter of sanctions is likely to overshadow this litigation. See Fed. R. Civ. P. 11(b)(3) ("By presenting to the court a pleading ... an attorney ... certifies that to the best of the person's knowledge, information, and belief .... the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery[.]"); see also Bontkowski v. Smith , 305 F.3d 757, 763 (7th Cir. 2002) ("[W]e must reverse [the district court's dismissal of the plaintiff's claims], but we warn [the plaintiff] that if he persists in this litigation and his suit turns out to be frivolous, as we believe highly likely, he is courting sanctions." (citations omitted)).
2. The Remaining Claims
As for Ms. Dillard's remaining claims against Mr. Dillard—i.e., her claims of fraud, intentional infliction of emotional distress, malicious prosecution, and conspiracy to commit malicious prosecution—the parties agree they are subject to the one-year statute of limitations under § 28-3-104(a)(1)(A). [Def.’s Mem. at 3; Pls.’ Resp. at 5]. In asserting that these claims are untimely under § 28-3-104(a)(1)(A), Mr. Dillard makes the wholesale argument—without an individual analysis of each claim or on-point citation to case law—that § 28-3-104(a)(1)(A) prohibits all of these claims. But this argument is too apathetic to warrant serious consideration from the Court. See McPherson v. Kelsey , 125 F.3d 989, 995–96 (6th Cir. 1997) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not sufficient for a party to mention a possible argument in the most skeletal way, leaving the court to ... put flesh on its bones." (quotation omitted)).
Besides, Ms. Dillard argues and alleges that her criminal prosecution ended favorably in or around December 2019, [Compl. ¶¶ 55, 65], and she brought her suit in this Court within one year of that date, in November 2020. So, at the very least, her claim of malicious prosecution would be timely. See Anderson v. Wal-Mart Stores, Inc. , No. 1:07-00024, 2008 WL 1994822, at *3 (M.D. Tenn. May 2, 2008) ("A cause of action for malicious prosecution accrues when a malicious suit is finally terminated in the defendant's favor." (quoting Christian v. Lapidus , 833 S.W.2d 71, 73 (Tenn. 1992) )). Mr. Dillard's blanket argument therefore lacks merit.
B. Tennessee Code Annotated §§ 37-1-403, 37-1-410
Next, Mr. Dillard, in arguing for the dismissal of Ms. Dillard's claims, contends that he was required to report the abuse of K.D. and Q.D. under Tennessee Code Annotated § 37-1-403 and is therefore immune from liability under Tennessee Code Annotated § 37-1-410. Under § 37-1-403(a)(1), a person with knowledge of a child who has been abused "shall report such harm immediately" if it "reasonably appears to have been caused by brutality, abuse or neglect." A person who reports child abuse under § 37-1-403(a)(1) is immune from liability for reporting the abuse if he "act[ed] in good faith." Tenn. Code Ann. § 37-1-410(a)(5)(A).
In response, Ms. Dillard maintains that Mr. Dillard's argument fails because she alleges his statements were false. [Pls.’ Resp. at 7–9]. Ms. Dillard's argument is a simple but effective one. She does indeed plead that Mr. Dillard did not act in good faith when reporting the abuse because his report was false, [Compl. ¶¶ 12, 46], and individuals who falsely report child abuse are not entitled to immunity but are subject to criminal prosecution, see Tenn. Code. Ann. § 37-1-413 ("Any person who either verbally or by written or printed communication knowingly and maliciously reports, or causes, encourages, aids, counsels or procures another to report, a false accusation ... that a child has sustained any wound, injury, disability or physical or mental condition caused by brutality, abuse or neglect commits a Class E felony."). At this stage in the litigation, the Court has to accept as true Ms. Dillard's allegation that Mr. Dillard's report of child abuse was false and not in good faith—an allegation that Mr. Dillard, incidentally, does not challenge as conclusory. Mixon , 193 F.3d at 400. If Mr. Dillard wishes to provide the Court with evidence to the contrary, he may do so at the summary judgment stage, but right now, his argument that he is immune from civil liability is a nonstarter.
A pleading that contains allegations of fraud must satisfy a heightened pleading standard under Federal Rule of Civil Procedure 9(b), which states: "In alleging fraud or mistake, a party must state with particularity the circumstances constituting fraud or mistake. Malice, intent, knowledge, and other conditions of a person's mind may be alleged generally." To satisfy this standard, a pleading must contain allegations of "the time, place and content of the misrepresentations; the defendant's fraudulent intent; the fraudulent scheme; and the injury resulting from the fraud." Power & Tel. Supply Co. v. SunTrust Banks, Inc. , 447 F.3d 923, 931 (6th Cir. 2006) (citations omitted). Mr. Dillard, however, neither invokes Rule 9(b) nor argues that Ms. Dillard's claims fail to satisfy its heightened pleading standard. He has therefore waived any argument that Rule 9(b) is the appropriate prism through which to view Ms. Dillard's claims. See Harding v. BMW of North America, LLC , 2020 WL 5039439, at *3 (M.D.Tenn. Aug. 26, 2020) ("Because [the defendant] did not raise Rule 9(b) in its motion, the court will consider [the plaintiff's] allegations only pursuant to Rule 8."); Kallick v. U.S. Nat'l Bank Ass'n , No. 12-106-DLB, 2012 WL 5178152, at *4 (E.D. Ky. Oct. 18, 2012) ("Defendant has failed to raise Rule 9(b) in its motion and has waived the Rule's specificity requirement for the purposes of the instant motion." (citations omitted)); Marathon Petroleum Co., LP v. Future Fuels of Am., LLC , No. 10-14068, 2012 WL 1893506, at *2 (E.D. Mich. May 23, 2012) ("If the failure to plead with particularity under Rule 9(b) is not raised in the first responsive pleading or in an early motion, the issue will be deemed waived." (quotation omitted)).
C. The Tennessee Public Participation Act
Lastly, Mr. Dillard proposes that his alleged defamatory communications are protected under the Tennessee Public Participation Act ("TPPA"), Tennessee Code Annotated § 20-17-101 et seq. , Tennessee's new "anti-SLAPP" statute. See generally Todd Hambidge et al., Speak Up. Tennessee's New Anti-SLAPP Statute Provides Extra Protections to Constitutional Rights , 55 Tenn. B.J. 14, 14 (Sept. 2019) ("Tennessee recently adopted a Strategic Lawsuit Against Public Participation (‘Anti-SLAPP’) statute[.]"). The first anti-SLAPP statutes originated in the 1980s, as a response to "an increasing number of lawsuits that were filed for the purpose of discouraging the exercise of constitutional rights, often intended to silence speech in opposition to monied interests rather than to vindicate a plaintiffs [sic] rights." Id. at 15. These lawsuits, which have come to be known as "SLAPPs," " ‘masquerade as ordinary lawsuits’ and may include myriad causes of action, including defamation, interference with contractual rights or prospective economic advantage, and malicious prosecution." Sandholm v. Kuecker , 356 Ill.Dec. 733, 962 N.E.2d 418, 428 (Ill. 2012) (quoting Kathryn W. Tate, California's Anti–SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope , 33 Loy. L.A. L. Rev. 801, 804–05 (2000) ). "[T]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights." Liberty Synergistics Inc. v. Microflo Ltd. , 718 F.3d 138, 147 (2d Cir. 2013) (quotation omitted).
Similarly, the TPPA's purpose "is to encourage and safeguard the constitutional rights of person to petition, to speak freely, to associate freely, and to participate in government to the fullest extent permitted by law." Tenn. Code Ann. § 20-17-102. Under the TPPA, "[i]f a legal action is filed in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may petition the court to dismiss the legal action." Id. § 20-17-104(a). The defendant carries the burden of establishing "a prima facie case that a legal action against [him] is based on, relates to, or is in response to that party's exercise of the right to free speech, right to petition, or right of association." Id. § 20-17-105(a). If the defendant satisfies this burden, a court must dismiss the action with prejudice unless the plaintiff can establish a prima facie case for each of the elements of his claims. Id. The Court therefore will begin by addressing whether Mr. Dillard has discharged his initial burden under the TPPA. In relying on the TPPA, Mr. Dillard argues that Ms. Dillard's suit implicates three of the constitutional rights that the TPPA protects: his right to petition, his right to participate in government, and his right to free speech. [Def.’s Mem. at 7–9].
Before the TPPA's enactment, Tennessee "had a limited anti-SLAPP statute since 1997" and "that statute applies only where, ‘in connection with a public or government issue, [any person] communicates information regarding another person or entity to any government agency regarding a matter of concern of that agency.’ " Todd Hambidge et al., Speak Up. Tennessee's New Anti-SLAPP Statute Provides Extra Protections to Constitutional Rights , 55 TENN. B.J. at 15 (quoting Tenn. Code Ann. § 4-21-1003(a) ). That statute, incidentally, offers no protection to individuals who "[k]new the information to be false." Tenn. Code Ann. § 4-21-1003(b)(1).
The TPPA states that a motion to dismiss "may be filed within sixty (60) calendar days from the date of service of the legal action or, in the court's discretion, at any later time that the court deems proper." Tenn. Code Ann. § 20-17-104(b). Mr. Dillard's motion is timely.
The TPPA does not define "prima facie case." The Court may therefore "look to its usual and accepted meaning from sources of common usage." Bryant v. Genco Stamping & Mfg. Co. , 33 S.W.3d 761, 765 (Tenn. 2000). Black's Law Dictionary defines "prima facie case" as "[t]he establishment of a legally required rebuttable presumption," Black's Law Dictionary (11th ed. 2019), and it defines "rebuttable presumption" as "[s]omething that is thought to be true because it is highly probable" or "[a] legal inference or assumption that a fact exists because of the known or proven existence of some other fact or group of facts," id.
Several district and circuit courts have ruled that state anti-SLAPP statutes cannot apply in federal court because they create a mechanism for the dismissal of claims that conflicts with Rule 8 and Rule 12. See Carbone v. Cable News Network, Inc. , 910 F.3d 1345, 1357 (11th Cir. 2018) ("Because Rules 8, 12, and 56 are valid under the Rules Enabling Act and the Constitution and govern the same basic question as the Georgia anti-SLAPP statute, the motion-to-strike procedure created by that statute cannot apply in federal court."); Los Lobos Renewable Power, LLC v. Americulture, Inc. , 885 F.3d 659, 662, 672–73 (10th Cir. 2018) (affirming the district court's decision that " ‘New Mexico's Anti-SLAPP statute is a procedural provision that does not apply in the courts of the United States’ " (quoting Los Lobos Renewable Power, LLC v. Americulture, Inc. , 2016 WL 8254920, at *2 (D.N.M. Feb. 17, 2016) )); Abbas v. Foreign Policy Grp., LLC , 783 F.3d 1328, 1337 (D.C. Cir. 2015) ("A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act's special motion to dismiss provision."); Lampo Grp., LLC v. Paffrath , No. 3:18-cv-01402, 2019 WL 3305143, at *4 (M.D. Tenn. July 23, 2019) ("Because Rules 8, 12, and 56 are valid under the Rules Enabling Act and the Constitution and govern the same basic question as the California anti-SLAPP statute, the motion-to-strike procedure created by the California anti-SLAPP statute cannot apply in federal court"); Intercon Solutions, Inc. v. Basel Action Network , 969 F. Supp. 2d 1026, 1048 (N.D. Ill. 2013) (holding that Washington's anti-SLAPP statute "conflicts with Rule 12(d) and Rule 56 ... and therefore cannot be applied by a federal court sitting in diversity" (footnote and citation omitted)), aff'd , 791 F.3d 729 (7th Cir. 2015). Ms. Dillard, however, does not argue that the TPPA should not apply to this case, so the Court will not address, as a threshold matter, the propriety of Mr. Dillard's reliance on it.
1. Right to Petition
The TPPA defines "exercise of the right to petition" as "a communication that falls within the protection of the United States Constitution or the Tennessee Constitution" and :
(A) Is intended to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body; or
(B) Is intended to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body[.]
Tenn. Code Ann. § 20-17-103(4)(A)–(B). So for a communication to meet this definition, it has to (1) fall within the protection of the United States Constitution or the Tennessee Constitution and (2) be intended "to encourage consideration or review of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body" or "to enlist public participation in an effort to effect consideration of an issue by a federal, state, or local legislative, executive, judicial, or other governmental body." Id.
Mr. Dillard makes no argument under the first requirement, the absence of which is significant because neither the United States Constitution nor the Tennessee Constitution applies without limitation to every type of speech in every situation. Indeed, the Free Speech Clause's protection is not absolute. See Chaplinsky v. New Hampshire , 315 U.S. 568, 571, 62 S.Ct. 766, 86 L.Ed. 1031 (1942) ("[I]t is well understood that the right of free speech is not absolute at all times and under all circumstances." (footnote omitted)); Davis-Kidd Booksellers, Inc. v. McWherter , 866 S.W.2d 520, 524 (Tenn. 1993) ("We begin our analysis with the familiar principle of First Amendment jurisprudence that: the right to free speech is not absolute at all times and under all circumstances." (quoting id. )). The vigor of the Free Speech Clause's protection depends, partly, on the type of speech at issue.
The Free Speech Clause's protection is at its zenith when the speech is private, or non-governmental, speech on matters of public concern—like public debate about politics or governmental affairs, for example. Mills v. Alabama , 384 U.S. 214, 218–19, 86 S.Ct. 1434, 16 L.Ed.2d 484 (1966) ; see Dun & Bradstreet, Inc. v. Greenmoss Builders, Inc. , 472 U.S. 749, 758–59, 105 S.Ct. 2939, 86 L.Ed.2d 593 (1985) (stating that "[i]t is speech on ‘matters of public concern’ that is ‘at the heart of the First Amendment's protection" (quotation omitted)); Connick v. Myers , 461 U.S. 138, 145, 103 S.Ct. 1684, 75 L.Ed.2d 708 (1983) ("[S]peech on public issues occupies the ‘highest rung of the heirarchy of First Amendment values,’ and is entitled to special protection." (quotation and citation omitted)). Mr. Dillard makes no contention that his alleged communications qualify as speech on a matter of public concern—as the federal courts or the Tennessee courts have defined that type of speech in common law—and his failure to do so is fatal to his argument under § 20-17-103(4). McPherson , 125 F.3d at 995–96 ; see Sneed v. Bd. of Prof'l Responsibility of the Supreme Court , 301 S.W.3d 603, 615 (Tenn. 2010) ("It is not the role of the courts, trial or appellate, to research or construct a litigant's case or arguments for him or her, and where a party fails to develop an argument in support of his or her contention or merely constructs a skeletal argument, the issue is waived.").
Having previously construed Ms. Dillard's defamation claim as one for written defamation, or libel, the Court notes that the Free Speech Clause protects written speech in addition to oral speech. Barnes v. Glen Theatre, Inc. , 501 U.S. 560, 576, 111 S.Ct. 2456, 115 L.Ed.2d 504 (1991).
2. Right to Participate in Government
Mr. Dillard acknowledges that "[u]nlike the other rights ... the right to participate in government is not specifically defined" by the TPPA, [Def.’s Mem. at 9], so he confines his argument to a single paragraph, in which he simply states that "[n]evertheless, it is clear" that Ms. Dillard's suit tramples his right to participate in government, [id. ]. This argument, which is devoid of citation to legal authority of any kind and any attempt to engage in statutory interpretation, reads as nothing more than Mr. Dillard's personal opinion. And it is especially underwhelming in light of the fact that Tennessee Court of Appeals, in John Doe v. Jane Roe , No. M2020-01277-COA-R3-CV, 2021 WL 2588394 (Tenn. Ct. App. June 24, 2021), recently demonstrated how to apply principles of statutory interpretation to terms that the TPPA does not define. Id. at *4.
Although the Tennessee Court of Appeals did not decide Doe until about three weeks ago, Mr. Dillard could have easily moved to supplement his motion to dismiss, as parties often do in this Court.
Although Mr. Dillard also argues "that permitting Plaintiff's suit would have a deterrent effect on other Tennessee residents that have knowledge of child abuse," [Def.’s Mem. at 9], this amorphous policy argument is not an effective substitute for a canon-based, interpretative legal analysis of the phrase "participate in government," as it appears in the TPPA, see Incumaa v. Ozmint , 507 F.3d 281, 289 (4th Cir. 2007) ("Federal courts are not comprised of philosopher-kings or legislative aides, and the Constitution forbids us from pontificating about abstractions in the law[.]"); Cornellier v. Am. Cas. Co. , 389 F.2d 641, 644 (2d Cir. 1968) ("[T]he federal courts are not free to develop their own notions of what should be required by the public policy of the state[.]"); see also Sebelius v. Cloer , 569 U.S. 369, 380, 133 S.Ct. 1886, 185 L.Ed.2d 1003 (2013) (recognizing that, as a generally accepted principle of statutory interpretation, "policy arguments come into play only ‘[t]o the extent that [the statute] is ambiguous’ " (quotation omitted)). Again, Mr. Dillard's argument is inadequate to meet his burden. McPherson , 125 F.3d at 995–96 ; Sneed , 301 S.W.3d at 615.
3. Right to Free Speech
Mr. Dillard's contention that Ms. Dillard's suit is an endeavor to stifle his free-speech rights is, maybe, his most viable argument, partly because the statute defines all of the relevant language and partly because common law is instructive. Under the TPPA, the " ‘[e]xercise of the right of free speech’ means a communication made in connection with a matter of public concern or religious expression that falls within the protection of the United States Constitution or the Tennessee Constitution," and "a matter of public concern," as the TPPA defines the phrase, includes an issue related to:
(A) Health or safety;
(B) Environmental, economic, or community well-being;
(C) The government;
(D) A public official or public figure;
(E) A good, product, or service in the marketplace;
(F) A literary, musical, artistic, political, theatrical, or audiovisual work; or
(G) Any other matter deemed by a court to involve a matter of public concern.
Tenn. Code Ann. § 20-17-103(3), (6). Mr. Dillard contends that his communications "naturally relate[ ]" to Q.D.’s health and safety because they concerned her "abuse and neglect," [Def.’s Mem. at 9], though the more precise issue in this case, as the Court sees it, is whether an issue related to a person's individual health or safety can constitute a matter of public concern under the TPPA. Relying on persuasive authority from outside jurisdictions, the Tennessee Court of Appeals, in Doe , has ruled that it can. See Doe , 2021 WL 2588394 at *4, 6 (stating that "we understand the legislature's inclusion of ‘health’ and ‘safety’ under the TPPA as extending to matters affecting individuals" and concluding that the plaintiff's assertion of "sexual assault is clearly an issue related to ‘health or safety’ " under the TPPA). But again, the problem for Mr. Dillard is that he does not cite Doe or any other case to support his cursory argument—which, again, reads merely as his personal opinion—and as the Court has said many times over in this opinion, it will not "research or construct [Mr. Dillard's] case or arguments for him." Sneed , 301 S.W.3d at 615.
But even if the Court were to grant Mr. Dillard a concession by considering Doe in support of his cause, it would then have to ask itself: what factual or evidentiary support has he incorporated into the record to sustain his argument that Ms. Dillard filed suit to subvert his constitutional rights? The TPPA tasks the Court with making "findings," based on "sworn affidavits stating admissible evidence" and "other admissible evidence presented by the parties." Tenn. Code Ann. § 27-17-105(d). As the party with the initial burden, Mr. Dillard filed no evidence, affidavits or otherwise, with his motion to dismiss. Although he did file state-court documents with his reply brief, including a copy of Mr. Gately's aforementioned best-interest plea, these documents are relevant only to K.D.’s and Q.D.s’ claims against Mr. Dillard for assault and battery—claims that they refute, without question. They do not necessarily refute Ms. Dillard's allegations—which, again, the Court must accept as true—that Mr. Dillard made "knowingly false allegations" that Ms. Dillard was responsible for the bruises on Q.D.’s body. [Compl. ¶ 46]. The Court therefore cannot conclude that the state-court documents establish a prima facie case that Ms. Dillard filed her suit "in response to" Mr. Dillard's exercise of his right to petition, right to participate in government, or right to free speech. Tenn. Code Ann. § 20-17-104(a). Mr. Dillard fails to satisfy his burden as the movant under the TPPA, and he is not entitled to the dismissal of Ms. Dillard's claims.
The state-court documents also include Mr. Gately's presentence report prepared by the Tennessee Department of Correction, which contains a rendition of the facts "as reported by" Detective Richmond, [Presentence R., Doc. 40-2, at 4], and the aforementioned transcript in which prosecutors moved to dismiss the charges against Ms. Dillard.
IV. CONCLUSION
Mr. Dillard fails to show that he is entitled to the dismissal of Ms. Dillard's claims under the applicable statutes of limitation, that he is immune from civil liability under Tennessee Code Annotated § 37-1-410, or that the TPPA establishes that Ms. Dillard filed suit in response to his exercise of a constitutional right. The Court therefore orders as follows:
1. Mr. Dillard's Motion to Dismiss and Motion for Hearing [Doc. 28] is DENIED .
2. Ms. Michelle Dillard's Motion to Dismiss and Motion for Hearing [Doc. 29] is likewise DENIED .
3. Exhibits 40-1, 40-2, 41-1, and 41-2 are hereby STRICKEN from the record because they contain the names of the minor plaintiffs. The Clerk of Court is DIRECTED to delete these exhibits from the record. Mr. Dillard may refile redacted copies of these documents.
4. The parties SHALL redact the minor plaintiffs’ names from all future filings with the Court. Fed. R. Civ. P. 5.2(a) ; cf. Byrd v. Trombley , No. 08-2319, 2009 WL 3673099, at *1 n.1 (6th Cir. Nov. 5, 2009) ("[W]e redact the name of a minor and will refer to her by her initials.").
Ms. Michelle Dillard's motion is a facsimile of Mr. Dillard's motion, and as the Court previously mentioned, the claims and allegations against Michelle Dillard and Mr. Dillard are the same except for K.D.’s and Q.D.’s claims against Mr. Dillard for assault and battery.
So ordered.