Hubbard v. J Message Group Corp. et al

REPLY to Response to Motion re MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM as to All Claims

D.N.M.January 16, 2018

4823-3424-5722 v1 2941470-000001 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW MEXICO ______________________________________________________________________________ CAROL HUBBARD, ) ) PLAINTIFF, ) ) v. ) Civil Action No. 1:17-cv-763-KK-JHR ) J MESSAGE GROUP CORP., ET AL., ) ) DEFENDANTS. ) ) ______________________________________________________________________________ REPLY IN FURTHER SUPPORT OF RULE 12(b)(6) MOTION TO DISMISS ______________________________________________________________________________ Zachary B. Busey (Tenn. Bar No. 29763) W. Preston Battle, IV (Tenn. Bar No. 35044)) All Admitted Pro Hac Vice BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-2303 Email: zbusey@bakerdonelson.com pbattle@bakerdonelson.com Christopher M. Moody MOODY & WARNER 4169 Montgomery Blvd. NE Albuquerque, New Mexico 87109 Telephone: (505) 944-0033 Facsimile: (505) 944-0034 Email: moody@nmlaborlaw.com Attorneys for Defendant J Message Group Corp., Defendant Kenneth C. Alexander, and Defendant Deborah S. Alexander Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 1 of 17 Page i of ii 4823-3424-5722 v1 2941470-000001 TABLE OF CONTENTS I. REBUTTAL ARGUMENTS & AUTHORITIES .............................................................................1 A. Plaintiff misstates and misapplies the legal standards applicable to this Motion ....1 B. Defendants do not rely on outside evidence or information and neither should Plaintiff ....................................................................................................................3 C. JMGC’s beliefs are “religious” for First Amendment purposes ..............................5 D. The Court should reject Plaintiff’s attempts to rewrite her Amended Complaint ...8 E. Plaintiff simply declined to substantively respond to Defendants’ remaining arguments ...............................................................................................................11 F. Dismissal may be a harsh result, but it is warranted ..............................................12 II. CONCLUSION .......................................................................................................................12 CERTIFICATE OF SERVICE ...............................................................................................................14 TABLE OF AUTHORITIES CASES Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...................................................................................................................2 Brewer v. Enserch Exploration, Inc., 1995 WL 675516 (10th Cir. Nov. 14, 1995)............................................................................12 Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648 (10th Cir. 2002) ...................................................................................................8 Dubbs v. Head Start, Inc., 336 F.3d 1194 (10th Cir. 2003) .................................................................................................2 Duran v. Carris, 238 F.3d 1268 (10th Cir. 2001) ..........................................................................12 Hayes v. Whitman, 264 F.3d 1017 (10th Cir. 2001) ...............................................................................................11 Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171 (2012) ...................................................................................................................7 Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 2 of 17 Page ii of ii 4823-3424-5722 v1 2941470-000001 Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210 (10th Cir. 2011) .................................................................................................2 Malnak v. Yogi, 440 F. Supp. 1284 (D.N.J. 1977) ...............................................................................................4 Mohammad v. Metro. Ct., 2017 WL 3172838 (D.N.M. May 31, 2017) ..............................................................................1 Serbian E. Orthodox Diocese for U.S. of America and Canada v. Milivojevich, 426 U.S. 696 (1976) ...................................................................................................................1 Thomas v. Review Board, 450 U.S. 707 (1981) ...................................................................................................................7 Thymes v. Verizon Wireless, Inc., 2016 WL 9777222 (D.N.M. Sept. 28, 2016) ...........................................................................11 OTHER AUTHORITIES U.S. Const. amend 1 .............................................................................................................. passim Fed. R. Civ. P. 8 ...............................................................................................................................2 Fed. R. Civ. P. 12(b)(6)......................................................................................................1, 2, 3, 12 Fed. R. Civ. P. 12(d) ........................................................................................................................3 Fed. R. Evid. 602 .........................................................................................................................4, 5 Fed. R. Evid. 901(a) .....................................................................................................................4, 5 Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 3 of 17 Page 1 of 14 4823-3424-5722 v1 2941470-000001 I. REBUTTAL ARGUMENTS & AUTHORITIES A. Plaintiff misstates and misapplies the legal standards applicable to this Motion. Throughout her Response (Doc. 22), Plaintiff departs from the standards under which a Rule 12(b)(6) motion should be decided. Plaintiff, for example, argues that Defendants’ reliance on “affirmative defenses” is “improper here and now” (Response, p. 2), and that inquiry into facts supporting an affirmative defense is “better suited for summary judgment or trial, and not in a motion to dismiss” (id., p. 14). The Court should reject this argument. The affirmative defense on which Defendants rely (the First Amendment’s church autonomy doctrine) is established by the Amended Complaint’s factual allegations. The affirmative defense, therefore, is properly before the Court. See Mohammad v. Metro. Ct., 2017 WL 3172838, at *2 (D.N.M. May 31, 2017) (The Court “may resolve a motion to dismiss under Rule 12(b)(6) on the basis of an affirmative defense when the facts establishing it are apparent on the face of the complaint.” (internal citations omitted)). The Court should also reject Plaintiff’s argument that this Motion should be denied because Plaintiff believes discovery will help prove her claim(s). “[Plaintiff’s] claim to relief is plausible,” according to Plaintiff, “on the grounds that her claim proceeding here against Defendants may-with discovery-allow for justice to be had in these particular circumstances.” 1 (Response, p. 17.) Plaintiff further argues that requisite elements of her claim(s) “cannot and will not be known until [Plaintiff] has had the opportunity to engage in 1 “Justice” is not a consideration under any plausibility analysis. Even if it was, the Supreme Court has made clear that such considerations “are hardly relevant” when weighing First Amendment protections. Serbian E. Orthodox Diocese for U.S. of America and Canada v. Milivojevich, 426 U.S. 696, 715 (1976) (“Constitutional concepts of due process, involving secular notions of ‘fundamental fairness’ or impermissible objectives, are therefore hardly relevant to such matters of ecclesiastical cognizance.”). Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 4 of 17 Page 2 of 14 4823-3424-5722 v1 2941470-000001 discovery and further investigation.” (Id., p. 18. 2 ) Plaintiff’s argument conflates pleading claims and proving claims. “The court’s function on a Rule 12(b)(6) motion is not to weigh potential evidence,” explained the Tenth Circuit, “but to assess whether the plaintiff’s complaint alone is legally sufficient to state a claim for which relief may be granted.” Dubbs v. Head Start, Inc., 336 F.3d 1194, 1201 (10th Cir. 2003). The very purpose of a Rule 12(b)(6) motion is “to avoid ginning up the costly machinery associated with our civil discovery regime on the basis of ‘a largely groundless claim.’” Kansas Penn Gaming, LLC v. Collins, 656 F.3d 1210, 1215 (10th Cir. 2011) (internal quotation and citation omitted); see also Ashcroft v. Iqbal, 556 U.S. 662, 686 (2009) (“Because respondent’s complaint is deficient under Rule 8, he is not entitled to discovery, cabined or otherwise.”). Defendants urge dismissal because Plaintiff has not pleaded a claim upon which relief can be granted. That is, Plaintiff has not established the threshold legal sufficiency of her claims. It should be of no consequence that Plaintiff believes discovery and other potential evidence may allow her to better prove her claims at some later point in time. Finally, the Court should continue to disregard Plaintiff’s impermissible conclusions. Like her Amended Complaint, Plaintiff’s Response is riddled with them. Plaintiff summarily references the Amended Complaint’s total number of paragraphs-and subparagraphs-as proof positive that sufficient factual allegations exist to defeat this Motion. (See, e.g., Response, pp. 1, 5, 17.) From there, although Plaintiff at times cites to specific portions of the Amended Complaint, her citations often fail to encompass actual factual allegations. In other words, Plaintiff offers a conclusion in the Response-e.g., “Defendants acted knowingly and in concert to create, prepare, and publish false and defamatory statements”-and for supposed factual support, Plaintiff cites to the same conclusion in the Amended Complaint. (Compare Response, 2 See also Response, p. 9 (“still premature for [Plaintiff] to prove-up her cause of action”). Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 5 of 17 Page 3 of 14 4823-3424-5722 v1 2941470-000001 p. 5 (citing, in part, Amended Complaint, ¶¶ 56-58) with Amended Complaint, ¶¶ 56-58.) Plaintiff similarly alleges factual information but offers no citation whatsoever to the Amended Complaint. (See, e.g., Response, pp. 2-3.) In all, Plaintiff’s reliance on conclusions, whether in the Response or Amended Complaint, is improper and should be overruled. B. Defendants do not rely on outside evidence or information and neither should Plaintiff. The entirety of Defendants’ Motion is based the allegations of the Amended Complaint and only the Amended Complaint. Defendants do not assert that there exists any outside evidence the Court needs to consider in deciding this Motion. Defendants do not assert that outside evidence (assuming it exists) is incorporated by reference into the Amended Complaint. And Defendants do not assert that outside evidence should have been attached to the Amended Complaint. Defendants have not asked the Court to take judicial notice of any outside evidence or otherwise consider outside evidence within the confines Rule 12(b)(6). Defendants likewise have not asked the Court to convert this Motion under Rule 12(d)-nor has any other party for that matter. Plaintiff, nevertheless, takes (what genuinely appears to be) the unprecedented procedural step of offering outside evidence solely in connection with her Response. The outside evidence consists of Exhibit A (Doc. 22-2) and Exhibit B (Doc. 22-3). Plaintiff claims Exhibit A to be “copies of the transcribed statements from the [February 2016] conference [in Santa Fe].” (Plaintiff’s Declaration, Doc. 22-1, ¶ 6.) Plaintiff claims Exhibit B to be other channeled “communications” from Defendants. (Id., ¶ 9; Response, p. 6.) In support of the Court considering Exhibit A, Plaintiff cites a Tenth Circuit decision and offers the following standard: Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 6 of 17 Page 4 of 14 4823-3424-5722 v1 2941470-000001 Even if it is not attached or explicitly incorporated by reference into a complaint, but the document is referred to in the complaint and is central to a plaintiff’s claim, a defendant may submit an indisputably authentic copy to the court to be considered on a motion to dismiss. (Response, p. 6 (internal quotation and citation omitted).) Following this standard, albeit with little analysis, Plaintiff concludes that the Court can consider Exhibit A. (Id.) Defendants respectfully disagree. For one, Plaintiff is not “a defendant” offering Exhibit A “to the court to be considered on a motion to dismiss.” Second, Exhibit A is not “indisputably authentic.” While Plaintiff offered a Declaration purporting to authenticate Exhibit A, everything she knows about it was told to her by “one (1) person.” (Plaintiff’s Declaration, ¶ 5.) Plaintiff therefore lacks personal knowledge as to Exhibit A and cannot authenticate it. See Fed. R. Evid. 602, 901(a). Thus, Exhibit A is not “indisputably authentic” and does not qualify as admissible evidence. The Court should not consider it. In support of the Court considering Exhibit B, Plaintiff ventures further afield. Plaintiff does not contend that Exhibit B was referred to or incorporated into the Amended Complaint. Instead, in discussing Defendants’ reliance on the First Amendment’s church autonomy doctrine, Plaintiff states: To the extent Defendants rely on facts outside of the pleadings to assert their defense, Defendants have consistently maintained that they are secular and not espousing religious beliefs. Defendants have never professed JMGC to be a “religion” or a “church.” See Declaration of Carol Hubbard, at ¶ 9. To the contrary, Defendant Kenneth Charles Alexander and JMGC have consistently maintained that JMGC is not a religion, religious organization, or a church. Id. 3 3 This argument enjoys no factual support from the Amended Complaint, Exhibit A, or Exhibit B. Rather, the argument comes from the suggestion percolating below the surface of the Response that to garner First Amendment protections for its beliefs, JMGC must openly advertise its beliefs as a religion and form a church, like Christianity. This suggestion has no legal support whatsoever. The idea is so foreign to First Amendment jurisprudence, self- identifying as a “religion” or “church” was not even identified as a consideration in the Meyers analysis. Cf. Malnak v. Yogi, 440 F. Supp. 1284, 1313 (D.N.J. 1977) (“[T]he Supreme Court has made clear that an activity may be religious even though it is neither a part of nor derives from a societally recognized religious sect.” (internal citation omitted)), aff’d, 592 F.2d 197 (3d Cir. 1979). Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 7 of 17 Page 5 of 14 4823-3424-5722 v1 2941470-000001 (Response, p. 13.) Plaintiff then cherry-picks half-quotes from across Exhibit B. Defendants understand Plaintiff’s argument to be this: If Defendants rely on facts outside of the pleadings, then Plaintiff can as well. Defendants, however, have not relied on facts outside of the pleadings. Plaintiff’s argument is inapplicable on its terms, and Exhibit B should not be considered. Additionally, Plaintiff’s only testimony regarding Exhibit B is that she has “read the following communications.” (Plaintiff’s Declaration, ¶ 9.) Plaintiff simply has not offered any authenticating or foundational testimony as to the admissibility of Exhibit B. For this reason also, Exhibit B should not be considered. See Fed. R. Evid. 602, 901(a). Given Exhibits A and B are not properly before the Court-whether from a procedural perspective, an evidentiary perspective, or both-Defendants respectfully urge the Court not to consider them. C. JMGC’s beliefs are “religious” for First Amendment purposes. Plaintiff’s First Amendment analysis is lacking. Putting aside Plaintiff’s broad conclusions-such as “this is purely a secular dispute” (Response, p. 3), and all statements, publications, allegations, and other documents “in this case . . . are secular in nature” (id., p. 11)-Plaintiff appears to make three arguments. One, the Court should utilize the test applied by Florida state courts’ to determine whether beliefs are religious for First Amendment purposes. (Id., p. 10.) Two, the Amended Complaint does not “contain any allegations that [JMGC] is a religious organization or a church . . . [or] that the purported ‘channeled communications’ or ‘splits’ are a religious belief.” (Id., p. 11.) As for Plaintiff’s third argument, she alleges that Defendants “have consistently maintained that JMGC is not a religion, religious organization, or a church.” (Id., p. 13.) Defendants discuss each argument in turn. Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 8 of 17 Page 6 of 14 4823-3424-5722 v1 2941470-000001 Whether JMGC’s beliefs are religious for First Amendment purposes should be decided under the Meyers analysis. The Court need not turn to the “neutral principles” standards used by Florida state courts. Plaintiff offers no compelling reasoning or argument for the Court to do so. Further, both cases cited by Plaintiff, Malicki v. Doe and Bilbrey v. Myers, were decided after Meyers. Yet neither cites Meyers nor makes reference to its considered and thorough analysis. Ultimately, in directing the Court away from Meyers, Plaintiff strongly signals her inability to overcome it. Defendants do not argue that the Amended Complaint labels JMGC a religious organization or a church. Defendants also do not argue that the Amended Complaint labels any act a religious belief. Rather, Defendants argue that based on the Amended Complaint’s factual allegations and following the Meyers analysis, JMGC’s beliefs are religious for First Amendment purposes. (Motion, Doc. 19, pp. 5-9.) Plaintiff does not substantively respond to the merits of this argument. Plaintiff does, however, rely on Exhibit B. As explained above, Exhibit B should not be considered. But even if it is, Exhibit B only reinforces Defendants’ arguments under the Meyers analysis. While Defendants will not burden the Court with each and every quote from Exhibit B, it is clear that Exhibit B relates to JMGC spiritual beliefs, including “reincarnation doctrines.” 4 “You are in a position to make a fresh start and allow for the proper relationships to exist between the various aspects of consciousness that contribute to human evolution,” begins the “6 th Communication.” (Exhibit B, p. 2.) Also recall that these communications are channeled by The Scribe “from ‘higher beings’ or ‘master guides’” and “include instructions and beliefs that are binding on [JMGC’s] members.” (Amended Complaint, ¶ 13.) “These communications,” 4 See, e.g., Amended Complaint, ¶¶ 11, 12, 14. Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 9 of 17 Page 7 of 14 4823-3424-5722 v1 2941470-000001 explains the “8 th Communication,” “are designed to provide a new myth to operate under. That myth is that you are all equally God, hence you cannot compete with one another and you cannot carry on as your ancestors did.” (Exhibit B, p. 4.) Plaintiff attempts but fails to lessen Exhibit B’s impact by cherry-picking quotes from it. The quotes, according to Plaintiff, establish that JMGC is “not a religion, religious organization, or a church.” (Response, pp. 13-14.) The quotes, however, are refuted by the overall substance of Exhibit B. (See, e.g., Exhibit B, p. 4. (“I have been responsible for creating many religions.”).) More importantly, Plaintiff cannot rely on semantics to deprive Defendants of their First Amendment protections. Plaintiff works diligently to replace Defendants’ use of “religion,” “religious,” and “church” for First Amendment purposes, with what “religion,” “religious,” and “church” mean to her. 5 Plaintiff even chastises JMGC for “mischaracterizing their statements and publications as religious statements.” (Response, p. 15.) To be sure, Plaintiff’s actions are exactly what the Supreme Court has warned against: “[R]eligious beliefs need not be acceptable, logical, consistent, or comprehensible to others in order to merit First Amendment protection.” Thomas v. Review Board, 450 U.S. 707, 714 (1981). And the dangers flowing from Plaintiff’s actions-e.g., requiring a religious organization, on pain of substantial liability, to predict which of its activities a secular court will consider religious-“are certainly dangers that the First Amendment was designed to guard against.” Hosanna-Tabor Evangelical Lutheran Church & Sch. v. E.E.O.C., 565 U.S. 171, 197 (2012) (internal quotation and citation omitted). JMGC’s beliefs are religious for First Amendment purposes, and, respectfully, they should be treated as such. 5 See note 3, supra. Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 10 of 17 Page 8 of 14 4823-3424-5722 v1 2941470-000001 Finally, as demonstrated on pages 10 and 11 of Defendants’ Motion, adjudication of Plaintiff’s claims will require the Court (or finder of fact) to assign truth or falsity to channeled communications regarding Plaintiff and her separation from the group, among other issues. This, in turn, will require delving into JMGC’s teachings and beliefs, including the validity and nature of channeling higher beings, thereby bringing this case squarely within the church autonomy doctrine. See Bryce v. Episcopal Church in the Diocese of Colo., 289 F.3d 648, 654 (10th Cir. 2002) (“By resolving the question of the doctrine's applicability early in litigation, the courts avoid excessive entanglement in church matters.”). D. The Court should reject Plaintiff’s attempts to rewrite her Amended Complaint. This case centers on statements supposedly made by Defendants. In her Amended Complaint, although she strayed at times, Plaintiff largely presented the statements in the appropriate context, i.e., Communication 17, which, like all communications, was channeled by The Scribe from “‘higher beings’ or ‘master guides.’” (Amended Complaint, ¶¶ 13, 28.) Plaintiff’s Exhibit A-the alleged transcript of the Santa Fe conference-provides additional context for Communication 17. For example, with respect to the slides used at the conference, 6 “the Scribe was asked to put the slides together. It was a combined effort between his mental self, his mental guide and myself [the channeled being]. This was a collaborative effort.” (Exhibit A, p. 6.) In addressing why Plaintiff is no longer with the group, it was conceded that “when [the channeled being] was drawing all of this up, three billion years ago, [the channeled 6 Plaintiff argues that a “pre-created slide presentation” demonstrates that JMGC’s beliefs do not include “spontaneous ‘channeled communications.’” (Response, p. 14.) This argument is easily overcome by the Amended Complaint’s timeline. The Scribe channeled Communication 17 on or about February 12-13, 2016. (Amended Complaint, ¶ 28.) The Santa Fe conference, where the slide presentation was used, occurred two weeks later, on February 25. (Id., ¶ 31.) Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 11 of 17 Page 9 of 14 4823-3424-5722 v1 2941470-000001 being] didn’t really have any of this in mind.” (Id., p. 8.) The explanation continued and concluded with the following: At the higher levels of consciousness where we reside, where the Council meets, we do not have any sexual desire for one another. We have no money. We only have our agreements. That is all. The people, or the beings as it would be better to call them, they are only on the Council due to their ability to show how they can meet agreements. That is the only currency they have. . . . . . . There isn’t any money up there and once again we have no sexuality at that level, at least in terms of how you see it. At this level, money and sex are a reality and we acknowledge that. . . . But if you think you’re using other people to get it in a way that is inappropriate, you need to stop and think about how far you’re going to get before we see what you’re doing. That is why [Plaintiff is] no longer in your group. (Id., p. 13.) Defendants argue that when considering the alleged statements in context, as the law requires, the statements are opinions and beliefs; they are not factual. (Motion, pp. 14-15, 17.) Accordingly, Plaintiff’s claims for defamation and false light should be dismissed with prejudice. (Id.) Plaintiff does not address Defendants’ arguments on the merits, nor the additional context provided by Exhibit A. Plaintiff instead rewrites the Amended Complaint in an effort to change both the substance and context of the alleged statements. The following are verbatim allegations from the Amended Complaint compared with verbatim allegations from the Response: Am. Comp.: Recently, we had to discontinue the access for one aspect of that soul [Carol Hubbard]. And why is that? Because . . . they were very predatory in this group. (Amended Complaint, ¶ 31.a.) Response: Recently, we had to discontinue the access for . . . [Carol Hubbard], [b]ecause . . . [she was] very predatory in this group . . . (Response, p. 4.). Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 12 of 17 Page 10 of 14 4823-3424-5722 v1 2941470-000001 * * * * * Am. Comp.: What’s happened recently with the Scribe’s split, Ken Kyzer, is an example of how the 2 nd ray not only got subverted, but got completely kicked out. And what was it due to? I am going to be very blunt about it. It was about sex and money. In this group we have worked extremely hard to remove these as factors in the group’s functioning. We have tried to keep predatory people out of the group, either who are predatory sexually or monetarily. The sexual predators you might think are fairly easy to spot because they make you uncomfortable to be around, but they’re still there. And your friend Carol Hubbard was a sexual predator, but she was also a financial predator because she was poor. (Amended Complaint, ¶ 31.g.) Response: [Further referring to Ms. Hubbard’s disassociation from Defendants:] I am going to be very blunt about it. It was about sex and money . . . [w]e have tried to keep predatory people out of this group . . . who are predatory sexually or monetarily . . . Carol Hubbard was a sexual predator . . . [and] also a financial predator, because she was poor . . . (punctuation added) (Response, p. 4.) * * * * * Am. Comp.: They seek ways of gaining control over others and whether it’s sex, money or power, they’ll use one or more of those things to gain, uh, the upper hand. We have told the higher self of Carol Hubbard that if they want to say in the group, if they want to have a functioning member of the group, there can be no sexual or financial predation going on. (Amended Complaint, p. 9, ¶ 31.h.) Response: [Referring to Ms. Hubbard and-according to Defendants-her conduct and words:] whether it’s sex, money or power, they’ll use one or more of those things to gain, uh, the upper hand . . . if [Carol Hubbard] want[s] to stay in the group . . . , there can be no sexual or financial predation going on . . . . (Response, p. 4.) The other block quotes appearing on pages 4 and 5 of the Response are the same. In each, whether directly or indirectly through bracketed narratives, Plaintiff rewrites the Amended Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 13 of 17 Page 11 of 14 4823-3424-5722 v1 2941470-000001 Complaint. 7 Plaintiff’s rewrites are improper and should not be considered in deciding this Motion. See Hayes v. Whitman, 264 F.3d 1017, 1026 (10th Cir. 2001) (In a response brief to a motion to dismiss, “a court may not consider allegations or theories that are inconsistent with those pleaded in a complaint.”). E. Plaintiff simply declined to substantively respond to Defendants’ remaining arguments. The arguments to which Plaintiff declined to substantively respond include: Defendants’ detailed Meyers analysis (Motion, pp. 5-9); that there is no legal difference between defamation per quod and defamation per se (id., p. 11); that even when taken out of context, Defendants’ alleged statements are non-actionable rhetorical hyperbole (id., pp. 15-16); that Plaintiff’s false light claim is simply a tack-on tort, added to give the Amended Complaint “the appearance of greater weight and importance” (id., p. 17); Defendants’ detailed analysis of Plaintiff’s claim for intentional infliction of emotional distress (id., pp. 17-22); and that a standalone civil conspiracy claim is not actionable (id., p. 23). Defendants respectfully request that in deciding this Motion, Plaintiff’s failure to substantively respond be construed against her. Cf. Thymes v. Verizon Wireless, Inc., 2016 WL 9777222, at *3 (D.N.M. Sept. 28, 2016) (“Indeed, courts have deemed a ‘plaintiff’s failure to respond to an argument raised in defendants’ papers tantamount to an express abandonment of any such claim. . . [T]he Court is simply not obligated to make a party’s case for it.” (internal quotation and citation omitted)). 7 Defendants have made an alternative argument that because alleged statements were not published beyond JMGC’s membership, Plaintiff cannot establish a requisite element of her false light claim. (Motion, p. 17.) In her Response, Plaintiff claims the alleged statements were published “on the internet and elsewhere.” (Response, p. 3.) This impermissibly contradicts the Amended Complaint, which limited publication to JMGC’s membership (Amended Complaint, ¶¶ 28, 37) and specifically alleged that non-members did not have access (id., ¶ 30). Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 14 of 17 Page 12 of 14 4823-3424-5722 v1 2941470-000001 F. Dismissal may be a harsh result, but it is warranted. Near the end of her Response, perhaps realizing the law does not favor her claims, Plaintiff interjects that her lawsuit should not be dismissed because dismissal “is a harsh remedy.” (Response, p. 15.) As made clear by the very Tenth Circuit decision on which Plaintiff relies-Duran v. Carris-the harshness of dismissal cannot overcome a plaintiff’s failure to sufficiently allege a cause of action. 238 F.3d 1268, 1271 (10th Cir. 2001); see also Brewer v. Enserch Exploration, Inc., 1995 WL 675516, at *2 (10th Cir. Nov. 14, 1995) (“The district court, recognizing that a Rule 12(b)(6) dismissal is a harsh result which should not be granted without serious consideration . . . . [W]e agree with the district court that Mr. Brewer failed to state a cause of action which is legally cognizable under Wyoming law.”). Plaintiff has failed to plead a claim upon which relief can be granted. This lawsuit should be dismissed with prejudice accordingly. The harshness of this remedy, perceived or otherwise, should be of no consequence. II. CONCLUSION Based on the arguments and authorities before the Court, for each or every reason asserted, Defendants respectfully request that this action be dismissed with prejudice. Defendants respectfully request any additional relief the Court deems warranted under the circumstances. This, the 16th day of January, 2018. Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 15 of 17 Page 13 of 14 4823-3424-5722 v1 2941470-000001 Respectfully submitted, /s/ Zachary B. Busey Zachary B. Busey (Tenn. Bar No. 29763) W. Preston Battle, IV (Tenn. Bar No. 35044) All Admitted Pro Hac Vice BAKER, DONELSON, BEARMAN, CALDWELL & BERKOWITZ, PC First Tennessee Building 165 Madison Avenue, Suite 2000 Memphis, Tennessee 38103 Telephone: (901) 526-2000 Facsimile: (901) 577-2303 Email: zbusey@bakerdonelson.com pbattle@bakerdonelson.com AND Christopher M. Moody MOODY & WARNER 4169 Montgomery Blvd. NE Albuquerque, New Mexico 87109 Telephone: (505) 944-0033 Facsimile: (505) 944-0034 Email: moody@nmlaborlaw.com Attorneys for All Defendants Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 16 of 17 Page 14 of 14 4823-3424-5722 v1 2941470-000001 CERTIFICATE OF SERVICE I HEREBY CERTIFY that on the 16th day of January, 2018, I filed the foregoing using CM/ECF which caused the following parties or counsel to be served by electronic means, as more fully reflected on the Notice of Electronic Filing: Raees Mohamed 8283 North Hayden Road, Suite 229 Scottsdale, AZ 85258 Email: raees@kellywarnerlaw.com Brian L. Lewis Brian Lewis Legal LLC Post Office Box 91264 Albuquerque, NM 87119 Email: brian@lewislegalnm.com /s/ Zachary B. Busey Zachary B. Busey, Attorney for All Defendants Case 1:17-cv-00763-KK-JHR Document 28 Filed 01/16/18 Page 17 of 17