United States District Court, D. Colorado
ORDER ON PENDING MOTIONS
R. Brooke Jackson United States District Judge
Twelve motions are pending and are addressed in this order. The Court again strongly urges the parties, for their own benefit, to resolve their disputes by a settlement.
This case is a bitter dispute between former spouses that unfortunately did not end with their divorce. Erin Runyan and her significant other, Sean Lando, accuse Ms. Runyan’s former husband, Geoffrey Fey, of defamation and outrageous conduct arising from numerous alleged slanderous and libelous statements about them, some of which were posted on the Internet. Second Amended Complaint, ECF No. 34. Mr. Fey, representing himself pro se, counterclaims, alleging that he is the one who is the victim of defamation and outrageous conduct. He also asserts a claim for malicious prosecution. The parties assert federal jurisdiction based upon diversity of citizenship.
A. Plaintiffs’ Motion to Dismiss Counterclaims [ECF No. 40].
Mr. Fey asserts counterclaims against Ms. Runyan for (1) defamation per se, arising from her allegedly false accusations that he physically abused her and sexually abused their daughter; (2) defamation per quod, arising from the same allegations; (3) malicious prosecution, and (4) outrageous conduct. In reviewing a motion to dismiss under Rule 12(b)(6), the Court must accept the well-pleaded allegations of the claim as true and construe them in the claimant’s favor. However, the facts alleged must be enough to state a claim for relief that is plausible, not merely speculative. Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 570 (2007). A plausible claim is a claim that “allows the court to draw the reasonable inference that the [person against whom the claim is asserted] is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). Allegations that are purely conclusory are not entitled to an assumption of truth. Id. at 681. However, so long as the claimant offers sufficient factual allegations such that the right to relief is raised above the speculative level, he has met the threshold pleading standard. See e.g., Twombly, 550 U.S. at 556; Bryson v. Gonzales, 534 F.3d 1282, 1286 (10th Cir. 2008).
Defamation is a knowingly false communication that holds an individual up to contempt and causes him to incur injury or damage. Keohane v. Stewart, 882 P.2d 1293, 1297 (Colo. 1994). Whether a statement is defamatory is a question of law. Gordon v. Boyles, 99 P.3d 75, 79 (Colo.App. 2004) (citing Walker v. Associated Press, 417 P.2d 486 (Colo. 1966)). There are certain differences between a written communication (libel) and an oral communication (slander). However, in general, if a statement is defamatory on its face, damage is presumed, and the plaintiff need not plead special damages. Gordon, 99 P.3d at 79. Otherwise special damages must be proved as an element of the offense. Id. See generally Colorado Jury Instructions - Civil §§ 22:1 et seq. (2015 ed.).
Mr. Fey alleges that Ms. Runyan knowingly and falsely informed neighbors, friends and members of the community that he had physically abused her, and that he had sexually assaulted their daughter, A.F. Such statements, if made, would be defamatory per se as a matter of law. Construing those allegations in his favor for purposes of a motion to dismiss - and without suggesting or implying anything about the actual truth or falsity of the statements - the Court denies the motion to dismiss the first and second counterclaims.
2. Malicious Prosecution.
Under Colorado law, the elements of a claim of malicious prosecution arising from a prior criminal prosecution are that (1) a criminal case was brought against the plaintiff, (2) it was brought as a result of statements made by the defendant, (3) the case ended in the plaintiff’s favor, (4) the defendant’s statement was made without probable cause, (5) the defendant’s statement was motivated by malice towards the plaintiff, and (6) as a result of the case, the plaintiff had damages. See Montgomery Ward & Co. v. Pherson, 272 P.2d 643, 645 (Colo. 1954); Colorado Jury Instructions - Civil § 17:1 (2015 ed.). A statement to the police lacks probable cause if it was made without a reasonable and good faith belief that the plaintiff was guilty of the offense with which he was charged. See Konas v. Red Owl Stores, Inc., 404 P.2d 546, 547-48 (Colo. 1965).
Mr. Fey alleges that on August 4, 2012 Ms. Runyan told law enforcement officers that he had menaced and harassed her by pushing, shoving, or kicking her, resulting in a criminal prosecution in Douglas County Court, case No. 12-M-1590. He alleges that this case ended in his favor on April 22, 2013. He alleges that the statements were made without probable cause, were motivated by malice, and caused him to sustain damages. ECF No. 36 at ¶¶46-51.
Mr. Fey further alleges that Ms. Runyan made four other malicious statements to law enforcement, without probable cause, that resulted in four additional prosecutions that ended in his favor but caused him to sustain damages: August 5, 2012 (case No. 12-M-1580, allegedly ending in his favor on April 22, 2013); September 22, 2012 (case No. 12-M-1921, allegedly ending in his favor on March 25, 2013); January 25, 2013 (case No. 13-M-141, allegedly ending in his favor on May 2, 2013); and June 1, 2013 (case No. 13-M-930, allegedly ending in his favor on August 21, 2013).
Ms. Runyan asks the Court to take judicial notice of court files, which I can do even in ruling on a Rule 12(b)(6) motion. A transcript of a hearing in the Douglas County Court held on April 22, 2013 shows that, contrary to the allegations in his counterclaims, Mr. Fey entered into a plea of guilty to harassment as a domestic violence incident in case No. 13-M-141. Transcript of hearing, ECF No. 40-3, at 3. As part of the plea bargain the court also dismissed cases 12-M-1580 and 1590. Id. Therefore, the Court concludes that these three cases did not end in Mr. Fey’s favor, and they cannot support a claim of malicious prosecution. However, contrary to the representation in Ms. Runyan’s motion, the disposition in case No. 13-M-141 did not dispose of cases 12-M-1921 or 13-M-930. At this point, therefore, Mr. Fey’s malicious prosecution claim as to those two cases cannot be dismissed under Rule 12(b)(6).
3. Outrageous Conduct.
The elements of this claim are that the defendant (here Ms. Runyan as the “defendant” on the counterclaim) (1) engaged in extreme and outrageous conduct, (2) recklessly or with the intent of causing the claimant severe emotional distress, and (3) that it did cause severe emotional distress. Colorado Jury Instructions - Civil § 23:1 (2015 ed.). Outrageous conduct, although often pled, is rarely proved. Extreme and outrageous conduct is defined as conduct so atrocious as to go beyond all possible bounds of decency such that the conduct is “utterly intolerable in a civilized” world. See Rugg v. McCarty, 476 P.2d 753, 756 (Colo. 1970). Usually courts dismiss outrageous conduct claims on a motion to dismiss or for summary judgment.
In this case, I am not prepared to dismiss the claim at this time. If, as alleged by Mr. Fey, Ms. Runyan publicly accused him of sexually assaulting his daughter, and if the accusation was false, then it could amount to outrageous conduct. Ms. Runyan suggests that the Department of Human Services determined that the accusation was “founded.” However, her “evidence, ” a letter to her dated October 24, 2012, ECF No. 40-1, only cryptically states that “allegations of neglect and emotional abuse” were deemed founded. In any event, the findings of the Department would not be conclusive. Assuming the truth of Mr. Fey’s allegation at this stage of the case, dismissal under Rule 12(b)(6) is not appropriate.
B. Plaintiffs’ Motion to Compel [ECF No. 60].
Plaintiffs move to compel Mr. Fey to provide additional responses to interrogatories. Before he responded to the motion, plaintiffs filed a “reply.” Then Mr. Fey responded, basically indicating that he will provide the information and moot the motion. This is the product of the inability or unwillingness of Mr. ...