United States District Court, W.D. Washington, Tacoma
ORDER GRANTING MOTION TO DISMISS
B. LEIGHTON UNITED STATES DISTRICT JUDGE
MATTER is before the Court on Plaintiff Mael's Motion to
Dismiss Defendant Evanger's defamation counterclaim
against her. [Dkt. #56]. This putative class action arises
from Mael's claim that her dogs got sick, and one
ultimately died, from eating pentobarbital-tainted
Evanger's “Hunk of Beef” dog food. Mael's
story was in the news and it at least partly caused
Evanger's to initiate a nationwide recall of its
sued. Evanger's asserted defamation counterclaims based
on a list of Mael's public statements about the cause of
Talula's death. [Dkt. # 45]. Mael moved to dismiss and
for sanctions. [Dkt. #46]. Before that motion was decided,
Evanger's amended its counterclaim, this time identifying
three (different) allegedly defamatory statements:
a. On February 8, 2018. Mael stated. "Poisoning from the
dog food. That's what killed her," in an interview
with ABC7 news.
b. On January 2, 2017, Mael stated, "Tito and Talula ate
the most [food] and Talula passed away," in an interview
with KATU News.
c. On February 9, 2017. Mael participated in an interview
with Helen Mann and Jeff Douglas of the Canadian Broadcasting
Corporation, during which Mael stated: "And so [the
veterinarians] basically just treated [my dogs] for a poison
to get it out of their system and they were in the ICU
overnight. Talula, of course passed away.... I think she ate
the most. Her and Tito both eat a lot so I believe that they
ate the most and that's why she passed away.... I
can't believe that my dog passed away from that. You know
she should have died from old age, not poisoned dog food....
I couldn't believe that something that I trusted, I
thought I trusted you know, that that would be the death of
Amended Counterclaim Dkt. # 49].
also sued its meat supplier, Bailey Farms, affirmatively
alleging that the FDA's Michigan State University lab had
confirmed that pentobarbital was in both Talula's stomach
and in the Evanger's Hunk of Beef she had eaten.
Evanger's alleged that the FDA later confirmed
independently that some cans of Hunk of Beef contained
pentobarbital. Evanger's sought damages from Bailey Farms
based on these allegations.
seeks dismissal of the defamation counterclaim. She argues
that her statements do not and cannot support a defamation
claim under the substantially similar defamation law of
Illinois (where Evanger's is domiciled) or Washington
(where the comments were made).
under Fed.R.Civ.P. 12(b)(6) may be based on either the lack
of a cognizable legal theory or the absence of sufficient
facts alleged under a cognizable legal theory. Balistreri
v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th
Cir. 1990). A plaintiff's complaint must allege facts to
state a claim for relief that is plausible on its face.
See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A
claim has “facial plausibility” when the party
seeking relief “pleads factual content that allows the
court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Id.
Although the court must accept as true the Complaint's
well-pled facts, conclusory allegations of law and
unwarranted inferences will not defeat an otherwise proper
12(b)(6) motion to dismiss. Vazquez v. Los Angeles
Cty., 487 F.3d 1246, 1249 (9th Cir. 2007); Sprewell
v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir.
2001). “[A] plaintiff's obligation to provide the
‘grounds' of his ‘entitle[ment] to
relief' requires more than labels and conclusions, and a
formulaic recitation of the elements of a cause of action
will not do. Factual allegations must be enough to raise a
right to relief above the speculative level.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(citations and footnotes omitted). This requires a plaintiff
to plead “more than an unadorned,
Iqbal, 556 U.S. at 678 (citing id.).
Response is a well-written, thorough, scholarly discussion of
defamation law. It argues that Illinois and Washington law is
the same, and that it need not demonstrate actual malice to
succeed (but that it can).
“core” factual allegation in support of
Evanger's defamation claim receives less attention, but
it is plain: Mael's public statements
“intentionally” omitted material
information about how Talula really died. Mael failed to
admit that she had Talula euthanized. [See Response,
Dkt. # 60 at 12]. Evanger's claims that Mael's
incomplete, false story is “more damaging” to
Evanger's than the one it claims is true (and which it
apparently wants to tell a jury); that Mael killed
Talula-Mael decided to end her suffering, because a
veterinarian told her the dog would not recover-and then she
falsely (and maliciously) claimed that her dog “died
from” eating pentobarbital-tainted Hunk of Beef.
hard to imagine that this more complete and accurate version
of the story will persuade a jury that the food was not
tainted, that Mael is lying, or that any claimed damages
should be reduced because Mael herself is culpable because
she chose to pull the plug. That is sort of like saying the
coyotes technically killed the bleeding, suffering,
dying deer on the highway, not the logging truck that ran
over it. Except the coyotes presumably did not act in what
they thought was the deer's best interest.
efficacy of that approach will await another day. But the claim
that Mael's statements were “false” in a
defamatory way because she did not admit to
euthanizing her dog is not plausible. As Evanger's
acknowledges, “a statement is not considered false
unless it would have a different effect on the mind of the
reader from that which the pleaded truth would have
produced.” Masson v. New Yorker Magazine,
Inc., 501 U.S. 496, 510 (1991). The “gist and
sting” of the ...