United States District Court, D. Arizona
S. Willett United States Magistrate Judge
March 27, 2019, the Court granted in part and denied in part
Defendant's Motion to Dismiss (Doc. 22). (Doc. 27).
Defendant moved for reconsideration of that Order, which the
Court denied. (Doc. 33). On June 10, 2019, with leave of the
Court, Plaintiff filed a First Amended Complaint (Doc. 34).
Pending before the Court is Defendant's Motion to Dismiss
Subject Matter Jurisdiction
Court's March 27, 2019 Order found that the original
Complaint inadequately invoked diversity jurisdiction as the
Complaint failed to sufficiently allege an amount in
controversy greater than $75, 000. (Doc. 27 at 5).
Defendant's Motion to Dismiss asserts that the First
Amended Complaint fails to correct that deficiency. (Doc.
35-1 at 7-10).
original Complaint made the conclusory assertion that the
amount in controversy exceeds $75, 000, but did not allege
any facts to support this assertion. (Doc. 1 at 2). The First
Amended Complaint includes the allegation that “[o]ne
of the Plaintiff's existing clients informed Plaintiff of
the content of Defendant's website. After reviewing the
content, the existing client terminated its contract with
Plaintiff. The termination resulted in a loss of revenue in
excess of $300, 00 on an annual basis.” (Doc. 34 at 3,
¶ 13). The First Amended Complaint also alleges that
“since the libelous publication by Defendant, Plaintiff
has suffered a decline in its annual growth of healthcare
clients in excess of $75, 000.” (Id., ¶
14). Because Defendant has presented a facial attack on
subject matter jurisdiction, the Court assumes that the
allegations in the First Amended Complaint are true and the
Court draws all inferences in Plaintiff's
favor. Wolfe v. Strankman, 392 F.3d 358,
362 (9th Cir. 2004). The Court finds that the First Amended
Complaint corrects the deficiencies in the original Complaint
regarding diversity jurisdiction.
asserts that Plaintiff “lacks standing because it has
not established a line of causation between Lemberg's
actions and its alleged harm.” (Doc. 35-1 at 11). Yet
Paragraph 13 of the First Amended Complaint may be reasonably
interpreted as alleging that one of Plaintiff's clients
terminated its contract with Plaintiff as a direct result of
reading Defendant's website. (Doc. 34 at 3, ¶ 13).
The Court finds that the First Amended Complaint sufficiently
asserts that Defendant's actions caused Plaintiff
Statute of Limitations
Motion to Dismiss, Defendant also asserts that all three
counts of the First Amended Complaint must be dismissed on
statute of limitations grounds. (Doc. 35-1 at 12-14). A
statute of limitations defense “may be raised by a
motion to dismiss . . . [i]f the running of the statute is
apparent on the face of the complaint.” Jablon v.
Dean Witter & Co., 614 F.2d 677, 682 (9th Cir. 1980)
(citing Graham v. Taubman, 610 F.2d 821 (9th Cir.
1979)). “While a statute of limitations defense may be
raised by a motion to dismiss, a complaint cannot be
dismissed unless it appears beyond doubt that the plaintiff
can prove no set of facts that would establish the timeliness
of the claim.” Seitz v. Rheem Mfg. Co., 544
F.Supp.2d 901, 910 (D. Ariz. 2008) (internal quotation marks
and citation omitted).
does not dispute that a one-year limitations period applies
to the claims presented in the First Amended Complaint. Here,
the First Amended Complaint alleges that Defendant published
libelous statements on the Internet “on November 15,
2018, and preceding and succeeding dates.” (Doc. 34 at
1, ¶ 1). This action was filed on November 28, 2018.
Dismissal on statute of limitations grounds is not
appropriate at this time as Plaintiff may be able to prove a
set of facts that would establish the timeliness of its
claims. Seitz, 544 F.Supp.2d at 910.
Counts I and II of the First Amended Complaint: Libel Per Se
I and II of the First Amended Complaint present libel per se
and libel claims. “According to Arizona law, libel and
slander are classified as either per se or per quod.”
Ultimate Creations, Inc. v. McMahon, 515 F.Supp.2d
1060, 1067 (D. Ariz. 2007) (citing Boswell v. Phoenix
Newspapers, Inc., 730 P.2d 178, 183 n.4 (Ariz.Ct.App.
1985)). “A communication is libel per se if on its face
it tends to impeach one's honesty, integrity, or
reputation. If a communication is libelous only by
considering extrinsic information, then it is considered
libel per quod.” Id. (internal quotation marks
and citation omitted). A claim for libel requires a plaintiff
to plead pecuniary damages. Id. Damages are presumed
with respect to a libel per se claims. Id.
the truth of all facts alleged in the First Amended Complaint
and construing them in the light most favorable to Plaintiff,
the Court finds that Counts I and II sufficiently state
claims for libel per se and libel. ...