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Miera v. Amato

United States District Court, D. Arizona

November 12, 2019

Andy Julius Miera, Jr., Plaintiff,
v.
Francesca Amato, Punished for Protecting, Defendants.

          AMENDED REPORT AND RECOMMENDATION

          Camille D. Bibles, United States Magistrate Judge

         TO THE HONORABLE STEPHEN M. McNAMEE:

         Plaintiff, a self-represented litigant, applies to proceed in this Court without prepaying fees and costs. (ECF No. 2). In his Application to Proceed in District Court Without Prepaying Fees or Costs Plaintiff indicates his average monthly income is $900, that he is self-employed; that he has no bank accounts, cash or savings, or assets; and that his monthly living expenses total $989, exclusive of his probation fees. (Id.). Accordingly, because it appears Plaintiff has met the requirement for indigency, it is recommended that Plaintiff's motion at ECF No. 2 be granted.

         If the Court grants the motion to proceed without prepayment of costs or fees, the Court is required to review Plaintiff's complaint and to dismiss it if the allegations are frivolous, malicious, fail to state a claim on which relief may be granted, or if Plaintiff “seeks monetary relief against a defendant who is immune from such relief.” 28 U.S.C. § 1915(e)(2); Lopez v. Smith, 203 F.3d 1122, 1127 (9th Cir. 2000).

         Pursuant to Federal Rule of Civil Procedure 8, a complaint must contain “a short and plain statement of the grounds for the court's jurisdiction, ” “a short and plain statement of the claim showing that the pleader is entitled to relief, ” and “a demand for the relief sought.” A complaint must also plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). Because one of the primary functions of a complaint is to provide defendants with notice of the legal claims asserted against them and the factual basis for those claims, a complaint written without clarity and specificity as to who is being sued and for what, “fails to perform the essential functions of a complaint.” McHenry v. Renne, 84 F.3d 1172, 1178-80 (9th Cir. 1996).

         The Complaint asserts the Court's jurisdiction is pursuant to the diversity of the parties, and alleges Plaintiff is a citizen of Arizona and the individual defendant is a citizen of New York and the corporate defendant's principal place of business is New York. (ECF No. 1 at 3-4). Plaintiff asserts the amount in controversy is “$10, 000, 000.” (ECF No. 1 at 4). Plaintiff's Complaint was classified as asserting a cause of action based on libel and slander.

“‘One who publishes a false and defamatory communication concerning a private person . . . is subject to liability, if, but only if, he (a) knows that the statement is false and it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.'” Rowland v. Union Hills Country Club, 157 Ariz. 301, 306 (Ariz.Ct.App. 1988), quoting Restatement (Second) of Torts § 580(B) (1977) (alteration in Rowland; emphasis in Rowland omitted); see also Peagler v. Phoenix Newspapers, Inc., 114 Ariz. 309, 315 [] (1977).
. . . Publication for defamation purposes is communication to a third party. See Morris v. Warner, 160 Ariz. 55, 62, 770 P.2d 359, 366 (App. 1988); Restatement § 577.

Dube v. Likins, 216 Ariz. 406, 417 (Ariz.Ct.App. 2007).

         Accordingly, to be entitled to damages pursuant to a claim of libel, the plaintiff must establish the defendant “published” a false and defamatory statement about the plaintiff that tended to bring them “into disrepute, contempt, or ridicule, ” or to “impeach his honesty, integrity, virtue or reputation.” Central Arizona Light & Power Co. v. Akers, 45 Ariz. 526, 536 (1935). The substantial or substantive truth of the allegedly defamatory statement is a complete defense to such a claim. Id. at 543. See also Desert Palm Surgical Gr., P.L.C. v. Petta, 236 Ariz. 568, 579 (Ariz.Ct.App. 2015). Statements made with actual malice, if true, are not actionable. See Fendler v. Phoenix Newspapers Inc., 130 Ariz. 475, 480 (Ariz.Ct.App. 1981).

         However, the “facts showing that each plaintiff is entitled to the damages or other relief sought, ” and “how each defendant was involved and what each defendant did that caused the plaintiff harm or violated the plaintiff's rights, ” “including the dates and places of that involvement or conduct” states, in its entirety:

Francesca AKA Fran has slander my name and ruined my company that I owned for 5 years I can no longer work for insurance company's because of her and the people she knows whom talk about me and the lies that she has told, Fran was upset because I closed a part of my company that she was going to run in New York after I closed the contract she went on a [smear] campaign. (sic)

(ECF No. 1 at 4). In his claim for relief Plaintiff asks the Court to

order Francesca to never speak my name again and to publicly apologize for the lies she has told and I ask the court to grant the pain, suffering, and [illegible] amount of $10, 000, 000 to make an example of her ...

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