Zimmerman v. NBC – Motion to Dismiss

WARNING: This article contains images and words that some might find offensive.

Reading NBC’s motion to dismiss was fairly easy. Trying to make sense out of Zimmerman’s reply was not so easy.

NBC Universal has petitioned the court to dismiss Zimmerman’s lawsuit for four reasons;

(1) he has failed to comply with Florida’s retraction statute, which precludes his claims with respect to one of the five broadcasts he challenges;

(2) he is a public figure who cannot carry his burden of demonstrating, by the clear and convincing evidence required by the First Amendment, that any of NBC’s reports were broadcast with a high degree of awareness of their probable falsity, or, indeed, that they are false in any material respect;

(3) he cannot demonstrate that the NBC broadcasts caused the debilitating damages to his reputation and well-being that he claims are attributable to NBC; and

(4) he has, for these and other reasons, failed to state a claim for intentional infliction of emotional distress.

Just a few thoughts …

If the person claiming defamation names a party as defendant who was not notified to retract, that party cannot be sued. In their motion to dismiss, NBC raises a good argument on that issue. Zimmerman’s attorneys will need to petition the court for leave to file an amended complaint if they want to cure that deficiency.

It is Florida, and I am unfamiliar with most of Florida’s Rules of Civil Procedure. However, when it concerns motions to dismiss or motions for summary judgment that are filed before discovery, there is a general understanding that I’ve learned. That is, if the party who did not file to dismiss the case wants to conduct discovery, it has to request the court to stay the motion to dismiss before filing a reply to the motion to dismiss.

There is also a general understanding that when responding to a motion to dismiss or motion for summary judgment, that the party cannot rely on allegations in their complaint as evidence that a genuine issue of material fact exists. When a genuine issue of material fact is disputed, courts deny motions to dismiss and for summary judgment so a jury can decide the issue. Beginning around page 68, Zimmerman’s lawyers rely on his complaint as evidence that a genuine issue of material fact exists. That’s a no-no that can have that entire portion of their pleading stricken or that issue denied by the court. Yes – the court can grant in part, and deny in part.

Based on the reply filed by Zimmerman’s attorneys, they argued that they needed to conduct discovery and amend his complaint, but did not ask the court for that relief.

Some background;

George Zimmerman is suing NBC for defamation and intentional infliction of emotional distress. His lawsuit is based on his NEN call that was edited by NBC. Personally, I did not hear that edited version. I heard the full call. What caught my attention about Zimmerman’s NEN call is when Zimmerman said “he ran,” and the sound immediately changed, indicating that Zimmerman was outside and possibly running. The dispatcher heard the same and asked Zimmerman, “Are you following him?” in which Zimmerman replied, “Yeah.”

My first thought when hearing that Zimmerman was suing NBC for editing his NEN call, causing the public to believe he is racist and putting his life in jeopardy, was WHAT?!?!?! Isn’t this the man who abandoned his home, job, and went into hiding the day after he killed Trayvon Martin? Nothing that NBC reported in March 2012 is responsible for what Zimmerman did on February 26 and 27, 2012. NBC may have taken Zimmerman’s words out of context, but that is not what resulted in him going into hiding.

Isn’t this the man who avoided arrest by claiming Florida’s stand your ground as his defense? And, isn’t this the man who was arrested after Angela Corey’s office investigated and found sufficient evidence to charge him with 2^nd degree murder? Nothing that NBC reported is responsible for that.

Zimmerman stood trial, and the prosecutors did not charge him with racially profiling Trayvon Martin. In fact, Judge Nelson ruled that the term “racial profiling” could not be used at trial. On July 13, 2013, a jury of 6 women found Zimmerman not guilty. So, what are his damages?

Zimmerman’s attorneys have filed an 80 page reply to NBC’s 55 page motion to dismiss. Much of it regurgitates other portions. They include portions of the transcript of Zimmerman’s NEN call, but just like Zimmerman did with investigators, they omit that Zimmerman CHANGED HIS MIND after not knowing where the kid was, and DID NOT agree to meet the cop. Rather, he asked for the cop to call him and he would tell the cop where he was.

As another matter of interest, remember that Mark O’Mara withdrew his representation of Zimmerman from this case. Some assumed that Lorna Truett, the woman who appeared with O’Mara and West at Zimmerman’s trial, would take over for O’Mara in the lawsuit against NBC. She didn’t. Local counsel on the case is the Didier Law Firm.

Their website says:

“The Didier Law Firm is a Florida-based trial law firm specializing in the litigation of complex auto accident, truck accident and product liability cases. The vast majority of our cases involve severe bodily injury, spinal cord injuries, traumatic brain injuries, and wrongful death.”

In their reply for NBC’s motion to dismiss, Zimmerman’s lawyers contend that he is not a public figure. I tend to disagree. Zimmerman voluntarily made himself a public figure when he pulled the trigger, firing a hollow-point bullet into the heart of an unarmed 17-year old, and went into hiding. Whatever his motivation was for doing that, he cannot infer that his decision was premature, push the clock forward and blame NBC. Zimmerman made himself a public figure when his brother, dad, and friends Joe Oliver and Frank Taaffe agreed to media interviews where they presented George’s story.

Zimmerman’s lawsuit holds NBC responsible for giving the public the impression that Zimmerman profiled Trayvon because of his race. Its motion to deny NBC’s motion to dismiss goes into lengths trying to hold NBC accountable for public perception. One would think that Zimmerman and his attorneys think that people limit their lives to television sets AND watch ONLY NBC.

NBC raises its argument that;

“Even assuming that Zimmerman has sustained all of these damages, he simply cannot carry his burden of proving that they were caused by the manner in which NBC edited or characterized the statements he made during the Call.”

I agree.

Was the word that Zimmerman said “punks” or “coons”? That is answered by the hearers and not because of anything that NBC reporters might have stated. Each person can listen and decide. What I find with Zimmerman’s lawsuit is that it stereotypes that everyone who doesn’t believe in Zimmerman’s innocence formed that opinion because they heard the tape edited by NBC. It stereotypes that everyone who doesn’t believe in Zimmerman’s innocence formed that opinion on a belief that Zimmerman is a racial bigot.

This is not limited to what those believing in Zimmerman’s guilt hear, but also in what those who support Zimmerman hear.

Here. Let’s do an experiment. Imagine that you did not follow the George Zimmerman case. You did not watch the news – never heard NBC’s edited tape of Zimmerman’s call to the police reporting a suspicious person. You were not on blogs or reading the comment sections on internet news sources about the case. Now, close your eyes and count to ten before opening them.

(10, 9, 8, 7, 6, 5, 4, 3, 2. 1)

Imagine not knowing anything about George Zimmerman. Read the following and decide what impression you get from George Zimmerman’s supporters, (and particularly one who takes credit for being George Zimmerman’s main supporter and defender, since February 2012), regarding whether race played a role in what he did the evening of February 26, 2012.

 

 

 

 

http://ironmarch.org/index.php?/topic/2600-ignorant-bigoted-nazis-vs-the-skittles-nigger-the-chimpoutening/page-2

From comments sent to this blog:

“Niiiiice. LEAKIN’ PANTIES!
Trayboon as it turned out had missed ON PURPOSE nearly 60 days of school from late Aug to Feb!!!!! The dunce failed the FCAT. Unbelievable.”

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And, in response to wishing everyone a Happy Thanksgiving and Happy Hanukkah, a George Zimmerman supporter sent the following;

Otherwise Known As David the Great gravatar.com/stanyergroundx piercyfacebook@hotmail.com (Redacted)

Submitted on 2013/11/28 at 4:08 amactually twat lips the true evil are dumbshits like you and the fucking retards who subscribe to this toilet paper rag ad you stupid fucking racist animals are still demanding the lynching of a man who was proven 100% innocent in a court of law. what you negroe savages are doing is evil of the highest degree.

Happy Thanksgiving and Happy Hanukkah 2013

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In response to a report of O’Connor’s blog regarding George Zimmerman’s arsenal of guns;

Otherwise Known As David the Great gravatar.com/stanyergroundx piercyfacebook@hotmail.com (Redacted)

Submitted on 2013/11/27 at 9:44 pmHey dumbshit delusional twat lips…if you dumbass delusional nigger savages listen to the scheibe 911 call the dumb blonde bitch tells dispatch the shotgun was unloaded the entire time

George Zimmerman’s Guns

And, another demonstration of calling Trayvon a “coon” in a comment sent to this blog;

	Otherwise Known As David the Great gravatar.com/stanyergroundx piercyfacebook@hotmail.com (redacted)	Submitted on 2013/11/29 at 2:56 pm god damn you are both stupid and a delusional liar 1) Omara flat out says right here he does not expect payment and 2) george has every right to sue tracy, sybrina, and the traycoon foundation to recover costs after traycoon chimped out and attacked	Confirmed – George Zimmerman Owes $2.5 Million to Lawyers

 

If Zimmerman’s supporters do not believe that Trayvon’s race had anything to do with Zimmerman ‘s decisions and actions the evening of February 26, 2012, why do they consistently denigrate the Black race when supporting Zimmerman?

Based on the foregoing, created and/or written by George Zimmerman’s supporters, what impression do they give to you about George Zimmerman?

More importantly, since George Zimmerman and his brother follow the aforementioned, dedicated supporter on Twitter, and if they do not agree with his perception that George profiled and killed Trayvon because of his race, why haven’t they publicly denounced that person? Why haven’t they publicly apologized to Trayvon’s parents for the racial humiliation they endure from George’s supporters?

It is shameful that Zimmerman accuses NBC of what his supporters perpetrated and continue to perpetrate and provoke.

NBC, please, zealously pursue this case.

(NBC’s Motion to Dismiss, and Zimmerman’s Reply, have been added to the right border of this blog under Documents.)