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. Read the rest of this entry