Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 1 of 23 PageID 557

UNITED STATES DISTRICT COURT

MIDDLE DISTRICT OF FLORIDA
ORLANDO DIVISION
ERICA KINSMAN,
Plaintiff,
v.

CASE NO. 6:15-cv-696-Orl-22GJK

PLAINTIFFS MOTION TO DISMISS
DEFENDANTS COUNTERCLAIM AND
STRIKE PORTIONS OF ANSWER &
AFFIRMATIVE DEFENSES (DOC. 7)

JAMEIS WINSTON,
Defendant.

(AND INCORPORATED
MEMORANDUM OF LAW)

Plaintiff Erica Kinsman (Ms. Kinsman), pursuant to Rules 12(b)(6) and 12(f),
Federal Rules of Civil Procedure, respectfully requests that the Court enter an order
dismissing Defendants Counterclaim with prejudice and striking portions of his Answer &
Affirmative Defenses (Doc. 7).1
I.

INTRODUCTION
Neither time nor governing law support the claims in Defendants Counterclaim.

Because the statements that form the basis for Defendants two defamation claims are simply
the continued publication of Ms. Kinsmans statements on December 7, 2012, that she was
raped and on January 10, 2013, that Defendant was her rapist, his defamation claims are
time-barred under Floridas single publication rule and two-year statute of limitations.
Defendants tortious interference claim, premised on the same allegedly defamatory
statements, fails for the same reasons. Finally, even if Defendants Counterclaim was not

To the extent necessary, Ms. Kinsman reserves her right to seek additional relief if appropriate in
connection with Defendants Answer, Affirmative Defenses & Counterclaim pursuant to FED. R. CIV. P. 11,
28 U.S.C. 1927 and the Courts inherent authority.

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time-barred, Ms. Kinsmans statements are privileged under Florida defamation law and
constitute constitutionally protected speech that render her immune from suit.
Portions of Defendants Answer and Affirmative Defenses should suffer a similar fate
and be struck including, in particular, a highly inflammatory and gratuitous 17-page
Preliminary Statement in which Defendant attacks Ms. Kinsmans character and credibility
through unfounded claims of lying, manipulating evidence and other impertinent allegations.
Accordingly, for the reasons below, the Court should dismiss Defendants Counterclaim with
prejudice and strike portions of his Answer and Affirmative Defenses.
II.

BACKGROUND
On April 16, 2015, Ms. Kinsman brought suit, alleging that Defendant Jameis

Winston forcibly raped her and asserting claims for, inter alia, sexual battery. See (Doc. 2).
On May 8, 2015, Defendant counterclaimed, contending Ms. Kinsmans allegations of rape
amount to defamation and asserting claims for (i) defamation per se (Count I);
(ii) defamation (Count II); and (iii) tortious interference with prospective business advantage
based on Ms. Kinsmans alleged defamation (Count III). See generally (Doc. 7).
According to Defendant, all three of these claims arise out of Ms. Kinsmans reports
of rape and her statements identifying Defendant as her rapist to law enforcement and Florida
State University (FSU). (Doc. 7, Countercl. at 51-53, 44). Collectively, Defendant refers
to these reports and statements as the False Statements.

(Id.).

Notably, all of the

statements identified by Defendant as defamatory are secondary publications of the original

report that Ms. Kinsman made on December 7, 2012, and later on January 10, 2013, when
she learned for the first time who her rapist was and called Tallahassee Police Department

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Investigator Scott Angulo to identify him by name. Ten months later, that identification was
confirmed by conclusively matching DNA from semen samples to a swab obtained from
Defendant.
III.

STATEMENT OF LAW
A.

Motions to Dismiss

Groundless claims should be exposed at the point of minimum expenditure of time

and money by the parties and the court. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 558
(2007) (quotations omitted). Discovery in federal cases can be expensive, and courts must be
conscious of this reality so as to avoid situations in which parties use the threat of such
expense to push settlement of anemic cases. Id. at 559. Early disposition is therefore
appropriate when a cause of action is simply not plausible. Id. at 570.
To be plausible, a claim must, at a minimum, contain allegations that give fair notice
of what the claim is and the grounds that support it, including factual allegations adequate to
raise a right to relief above a speculative level. Fin. Sec. Assur. Inc. v. Stephens Inc., 500
F.3d 1276, 1282 (11th Cir. 2008) (citing Twombly); see also, e.g., Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). The obligation to provide the grounds of an entitlement to relief requires
more than labels and conclusions, and a formulaic recitation of the elements of a cause of
action will not do. Twombly, 550 U.S. at 555. While factual allegations are to be accepted
as true, conclusory allegations, unwarranted factual deductions or legal conclusions
masquerading as facts will not prevent dismissal. Davila v. Delta Airlines Inc., 326 F.3d
1183, 1185 (11th Cir. 2003). Without resorting to such illegitimate means, the factual
allegations in a pleading must possess enough heft to set forth a plausible entitlement to

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relief, Fin. Assur. Inc., 500 F.3d at 1282 (quotation omitted), and nudge the claim across
the line from conceivable to plausible. Jacobs v. Tempur-Pedic Intl Inc., 626 F.3d 1327,
1333 (11th Cir. 2010) (quotation omitted).
Dismissal under Rule 12(b)(6) is also proper where a claim suffers from a dispositive
legal flaw, or where the facts alleged simply cannot support an element of the claim. See,
e.g., Aldridge v. Lily-Tulip, Inc., 953 F.2d 587, 593 (11th Cir. 1992); Ortega Trujillo v.
Banco Central Del Ecuador, 17 F. Supp. 2d 1340, 1342 (S.D. Fla. 1998) (Regardless of the
alleged facts, however, a court may dismiss a complaint on a dispositive issue of law.);
Farrow v. Henderson, 195 F. Supp. 2d 1320, 1323 (M.D. Fla. 2001).
B.

Motions to Strike

Upon a motion by a party or on its own initiative, a district court may strike from a
pleading an insufficient defense or any redundant, immaterial, impertinent or scandalous
matter. FED. R. CIV. P. 12(f).2 The purpose of a motion to strike is to clean up the
pleadings, streamline litigation, and avoid unnecessary forays into immaterial matters.
Schmidt v. Life Ins. Co. of N. Am., 289 F.R.D. 357, 358 (M.D. Fla. 2012) (quotations and
citations). While striking allegations from a pleading can be a drastic remedy, Augustus v.
Bd. of Pub. Instruction of Escambia Cnty., Fla., 306 F.2d 862, 868 (5th Cir. 1962), district
courts have broad discretion when considering motions to strike. See, e.g., Williams v.
Eckerd Family Youth Alternative, 908 F. Supp. 908, 910 (M.D. Fla. 1995) (The Court has

Immaterial matter has no important relationship to the claim. See, e.g., Fodor v. E. Shipbuilding Grp., No.
5:12-cv-28, 2014 WL 50783, at *5 (N.D. Fla. Jan. 7, 2014); S.D. v. St. Johns Cnty. Sch. Dist., No. 3:09-cv-250,
2009 WL 1941482, at *1 (M.D. Fla. July 7, 2009). Impertinent matter does not relate to the issues raised in
the pleading. Id. Scandalous matter generally refers to allegations that cruelly or unnecessarily reflect on the
moral character of an individual or casts a derogatory light on a party. Id.; see also, e.g., S.E.C. v. Lauer, No.
03-cv-80612, 2007 WL 1393917, at *2 (S.D. Fla. Apr. 30, 2007).

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broad jurisdiction when considering a motion to strike. . . .); see also, e.g., Stephens v. Ga.
Dept of Transp., 134 F. Appx 320, 322-23 (11th Cir. 2005) (unpublished) (finding no abuse
of discretion and affirming order striking of portions of motion for summary judgment).
IV.

ARGUMENT
A.

The Court Should Dismiss Defendants Counterclaim With Prejudice

Defendants Counterclaim should be dismissed with prejudice.

Under Floridas

single publication rule and two-year statute of limitations, Counts I and II of Defendants
Counterclaim for defamation per se and defamation are time barred and fail as a matter of
law. Similarly, Count III improperly attempts to recast Defendants defamation claims into a
purported claim for tortious interference with prospective business advantage that is
predicated upon the same time-barred statements that fail as a matter of law in Counts I and
II. Finally, even if Counts I, II and III were not time barred (they are), Ms. Kinsman is
immune from suit because her alleged statements were privileged and, as matter of law,
Defendant cannot pursue claims arising out of protected speech under the Petition Clause of
the First Amendment to U.S. Constitution.
1.

Counts I and II of Defendants Counterclaim Are Time Barred

Under Floridas Single Publication Rule and Two-Year Statute of
Limitations

In general, defamation involves a publication of a false statement, about the claimant,

to a third party, such that the false statement causes injury to the claimant. See, e.g., Jews
For Jesus, Inc. v. Rapp, 997 So. 2d 1098, 1106 (Fla. 2008); Valencia v. Citibank Intl, 728
So. 2d 330, 300 (Fla. 3d DCA 1999). To assert and prevail on a claim for defamation or
defamation per se, however, is not so simple in Florida, where the law has applied various

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restrictions to cases founded on the publication or utterance of alleged defamatory

statements.
Early common law held that a separate cause of action arose each time the alleged
libel was revealed to a third party. See, e.g., Daytona Beach News-Journal Corp. v. First
Am. Dev. Corp (Daytona), 181 So. 2d 565, 567 n.1 (Fla. 3d DCA 1966). Under that socalled multiple publication rule, each time the defendant, or a transmitting third-party,
exposed a new third party to the same false statement, the occurrence was considered a new
defamatory publication, for which the defendant could be held liable. See First Am. Dev.
Corp. v. Dayton Beach News-Journal Corp. (First Am.), 196 So. 2d 97, 101 (Fla. 1966).
As that rule enabled long-delayed and multifarious cases over one original false statement,
courts in the twentieth century developed the single-publication rule, which began as the
rule that all causes of action for widely circulated libel must be litigated in one trial, and that
each [publication] need not be separately pleaded and proved. Daytona, 181 So. 2d at 567
n.1.
While Florida courts extended the single publication rule to apply statutes of
limitation and venue restrictions, they refused certain piecemeal pruning of the crooked,
wrenched and distorted tree of defamation as a matter of common law, opting instead to
invite a new substantive rule . . . by the process of legislation. Id. at 567 n.1, 568; see also
First Am., 196 So. 2d at 102. The legislature quickly obliged and, in 1967, enacted the
following statutory provisions:
No person shall have more than one choice of venue for
damages for libel or slander, invasion of privacy, or any other
tort founded upon any single publication, exhibition or
utterance. . . . Recovery in any action shall include all

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damages for any such tort suffered by the plaintiff in all

jurisdictions.
The cause of action for damages founded upon a single
publication or exhibition or utterance [referenced above] shall
be deemed to have accrued at the time of the first publication
or exhibition or utterance thereof in this state.
FLA. STAT. 770.05, .07 (emphasis added).
Under this statutory single-publication rule, an originally published defamatory
statement does not spawn a separate claim against a defendant each time (of however many)
it is uttered or reaches a new person; the original statement is actionable, if at all, only once.
The original statements subsequent reach is an issue pertinent merely to damages, not to
accrual of a claim.

Indeed, contrary to prior common law, an action in Florida for

defamation accrues, if at all, upon an originally published statements first publication or

utterance, regardless both of whether the claimant is in a position to know of it and of
whether it has yet to cause any damage. See, e.g., Wagner, Nugent, Johnson, Roth, Romano,
Erikson & Kupfer, P.A. v. Flanagan, 629 So. 2d 113, 115 (Fla. 1993); compare also id.
(Kogan J., concurring) with id. at 115-16 (Shaw J., dissenting).
The Florida Supreme Court has found Chapter 770 to be plain and unambiguous,
concluding that it applies to all litigants: We hold [chapter 770] applicable to all civil
litigants, both public and private, in defamation actions. Id. at 115 (applying rule to private
letter sent to insurers lawyer). Moreover, whether the claimant is aware of the publication
or utterance at the time it is first published is irrelevant; the claim accrues on initial

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publication rather than on discovery. See, e.g., Flanagan, 629 So. 2d at 114-15 (construing
FLA. STAT. 95.031 and 770.07).3
Here, Defendants claims for defamation in Counts I and II of his Counterclaim are
predicated on the alleged False Statements which Defendant defines as Ms. Kinsmans
January 10, 2013 statement to Tallahassee Police that Defendant raped her and which
include her later republications of that statement to university officials and others. See (Doc.
7, Countercl. at 51-53, 44(a)-(j)). Although Defendant takes great pains to emphasize Ms.
Kinsmans subsequent republication of these statements, the Florida legislature long ago
decided that the sole focus for purposes of the single publication rule and statute of
limitations is the date of original publication. As Defendant acknowledges, Ms. Kinsman
first fully published that she was raped by Defendant on January 10, 2013, when she
informed Tallahassee Police Department Investigator Scott Angulo that Defendant had raped
her. (Id. at 51, 44(a)). Whether Ms. Kinsman repeated this statement to others in an effort
to hold Defendant accountable for his actions is irrelevant under the statute of limitations,
because any claim for defamation accrued at the time of original publication. Accordingly,
Counts I and II for defamation per se and defamation accrued on January 10, 2013 more
than two years before Defendant elected to file his Counterclaim on May 8, 2015 and are
therefore barred by Floridas single publication rule and statute of limitations. FLA. STAT.
95.031, .11(4)(g) and 770.05, .07; Flanagan, 629 So. 2d at 114-15; see also, e.g., Hendricks
v. Rambosk, No. 2:10-cv-526, 2011 WL 1429646, at *7-*8 (M.D. Fla. Apr. 14, 2011)

Even if the discovery rule applied (it does not), Defendant has conceded that he was aware of the statements
no later than January 22, 2013, which was when he met with the FSU Athletic department to discuss the
accusations. See, e.g., (Doc. 7, Answer at 21, 12).

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(finding claim for defamation filed more than two years after original publication date was
time-barred as a matter of Florida law).
2.

Count III of Defendants Counterclaim Improperly Attempts to

Recast His Defamation Claims Into A Separate Tort and Fails As
A Matter of Law

In addition to claims for defamation per se and defamation, in Count III, Defendant
purports to assert a claim for tortious interference with prospective business advantage that is
expressly premised upon the same allegedly False Statements used to support Counts I
and II. See (Doc. 7, Countercl. at 59-61, 77-81). In apparent recognition of the imminent
and fatal problems with the statute of limitations on his defamation claims, Defendant has
attempted to recast those time-barred claims into a tort with a longer statute of limitations.
Such an end-run around the limitations period is not permitted and, like his defamation
claims, Count III fails as a matter of law to state a claim upon which relief can be granted.
As a corollary to the requirement that a claim for defamation accrue upon the original
publication of the defamatory statement, a feature of the single publication rule (if not also
the common law), is that defamation however characterized and labeled cannot be split into
other causes of action and must be brought as a single cause of action. See, e.g., Fridovich v.
Fridovich, 598 So. 2d 65, 69-70 (Fla. 1992) (holding defamation cannot be re-characterized
as intentional infliction of emotional distress); MYD Marine Distribs., Inc. v. Donovan
Marine, Inc., No. 07-cv-61624, 2009 WL 701003, at *2-*4 (S.D. Fla. 2009) (finding
tortious interference with business relationships, negligent supervision and negligent
retention claims subsumed within defamation); Callaway Land & Cattle Co., Inc. v. Banyon
Lakes C. Corp., 831 So. 2d 204, 208-09 (Fla. 4th DCA 2002) (affirming dismissal of

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counterclaim for, inter alia, tortious interference based on time-barred defamatory statement
under single publication/single action rule, and observing that a contrary result would allow a
party to circumvent the statute of limitations by simply re-describing [his cause of action] to
fit a different category of intentional wrong); Oviada v. Bloom, 756 So. 2d 137, 140-41 (Fla.
3d DCA 2000) (finding claims of conspiracy to commit false-light invasion of privacy,
tortious interference, and conspiracy to commit tortious interference subsumed within
defamation); cf. Orlando Sports Stadium, Inc. v. Sentinel Star Co., 316 So. 2d 607, 609 (Fla.
5th DCA 1975) (rejecting contention that claims for intentional interference and libel based
on same set of news articles were two separate causes of action and observing that, in the
context of defamation, a single wrongful act gives rise to a single cause of action. . . .)
(quotation omitted).
The single publication/single action rule therefore not only prohibits multiple claims
for defamation, but also restricts a party from bringing multiple causes of action premised on
the same defamatory statements. Id.; see also, e.g., Kamau v. Slate, No. 4:11-cv-522, 2012
WL 5390001, at *7 (N.D. Fla. Oct. 1, 2012) (citing Callaway, 831 So.2d at 208), report and
recommendation adopted, 2012 WL 5389836, at *1 (N.D. Fla. Nov. 5, 2012). It prevents a
party from evading a defective defamation claim such as, for example, by attempting to
circumvent Floridas short, two-year statute of limitations by re-describing a cause of action
to fit a different category of intentional wrong. Kamau, 2012 WL 5390001, at *7; see also,
e.g., Klayman v. Judicial Watch, Inc., 22 F. Supp. 3d 1240, 1256 (S.D. Fla. 2014) (Pursuant
to [this] rule, courts dismiss concurrent counts for related torts based on the same publication
and underlying facts as the failed defamation count.).

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Thus, [w]hen claims are based on analogous underlying facts and the causes of
action are intended to compensate for the same alleged harm, a [party] may not proceed on
multiple counts for what is essentially the same defamatory publication or event. Klayman,
22 F. Supp. 3d at 1256 (citations omitted). Accordingly, claims for tortious interference are
precluded when, as here, they do not set forth a claim based on facts independent of the
allegedly defamatory statement. See, e.g., Tobinick v. Novella, No. 9:14-cv-80781, 2015 WL
328236, at *11 (S.D. Fla. Jan. 23, 2015) (dismissing claim for tortious interference pursuant
to single publication/single action rule); Kamau, 2012 WL 5390001, at *9 (same); MYD
Marine Distribs., Inc., 2009 WL 701003, at *2-*4 (S.D. Fla. 2009) (granting judgment as a
matter of law on claim for tortious interference pursuant to single publication/single action
rule and statute of limitations); Oviada, 756 So. 2d at 140-41 (affirming summary judgment
on claims for, inter alia, intentional interference with advantageous business relationship and
conspiracy to interfere with an advantageous business relationship pursuant to single
publication/single action rule and statute of limitations).
As in the preceding cases, Defendants claim in Count III for tortious interference
with prospective business advantage is duplicative of and improperly attempts to recast his
time-barred defamation claims. The grounds for his claim are that Ms. Kinsmans allegedly
False Statements interfered with his prospective business relationships and caused him
reputational and professional injury. See, e.g., (Doc. 7, Countercl. at 60, 79-80). These
alleged injuries are merely items of damage arising from the same wrong as alleged in his
defamation claims, namely the publication of the allegedly False Statements. See, e.g.,

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Callaway, 831 So. 2d at 208. Inasmuch as Defendants time-barred defamation claims

cannot stand, as a matter of law, so too fails his tortious interference claim in Count III.
3.

Ms. Kinsman Is Immune From Suit Because Her Allegedly

Defamatory Statements Are Privileged and Constitutionally
Protected Speech

As noted above, all three counts in Defendants Counterclaim are predicated on harm
Defendant allegedly suffered as a result of Ms. Kinsmans allegedly False Statements,
which consist of her reports of rape that she made to, among others, Tallahassee Police
Investigator Angulo on January 10, 2013, State Attorney Investigator Newlin on November
21, 2013, and various university personnel in connection with . . . FSU Code of Conduct
proceedings. See generally (Doc. 7, Countercl. at 51-53, 44). Thus, Defendant claims
Ms. Kinsman defamed him in the course of reporting a crime to law enforcement and
reporting violations of FSUs Code of Conduct to university personnel. Defendant also
alleges that the same reports were later repeated by Ms. Kinsman, either directly or by or
through her legal counsel, in various other contexts. (Id. at 52-53, 44(d), (i), (j)). In
addition to being barred by Floridas single publication/single action rule and statute of
limitations, these allegedly False Statements are both privileged under Florida defamation
law and constitute constitutionally protected speech under the Petition Clause of the First
Amendment to the U.S. Constitution. As a matter of law, Plaintiff is immune from suit based
on these privileged and protected statements and Defendants claims must therefore be
dismissed.
a.

Immunity for Privileged Statements

To be defamatory under Florida law, a false statement must be made in the absence of

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a privilege to report the published matter to the third-party recipient(s). See, e.g., Nodar v.
Galbreath, 462 So. 2d 803, 808-09 (Fla. 1984); cf. Thomas v. Jacksonville Television, Inc.,
699 So. 2d 800, 803-04 (Fla. 1st DCA 1997). In Florida, reports to law enforcement,
government officials and the government are conditionally privileged by law. See, e.g.,
Fridovich, 598 So. 2d at 69-70 (concluding defamatory reports made to police and states
attorney prior to the institution of criminal charges are presumptively qualifiedly privileged);
Nodar, 462 So. 2d at 809-12 (finding, as a matter of law, that comments made to school
board officials during public meeting were conditionally privileged, and reversing and
remanding for entry of a directed verdict notwithstanding jurys verdict).
Conditional privilege raises a presumption of good faith that requires proof of
express malice that is, that the statement was primarily intended to harm the claimant,
rather than to further personal or social interests. Nodar, 462 So. 2d at 806, 810-11. It is
insufficient merely to allege that the statement was factually untrue or was made in strong or
intemperate words; rather, a claimant must demonstrate that the speaker used his position
to gratify his malevolence. Id. at 811 (citation omitted). Where the statement itself does
not reflect express malevolence, it is the claimants burden to demonstrate from the
circumstances that the primary motive for the statement was an intent to injure the claimant.
See, e.g., Thomas v. Tampa Bay Downs, Inc., 761 So. 2d 401, 405 (Fla. 2d DCA 2000).
However, whether an allegedly defamatory statement remains privileged is a question of law
for the court when the circumstances surrounding the statement are undisputed or
unquestionably clear. Id. at 404 (citing Nodar, 462 So. 2d at 810).

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Here, the circumstances surrounding Ms. Kinsmans statements are clear and
Defendants allegations fail to overcome their conditionally privileged character as a matter
of Florida law. See, e.g., Fridovich, 598 So. 2d at 69-70; Nodar, 462 So. 2d at 809-12.
Defendants Counterclaim should therefore be dismissed.
b.

Immunity for Protected Speech Under the Petition Clause of

the First Amendment to U.S. Constitution

Under a long-established line of U.S. Supreme Court cases, when claims are lodged
in response to a partys legitimate use of governmental processes, a court must apply
heightened scrutiny and dismiss them unless they can clear a very high bar. See, e.g., Profl
Real Estate Investors, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993); City
of Columbia v. Omni Outdoor Adver., Inc., 499 U.S. 365, 380-81 (1991). This immunity
from suit known as petition clause or Noerr-Pennington4 immunity derives from the First
Amendments protection of the [r]ight of the people . . . to petition the government for a
4

Noerr-Pennington immunity is named for United Mine Workers of Am. v. Pennington, 381 U.S. 657 (1965),
and E. R.R. Presidents Conference v. Noerr Motor Freight, Inc., 365 U.S. 127 (1961). Petition clause immunity
has its roots in the Noerr-Pennington line of antitrust cases that holds efforts to influence public officials are
protected by the Petition Clause and not a violation of antitrust law, even when the petitioning is for a
disfavored motive (such as eliminating competition). Later decisions make clear that Noerr-Pennington
immunity applies to claims outside the antitrust context. See, e.g., Profl Real Estate Investors, Inc., 508 U.S. at
59 (Whether applying Noerr as an antitrust doctrine or invoking it in other contexts. . . .) (emphasis added);
NAACP v. Claiborne Hardware Co., 458 U.S. 886, 913-14 (1982) (applying Noerr-Pennington immunity to
state law claims against defendant NAACP for boycott); see also, e.g., Cardtoons, L.C. v. Major League
Baseball Players Ass'n, 208 F.3d 885, 889 (10th Cir. 2000) (discussing use of the term Noerr-Pennington
immunity for antitrust cases versus petition clause immunity for all other cases). As summarized by one federal
court:
[W]hile the doctrine arose in connection with antitrust cases, it is
fundamentally based on First Amendment principles. More than one court
has held that the doctrine is a principal [sic] of constitutional law that bars
litigation arising from injuries received as a consequence of First
Amendment petitioning activity, regardless of the underlying causes of
action asserted. . . ..
Computer Assocs. Intl, Inc. v. Am. Fundware, Inc., 831 F. Supp. 1516, 1522 (D. Colo. 1993) (internal
quotations and citations omitted).

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redress of grievances. Claims that attack constitutionally protected petitioning must be

promptly dismissed to achieve the goal of minimizing intrusion on the First Amendment
except in those rare instances when a party can prove the speech comes within the so-called
sham exception. See, e.g., Lori Potter & W. Cory Haller, SLAPP 2.0: Second Generation
of Issues Related to Strategic Lawsuits Against Public Participation, 45 Envtl. L. Rep. News
& Analysis 10136, 10140-41 (2015). Even malicious reports which Ms. Kinsmans clearly
were not provide immunity if intended to influence a governmental or judicial process.
See, e.g., Anchorage Joint Venture v. Anchorage Condo. Assn, 670 P.2d 1249, 1250-51
(Colo. App. 1983); cf. Matossian v. Fahmie, 161 Cal. Rptr. 532, 535-36 (Cal. Ct. App. 1980).
A petitioner is entitled to immunity for protected speech under the Petition Clause
unless the claimant can demonstrate that her petitioning comes within the sham exception.
Profl Real Estate Investors, Inc., 508 U.S. at 60-61. To come within the ambit of the
sham exception, it is the claimants burden to prove that the petitioner used governmental
processes as a weapon and that, regardless of her intent or purpose, her efforts were not
genuinely aimed at procuring favorable governmental action at all. City of Columbia, 499
U.S. at 380; see also, e.g., McGuire Oil Co. v. Mapco, Inc., 958 F.2d 1552, 1558 n.9 (11th
Cir. 1992) (Thus, the burden falls on [the counterclaimant] in this case to allege facts
sufficient to show that NoerrPennington immunity did not attach to plaintiffs actions.).
Here, Ms. Kinsmans reports to law enforcement and university disciplinary officers
resulted in investigations and disciplinary hearings, which should be sufficient in itself to
defeat any contention that they were a sham. See, e.g., Profl Real Estate Investors, Inc., 508
U.S. at 60 n.5 (observing that successful outcomes are by definition reasonable efforts at

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petitioning and are therefore not shams, and further noting that even [e]ven when the law or
the facts appear questionable or unfavorable at the outset, a party may have an entirely
reasonable ground for bringing suit.) (citation omitted). Even if the reports were not fully
investigated and did not result a criminal prosecution, Defendant has not carried and cannot
carry his burden of proving up the sham exception in the circumstances of this case.
Defendant

alleges

that

Plaintiffs

statements

were

generally

malicious,

defamatory and false, and that Plaintiffs primary purpose in making the False
Statements was to indulge ill will, hostility, and an intent to harm Mr. Winston, in order to
entice, coerce, extort, and force him to pay her a substantial amount of money to make her
go away. (Doc. 7, Countercl. at 56, 59). These allegations, even if true, are insufficient to
establish the sham exception as a matter of law. Ms. Kinsmans motives which, in any
event, were in no way malicious are irrelevant because the NoerrPennington immunity
shields . . . a concerted effort to influence public officials regardless of intent or purpose.
City of Columbia, 499 U.S. at 380.

Here, by Defendants own admission, all of

Ms. Kinsmans allegedly False Statements were made in the course of reporting the crime
of rape, the code of conduct violation of sexual assault, and surrounding publicity for the
purpose of instigating law enforcement and code of conduct investigations by government
officials. (Doc. 7, Countercl. at 51-53, 44(a)-(j)). The False Statements are thus ipso
facto entitled to immunity.5

By statute, a number of states have codified or extended the Supreme Courts holdings in the Noerr
Pennington line of cases to reports of crimes to law enforcement. For instance, Californias anti-SLAPP statute
provides: A cause of action against a person arising from any act of that person in furtherance of the persons
right of petition or free speech under the United States or California Constitution in connection with a public
issue shall be subject to a special motion to strike . . . . CAL. CODE CIV. PROC. 425.16(b)(1). California
courts have held that this statute precludes liability for communications made to law enforcement regarding

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Moreover, not only are Ms. Kinsmans statements to law enforcement and university
officials entitled to Petition Clause immunity, associated communications by her and her
counsel, as alleged in Defendants Counterclaim, (Id. at 52, 44 (d), (i), (j)),6 are entitled to
the same degree of protection. See, e.g., Noerr, 365 U.S. at 142-43 (immunizing speeches,
newspaper articles, magazine articles, and publicity campaigns employing even apparently
unethical or deceptive methods when part of an overall effort to influence governmental
action); Claiborne Hardware Co., 458 U.S. at 886 (1982) (immunizing picketing and
economic boycott); Hallco Envtl., Inc. v. Comanche Cnty, 148 F.3d 1190 (10th Cir. 1998)
(immunizing a media campaign against a landfill); Brownsville Golden Age Nursing Home,
Inc. v. Wells, 839 F.2d 155 (3d. Cir. 1988) (immunizing a publicity campaign that included
contacts with the television news show 60 Minutes).
Because Ms. Kinsman was acting to obtain some form of legitimate governmental
action or outcome including, more specifically, Defendants investigation, prosecution, and
disciplinary proceedings her petitioning was not a sham and enjoys immunity. Defendant
has nowhere alleged that Ms. Kinsman was not actually seeking investigation by public
officials when she reported being raped. To the contrary, the gravamen of Defendants
Counterclaim is that Ms. Kinsman wanted him investigated and sanctioned allegations
which thereby preclude Defendant from coming within the sham exception to the

suspected criminal activity. See e.g., Tisdale v. City of Los Angeles, 617 F. Supp. 2d 1003, 1006 (C.D. Cal.
2009); Lefebvre v. Lefebvre, 131 Cal. Rptr. 3d 171, 173 (Cal. Ct. App. 2011); see also, e.g., Annamalai v.
Capital One Fin. Corp., 738 S.E.2d 664, 666 (Ga. Ct. App. 2013) (holding that statements made to police or
investigators pertaining to ongoing investigation are protected speech under Georgias anti-SLAPP statute).
6
Defendant here alleges that Ms. Kinsman, in a documentary film interview, and her counsel, to media outlets,
stated that she was raped by Defendant.

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constitutional immunity provided by the Petition Clause. Ms. Kinsman is therefore immune
from suit and Defendants entire Counterclaim must be dismissed.7
B.

The Court Should Strike Portions of Defendants Answer & Affirmative

Defenses

Defendants 17-page Preliminary Statement should be stricken as a transparent

attempt to use court pleadings as a vehicle for immaterial and improper public attacks on
Ms. Kinsman. Moreover, Defendants sixth, seventh, eighth and ninth affirmative defenses
should each be stricken because they are insufficient as a matter of law. As previously noted,
a district court may strike from a pleading any redundant, immaterial, impertinent or
scandalous matter. FED. R. CIV. P. 12(f). While a finding of just one of these four attributes
will justify granting a request to strike, many if not most of these are present here. In
fact, it is hard to imagine a pleading better suited for the application of Rule 12(f).
1.

Defendants Preliminary Statement

The extraneous 17-page Preliminary Statement that precedes Defendants Answer

disparages Ms. Kinsmans moral character, repeatedly calling her a liar. (Doc. 7 at 1-17).
In fact, the Preliminary Statement either calls Ms. Kinsman a liar or states that she is
lying at least 19 times. The Preliminary Statement further accuses Ms. Kinsman of being

In addition to immunity and being barred as a matter of Floridas single publication rule and statute of
limitations, Defendants Counterclaim is also an impermissible shotgun pleading of the type which has been
roundly condemned by the Eleventh Circuit and this Court. It is well established that such shotgun pleadings
i.e., pleadings containing multiple counts that incorporate by reference all of the prior allegations pled in
support of each of the prior counts fail to comply with FED. R. CIV. P. 8(a)(2) and should be dismissed. See,
e.g., PVC Windoors, Inc. v. Babbitbay Beach Constr., N.V., 598 F.3d 802, 806 n.4 (11th Cir. 2010) (collecting
cases and noting that the Court has condemned such pleadings in a series of cases stretching back at least as far
as [1991]) (internal citation omitted); Strategic Income Fund, L.L.C. v. Spear, Leeds & Kellogg Corp., 305
F.3d 1293, 1295 n.9 & 1295-96 (11th Cir. 2002) (collecting cases and noting with great dismay that shotgun
pleadings impede the due administration of justice and, in a very real sense, amount to obstruction of justice)
(internal citations and quotation omitted); see also, e.g., Berger v. J. Slagter & Son Constr. Co., No. 6:10-cv191, 2010 WL 1644937, at *2 (M.D. Fla. Apr. 21, 2010).

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Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 19 of 23 PageID 575

motivated by the most insidious objectives greed and engaged in a vile scheme. (Id. at
2, 14). Finally, the Preliminary Statement repeatedly accuses Ms. Kinsman of the crimes
of obstructing and impeding criminal investigations. Immediately following this prolix and
repetitive gratuitous attack, Defendant begins his actual Answer, Affirmative Defenses and
Counterclaim, repeating again many of the same inflammatory and immaterial remarks.
Defendants Preliminary Statement is a part of neither his Answer nor his
Counterclaim and is not incorporated by reference in either. It is nothing more than page
upon page of unnumbered paragraphs that personally attack Ms. Kinsman, her counsel and
her family. It falls somewhere between an improperly hostile closing argument at trial and a
posting on a Florida State football blog. What it is clearly not is either a material or
appropriate statement introducing Defendants Answer and Counterclaims.

Such a

scandalous, redundant, and gratuitous Preliminary Statement should be stricken under

Rule 12(f).
The entire Preliminary Statement is immaterial and impertinent as those terms are
employed in federal court.8 It is neither a part of the Answer nor the Counterclaim, has no
essential or important relationship to the claim for relief, and consists almost wholly of
statements that do not pertain, and are not necessary, to the issues in question. Moreover, the
Preliminary Statement is scandalous in the extreme.
A scandalous matter is one which reflects cruelly upon a party's moral character,
uses repulsive language, or detracts from the dignity of the court. Fodor, 2014 WL 50783
8

As previously noted, an immaterial matter is that which has no essential or important relationship to the claim
for relief . . . or a statement of unnecessary particulars in connection with and descriptive of that which is
material. See, e.g., Fodor, 2014 WL 50783 at *5. An impertinent matter is one that consists of statements that
do not pertain, and are not necessary, to the issues in question. Id.

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Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 20 of 23 PageID 576

at *5. The 19 statements that Ms. Kinsman is a liar and vindictive outrage regarding
insidious motives and vile behavior, as referenced above, are clearly designed for some
purpose other than to respond to Ms. Kinsmans claims or give notice of Defendants
Counterclaim. In violation of Rule 10(b), Defendant does not even make a serious attempt to
legitimize the Preliminary Statement as the paragraphs are not even numbered (let alone
incorporated into either the Answer or Counterclaim). The Preliminary Statement should
accordingly be stricken.
2.

Defendants Insufficient Affirmative Defenses

Defendants Answer purports to raise numerous affirmative defenses, none of which

are properly pled and the most insufficient of which should be struck on their face.
Specifically:
Plaintiffs own conduct (Sixth Defense);
Failure to exhaust administrative remedies (Seventh Defense);
A general reservation of all defenses, whether affirmative or otherwise
(Eighth Defense); and
A further reservation of all claims, counterclaims, third-party claims, or
other claims (Ninth Defense).
(Doc. 7, Answer at 40-41).
An affirmative defense raises matters extraneous to the plaintiffs prima facie case;
as such, they are derived from the common law plea of confession and avoidance. In re
Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1998) (citation omitted).
Affirmative defenses are subject to the general pleading requirements of Rule 8(a) and
[s]hould be stricken if they fail to recite more than bare-bones conclusory allegations. Am.

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Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 21 of 23 PageID 577

Home Assur. Co. v. Weaver Aggregate Transp., Inc., No. 5:10-cv-329, 2011 WL 4346576, at
*3 (M.D. Fla. Sept. 16, 2011) (citations and quotations omitted); see also, e.g., Shechter v.
Comptroller of NY, 79 F. 3d 265, 270 (2nd Cir. 1996) (Affirmative defenses which amount
to nothing more than mere conclusions of law and are not warranted by any asserted facts
have no efficacy.) (quotation omitted); Yash Raj Films (USA) Inc. v. Atl. Video, No. 03-cv7069, 2004 WL 1200184, at *2 (N.D. Ill. 2004) (Simply naming a legal theory without
indicating how it is connected to the case at hand is not sufficient to withstand a motion to
strike).
On their face, Defendants sixth, seventh, eighth and ninth affirmative defenses are
invalid as a matter of law and the Court should not allow them to stand.
V.

CONCLUSION
Based on the foregoing, the Court should enter an order dismissing Defendants

Counterclaim with prejudice and striking portions of his Answer & Affirmative Defenses.

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Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 22 of 23 PageID 578

LOCAL RULE 3.01(g) CERTIFICATION

Pursuant to Local Rule 3.01(g), on May 29, 2015, among other dates, Counsel for
Ms. Kinsman and Counsel for Defendant conferred in good faith regarding Ms. Kinsmans
request that the Court strike portions of Defendants Answer & Affirmative Defenses, but the
parties were unable to reach agreement. Defendant opposes Ms. Kinsmans request to strike.
CERTIFICATE OF SERVICE
I HEREBY CERTIFY that, on June 1, 2015, I electronically filed the foregoing with
the Clerk of the Court by using the CM/ECF system, which will send a notice of electronic
filing to all counsel of record.
Respectfully submitted,

/s/ David B. King

David B. King
Florida Bar No.: 0093426
Thomas A. Zehnder
Florida Bar No.: 0063274
Taylor F. Ford
Florida Bar No.: 0041008
KING, BLACKWELL, ZEHNDER & WERMUTH, P.A.
P.O. Box 1631
Orlando, FL 32802-1631
Telephone: (407) 422-2472
Facsimile: (407) 648-0161
Email: [email protected]
Email: [email protected]
Email: [email protected]
Baine Kerr (Colorado Bar No.: 9797)
John Clune (Colorado Bar No.: 27684)
Lauren E. Groth (Colorado Bar No.: 47413)
HUTCHINSON BLACK AND COOK, LLC
921 Walnut Street, Suite 200
Boulder, CO 80302

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Case 6:15-cv-00696-ACC-GJK Document 28 Filed 06/01/15 Page 23 of 23 PageID 579

Telephone: (303) 442-6514

Facsimile: (303) 442-6593
Email: [email protected]
Email: [email protected]
Email: [email protected]
Counsel for Plaintiff Erica Kinsman

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