The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
WESTERN DIVISION
)
Debra Nevins,
)
Plaintiff, )
)
vs. 7:23-cv-01037-LSC
)
DCH Health Systems [The )
DCH Health Care Authority], et )
al., )
)
Defendants. )
)
MEMORANDUM OF OPINION AND ORDER
Before the Court is Defendant DCH Health Systems’s (hereinafter “DCH”)
Motion to Dismiss Count VI: Defamation/Slander Per Se of Plaintiff’s Amended
Complaint. (Doc. 13.) Under Rule 8, a pleading must include “a short and plain
statement of the claim showing that the pleader is entitled to relief.” Fed. R. Civ. P.
8(a)(2). In evaluating the sufficiency of a complaint, this Court first “identif[ies]
pleadings that, because they are no more than conclusions, are not entitled to the
assumption of truth.” Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009). This Court then
“assume[s] the[] veracity” of the complaint’s “well-pleaded factual allegations” and
“determine[s] whether they plausibly give rise to an entitlement to relief.” Id.
To state a claim for defamation, a plaintiff must allege “that the defendant was
at least negligent, in publishing a false and defamatory statement to another
concerning the plaintiff, which is either actionable without having to prove special
harm (actionable per se) or actionable upon allegations and proof of special harm
(actionable per quod).” Nelson v. Lapeyrouse Grain Corp., 534 So.2d 1085, 1091
(Ala. 1988) (citations omitted). A statement is defamatory when it “tends so to harm
the reputation of another as to lower him in the estimation of the community or to
deter third persons from associating or dealing with him.” Harris v. Sch. Ann. Publ’g
Co., 466 So.2d 963, 964 (Ala. 1985) (quoting Restatement (Second) of Torts § 559
(Am. Law Inst. 1976)). In the Amended Complaint, Plaintiff alleges:
Plaintiff was defamed or otherwise slandered when, Defendants and their
agents, falsely, wrongfully, negligently, recklessly, wantonly and unskillfully
communicated to third persons employed by Defendant, that Plaintiff, had
failed to provide the appropriate the appropriate documentation to support her
exemption request for the flu vaccine.
DCH and its agents, Rebecca Boutwell, Courtney Wingo and Felicia Ellison
negligently communicated that the Plaintiff’s failure to comply with the flu
vaccine requirements was the genesis for her termination.
(Doc. 11 ¶¶ 264, 265).
In support of its Motion, DCH argues that Count VI of Plaintiff’s Amended
Complaint is due to be dismissed against it because 1) Plaintiff has failed to state a
claim for defamation and 2) Plaintiff’s claim is barred by the statute of limitations.
DCH specifically contends that Plaintiff has not stated a claim because Plaintiff has
failed to allege any “false statement”; and to the extent it does allege a false
statement, Plaintiff has not identified who specifically made the false statement, to
what third party this statement was made, or how it was “negligently
communicated.” (Ud. at 5.)
It is apparent to this Court that Plaintiff has not stated a claim for slander per
se because “to constitute slander actionable per se, there must be an imputation of
an indictable offense involving infamy or moral turpitude,” and the Amended
Complaint (Doc. 11) does not allege a statement imputing an indictable offense
involving infamy or moral turpitude. Liberty Nat’l Life Ins. Co. v. Daugherty, 840
So.2d 152, 157 (Ala. 2002) (quoting Ceravolo v. Brown, 364 So.2d 1155, 1157 (Ala.
1978)). However, the Court believes that Plaintiff's claim for slander per quod
should proceed at this stage and that the question of whether this cause of action is
barred by the relevant statute of limitations is better suited for summary judgment or
trial. Plaintiff does allege a false statement negligently made by DCH’s agents to
third parties. And, taking the Amended Complaint as a whole, Plaintiff does allege
harm to her reputation, that she has not been able to regain employment, and special
damages. (Doc. 11 J] 84, 104, 124, 179, 259.) Accordingly, DCH’s Motion (Doc.
13) is DENIED. The parties are directed to proceed as scheduled.
DONE and ORDERED on January 26, 2024.
United States Distt Judge
215755