United States District Court, E.D. Virginia, Richmond Division
MEMORANDUM OPINION (GRANTING MOTION TO
E. Hudson United States District Judge
Sade Garnett ("Plaintiff) brings this suit against her
former employer, Remedi SeniorCare of Virginia, LLC
("Defendant"). According to Plaintiff, on or about
January 15, 2015, one of her coworkers, Aaron Try, made two
defamatory statements about her: (1) "Sade was having
surgery on her vagina because she got a [sexually transmitted
disease ("STD")] cause that's the only reason a
female gets surgery on her vagina;" and (2) "Sade
was having a biopsy of her vagina." (Am. Compl.
¶¶ 7, 9-10, 21, ECF No. 12.)
alleges that Try's employment duties include
"communicating with others at work." (Id.
at 23.) She therefore contends that Try's statements were
made "within the scope and course of his
employment." (Id. ¶ 21.) Plaintiff has
sued Defendant for defamation.
matter comes before the Court on Defendant's Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6).
(ECF No. 14.) Its central argument is that Try's
statement is not defamatory as a matter of law. The Court agrees
and will grant Defendant's Motion.
motion to dismiss under Rule 12(b)(6) tests the sufficiency
of a complaint; importantly, it does not resolve contests
surrounding the facts, the merits of a claim, or the
applicability of defenses." Republican Party of N.C.
v. Martin, 980 F.2d 943, 952 (4th Cir. 1992) (citation
omitted). The Federal Rules of Civil Procedure
"require only 'a short and plain statement of the
claim showing that the pleader is entitled to relief, '
in order to 'give the defendant fair notice of what the
... claim is and the grounds upon which it rests.'"
BellAtl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)).
A complaint need not assert "detailed factual
allegations, " but must contain "more than labels
and conclusions" or a "formulaic recitation of the
elements of a cause of action." Twombly, 550
U.S. at 555 (citations omitted). Thus, the "[f]actual
allegations must be enough to raise a right to relief above
the speculative level, " to one that is "plausible
on its face, " rather than merely
"conceivable." Id. at 555, 570. In
considering such a motion, a plaintiffs well-pleaded
allegations are taken as true and the complaint is viewed in
the light most favorable to the plaintiff. T.G.
Slater, 385 F.3d at 841 (citation omitted). Legal
conclusions enjoy no such deference. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009).
state a claim for defamation under Virginia law, a plaintiff
must establish three elements: "(1) publication of (2)
an actionable statement with (3) the requisite intent."
Schaecher v. Bouffault, 772 S.E.2d 589, 594 (Va.
2015) (quoting Tharpe v. Saunders, 131 S.E.2d 890,
892 (Va. 2013)). To be actionable, a statement must be both
false and defamatory-it must tend 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." Id. (citations omitted).
of action for defamation, while arising under state common
law, are subject to free speech protections of the First
Amendment to the United States Constitution. Milkovich v.
Lorain Journal Co., 497 U.S. 1, 14-17 (1990);
Potomac Valve & Fitting Inc. v. Crawford Fitting
Co., 829 F.2d 1280, 1285 (4th Cir. 1987);
Schaecher, 772 S.E.2d at 599-600. As such,
"statements that cannot 'reasonably be interpreted
as stating actual facts' about an individual" are
not subject to defamation liability. Milkovich, 497
U.S. at 20 (quoting Hustler Magazine, Inc. v.
Falwell, 485 U.S. 46, 50 (1988)).
determining whether a statement is a non-actionable
expression of opinion, the Court "must consider the
statement as a whole." Hyland v. Raytheon Tech.
Services Co., 670 S.E.2d 746, 751 (Va. 2009). It may not
"isolate one portion of the statement at issue from
another portion of the statement." Id. Thus,
even a statement which could be verified as true or false
"may still be protected if it can best be understood
from its language and context to represent the personal view
of the author or speaker who made it." Potomac
Valve, 829 F.2d at 1288.
alleges that Try made two defamatory statements: (1)
"Sade was having surgery on her vagina because she got a
STD cause that's the only reason a female gets surgery on
her vagina;" and (2) "Sade was having a biopsy of
her vagina." (Am. Compl. ¶¶9-10.)
initial matter, Plaintiff concedes that the false statements
about having surgery and a biopsy are not actionable because
they are not defamatory. (Pl's Br. Opp'n Mot. Dismiss
8, ECF No. 17.) Therefore, the Court need only determine
whether the portion of the statement regarding Plaintiff
having an STD is actionable.
is clear that "even [a] statement capable of being
proved false would be understood as author's opinion
where it was a conclusory punch line following
fully-disclosed facts." Chapin v. Knight-Ridder,
Inc., 993 F.2d 1087, 1093 (4th Cir. 1993) (citing
Potomac Valve, 829 F.2d at 1289-90). In Potomac
Valve, the Fourth Circuit affirmed the district
court's decision that an alleged statement was not
defamatory. The statement included an accusation that the
plaintiff had designed a test of its products in order to
deceive its customers. Potomac Valve, 829 F.2d at
1285. While the court found that the statement was
verifiable-either the test was or was not designed to deceive
the customers-it was nonetheless a non-actionable opinion.
When considered in the context of the entire article in which
it was published, the "statement is merely [the
defendant's] conclusion from the seven specific points he
outlines in the text of the article." Id. at
the same analysis in this case, the Court concludes that
Try's remark that "she got a STD" is not
actionable. When that portion of the statement is considered
in context, it is clearly only Try's opinion based on his
faulty reasoning that "the only reason a female gets
surgery on her vagina" is because she has an STD.
"The premise is explicit, and the [listener] is by no
means required to share in [Try's] conclusion."
Potomac Valve, 829 F.2d at 1290.
alone, the statement that Plaintiff has an STD may very well
be defamatory. However, the Court need not reach that issue
because when considered in context, no reasonable person
would take Try's statement to be anything more than pure
on the foregoing, Defendant's Motion to Dismiss (ECF No.
14) will be granted. This action ...