United States District Court, W.D. Virginia, Lynchburg Division
K. MOON, UNITED STATES DISTRICT JUDGE
suit concerns defamation and Title IX claims arising out of
an alleged sexual assault. Plaintiff Kyle Carrington
(“Carrington”) alleges that Defendant Sarah
Browning (“Browning”) defamed him by falsely
reporting that he sexually assaulted her. He separately
alleges that Liberty University and Len Stevens defamed him
and violated Title IX through their handling of those
allegations. This opinion deals only with the claims made
against Browning. Under Rule 12(b)(6), Browning asked the
Court to dismiss the two claims against her, for defamation
and defamation per se, as barred by the statute of
limitations. Browning was correct, and so the Court granted
her motion in its previous order. This opinion explains that
ruling on a 12(b)(6) motion, a court must accept as true all
of the factual allegations contained in the complaint and
draw all reasonable inferences in favor of the
plaintiff.” Kensington Volunteer Fire Dep't,
Inc. v. Montgomery Cty., Md., 684 F.3d 462, 467 (4th
Cir. 2012). “While a complaint attacked by a Rule
12(b)(6) motion to dismiss does not need detailed factual
allegations, a plaintiff's obligation to provide the
grounds of his entitlement to relief requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)
(internal citations and quotation marks omitted). Stated
differently, in order to survive a motion to dismiss,
“a complaint must contain sufficient factual matter,
accepted as true, to state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal citation
Facts as Alleged
Carrington was a student and football player at Liberty
University. (Compl. ¶ 1). He met Browning, a fellow
Liberty student, at a large house party in August 2015.
(Id. ¶ 17). Purportedly, Browning asked
Carrington and Cameron Jackson to join her outside.
(Id. ¶ 18). Once outside, Browning allegedly
offered and performed oral sex on Carrington and Jackson.
(Id. ¶¶ 20-21). The trio was interrupted
by approaching party-goers and returned to the party.
(Id. ¶¶ 23-24). The Lynchburg Police
Department later disbanded the party due to a noise
complaint. (Id. ¶¶ 27, 29). Browning
allegedly did not appear to be under the influence of any
drugs or alcohol, and she did not report the sexual encounter
to the Police. (Id. ¶¶ 26, 28, 33).
later, Browning was “administratively withdrawn”
(i.e. expelled) from Liberty for violations of the
school's honor code. (Compl. ¶ 59). Browning began
to speak negatively about Liberty, telling her friends that
she could “take down” the football team.
(Id. ¶ 62). On July 13, 2016, Browning
contacted Liberty and reported that the 2015 sexual encounter
with Carrington was non-consensual. (Id.
¶¶ 63-65). She further alleged that she was raped
while under the influence of alcohol or some other drug that
prevented her consent. (Id. ¶¶ 66-67).
Liberty immediately began an investigation into
Browning's claims. (Id. ¶¶ 76-82).
September 8, 2016, this investigation culminated in a hearing
before the Conduct Review Committee. (Compl. ¶ 83). The
next day that committee notified Carrington that he was in
violation of the Liberty Sexual Harassment, Discrimination,
and Assault Policy, and that he would be expelled.
(Id. ¶¶ 84-89, 95). Carrington appealed
the decision. (Id. ¶ 96). On September 12,
2016, while his appeal was pending, Liberty issued a press
release that announced Carrington had been found in violation
of Liberty's Honor Code and sexual assault policy.
(Id. ¶ 103; dkt. 1-2 at ECF 39). The press
release specified that an appeal process and concurrent
police investigation were ongoing, and so Liberty would not
provide further details about the incident. (Dkt. 1-2 at ECF
39). The local press picked up the story. (Compl. ¶
appeal hearing occurred on October 3, 2016. (Compl. ¶
125). Plaintiff was assisted by counsel at the hearing.
(Id. ¶ 129). The finding of sexual assault was
ultimately upheld, and Plaintiff's expulsion sustained.
(Id. ¶¶ 134, 182). On September 11, 2017,
Carrington filed this suit in the Circuit Court for the City
of Lynchburg, Virginia, (dkt. 1-1 at ECF 50), and the case
was removed to federal court on October 6, 2017. (Dkt. 1).
these facts are most relevant to the current inquiry. First,
Carrington alleges that Browning's defamatory verbal and
written statements were made on July 13, 2016. (Compl.
¶¶ 304-308). And second, Carrington filed this suit
on September 11, 2017, over one year later. (Dkt. 1-1).
Virginia, whose law applies here, has a one-year statute of
limitations for defamation claims. Va. Code §
8.01-247.1. Despite his protestations, Carrington's claim
against Browning accrued when Browning made the allegedly
defamatory statements on July 13, 2016. Carrington filed his
suit against Browning too late, and so the Court granted the
motion to dismiss in its previously issued order.
two claims against Browning, for defamation and defamation
per se, rise and fall together. Va. Code §
8.01-247.1 provides the statute of limitations for both
claims: “Every action for injury resulting from libel,
slander, insulting words, or defamation shall be brought
within one year after the cause of action accrues.” The
cause of action accrues “on the date that the
defamatory acts occurred.” Askew v. Collins,
283 Va. 482, 487 (Va. 2012).
cause of action here began accruing on July 13, 2016 because
Carrington alleges that Browning's defamatory act
(i.e. telling Liberty that Carrington raped her)
occurred on that date. (Compl. ¶¶ 304-07). See
Katz v. Odin, Feldman & Pittleman, P.C., 332
F.Supp.2d 909, 914 (E.D. Va. 2004) (“This is so because
in Virginia, a tortious cause of action arises on the date
the injury is sustained, or, in the case of a defamation
cause of action, on the date of publication.”);
Thalhimer Bros. v. Shaw, 156 Va. 863, 871 (Va. 1931)
(“Publication sufficient to sustain common-law
defamation is uttering the slanderous words to some third
person so as to be heard and understood by such
person.”). To be sure, Liberty's subsequent
hearings allegedly led to further injury to Carrington. But
while “subsequent distribution of a defamatory
statement may continue to increase plaintiff's
compensable damages, it does not create independent actions
or start the statute of limitations running anew.”
Katz, 332 F.Supp.2d at 918. Because Browning filed her
report on July 13, 2016, and Carrington did not file suit
until September 11, 2017, Carrington's claims against
Browning are time-barred by the one-year statute of
asks for leave to amend his complaint. (Dkt. 11 at 6-7). It
is appropriate for a district court to deny a motion to amend
when “the amendment would have been futile.”
Drager v. PLIVA USA, Inc.,741 F.3d 470, 474 (4th
Cir. 2014). Carrington's request is denied because
amendment would be futile. The only allegations about
Browning are in July 2016. To the extent Carrington wants to
add later facts about Browning, these new allegations would
not “relate back” to the complaint because a new
defamatory publication constitutes a separate claim. See
English Boiler & Tube, Inc. v. W.C. Rouse & Son,
Inc.,172 F.3d 862 (Table), 1999 WL 89125, *3 (4th Cir.
Feb. 23, 1999) (citing Fed.R.Civ.P. 15(c)); Katz,
332 F.Supp.2d at 917-18. Furthermore, Carrington requests for
leave to amend in his brief in response to the motion to
dismiss-not in a motion to amend or a proposed amended
complaint. “Regardless of the merits of the desired