In Federal Court, Unnecessary to Plead Exact Words

Most Virginia litigators probably associate the Supreme Court’s decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal with an increased pleading burden in federal court, requiring that lawsuits allege “plausible” claims rather than just remote possibilities. In the limited context of pleading defamation claims, however, the plausibility standard applicable in federal court appears to be making it easier to survive preliminary dismissal motions in federal court than in Virginia state court.

Earlier this year, I wrote about Potter v. Associated Press, in which a federal court allowed a defamation claim to go forward despite the absence of facts sufficient to show defamatory meaning, reasoning that it was plausible the claim was valid. Last month, in the latest example of this phenomenon, the Eastern District of Virginia held that unlike in state court, defamation claims can survive even if they do not allege the exact words used. Why? Because all that is needed to survive a motion to dismiss in federal court is a “short and plain” statement of the claim demonstrating a plausible right to relief. A complaint may be plausible on its face even if it fails to set forth the exact words allegedly used by the defendant.

Taking the facts alleged in the complaint as true, the pertinent facts of Sandra Santos v. Jessica Christian et al. are as follows. Santos was a former tax examiner for the Virginia Employment Commission (“VEC”), who had left on good terms. After working elsewhere for a few years, she decided to look into the possibility of returning to VEC. When she inquired, she was directed to defendants Caliper, Inc., and its employee, Laurie Overmann. Caliper was the company used by VEC to manage the hiring process for temporary tax examiners.

After being told by a VEC supervisor that Santos had threatened to stab her supervisor during her previous employment, Overmann asked Santos to complete a credit background check form. She then wrote in an email to Santos, “[Y]our credit report would not make it possible for you to work in the department you wanted”, and Quotation_Markslater repeated that statement to “others, including Shelby Perry.” (Ms. Perry was not identified in the complaint but appears to be a VEC employee). Santos claimed this statement was false and defamatory in that VEC had reviewed her credit report independently and approved her for employment.

Caliper and Overmann moved to dismiss, arguing (among other things) that the exact words had not been pled, and that the statement about the credit report was nonactionable opinion. The court rejected both arguments and denied the motion.

On the matter of “exact language,” the court found that the language quoted from the email was sufficient to show the exact words at issue. The court also held that even if Virginia state courts require pleading the exact language claimed to be defamatory to survive early dismissal, the same is not required in federal courts. The pleading standard in federal courts, the court noted, is governed by Fed. R. Civ. P. 8, which requires only a short and plain statement of the claim sufficient to give the defendant fair notice of the nature of the claim. Rule 8 contains no special heightened pleading standard for defamation claims.

On whether the statement amounted to fact or opinion, the court held that the statement was more than just an opinion regarding job qualifications. Instead, the statement could be reasonably interpreted as conveying factual information; namely, that Santos’s credit disqualified her from employment with VEC.

The court also rejected the defendants’ assertion of qualified privilege due to the omission of facts in the complaint that would establish the existence of the privilege.

My sense is that most Virginia state courts would dismiss on demurrer any defamation complaint that omitted the facts necessary to establish the required elements of the claim. Increasingly, it appears to me that federal courts are willing to allow such claims to go forward on the theory that while the claims may not appear to be strong or fully developed, they are “plausible” when viewing the factual allegations in the light most favorable to the plaintiff.

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