Swender v. Lamfers

1

HERBERT J. SWENDER, Plaintiff, v. JEAN LAMFERS, et al., Defendants.

No. 23-4073-DDC-BGS

United States District Court, D. Kansas

July 26, 2024

MEMORANDUM AND ORDER

Daniel D. Crabtree, United States District Judge

Plaintiff Dr. Herbert J. Swender brings this diversity action against defendants Jean Lamfers and Sarah Brown for malicious prosecution, defamation, and fraudulent misrepresentation. Defendants are attorneys who filed a lawsuit on behalf of Shaney Tiumalu against plaintiff when he served as president of Garden City Community College. Plaintiff alleges that the Tiumalu lawsuit made false and defamatory statements about him and now he seeks to hold defendants-as Tiumalu's attorneys-accountable.

Defendants have filed a Joint Motion to Strike or, in the Alternative to Dismiss (Doc. 17). Defendants invite the court to strike plaintiff's Complaint under Kansas's Public Speech Protection Act or, alternatively, to dismiss plaintiff's Complaint under Fed.R.Civ.P. 12(b)(6). The court chooses the latter option and grants defendants' motion.^[1] The court explains this decision, below beginning with the relevant background.

I. Background

Plaintiff alleges that defendants Jean Lamfers and Sarah Brown defamed his professional reputation and character while he served as President of Garden City Community College. Doc. 11 at 1 (1st Am. Compl. ¶ 1). Both defendants work as attorneys. Id. (1st Am. Compl. ¶ 2). In April 2020, defendants filed a lawsuit against GCCC itself, plaintiff, and other GCCC administrators. Id. at 3 (1st Am. Compl. ¶ 10).

In that lawsuit, defendants represented GCCC volleyball player Shaney Tiumalu. Id. at 1 (1st Am. Compl. ¶ 2). The Tiumalu lawsuit alleged that plaintiff had discriminated against and sexually harassed women at GCCC and acted in a threatening and intimidating manner toward women and faculty. Id. (1st Am. Compl. ¶ 3). Also, Tiumalu asserted a claim against plaintiff for First Amendment retaliation. Tiumalu's lawsuit asserted claims against the other defendants for Title IX retaliation, First Amendment retaliation, conspiracy to interfere with civil rights, and Kansas Consumer Protection Act violations. Id. at 3-4 (1st Am. Compl. ¶ 15).

Things started to go awry in the Tiumalu litigation at Tiumalu's deposition. For example, in her deposition, Tiumalu testified:

Q: Has Mr. Swender denied you rights at all that you're aware of?

A: Personally, no.

Q: Has he denied the rights of any female, any person of a protected class, whether it be by age, religion, origin, place of birth, orientation, or anything else, or disability, anybody that you know of, of seeing a policy of denying them their rights? ....

A: No, not that I know of.

Id. at 4 (1st Am. Compl. ¶ 17). During her deposition, Tiumalu testified that the accusations made in her lawsuit were untrue. Id. at 1 (1st Am. Compl. ¶ 3).

Ultimately, the parties settled the Tiumalu litigation, filing a stipulation of dismissal in September 2022. Id. at 3 (1st Am. Compl. ¶ 15). Plaintiff filed this lawsuit on August 15, 2023. Doc. 1. Defendants now have moved to dismiss plaintiff's claims for failure to state a claim. The court evaluates defendants' motion, next, beginning with the relevant legal standard.

II. Legal Standard

Fed. R. Civ. P. 12(b)(6) allows a party to move the court to dismiss an action for failing “to state a claim upon which relief can be granted[.]” Fed.R.Civ.P. 12(b)(6). For a complaint to survive a Rule 12(b)(6) motion to dismiss, the pleading “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Id. (citing Twombly, 550 U.S. at 556). “The plausibility standard is not akin to a ‘probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556); see also Christy Sports, LLC v. Deer Valley Resort Co., Ltd., 555 F.3d 1188, 1192 (10th Cir. 2009) (“The question is whether, if the allegations are true, it is plausible and not merely possible that the plaintiff is entitled to relief under the relevant law.” (citation omitted)).

When considering a Rule 12(b)(6) motion to dismiss, the court must assume that the factual allegations in the complaint are true. But this obligation doesn't mean that the court is “‘bound to accept as true a legal conclusion couched as a factual allegation.'” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555).

III. Analysis

Plaintiff asserts claims for malicious prosecution, defamation, and fraudulent misrepresentation under Kansas law.^[2] Defendants have moved to dismiss all three. The court considers each claim, in turn, below.

A. Malicious Prosecution

Plaintiff brings a claim against defendants for malicious prosecution. To succeed on a malicious prosecution claim, a plaintiff must show five elements:

(a) That the defendant initiated, continued, or procured civil procedures against the plaintiff.

(b) [T]he defendant in so doing acted without probable cause.

(c) That the defendant acted with malice, that is he acted primarily for a purpose other than that of securing the proper adjudication of the claim upon which the proceedings are based.

(d) That the proceeding terminated in favor of the plaintiff.

(e) That the plaintiff sustained damages.

Budd v. Walker, 491 P.3d 1273, 1281 (Kan.Ct.App. 2021) (quotation cleaned up). Defendants argue that plaintiff fails to plead facts capable of sustaining several of these elements, but the court need only consider the fourth: whether the proceeding-the Tiumalu litigation- terminated in plaintiff's favor.

A proceeding may terminate in plaintiff's favor in one of three ways: “(1) the favorable adjudication of the claim by a competent tribunal, or (2) the withdrawal of the proceedings by the person bringing them, or (3) the dismissal of the proceedings because of a failure to prosecute them.” Id. (quotation cleaned up). The Tiumalu litigation settled, which isn't one of the three options. Indeed, our court has held that if “the plaintiff dismisses [her] claims as a result of compromise or settlement, the case cannot be said to have terminated in favor of the defendant.” Laing v. Shanberg, 13 F.Supp.2d 1186, 1188-89 (D. Kan. 1998) (citing Nelson v. Miller, 660 P.2d 1361, 1368 (Kan. 1983)).

Plaintiff argues that the litigation terminated in his favor because he didn't pay Tiumalu any settlement money. Doc. 24 at 8. And, plaintiff points out, nowhere in the settlement agreement does he concede liability. Id. But plaintiff doesn't cite any authority for his view that a settlement without payment to plaintiff or a concession of liability qualifies as “terminated in his favor” within the three options specified by Budd v. Walker. As defendants correctly point out, money isn't the only consideration that can form a contract. And the parties jointly dismissed the Tiumalu lawsuit. That is, Tiumalu didn't voluntarily dismiss her claims against plaintiff on her own.

The court concludes that the Tiumalu litigation settled-it didn't terminate in plaintiff's favor-and thus dismisses plaintiff's malicious prosecution claim for failure to state a claim.

B. Defamation

Plaintiff also sues defendants for defamation. Plaintiff's Complaint alleges defendants' “representation of Ms. Tiumalu-and their disregard for the veracity of the statements they made against Dr. Swender on her behalf-led Lamfers and Brown to make libelous statements against Mr. Swender[.]” Doc. 11 at 6 (1st Am. Compl. ¶ 31). A defamation claim under Kansas law has three elements: “(1) false and defamatory words; (2) communication to a third person; and (3) harm to the reputation of the person defamed.” Byers v. Snyder, 237 P.3d 1258, 1270 (Kan.Ct.App. 2010). Defendants move to dismiss plaintiff's defamation claim, arguing the statements they made in the litigation are protected by privilege, and plaintiff's defamation claim is barred by the statute of limitations. The court only needs to reach the statute of limitations argument to decide defendants' motion.

Defamation claims under Kansas law have a one-year statute of limitations. Lee v. Reed, 221 F.Supp.3d 1263, 1271 (D. Kan. 2016) (citing Kan. Stat. Ann. § 60-514(a)). And the “one-year statute of limitations accrues once the alleged defamation is published or spoken.” Id. So, “under Kansas law, any action for defamation pled one year after the alleged defamation is published or spoken is time-barred.” Id.

Plaintiff alleges that defendants made false and defamatory statements in the Tiumalu Complaint and First Amended Complaint. Doc. 11 at 6 (1st Am. Compl. ¶ 32). Plaintiff's pleading in this action places these Tiumalu filings on April 13, 2020, and July 22, 2020, respectively. Id. at 3 (1st Am. Compl. ¶¶ 10, 11). And plaintiff filed this action August 15, 2023. Doc. 1. So, the one-year statute of limitations plainly bars this claim because the alleged defamation occurred in 2020-more than three years before plaintiff filed this lawsuit.

Trying to avoid this outcome, plaintiff argues it “was not until the Parties' stipulated dismissal of the underlying litigation that Dr. Swender's cause of action accrued as that was the point beyond which it became clear that Ms Tiumalu would no longer maintain her baseless claims against Plaintiff[.]” Doc. 24 at 9. So, plaintiff argues, his claim began to accrue when the Tiumalu parties filed their stipulation of dismissal in September 2022. Id. Plaintiff...