United States District Court, D. Hawaii
ORDER DENYING DEFENDANT MELANIE KOHLER'S MOTION
TO DISMISS THE COMPLAINT FILED NOVEMBER 1, 2017 AND HOLDING
IN ABEYANCE DEFENDANT MELANIE KOHLER'S SPECIAL MOTION TO
STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017 (ECF NO.
Gillmor, United States District Judge
about October 20, 2017, Defendant Melanie Kohler, who is a
resident and citizen of the State of Hawaii, posted a
statement on her Facebook page. The statement claimed that
Hollywood film director and producer Brett Ratner raped
Defendant Kohler while she was living in California in either
2004 or 2005.
Brett Ratner filed a Complaint against Defendant Kohler,
alleging a claim for defamation based on her Facebook post.
Kohler filed a Motion to Dismiss and a Special Motion to
Strike pursuant to a California statute barring strategic
lawsuits against public participation (“anti-SLAPP
Kohler requests that the Court dismiss Plaintiff Ratner's
lawsuit on the basis that he failed to sufficiently plead a
defamation claim pursuant to Federal Rule of Civil Procedure
12(b)(6). Defendant also seeks to strike the Complaint
pursuant to the California anti-SLAPP statute.
Motion to Dismiss pursuant to Fed.R.Civ.P. 12(b)(6) is
Special Motion to Strike pursuant to the California
anti-SLAPP statute is HELD IN ABEYANCE.
November 1, 2017, Plaintiff filed a Complaint. (ECF No. 1).
January 2, 2018, Defendant filed DEFENDANT MELANIE
KOHLER'S MOTION TO DISMISS THE COMPLAINT FILED NOVEMBER
1, 2017, AND TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017.
(ECF No. 26).
January 8, 2018, the Court set a briefing schedule and set
the hearing on Defendant's Motion for Monday, February
12, 2018. (ECF No. 31).
January 10, 2018, the hearing was advanced to Thursday,
February 8, 2018, at the Defendant's request. (ECF No.
January 22, 2018, Plaintiff filed PLAINTIFF BRETT
RATNER'S MEMORANDUM IN OPPOSITION TO DEFENDANT MELANIE
KOHLER'S MOTION TO DISMISS COMPLAINT FILED NOVEMBER 1,
2017, AND TO STRIKE THE COMPLAINT FILED NOVEMBER 1, 2017.
(ECF No. 34).
February 5, 2018, Defendant filed DEFENDANT MELANIE
KOHLER'S REPLY TO PLAINTIFF BRETT RATNER'S MEMORANDUM
IN OPPOSITION TO DEFENDANT MELANIE KOHLER'S MOTION TO
DISMISS COMPLAINT, FILED NOVEMBER 1, 2017, AND TO STRIKE THE
COMPLAINT, FILED NOVEMBER 1, 2017. (ECF No. 35).
February 8, 2018, the Court held a hearing on Defendant
Kohler's Motion to Dismiss and to Strike (ECF No. 26). At
the hearing, the Court denied Defendant's Motion to
Dismiss pursuant to Fed.R.Civ.P. 12(b)(6). This Order sets
forth the basis for the oral ruling at the February 8, 2018
Complaint asserts that Plaintiff Brett Ratner “is an
accomplished and well known film director and producer who
resides in Los Angeles and is and has been a citizen of the
State of California at all times relevant hereto.”
(Complaint at ¶ 4, ECF No. 1). The Complaint states
Defendant Melanie Kohler is a resident and citizen of the
State of Hawaii. (Id. at ¶ 5).
alleges that on or about October 20, 2017, Defendant Melanie
Kohler “recklessly and/or intentionally posted a
statement on her Facebook page claiming that ‘Brett
Ratner raped [her]'.” (Id. at ¶ 7).
The entirety of the Facebook post is attached to
Defendant's Motion, as follows:
My hands are shaking even as I try to write this. It's
not something I've ever told anyone in my entire life.
Not even my closest friends at the time.
Brett Ratner raped me. He is a famous director and producer
If there is any chance of changing the hollywood culture, the
american culture, it has to happen now while people are
I tell this story in hopes that if he's done it to others
that they might have the confidence to come forward.
And if he hasn't, that maybe he can be accountable for
the way he's treated the nobodies of the world or at
least the way he treated me.
Even if he treats all the somebodies of the world with
respect and decency, he is not a public monster like Harvey
and I don't think anyone has much bad to say about him
professionally, that doesn't mean he can do this in the
dark shadows of the night when he thinks no one is looking.
He was a predator and a rapist on at least on one night in
Hollywood about 12 years ago.
It happened when I worked at Endeavor Talent Agency in
hollywood. It was 2004 or 2005. I won't go into the
details here to spare the people who don't want to hear
them but I'm willing to share my story with anyone who
needs to hear it.
Long story short, he preyed on me as a drunk girl who was
alone at a club at the end of the night, he took me back to
Robert Evans house, he forced himself upon me after I said no
and no and no again, and then left me there. He just got up,
didn't say a word, got in his car and left and I laid
there humiliated and broken on the floor. The rest of the
night is fuzzy, I must have stumbled out of the house and
called a cab and I went home and erased it from my mind.
I'm embarrassed, humiliated, ashamed, and wish I could go
back to forgetting it ever happened. But if I do that, if we
all do that, then it keeps happening. We have to come
forward. I can't be an advocate for women speaking out if
I don't speak out too.
Brett Ratner raped me. I'm saying his name, I'm
saying it publicly. Now at least I can look at myself in the
mirror and not feel like part of me is a coward or a
hypocrite. I'm standing up and saying this happened to me
and it was not ok.
Come what may, it is the right thing to do.
Kohler Facebook post, attached as Ex. A to Def.'s Motion,
ECF No. 26-4).
Ratner alleges the statement is “entirely false,
fabricated, and fictional.” (Complaint at ¶ 8, ECF
No. 1). The Complaint asserts that Defendant Kohler made the
statement “with knowledge of its falsity, maliciously,
and with the intent to harm Plaintiff's reputation and
standing.” (Id. at ¶ 9).
Complaint states that Plaintiff believes that the Facebook
statement constitutes “libel per se.”
(Id. at ¶ 10). The Complaint alleges that as a
result of Defendant Kohler's post Defendant Ratner
“has suffered injuries to his personal and professional
reputations in amounts to be proven at trial.”
(Id. at ¶ 12).
To Dismiss Pursuant To Fed.R.Civ.P. 12(b)(6)
must dismiss a complaint as a matter of law pursuant to
Federal Rule of Civil Procedure 12(b)(6) where it fails
“to state a claim upon which relief can be
granted.” Rule (8)(a)(2) of the Federal Rules of Civil
Procedure requires “a short and plain statement of the
claim showing that the pleader is entitled to relief.”
When considering a Rule 12(b)(6) motion to dismiss, the Court
must presume all allegations of material fact to be true and
draw all reasonable inferences in favor of the non- moving
party. Pareto v. F.D.I.C., 139 F.3d 696, 699 (9th
Cir. 1998). Conclusory allegations of law and unwarranted
inferences are insufficient to defeat a motion to dismiss.
Id. at 699. The Court need not accept as true
allegations that contradict matters properly subject to
judicial notice or allegations contradicting the exhibits
attached to the complaint. Sprewell v. Golden State
Warriors, 266 F.3d 979, 988 (9th Cir. 2001).
Bell Atl. Corp. v. Twombly, the United States
Supreme Court addressed the pleading standards under the
Federal Rules of Civil Procedure in the anti-trust context.
550 U.S. 544 (2007). The Supreme Court stated that Rule 8 of
the Federal Rules of Civil Procedure “requires more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action, ” and that
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id. at
recently, in Ashcroft v. Iqbal, the Supreme Court
clarified that the principles announced in Twombly
are applicable in all civil cases. 129 S.Ct. 1937 (2009). The
Court stated that “the pleading standard Rule 8
announces does not require ‘detailed factual
allegations, ' but it demands more than an unadorned,
Id. at 1949 (citing Twombly, 550 U.S. at
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. Id.
(quoting Twombly, 550 U.S. at 570). 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).
Where a complaint pleads facts that are “merely
consistent with” a defendant's liability, it
“stops short of the line between possibility and
plausibility of ‘entitlement to relief.'”
Id. (quoting Twombly, 550 U.S. at 557).
complaint “must contain sufficient allegations of
underlying facts to give fair notice and to enable the
opposing party to defend itself effectively” and
“must plausibly suggest an entitlement to relief, such
that it is not unfair to require the opposing party to be
subjected to the expense of discovery and continued
litigation.” AE ex rel. Hernandez v. Cnty of
Tulare, 666 F.3d 631, 637 (9th Cir. 2012) (internal
Motion To Strike Pursuant To Cal. Code Civ. P. § 425.16
anti-SLAPP statute states:
A cause of action against a person arising from any act of
that person in furtherance of the person's right of
petition or free speech under the United States Constitution
or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless
the court determines that the plaintiff has established that
there is a probability that the plaintiff will prevail on the
Cal. Code Civ. P. § 425.16(b)(1).
are two steps in analyzing a motion to strike pursuant to
California's anti-SLAPP statute.
the defendant must make a prima facie showing that the
plaintiff's suit arises from an act in furtherance of the
defendant's rights of free speech on a public issue.
Jordan-Benel v. Universal City Studios, Inc., 859
F.3d 1184, 1188 (9th Cir. 2017); Park v. Board of
Trustees of Cal. State Univ., 393 P.3d 905, 907 (Cal.
if the defendant establishes a prima facie case, the burden
shifts to the plaintiff to show a reasonable probability of
prevailing on the challenged claim. Jordan-Benel,
859 F.3d at 1188. The plaintiff's burden at step two is
relatively low. Roberts v. McAfee, Inc., 660 F.3d
1156, 1163 (9th Cir. 2011); Mindys Cosmetics, Inc. v.
Dakar, 611 F.3d 590, 598 (9th Cir. 2010).
plaintiff cannot meet its minimal burden of stating and
substantiating a legally sufficient claim, the claim is
stricken pursuant to the statute. Jordan-Benel, 859