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Hamilton v. Lefkowitz

United States District Court, D. Hawaii

December 23, 2019

WILLIAM LEFKOWITZ; DENISE LEFKOWITZ; and DOES 1 through 10, inclusive, Defendants.



         This action concerns Defendants William (“William”) and Denise (“Denise”) Lefkowitz's (collectively “Defendants”) alleged defamation, threats, and verbal abuse against Plaintiff Danielle Hamilton (“Plaintiff”) on Facebook and Our Family Wizard (“OFW”).[1] Defendants move to dismiss part of the First Amended Complaint (“FAC”): Plaintiff's defamation claim on the basis of qualified privilege and her negligent infliction of emotional distress (“NIED”) claim for failure to state a claim. For the reasons articulated below, the Court GRANTS IN PART AND DENIES IN PART Defendants' Motion to Dismiss. ECF No. 38.


         I. Factual History

         As alleged in the FAC, Plaintiff and William are divorced and share four children. ECF No. 33 ¶ 9. They resided in Texas and obtained their divorce decree there. Id. ¶¶ 10-11. In 2015 Plaintiff moved to Alabama then William and Denise, William's current wife, moved to Hawai‘i. Id. ¶ 13. Pursuant to the divorce decree, any parent moving out of Texas is solely responsible for 100% of the children's airfare and travel arrangements and costs to and from the other parent's residence. Id. ¶ 12.

         Following their relocation, Plaintiff and William agreed that William's visits with the children would occur in San Antonio, Texas. Id. ¶ 14. Plaintiff agreed to bear the costs associated with transporting the children to San Antonio and William agreed to cover his transportation expenses to San Antonio. Id. Defendants changed their mind about the visitation venue in 2017 and insisted that Plaintiff pay for the children's airfare to Hawai‘i. Id. ¶ 19. Plaintiff alleges that after she refused to do so, Defendants “wrongfully threatened [her] with incarceration, repeatedly used profanity and insults, and maliciously published false and defamatory remarks and statements about and against [her] in an attempt to disgrace, embarrass, intimidate, and force [her] to pay for the children's airfare to the State of Hawai‘i.” Id. ¶ 20. In the FAC, Plaintiff lists multiple threatening and demeaning comments posted by Defendants on OFW.[2] Id. ¶ 21.

         Plaintiff claims that Denise posted defamatory statements on Facebook, including allegations that Plaintiff is mentally ill and needs professional help and that Plaintiff was the subject of a Child Protective Services case for sexual assault. Id. ¶ 22.

         II. Procedural History

         Plaintiff commenced this action on December 26, 2018. On June 24, 2019, the Court issued an Order Granting in Part and Denying in Part Defendants' FRCP Rule 12(b)(6) and/or 12(b)(1) Motion to Dismiss (“Order”). ECF No. 31. The Court declined to abstain from adjudicating the case; it dismissed Plaintiff's NIED claim with leave to amend; it dismissed Plaintiff's injunctive relief claim without leave to amend; and it concluded that Plaintiff's defamation and IIED claims were sufficiently pled.

         Plaintiff filed the FAC on July 24, 2019 asserting the following claims: (1) defamation (Count I); and (2) intentional and/or negligent infliction of emotional distress (Count II). ECF No. 33. In her prayer for relief, Plaintiff requests an award of general and special damages and attorneys' fees and costs. Id. at 11.

         On September 27, 2019, Defendants filed the instant Motion. ECF No. 38.


         Federal Rule of Civil Procedure (“FRCP”) 12(b)(6)[3] authorizes dismissal of a complaint that fails “to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). On a Rule 12(b)(6) motion to dismiss, “the court accepts the facts alleged in the complaint as true, ” and “[d]ismissal can be based on the lack of a cognizable legal theory or the absence of sufficient facts alleged.” UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (alteration in original) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). However, conclusory allegations of law, unwarranted deductions of fact, and unreasonable inferences are insufficient to defeat a motion to dismiss. See Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (citation omitted); Nat'l Ass'n for the Advancement of Psychoanalysis v. Cal. Bd. of Psychology, 228 F.3d 1043, 1049 (9th Cir. 2000) (citation omitted).

         “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) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Facial plausibility exists “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 tenet that the court must accept as true all of the allegations contained in the complaint does not apply to legal conclusions. See Id. As such, “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Id. (citing Twombly, 550 U.S. at 555). “[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged-but it has not ‘show[n]'-‘that the pleader is entitled to relief.'” Id. at 679 (citing Fed.R.Civ.P. 8(a)(2)) (some alterations in original). If dismissal is ordered, the plaintiff should be granted leave to amend unless it is clear that the claims could not be saved by amendment. See Swartz v. KPMG LLP, 476 F.3d 756, 760 (9th Cir. 2007) (citation omitted).


         Defendants argue that Plaintiff's defamation claim fails to state a claim based on qualified privilege. Defendants also seek dismissal of the NIED claim for failure to state a claim.

         I. Count I - Defamation

         The Court already determined that Plaintiff stated a defamation claim.[4] She asserts nearly ...

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