DEDICATION:

This blog is dedicated to "The Children Left Behind." We will not rest until the safety of our children and those that are entrusted with their mental health care are held accountable for abusing the children's God given rights, those rights upheld by our constitution, and those that have been complicit in obfuscating the truth!

Monday, June 13, 2016

Federal Trade Commission (FTC ) Finally Files Case Against Brookstone Law, Advantis Law, and Affiliate Cast of ‘Characters’


Last week, at the behest of a client of Brookstone Law, a quest ensued to garnish information regarding Brookstone Law and its’ associates (whom market themselves as experts in mortgage assistance relief and mortgage litigation). 
Concerns arose regarding one mass joinder lawsuit originally filed by Brookstone Law (Wright et al vs. Bank of America/Countrywide), to which the client was a plaintiff. 


“Brookstone Law was raided, eh?”


A troublesome cast of characters, businesses, along with failed, dysfunctional mass joinder lawsuits unraveled. Appearing to outshine, “The Wolf of Wall Street” by far, the FTC alleges Damian Kutzner, Brookstone Law, Advantis Law (is this entity related to Advantis Corp./medical marijuana distribution@same address?) et al committed fraud and did not target just the wealthy.


The FTC states distressed homeowners at risk of losing their homes were the perfect prey. Large upfront fees paid by homeowners in order to partake in a mass joinder lawsuit, along with monthly stipends charged by these firms directly conflict with the MARS RULE.


Apparently, there was no incentive for these wolves to win a case as the FTC alleges the defendants took in 15 million by 2014.  Brookstone’s business license in Nevada reads in default, current in California, and the offices in NY and Florida appear not ‘virtual’ afterall! To quote, “They are mail drops.”  


The last two days have found Brookstone Law /Group and Advantis Law websites removed from the internet.


  • “U.S. District Court in Los Angeles has placed Advantis Law and Brookstone Law under the control of a receiver. The Receiver was appointed in the case Federal Trade Commission v. Kutzner, et al., U.S. District Court (C.D. Cal.) Case No. SACV16-00999-BRO (AFMx).”
The FTC’s Complaint and the Temporary Restraining Order appointing the Receiver can be accessed here:



  • “The Receiver has suspended the business and has commenced a review of operations. The Court has set June 15, 2016 as the date for the hearing on whether to issue a Preliminary Injunction and make the Receiver’s appointment permanent. The Receiver will post an update after that hearing.”

Our take:


“Look, one would need several FBI whiteboards to sort this one out! THIS is above my pay grade!! Please call the California Bar Association, the CA Attorney General’s Office, the FTC, and the FBI."

"What about Advantis?" you ask.


“Oh, wait, which one? Perhaps, the defendants can plea they ‘copped’ too much of their own ‘distribution’ as a defense."

And, a little something to 'stew' 'er, chew on:



For victims: 


*Numerous attempts to reach Brookstone Law/Associates were to no avail.

Thursday, June 2, 2016

DIAMOND RANCH ACADEMY: GRIEVING PARENTS FILE NEGLIGENCE LAWSUIT

Editorial:

Hurricane, Utah--Diamond Ranch Academy (DRA) appears entrenched in yet another horrific lawsuit. Parents, still grieving the loss of their son who perished while under DRA's care, are suing the facility. 

In September of 2013, a young man took his life by hanging himself (utilizing a 'belt' his parents state was supplied by DRA to a 'suicidal child') over a non-collapsible shower rod (Utah's Department of Human Services cited DRA after the young man's death and DRA installed collapsible shower rods.)
http://jilliestake.blogspot.com/2013/11/diamond-ranch-academy-confirmation.html

Questions arise: 
  • Why was a previously diagnosed suicidal child even considered as an applicant and admitted? Admission guidelines? Even some of the most notoriously abusive facilities have stated they do not accept children with former or current suicidal ideations. 
  • Qualifications of DRA? A contracted-out, adjunct, forensic psychologist with offices in Utah and Nevada?  FACT: DRA is NOT a mental health facility, nor are they licensed or qualified as such.
Well-deserved lawsuit? Read DRA's 'amended answer to the complaint,' below and decide for oneself.

According to the DRA attorney's 'amended answer to the complaint,' [they]blame the death of this suicidal child (citing his age of 16), on the child himself, his mental health issues, and his parents. 
  
Additionally, DRA attorneys deny in their filing that the child was unsupervised. Who thought this one up? So, logic dictates that if the child was supervised... how in hell did this happen?

THE COMPLAINT:
     (Note: reformatted for viewing, every effort was made to remove family identifiers)

Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 1 of 12

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
UTAH, CENTRAL DIVISION----- ------ -------  and------- --------, individually and as the natural parents and heirs of
M.L., a minor, deceased,
Plaintiffs,
vs.
DIAMOND RANCH ACADEMY, a
corporation,
Defendant.


COMPLAINT AND JURY
DEMAND
Civil No. ____________
Honorable ________________
Plaintiffs, ---- ------- ------- and ------- -------, individually and as the natural parents and heirs of M.L., a deceased minor, by and through their counsel of record, Dewsnup, King & Olsen, hereby complain of Diamond Ranch Academy and allege the following:


 Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 2 of 12

 PARTIES

1. M.L., a deceased minor child, resided in Hurricane, Utah, at the time of his death but was a citizen of Colorado and was domiciled there. M.L. is the son of ---- ------- ------- and ------- ------- (the “--------”).
2. Plaintiff ---- ------- ------- is the natural father of M.L., a minor who was sixteen years old at the time of the incident that gives rise to this action. ---- ------- ------- is a citizen of Colorado.
3. Plaintiff ------ - ------- is the natural mother of M.L. and is a citizen of Colorado.
4. Diamond Ranch Academy (“DRA”) is a Utah corporation with its principal place of business in Hurricane, Utah.


JURISDICTION


5. This Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1332because there is complete diversity of citizenship between Plaintiffs and Defendant and because the amount in controversy exceeds $75,000, exclusive of interest and costs.
6. Plaintiffs have complied with all requirements of Utah Code Annotated, §§78B-3-401, et seq., in order to bring an action against Diamond Ranch Academy pursuant to the Utah Health Care Malpractice Act.


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 3 of 12

 GENERAL ALLEGATIONS OF FACT

7. DRA is a residential treatment center and therapeutic boarding school in Hurricane, Utah, for troubled youth between the ages of 12 and 18.
8. DRA holds itself out as “an industry leader in helping youth realize their potential.” It represents that its students “become their best selves in a structured elite private school environment with a personalized therapeutic approach” and promises that “[t]he challenges you are facing with your child today do not need to limit the possibilities of tomorrow.”
9. DRA employs, among others, licensed clinical social workers. DRA’s theme is “Healing Families One Youth at a Time.”
10. M.L. was a sixteen-year-old boy who suffered from severe depression and had a history of suicide attempts.
11. Before M.L.’s enrollment at DRA, he attempted suicide twice. On one occasion M.L. tried to take his own life by hanging himself by the neck in the shower.
12. M.L.’s parents, the --------, were very worried about their son’s safety, not knowing what he was capable of doing in the future. They felt helpless not knowing what they could do to help their son.
13. The -------- sought an intervention treatment provider that could effectively care for their son and keep him safe.
14. In their search for a provider, the ------- came in contact with DRA.


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 4 of 12

15. DRA assured the -------- that if they enrolled M.L. at DRA, DRA would care for M.L. and keep him safe, and that DRA’s program would help him overcome his hardships.
16. DRA also assured the -------- that DRA staff were trained to keep and capable of keeping M.L. safe from suicide attempts.
17. DRA further assured the -------- that the DRA facility was a safe place for their son.
18. In furtherance of keeping M.L. safe, DRA told the -------- that M.L.’s bedroom would be under constant video surveillance.
19. DRA also told the -------- that DRA personnel would, at all times, be monitoring the video surveillance images of M.L.’s bedroom.
20. Video camera surveillance equipment was present in M.L.’s bedroom during M.L.’s residence at DRA, including the day he committed suicide.
21. The DRA Parent Manual states in part: “Our program is proven effective – and we guarantee it – when the program is followed closely and when the parentssupport it completely.”
22. The DRA Parent Manual further states: “We recognize how difficult a decision it was to intervene on your child’s behalf. We also recognize how difficult it is toplace the care of you child in the hands of another. Please take comfort in knowing that we take our responsibility very seriously.”


 Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 5 of 12

23. On June 23, 2013, relying on DRA’s assurances that M.L. would be properly supervised and kept safe, the -------- enrolled M.L. at DRA, and M.L. moved into the facility.
24. On June 23, 2013, the day M.L. was enrolled at DRA, ------- ------- gave DRA a summary of M.L.’s suicide attempts. This summary included an account that M.L. had previously attempted suicide by hanging himself in the shower.
25. M.L.’s pre-participation physical evaluation also noted his suicide attempt history.
26. DRA knew of M.L.’s need for supervision and treatment.
27. On July 18, 2013, DRA took M.L. off of self-harm watch.
28. On August 7, 2013, M.L. was psychologically evaluated by C.Y. Roby, Ph.D., NCCE (“Dr. Roby”), at DRA’s request.
29. On August 30, 2013, DRA received Dr. Roby’s report.
30. Dr. Roby’s report indicated that M.L. was at risk for suicide and/or self-injurious behavior. Dr. Roby strongly recommended that this risk be taken seriously.
31. In addition to having Dr. Roby’s report, DRA was in possession of and had read M.L.’s journals containing a drawing of a boy hanging from the neck.
32. On September 6, 2013, M.L. attended a football game pep rally in the DRA gym. While there, he was visibly upset and seen crying by another DRA student. When the pep rally concluded, M.L. left the gym unsupervised and unaccounted for. 


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 6 of 12

33. After the pep rally, at approximately 4:22 p.m., M.L. entered his bedroom unsupervised.
34. At approximately 4:36 p.m., M.L. reviewed a suicide note he had written.
35. At approximately 4:38 p.m., M.L. entered his bathroom with his suicide note in hand and closed the door. He was clothed and wearing the belt DRA sold to him.
36. At approximately 5:01 p.m., while giving prospective clients a tour of the facilities and M.L.’s room, a DRA staff member opened the bathroom door and discovered M.L. hanging by the neck from a non-breakaway shower rod with the belt DRA sold to him.
37. When the staff member discovered M.L. and saw him hanging from the shower rod, he closed the bathroom door and ushered the prospective clients away.
38. Moments after the first staff member opened and closed the door on M.L., another staff member opened the bathroom door, looked at M.L., closed the door on him again, and walked away.
39. M.L. was left hanging from his neck until approximately 5:04 p.m., when DRA staff removed him from the hanging position and then administered CPR.
40. Approximately 2 ½ minutes passed between the time M.L. was discovered and the time he was removed from the shower rod.
41. Ultimately, M.L. was left unsupervised for a total of 39 minutes.
42. Two days later, on September 8, 2013, M.L. died as a result of the injuries he sustained from his September 6, 2013 suicide attempt.


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 7 of 12

FIRST CLAIM FOR RELIEF

(Negligence/Knowing and Reckless Indifference)

43. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.
44. DRA was acting in loco parentis and had a special legal relationship with M.L.
45. DRA had a duty to exercise reasonable care in the treatment and supervision of M.L.
46. DRA knew that M.L. had a history of attempted suicide and that M.L.’s suicidal condition should be taken seriously.
47. DRA knew that leaving M.L. unsupervised involved an extreme degree of risk, considering the probability and magnitude of the potential harm that such a lack of supervision presented to M.L.’s life and safety.
48. Despite DRA’s knowledge of the risks that the lack of supervision of M.L. presented, DRA recklessly allowed M.L. to remain alone and unsupervised for more than thirty minutes, behind a closed door in a bathroom with a non-breakaway shower rod, with a belt to hang himself with.
49. DRA breached the duty that it owed to M.L. and the --------, thereby creating a substantial risk of, and in fact causing, serious bodily injury and death to M.L.
50. DRA’s breaches of duty included, among other things:
a. Failing to provide M.L. with adequate supervision and care;


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 8 of 12

b. Failing to provide and/or follow policies and procedures related to supervision and care of M.L., its suicidal patient, including but not limited to its line-of-sight policy;
c. Failing to properly assess, document, and treat M.L.’s suicidal condition;
d. Failing to appropriately train staff;
e. Failing to install breakaway shower rods and shower heads in
M.L.’s bathroom;
f. Failing to heed Dr. Roby’s report and take M.L.’s risk of suicide seriously;
g. Providing M.L. with the belt he hanged himself with; and
h. Not acting immediately when it discovered M.L. but instead putting its public relations ahead of M.L.’s life.
51. DRA’s acts and omissions manifested a knowing and reckless indifference toward and a disregard of the rights of others, including M.L. and the --------.
52. As a direct and proximate result of DRA’s acts and omissions, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort,
companionship, society, guidance, love, affection, association, services and support of their son; and the permanent destruction of their family unit. 


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 9 of 12

53. As a direct and proximate result of DRA’s acts and omissions, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to M.L.’s untimely death and have incurred funeral and burial expenses as a result of his death.

SECOND CLAIM FOR RELIEF
(Breach of Fiduciary Duty)


54. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.
55. DRA owed a fiduciary duty to Plaintiffs and/or their son.
56. DRA breached the fiduciary duty it owed to Plaintiffs and/or their son.
57. As a direct and proximate result of DRA’s acts and omissions, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort,
companionship, society, guidance, love, affection, association, services and support of their son; and the permanent destruction of their family unit.
58. As a direct and proximate result of DRA’s acts and omissions, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to M.L.’s untimely death and have incurred funeral and burial expenses as a result of his death.


THIRD CLAIM FOR RELIEF
(Premises Liability)


59. Plaintiffs incorporate the previous paragraphs as if fully set forth herein.


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 10 of 12

60. M.L. was DRA’s invitee.
61. DRA owed M.L. a duty of care to eliminate unreasonably dangerous conditions on its property and to take reasonable measures to ensure a safe physical environment in the DRA facility.
62. DRA was aware that the shower rods in the DRA facility were non breakaway types and that the presence of such shower rods presented a dangerous
condition to its invitee, M.L.
63. Given M.L.’s history of suicide attempts and Dr. Roby’s evaluation, DRA should have expected that M.L. would have encountered and been harmed by, or would fail to protect himself from this dangerous condition of non-breakaway shower rods in the DRA bathrooms.
64. Three days after M.L.’s death, on September 11, 2013, the Utah Department of Human Services determined that DRA was in violation of Utah Admin. Code R501-19-7.B.2 for failing to provide a safe physical environment for consumers.
This violation was due in part to the presence of permanently affixed shower rods in the DRA facility bathrooms.
65. DRA breached its duty to its invitee, M.L., and failed to exercise reasonable care by:
a. Failing to prevent or rectify the unreasonably dangerous condition of non-breakaway shower rods on the property, which was a proximate cause of M.L.’s injury and death; and 


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 11 of 12

b. Failing to protect its invitee, M.L., from the unsafe condition and hazard of non-breakaway shower rods and shower heads on the property.
66. As a direct and proximate result of DRA’s breach of duty, M.L. was subjected to the dangerous conditions on DRA’s property that contributed to M.L.’s
injury and death.
67. As a direct and proximate result of DRA’s negligence, Plaintiffs have suffered and will continue to suffer the loss of the relationship with their son, causing them extreme mental and emotional anguish; loss of the care, comfort, companionship,
society, guidance, love, affection, association, services and support of their son; and thepermanent destruction of their family unit.
68. As a direct and proximate result of DRA’s negligence, M.L. suffered severe physical pain, discomfort, loss of enjoyment of life, and death, and the -------- incurred medical expenses prior to his untimely death, and have incurred funeral and
burial expenses as a result of his death.


PRAYER FOR RELIEF


WHEREFORE, Plaintiffs pray for judgment against Defendant, DRA, as follows:


1. For general damages in an amount to be proved at trial;
2. For special damages in an amount to be proved at trial;


Case 2:16-cv-00252-RJS-PMW Document 2 Filed 03/29/16 Page 12 of 12

3. For punitive damages in an amount sufficient to punish DRA and to deter DRA and others in similar situations from engaging in such conduct in the future; and
4. For such other costs, expenses, attorney’s fees, and other relief the Court finds appropriate under the circumstances.


JURY DEMAND


Plaintiffs hereby demand a trial by jury.
DATED this 29th day of March, 2016.


DEWSNUP, KING & OLSEN
/s/ Charles T. Conrad
David R. Olsen
Paul M. Simmons
Charles T. Conrad


Attorney for Plaintiffs
Plaintiffs’ Address:
c/o DEWSNUP, KING & OLSEN
36 S. State Street, Suite 2400
Salt Lake City, Utah 84111



AMENDED ANSWER TO COMPLAINT:

(Note: reformatted for viewing, every effort was made to remove family identifiers)

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 1 of 8

Gregory J. Sanders, USB No. 2858
Sarah C. Vaughn, USB No. 14615
KIPP AND CHRISTIAN, P.C.
Attorney for Defendants
10 Exchange Place, 4th Floor
Salt Lake City, Utah 84111
gjsanders@kippandchristian.com
svaughn@kippandchristian.com
Telephone: (801) 521-3773


IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF UTAH, CENTRAL DIVISION---- ------- ------- and ------- - -------, AND HEIRS OF M.L., a minor, deceased,
Plaintiff,
v.
DIAMOND RANCH ACADEMY, a corporation
Defendants.


Civil No. 2:16-CV-00252-BCW


AMENDED ANSWER OF DEFENDANT


Discovery Tier 3
Defendant, by and through counsel, hereby answers the complaint of plaintiff as follows:


FIRST DEFENSE
Plaintiff fails to state a claim upon which relief may be granted.


SECOND DEFENSE
The following responses correspond numerically to the allegations of the complaint:
1.-3. Admitted subject to discovery showing otherwise.
4. Admitted 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 2 of 8

5.-6. Admitted.
7. Admitted with the addition that the school is licensed to treat people older than 18 years of age.
8. Admitted.
9. Admitted.
10. Admitted M.L. was 16 years old and had mental health issues. The allegation is otherwise denied.
11. Admitted that suicide attempts were reported. Otherwise denied for insufficient information.
12.-13. Denied for insufficient information.
14. Admitted.
15. Admitted.
16. Denied.
17. Admitted consistent with published material. Otherwise denied as vague.
18. Denied.
19. Denied.
20. Admitted.
21. Admitted only that the manual contains that statement. Denied that it is relevant here where M.L. did not complete the programs and the parents were not supportive.
22 Admitted.
23. Admitted only that he was enrolled. The allegation is otherwise denied for 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 3 of 8

insufficient information.
24. Admitted that ------- ------- gave a summary including mention of M.L.’s suicide attempts. However, the summary downplayed the suicide attempts as not having been done with intent to die but as a cry for help. In fact, ------- stated in the summary that the parents wanted to enroll M.L. not because of suicide attempts but because he ran away from home.
25. Admitted so far as consistent with the evaluation record.
26. Admitted.
27. Admitted.
28. Admitted.
29. Admitted.
30. Denied.
31. Denied.
32. Admitted only that M.L. attended a rally. The allegation is otherwise denied.
33. Admitted that he entered his bedroom. Denied that he was unsupervised.
34. Denied for insufficient information.
35. Admitted.
36.-38. These allegation confuse timing and the identities of the persons involved in the scene described. It is admitted that a staff member looked in the bathroom briefly and then sought assistance. The remainder of the allegations are denied as inaccurate.
39. Denied as to timing. The allegation is otherwise admitted. 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 4 of 8

40. Denied.
41. Denied.
42. Admitted.
43. The responses to allegations numbered one through 42 are incorporated herein.
44. Denied.
45. Admitted so far as consistent with applicable law.
46. Admitted.
47. Denied in that plaintiffs wrongfully assume here that the mental condition of M.L. was static.
48. Denied.
49. Denied.
50. Denied.
51. Denied.
52. Denied.
53. Denied.
54. The responses to allegations numbered 1 through 53 are incorporated herein.
55. Denied.
56. Denied.
57. Denied.
58. Denied.
59. The response to allegations numbered 1 through 58 are incorporated herein. 

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 5 of 8

60. Admitted so far as consistent with applicable law.
61. Admitted so far as consistent with applicable law.
62. Denied.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
67. Denied.
68. Denied.


THIRD DEFENSE
The fault of all persons whose acts or failure to act contributed to the alleged injuries of the plaintiff should be compared and allocated including any act or failure to act of the plaintiff.

FOURTH DEFENSE
Notice is hereby given pursuant to DUCivR 9-1 that defendant seeks to allocate fault to the person described in the complaint as “M.L”. The factual and legal basis upon which fault can be allocated is that M.L. was of sufficient age and, despite having mental health issues, was able to comprehend the nature of the act of suicide and elected to commit that act as a conscious choice

FIFTH DEFENSE
The plaintiff allegations of wrongdoing by the defendant, if assumed to be accurate, only present on opportunity for M.L. to act. They are not actual causes of the suicide. The actual cause of the suicide are the mental health issues of M.L. including the extraordinarily poor

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 6 of 8

relationship with his parents to whom fault should be allocated.


SIXTH DEFENSE
The suicide of M.L. was a deliberate conscious act on the part of M.L. whose mental health issues did not prevent him from appreciating the nature and seriousness of that act. Consequently, any resulting claim has been waived, barred, or estopped by the deliberate decision made by M.L.


SEVENTH DEFENSE
From the discovery of M.L. to the time he was taken down made no medical difference. Plaintiffs fail to state a claim.


EIGHTH DEFENSE
To the extent M.L. concealed suicidal ideation from therapists and staff of the defendant such concealment is another form of bar, waiver, or estoppel of the claims made.


NINTH DEFENSE
M.L. in his suicide note made statements that were consistent with his continuing expression of estrangement with his parents and constitutes a known and conscious waiver of any benefit to his parents from his passing, including the claim now asserted.


TENTH DEFENSE

Any allegation not specifically admitted is denied.


WHEREFORE, defendant asks this court to enter judgment of no cause of action upon the complaint of the plaintiffs and to award the defendant such costs and attorney’s fees incurred in defense of this action as may be appropriate in law and in fact.

Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 7 of 8

DATED this 26th day of April, 2016,
KIPP AND CHRISTIAN, P.C.
/s/ Gergory J. Sanders
GREGORY J. SANDERS
SARAH C. VAUGHN
Attorneys for Defendants


Case 2:16-cv-00252-RJS-PMW Document 7 Filed 04/26/16 Page 8 of 8

CERTIFICATE OF SERVICE
The undersigned hereby certifies that on the 26th day of April, 2016, a true and correct copy of the foregoing AMENDED ANSWER OF DEFENDANT was e-filed and sent to the following:
David R. Olsen
Timothy M. Simmons Charles T. Conrad
DEWSNUP, KING, & OLSEN
36 South State Street, Suite 2400
Salt Lake City, Utah 84111--0024
/s/ Cheryl Browning



 

Friday, March 13, 2015

LADY JUSTICE, THE THERAPEUTIC TEEN INDUSTRY, AND CHILDREN'S RIGHTS ADVOCATES—ABSOLUTE CONFLICT

Lady Justice



A PERSPECTIVE


Sculptors throughout the ages created various depictions of Lady Justice, (Themis, a goddess in Greek mythology). Whether nude, scantily draped, or blindfolded, Lady Justice embodies celestial order on Earth. Holding her infamous scales of justice, she represents the personification of righteousness.

Lady Justice and Children's Rights Advocates would agree with Albert Einstein, "If I were to remain silent, I'd be guilty of complicity."


Even though justice is sought within our court system, it does not always prevail. Within the Therapeutic Teen Industry (TTI), that encompasses so-called residential treatment facilities and wilderness programs (aka boot camps) for tweens, teens, and youths, it is no secret that accountability and oversight is negligible, even if under the fa├žade of oversight.  Documents attest to deaths, attempted suicides, rapes, physical and emotional abuse of children within these facilities, yet accountability remains close to nil.  These facilities run rampant, afforded carte blanche in doing so, often protected by a township or county where the facility resides, often protected by various state entities charged with protecting our children, or wrongly given free reign because of religious affiliation. Who is going to stop negligent facilities and their staff, staff and student perpetrators (due to a facility hiring staff without appropriate background checks; accepting a student in violation of their own admission’s guidelines for the ‘bang of the buck’), or hosting states that violate the Interstate Compact for the Protection of Children (ICPC)—who?  


Each year, Departments of Human Services and Child Protective Services across the country, log hundreds upon hundreds of investigative reports where abuse has transpired against our children with in the TTI—that is if a ‘supervisor ‘does not deem, “it is within her job scope to change reports”; or, the facilities themselves operate under a ‘containment’ policy. If DHS responds, “We are not in business to put facilities out of business…” Why bother with investigative reports? How many children at one facility who attempted suicide within 10 months are enough to justify a facility intervention by a state? Lady Justice might deem one child was too many… Georgia’s DHS apparently thought 16 children (two, a re-attempt) attempting suicide within 10 months was chicken feed at the former Ridge Creek School.  Where is the outrage? Each complicit individual walked away, unscathed with licenses intact. Ring a bell? It should! Why? It is the modus operandi in states dealing with allegations of egregious abuse and negligence, even fraud, apparently inherent in the TTI facilities.


The TTI industry is growing at an enormous rate.  Healthcare conglomerates are building assets within the TTI industry, as the financial gain is more than palatable.  We find our Special Needs children targeted in marketing campaigns for the last few years, as Autism became the in Vogue diagnosis replacing the previously sought after children diagnosed with ADD, then ADHD, and ODD. 
The TTI industry players are perceptive; they follow trends quite astutely—now on the gain are alcohol and drug rehabs, plus mental health facilities…  Essentially, nothing has changed, accept the TTI has upped the ante and bounty on children’s heads—the TTI still markets to treat any anomaly known to adolescents and now younger children—still a  one-stop drop off service.  Across our nation, the strong TTI lobbies and markets to our judges, juvenile justice departments, psychiatrists, psychologists, boards of education, our Department of State, and to our Congress—where [they] are apparently deaf, too.  Or, perhaps, simply too tied to their investments?


Who can stop this madness? A burgeoning multi-billion-dollar industry, where educational consultants were already daydreaming of bank deposits with the dawn of Obamacare. Does it matter to them that a 12-year-old Special Needs child is sharing a bedroom with a 17-year-old sexual predator? What? You forgot to disclose to the child’s parents that the offender was adjudicated for rape? Cha-ching.  It is not Lady Justice blinded by greed here.


Dedicated advocates and activists for children exist for a reason.  They seek justice that does not come for the abused, as there are no checks and balances, or oversight, and certainly no accountability.  Giving voice to those who cannot speak is righteous in a ‘just’ society. The TTI appears determined to silence children’s rights advocates and survivors of an apparent, abhorrent industry.  Silence is not an option. The intrinsic reward is the safety and well-being of our children; it is not a financial, residual bounty. Moreover, yes, Lady Justice carries a double-edged sword, another embodiment that reminds us… to listen, give credence, and rights to all sides, which includes our most precious children, not just their captors.  Conglomerates may not subsidize our lobby, but child advocates and activists remain determined to expose the truth to protect our future—our children.  


Florida’s Dozier School Children had no voice. Hell, America did not even know they existed, until they were unearthed.  There is no licensing or oversight in Florida to this day. The Judge Rotenberg Center in Massachusetts still shocks children… they have no voice… even the Department of State recommends the facility, while the UN equated the facility program to torture. Then, we have the former New Bethany Home for Girls of Arcadia, Louisiana. Their cries—silenced for over 30 years. The owner, Mack W. Ford, was never prosecuted for allegations of rampant abuse and rape; he got off easy—he died.


TTI defamation lawsuits will no doubt continue against child advocates and activists for children’s rights, as numerous facilities and their minions appear beyond narcissistic. Who could blame them?  After all, an oligarchy is First Amendment free.


Lady Justice is watching one such defamation lawsuit filed against a child advocate; actually, one of three current lawsuits involving Diamond Ranch Academy (DRA), deemed a therapeutic boarding school in Utah. Diamond Ranch Academy vs. ------- ----- aka ------- -------.


A ‘Dream Team’ –a stellar group of attorneys represents the defendant, Ms. -------, including Ballard Spahr LLP of Salt Lake City, Utah and the Bazelon Center for Mental Health Law in Washington, D.C.  


On 03-09-2015, attorneys for the defense filed a motion to dismiss, along with six affidavits in support of the motion, including Ms. ­­_______’s affidavit and those affidavits of ‘survivors’ of DRA. The ‘survivor’ affidavits appear damning and read like a horror tale, but of no surprise to those familiar with the TTI.


Additionally, the defense invoked California’s anti-SLAPP and Utah’s own one-year statute of limitations for defamation. For those familiar with law, an instantaneous smile of acknowledgment tantamount to veteran MSM anchor Chris Matthews’ exhortation, “I felt this thrill going up my leg.”

One might have imagined attacking a lone advocate for children’s rights might have appeared as a slam dunk to DRA’s attorneys. That is, until Lady Justice and ‘her’ minions arrived… a Dream Team indeed.


But, again, this is Utah. However, it would be a welcome surprise if any Utah judge ruled for the defense in a TTI case, as it will be a win ‘for the children left behind and those to come.’

Read the Defense Motion to Dismiss, The Defendant's Special Motion to Strike, and Two of the Six Affidavits in Support of Defendant's Special motion to Strike (links provided below "Motion to Dismiss.")

   * Note: Court filings were formatted into MS WORD. Errors may have occurred.  Reasonable effort was made to remove Identifiers as courtesy, although the filings are in public domain.

MOTION TO DISMISS


Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 1 of 27

 Anthony C. Kaye  
Zaven A. Sargsian
BALLARD SPAHR LLP
One Utah Center, Suite 800
201 South Main Street
Salt Lake City, Utah 84111-2221
Telephone: ----------; Facsimile: -----------
kaye@--------------------
sargsianz@--------------------
Edward Chang (admitted pro hac vice)
BALLARD SPAHR LLP
655 West Broadway, Suite 1600
San Diego, California 92101-8494
Telephone: --------; Facsimile: ------------
benjamind@--------------
change@--------------

Ira A. Burnim (admitted pro hac vice)
Jennifer Mathis (admitted pro hac vice)
Julia Graff (admitted pro hac vice)
Andrew Christy (admitted pro hac vice)
BAZELON CENTER FOR MENTAL HEALTH LAW
1101 15th St. NW, #1212
Washington, DC 20005
Telephone: -------------; Facsimile: ------------
irab@------------
jenniferm@------------
juliag@-----------
andrewc@----------------

Attorneys for Defendant and Counterclaim Plaintiff, ------- -------
IN THE UNITED STATES DISTRICT COURT
DISTRICT OF UTAH, CENTRAL DIVISION DIAMOND RANCH ACADEMY, INC.,
Plaintiff and Counterclaim Defendant,
v.
------- -----,
Defendant and Counterclaim Plaintiff.

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Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 2 of 27

DEFENDANT’S RULE 12(C) MOTION FOR JUDGMENT ON THE PLEADINGS AND MEMORANDUM IN SUPPORT
Case No.: 2:14-CV-00751-TC
Judge Tena Campbell
 
     Defendant ------- -------1 (“Defendant” or “Ms. -------”), through counsel, Ballard Spahr LLP, pursuant to Rule 12(c) of the Federal Rules of Civil Procedure, submits this Motion for Judgment on the Pleadings (the “Motion”) and moves the Court to dismiss Plaintiff Diamond Ranch Academy, Inc.’s (“Plaintiff” or “DRA”) claims with prejudice. 


INTRODUCTION 

     Ms. ------- advocates on behalf of youth admitted into residential treatment programs. She has long been active in this space. During her efforts to combat abuses against adolescents, she learned of DRA’s facility and programs in Hurricane, Utah. Based on perceived and documented abuses at DRA, Ms. -------, around May 2012, established a website, www.drasurvivors.com (“the website”), to inform and educate the public. Much of the content on the website was created in June and July of 2012. The website has been updated periodically, but since 2013, few changes have been made to its content. This Motion addresses the reality that Plaintiff has slept on its rights.

     Plaintiff’s claims for defamation are barred by Utah’s one-year statute of limitations. Plaintiff filed its complaint on October 16, 2014. Utah has a one-year statute of limitations for defamation; therefore, any claims based on statements published before October 16, 2013, are time-barred. At least 17 of the 18 statements included in Paragraph 11, which Plaintiff paraphrases, are based on source statements that were posted on the website outside the statute of limitations period. Plaintiff became aware of these statements sometime between June 2012 and
____________________________________

1 Ms. ----- legally changed her name to ------- in August of 2014 and shall herein be referred to as Ms. -------. 

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February 2013. Having failed to timely commence an action, Plaintiff may not rely on these statements, and to the extent it does, Plaintiff’s defamation claims must be dismissed. 

     Separately, Ms. ------- requests that Plaintiff’s third and fourth causes of action for slander be dismissed. Aside from one conclusory allegation concerning an alleged defamatory oral statement, Plaintiff makes no attempt to allege facts supporting a slander claim. Plaintiff has therefore failed to state a claim for which relief may be granted, and its claims should be dismissed. 

ARGUMENT 

     A motion for judgment on the pleadings under Rule 12(c) is treated as a motion to dismiss under Rule 12(b)(6). Thayer v. Washington Cty. Sch. Dist., 781 F. Supp. 2d 1264, 1267 (D. Utah, Feb. 14, 2011). In other words, a “court is to presume, for purposes of considering the motion, that all well-pleaded allegations by the non-movant are true and all reasonable inferences are made in favor of the non-movant.” Id. The Court should not, however, give any presumption of truth to “[l]egal conclusions, deductions, and opinions couched as facts,” Heffner v, Delta Air Lines, Inc., No. 2-02-cv-1378-DS, 2003 WL 23354484, at *1 (D. Utah Oct. 21, 2003), nor “to ‘allegations that contradict matters properly subject to judicial notice’ or to material attached to or incorporated by reference into the complaint.” Ford v. Artiga, No. 2:12-cv-02370, 2013 WL 3941335, at *3 (E.D. Cal., July 30, 2013) (unpublished) (citing Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001)). 

     In considering this Motion, the Court may consider not only “the complaint, but also ‘documents incorporated into the complaint by reference, and matters of which a court may take judicial notice.’” Hogan v. Winder, No. 2:12-cv-123 TS, 2012 WL 4356326, at *3 (D. Utah,
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Sept. 24, 2012) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322 (2007)). This Court should take judicial notice of the date when the allegedly defamatory content was published. As the Tenth Circuit has said, “[i]t is not uncommon for courts to take judicial notice of factual information found on the world wide web.” O’Toole v. Northrop Grumman Corp., 499 F.3d 1218, 1225 (10th Cir. 2007) (holding that “[u]nder the circumstances . . . the district court abused its discretion by failing to take judicial notice of the actual earnings history provided by Northrop Grumman on the internet as required by Rule 201(d).”). 

     Here, the Court should take judicial notice of three things: (1) the specific language that Plaintiff alleges is defamatory and its location on the Internet;2 (2) the information contained in the website logs;3 and (3) information on the “Wayback Machine.”4 The information contained in the website logs and the Wayback Machine provide the date on which each alleged defamatory statement was originally published and, where applicable, the date on which certain alleged defamatory statements were changed. These dates will assist the Court in determining whether the alleged defamatory statements were published outside the statute of the limitations
__________________________________________

2 Because Plaintiff paraphrased the alleged defamatory statements in the Amended Complaint, it is important that the Court take notice of the specific language underlying Plaintiff’s allegations.
3 Although the website logs provide the specific dates when the publications or updates occurred, information on the wayback machine is sufficient to evidence the date of publication or update, and, where relevant, that the update did not substantively modify the language of the original publication. 

4 As one court stated, “[t]he ‘wayback machine’ refers to the process used by the Internet Archive Company, www.archive.org, to allow website visitors to search for archived web pages of organizations.” See Lorraine v. Markel American Ins. Co., 241 F.R.D. 534, n. 29 (D. Md., 2007) (noting that a court ruled the Wayback Machine a reliable source).
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period. A judicial finding of these dates is appropriate in this case. See Mitchell v. Lewis, No. 0:11-2860-CMC-PJG, 2012 WL 137471, n.2 (D. S.C. Jan. 4, 2012) (taking judicial notice of the date Plaintiff was booked into a correction facility); Wilson v. City of Phil., No. 04-5396, 2010 WL 1254111, n.4 (E.D. Pa., Mar. 31, 2010) (taking judicial notice of biographical information, specifically an employment date, located on a law firm’s website). 

     The Court may also consider the webpages where the alleged defamatory statements were published, and the content within them, because Plaintiff refers to the website as the source of each of Ms. -------’s allegedly defamatory statements. (Compl. ¶¶ 10–11 (alleging that Ms. ------- attacked Plaintiff “through her website (www.drasurvivors.com), Facebook pages (https://www.facebook.com/groups/ 314152158598304/?ref=br_tf) and others”).) Because the “referenced websites are incorporated by reference in the Complaint, they may be considered on a motion to dismiss.” C.M. v. Fletcher Allen Health Care, Inc., No. 5:12-cv-108, 2013 WL 4453754, n.1 (D. Vt. Apr. 30, 2013); Gorran v. Atkins Nutritionals, Inc., 464 F. Supp. 2d 315, 319 & n.1 (S.D.N.Y. 2006) (taking notice of a website on a motion for judgment on the pleadings where the website was incorporated by reference in the complaint); Atl. Recording Corp. v. Project Playlist, Inc., 603 F. Supp. 2d 690, 694, n.3 (S.D.N.Y. 2009) (“Some of the facts are drawn from the Court’s own review of [a referenced] website. Because the website is incorporated by reference into the Complaint, the Court may consider it on a motion to dismiss.”).

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I. PLAINTIFF’S COMPLAINT ALLEGES DEFAMATORY STATEMENTS THAT ARE OUTSIDE THE STATUTE OF LIMITATIONS PERIOD AND CANNOT THEREFORE FORM THE BASIS OF A DEFAMATION ACTION AGAINST MS. -------. 

     A significant number of the alleged defamatory statements of which Plaintiff complains were posted to the website outside the one-year statute of limitations. Plaintiff’s First Amended Complaint paraphrases all of the alleged defamatory statements in Paragraph 11’s lettered subparagraphs (“Alleged Defamatory Statements”). With the exception of sub-paragraph (m), the underlying source statements for sub-paragraphs (a), (b), (c), (d), (e), (f), (g), (h), (i), (j), (k), (l), (n), (o), (p), (q), and (r) were all published outside the applicable statute of limitations period.5 See infra Section III.
5 The remaining allegations, in sub-paragraphs (e), (m), and (o), should be dismissed under California’s anti-SLAPP statute. These allegations are likewise subject to, and barred by Ms. -------’s counterclaim against Plaintiff. 

     In Utah, an action for libel or slander “may be brought within one year.” Utah Code Ann. § 78B-2-302(4). The one-year limitation period begins “to run [when] the libel is known or is reasonably discoverable by the plaintiff.” Treff v. Kearns-Tribune Corp., No. 981053-CA, 1998 WL 1758417, at *1 (Utah Ct. App. 1998). Here, Plaintiff filed its complaint against Ms. ------- on October 16, 2014. Thus, any Alleged Defamatory Statement published before October 16, 2013 was published outside Utah’s one-year statute of limitations provided Plaintiff either knew about the statements or the statements were reasonably discoverable to Plaintiff. First, all the Alleged Defamatory Statements were published before October 16, 2013. Second, Plaintiff knew or should have known about the Alleged Defamatory Statements well before October 16,
________________________

5 The remaining allegations, in sub-paragraphs (e), (m), and (o), should be dismissed under California’s anti-SLAPP statute. These allegations are likewise subject to, and barred by Ms. -------’s counterclaim against Plaintiff.  

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2013. In fact, Plaintiff created a competing website6 to rebut Ms. -------’s website, www.therealdrasurvivors.com, on February 22, 2013.7 Plaintiff unquestionably knew about the site as early as February 22, 2013, if not earlier. Further, this Court can rule, as a matter of law, that the alleged libel was “reasonably discoverable by the plaintiff” at the time it was published online. See Russell v. Standard Corp., 898 P.2d 263, 264–65 (Utah 1995).8

6 This website was registered to Andrew Vance, a current DRA employee who previously held the position of Public Relations Director. See Bio of Andrew Vance, DIAMOND RANCH ACADEMY (last visited on Mar. 5, 2015) at http://www.diamondranchacademy.com/staff/andrew-vance-2, attached hereto as Exhibit 1. Besides the similarity between www.DRAsurvivors.com and www.therealdrasurvivors.com, Plaintiff lifted language directly from www.drasurvivors.com and placed it on its competing website.

7 See Screenshot of the Real Diamond Ranch Academy Survivors Website captured from Wayback Machine on December 12, 2013 at http://web.archive.org/web/20131212033306/http://www.therealdrasurvivors.com/, attached hereto as Exhibit 2. 

8 The court in Russell held that “an alleged defamation is reasonably discoverable, as a matter of law, at the time it is first published and disseminated in a newspaper that is widely available to the public.” Russell v. Standard Corp., 898 P.2d 263, 264-65 (Utah 1995). Although Russell dealt with a newspaper, if a newspaper, with subscribers, is widely available to the public, then a fortiori a publicly available website is “widely available to the public.” Russell applies with equal applicability in this case.

II. THIS COURT SHOULD APPLY THE SINGLE PUBLICATION RULE, AND SHOULD BAR THE PLAINTIFF’S CLAIMS THAT ARE BASED ON ALLEGATIONS OF DEFAMATORY STATEMENTS THAT OCCURRED OUTSIDE THE LIMITATIONS PERIOD.

     Plaintiff’s claims cannot rely on the Alleged Defamatory Statements because, as explained above, the Alleged Defamatory Statements were published outside the one-year limitations period and have not been substantively modified since. First, this Court should apply the “single publication rule” and reject the “continuous publication rule.” The single publication

_________________________________

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Case 2:14-cv-00751-TC Document 29 Filed 03/09/15 Page 8 of 27

rule provides that the “one-year limitations period begins to run when publication of the libelous statement is complete.” Nationwide Bi-Weekly Admin., Inc. v. Belo Corp., 512 F.3d 137, 142 (5th Cir. 2007). In contrast, the “continuous publication rule” states that “each time a viewer accesses [an] article from [a] website a ‘republication’ occurs for statute of limitations purposes.” Id. As the Fifth Circuit noted in a recent case, the “continuous publication rule” is “virtually always rejected” by courts and “[e]very case to consider the issue has applied the single publication rule to publicly available Internet articles.” Id. at 143, 144 (emphasis added) (“strong policy considerations support application of the single publication rule to information publicly available on the Internet.”). Although Utah courts have not decided this issue,9 the vast majority of courts, including the Tenth Circuit, have found the single publication rule to be controlling.10

9 It appears that no Utah case has decided whether the “single publication rule” applies in Utah. Yeager v. Frot Knox Sec. Products, No. 14-4011, 2015 WL 525688, at *6 (10th Cir., Feb. 10, 2015) (unpublished) (stating that the parties “spar[ed] over such unsettled issues as . . . whether the Utah courts would recognize [the single publication rule] for the type of state torts alleged here.”). Id. A federal court here in Utah did, however, recently reject the continuous publication rule. See Mathison v. CLC Consumer Servs., 2013 WL 632108, *7 (D. Utah, Feb. 20, 2013) (rejecting plaintiff’s argument, in response to a statute of limitations defense, that defendant “continued to republish defamatory statements well into 2010.”).

10 In McBride, “[s]ome of the allegedly defamatory statements [were] blocked by Wyoming’s one-year statute of limitations.” McBride v. Peak Wellness Ctr, Inc., 688 F.3d 698, 710 (10th Cir. 2012). There, the Tenth Circuit stated that “[a]lthough McBride argue[d] the statements form[ed] a pattern constituting a single ‘continuing tort’ that survives the statute of limitations, the continuing-tort doctrine [was] inapplicable . . . because each statement was a discrete, potentially actionable occurrence.” Id. (citing Flowers v. Carville, 310 F.3d 1118, 1126 (9th Cir. 2002)). 

     Although the vast majority of courts across the country have adopted the single publication rule, a number of those jurisdictions have recognized an exception to the single

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publication rule, known as “republication.” Importantly, the republication exception is construed narrowly. Clark v. EA Entertainment Tele., LLC, No. 3:13-00058, 2014 WL 5106897, at *2, 3 (M.D. Tenn., Oct. 10, 2014) (noting that the republication doctrine is “narrowly construed”); see also Salyer v. So. Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 914 (W.D. Ky. 2009) (noting that republication is a narrow exception to the single publication rule). In the Internet age, parties have litigated whether “non-substantive modifications . . . constitute ‘republication’ so that the statute of limitations commences anew upon ‘republication.’” Clark v. Viacom, Int'l, Inc., No. 3:12-0675, 2013 WL 1245681, at *4 (M.D. Tenn. March 23, 2013). “As a leading treatise [has] observed, ‘[m]odifications . . . , such as minor changes or addition of material irrelevant to the alleged defamatory material, or changes in the manner in which the material may be accessed, do not ordinarily constitute a new publication.’” Id. (citing Sack on Defamation: Libel, Slander, and Related Problems § 7:2.1) (emphasis added).11 In other words, republication occurs only when (1) the alleged defamatory material complained of (2) is substantively modified. See Salyer v. Southern Poverty Law Ctr., Inc., 701 F. Supp. 2d 912 (W.D. Ky., Dec. 7, 2009). This is because a broad exception to the single publication rule would implicate the “potential for
______________________________

11 See also Salyer v. Southern Poverty Law Ctr., Inc., 701 F.Supp.2d 912, 918 (W.D. Ky., 2009) (stating that “[t]raditional republication occurs when the substance of the previously published defamatory statements are altered . . . . Neither of those methods of republication occurred in this case. The hyperlinks, while adding a new method of access to ‘A Few Bad Men,’ did not restate the allegedly defamatory statements and did not alter the substance of that article in any manner.”) (emphasis added); In re Phil. Newspapers, LLC, 690 F.3d 161, 175 (3d Cir. 2012) (“Websites are constantly linked and updated. If each link or technical change were an act of republication, the statute of limitations would be retriggered endlessly and its effectiveness essentially eliminated.”); Shepard v. TheHuffingtonPost.com, Inc., No. 12-1513 (PAM/SER), 2012 WL 5584615, at *2 (D. Minn., Nov. 15, 2012) (holding that adding “hyperlinks to the original article, . . . do[es] not restart the statute of limitations.”).

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endless retriggering of the statute of limitations, multiplicity of suits and harassments of defendants,’” and may have a “serious inhibitory effect on the open, pervasive dissemination of information and ideas over the Internet.” Nationwide Bi-Weekly Admin., 512 F.3d at 144.


     Two cases are instructive on this issue. In Salyer, the plaintiff (an individual) brought an action against the Southern Poverty Law Center (“SPLC”) alleging that SPLC published defamatory statements about him online. Salyer, 701 F.Supp.2d at 913. The alleged defamatory statements were found in an article that was posted to SPLC’s website around 2006 and was not altered until 2008. Id. at 914. Although the court adopted the single publication rule, the issue was whether “a narrow exception to the single publication rule called ‘republication,’ could provide a way for Plaintiffs to avoid dismissal.” Id. (emphasis added). The court noted the difficulty in “applying the traditional republication exception in the context of material published on the internet.” Id. at 915 (“Very little case law . . . directly addresses these issues.”). In its discussion, the court said that other courts had found that republication occurs when “new substantive information was added to the actual webpage defaming the plaintiffs.” Id. at 917 (emphasis added). The court held that there was no such republication by SPLC. It said that the defamatory material “was never modified in any manner until Plaintiff’s name was removed.” Id. It further said that “[w]hile other portions of the . . . website may have changed, those portions were unrelated to the defamatory statements,” and that there were no “substantive changes that [would] trigger[] republication.” Id. at 917–18 (emphasis added). The court concluded by stating that “the lack of substantive changes strongly suggests the absence of republication.” Id. at 918 (emphasis added).

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     In another case, plaintiff alleged “twenty-seven (27) libelous statements published by Defendants on the Internet.” Clark v. Viacom Int'l, 2013 WL 1245681, at *1. The court first noted that the “single publication rule applies to information published on the Internet.” Id. at *3 (citations omitted). It then addressed whether “certain non-substantive modifications to the Defendants’ website at issue constitute ‘republication’ so that the statute of limitations commences anew upon ‘republication.’” Id. at *4. The court, first, said that plaintiffs had “earlier conceded the absence of substantive material to the alleged defamatory articles”—and this alone was sufficient. Id. The court, however, continued on to state that, “[i]n any event[,] courts have rejected this republication argument.” Id. It noted that, “[a]s a leading treatise [has] observed,” “‘[m]odifications of a website, such as minor changes or addition of material irrelevant to the allegedly defamatory material . . . do not ordinarily constitute a new publication.’” Id.

     Here, as explained below, certain of the Alleged Defamatory Statements have not been updated or edited at all since their original publication (much less substantively). The source statements for the following have not been changed since before October 16, 2013: Paragraph 11 (a), (k), (l), (n), (o), (p), (q), (r). The allegations in these specific sub-paragraphs were published outside the limitations period, and were never updated. Of the remaining Alleged Defamatory Statements, where there have been changes, such changes were non-substantive or simply were not changes to the Alleged Defamatory Statements that Plaintiff specifically complains of. Sub-paragraphs 11(b), (d), (g) were updated, but the updates were to delete language that Plaintiff alleges is defamatory and were otherwise not substantively modified. Only the Alleged Defamatory Statements in sub-paragraphs (c), (e), and (h) had something added to them. If, 

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however, the Court focuses on the “specific language complained of,” it will observe that additions to original posts were not substantive and did not go to the specific language Plaintiff alleges is defamatory. In short, Plaintiff should not be allowed to rely on the Alleged Defamatory Statements in claiming libel.

III. ALL OF THE ALLEGED DEFAMATORY STATEMENTS WERE PUBLISHED OUTSIDE THE LIMITATIONS PERIOD AND WERE EITHER NOT MODIFIED AFTER PUBLICATION OR WERE NOT SUBSTANTIVELY MODIFIED AFTER PUBLICATION.

     Ms. ------- restates12 the Alleged Defamatory Statements found in Plaintiff’s Amended Complaint and responds to them below:

12 Plaintiff paraphrases many of the statements it alleges are defamatory. For this reason, as explained earlier, the Court should take judicial notice of the actual source statements as found on the website. 

13 Declaration of ------- ------- in Support of Defendant’s Rule 12(c) Motion for Judgment on the Pleadings (hereinafter “------- Decl.”) ¶ 2(a)(i), Filed concurrently herewith. Plaintiff also claims that this was based on a “comment dated August 1, 2014, directed to several people on the Facebook page entitled ‘I survived Diamond Ranch Academy.’” (Compl. ¶ 11(a).) It is unclear what Facebook post Plaintiff is referring to.

(a) DRA is not a legitimate treatment facility and that its methods are unethical and illegal, abusive, and fatal.

     This Alleged Defamatory Statement is based on two posts. The first post states, “Our message is clear; Diamond Ranch Academy is NOT a legitimate treatment facility and their methods are unethical, illegal and abusive.” This statement was originally published in 2012.13 Plaintiff alleges that this statement was “posted on Diamond Ranch Academy Survivors website, June 28, 2013, but removed from [sic] site following the filing of the original Complaint in this

___________________________
12 Plaintiff paraphrases many of the statements it alleges are defamatory. For this reason, as explained earlier, the Court should take judicial notice of the actual source statements as found on the website.

13 Declaration of ------- ------- in Support of Defendant’s Rule 12(c) Motion for Judgment on the Pleadings (hereinafter “------- Decl.”) ¶ 2(a)(i), Filed concurrently herewith. Plaintiff also claims that this was based on a “comment dated August 1, 2014, directed to several people on the Facebook page entitled ‘I survived Diamond Ranch Academy.’” (Compl. ¶ 11(a).) It is unclear what Facebook post Plaintiff is referring to.  

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matter.”14 (Compl. ¶ 157(a).) Logic dictates that removing a post cannot be considered a “substantive modification.” Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

14 A ruling by the Court that deletion of language alleged to be defamatory results in “republication,” will cause perverse incentives. In the future, defendants that are asked by potential plaintiffs to remove language will refuse to do so at the fear of triggering “republication.” This cannot be the result. Defendants should be allowed to freely remove language without fear of causing republication. 

15 ------- Decl. ¶ 2(b)(i).

16 Id. ¶ 2(b)(ii). 

17 The indented language tracking the Alleged Defamatory Statement, indicates what language was added and what language was deleted. The language in bold was added, the language with a strikethrough was deleted. 

18 ------- Decl. ¶ 2(b)(ii).
(b) DRA physically, emotionally and psychologically abuses its students. 

     This Alleged Defamatory Statement is based on two posts. One post was originally published on June 28, 2013, and stated, “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children . . . .”15 This post has not been modified. The second post was published originally on June 19, 2012, and at that time stated, “However, that is not what survivors of this school are saying … They indicate that children who have attend[ed] DRA were ‘physically, emotionally and psychologically abused.’”16 This second post was updated on October 24, 2014 to state:17 

     However, that is not what survivors former students of this school are saying …, They indicate that these advertisements are nothing short of a lie and that the children who have attend DRA are were “physically, emotionally and psychologically abused.”18
___________________________

 14 A ruling by the Court that deletion of language alleged to be defamatory results in “republication,” will cause perverse incentives. In the future, defendants that are asked by potential plaintiffs to remove language will refuse to do so at the fear of triggering “republication.” This cannot be the result. Defendants should be allowed to freely remove language without fear of causing republication.

15 ------- Decl. ¶ 2(b)(i).
16 Id. ¶ 2(b)(ii). 

17 The indented language tracking the Alleged Defamatory Statement, indicates what language was added and what language was deleted. The language in bold was added, the language with a strikethrough was deleted. 

18 ------- Decl. ¶ 2(b)(ii).  
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     As is apparent, the October 24, 2014 update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication date of June 19, 2012 for purposes of the statute of limitations. Based on the original publication dates, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(c) That DRA owners and staff “completely disregard the rights, individual needs and welfare” of its students. 

     This Alleged Defamatory Statement is based on one post, which was originally published on June 19, 2012. It stated: “This program employs MANY policies that have been determined to be abusive and they completely disregard the rights, individual needs and welfare of these children . . . .” 19 On October 27, 2014, it was updated to state: 

     This program employs MANY policies Former students report that have been determined to be abusive DRA owners and they staff completely disregard the rights, individual needs and welfare of these children in their care.20

     The October 27, 2014 update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
__________________________
19 Id. ¶ 2(c)(i).
20 Id.  
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(d) DRA unlawfully incarcerates children and dehumanizes children.

     This Alleged Defamatory Statement is based on two posts. One post was published on June 19, 2012 and stated that “[t]uition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate a child and break their will.”21 This post was updated on March 26, 2014, October 18, 2014, and October 24, 2014 to state: 

     Tuition for DRA can cost roughly $6000 a month and anywhere from $72,000 - $200,000 (or more) simply to unlawfully incarcerate and break their will depending on the length of time the child is enrolled .22 

     As is noticeable, the update deleted language Plaintiff alleges is defamatory. A deletion of language, especially language Plaintiff alleges is defamatory, cannot be considered a substantive modification sufficient to trigger “republication.” 

     The other part of the Alleged Defamatory Statement—i.e., the “dehumanizes children” allegation—was part of a post published on June 19, 2012, which stated, “It is the opinion of DRA Survivors that these strip searches are not only unnecessary but used purposely as a means of dehumanization, and humiliation.”23 This post was updated on October 27, 2014 to state: 

     It is the opinion of DRA Survivors that these strip searches are not only unnecessary and overused (multiple times a day) but used purposefully as a means of humiliation and dehumanization, and humiliation.24
___________________
21 Id. ¶ 2(d)(i).
22 Id.
23 Id. ¶ 2(d)(ii).
24 Id.  
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 Here also, the update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication of both posts—June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(e) DRA engages in deceptive and dishonest marketing techniques.
    
 This Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. That post stated, “Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their incompetent methods in order to obstruct the truth and make claims to such impossibilities as a ‘miracle cure’ for adolescent behavior.”25 On October 27, 2014, the language of this post was substantially deleted to state:
    
 Deceptive marketing techniques are nothing new to the troubled teen industry, often when explaining the aspects of the program they use commonly known words to describe their incompetent methods in order to obstruct the truth and make claims to such impossibilities as a ‘miracle cure’ for adolescent behavior program in order bring credibility to methods.26
     
As is apparent, the update deleted language that Plaintiff complains is defamatory, and only added “program in order bring credibility to methods.” This update did not substantively modify the language. This Court should therefore look to the original publication date, which was on June 19, 2012. Based on the original publication date,
__________________________
25 Id. ¶ 2(e)(i).
26 Id.  
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this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(f) DRA employs a violent and painful form of torture as punishment. 

     This Alleged Defamatory Statement is based on a post that was originally published on August 23, 2012. That post stated, “Most importantly, what is called ‘restraint’ and promised to parents to be used as a last resort is in all actuality a violent and painful form of torture used as punishment.”27 This post was updated on October 27, 2014 to state:

     Most importantly, what is called ‘restraint’ and promised According to parents former students, “Restraint” (which DRA claims to be used as a last resort only) is in all actuality actually a violent and painful form of torture used as punishment.28 

     As is apparent, the update did not substantively modify the alleged defamatory language. This Court should therefore look to the original publication, which was on August 23, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(g) DRA employs an unqualified, improperly trained staff. 

     This Alleged Defamatory Statement is based on posts that were originally published in 2012 and 2013. The first post, published on June 18, 2012, stated, “Despite the dangerous nature of such techniques and the misuse of them by unqualified, improperly trained staff, ‘restraints’
­­­­­­­­­­___________________________
27 Id. ¶ 2(f)(i).
28 Id.
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have become a staple of the ‘therapy’ administered by DRA.”29 This post was updated on October 27, 2014 to state:
    
 Despite Restraining a student may happen for any violation of the dangerous nature of such techniques schools rules, and the misuse of them is doled out by unlicensed, therapeutically unqualified, improperly trained staff “restraints” have become a staple of the “therapy” administered at DRA, members that many former students refer to as “grown up bullies.”30
      
Although the update added content to the post, it did not substantively modify the specific language Plaintiff alleges is defamatory, i.e., the statement about “unqualified, improperly trained staff.” This Court should therefore look to the original publication, which was on June 18, 2012.
      
There are also two other posts that this allegation may be based on. The first states, “Most will describe them as overgrown bullies, unqualified and unfit to be working with children . . . . I also think their parents don’t deserve to be lied to and sold a bill of goods that is simply impossible for such unqualified people to deliver.”31 This was originally published on June 28, 2013, and has not changed. The second post states, “Are you aware that the staff employed by DRA who are responsible for the children’s daily activities are all unqualified, improperly trained and underpaid?”32 This post was published on May 5, 2013, and, also, has not been changed. Based on the original publication dates, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
______________
29 Id. ¶ 2(g)(i).
30 Id.
31 Id. ¶ 2(g)(ii).
32 Id. ¶ 2(g)(iii).  
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(h) DRA operates a “private prison, where due process of the law and even the most basic of human rights are violated.” 

     The Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. The original post stated, “In reality, it is nothing more than a private prison where due process of the law and even the most basic of human rights are violated without any reason other than their parents felt they needed help and ‘it looked nice in the brochures’.”33 This post was later updated, on October 27, 2014, to state:

     In reality, it is a privately-run teen nothing more than a private prison where due process of the law and even the most basic of human rights are of children may be violated without any reason other than cause, legal repercussion or the ability for a student who has become the victim of abuse to voice their parents felt they needed help and ‘it looked nice in the brochures’ grievance.34 

     Although the update added content to the post, it did not substantively modify the specific alleged defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(i) When a parent sends a child to DRA, the child will be “abused”, and may “never come back at all.”
     The Alleged Defamatory Statement is based on a post that was originally published on June 19, 2012. The original post stated, “… and if sending their child away is worth the risk that
_________________________
33 Id. ¶ 2(h)(i).
34 Id.  
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they might be abused, or never come back at all. RIP James Shirley.”35 This post was later updated, on October 27, 2014, to state, “Is sending their your child away is worth the risk that they might will be abused, or that they will never come back at all.? RIP James Shirley.”36 As is noticeable, the update did not substantively modify the allegedly defamatory language. This Court should therefore look to the original publication, which was on June 19, 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

35 Id. ¶ 2(i)(i).
36 Id.
37 Id. ¶ 2(j)(i).
38 See supra n. 20 (this is the same post as paragraph 11(d) of Plaintiff’s complaint).
39 ------- Decl. ¶ 2(j)(ii).
40 See http://drasurvivors.com/dra-survivors-utah-dhs-licensing-office-complaint/. 

(j) DRA engages in improper strip searches, “cruel and unusual punishment”, dehumanization, humiliation, and the starvation of its students. 

     This Alleged Defamatory Statement is based on a few posts. The first post was originally published on June 19, 2012 and stated, “It is the opinion of DRA Survivors that these strip searches are not only unnecessary but used purposely as a means of dehumanization, and humiliation.”37 This was updated on October 27, 2014, but was not substantively modified—as explained in (d) above.38 The second source statement for the Alleged Defamatory Statement was originally published on May 5, 2013, and stated “Are you aware that this meal plan constitutes starvation.”39 This post was not updated, and the content remains the same.40 The

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last source statement for the Alleged Defamatory Statement was originally published on June 28, 2013, and stated, “Not to mention that the ‘therapy’ used in DRA, called Aversion Therapy, has been outlawed in most state prisons, because it has been deemed to be ‘cruel and unusual punishment’.”41 This post has not been modified.42 In short, the source statements underlying this Alleged Defamatory Statement were either not substantively modified, or not modified at all. This allegation cannot therefore form the basis of Plaintiff’s claims.

41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where the statement that “DRA’s students are denied adequate . . . food” is published.
44 Id. ¶ 2(k)(ii). 

(k) DRA’s students are denied adequate medical care and food. 

     This Alleged Defamatory Statement is based on two posts. The first post was originally published on June 19, 2012, and was updated on August 23, 2012. Both the original publication date and update are outside the limitations period. The post reads, “This leads to many incidents going unreported, and the children being denied adequate medical care if the medical staff is not on duty.”43 The second post stated, “Are you aware that a child died in Diamond Ranch Academy? Do you know that they refused him medical care and all he needed was an extra dose of his medication and that family would still have his son?”44 This post was originally published on June 29, 2013, and has not been changed. Based on the original publication dates, this Allegedly Defamatory Statement was published outside the limitations period and cannot form the basis of Plaintiff’s defamation claims.
___________________

41 ------- Decl. ¶ 2(j)(iii).
42 Id. (This page has been removed).
43 ------- Decl. ¶ 2(k)(i). It is unclear when or where the statement that “DRA’s students are denied adequate . . . food” is published.
44 Id. ¶ 2(k)(ii).  

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(l) DRA employs “seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture.”
      
This Alleged Defamatory Statement is based on a single post. The post was published on August 17, 2012, and stated, “The truth is, Diamond Ranch Academy . . . is a behavior modification program that employs techniques of seclusion, forced labor, physical violence, fear based control and brainwashing methods that violate all basic human rights and could certainly be considered child abuse, if not actual torture.”45 This post has not been updated.46 Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(n) DRA does not provide “real therapy”, does not follow clinical standards, “physically and psychologically” abuses children, and “scams parents out of millions of dollars.”
       
This Alleged Defamatory Statement was published on June 28, 2013. The post reads, “They do not provide real therapy, they do not follow clinical standards, they physically and psychologically abuse children and they scam their parents out of millions of dollars.”47 This content has been removed. As explained above, logic dictates that removal of content that Plaintiff alleges was defamatory cannot be considered a substantive modification.48 Based on the
­­­­­­­­­­­­­­­­­­­________________
45 Id. ¶ 2(l).
46 See http://drasurvivors.com/dr-drew-endorses-diamond-ranch-academy/.
47 ------- Decl. ¶ 2(n)(i).
48 This page appears to have been taken down. See http://drasurvivors.com/letter-to-dra-parent/ (last visited Mar. 4, 2015) (noting that the page cannot be found).  

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original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
(o) Members of DRA’s medical staff are not licensed medical professionals.

     This Alleged Defamatory Statement was published on May 5, 2013. The post reads, “Are you aware that their medical staff is not usually present on campus and that the staff member tasked with administering medication is not a licensed medical professional?”49 This post has not been updated and remains the same. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.

(p) DRA has a “long history of abuse, dangerous policies and a wrongful death.”

     This Alleged Defamatory Statement was published on July 9, 2013. The post reads, “With a long history of abuse, dangerous policies and a wrongful death, Diamond Ranch Academy is absolutely no place for a depressed child with suicidal tendencies.”50 This post has not been updated and remains the same.51 A second post described the “abuse” experienced by children. The second post stated, “Are you aware that former clients of DRA have reported that they/their children were systematically abused in DRA? . . . Are you aware that this policy has been directly responsible for the wrongful death of a 14-year-old student?”52 This post was originally published on May 5, 2013 and has not been changed. Based on the original
__________________________
49 ------- Decl. ¶ 2(o)(i).
50 ------- Decl. ¶ 2(p)(i).
51 See http://drasurvivors.com/paris-jackson-to-be-sent-to-diamond-ranch-academy/.
52 ------- Decl. ¶ 2(p)(ii).  

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publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim.
(q) DRA’s therapy techniques are not “clinically approved”, “but quite simply a form of corporal punishment.”
     This Alleged Defamatory Statement was published on July 9, 2013. The relevant part of the post states, “This experimental therapy is not clinically approved treatment, but quite simply a form of corporal punishment.”53 The alleged defamatory language has not been changed or updated.54 A second post, published on June 19, 2012, states:

What is called ‘therapy’ is not a clinically approved method of rehabilitation, it is an experimental psychological treatment that utilizes the response to fear, intimidation and the human longing for love and acceptance as weapons against their psyche and forced upon them to ensure absolute submission to the program’s doctrine.55 

This post was changed on October 27, 2014 to read: 

What is called ‘therapy’ ‘The program’ of Diamond Ranch Academy is not a clinically approved or evidence based method of rehabilitation, it is but an experimental psychological treatment form of behavior modification that utilizes the response to fear, intimidation and the human longing for love and acceptance as weapons against their psyche and forced upon them to ensure absolute submission to the program’s doctrine.56 

Although there was language added, the language did not substantively modify the statement. Lastly, there was a third post on May 5, 2013. That stated “Are you aware that the ‘therapy’ provided by DRA is NOT a clinically approved treatment, but an experimental therapy called
____________________________
53 ------- Decl. ¶ 2(q)(i).
54 See supra n. 39.
55 ------- Decl. ¶ 2(q)(ii).
56 Id.
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‘behavior modification’ based on the principals of Aversion Therapy, or in more simple terms, corporal punishment.”57 This statement is similar to the above statement, and was not changed. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

(r) DRA is not a legitimate treatment facility and that its methods are unethical, illegal, abusive and fatal. 

      This Alleged Defamatory Statement is based on the same source statements as that of Paragraph 11(a).58 As explained above, this Alleged Defamatory Statement was published in 2012. Based on the original publication date, this Alleged Defamatory Statement was published outside the limitations period and cannot form the basis of a defamation claim. 

IV. DRA’S CAUSES OF ACTION FOR SLANDER SHOULD BE DISMISSED FOR FAILURE TO STATE A CLAIM BECAUSE DRA MAKES NO CLAIM THAT THE ALLEGED DEFAMATORY STATEMENTS WERE COMMUNICATED ORALLY. 

     “Slander and libel are a subset of defamation.” Jensen v. Sawyers, 2005 UT 81,¶ 33, n.6, 130 P.3d 325. Slander is the “publication of defamatory matter by spoken words,” whereas libel “consists of the publication of defamatory matter by written or printed words . . . .” Id. Plaintiff’s complaint includes two causes of action for slander—slander and slander per se. (Compl. ¶¶ 41–64.) Plaintiff, however, does not allege any specific defamatory statements that were published orally. Plaintiff’s third and fourth causes of action should therefore be dismissed.
______________________
57 Id. ¶ 2(q)(iii).
58 Id. ¶ 2(a)(i).  
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     DRA’s Complaint lists in Paragraph 11 all the statements allegedly made by Ms. -------. But Paragraph 11 makes no allegation that Ms. ------- communicated these statements orally. To the contrary, Plaintiff expressly alleges that the Allegedly Defamatory Statements were “originally published and/or re-published by -------, in writing.” In paragraph 12, Plaintiff throws in a conclusory allegation that “[u]pon information and belief, ------- also made other defamatory statements, both in writing and orally.” But Plaintiff fails to identify any oral communication. See Zoumadakis v. Uintah Basin Med. Ctr., Inc., 2005 UT App 325, ¶ 3, 122 P.3d 891 (“Utah law requires a defamation complaint to be dismissed for lack of particularity only where it contains nothing more than general, conclusory allegations of defamation.”); Green v. Lexis-Nexis, 513 Fed.Appx. 772, 773 (10th Cir. 2013) (unpublished) (stating that “‘[t]hreadbare recital of elements of a cause of action, supported by mere conclusory statements, do not suffice.’”). 

     Although a litigant may draft a complaint broadly by including several causes of action, here DRA has thrown in everything but the kitchen sink in bringing this defamation action. But in doing so, it neglected to identify any statements that were actually oral and that could thereby constitute slander. Because DRA does not allege separate facts for its slander claims, and concedes that all the Alleged Defamatory Statements listed in paragraph 11 were written, this Court should grant Ms. -------’s Motion and dismiss DRA’s third and fourth causes of action. 

CONCLUSION
     This Court should dismiss with prejudice Plaintiff’s defamation claims to the extent that Plaintiff’s claims rely on any of the Alleged Defamatory Statements identified above. These statements were published outside the limitations period and either have never been updated or,
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if updated, were not substantively modified. This Court should also dismiss Plaintiff’s third and fourth causes of action. Although Plaintiff claims slander, Plaintiff does not identify any oral communications.
                                     DATED this 9th day of March 2015.
/s/ Anthony C. Kaye ____________________
Anthony C. Kaye, Esq.
Zaven A. Sargsian, Esq.
Edward Chang, Esq. (admitted pro hac vice)
BALLARD SPAHR LLP
Attorneys for Defendant and Counterclaim Plaintiff, ------- ------- 

  
DEFENDANT ------- ------- MOTION TO STRIKE :
 http://jilliestake.blogspot.com/p/blog-page_13.html


AFFIDAVITS OF "SURVIVORS" IN DEFENSE OF DEFENDANT'S SPECIAL MOTION TO STRIKE:
 http://jilliestake.blogspot.com/p/blog-page_62.html

http://jilliestake.blogspot.com/p/diamond-ranch-academy-vs.html