In The District Court Introduction To Civil Litigation - 1650 Words

In The District Court: Introduction To Civil Litigation (Essay Sample) Content: IN THE DISTRICT COURTTEXARKANA************************************************************************* BETTY BOOPPlaintiffv.JOHN SMITH.Defendant ))))))))))))))))))))) Case No.: 15-5545Before the Honorable Judge PollexMOTION TO DISMISSJoe Doe585 Main StTexarkana, 45854Telephone: (485)879-5555Attorney for Defendant ************************************************************************* DEFENDANTS MOTION TO DISMISSNow comes Defendant, John Smith, by and through undersigned counsel, and hereby moves this Court to Dismiss Plaintiffs Complaint for the reasons that appear in the following memorandum.Respectfully Submitted,/s/ Joe Doe__________________Joe Doe585 Main StTexarkana, 45854Telephone: (485)879-5555Attorney for DefendantMEMORANDUM IN SUPPORT OF DEFENDANTS MOTION TO DISMISSI.STATEMENT OF THE FACTSBetty Boop is a resident of Texarkana and works with John Smith who is also a resident of Texarkana in the same office. The court heard that on May 21, John Smith, the d efendant spotted Betty Boop, the plaintiff picking $ 500 from the cash register in the office. The defendant was quickly to call the police and report the matter. As a result, the plaintiff was arrested but later freed after charges against her were dropped. This was after the plaintiff agreed to return the money to cash register. However, Betty Boop insisted that she had taken the money with an intention to replace same amount the following day.The plaintiff also maintained that she understood the money was a loan that she was obligated to refund. The plaintiffs urgent need for cash was intensified by her desire to purchase a complete series of MacGuyver, her favorite television show. The plaintiff was more concerned about her privacy when she overhead John Smith conversing with her wife over the phone. It was clear to her instincts that John Smith proceeded to reveal to his wife, telling her how he had spotted the plaintiff, Betty Boop withdrawing money from the cash register. It could be determined that John Smith was too fast to act harshly on the actions of the plaintiff, Betty Boop. As a result, the plaintiff was aggrieved and sued John Smith for character defamation. The plaintiff stated that as a result of the defendants careless actions, she had been subjected to mental torture, emotional stress, humiliation and embarrassments.It was also established that since the commencement of this case, the plaintiff has been forced to incur extra expenses on court and fees for hiring an attorney. Therefore, the plaintiff is requesting for relief against these claims and compensation for the costs incurred during these court sessions, forgone wages and benefits due to absenteeism from work and general damages. In total, the plaintiff is requesting twenty five thousand dollars ($ 25,000) plus accumulated interests. This amount will be used to cover for consequential losses and caution the defendant against such punitive actions and careless utterances towards his colleagues.The plaintiff, Betty Boop, through her lawyer Mary Smith is therefore requesting for a fair trial and determination of this case to protect further deconstruction to her reputation among colleagues and her family. In this request, the plaintiffs lawyer also maintains that the hearing and trial process be conducted by her peers and only restricted to matters are rightfully triable by the jury.ON July 10II.STANDARD OF REVIEWA motion to dismiss, pursuant to Fed. R. Civ. P. 12(b) (6), questions the sufficiency of the pleadings. Dotson v. Wilkinson, 477 F.Supp. 2d 838, 844 (N.D. Ohio 2007). Under Fed. R. Civ. P. 8(a) (2), a pleading must contain a short and plain statement of the claim showing that the pleader is entitled to relief. (Complaint at 1). As the Supreme Court held in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), the pleading standard Rule 8 announced does not require detailed factual allegations. To survive a motion to dismiss, a complaint must contain suff icient factual matter, accepted as true, to state a claim to relief that is plausible on its face. (Complaint at 2). Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007)). Heightened fact pleading of specifics is not required. Twombly, 550 U.S. at 570. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Iqbal, 129 S. Ct. at 1949. Plaintiff has not fulfilled her obligation to set forth sufficient factual allegations, which when taken as true, establish the essential elements of the aforementioned claims.III.LAW AND ARGUMENTThe Plaintiff has the burden of proof by clear and convincing evidence. Barnett v. Denver Publishing Co., 36 P.3d 145, 147 (Colo. App. 2001). To state a claim for defamation under Colorado law, a plaintiff must allege: (i) a defamatory statement; (ii) published to a third part y; (iii) the existence of special damages or action ability absent special damages; and (iv) actual malice. Like argued in the case of Card v. Stratton Oakmont, incorporation, 937 P.2d 846, 850 (Colo. App. 1996); Barnett, 36 ...