Davis v. Voorhees

• Court: District Court, D. Arizona
• Decided: July 13, 2022
• Docket: 3:21-cv-08249
• Status: Unknown

Opinion

1 WO 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE DISTRICT OF ARIZONA

9 Audrey Davis, No. CV-21-08249-PCT-DLR

10 Plaintiff, ORDER

11 v.

12 Rhondie Voorhees, et al.,

13 Defendants. 14 15 16 Pending before the Court is Plaintiff’s “Motion for Rule 41(d) Costs and Stay of 17 Proceedings on Counterclaim” (Doc. 17) and motion to dismiss (Doc. 24). 1 The Court 18 denies both motions. 19 I. Background 20 Audrey Davis is a student at Embry Riddle Aeronautical University (“ERAU”). 21 (Doc. 49 at 3.) Rhondie Voorhees is Dean of Students there. (Id. at 5) Ms. Davis filed a 22 Title IX complaint with ERAU but was unsatisfied with the results of the investigation. 23 Ms. Davis then met with Ms. Voorhees, the ERAU Dean of Students. (Id.) At the 24 meeting, Ms. Voorhees alleges that she “made it clear” to Ms. Davis—and that Ms. Davis 25 acknowledged that she understood—that Ms. Voorhees “did not oversee or supervise Title 26 IX matters at ERAU” and directed her to “the Title IX Coordinator’s supervisor, who is 27 1 After filing the motion to dismiss, Plaintiff filed a first amended complaint and 28 Ms. Voorhees re-asserted her counterclaims. (Docs. 49, 50.) Plaintiff renewed her motion to dismiss as to those counterclaims, which remained unchanged. (Doc. 53.) 1 the Vice President and General Counsel for the University.” (Doc. 50 at 20.) 2 After the meeting, however, Ms. Davis circulated a petition calling for Ms. 3 Voorhees’ resignation: 4 Dean of Students Rhondie Voorhees was asked to leave her last position at University of Montana for a culture that she, and 5 other staff members perpetuated regarding how the college system of justice handles rape. In the total of 80 rapes over the 6 span of three years Dean Rhondie Voorhees oversaw, only one was convicted. I googled her name and the word ‘rape’ and I 7 was very disappointed at the articles that came up.(seen below) 8 I and most of my female friends at ERAU have been sexually assaulted or harassed. I reported it to the school and the 9 investigation took over 150 days to come to a decision. There was not enough information to convict him. The following 10 semester I was put in a class with my abuser. I’m sure you have heard the rumors or know people who have the same 11 experience as I or who haven’t reported their assault because of our school’s reputation with title IX. When I had a meeting 12 with the Dean, I told her how it was very traumatic to see that I was put in a class with my abuser and suggested that there 13 should be an early warning system put in place for both parties, so they don’t have the possibility of showing up to class and 14 being forced to interact. She said that would take a lot of work, and never got back to me. She represents a culture of letting 15 abusers get a free pass. (see Jon Krakauer’s book Missoula; Rape and the Justice System in a college town). 16 17 (Doc. 50-3.) The petition then solicits signatures and directs readers to several hyperlinked 18 articles, one of which she summarizes as “Dean Rhondie made Trans student drop out, 19 after coming out. Stating they violated the student conduct after an incident that occurred 20 6mo prior.” (Id.) Ms. Voorhees reads the petition as implying she bore some responsibility 21 for the investigation taking longer than Ms. Davis liked, for how things were handled after 22 the investigation, and that she is anti-LGBTQ, implications she alleges are false. She 23 alleges that the petition falsely states that she “was asked to leave her last position at 24 University of Montana for the culture she, and other staff members perpetuated regarding 25 how the college system of justice handles rape.” (Doc. 50 at 21; see Doc. 50-3.) Ms. 26 Voorhees further disputes that she “oversaw” “80 rapes,” in part because she “was never 27 responsible for ‘overseeing’ Title IX matters” at University of Montana and because “there 28 was (sic) not ‘80 rapes’ in ‘three years’ at the University of Montana” while she was there. 1 (Doc. 50 at 22.) 2 Later, an ERAU Title IX investigator told Ms. Davis that Ms. Voorhees “has 3 nothing to do with Title XI here at ERAU or any of its processes,” yet Ms. Davis took 4 several days to take down the petition. (Id. at 23-24.) But like the contents of Pandora’s 5 Box, what has been published to the internet is loath to return to offline obscurity, and the 6 petition continued to circulate “on social media.” (Id. at 24.) Ms. Davis did not issue a 7 retraction, which Ms. Voorhees alleges has caused even more damage to her reputation. 8 Id. at 24.) 9 Ms. Voorhees sued Ms. Davis in state court for defamation and false light invasion 10 of privacy, among other claims which were not refiled as counterclaims in this suit. (Doc. 11 17-10 at 8-9.) Ms. Davis was served on June 7, 2021, but when she did not answer the 12 complaint by July 8, 2021, Ms. Voorhees requested entry of default. Ten days later, Ms. 13 Davis filed a motion to continue under the Servicemembers Civil Relief Act (“SCRA”), 14 which provides for certain protections to servicemembers on active duty. At this time, Ms. 15 Davis was represented by counsel. After a flurry of motions and supplements, Ms. Davis 16 submitted an affidavit from the Human Resources Assistant for the United States Army 17 ROTC program at ERAU attesting that her active service began on July 2, 2021 and that 18 Ms. Davis had notice of this period of service on May 28, 2021. (Doc. 24-10 at 25.) 19 While the state court litigation continued, Ms. Davis filed this suit against Ms. 20 Voorhees and other defendants in federal court on November 11, 2021, alleging, as to Ms. 21 Davis, violations of Title IX, retaliation, and violations of the SCRA. (Doc. 1.) Seven 22 days later, Ms. Voorhees voluntarily dismissed the state court complaint (Doc. 24-6) and 23 in early December, she filed an answer in this case, as well as counterclaims of defamation 24 and false light invasion of privacy. (Doc. 9.) 25 II. Motion for Rule 41(d) Costs and Stay of Proceedings 26 Federal Rule of Civil Procedure 41(d) provides: 27 If a plaintiff who previously dismissed an action in any court files an action based on or including the same claim against the 28 defendant, the court: 1 (1) may order the plaintiff to pay all or part of the costs of the previous action; and 2 (2) may stay the proceedings until plaintiff has complied. 3 4 “In analyzing purported violations of Rule 41, the [nonmovant] bears the burden to show 5 a ‘persuasive explanation’ for its course of the litigation, while the [movant] must show 6 only that it ‘incurred needless expenditures’ as a result of [the nonmovant’s] conduct.” 7 Senah, Inc v. Xi’an Forstar S&T Co, Ltd, No. 13-CV-04254-BLF, 2014 WL 3058292, at 8 *1 (N.D. Cal. July 3, 2014) (citing Esquivel v. Arau, 913 F. Supp. 1382, 1386 (C.D. Cal. 9 1996)) (internal citations omitted). The rule is “intended to serve as a deterrent to forum 10 shopping and vexatious litigation.” Esquivel, 913 F. Supp. at 1386 (quoting Simeone v. 11 First Bank Nat’l Ass’n, 971 F.2d 103, 108 (8th Cir. 1992)). “It conveys broad discretion 12 on federal courts to order stays and payment of costs, but neither costs nor a stay is 13 mandatory.” Cisneros v. Moreno, No. 1:19-CV-1676 JLT PC, 2020 WL 7122074, at *2 14 (E.D. Cal. Dec. 4, 2020) (internal quotations and citation omitted). 15 Ms. Voorhees argues that she counterclaimed here “purely in the interest of judicial 16 economy to specifically avoid litigating the same issues of fact and law twice.” (Doc. 24 17 at 7.) Indeed, Ms. Davis filed this lawsuit only after Ms. Voorhees had filed her defamation 18 claim in state court. And once Ms. Davis did so, Ms. Voorhees filed a notice of dismissal 19 in state court—although the state court clerk had already entered default and Ms. Davis 20 had not yet answered the complaint—and then answered Ms. Davis in federal court, adding 21 her defamation claim as a counterclaim. In fact, Ms. Voorhees’ dismissal and re-filing in 22 federal court erased the default and gave Ms. Davis a chance to challenge the defamation 23 claim on the merits, rather than the parties continuing to rack up attorney fees litigating a 24 contentious default. 25 Ms. Davis disputes Ms. Voorhees’ explanation, arguing that the counterclaim not 26 only lacks merit but also that Ms. Voohees in bad faith sought default judgment against 27 Ms. Davis. The Court is not persuaded. According to supplemental filings to the motion 28 to continue, Ms. Davis’ active service began nearly a month after she was served with the 1 state court complaint, time during which she could have availed herself of SCRA 2 protections under 50 U.S.C. § 3932 before Ms. Voorhees sought entry default. And in 3 ordering the dismissal, the state court denied Ms. Davis’ request to sanction Ms. Voorhees. 4 Standing removed from the state court action and graced with only a handful of the filings 5 there, this Court sees that the parties sparred over entry of default but does not at this time 6 see that either party did so in bad faith. 7 For her burden, Ms. Davis alleges she incurred needless expenditures in litigating 8 the entry of default. Even if true, she would have continued to litigate the default but for 9 Ms. Voorhees’ voluntary dismissal, and now the parties can litigate the merits of Ms. 10 Voorhees claims in federal court. Besides, it appears that litigating the default occurred in 11 good faith: Ms. Davis was served nearly a month before she alleges her active duty began. 12 (Docs. 30-3, 30-10.) She could have filed a motion to stay the proceedings, as authorized 13 under 50 U.S.C. § 3932, but she did not. In such a procedural posture, the Court might 14 expect Ms. Davis to have to make expenditures to expunge an entry of default. The Court 15 in its discretion declines to award costs and stay proceedings under Rule 41(d). 16 III. Motion to Dismiss 17 To survive a Rule 12(b)(6) motion to dismiss, a complaint must contain factual 18 allegations sufficient to “raise a right to relief above the speculative level.” Bell Atl. Corp. 19 v. Twombly, 550 U.S. 544, 555 (2007). The task when ruling on a motion to dismiss “is to 20 evaluate whether the claims alleged [plausibly] can be asserted as a matter of law.” Adams 21 v. Johnson, 355 F.3d 1179, 1183 (9th Cir. 2004); accord Ashcroft v. Iqbal, 556 U.S. 662, 22 678 (2009). When analyzing the sufficiency of a complaint, the well-pled factual 23 allegations are taken as true and construed in the light most favorable to the plaintiff. 24 Cousins v. Lockyer, 568 F.3d 1063, 1067 (9th Cir. 2009). 25 A. Defamation 26 In order to state a claim for defamation, a plaintiff must allege (1) that the defendant 27 made a false statement; (2) that the statement was published or communicated to someone 28 other than plaintiff; and (3) that the statement tends to harm plaintiff’s reputation. See 1 Godbehere v. Phoenix Newspapers, Inc., 783 P.2d 781, 787 (Ariz. 1989). “[A] statement 2 is actionable is it implies a clearly defamatory meaning.” Rogers v. Mroz, 502 P.3d 986, 3 990 (Ariz. 2022). Generally, “proof of publication . . . carrie[s] with it the presumption of 4 its falsity and of malice toward the plaintiff and the burden [falls] upon the defendant to 5 prove both the truth of the publication and lack of malice toward plaintiff.” McClinton v. 6 Rice, 265 P.2d 425, 429-30 (Ariz. 1953). But when a publication addresses a matter of 7 public concern, the First Amendment requires that the allegedly defamed party must prove 8 falsity. Id. When the allegedly defamed party is a private figure, she need only show 9 negligent publication, but when the allegedly defamed party is a public figure, or a limited 10 purpose public figure, she must show that the alleged defamer acted with actual malice. 11 Dombey v. Phoenix Newspapers Inc., 724 P.2d 562, 567 (Ariz. 1986). 12 1. Limited-purpose public figure 13 Some individuals become limited-purpose public figures when they thrust 14 themselves to the forefront of a public controversy in order to influence the resolution of 15 the issues involved. Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974). In determining 16 whether a party is a limited-purpose public figure, courts consider whether (1) a public 17 controversy existed when the statements were made, (2) the alleged defamation is related 18 to the allegedly defamed party’s participation in the controversy, and (3) the allegedly 19 defamed party voluntarily injected herself into the controversy for the purpose of 20 influencing the controversy’s ultimate resolution. Makaeff v. Trump Univ., LLC, 715 F.3d 21 254, 266 (9th Cir. 2013). 22 The controversy at ERAU became public when Ms. Davis published a statement 23 about it. Ms. Voorhees did not “thrust [herself]” into the controversy merely by, as she 24 alleged, privately informing Ms. Davis that she did not oversee or supervise Title IX 25 matters at ERAU. (Doc. 9 at 22). This same allegation defeats Ms. Davis’ second 26 argument, that Ms. Voorhees as Dean of Students at ERAU is a limited-purpose public 27 figure in matters relating to her involvement in school governance. Ms. Davis’ only 28 argument challenging that allegation is that it “bends the mind” that the Dean of Students 1 would not be involved with Title IX issues. But it’s possible that ERAU indeed walled off 2 the Dean of Students position from Title IX issues, regardless of whether it would bend the 3 mind to do so. In the absence of evidence to support Ms. Davis’ claim that Ms. Voorhees 4 was involved with Title IX matters at ERAU, the Court must credit Ms. Voorhees’ 5 allegation, and therefore finds that Ms. Voorhees was a private figure for the purposes of 6 resolving this Rule 12(b)(6) motion. 7 2. Whether the statement was defamatory 8 Ms. Voorhees alleges that Ms. Davis’ directly stated or implied the following 9 falsehoods: 10 • Ms. Voorhees shirked Title IX duties at ERAU and University of Montana, 11 including letting 80 rapes go unpunished 12 • The University of Montana asked Ms. Voorhees to leave the position of Dean of 13 Students 14 • Ms. Voorhees made a trans student drop out 15 Ms. Davis argues that the statements are opinion or, in the alternative, that they relied on 16 reports from reliable sources, both defenses to defamation. 17 First, opinion. The statements, direct or implied, are capable of being proved true 18 or false. Indeed, the statements appeared in a petition that cited hyperlinked articles, 19 suggesting that the statements were supported by research and thus capable of being proved 20 true or false. 21 Second, reports from reliable sources. Certainly some sources, such as John 22 Krakauer’s best-selling book would be considered reliable. Nevertheless, as Ms. Voorhees 23 argues, statements that inaccurately summarize the contents of a reliable source are capable 24 of being defamatory. Turner v. Devlin, 848 P.2d 286, 289-94 (Ariz. 1993). Determining 25 whether the statements—or their implications—accurately summarizes a source is 26 necessarily fact intensive, and many crucial facts remain unestablished, like (1) whether 27 Ms. Voorhees told Ms. Davis that, as Dean of Students, she did not oversee or supervise 28 Title IX matters, (2) whether Ms. Davis inaccurately summarized a reliable source in || making the statements, (3) and, if the answer to the foregoing are “yes,” whether a reasonable listener would consider the statements to imply a false assertion of fact. The 3 || Court declines to wade into this factual analysis at the pleading stage, where all well-pled 4|| allegations are taken as true and construed most favorably to Ms. Voorhees. 5 B. False Light 6 Arizona recognizes the tort of false light invasion of privacy when the defendant 7\| “gives publicity to a matter concerning another that places the other before the public in a 8 || false light.” Godbehere, 783 P.2d at 784. The defendant is liable if (i) the false light would 9|| be offensive to a reasonable person, and (ii) the defendant had knowledge of or acted in 10 || reckless disregard as to the falsity of the publicized matter. See id. Unlike defamation, false light protects the plaintiff's mental and emotional interests, not her reputation or good name. See id. at 786. To qualify, the publication must involve a major misrepresentation || of the plaintiff's character, history, activities, or beliefs, not merely minor or unimportant inaccuracies. See id. As with defamation, Ms. Voorhees alleges that Ms. Davis’ statements 15 || misrepresented her “history, activities, or beliefs” and caused her mental and emotional anguish. Ms. Davis’ arguments to the contrary raise factual questions inappropriate for 17 || resolution at the pleading stage. 18] IV. Conclusion 19 Ms. Davis has not shown that she is entitled to costs or a stay under Rule 41(d). Ms. 20 || Voorhees has adequately pled claims for defamation and false light. Therefore, 21 IT IS ORDERED that Plaintiffs motion for costs and a stay under Rule 41(d) (Doc. 22 || 17) and motion to dismiss for failure to state a claim (Doc. 19) are DENIED. 23 Dated this 12th day of July, 2022. 24 25 {Z, 26 {UO 27 Uaited States Dicwic Judge 28

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