Enriquez v. Smith

• Court: Superior Court of Guam
• Decided: January 6, 2012
• Docket: CV1486-11
• Status: Unknown

Opinion

"

IN THE SUPERIOR COURT OF GUAM 1,>I _ 6 t~·~ \\J: 52 2 1m2 Jh,'. ," .

3 SALVADOR ENRIQUEZ, ) relmK nF COU T 4 ) CIVIL CASE NO. ~:::~. _ Plaintiff, ) 5 ) vs. ) DECISION AND ORDER 6 ) ELISE SMITH, ) 7 ) 8 Defendant. )

9 ----------------------------) INTRODUCTION

II motion to dismiss or for summary judgment, filed September 21, 2011. The Attorney Gene 12 joined the motion pursuant to 7 GCA § 17106(t) on September 30,2011. Oral arguments wer 13 heard on December 12, 2011. Attorney Douglas B. Moylan represented the Plaintiff, Attorne 14 Robert L. Keogh appeared on behalf of the Defendant, and Assistant Attorney General David J 15 Highsmith appeared in support of the Defendant. Having considered the parties' briefs, 0 16 arguments, and the applicable law, the Court now issues the following Decision and Order. 17 BACKGROUND 18 On or about January 3, 2008, Dr. Hugh Sule (hereinafter "Dr. Sule") commenced a den 19 procedure on Defendant Elise Smith (hereinafter "Smith") which allegedly eventually caused he 20 injury. Smith lodged a complaint with the Board of Examiners for Dentistry (hereinafter ''th 21 Dental Board"), and the Dental Board conducted an investigation pursuant to 10 GCA § 12417 22 During the investigation, Smith identified Plaintiff Salvador Enriquez (hereinafter "Enriquez") 23 Dr. Sule's assistant during the dental procedure who allegedly performed the procedure initiall 24 begun by Dr. Sule. 25 On the basis of the investigation, the Attorney General filed disciplinary charges agains 26 Dr. Sule and Enriquez on June 7, 2010. (Complaint Exhibit "A", Sept. 1, 2011.) Th 27 disciplinary case remains ongoing and a trial is allegedly pending before the Dental Board. 0 28 September 1,2011, Enriquez filed the present civil action against Smith for defamation, invasio

Page 1 of7 of privacy, and the infliction of emotional distress for allegedly misidentifying him in th 2 disciplinary proceedings. Enriquez's complaint alleges that Smith published th 3 misidentification, "to third persons, to include the Board members and staff... and possibl 4 others." (Complaint mr 20,21,31,32, Sept. 1,2011.) 5 On September 21,2011, Smith filed a motion to dismiss per Guam R. Civ. P. 12(b)(6) 0 6 the bases of privilege under 19 GCA § 21 05 (b). In the alternative, Smith moved for summ 7 judgment under the Citizen Participation in Government Act (hereinafter "the CPGA"), codifi 8 at 7 GCA § 17101 et seq. Smith contends that the complaint must be dismissed because he 9 grievance before the Dental Board is an official proceeding authorized by law and her acts t 10 provide information to the government are immune from liability. Alternatively, Smith argue II that Enriquez's lawsuit is a "Strategic Lawsuit Against Public Participation", or "SLAPP 12 lawsuit intended to censor, chill, intimidate or punish Smith for involving herself in publi 13 affairs. On this basis, and pursuant to the CPGA, Smith claims that summary judgment and , '1 " , , , • , ~ -i J

14 award of costs, attorney fees and additional sanctions are mandatory. 15 On September 22, 2011, Enriquez filed a notice and an amended notice of volun 16 dismissal pursuant to Guam R. Civ. P. 41(a)(I)(i). On September 30,2011, the Attorney Gene 17 entered an appearance and joined Smith's motion pursuant to 7 GCA § 17106(f). On Octobe 18 13, 2011, Enriquez filed an opposition to Smith's motion to dismiss or for summary judgment , 19 Enriquez makes the following arguments in opposition: 1) tl,te complaint was timely dismissed 20 2) the complaint is outside the scope of the CPGA because it alleges that Wilson published th 21 misidentification to "possibly others"; 3) Smith's petition to the Board was not aimed a 22 procuring disciplinary action; and 4) the circumstances warrant leave to amend instead of fme 23 and sanctions. 24 DISCUSSION

25 As a preliminary matter, the Court does not agree that Enriquez timely dismissed hi

26 complaint. Pursuant to Guam R. Civ. P. 41(a)(I), a plaintiff may unilaterally dismiss a civi 27 action by filing a notice of dismissal before the service of an answer or a motion for summ 28 judgment. In this case, Enriquez filed an amended notice of dismissal under Rule 41(a)(1) afte

Page 2 of7 Smith filed her motion for summary judgment and notice of motion for summary judgment. Fo 2 this reason, Enriquez cannot unilaterally dismiss his complaint and the Court shall address th 3 merits of Smith's motion. 4 Under Guam R. Civ. P. 12(b)(6), a claim may be dismissed where it, "appears beyon 5 doubt that the plaintiff can prove no set of facts in support of his claim which would entitle hi 6 to relief." Core Tech Intn 'I Corp. v. Hanil Engineering & Canst. Co., Ltd., 2010 Guam 13 ~ 5 7 (citing Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007)). In order to dismiss a clai 8 pursuant to Rule 12(b)(6), a court must review the complaint in the light most favorable to th 9 plaintiff, accept its material allegations of fact as true, and resolve any doubts in favor of th 10 plaintiff. First Hawaiian Bank v. Manley, 2007 Guam 2 ~ 9. II In this case, Enriquez asserts claims of defamation, invasion of privacy and the inflictio 12 of emotional distress against Smith. His complaint alleges that Smith wrongfully published 13 misidentification of Enriquez, "to third persons, to include the Board members and staff... an 14 possibly others." (Complaint ~~ 20,21,31,32, Sept. 1,2011.) The complaint alleges that th 15 wrongful publication caused Enriquez to be defamed, to be portrayed in a false light, and t 16 suffer emotional distress. Id. at ~~ 25-29,36-40,46-50,53-60,67-72. 17 Pursuant to 19 GCA § 2105(b)(3), publications made in any official proceed in 18 authorized by law are privileged communications. The Supreme Court of Guam states that 19 privilege of absolute immunity is justified under Section 21 05(b )(3) for any official proceedin 20 with, "a significant public interest and sufficient procedural safeguards ... analogous to judicia 21 and legislative proceedings." Marcis v. Richardson, 2010 Guam 6 ~ 34. In Marcis, the Co 22 recognized the importance of the public interest to improve the quality of healthcare without th 23 fear of a retaliatory lawsuit. !d. at ~ 20. The Marcis Court further applied the privilege 0 24 absolute immunity to a communication that prompts an official proceeding, because it, "is 25 much a part of the 'official proceeding' as a communication made after the proceedings hav 26 commenced." Id. at ~ 19 (quoting King v. Borges, 104 Cal.Rptr.414, 417 (CLApp. 1972)). 27 In this case, the Dental Board initiated disciplinary proceedings against Enriquez afte 28 Smith lodged her complaint and identified Enriquez. Similar to Marcis, the Dental Boar

Page 3 of7 . proceedings serve the significant public interest of improving the quality of healthcare withou 2 the fear of a retaliatory lawsuit. Furthermore, the Dental Board proceedings are conducted wi 3 procedural safeguards under the Administrative Adjudication Law which, analogous to judicia 4 proceedings, minimize the occurrence of false and defamatory statements. See 10 GCA 5 12418(a); 5 GCA § 9201 et seq.; Marcis, 2010 Guam 6 at ~~ 30-34. Finally, Smith's complain 6 and identification of Enriquez are a part of the official proceeding and share the same level 0 7 privilege as any statement made during the proceedings. See Marcis, 2010 Guam 6 at ~ 19. Fo 8 these reasons, absolute immunity is justified for Smith's publication of defamatory statement 9 before the Dental Board. Therefore, Enriquez's claims of injury cannot be granted and they shal \0 be dismissed. 11 A complaint that is attacked under Guam R. Civ. P. 12(b)(6), "need not contain detaile 12 factual allegations, [but] a plaintiff's obligation to provide the grounds of his entitlement to relie 13 'requires more than labels and conclusions, and a formulaic recitation of the elements of a caus 14 of action will not do. ", Core Tech, 2010 Guam 13 at ~ 52 (quoting Twombly, 550 U.S. at 555) 15 Guam R. Civ. P. 12(b)(6) was adopted from Fed. R. Civ. P. 12(b)(6) and a federal court' 16 interpretation of the analogous federal rule is persuasive authority. Guam R. Civ. P. 12(b)(6) 17 See also Sananap v. Cyfred, Ltd., 2011 Guam 21 ~ 24 n. 13; Pelowski v. Taitano, 2000 Guam 3 18 ~ 12. The U.S. Supreme Court holds the following regarding how substantive a pleading must b

19 to survive a Civil Procedure Rule 12(b)(6) motion: 20 To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' ... The 21 plausibility standard is not akin to a 'probability requirement,' but it asks for more 22 than a sheer possibility that a defendant has acted unlawfully ... But where the well-pleaded facts do not permit the court to infer more than the mere possibility 23 of misconduct, the complaint has alleged - but it has not 'shown' - 'that the pleader is entitled to relief.' Fed. Rule Civ. Proc. 8(a)(2). In keeping with these 24 principles a court considering a motion to dismiss can choose to begin by 25 identifying pleadings that, because they are not more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the 26 framework of a complaint, they must be supported by factual allegations. 27 Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949-50 (2009) (citations omitted). 28 The complaint in this matter alleges that Smith published her misidentification 0

Page 4 of7 Enriquez to the Dental Board, "and possibly others." (Complaint ~~ 20,21, 31, 32, Sept. 1 2 2011.) Her publication to the Dental Board is privileged and immune from liability as discusse 3 supra. The remaining factual allegation that Smith possibly published defamatory information t 4 others, when taken as true, is a statement of sheer possibility. The pleading does not permit th 5 Court to infer more than a mere possibility of misconduct. Absent a well plead fact of actual 0 6 plausible publication, the complaint fails to raise a right to relief above the speculative level. Se 7 Twombly, 550 U.S. at 555 ("Factual allegations must be enough to raise a right to relief abov 8 the speculative level"). For these reasons, the claim of possible publication to others is no 9 plausible on its face and it shall be dismissed. 10 As an alternative to dismissal, Enriquez offers an amended complaint which contains th II same claims and an amended allegation that Smith communicated defamatory statements to thir 12 persons who are not the Dental Board members or staff, and who are not related to her ethic 13 complaint to the Dental Board. (Opposition, Exhibit "F" ~~ 14, 25, 36, 40, 45, 60, Oct. 13 14 2011.) However, the proposed "First Amended Complaint" (hereinafter "FAC") is a futil 15 amendment because, like the complaint, it fails to satisfY the plausibility standard set forth by th 16 U.S. Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662. Therein the Court explained: 17 [T]he pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully- 18 harmed-me accusation. A pleading that offers "labels and conclusions" or "a 19 formulaic recitation of the elements of a cause of action will not do." Nor does a complaint suffice if it tenders "naked assertions" devoid of "further factual 20 enhancement. " 21 Ashcroft, 556 U.S. 662, 129 S.Ct. at 1949 (citations omitted). 22 The Court goes on to explain that, "[t]hreadbare recitals of the elements of a cause 0 23 action, supported by mere conclusory statements, do not suffice ... Rule 8 marks a notable an 24 generous departure from the hyper-technical, code-pleading regime of a prior era, but it does no 25 unlock the doors of discovery for a plaintiff armed with nothing more than conclusions." Id. 26 556 U.S. 662,129 S.Ct. at 1949-50 (citations omitted). 27 In this case, the proposed FAC does not include any additional factual allegations 0 28 communication that are not privileged pursuant to 19 GCA § 2105. See discussion supra. Th

Page 5 of7 stated causes of action in the FAC fail to give any factual details to support the bare allegation 2 that Smith made defamatory communications to third parties unrelated to the Dental Boar 3 proceedings. Some supporting factual allegation is necessary to create a sufficient pleadin 4 under Guam R. Civ. P. 8(a). See, e.g., Dorothy K. Winston & Co. v. Town Heights Development, 5 Inc., 376 F.Supp. 1214, 1217 (D.C. 1974) (citing Wright, Federal Courts, § 68, pp. 247-48) (" 6 complaint. .. need only outline a recognized legal or equitable claim which sufficiently pinpoint 7 the time, place and circumstances of the alleged occurrences .... "). 8 Here Enriquez proposes only 'naked assertions' that are 'devoid of further factua 9 enhancement', which will not survive a motion to dismiss. See Swanson v. Citibank, NA., 61 10 F.3d 400, 404 (7th Cir. 2010) ("[T]he plaintiff must give enough details about the subject-matte 11 of the case to present a story that holds together."). The proposed FAC merely offers 'threadbar 12 recitals of the elements' supported by nothing more than conclusory legal statements and withou 13 factual allegations that warrant legal redress. As such, the proposed FAC fails to state a clai 14 for relief that is plausible on its face. See Wilson v. Civil Town o/Clayton, Ind., 839 F.2d 375 15 379 (7th Cir. 1988) ("[A] conclusion, without any facts alleged to support it, is simpl 16 insufficient."). On this basis, the proposed FAC is a futile attempt to amend the complaint an 17 the request to so amend is denied accordingly. See, e.g., Arashi & Co., Inc. v. Nakashim

18 Enterprises, Inc., 2005 Guam 21 ~ 16. 19 Finally, the need to address Smith's argument in the alternative under the CPGA i 20 obviated since the Court has granted Smith's motion on the basis of her principal argument unde

21 Guam R. Civ. P. 12(b)(6). 22 III 23 III 24 III 25

Page 6 of7 CONCLUSION 2 Based upon the foregoing, Defendant Elise Smith's motion to dismiss is hereb 3 GRANTED on the basis of Guam R. Civ. P. 12(b)(6) and the Plaintiffs complaint is hereb

4 DISMISSED. 5

6 SO ORDERED this 6t11 day of January, 2012. 7

9 HONORABLE JAMES L. CANTO II Judge Superior Court of Guam 10

II

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