United States District Court, S.D. Indiana, New Albany Division
ENTRY ON PLAINTIFF'S MOTION TO DISMISS
RICHARD L. YOUNG, JUDGE, UNITED STATE DISTRICT COURT.
September 29, 2017, Plaintiff, People for the Ethical
Treatment of Animals, Inc., brought this present action
against Defendants, Melisa D. Stark, Timothy L. Stark, and
Wildlife in Need and Wildlife in Deed, Inc., for alleged
violations of the Endangered Species Act, 16 U.S.C.
§§ 1531, et. seq. (Filing No. 1). On
October, 19, 2017, Defendants filed an Answer and a
Counterclaim for defamation. (Filing No. 23). Plaintiff now
moves to dismiss Defendants' Counterclaim under Rule
12(b)(6). Defendants have not responded. For the reasons
stated below, the court GRANTS
out a claim for defamation, Defendants bear the burden of
establishing the basic elements of defamation: “(1) a
communication with a defamatory imputation; (2) malice; (3)
publication; and (4) damages.” Haegert v.
McMullan, 953 N.E.2d 1223, 1230 (Ind.Ct.App. 2011). In
their Counterclaim, Defendants allege:
1. People for the Ethical Treatment of Animals, Inc. (PETA)
is a radical, extreme, militant, activist, animal rights
group cloaked as a non-profit organization to bully, harass,
annoy, and to bring litigation under the Endangered Species
Act in order to further it's [sic] efforts to fund raise
[sic] from members of the public who might believe themselves
to be in alliance with the objectives of the organization.
2. PETA advances frivolous claims to fund further litigation
to accomplish what appears to be the goal of ending private
ownership of all animals, including typical household pets as
well as all other animals whether they be domestic or
wildlife such as governed by the USDA and to restrict private
property rights of owners such as WIN.
3. PETA sensationalizes and publicizes it's [sic] actions
against WIN which acts to damage the business operations and
day to day activities of WIN constituting an unlawful taking
and damaging of it's [sic] business and damaging it's
[sic] ability to conduct interstate commerce.
4. PETA makes claims that have acted to slander and defame
the good name of WIN causing both temporary and permanent
economic damage to WIN with a complete disregard to the
5. PETA has encouraged and allowed others to slander and
defame WIN to help advance the agenda of PETA.
No. 23, Answer to Complaint and Counterclaim at 2
allegations fall well short of making out a claim for
defamation. Defendants have not identified nor listed any
specific communications with a defamatory imputation, which
is required under Indiana law. See Haegert, 953
N.E.2d at 1230 (“[A] plaintiff who sues for defamation
must set out the alleged defamatory statement in the
complaint.”). Further, Defendants have not alleged that
such communications were published with malice.
Defendants' conclusory statements are simply insufficient
to sustain a claim of defamation. Board of Trustees of
Purdue University v. Eisenstein, No. 45A04-1612-PL-2728,
2017 WL 4872915, at *12 (Ind.Ct.App. Oct. 30, 2017) (noting
that vague allegations about a defendant's conduct are
insufficient to support a defamation claim).
also seeks dismissal under Indiana's Anti-SLAPP statute
which directs a court to dismiss a claim of defamation if the
court finds by the preponderance of the evidence that
“the act upon which the claim is based is a lawful act
in furtherance of the person's right of petition or free
speech under the Constitution of the United States or the
Constitution of the State of Indiana.” Ind. Code §
34-7-7-9(d). The Anti-SLAPP Statute permits a successful
defendant to be awarded attorney fees and costs for
prevailing on a motion to dismiss. Ind. Code § 34-7-7-7
(“A prevailing defendant on a motion to dismiss made
under this chapter is entitled to recover reasonable
attorney's fees and costs.”).
court declines to award Plaintiff costs and fees under the
Anti-SLAPP statute since Defendants have not identified any
statements or publications that are defamatory. Fees and
costs are only recoverable when a motion to dismiss is
granted under that section. See Ind. Code §
34-7-7-7. Since the court is granting Plaintiff's motion
to dismiss under Rule 12(b)(6) for failure to state a claim,
and not under Indiana's Anti-SLAPP statute, the court
declines Plaintiffs request for fees.
reasons stated above, the court GRANTS
Plaintiff's Motion to Dismiss Counterclaim (Filing No.