Winston's accuser has filed a motion to dismiss the counterclaim against her.

[sfnole]

<blockquote class="twitter-tweet" lang="en"><p lang="en" dir="ltr">Winston&#39;s accuser has filed a motion to dismiss the counterclaim against her.</p>&mdash; Matt Baker (@MBakerTBTimes) <a href="">June 2, 2015</a></blockquote>


For the Lawyers on the board, what are the chances this motion is successful?

SFNole

 

[BigHungryNole]

<blockquote class="twitter-tweet" lang="en"><p lang="en" dir="ltr">Winston&#39;s accuser has filed a motion to dismiss the counterclaim against her.</p>&mdash; Matt Baker (@MBakerTBTimes) <a href="

View embedded media

">June 2, 2015</a></blockquote>


For the Lawyers on the board, what are the chances this motion is successful?

SFNole

Wow, never would have guessed Matt Baker would break the story....

 

[FSUTribe76]

Wow, never would have guessed Matt Baker would break the story....

Yeah no kidding. His "encouragement" to her to improve his own career is disgusting.

 

[Oclawaha]

so Winston's side should file a motion to dismiss the motion to dismiss the motion to dismiss the counter claim.
Friggin' three ring circus.

 

[QuaZ2002]

so Winston's side should file a motion to dismiss the motion to dismiss the motion to dismiss the counter claim.
Friggin' three ring circus.

This is how I feel. It's all posturing.

 

[sumnernole]

The judge should grant both motions to dismiss and be done with the whole damn thing.

 

[MathisJones]

Erika Kinsman, Matt Baker - not "Winston Accuser".

 

[DFSNOLE]

Erika Kinsman, Matt Baker - not "Winston Accuser".

Just what I was thinking. And not a lawyer but I would think this kind of motion is standard.

 

[AllNoles]

Id like to see the motion but having read the counterclaim I have no idea what the basis could be. I'm not even sure a motion to dismiss could be filed in good faith. Maybe it's directed at the more fuzzy interference with business opportunity count? I didn't like that one anyway. And it added nothing to the case.

 

[FSU94Alumnus]

<blockquote class="twitter-tweet" lang="en"><p lang="en" dir="ltr">Winston&#39;s accuser has filed a motion to dismiss the counterclaim against her.</p>&mdash; Matt Baker (@MBakerTBTimes) <a href="

View embedded media

">June 2, 2015</a></blockquote>


For the Lawyers on the board, what are the chances this motion is successful?

SFNole

10% or less

 

[sconole]

<blockquote class="twitter-tweet" lang="en"><p lang="en" dir="ltr">Winston&#39;s accuser has filed a motion to dismiss the counterclaim against her.</p>&mdash; Matt Baker (@MBakerTBTimes) <a href="

View embedded media

">June 2, 2015</a></blockquote>


For the Lawyers on the board, what are the chances this motion is successful?

SFNole

not a lawyer, but i would think very slim chances just like his request to have her case dismissed. It's all BS posturing in order to extend the proceedings and cost JW more money (and presumably get more for themselves if they ever do get the verdict they want after several tries)

 

[rjw615]

One argument that was made was that the statute of limitations for the counterclaim had passed.

Which is two years from date of incident but she has made several claims against him since then like the COC hearing when she changed her story again and with appearing on the Hunting Ground, well within statue of limitations for those instances.

 

[Lemon Thrower]

a motion to dismiss is standard at this stage because if not made its waived.

these motions also serve to narrow the case going forward.

I can't find her motion, but at this stage, in plain english, it would amount to a legal argument that, even assuming Winston's factual allegations are true, that the law does not recognize a recoverable claim under the circumstances. She is probably arguing that she has some sort of privilege to make false criminal complaints, that its not defamation because he is a public figure, etc., which contradicts her statement to police that she did not know him. I'm really grasping here, because i don't think she has a case.

separately, she would bring affirmative defenses. Truth is an affirmative defense to a defamation action, but "affirmative" means that she would have to actually prove that her allegations are true. that requires a trial, and therefore is not a basis to dismiss his suit at this point. Truth is a well established defense, and is legally viable in the right case. However, the facts demonstrate that her claims are not true, so I don't expect her to win on this ground.

 

[dmm5157]

Which is two years from date of incident but she has made several claims against him since then like the COC hearing when she changed her story again and with appearing on the Hunting Ground, well within statue of limitations for those instances.

That's what I was wondering. Sure, 2 years from the original accusations but certainly not 2 years have passed from her making false claims and harming his character with her media appearances.

 

[oldscalphunter]

Which is two years from date of incident but she has made several claims against him since then like the COC hearing when she changed her story again and with appearing on the Hunting Ground, well within statue of limitations for those instances.

date of the incident or date of the injury? He didn't have a defamation suit until the lie was published (Oct. or Nov. of 2013). It's not even an argument.

 

[oldscalphunter]

a motion to dismiss is standard at this stage because if not made its waived.

these motions also serve to narrow the case going forward.

I can't find her motion, but at this stage, in plain english, it would amount to a legal argument that, even assuming Winston's factual allegations are true, that the law does not recognize a recoverable claim under the circumstances. She is probably arguing that she has some sort of privilege to make false criminal complaints, that its not defamation because he is a public figure, etc., which contradicts her statement to police that she did not know him. I'm really grasping here, because i don't think she has a case.

separately, she would bring affirmative defenses. Truth is an affirmative defense to a defamation action, but "affirmative" means that she would have to actually prove that her allegations are true. that requires a trial, and therefore is not a basis to dismiss his suit at this point. Truth is a well established defense, and is legally viable in the right case. However, the facts demonstrate that her claims are not true, so I don't expect her to win on this ground.

falsity is just about all Winston will struggle to prove, especially under the defamation per se claim.

 

[Seminiferous]

Not having read Kinsman's motion to dismiss Winston's counterclaim, every pleading, motion and response that I've seen have been predictable standard operating procedure.

The meaty part will be the discovery, ESPECIALLY the depositions. Winston's and Kinsman's depositions will merit front page coverage by every media outlet in the country. I opine there's a very real chance that the depositions will directly lead to a resolution of the whole case. I'd like to believe it'll be a Winston victory by TKO because I'm hopeful that she'll be shredded by skillful cross examination.

 

[oldscalphunter]

date of the incident or date of the injury? He didn't have a defamation suit until the lie was published (Oct. or Nov. of 2013). It's not even an argument.

I read it this morning... they say Winston alleged that she published the story when she identified him to TPD. But I'm 90% certain Winston alleged it was published when leaked to the media in Oct./Nov. 2013. Pretty clear that Winston's team thinks they'll win the defamation part & this is a hail mary attempt at increasing the settlement. They lose this & go to trial, their client risks spending the rest of her days making payments to JW. They didn't even address the preclusion argument so I assume that will be fully argued which fires me up.

 

[Lemon Thrower]

I read it this morning... they say Winston alleged that she published the story when she identified him to TPD. But I'm 90% certain Winston alleged it was published when leaked to the media in Oct./Nov. 2013. Pretty clear that Winston's team thinks they'll win the defamation part & this is a hail mary attempt at increasing the settlement. They lose this & go to trial, their client risks spending the rest of her days making payments to JW. They didn't even address the preclusion argument so I assume that will be fully argued which fires me up.

Erica's lawyers are making a technical argument that the 2-years statute of limitations begins when she first made the statements to the police, over 2 years ago. (jameis is saying that she made the same defamatory statements less than 2 years ago, which is not in dispute; the issue is when you do start counting for the statute of limitations.) Traditionally, the law recognized a claim against each publication of a false statement. Erica's lawyers cite a "single statement" rule in Florida. not an expert in this area, but reading between the lines the seem to be trying to extend an existing rule that applies to venue and the number of times you can sue a single defendant, and extending that to the statute of limitations. They cite some cases and a statute, but what they don't say is that Florida has ever applied this rule to mean the statute of limitations begins when they say it does. Florida law might, but if it did you would expect them to say that more forcefully in their motion. I am not interested enough to go look that stuff up.

here is something a google search turned up:

Single Publication Rule

Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

If that's the rule in Florida, then Erica's statute of limitations argument should fail.

http://www.dmlp.org/legal-guide/statute-limitations#singlePubRule

 

[ShaolinNole]

For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

If that's the rule in Florida, then Erica's statute of limitations argument should fail.

http://www.dmlp.org/legal-guide/statute-limitations#singlePubRule

Oh look, she was making claims in a recent movie. Her team is just prolonging the inevitable total destruction of her case. Their method of continuing to try to prosecute him in the public eye will probably result in him winning his case.

 

[oldscalphunter]

Erica's lawyers are making a technical argument that the 2-years statute of limitations begins when she first made the statements to the police, over 2 years ago. (jameis is saying that she made the same defamatory statements less than 2 years ago, which is not in dispute; the issue is when you do start counting for the statute of limitations.) Traditionally, the law recognized a claim against each publication of a false statement. Erica's lawyers cite a "single statement" rule in Florida. not an expert in this area, but reading between the lines the seem to be trying to extend an existing rule that applies to venue and the number of times you can sue a single defendant, and extending that to the statute of limitations. They cite some cases and a statute, but what they don't say is that Florida has ever applied this rule to mean the statute of limitations begins when they say it does. Florida law might, but if it did you would expect them to say that more forcefully in their motion. I am not interested enough to go look that stuff up.

here is something a google search turned up:

Single Publication Rule

Most states have adopted the so-called "single publication rule," which states that the statute of limitations period begins to run when a defamatory statement is first published. For example, if a magazine is distributed to thousands of news stands, only "one publication" is deemed to have occurred for purposes of the statute of limitations. As a result, the limitations period begins when the magazine was initially made available, not when an extra copy of it left over on the news stand is sold two weeks later.

However, the single publication rule is not absolute. If the purported defamatory content is re-published to a substantially different audience or is altered in a substantial way, a new statute of limitations period may begin to run. For example, if the material in a magazine is incorporated into a book, a new statute of limitations period will likely begin when the book is published.

If that's the rule in Florida, then Erica's statute of limitations argument should fail.

http://www.dmlp.org/legal-guide/statute-limitations#singlePubRule

I'm pretty sure that's right, but they're trying to narrow the issue(s) with respect to the defamation claim & they want it on grounds they feel comfortable with.

 

[oldscalphunter]

Oh look, she was making claims in a recent movie. Her team is just prolonging the inevitable total destruction of her case. Their method of continuing to try to prosecute him in the public eye will probably result in him winning his case.

They actually accuse Winston's team of doing exactly that to her.

 

[Lemon Thrower]

I'm pretty sure that's right, but they're trying to narrow the issue(s) with respect to the defamation claim & they want it on grounds they feel comfortable with.

no, they are trying to block his defamation case completely by saying he had to sue her within 2 years of the first police report. they are basically saying, even if what he alleges is true - that her allegations were false - he can't recover because they all go back to her first allegation to the police which ocurred more than 2 years before he countersued her. so at this stage, the facts are almost irrelevant, and the court asks if the plaintiff can prove his case, does the law allow a recovery? I don't know but i sounds like erica's lawyers are taking a 2-year rule from a different context and trying to apply it here. We'll see.

they go on to say that the tortious interference claim is basically the same as the defamation claim. that's mostly true as there is substantial factual overlap. however, the difference is they cite no law that says the torious interference claim is barred by the statute of limitations.

 

[alaskanseminole]

I'm thinking this:

 

[Grad91]

As lawyers do, Kinsman's attorneys are talking out of both sides of their mouths. First with the statute of limitations argument. They base it on the original and follow-up reporting of rape to FSUPD, which occurred more than two years ago. But then they argue that those publications are privileged under the First Amendment in order to report alleged crimes committed against Ms. Kinsman. I haven't researched it, but I would find it hard to believe that one can rely on a privileged communication to law enforcement as the trigger for commencement of defamation's statute of limitation. I would think the trigger would be an unprivileged communication to a third party. Has anyone alleged when that first non-privileged communication occurred?

 

[oldscalphunter]

no, they are trying to block his defamation case completely by saying he had to sue her within 2 years of the first police report. they are basically saying, even if what he alleges is true - that her allegations were false - he can't recover because they all go back to her first allegation to the police which ocurred more than 2 years before he countersued her. so at this stage, the facts are almost irrelevant, and the court asks if the plaintiff can prove his case, does the law allow a recovery? I don't know but i sounds like erica's lawyers are taking a 2-year rule from a different context and trying to apply it here. We'll see.

they go on to say that the tortious interference claim is basically the same as the defamation claim. that's mostly true as there is substantial factual overlap. however, the difference is they cite no law that says the torious interference claim is barred by the statute of limitations.

Procedurally, yes. But from a strategy point of view, while they'd ideally like to bring down the claims (defamation & defamation per se), that's not likely to happen. However, if they can get Winston to commit as to when the defamation occurred, then the issues are somewhat narrowed with regard to what statements come in to prove what she said is false. Falsity is the most difficult part for him to prove--given the type of allegations she made.

 

[oldscalphunter]

As lawyers do, Kinsman's attorneys are talking out of both sides of their mouths. First with the statute of limitations argument. They base it on the original and follow-up reporting of rape to FSUPD, which occurred more than two years ago. But then they argue that those publications are privileged under the First Amendment in order to report alleged crimes committed against Ms. Kinsman. I haven't researched it, but I would find it hard to believe that one can rely on a privileged communication to law enforcement as the trigger for commencement of defamation's statute of limitation. I would think the trigger would be an unprivileged communication to a third party. Has anyone alleged when that first non-privileged communication occurred?

In my view (which may very well be wrong), it'd be improper to trigger the statute of limitations for a defamation suit prior to a cause of action existing. He wasn't damaged until some time after the initial allegation was made. He was damaged when the story was leaked (and will be a public figure because of his status at that time - though the public figure status does not really matter at this point). Her first amendment claim is a naked attempt at narrowing the issue & has practically no chance of barring his defamation claims.

 

[SKSnole]

I don't mean to change the topic, but starting a new thread seems uncalled for. I was just wondering if the legal experts could chime in on whether or not Detective Angullo (Sp?) or the SANE nurse have any legal recourse in all of this? Angullo was absolutely slandered in this ordeal and while I don't want to go back and watch Carroll's 2 hour press conference her comments regarding the sexual battery exam by the nurse seemed to 1. Cross the line and 2. Were completely untrue based on what came out in the COC hearing. Do these individuals have any recourse in this mess?

 

[oldscalphunter]

I don't mean to change the topic, but starting a new thread seems uncalled for. I was just wondering if the legal experts could chime in on whether or not Detective Angullo (Sp?) or the SANE nurse have any legal recourse in all of this? Angullo was absolutely slandered in this ordeal and while I don't want to go back and watch Carroll's 2 hour press conference her comments regarding the sexual battery exam by the nurse seemed to 1. Cross the line and 2. Were completely untrue based on what came out in the COC hearing. Do these individuals have any recourse in this mess?

Angulo is a public official & actual malice is a difficult hurdle (I don't think it will be for JW). Comments were directed at his performance in his job... just about absolute that he can't recover. Was the nurse ever named? The comments were probably based more on opinion and/or not damaging to her reputation, but she might... though I don't think she'd have enough incentive in terms of recovery to file a claim. But I'm not an expert on defamation.

 

[oldscalphunter]

If he was damaged when the story was leaked, couldn't she just claim she didn't leak it, thus isn't responsible for the damage?

Sure, but I think JW's camp will have those bases covered... plus, it was her allegation, and she perpetuated the falsehood.

 

[Lemon Thrower]

As lawyers do, Kinsman's attorneys are talking out of both sides of their mouths. First with the statute of limitations argument. They base it on the original and follow-up reporting of rape to FSUPD, which occurred more than two years ago. But then they argue that those publications are privileged under the First Amendment in order to report alleged crimes committed against Ms. Kinsman. I haven't researched it, but I would find it hard to believe that one can rely on a privileged communication to law enforcement as the trigger for commencement of defamation's statute of limitation. I would think the trigger would be an unprivileged communication to a third party. Has anyone alleged when that first non-privileged communication occurred?

they mean privileged in the sense of immunity from suit, not immunity from discovery.

 

[Grad91]

But that's the problem, Lemon. The First Amendment and statutes enacted to support it (think Anti-SLAPP) permit parties who have been aggrieved to "publish" what otherwise would be defamatory statements to law enforcement, administrative agencies, and the courts to seek redress. Of course that speech should be protected and should not serve as a basis for a defamation suit. However, if Winston could not sue her for defamation because such speech is provided protection, then arguably her reports to law enforcement and the school should not trigger the statute of limitations because no claim of defamation can arise from them. However, any publication to other third parties unnecessary to her pursuit of redress should support a defamation claim (if the speech was false and caused injury to Winston) and should trigger the statute of limitation. But now I am curious. I'm going to do some Lexis research...

 

[SeaPA]

So once you've slandered somebody's name, and you wait a couple of years, you're free to slander them for the rest of eternity? Under that theory, she could still be ripping him on national television 25 years from now, at his NFL Hall of Fame induction ceremony?

That's crazy to me.

 

[Lemon Thrower]

But that's the problem, Lemon. The First Amendment and statutes enacted to support it (think Anti-SLAPP) permit parties who have been aggrieved to "publish" what otherwise would be defamatory statements to law enforcement, administrative agencies, and the courts to seek redress. Of course that speech should be protected and should not serve as a basis for a defamation suit. However, if Winston could not sue her for defamation because such speech is provided protection, then arguably her reports to law enforcement and the school should not trigger the statute of limitations because no claim of defamation can arise from them. However, any publication to other third parties unnecessary to her pursuit of redress should support a defamation claim (if the speech was false and caused injury to Winston) and should trigger the statute of limitation. But now I am curious. I'm going to do some Lexis research...

i'm not defending it, i'm just explaining what they filed.

Aunt Pat's statements in court/pleadings are probably privileged provided she did a reasonable rule 11 investigation. but a press release and packets likely are not, and once she got the tox results back her statements were probably no longer privileged.

as for Erica, its hard to make the case that a false police report is privileged - even the Ten Commandments admonish to not bear false witness.

 

[oldscalphunter]

i'm not defending it, i'm just explaining what they filed.

Aunt Pat's statements in court/pleadings are probably privileged provided she did a reasonable rule 11 investigation. but a press release and packets likely are not, and once she got the tox results back her statements were probably no longer privileged.

as for Erica, its hard to make the case that a false police report is privileged - even the Ten Commandments admonish to not bear false witness.

a false police report *available through public records requests* perhaps the moment it was made public, it was published. Still within the sol

 

[Lemon Thrower]

a false police report *available through public records requests* perhaps the moment it was made public, it was published. Still within the sol

true, but her lawyers are arguing that her statements were published even earlier - when first made to the police. "publish" in this context is defined very broadly, so they are probably correct, which would leave as the only question whether the law applies the first publication rule in the context of the sol. the cases they cited on the first publication rule seem to be limited to other contexts, so i suspect they will lose this one.

 

[CoralGablesNole!!]

It's an interesting read.

Jameis' response should be filed in next couple of weeks.

I'd link it, but I got it off of Pacer not a news article.

Here is Pacer link if you can open:

https://ecf.flmd.uscourts.gov/doc1/047114768366

Jameis is also trying to get case moved from Middle District to Northern District.

 

[CoralGablesNole!!]

Here's a cut and past from the introduction to their MTD:

I. INTRODUCTION

Neither time nor governing law support the claims in Defendant’s Counterclaim. Because the statements that form the basis for Defendant’s two defamation claims are simply the continued publication of Ms. Kinsman’s statements on December 7, 2012, that she was raped and on January 10, 2013, that Defendant was her rapist, his defamation claims are time-barred under Florida’s single publication rule and two-year statute of limitations. Defendant’s tortious interference claim, premised on the same allegedly defamatory statements, fails for the same reasons. Finally, even if Defendant’s Counterclaim was not time-barred, Ms. Kinsman’s statements are privileged under Florida defamation law and constitute constitutionally protected speech that render her immune from suit.

Portions of Defendant’s Answer and Affirmative Defenses should suffer a similar fate and be struck – including, in particular, a highly inflammatory and gratuitous 17-page “Preliminary Statement” in which Defendant attacks Ms. Kinsman’s character and credibility through unfounded claims of lying, manipulating evidence and other impertinent allegations. Accordingly, for the reasons below, the Court should dismiss Defendant’s Counterclaim with prejudice and strike portions of his Answer and Affirmative Defenses.

 

[CoralGablesNole!!]

I forgot that Jameis threads get dumped in the LR now.

 

[CoralGablesNole!!]

Defendant’s “Preliminary Statement” is a part of neither his Answer nor his Counterclaim and is not incorporated by reference in either. It is nothing more than page upon page of unnumbered paragraphs that personally attack Ms. Kinsman, her counsel and her family. It falls somewhere between an improperly hostile closing argument at trial and a posting on a Florida State football blog. What it is clearly not is either a material or appropriate statement introducing Defendant’s Answer and Counterclaims. Such a scandalous, redundant, and gratuitous Preliminary Statement should be stricken under Rule 12(f).

El oh El