United States District Court, D. Kansas
MEMORANDUM & ORDER
MURGUIA UNITED STATES DISTRICT JUDGE.
matter comes before the court upon plaintiff API Americas
Inc.'s Motion to Dismiss for Failure to State a Claim
(Doc. 20). Any response to plaintiff's motion was due by
December 18, 2017. Defendant Paul W. Miller has filed no
response. The motion is therefore considered uncontested.
case was filed October 23, 2017, alleging breach of contract
and other tort claims based on defendant's alleged
violation of various contractual agreements with plaintiff.
Plaintiff is in the business of designing, manufacturing, and
distributing hot stamping foils and other products for
companies such as Hallmark. Plaintiff alleges that defendant
worked for plaintiff as a Technical Account and Service
Manager for over ten years before his voluntary resignation
in September 2017. Plaintiff claims that due to his
employment, defendant learned confidential and propriety
information, including plaintiff's trade secrets. Because
of this knowledge, defendant's employment was subject to
various contractual agreements, such as confidentiality,
non-solicitation, and non-compete agreements.
his employment with plaintiff ended, plaintiff alleges that
defendant emailed himself plaintiff's proprietary
information, began working for a direct competitor, and is
assisting the competitor compete for work with Hallmark, one
of plaintiff's largest customers. Plaintiff filed a
motion for temporary restraining order on October 24, 2015,
which the court granted on November 7, 2017. (Doc. 18.)
motion to dismiss seeks to dismiss defendant's
counterclaim for defamation. On November 5, 2017, defendant
filed his answer and counterclaim to plaintiff's
complaint (Doc. 15). Plaintiff argues in its motion to
dismiss, that defendant fails to state a claim because: (1)
defendant failed to meet the heightened pleading standard
requiring defamation to be plead with specificity; and (2)
defendant's defamation claim fails to state a claim
pursuant to Fed.R.Civ.P. 12(b)(6) because the statements made
by plaintiff are privileged and therefore as a matter of law
cannot form the basis of a defamation claim.
Fed.R.Civ.P. 12(b)(6) Motion to Dismiss
court will grant a motion to dismiss under Federal Rule of
Civil Procedure 12(b)(6) only when the factual allegations
fail to “state a claim to relief that is plausible on
its face.” Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007). Although the factual allegations need
not be detailed, the claims must set forth entitlement to
relief “through more than labels, conclusions and a
formulaic recitation of the elements of a cause of
action.” In re Motor Fuel Temperature Sales
Practices Litig., 534 F.Supp.2d 1214, 1216 (D. Kan.
allegations must contain facts sufficient to state a claim
that is plausible, rather than merely conceivable.
Id. “All well-pleaded facts, as distinguished
from conclusory allegations, must be taken as true.”
Swanson v. Bixler, 750 F.2d 810, 813 (10th Cir.
1984); see also Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009). The court construes any reasonable inferences from
these facts in plaintiff's favor. Tal v. Hogan,
453 F.3d 1244, 1252 (10th Cir. 2006).
Defamation Claims in Kansas
Kansas Law, a defamation claim requires showing “false
and defamatory words, communicated to a third person, which
result in harm to the reputation of the person
defamed.” Hall v. Kan. Farm Bureau, 50 P.3d
495, 504 (Kan. 2002). At the pleading stage, a defamation
claim must meet the requirements of Fed.R.Civ.P. 8(a),
providing sufficient notice of the complained of
communications. Heckman v. Zurich Holding Co., No.
06-2435-KHV, 2007 WL 677607, at *5 (D. Kan. Feb. 28, 2007).
Here, defendant must set forth “the allegedly
defamatory words, the communicator of those words, the
persons to whom those words were published and the time and
place of publication” to survive plaintiff's motion
counterclaim makes general assertions that “APO, by and
through its officers directors, agents, and/or employees have
informed other people that” defendant has taken various
actions. (Doc. 15, at 18.) Defendant also alleges that these
allegedly false and defamatory statements were then
“widely reported to the public at large” via the
Kansas City Business Journal. (Id. at 19.) Because
defendant filed no response to plaintiff's motion to
dismiss, he provides no argument supporting his position that
these allegations should be considered sufficient. These
general allegations are insufficient to put plaintiff on
notice of the specific defamatory statements defendant is