Ed Butowsky v Folkenflik et al plaintiff response to defendant objection to report and recommendation of Magistrate Judge Craven, May 29, 2019, Defamation in Seth Rich reports alleged
“The facts that we know of in the murder of the DNC staffer, Seth Rich, was that he was gunned down blocks from his home on July 10, 2016. Washington Metro police detectives claim that Mr. Rich was a robbery victim, which is strange since after being shot twice in the back, he was still wearing a $2,000 gold necklace and watch. He still had his wallet, key and phone. Clearly, he was not a victim of robbery.”…Retired Admiral James A. Lyons March 1, 2018
“Mueller, as a matter of determined policy, omitted key steps which any honest investigator would undertake. He did not commission any forensic examination of the DNC servers. He did not interview Bill Binney. He did not interview Julian Assange. His failure to do any of those obvious things renders his report worthless.”…Craig Murray May 9, 2019
“We are being lied to on a scale unimaginable by George Orwell.”…Citizen Wells
From the “REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE” by Magistrate Craven April 17, 2019.
“Here, Plaintiff has sufficiently alleged conduct on the part of Defendants sufficient to constitute civil conspiracy. The Court recommends this part of Defendants’ motion to dismiss be denied.”
From Ed Butowsky, plaintiff response to defendant objection to report and recommendation of Magistrate Judge Craven, May 29, 2019.
“● Plaintiff alleges facts that plausibly show Defendants’ actual malice.
“Putting aside the Court’s above concerns as to the applicability of the common
law and statutory privileges – something Defendants must demonstrate – there are other reasons for recommending Defendants’ Rule 12(b)(6) motion to dismiss based on the common law and statutory privileges and the third-party allegations rule be denied. First, even if the conditional privileges do apply, Plaintiff can overcome the privileges by pleading actual malice … Plaintiff alleges facts which plausibly allege actual malice (that Folkenflik knew the statements were false or did not act for the purpose of protecting the interest for which the privileges exist).”
[R&R, pp. 45-46; id., pp. 78-88 (“Even if the Court were to assume, for purposes of this Report and Recommendation only, that Plaintiff is a limited-purpose public figure, the Court would agree with Plaintiff that he has sufficiently alleged actual malice …
Plaintiff’s allegations are sufficient at this stage to create a ‘plausible inference’ that Folkenflik and NPR published the reports with actual malice … Plaintiff’s allegations sufficiently indicate at this stage in the litigation that Folkenflik purposefully avoided learning the truth … Plaintiff plausibly alleges when Folkenflik published the statements, he knew the statements were false, had serious doubts as to their truth, or had a high degree of awareness of their probable falsity … Thus, the Court finds Plaintiff plausibly
alleges Folkenflik and NPR published statements with actual malice.”)].
● Plaintiff sufficiently alleges that Defendants’ reports were not fair,
true, or impartial. “Second, regardless of whether Defendants are seeking to establish the common law or statutory privileges or both, those conditional privileges only protect publications which are fair, true and impartial accounts … The Court finds Plaintiff has alleged facts which plausibly allege the reports were not fair, true, and impartial accounts of the Wheeler Complaint … The Court disagrees with Defendants that they have established their entitlement to dismissal under §73.002(b) (fair report and fair comment privileges) at this stage of the proceedings.”
● Plaintiff sufficiently alleges material falsity.
“Here, as will be discussed in detail below, the Court finds, at this stage of the
case and under the facts as alleged in the Complaint, Plaintiff has sufficiently
alleged the gist of the publications was not substantially true. The Court is not
convinced the publications place Plaintiff in no worse light than the underlying
allegations contained in the Wheeler Complaint, as urged by Defendants. Thus,
the Court is not convinced the third-party allegations rule codified in Texas Civil
Practices and Remedies Code § 73.005(b) applies, and as a matter of law, bars
[R&R, pp. 50-51, 52-53; id., p. 74, n. 28 (“At this stage of the case and under the facts as alleged in the Complaint (including that Defendants acted in concert and conspiracy with Wigdor to publish and republish false and defamatory statements), the Court also finds Plaintiff has sufficiently alleged the falsity element of his defamation claim. In addition to [his] allegations that Defendants and Wigdor manufactured the false and ‘preconceived’ story, Plaintiff has also sufficiently alleged the gist of the reports was not substantially true – that is, that the reports were not fair, true, and impartial accounts of the Wheeler Complaint.”)].
● NPR’s statements are reasonably capable of a defamatory meaning.
“As previously noted, Plaintiff argues the ‘gist’ of the publications is that
Plaintiff, a ‘Dallas investment manager’ and ‘financial talking head,’ concocted,
spearheaded and actively participated with Fox News and the White House in a
concerted scheme to promote ‘fake news.’ … Evaluating the August 1 Report as a
whole, the Court finds because of material additions and misleading
juxtapositions, an objectively reasonable reader could conclude the report
mischaracterized Plaintiff’s role in the Seth Rich investigation and ‘thereby cast
more suspicion on [Plaintiff’s] actions than an accurate account would have
warranted.’ … The August 1 Report as a whole is reasonably capable of a
defamatory meaning because it goes ‘beyond merely reporting materially true
facts.’ … The August 1 Report also juxtaposed facts in a possibly misleading way
… The Court finds the August 1 Report, as a whole, can be reasonably understood
as stating the meaning Plaintiff proposes and is capable of defamatory meaning.””