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SUPERIOR COURT OF THE VIRGIN ISLANDS DIVISION OF ST. THOMAS AND ST. JOHN BIZVI, LLC, AND SYED GILANI, ) ) Plaintiffs, ) ) ) Vv. ) CASE NO. ST-15-CV-89 ) LAWRENCE OLIVE, ) ) Defendant. ) ) MEMORANDUM OPINION Pending before the Court is Defendant’s motion to dismiss. For the following reasons, Defendant’s motion will be denied. STANDARD Fed. R. Civ. P. 12(b), made applicable to the Superior Court through SUPER CT. R. 7, provides that upon motion by the pleader, a claim, counterclaim, cross-claim, or third party claim shall be dismissed when there is a “failure to state a claim upon which relief can be granted” to the claimant. When determining whether the allegations in a complaint are sufficiently pled, a court must engage in a three step inquiry: First, the court must “tak[e] note of the elements a plaintiff must plead to state a claim.”.... Second, the court should identify allegations that, “because they are no more than conclusions, are not entitled to the assumption of truth”... Finally, “where there are well pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief.”! ? Santiago v. Warminster Tp., 629 F.3d 121, 130 (3d Cir. 2010) (quoting Ashcroft v. Igbal, 556 U.S. 662, 881 (2009)). BIZVI, LLC et al. v. Lawrence Olive ST-15-CV-89 Memorandum Opinion, May 15, 2015 A motion to dismiss a complaint should be denied if the factual allegations are “enough to raise a right to relief above the speculative level.’” ANALYSIS Defendant moves to dismiss Plaintiff Gilani’s claims of defamation on the basis that they fail to state a claim upon which relief can be granted. “In the Virgin Islands, a claim of defamation requires: ‘(a) a false and defamatory statement concerning another; (b) an unprivileged publication to a third party; (c) fault amounting at least to negligence on the part of the publisher; and (d) either actionability of the statement irrespective of special harm? or the existence of special harm caused by the publication.’ In his motion to dismiss, Defendant refers to two paragraphs in the Complaint that specifically mention Plaintiff Gilani. Paragraph 37 states that "[Defendant] also repeatedly told employees of the VIBMV* that the data on the servers is compromised because Gilani is from Pakistan and cannot be trusted"; and Paragraph 39 states that “[a]t least one other employee of the VIBMV refers to Gilani as ‘the Taliban’ in mockcry of Gilani’s skin color and ethnicity.” Defendant challenges Parayraph 37 on the basis that Plaintiff fails to identify the employees at the VIBMV to whom Defendant made the * Bell Atl. Corp v. Twombly, 550 U.S, 544, 555 (2007). At common law, statements were “actionable per se in cases of libel where they imputed dishonesty or exposed the person to whom they referred to hatred, contempt, or ridicule, but in cases of slander, words Were actionable per se only if they charged one with committing a crime of moral turpitude, charged one with having a loathsome disease which would deprive him of social intercourse, or tended to injure one in his business or occupation. If the case of one claiming to have been defamed did not fit any of the categories described, it was necessary to allege special damages in order to have a cause of action.” 13 A.L.R. 3d 1286, 2a. * Kendall v. Daily News Publ. Co., 55 V.1. 781, 787-788 (V.1. 201 1) (quoting Restatement (Second) of Torts § 558). See also McDowell v. Paiewonsky, 769 F.2d 942, 945-46 (3d Cir. 1985). > Virgin Islands Bureau of Motor Vehicles. BIZVI, LLC et al. v. Lawrence Olive ST-15-CV-89 Memorandum Opinion, May 15, 2015 detamatory statement, and Defendant challenges Paragraph 39 on the basis that Defendant is not responsible for what anyone else says about Plaintiff. Defendant also argues that "when the Court strips away all of Gilani's intentionally vague, false, and sel f- serving allegations in the Verified Complaint, there is not onc alleged fact that states a claim for relief against [Defendant] that is plausible on its face."* Foremost, Defendant’s argument that Plaintiffs factual allegations are “false and sclf-serving” fails because, at this stage in the proceedings, the Court must consider well- pleaded factual allegations as true. Defendant’s challenge to Paragraph 39 has merit because Paragraph 39 docs not specifically allege that Defendant called Plaintiff “the Taliban.” However, Defendant's challenge to Paragraph 37 is without merit because it cficctively suggests that Plaintiff's defamation claim is subject to the heightened pleading requirements of Fed. R. Civ. P. 9, which requires a party to state with particularity the circumstances surrounding the alleged tort. “[D]efamation is not among [the] causes of action listed in Rule 9” and “courts have refused to hold defamation claims to the standards of Rule 9 rather than the general pleading standards of [Fed. R. Civ. P. 8]. Rule 8 simply requires that a claim must contain a “short and plain statement ... showing that the pleader is entitled to relief.” The Court finds that Plaintiff Gilani has adequately pied a claim for defamation against Defendant. Paragraph 37 describes the purportedly false and defamatory statement that Defendant made to unprivileged third parties, Paragraph 46 alleges that “[Defendant’s] statements [towards Gilani] are patently false,” which suggests negligence on the part of Defendant, and Paragraph 48 indicates that ® Defendant's motion, at page 4. ’ Cedar Rapids Lodge & Suites, LLC vy. JFS Dev., Inc., 2010 U.S. Dist. LEXIS 73687, at *12-13 (N.D. Iowa 2010). BIZVI, LLC et al. v. Lawrence Olive ST-15-CV-89 Memorandum Opinion, May 15, 2015 Defendant’s statements “are damaging to Gilani’s business relationships.” As a result, Defendant’s motion to dismiss will be denied. An Order consistent with this Opinion shall follow Dated: May/S~, 2015 a ATTEST: Estrella George = JUDGE OF THE SUPERIOR COURT Acting Clerk of Court OF THE VIRGIN ISLANDS —_— AC WY __ Honna-L) onovan Court Clerk Supervisor OMEA: i G) fs