Preview
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Jeffrey I. Wasserman, Esq., Attorney I.D. No. 037051999
WASSERMAN LEGAL LLC
1200 Route 22 East, Suite 2000, #2238
Bridgewater, New Jersey 08807
(973) 486-4801
Attorneys for Plaintiff
JAMIE HODGES, SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ESSEX COUNTY
Plaintiffs,
DOCKET NO. ESX-L-8124-2020
Vv. CIVIL ACTION
CIARA MCGOVERN, JENNIFER
MCGOVERN, AND THE DENOGLA
SCHOOL OF IRISH DANCE, and DOES 1-100,
fictitiously named,
Defendants.
PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION FOR
SUMMARY JUDGMENT FILED BY THE DEFENDANTS
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Plaintiff Jamie Hodges (“Mr. Hodges”) respectfully submits this memorandum of law in
opposition to the motion for summary judgment filed by Defendants Ciara McGovern, Jennifer
McGovern, and the Denogla School of Irish Dance.
PRELIMINARY STATEMENT
This is a defamation action brought by Plaintiff Jamie Hodges, an Irish Dance instructor.
It is undisputed that on December 3, 2019, Defendant Ciara McGovern (“Defendant Ciara
McGovern” or “Ciara McGovern”) wrote texts to a third party, Rebecca Bell, in which she
repeatedly accused Plaintiff
of having engaged in sexual misconduct with respect to young girls.
Defendant Ciara McGovern now moves for summary judgment, seeking to have the Court
dismiss the defamation claims against her. Ciara McGovern argues that there is insufficient
evidence in the record that she committed defamation, and argues that Plaintiff has not met what
she asserts is an actual malice standard. However, Ciara McGovern’s motion should be denied
because there is undisputed evidence in the record that Ciara McGovern defamed the Plaintiff.
Indeed, Ciara McGovern admitted in her deposition that she actually fabricated key aspects of the
defamatory statements she made against the Plaintiff, thus satisfying an actual malice standard,
even if one applied.
First, there is undisputed evidence in this case that Defendant Ciara McGovern wrote the
defamatory statements at issue to a third party, and that the statements are defamatory on their
face. Under New Jersey law, a determination as to whether language is defamatory on its face
rests within the sole power of the Court, and there can be no question that the texts that Ciara
McGovern wrote about the Plaintiffto a third party are defamatory on their face. Ciara McGovern
wrote to third party Rebecca Bell that the Plaintiff had sex with a 17-year-old girl, and that there
was a pending legal proceeding against the Plaintiff concerning inappropriate behavior with under-
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14-year-old girls. In addition, Ciara McGovern wrote to the third party that she herself heard the
Plaintiff speak “inappropriately” about young girls, which in the context of the other accusations
clearly conveyed that the inappropriate comments were of a sexual nature. These accusations,
made against an Irish dance instructor who teaches young children, are clearly defamatory on their
face and destructive to the Plaintiffs reputation and career.
Second, Defendant Ciara McGovern is incorrect in asserting that an actual malice standard
applies. In her motion for summary judgment, Ciara McGovern argues that she is entitled to
summary judgment because the issue that she communicated about purportedly relates to matters
of public concern, and thus a standard of actual malice applies. This argument is without merit.
The Plaintiff is a private citizen, and the allegations involve only matters of alleged private
misconduct. New Jersey case law makes it clear that matters regarding teachers are only of public
concern when they involve teachers acting in their role as teachers. Here, the alleged private
misconduct (for which there is no factual basis) did not take place while Plaintiff
was acting as an
Irish Dance instructor, and do not involve girls who were students of his at the time of the incidents.
Thus, under applicable case law, defamatory statements made about such allegedly private
misconduct by a non-public official does not require that the Plaintiff meet the actual malice
standard.
However, even assuming that an actual malice standard applies (which it does not),
Plaintiff met this standard because Defendant Ciara McGovern admitted in her deposition that she
had no factual basis for, and even fabricated out of thin air, key aspects of the defamatory
statements she made against the Plaintiff. Given Ciara McGovern’s stunning admissions that she
actually fabricated several allegations she made against the Plaintiff to a third party, not only
should her summary judgment motion be denied, but Plaintiff should be granted the summary
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judgment motion that Plaintiff will be filing. That is, the Court should grant summary judgment
in Plaintiffs favor, that the statements that Ciara McGovern made against the Plaintiff are
defamatory on their face, they constitute libel (as they are written), and that Ciara McGovern acted
with actual malice. Because the defamatory statements constitute libel, although Plaintiff will put
on evidence of actual damages, even if there were no proof of actual damages, Plaintiff will be
entitled to an instruction on presumed damages.
Defendant Ciara McGovern admitted at her deposition that she did not hear the defamatory
comments she made from her mother, Defendant Jennifer McGovern. Indeed, as noted above,
Ciara McGovern admitted that she actually fabricated out of thin air key aspects of the defamatory
statements she made against the Plaintiff. Given the shocking admission by Ciara McGovern at
her deposition that she alone fabricated defamatory statements against the Plaintiff, the Plaintiff
agrees that this deposition testimony has revealed that liability for the defamation in this action
rests with Ciara McGovern alone. Thus, Plaintiff agrees that, because Ciara McGovern has taken
full responsibility at her deposition for acting alone in fabricating the defamatory statements she
made against the Plaintiff, the defamation claims against Defendant Jennifer McGovern and the
Denogla School of Irish Dance should be dismissed.
In sum, for the reasons set forth herein, the summary judgment motion made by Defendant
Ciara McGovern should be denied.
STATEMENT OF FACTS
In the interest of avoiding unnecessary duplication, Plaintiff refers the Court to, and hereby
incorporates by reference, his accompanying Response to Defendants’ Statement of Undisputed
Material Facts (“Response”), which includes a Counterstatement of Undisputed Material Facts.
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STANDARD OF REVIEW
It is well-established that a party is entitled to summary judgment where “there is no
genuine issue as to any material fact challenged and that the moving party is entitled to a judgment
or order as a matter of law.” N.J. Ct. Rule 4:46-2(c). Admissible evidence in support of the
movant’s claim must be “so one-sided that one party must prevails as a matter of law.” Brill v.
Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). The moving party not only bears the
burden of demonstrating an absence of genuine issues of material fact, but must do so against a
standard that requires “the court [to accept[] as true all the evidence and favorable legitimate
inferences that support the non-moving party.” J.S. v. R.T.H., 155 N.J. 330, 336 (1998) (citing
Brill, 142 N.J. at 523). See N.J. Ct. Rule 4:46-2(c) (“all legitimate inferences therefrom favoring
the non-moving party”).
ARGUMENT
I DEFENDANT CIARA MCGOVERN INCORRECTLY ARGUES THAT THERE
IS INSUFFICIENT EVIDENCE THAT SHE DEFAMED THE PLAINTIFF
In her summary judgment motion, Defendant Ciara McGovern argues that a “clear and
convincing” evidence standard applies to the defamation claim brought against her, and that the
Plaintiff has not met this standard. Motion for Summary Judgment at 8.
As set forth below, this is incorrect for several reasons. The clear and convincing evidence
standard only applies to the actual malice prong of a defamation claim against a public official.
See Lynch vy. N.J. Educ. Ass’n, 161 N.J. 152, 165 (1999) (“When a case concerns a public official
or public figure, the court should grant summary judgment dismissing the complaint if a reasonable
jury could not find that the plaintiff had established actual malice by clear and convincing
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evidence. “). Here, the Plaintiff is not a public official, so the clear and convincing standard has
no applicability to this action.
However, even assuming that a clear and convincing evidence standard applies, Plaintiff
easily meets that standard here. As discussed below, the undisputed evidence in this case is that
Defendant Ciara McGovern made defamatory statements to a third party (Rebecca Bell) regarding
the Plaintiff. Moreover, Ciara McGovern shockingly admitted at her deposition that she even
fabricated key aspects of the defamatory statements she made against the Plaintiff. Therefore,
there is indeed clear and convincing evidence that Ciara McGovern defamed the Plaintiff
and acted
with actual malice, and thus Ciara McGovern’s motion for summary judgment should be denied.
A The Statements Made by Ciara McGovern Are Defamatory On Their Face
It is well established that “a determination of whether certain language is defamatory on
its face rests within the power of the trial court.” Sylvan Dental, P.A. v. Chen, No. A-4544-18,
2021 WL 3671164, at *6 (App. Div. Aug. 19, 2021) (unpublished).
A statement is defamatory “if it exposes a person to hatred, contempt or ridicule, or subjects
him to a loss of good will and confidence of others, or so harms his reputation as to deter others
from associating with him.” Sylvan Dental, 2021 WL 3671164, at *6 (App. Div. Aug. 19, 2021).
In determining if a statement is defamatory, a court “must consider the listener’s reasonable
interpretation, which will be based in part on the context in which the statement appears.” Nu Wave
Inv. Corp. v. Hyman Beck & Co., Inc., 432 N.J. Super. 539 at 552 (Law Div. 2013).
Here, Defendant Ciara McGovern’s written statements regarding Plaintiff are defamatory
on their face, as they repeatedly accuse the Plaintiff of sexual improprieties with young girls,
including having sex with an underage girl. It is undisputed that on December 3, 2019, Ciara
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McGovern wrote the following defamatory statements (highlighted below in bold) to Rebeca Bell
about the Plaintiff:
Ms. Bell: “Heya sorry going a mile a minute today and my heads a bit blurry
after chatting [emoji] was just thinking Jamie’s worked with our
class a couple time and he’s been amazing and the kids all loved it
so am just kinda confused..what did Gary Healy say Jamie did?”
Defendant: “Just know there’s an allegation and a case going on that he was
involved with two prelim ul4s from the Francis Academy. Gary
was angry at the region that he was still allowed to be present at the
regional this weekend. Gary decided to stay away”
Defendant: “Just inappropriate things and I know they have a case going”
Defendant: “Also [individual girl] from Celtic Steps was 17 the first time
they had sex and now that’s a thing”
Defendant: “T’ve heard him talk inappropriately a few times about dancers
younger than me. I just think he’s fucked up and you should stay
away”
Ms. Bell: “Sorry driving, ah okay, well thanks for the heads up, I appreciate
it. [mean, I think he’s really great and I’ve never got that impression
from him and our kids do really like him. Into class to teach the
muffins, really hope Ryan is okay! [emojis].
* * *
Defendant: “No problem, I know you're friends. Just don’t leave him alone
with the muffins.”
* * *
Ms. Bell: “He’s def been left alone with them a bunch and the kids literally
love him. I mean we’ve had a variety of workshops of all kinds over
the years and he’s def the best but anyway Planxty Davis is literally
blaring in my ear so off I go [emoji] will keep my fingers crossed
for Ryan and hope for the best ! xx”
Deposition of Ciara McGovern (““C. McGovern Dep”), Exhibit E (Exhibit A to the Certification of
Robert Gallop dated February 23, 2023 (“Gallop Cert.”)! (emphasis added).
' Doc. No. ESX-L-008124-20
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There can be no question that Defendant Ciara McGovern’s boldened statements above are
defamatory on their face, as they clearly convey that Plaintiff Hodges, an adult male Irish Dance
instructor, has acted sexually inappropriately multiple times with young girls. Indeed, Ciara
McGovern’s texts state that the Plaintiff had sex with a 17-year-old, and that there is a pending
legal proceeding concerning the Plaintiffs inappropriate behavior with under-14-year-old girls.
In addition, Ciara McGovern states in the texts that she herself heard the Plaintiff speak
“inappropriately” about young girls, which, in the context of the other accusations, clearly
indicated that the inappropriate comments were of a sexual nature.
The above statements are on their face defamatory, as they subject the Plaintiffto contempt,
subject him to a loss of good will and confidence of others, and are plainly destructive of his
reputation and career. See, e.g., Sylvan Dental, 2021 WL 3671164 at *6 (holding that words that
“clearly sound to the disreputation of an individual are defamatory on their face” as are statements
“of significance and importance relating to [how the individual] carries out his trade, profession
or business.”).
It is well settled that a statement is actionable “if the statement suggested specific factual
assertions that could be proven true or false.” NuWave, 432 N.J. Super. at 552. Here, Defendant
Ciara McGovern’s defamatory statements are on their face purported statements of fact. For
example, it is either true or false that the Plaintiffhad sex with a 17-year-old. Yet, Ciara McGovern
admitted in her deposition that she had no basis for the statement. Specifically, Ciara McGovern
in her deposition admitted that this factual accusation was “just a rumor,” and that she never spoke
to the girl in question at all, let alone to confirm whether the rumor was true. C. McGovern Dep.
at 74:6-9 (Gallop Cert. Exhibit A).
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Similarly, it is either true or false that there was a pending case or litigation involving the
Plaintiff involving two dancers under the age of 14 from the Francis Academy. Yet at her
deposition, Defendant Ciara McGovern admitted that she fabricated the assertion that there was
some case or legal proceeding pending regarding the Plaintiff and girls under the age of 14.
Specifically, Ciara McGovern admitted that she “didn’t know what she was referring to” when she
wrote that defamatory statement. C. McGovern Dep., 66:4-8 (Gallop Cert. Exhibit A). When
asked if someone told her there was a legal proceeding or case, Ciara McGovern stunningly
admitted that there was not such a legal proceeding. C. McGovern Dep. 67:3-9 (Gallop Cert.
Exhibit A) (“there wouldn’t be a case going, from my understanding.”).
Defendant Ciara McGovern’s assertion that she herself heard the Plaintiff “talk
inappropriately about dancers younger than me” is also a statement of purported fact. In the
context of the other allegations of sexual misconduct that Ciara McGovern accused the Plaintiff of
to the third party, Ciara McGovern’s statement that she heard the Plaintiff speak inappropriately
about young dancers is clearly conveying, as a matter of purported fact, that the Plaintiff was
speaking sexually inappropriately about young girls.2_ Yet, as Ciara McGovern astonishingly
? In similar settings courts have easily determined that the word “inappropriate” in context is
defamatory on its face, particularly where the context suggests improper interactions with young
people. See e.g, Hersh v. Grumer, 176 N.E.3d 1135 at 467 (Ct. of Appeals of Ohio, 8th District,
2021) (“insomuch as the defendants claim that “inappropriate behavior” does not necessarily mean
sexually or criminally inappropriate...the defendants ensured that deviant connotation [through
other references] and by continuing to warn the community of the danger that Hersh poses to
children.”). Similarly, as to Defendant Ciara McGovern’s final statement — the warning “just don’t
leave him alone with [your students]” - courts in other jurisdictions have found that a letter in
which defendants “warn you not to let young children be in [a party’s] care” is defamatory on its
face. See e.g., Woods v. Sharkin, 192 N.E.3d 1174, 1192 (Ct. of Appeals of Ohio, 8" District,
2021) (‘the only reasonable interpretation of the letter was that the plaintiff was being accused of
engaging in pedophilia — plainly a defamatory charge, if false.”). Even assuming, arguendo, that
the statement about Plaintiff acting inappropriately with young girls could somehow be simply a
mere opinion, which defies common sense, the court need not reach the issue because taken
together Ciara McGovern clearly made multiple alleged statements of purported fact.
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admitted in her deposition, Ciara McGovern fabricated this accusation out of thin air: at her
deposition Ciara McGovern admitted that she never heard the Plaintiff say anything inappropriate
about young girls, and that she simply made up this toxic, defamatory accusation. C. McGovern
Dep. 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a
few times about dancers? A: I didn’t.”).
Not only did the Defendant Ciara McGovern admit that she fabricated the statement, but
she even expressed remorse for having intentionally lied about the Plaintiff: “I think it was wrong
that I said it to her and not knowing it for a fact, yeah, I think”; “Q: Do you regret writing that? A:
Ido.”. C. McGovern Dep. 74:11-13; 77:2-3 (Gallop Cert. Exhibit A). Ciara McGovern also was
unable to offer any explanation for why she made up the accusations, simply saying, variously,
“No comment” and “I don’t know.” C. McGovern Dep. 77:10; 78:3 (Gallop Cert. Exhibit A).
In light of the above, Defendant Ciara McGovern’s statements at issue regarding the
Plaintiff are on their face defamatory, as they clearly subject Mr. Hodges to contempt, ridicule,
and are destructive to his reputation and career. See, e.g., Lawrence v. Bauer Publishing &
Printing Ltd, 89 N.J. 451, 459 (1982) (statements that “clearly sound to [a person’s] disreputation”
are defamatory).
B Defendant Ciara McGovern Cannot Assert Truth As A Defense
During Defendant Ciara McGovern’s deposition, she admitted under oath that she did not
have any factual basis to make any of the defamatory statements she made regarding the Plaintiff,
and even admitted that she fabricated key aspects of the defamatory statements she made regarding
the Plaintiff. As a result, Ciara McGovern cannot assert truth as a defense.
First, as set forth above, Defendant Ciara McGovern admitted that the statement that
Plaintiff had sex with a 17-year-old was “just a rumor,” and that she had no actual knowledge of
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whether that incredibly inflammatory accusation was true. Further, Ciara McGovern admitted that
she couldn’t recall if the source of the rumor even indicated that the girl was 17. C. McGovern
Dep. 70:21-23 (Gallop Cert. Exhibit A) (“Q: Did she tell you how old [girl] was when they had
sex? A: I can’t recall.”). Ciara McGovern also admitted that she took no steps whatsoever to
confirm or investigate whether the rumor was true. C. McGovern Dep. 71:2-8 (Gallop Cert.
Exhibit A) (“Q: Did you personally know whether or not [girl] was 17 when [Plaintiff] allegedly
had sex with her? A: No. Q: Did you ever speak to [girl]? A: No.”).
Similarly, although Defendant Ciara McGovern texted Rebecca Bell that she had herself
witnessed Plaintiff speaking inappropriately regarding young dancers, at her deposition Ciara
McGovern stunningly admitted that she fabricated this assertion out of thin air. In realty, Ciara
McGovern admitted that she has never heard Plaintiff talk inappropriately about young girls. C.
McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk
inappropriately a few times about dancers? A: I didn’t.”).
With respect to Defendant Ciara McGovern’s text to Rebecca Bell that there was some
case involving the Plaintiff regarding two girls under the age of 14 from the Francis Academy,
Ciara McGovern again admitted in her deposition that she fabricated this accusation and had no
basis for it. C. McGovern Dep. 66:14-25; 67:3-9 (Gallop Cert. Exhibit A) (“there wouldn’t be a
case going, from my understanding.”).
C. Defendant Ciara McGovern Acted With the Requisite Degree of Fault
The defendants argue in their motion for summary judgment that the Plaintiff's defamation
claim should be dismissed because there is insufficient evidence that Defendant Ciara McGovern
acted with the required mental state, which they argue is actual malice. Motion for Summary
Judgment, at 9-10. For the reasons set forth below the Defendants’ argument is incorrect.
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1. Defendant Ciara McGovern Acted At Least Negligently in Defaming Plaintiff
It is well-established that a defendant is liable for defamation where he or she acts at least
negligently as to the truth of the defamatory statements made. See e.g. Nuwave, 432 N.J. Super.
at 557 (citing Restatement, Torts, 2d, §580B (1976)) (“One who publishes a false and defamatory
communication concerning a private person....is subject to liability if...he (a) knows that the
statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or
(c) acts negligently in failing to ascertain them.”). The case law makes clear that negligence is
established where the speaker acts negligently “in failing to ascertain the truth or falsity of the
statement before communicating it.” Feggans v. Billington, 291 N.J. Super. 382, 391 (App. Div.
1996).
It is impossible for Defendant Ciara McGovern to deny that she acted, at the very least,
with negligence with respect to the veracity of the statements at issue. As explained below, it is
undisputed that, with respect to each of the three defamatory assertions made, every time Ciara
McGovern was asked at her deposition what the basis was for her defamatory statements regarding
the Plaintiff, she admitted she did not have a basis, nor did she take even modest steps to investigate
whether the statements were true, and even admitted that she fabricated two of the other statements.
See C. McGovern Dep., 66:14-25; 67:3-9; 75:14-17 (Gallop Cert. Exhibit A) (“there wouldn’t be
a case going, from my understanding...Q: When did you hear [Plaintiff] talk inappropriately a few
times about dancers? A: I didn’t.”).
Defendant Ciara McGovern testified in her deposition that she heard a rumor about
messages being sent to young girls on Instagram from only one person, Mary Stack, who herself
was only repeating something she allegedly had been told by someone else. But Ciara McGovern
admitted that she did not take any steps whatsoever to verify whether or not this rumor was true:
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What exactly did Ms. Stack tell you?
She said that there [were] messages sent on Instagram from Jamie to two
14-year-old girls from the Francis Academy that were inappropriate.
Did she say she saw those messages?
She did not.
Did she say someone else told her that he sent those messages?
Yes.
Who did she say told her?
Someone, a dance parent from the Francis Academy.
Did she say who that dance parent was?
No.
Did you ask?
No....
When you heard it from Ms. Stack, did you assume that what she was telling
you was true?
Yes.
Why?
I just -- I believe her. I look up to her in a way, I guess. She is a good
person.
But since she didn’t see the texts herself and she said that someone else told
her, did you consider the fact that it’s possible that it’s not true, that what’s
being said is not true?
I didn’t consider it. I just believed it.
Do you think it’s ok for people, when they hear a rumor about a negative
information about people [sic], do you think it’s fair or wise to just assume
that what you are hearing is true?
No.
So if it’s not fair to assume these things are true, why did you in this instance
assume it to be true? A: I don’t know.
C. McGovern Dep. 54:7 - 56:25 (Gallop Cert. Exhibit A)
As demonstrated by the above admissions, Defendant Ciara McGovern took absolutely no
steps whatsoever to investigate whether the rumor she heard was true: Ciara McGovern did not
speak to anyone with first-hand knowledge, or even ask who the people with first-hand knowledge
might be. Instead, as Ciara McGovern admitted, without knowing who any of the alleged victims
were or who their parents were, and without hearing information from anyone with first-hand
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knowledge, Ciara McGovern just assumed the rumor to be true -- while admitting that it made no
sense for her to make such an unfair assumption.
Indeed, Ciara McGovern admitted in her deposition that, prior to hearing the rumor, she
thought the Plaintiff was “a nice person” and that she was “surprised” when she heard the
allegation. C Mc.Govern Dep. 55:16-22 (Gallop Cert. Exhibit A). However, despite Ciara
McGovern admitting that the derogatory statements being made about the Plaintiff were surprising
and inconsistent with her experience that the Plaintiff was a nice person, she admitted at her
deposition that she took absolutely no steps to verify what she had been told prior to repeating it -
- which clearly shows that Ciara McGovern at the very least acted with negligence. This is on top
of the fact that, elsewhere in her deposition, Ciara McGovern admitted that she actually fabricated
key aspects of the defamatory statements she made against the Plaintiff.
Similarly, with respect to Defendant Ciara McGovern’s text that there was a pending
“case” involving the Plaintiff
and his alleged misconduct toward two under 14-year-old girls from
the Francis Academy, when Ciara McGovern was asked whether someone actually told her that
there was such a case or proceeding involving the Plaintiff, Ciara McGovern admitted that she
fabricated this accusation: Specifically, Ciara McGovern admitted that “...there wouldn’t be a case
going, from my understanding,” and when asked what led her to use the word “case,” she simply
stated, “I can’t remember, I don’t know.” C. McGovern Dep. 67:8-13 (Gallop Cert. Exhibit A).
This admission again demonstrates that not only was Ciara McGovern negligent, but she actually
fabricated the defamatory statement that there was a case pending involving the Plaintiff and under
14-year-old girls from the Francis Academy.
Regarding Defendant Ciara McGovern’s defamatory assertion that the Plaintiff had sex
with a 17-year-old, in her deposition Ciara McGovern again admitted that this was a rumor that
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she heard from her cousin, and that Ciara McGovern took no steps to verify whether this rumor
was true. For example, when asked if Ciara McGovern had personal knowledge as to the age of
the girl involved in the alleged encounter, or ever spoke to the girl in question, Ciara McGovern
simply testified “no.” C. McGovern Dep. 71:2-8 (Gallop Cert. Exhibit A). Since Ciara McGovern
admitted that she took no steps to verify whether the rumor had a factual basis, she by definition
acted with negligence. See, e.g., Feggans, 291 N.J. Super. 382, 391 (holding that a person acts
negligently “in failing to ascertain the truth or falsity of the statement before communicating it.”).
In addition, Ciara McGovern admitted that she could not recall whether her cousin actually said
that the girl in question was 17 years old. C. McGovern Dep. 70:21-23 (Gallop Cert. Exhibit A)
(“Q: Did she tell you how old [girl] was when they had sex? A: I can’t recall.”). Thus, once again,
Ciara McGovern fabricated out of thin air the very specific and young age of the girl who Plaintiff
allegedly had sex with.
In light of the fact that Ciara McGovern actually fabricated key aspects of the defamatory
statements she made, she cannot justify her statements by asserting that she was simply repeating
what she heard from others. By her own admissions in her deposition, Ciara McGovern made
three defamatory allegations regarding the Plaintiff, but only allegedly heard one element of one
allegation from Mary Stack (regarding messages allegedly being sent on Instagram), and heard
one element of another allegation from her cousin (regarding an alleged sexual encounter with a
17-year-old). As for the other defamatory statements, Ciara McGovern did not hear these from
someone else, but rather by her own admission fabricated them.
Specifically, with respect to Ciara McGovern’s text that there was a pending “case”
involving the Plaintiff and his alleged misconduct toward two under 14-year-old girls from the
Francis Academy, when Ciara McGovern was asked whether someone actually told her that there
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was such a case or proceeding involving the Plaintiff, she admitted that “...there wouldn’t be a case
going, from my understanding,” and when asked what led her to use the word “case,” she simply
stated, “I can’t remember, I don’t know.” C. McGovern Dep. 67:8-13 (Gallop Cert. Exhibit A).
Similarly, although Ciara McGovern texted Rebecca Bell that she had herself witnessed Plaintiff
speaking inappropriately regarding young dancers, at her deposition Ciara McGovern admitted
that, in realty, she has never heard Plaintiff talk inappropriately about young girls. C. McGovern
Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a
few times about dancers? A: I didn’t.”).
As Defendant Ciara McGovern failed to take steps to investigate some of the statements
on which she claims to rely, and outright fabricated the others, she obviously acted at the very least
negligently, but also acted with actual malice. That is, as discussed below, even if actual malice
is the applicable standard, Ciara McGovern’s admitted fabrications by definition means that she
acted with actual malice.
2. Defendants Are Incorrect In Arguing that the Actual Malice Standard Applies,
but Even If The Actual Malice Standard Applied, It Is Met Here Because
Defendant Ciara McGovern Admitted That She Fabricated False Statements
About the Plaintiff
Because the matters in question involve a private plaintiff, the applicable standard to
establish this defamation claim is ordinary negligence. In their motion for summary judgment, the
defendants argue that the applicable standard should not be negligence, but actual malice. Motion
for Summary Judgment, pg. 9-10. The basis for the defendants’ argument is that they assert that
the subject of the defamation is a matter of public concern. However, for the reasons set forth
below, defendants are incorrect in asserting that the statements at issue involve a matter of public
concern as defined by case law. Moreover, even assuming that the statements were genuinely of
public concern as defined by the case law (which they are not), Ciara McGovern indeed acted with
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actual malice as she admitted in her deposition that she fabricated multiple of the defamatory
statements she made regarding the Plaintiff.
a. The Statements At Issue Do Not Involve a Matter of Public Concern And Thus The
Actual Malice Standard Does Not Apply
While it is true that if a matter is of genuine public concern the actual malice standard
applies, New Jersey case law has carefully limited the areas that are deemed to be of genuine public
concern. For example, in Senna v. Florimont, 196 N.J. 469 (2008), the New Jersey Supreme Court
refused to apply the actual malice standard, and reiterated that matters of public concern typically
involve the government, public officials, public health and safety, or teachers in schools acting in
their official capacity. See, e.g., Senna v. Florimont, 196 N.J. 469, 474 (2008) (holding that issues
of public concern relate to topics involving “public officials, public figures, and the public interest”
and that in those cases, the standard is actual malice”).
In cases involving teachers, New Jersey courts have limited the scenarios that are deemed
to be of public concern to situations where the teacher was acting in his or her capacity as a
teacher. For example, in Rocci, the teacher was on a school-sponsored field trip, and chaperoning
students. In that case, the Supreme Court of New Jersey emphasized that there was a public interest
in the behavior of teachers “concerning their conduct with and around their students.” Rocci, 156
N.J. 149, 156 (2000). The court went on to stress that where a teacher is acting in a “fiduciary
role,” and the conduct occurred during a school sponsored event, the conduct was of genuine public
concern and the actual malice standard should apply. /d. at 157.
Here, the Plaintiff is a private citizen, not a teacher at a public school, or even a teacher at
a private grammar, intermediate, or high school. Rather the Plaintiff is an instructor for extra-
curricular dancing. Deposition of Jamie Hodges (“J. Hodges Dep.”) 16:12-14; 17:18-20 (Gallop
Cert. Exhibit C).
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More importantly, it is undisputed that the Plaintiff's alleged misconduct did not take place
while the Plaintiff was acting as a dance instructor. Rather, Defendant Ciara McGovern’s
defamatory allegations regarding the Plaintiff consist of alleged conduct of a private citizen taking
place outside of his role as a dance instructor: namely, alleged sex with a 17-year-old, allegedly
talking inappropriately about young girls, and an alleged unspecified case or proceeding involving
the Plaintiff
and under 14-year-old girls -- none of which allegedly involve conduct while he was
instructing a dance class or supervising dancers ona trip. Nor were the girls he allegedly messaged
students of his at the time of the texts.
Because this case involves three discrete alleged acts of private misconduct -- not by a
teacher acting in his role as a teacher -- this case is governed by the ruling in W..A. v. D.A., 210
N.J. 229 (2012). The defendants cite to the WJA decision in their motion for summary judgment,
but completely misrepresent its holding. Specifically, the defendants assert that the court in WJA
held that sexual abuse of minors constitutes a matter of public concern. Motion for Summary
Judgment, pg. 10 (“New Jersey’s Supreme Court found that sexual abuse of minors constituted a
public concern subject to the same actual malice standard.”). The defendants have totally
misrepresented the holding in WJA. In fact, as set forth below, the court in WJA held that sexual
abuse of a minor by a private citizen does not, in itself, constitute a matter of public concern.
In W.J.A. vs. D.A., like in this case, the defendant was a private individual (i.e. not a public
official) who had been accused of ongoing sexual assault against a minor. The Plaintiff argued
that criminal sexual assault against minors was a matter of genuine public concern. The Supreme
Court of New Jersey disagreed and squarely held that, even where serious criminal misconduct
against children was at issue, this was not enough to transform such private acts to be an issue of
public concern. /d. at 245 (“To be sure, the speech accuses Anderson of engaging in serious
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criminal conduct, thus qualifying for per se treatment. But we have never suggested that such an
allegation, in itself, vaults the public concern threshold.”).
Of course, there is a sense in which any and every act of alleged wrongdoing involving
young children could be said to be of public concern. But as the Court made clear in W.J.A., the
law requires more for an alleged wrongdoing to rise to the level of genuine public concern before
it imposes the stricter actual malice standard. As the case of W.J.A. v. D.A. perfectly illustrates,
where, as here, alleged sexual misconduct towards a child involves private citizens who have not
actually been found guilty of any such conduct, this is not properly viewed as a genuine issue of
public concern. See also, e.g., Okeke v Anekwe, 2022 WL 2674944 at *8 (App. Div., July 12,
2022) (unpublished) (holding that the claims at issue “relate to isolated incidents between private
individuals and, as such, are of limited concern to the public.”).
Finally, in this case it is impossible for the accusations to be of “genuine public concern”
because, as discussed above and in more detail below, Defendant Ciara McGovern admitted that
of the three defamatory statements she made, she completely fabricated two of them, and fabricated
a key aspect of the third defamatory statement. See supra at 9-10. It is impossible for admitted
fabricated statements to rise to the level of a genuine public concern.
b. Defendant Ciara McGovern Acted with Actual Malice, As She Admitted That She
Fabricated Key Aspects of the Defamatory Statements She Made
In any event, even assuming, arguendo, that the alleged private conduct by the Plaintiff --
not in his role as a dance instructor -- could somehow be deemed to be a matter of genuine public
concern, in this case Defendant Ciara McGovern did act with actual malice. Indeed, this is because
Ciara McGovern admitted that she actually fabricated key elements of the three defamatory
statements she made regarding the Plaintiff.
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First, with respect to the defamatory assertion that there was some “case” or legal
proceeding against the Plaintiff involving girls under the age of 14 at the Francis Academy,
Defendant Ciara McGovern admitted at her Deposition that she made this up. C. McGovern Dep.
67:3-9 (Gallop Cert. Exhibit A) (“Q: Did anybody tell you that there was some criminal or civil
proceeding, a case about this incident? A: “...there wouldn’t be a case going, from my
understanding.”).
Second, with respect to Defendant Ciara McGovern’s allegation that she herself heard the
Plaintiff talk inappropriately about young dancers, she admitted that in fact she never heard him
do so. C. McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff]
talk inappropriately a few times about dancers? A: I didn’t.”).
Third, as to the allegation that Plaintiff allegedly had sex with a 17 year old, Defendant
Ciara McGovern admitted at her deposition that, although she heard a rumor from her cousin that
Plaintiff
had sex with a young girl, she could not recall that her cousin told her that the girl was 17
at the time. C. McGovern Dep. 70:21-23 (Gallop Cert. Exhibit A) (“Q: Did she tell you how old
[girl] was when they had sex? A: I can’t recall.”). Thus, yet again, Defendant Ciara McGovern
fabricated a key and devastating aspect of this defamatory accusation, because the very specific
young age of the girl is what makes the allegation especially damaging to the reputation of an Irish
Dance instructor.
In light of Defendant Ciara McGovern’s above admissions that she fabricated two of the
three defamatory statements at issue in this case, and fabricated a key aspect of the third
defamatory statement, even if the actual malice standard applies, Ciara McGovern clearly acted
with actual malice. Malice exists “where the speaker made a false and defamatory statement either
knowing it was false or in reckless disregard of the truth.” Okeke, 2022 WL 2674944 at *7
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(unpublished). See also Ackerman v. Baldeo, 2014 WL 3537904 at *3 (App. Div., July 18, 2014)
(unpublished) (“Establishing reckless disregard requires a showing that the defendant made the
statement with a high degree of awareness of its probably falsity.”). Where a speaker fabricates a
statement, as a matter of law this constitutes reckless and intentional conduct constituting actual
malice. See Pistilli-Leopardi v MediaNews Group Inc. 2020 WL 3967992 at *7 (App. Div. July
14, 2020) (holding that the Plaintiff pled sufficient facts to support the conclusion that the
defendants fabricated the statements and, in doing so, they acted in reckless disregard for the
truth.).
In the defendants’ motion for summary judgment, Ciara McGovern argues that she is
somehow justified in defaming the Defendant, because she asserts that she merely repeated one of
the statements that she heard from someone else. Motion for Summary Judgment, pg. 10. But this
argument is without merit. The assertion in the defendants’ motion for summary judgment that
Defendant Ciara McGovern allegedly heard a component of one of the three defamatory
statements she texted regarding the Plaintiff from someone else fails to defeat her mental
culpability for an obvious reason: Ciara McGovern made three defamatory allegations regarding
the Plaintiff, but only allegedly heard one component of one of those allegations from someone
else.? As for two of the defamatory statements at issue in this case, as set forth above, Ciara
McGovern did not hear them from someone else, but rather fabricated them out of whole cloth.
Specifically, Ciara McGovern texted Rebecca Bell that there was some “case” or legal proceeding
against the Plaintiff involving girls under the age of 14 at the Francis Academy, but Ciara
McGovern admitted at her Deposition that she made this up. C. McGovern Dep. 67:3-9 (Gallop
3 See Defendants’ Motion for Summary Judgment dated February 23, 2023, Doc. No. ESX-L-008124-20, at 10. In
the Defendant’s deposition she claims that the statement alleging that the Plaintiff had sex with a 17-year-old was
also based on a rumor, however this is not mentioned in the Defendants’ motion.
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Cert. Exhibit A) (“Q: Did anybody tell you that there was some criminal or civil proceeding, a case
about this incident? A: “...there wouldn’t be a case going, from my understanding.”). And, with
respect to Ciara McGovern’s allegation that she herself heard the Plaintiff talk inappropriately
about young dancers, she admitted that in fact she never heard him do so. C. McGovern Dep.,
75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few
times about dancers? A: I didn’t.”)
Even with respect to the one defamatory statement that Ciara McGovern claims she heard
from someone else -- that the Plaintiff allegedly sent inappropriate messages on Instagram to two
14 -year-old girls from the Francis Academy -- critically, Ciara McGovern did not simply repeat
this unsubstantiated rumor, but instead wildly exaggerated it, and fabricated key component of the
defamatory assertion she made to Rebecca Bell. Ciara McGovern said in her deposition that she
heard was told “that there [were] messages sent on Instagram from [Plaintiff] to two 14-year-old
girls from the Francis Academy that were inappropriate.” C. McGovern Dep., 54:14-17 (Gallop
Cert. Exhibit A). But when Ciara McGovern relayed this information to Rebecca Bell stated - as
fact - a much more serious charge: “there’s an allegation and a case going on that [Plaintiff] was
involved with two prelim ul4s from the Francis Academy.” Ciara McGovern then doubled-down
on this assertion, repeating that “I know they have a case going.” Stating as a fact that the Plaintiff
is involved in a legal proceeding involving underage children is obviously a much more serious
charge than what Ciara McGovern had actually been told - that the Plaintiff allegedly sent
messages to two girls.
Defendant Ciara McGovern admitted in her deposition that the plain text of her defamatory
allegation - and use of the word “case” - meant that her accusation conveyed that there was some
legal proceeding against the Plaintiff. In Ciara McGovern’s own words, she admitted that by
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ESX-L-008124-20 05/30/2023 10:39:31 PM Pglof67 Trans ID: LCV20231668782 Jeffrey I. Wasserman, Esq., Attorney I.D. No. 037051999 WASSERMAN LEGAL LLC 1200 Route 22 East, Suite 2000, #2238 Bridgewater, New Jersey 08807 (973) 486-4801 Attorneys for Plaintiff JAMIE HODGES, SUPERIOR COURT OF NEW JERSEY LAW DIVISION: ESSEX COUNTY Plaintiffs, DOCKET NO. ESX-L-8124-2020 Vv. CIVIL ACTION CIARA MCGOVERN, JENNIFER MCGOVERN, AND THE DENOGLA SCHOOL OF IRISH DANCE, and DOES 1-100, fictitiously named, Defendants. PLAINTIFF’S MEMORANDUM OF LAW IN OPPOSITION TO THE MOTION FOR SUMMARY JUDGMENT FILED BY THE DEFENDANTS ESX-L-008124-20 05/30/2023 10:39:31 PM Pg2of67 Trans ID: LCV20231668782 Plaintiff Jamie Hodges (“Mr. Hodges”) respectfully submits this memorandum of law in opposition to the motion for summary judgment filed by Defendants Ciara McGovern, Jennifer McGovern, and the Denogla School of Irish Dance. PRELIMINARY STATEMENT This is a defamation action brought by Plaintiff Jamie Hodges, an Irish Dance instructor. It is undisputed that on December 3, 2019, Defendant Ciara McGovern (“Defendant Ciara McGovern” or “Ciara McGovern”) wrote texts to a third party, Rebecca Bell, in which she repeatedly accused Plaintiff of having engaged in sexual misconduct with respect to young girls. Defendant Ciara McGovern now moves for summary judgment, seeking to have the Court dismiss the defamation claims against her. Ciara McGovern argues that there is insufficient evidence in the record that she committed defamation, and argues that Plaintiff has not met what she asserts is an actual malice standard. However, Ciara McGovern’s motion should be denied because there is undisputed evidence in the record that Ciara McGovern defamed the Plaintiff. Indeed, Ciara McGovern admitted in her deposition that she actually fabricated key aspects of the defamatory statements she made against the Plaintiff, thus satisfying an actual malice standard, even if one applied. First, there is undisputed evidence in this case that Defendant Ciara McGovern wrote the defamatory statements at issue to a third party, and that the statements are defamatory on their face. Under New Jersey law, a determination as to whether language is defamatory on its face rests within the sole power of the Court, and there can be no question that the texts that Ciara McGovern wrote about the Plaintiffto a third party are defamatory on their face. Ciara McGovern wrote to third party Rebecca Bell that the Plaintiff had sex with a 17-year-old girl, and that there was a pending legal proceeding against the Plaintiff concerning inappropriate behavior with under- ESX-L-008124-20 05/30/2023 10:39:31 PM Pg3o0f67 Trans ID: LCV20231668782 14-year-old girls. In addition, Ciara McGovern wrote to the third party that she herself heard the Plaintiff speak “inappropriately” about young girls, which in the context of the other accusations clearly conveyed that the inappropriate comments were of a sexual nature. These accusations, made against an Irish dance instructor who teaches young children, are clearly defamatory on their face and destructive to the Plaintiffs reputation and career. Second, Defendant Ciara McGovern is incorrect in asserting that an actual malice standard applies. In her motion for summary judgment, Ciara McGovern argues that she is entitled to summary judgment because the issue that she communicated about purportedly relates to matters of public concern, and thus a standard of actual malice applies. This argument is without merit. The Plaintiff is a private citizen, and the allegations involve only matters of alleged private misconduct. New Jersey case law makes it clear that matters regarding teachers are only of public concern when they involve teachers acting in their role as teachers. Here, the alleged private misconduct (for which there is no factual basis) did not take place while Plaintiff was acting as an Irish Dance instructor, and do not involve girls who were students of his at the time of the incidents. Thus, under applicable case law, defamatory statements made about such allegedly private misconduct by a non-public official does not require that the Plaintiff meet the actual malice standard. However, even assuming that an actual malice standard applies (which it does not), Plaintiff met this standard because Defendant Ciara McGovern admitted in her deposition that she had no factual basis for, and even fabricated out of thin air, key aspects of the defamatory statements she made against the Plaintiff. Given Ciara McGovern’s stunning admissions that she actually fabricated several allegations she made against the Plaintiff to a third party, not only should her summary judgment motion be denied, but Plaintiff should be granted the summary ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 4of67 Trans ID: LCV20231668782 judgment motion that Plaintiff will be filing. That is, the Court should grant summary judgment in Plaintiffs favor, that the statements that Ciara McGovern made against the Plaintiff are defamatory on their face, they constitute libel (as they are written), and that Ciara McGovern acted with actual malice. Because the defamatory statements constitute libel, although Plaintiff will put on evidence of actual damages, even if there were no proof of actual damages, Plaintiff will be entitled to an instruction on presumed damages. Defendant Ciara McGovern admitted at her deposition that she did not hear the defamatory comments she made from her mother, Defendant Jennifer McGovern. Indeed, as noted above, Ciara McGovern admitted that she actually fabricated out of thin air key aspects of the defamatory statements she made against the Plaintiff. Given the shocking admission by Ciara McGovern at her deposition that she alone fabricated defamatory statements against the Plaintiff, the Plaintiff agrees that this deposition testimony has revealed that liability for the defamation in this action rests with Ciara McGovern alone. Thus, Plaintiff agrees that, because Ciara McGovern has taken full responsibility at her deposition for acting alone in fabricating the defamatory statements she made against the Plaintiff, the defamation claims against Defendant Jennifer McGovern and the Denogla School of Irish Dance should be dismissed. In sum, for the reasons set forth herein, the summary judgment motion made by Defendant Ciara McGovern should be denied. STATEMENT OF FACTS In the interest of avoiding unnecessary duplication, Plaintiff refers the Court to, and hereby incorporates by reference, his accompanying Response to Defendants’ Statement of Undisputed Material Facts (“Response”), which includes a Counterstatement of Undisputed Material Facts. ESX-L-008124-20 05/30/2023 10:39:31 PM Pg5of67 Trans ID: LCV20231668782 STANDARD OF REVIEW It is well-established that a party is entitled to summary judgment where “there is no genuine issue as to any material fact challenged and that the moving party is entitled to a judgment or order as a matter of law.” N.J. Ct. Rule 4:46-2(c). Admissible evidence in support of the movant’s claim must be “so one-sided that one party must prevails as a matter of law.” Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). The moving party not only bears the burden of demonstrating an absence of genuine issues of material fact, but must do so against a standard that requires “the court [to accept[] as true all the evidence and favorable legitimate inferences that support the non-moving party.” J.S. v. R.T.H., 155 N.J. 330, 336 (1998) (citing Brill, 142 N.J. at 523). See N.J. Ct. Rule 4:46-2(c) (“all legitimate inferences therefrom favoring the non-moving party”). ARGUMENT I DEFENDANT CIARA MCGOVERN INCORRECTLY ARGUES THAT THERE IS INSUFFICIENT EVIDENCE THAT SHE DEFAMED THE PLAINTIFF In her summary judgment motion, Defendant Ciara McGovern argues that a “clear and convincing” evidence standard applies to the defamation claim brought against her, and that the Plaintiff has not met this standard. Motion for Summary Judgment at 8. As set forth below, this is incorrect for several reasons. The clear and convincing evidence standard only applies to the actual malice prong of a defamation claim against a public official. See Lynch vy. N.J. Educ. Ass’n, 161 N.J. 152, 165 (1999) (“When a case concerns a public official or public figure, the court should grant summary judgment dismissing the complaint if a reasonable jury could not find that the plaintiff had established actual malice by clear and convincing ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 6of67 Trans ID: LCV20231668782 evidence. “). Here, the Plaintiff is not a public official, so the clear and convincing standard has no applicability to this action. However, even assuming that a clear and convincing evidence standard applies, Plaintiff easily meets that standard here. As discussed below, the undisputed evidence in this case is that Defendant Ciara McGovern made defamatory statements to a third party (Rebecca Bell) regarding the Plaintiff. Moreover, Ciara McGovern shockingly admitted at her deposition that she even fabricated key aspects of the defamatory statements she made against the Plaintiff. Therefore, there is indeed clear and convincing evidence that Ciara McGovern defamed the Plaintiff and acted with actual malice, and thus Ciara McGovern’s motion for summary judgment should be denied. A The Statements Made by Ciara McGovern Are Defamatory On Their Face It is well established that “a determination of whether certain language is defamatory on its face rests within the power of the trial court.” Sylvan Dental, P.A. v. Chen, No. A-4544-18, 2021 WL 3671164, at *6 (App. Div. Aug. 19, 2021) (unpublished). A statement is defamatory “if it exposes a person to hatred, contempt or ridicule, or subjects him to a loss of good will and confidence of others, or so harms his reputation as to deter others from associating with him.” Sylvan Dental, 2021 WL 3671164, at *6 (App. Div. Aug. 19, 2021). In determining if a statement is defamatory, a court “must consider the listener’s reasonable interpretation, which will be based in part on the context in which the statement appears.” Nu Wave Inv. Corp. v. Hyman Beck & Co., Inc., 432 N.J. Super. 539 at 552 (Law Div. 2013). Here, Defendant Ciara McGovern’s written statements regarding Plaintiff are defamatory on their face, as they repeatedly accuse the Plaintiff of sexual improprieties with young girls, including having sex with an underage girl. It is undisputed that on December 3, 2019, Ciara ESX-L-008124-20 05/30/2023 10:39:31 PM Pg7of67 Trans ID: LCV20231668782 McGovern wrote the following defamatory statements (highlighted below in bold) to Rebeca Bell about the Plaintiff: Ms. Bell: “Heya sorry going a mile a minute today and my heads a bit blurry after chatting [emoji] was just thinking Jamie’s worked with our class a couple time and he’s been amazing and the kids all loved it so am just kinda confused..what did Gary Healy say Jamie did?” Defendant: “Just know there’s an allegation and a case going on that he was involved with two prelim ul4s from the Francis Academy. Gary was angry at the region that he was still allowed to be present at the regional this weekend. Gary decided to stay away” Defendant: “Just inappropriate things and I know they have a case going” Defendant: “Also [individual girl] from Celtic Steps was 17 the first time they had sex and now that’s a thing” Defendant: “T’ve heard him talk inappropriately a few times about dancers younger than me. I just think he’s fucked up and you should stay away” Ms. Bell: “Sorry driving, ah okay, well thanks for the heads up, I appreciate it. [mean, I think he’s really great and I’ve never got that impression from him and our kids do really like him. Into class to teach the muffins, really hope Ryan is okay! [emojis]. * * * Defendant: “No problem, I know you're friends. Just don’t leave him alone with the muffins.” * * * Ms. Bell: “He’s def been left alone with them a bunch and the kids literally love him. I mean we’ve had a variety of workshops of all kinds over the years and he’s def the best but anyway Planxty Davis is literally blaring in my ear so off I go [emoji] will keep my fingers crossed for Ryan and hope for the best ! xx” Deposition of Ciara McGovern (““C. McGovern Dep”), Exhibit E (Exhibit A to the Certification of Robert Gallop dated February 23, 2023 (“Gallop Cert.”)! (emphasis added). ' Doc. No. ESX-L-008124-20 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 8of67 Trans ID: LCV20231668782 There can be no question that Defendant Ciara McGovern’s boldened statements above are defamatory on their face, as they clearly convey that Plaintiff Hodges, an adult male Irish Dance instructor, has acted sexually inappropriately multiple times with young girls. Indeed, Ciara McGovern’s texts state that the Plaintiff had sex with a 17-year-old, and that there is a pending legal proceeding concerning the Plaintiffs inappropriate behavior with under-14-year-old girls. In addition, Ciara McGovern states in the texts that she herself heard the Plaintiff speak “inappropriately” about young girls, which, in the context of the other accusations, clearly indicated that the inappropriate comments were of a sexual nature. The above statements are on their face defamatory, as they subject the Plaintiffto contempt, subject him to a loss of good will and confidence of others, and are plainly destructive of his reputation and career. See, e.g., Sylvan Dental, 2021 WL 3671164 at *6 (holding that words that “clearly sound to the disreputation of an individual are defamatory on their face” as are statements “of significance and importance relating to [how the individual] carries out his trade, profession or business.”). It is well settled that a statement is actionable “if the statement suggested specific factual assertions that could be proven true or false.” NuWave, 432 N.J. Super. at 552. Here, Defendant Ciara McGovern’s defamatory statements are on their face purported statements of fact. For example, it is either true or false that the Plaintiffhad sex with a 17-year-old. Yet, Ciara McGovern admitted in her deposition that she had no basis for the statement. Specifically, Ciara McGovern in her deposition admitted that this factual accusation was “just a rumor,” and that she never spoke to the girl in question at all, let alone to confirm whether the rumor was true. C. McGovern Dep. at 74:6-9 (Gallop Cert. Exhibit A). ESX-L-008124-20 05/30/2023 10:39:31 PM Pg9of67 Trans ID: LCV20231668782 Similarly, it is either true or false that there was a pending case or litigation involving the Plaintiff involving two dancers under the age of 14 from the Francis Academy. Yet at her deposition, Defendant Ciara McGovern admitted that she fabricated the assertion that there was some case or legal proceeding pending regarding the Plaintiff and girls under the age of 14. Specifically, Ciara McGovern admitted that she “didn’t know what she was referring to” when she wrote that defamatory statement. C. McGovern Dep., 66:4-8 (Gallop Cert. Exhibit A). When asked if someone told her there was a legal proceeding or case, Ciara McGovern stunningly admitted that there was not such a legal proceeding. C. McGovern Dep. 67:3-9 (Gallop Cert. Exhibit A) (“there wouldn’t be a case going, from my understanding.”). Defendant Ciara McGovern’s assertion that she herself heard the Plaintiff “talk inappropriately about dancers younger than me” is also a statement of purported fact. In the context of the other allegations of sexual misconduct that Ciara McGovern accused the Plaintiff of to the third party, Ciara McGovern’s statement that she heard the Plaintiff speak inappropriately about young dancers is clearly conveying, as a matter of purported fact, that the Plaintiff was speaking sexually inappropriately about young girls.2_ Yet, as Ciara McGovern astonishingly ? In similar settings courts have easily determined that the word “inappropriate” in context is defamatory on its face, particularly where the context suggests improper interactions with young people. See e.g, Hersh v. Grumer, 176 N.E.3d 1135 at 467 (Ct. of Appeals of Ohio, 8th District, 2021) (“insomuch as the defendants claim that “inappropriate behavior” does not necessarily mean sexually or criminally inappropriate...the defendants ensured that deviant connotation [through other references] and by continuing to warn the community of the danger that Hersh poses to children.”). Similarly, as to Defendant Ciara McGovern’s final statement — the warning “just don’t leave him alone with [your students]” - courts in other jurisdictions have found that a letter in which defendants “warn you not to let young children be in [a party’s] care” is defamatory on its face. See e.g., Woods v. Sharkin, 192 N.E.3d 1174, 1192 (Ct. of Appeals of Ohio, 8" District, 2021) (‘the only reasonable interpretation of the letter was that the plaintiff was being accused of engaging in pedophilia — plainly a defamatory charge, if false.”). Even assuming, arguendo, that the statement about Plaintiff acting inappropriately with young girls could somehow be simply a mere opinion, which defies common sense, the court need not reach the issue because taken together Ciara McGovern clearly made multiple alleged statements of purported fact. ESX-L-008124-20 05/30/2023 10:39:31 PM Pg10of67 Trans ID: LCV20231668782 admitted in her deposition, Ciara McGovern fabricated this accusation out of thin air: at her deposition Ciara McGovern admitted that she never heard the Plaintiff say anything inappropriate about young girls, and that she simply made up this toxic, defamatory accusation. C. McGovern Dep. 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”). Not only did the Defendant Ciara McGovern admit that she fabricated the statement, but she even expressed remorse for having intentionally lied about the Plaintiff: “I think it was wrong that I said it to her and not knowing it for a fact, yeah, I think”; “Q: Do you regret writing that? A: Ido.”. C. McGovern Dep. 74:11-13; 77:2-3 (Gallop Cert. Exhibit A). Ciara McGovern also was unable to offer any explanation for why she made up the accusations, simply saying, variously, “No comment” and “I don’t know.” C. McGovern Dep. 77:10; 78:3 (Gallop Cert. Exhibit A). In light of the above, Defendant Ciara McGovern’s statements at issue regarding the Plaintiff are on their face defamatory, as they clearly subject Mr. Hodges to contempt, ridicule, and are destructive to his reputation and career. See, e.g., Lawrence v. Bauer Publishing & Printing Ltd, 89 N.J. 451, 459 (1982) (statements that “clearly sound to [a person’s] disreputation” are defamatory). B Defendant Ciara McGovern Cannot Assert Truth As A Defense During Defendant Ciara McGovern’s deposition, she admitted under oath that she did not have any factual basis to make any of the defamatory statements she made regarding the Plaintiff, and even admitted that she fabricated key aspects of the defamatory statements she made regarding the Plaintiff. As a result, Ciara McGovern cannot assert truth as a defense. First, as set forth above, Defendant Ciara McGovern admitted that the statement that Plaintiff had sex with a 17-year-old was “just a rumor,” and that she had no actual knowledge of ESX-L-008124-20 05/30/2023 10:39:31 PM Pg11of67 Trans ID: LCV20231668782 whether that incredibly inflammatory accusation was true. Further, Ciara McGovern admitted that she couldn’t recall if the source of the rumor even indicated that the girl was 17. C. McGovern Dep. 70:21-23 (Gallop Cert. Exhibit A) (“Q: Did she tell you how old [girl] was when they had sex? A: I can’t recall.”). Ciara McGovern also admitted that she took no steps whatsoever to confirm or investigate whether the rumor was true. C. McGovern Dep. 71:2-8 (Gallop Cert. Exhibit A) (“Q: Did you personally know whether or not [girl] was 17 when [Plaintiff] allegedly had sex with her? A: No. Q: Did you ever speak to [girl]? A: No.”). Similarly, although Defendant Ciara McGovern texted Rebecca Bell that she had herself witnessed Plaintiff speaking inappropriately regarding young dancers, at her deposition Ciara McGovern stunningly admitted that she fabricated this assertion out of thin air. In realty, Ciara McGovern admitted that she has never heard Plaintiff talk inappropriately about young girls. C. McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”). With respect to Defendant Ciara McGovern’s text to Rebecca Bell that there was some case involving the Plaintiff regarding two girls under the age of 14 from the Francis Academy, Ciara McGovern again admitted in her deposition that she fabricated this accusation and had no basis for it. C. McGovern Dep. 66:14-25; 67:3-9 (Gallop Cert. Exhibit A) (“there wouldn’t be a case going, from my understanding.”). C. Defendant Ciara McGovern Acted With the Requisite Degree of Fault The defendants argue in their motion for summary judgment that the Plaintiff's defamation claim should be dismissed because there is insufficient evidence that Defendant Ciara McGovern acted with the required mental state, which they argue is actual malice. Motion for Summary Judgment, at 9-10. For the reasons set forth below the Defendants’ argument is incorrect. 10 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg12of67 Trans ID: LCV20231668782 1. Defendant Ciara McGovern Acted At Least Negligently in Defaming Plaintiff It is well-established that a defendant is liable for defamation where he or she acts at least negligently as to the truth of the defamatory statements made. See e.g. Nuwave, 432 N.J. Super. at 557 (citing Restatement, Torts, 2d, §580B (1976)) (“One who publishes a false and defamatory communication concerning a private person....is subject to liability if...he (a) knows that the statement is false and that it defames the other, (b) acts in reckless disregard of these matters, or (c) acts negligently in failing to ascertain them.”). The case law makes clear that negligence is established where the speaker acts negligently “in failing to ascertain the truth or falsity of the statement before communicating it.” Feggans v. Billington, 291 N.J. Super. 382, 391 (App. Div. 1996). It is impossible for Defendant Ciara McGovern to deny that she acted, at the very least, with negligence with respect to the veracity of the statements at issue. As explained below, it is undisputed that, with respect to each of the three defamatory assertions made, every time Ciara McGovern was asked at her deposition what the basis was for her defamatory statements regarding the Plaintiff, she admitted she did not have a basis, nor did she take even modest steps to investigate whether the statements were true, and even admitted that she fabricated two of the other statements. See C. McGovern Dep., 66:14-25; 67:3-9; 75:14-17 (Gallop Cert. Exhibit A) (“there wouldn’t be a case going, from my understanding...Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”). Defendant Ciara McGovern testified in her deposition that she heard a rumor about messages being sent to young girls on Instagram from only one person, Mary Stack, who herself was only repeating something she allegedly had been told by someone else. But Ciara McGovern admitted that she did not take any steps whatsoever to verify whether or not this rumor was true: 11 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg130f67 Trans ID: LCV20231668782 What exactly did Ms. Stack tell you? She said that there [were] messages sent on Instagram from Jamie to two 14-year-old girls from the Francis Academy that were inappropriate. Did she say she saw those messages? She did not. Did she say someone else told her that he sent those messages? Yes. Who did she say told her? Someone, a dance parent from the Francis Academy. Did she say who that dance parent was? No. Did you ask? No.... When you heard it from Ms. Stack, did you assume that what she was telling you was true? Yes. Why? I just -- I believe her. I look up to her in a way, I guess. She is a good person. But since she didn’t see the texts herself and she said that someone else told her, did you consider the fact that it’s possible that it’s not true, that what’s being said is not true? I didn’t consider it. I just believed it. Do you think it’s ok for people, when they hear a rumor about a negative information about people [sic], do you think it’s fair or wise to just assume that what you are hearing is true? No. So if it’s not fair to assume these things are true, why did you in this instance assume it to be true? A: I don’t know. C. McGovern Dep. 54:7 - 56:25 (Gallop Cert. Exhibit A) As demonstrated by the above admissions, Defendant Ciara McGovern took absolutely no steps whatsoever to investigate whether the rumor she heard was true: Ciara McGovern did not speak to anyone with first-hand knowledge, or even ask who the people with first-hand knowledge might be. Instead, as Ciara McGovern admitted, without knowing who any of the alleged victims were or who their parents were, and without hearing information from anyone with first-hand 12 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 14 of67 Trans ID: LCV20231668782 knowledge, Ciara McGovern just assumed the rumor to be true -- while admitting that it made no sense for her to make such an unfair assumption. Indeed, Ciara McGovern admitted in her deposition that, prior to hearing the rumor, she thought the Plaintiff was “a nice person” and that she was “surprised” when she heard the allegation. C Mc.Govern Dep. 55:16-22 (Gallop Cert. Exhibit A). However, despite Ciara McGovern admitting that the derogatory statements being made about the Plaintiff were surprising and inconsistent with her experience that the Plaintiff was a nice person, she admitted at her deposition that she took absolutely no steps to verify what she had been told prior to repeating it - - which clearly shows that Ciara McGovern at the very least acted with negligence. This is on top of the fact that, elsewhere in her deposition, Ciara McGovern admitted that she actually fabricated key aspects of the defamatory statements she made against the Plaintiff. Similarly, with respect to Defendant Ciara McGovern’s text that there was a pending “case” involving the Plaintiff and his alleged misconduct toward two under 14-year-old girls from the Francis Academy, when Ciara McGovern was asked whether someone actually told her that there was such a case or proceeding involving the Plaintiff, Ciara McGovern admitted that she fabricated this accusation: Specifically, Ciara McGovern admitted that “...there wouldn’t be a case going, from my understanding,” and when asked what led her to use the word “case,” she simply stated, “I can’t remember, I don’t know.” C. McGovern Dep. 67:8-13 (Gallop Cert. Exhibit A). This admission again demonstrates that not only was Ciara McGovern negligent, but she actually fabricated the defamatory statement that there was a case pending involving the Plaintiff and under 14-year-old girls from the Francis Academy. Regarding Defendant Ciara McGovern’s defamatory assertion that the Plaintiff had sex with a 17-year-old, in her deposition Ciara McGovern again admitted that this was a rumor that 13 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg15of67 Trans ID: LCV20231668782 she heard from her cousin, and that Ciara McGovern took no steps to verify whether this rumor was true. For example, when asked if Ciara McGovern had personal knowledge as to the age of the girl involved in the alleged encounter, or ever spoke to the girl in question, Ciara McGovern simply testified “no.” C. McGovern Dep. 71:2-8 (Gallop Cert. Exhibit A). Since Ciara McGovern admitted that she took no steps to verify whether the rumor had a factual basis, she by definition acted with negligence. See, e.g., Feggans, 291 N.J. Super. 382, 391 (holding that a person acts negligently “in failing to ascertain the truth or falsity of the statement before communicating it.”). In addition, Ciara McGovern admitted that she could not recall whether her cousin actually said that the girl in question was 17 years old. C. McGovern Dep. 70:21-23 (Gallop Cert. Exhibit A) (“Q: Did she tell you how old [girl] was when they had sex? A: I can’t recall.”). Thus, once again, Ciara McGovern fabricated out of thin air the very specific and young age of the girl who Plaintiff allegedly had sex with. In light of the fact that Ciara McGovern actually fabricated key aspects of the defamatory statements she made, she cannot justify her statements by asserting that she was simply repeating what she heard from others. By her own admissions in her deposition, Ciara McGovern made three defamatory allegations regarding the Plaintiff, but only allegedly heard one element of one allegation from Mary Stack (regarding messages allegedly being sent on Instagram), and heard one element of another allegation from her cousin (regarding an alleged sexual encounter with a 17-year-old). As for the other defamatory statements, Ciara McGovern did not hear these from someone else, but rather by her own admission fabricated them. Specifically, with respect to Ciara McGovern’s text that there was a pending “case” involving the Plaintiff and his alleged misconduct toward two under 14-year-old girls from the Francis Academy, when Ciara McGovern was asked whether someone actually told her that there 14 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg16of67 Trans ID: LCV20231668782 was such a case or proceeding involving the Plaintiff, she admitted that “...there wouldn’t be a case going, from my understanding,” and when asked what led her to use the word “case,” she simply stated, “I can’t remember, I don’t know.” C. McGovern Dep. 67:8-13 (Gallop Cert. Exhibit A). Similarly, although Ciara McGovern texted Rebecca Bell that she had herself witnessed Plaintiff speaking inappropriately regarding young dancers, at her deposition Ciara McGovern admitted that, in realty, she has never heard Plaintiff talk inappropriately about young girls. C. McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”). As Defendant Ciara McGovern failed to take steps to investigate some of the statements on which she claims to rely, and outright fabricated the others, she obviously acted at the very least negligently, but also acted with actual malice. That is, as discussed below, even if actual malice is the applicable standard, Ciara McGovern’s admitted fabrications by definition means that she acted with actual malice. 2. Defendants Are Incorrect In Arguing that the Actual Malice Standard Applies, but Even If The Actual Malice Standard Applied, It Is Met Here Because Defendant Ciara McGovern Admitted That She Fabricated False Statements About the Plaintiff Because the matters in question involve a private plaintiff, the applicable standard to establish this defamation claim is ordinary negligence. In their motion for summary judgment, the defendants argue that the applicable standard should not be negligence, but actual malice. Motion for Summary Judgment, pg. 9-10. The basis for the defendants’ argument is that they assert that the subject of the defamation is a matter of public concern. However, for the reasons set forth below, defendants are incorrect in asserting that the statements at issue involve a matter of public concern as defined by case law. Moreover, even assuming that the statements were genuinely of public concern as defined by the case law (which they are not), Ciara McGovern indeed acted with 15 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg17of67 Trans ID: LCV20231668782 actual malice as she admitted in her deposition that she fabricated multiple of the defamatory statements she made regarding the Plaintiff. a. The Statements At Issue Do Not Involve a Matter of Public Concern And Thus The Actual Malice Standard Does Not Apply While it is true that if a matter is of genuine public concern the actual malice standard applies, New Jersey case law has carefully limited the areas that are deemed to be of genuine public concern. For example, in Senna v. Florimont, 196 N.J. 469 (2008), the New Jersey Supreme Court refused to apply the actual malice standard, and reiterated that matters of public concern typically involve the government, public officials, public health and safety, or teachers in schools acting in their official capacity. See, e.g., Senna v. Florimont, 196 N.J. 469, 474 (2008) (holding that issues of public concern relate to topics involving “public officials, public figures, and the public interest” and that in those cases, the standard is actual malice”). In cases involving teachers, New Jersey courts have limited the scenarios that are deemed to be of public concern to situations where the teacher was acting in his or her capacity as a teacher. For example, in Rocci, the teacher was on a school-sponsored field trip, and chaperoning students. In that case, the Supreme Court of New Jersey emphasized that there was a public interest in the behavior of teachers “concerning their conduct with and around their students.” Rocci, 156 N.J. 149, 156 (2000). The court went on to stress that where a teacher is acting in a “fiduciary role,” and the conduct occurred during a school sponsored event, the conduct was of genuine public concern and the actual malice standard should apply. /d. at 157. Here, the Plaintiff is a private citizen, not a teacher at a public school, or even a teacher at a private grammar, intermediate, or high school. Rather the Plaintiff is an instructor for extra- curricular dancing. Deposition of Jamie Hodges (“J. Hodges Dep.”) 16:12-14; 17:18-20 (Gallop Cert. Exhibit C). 16 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg18of67 Trans ID: LCV20231668782 More importantly, it is undisputed that the Plaintiff's alleged misconduct did not take place while the Plaintiff was acting as a dance instructor. Rather, Defendant Ciara McGovern’s defamatory allegations regarding the Plaintiff consist of alleged conduct of a private citizen taking place outside of his role as a dance instructor: namely, alleged sex with a 17-year-old, allegedly talking inappropriately about young girls, and an alleged unspecified case or proceeding involving the Plaintiff and under 14-year-old girls -- none of which allegedly involve conduct while he was instructing a dance class or supervising dancers ona trip. Nor were the girls he allegedly messaged students of his at the time of the texts. Because this case involves three discrete alleged acts of private misconduct -- not by a teacher acting in his role as a teacher -- this case is governed by the ruling in W..A. v. D.A., 210 N.J. 229 (2012). The defendants cite to the WJA decision in their motion for summary judgment, but completely misrepresent its holding. Specifically, the defendants assert that the court in WJA held that sexual abuse of minors constitutes a matter of public concern. Motion for Summary Judgment, pg. 10 (“New Jersey’s Supreme Court found that sexual abuse of minors constituted a public concern subject to the same actual malice standard.”). The defendants have totally misrepresented the holding in WJA. In fact, as set forth below, the court in WJA held that sexual abuse of a minor by a private citizen does not, in itself, constitute a matter of public concern. In W.J.A. vs. D.A., like in this case, the defendant was a private individual (i.e. not a public official) who had been accused of ongoing sexual assault against a minor. The Plaintiff argued that criminal sexual assault against minors was a matter of genuine public concern. The Supreme Court of New Jersey disagreed and squarely held that, even where serious criminal misconduct against children was at issue, this was not enough to transform such private acts to be an issue of public concern. /d. at 245 (“To be sure, the speech accuses Anderson of engaging in serious 17 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg19of67 Trans ID: LCV20231668782 criminal conduct, thus qualifying for per se treatment. But we have never suggested that such an allegation, in itself, vaults the public concern threshold.”). Of course, there is a sense in which any and every act of alleged wrongdoing involving young children could be said to be of public concern. But as the Court made clear in W.J.A., the law requires more for an alleged wrongdoing to rise to the level of genuine public concern before it imposes the stricter actual malice standard. As the case of W.J.A. v. D.A. perfectly illustrates, where, as here, alleged sexual misconduct towards a child involves private citizens who have not actually been found guilty of any such conduct, this is not properly viewed as a genuine issue of public concern. See also, e.g., Okeke v Anekwe, 2022 WL 2674944 at *8 (App. Div., July 12, 2022) (unpublished) (holding that the claims at issue “relate to isolated incidents between private individuals and, as such, are of limited concern to the public.”). Finally, in this case it is impossible for the accusations to be of “genuine public concern” because, as discussed above and in more detail below, Defendant Ciara McGovern admitted that of the three defamatory statements she made, she completely fabricated two of them, and fabricated a key aspect of the third defamatory statement. See supra at 9-10. It is impossible for admitted fabricated statements to rise to the level of a genuine public concern. b. Defendant Ciara McGovern Acted with Actual Malice, As She Admitted That She Fabricated Key Aspects of the Defamatory Statements She Made In any event, even assuming, arguendo, that the alleged private conduct by the Plaintiff -- not in his role as a dance instructor -- could somehow be deemed to be a matter of genuine public concern, in this case Defendant Ciara McGovern did act with actual malice. Indeed, this is because Ciara McGovern admitted that she actually fabricated key elements of the three defamatory statements she made regarding the Plaintiff. 18 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 20 of67 Trans ID: LCV20231668782 First, with respect to the defamatory assertion that there was some “case” or legal proceeding against the Plaintiff involving girls under the age of 14 at the Francis Academy, Defendant Ciara McGovern admitted at her Deposition that she made this up. C. McGovern Dep. 67:3-9 (Gallop Cert. Exhibit A) (“Q: Did anybody tell you that there was some criminal or civil proceeding, a case about this incident? A: “...there wouldn’t be a case going, from my understanding.”). Second, with respect to Defendant Ciara McGovern’s allegation that she herself heard the Plaintiff talk inappropriately about young dancers, she admitted that in fact she never heard him do so. C. McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”). Third, as to the allegation that Plaintiff allegedly had sex with a 17 year old, Defendant Ciara McGovern admitted at her deposition that, although she heard a rumor from her cousin that Plaintiff had sex with a young girl, she could not recall that her cousin told her that the girl was 17 at the time. C. McGovern Dep. 70:21-23 (Gallop Cert. Exhibit A) (“Q: Did she tell you how old [girl] was when they had sex? A: I can’t recall.”). Thus, yet again, Defendant Ciara McGovern fabricated a key and devastating aspect of this defamatory accusation, because the very specific young age of the girl is what makes the allegation especially damaging to the reputation of an Irish Dance instructor. In light of Defendant Ciara McGovern’s above admissions that she fabricated two of the three defamatory statements at issue in this case, and fabricated a key aspect of the third defamatory statement, even if the actual malice standard applies, Ciara McGovern clearly acted with actual malice. Malice exists “where the speaker made a false and defamatory statement either knowing it was false or in reckless disregard of the truth.” Okeke, 2022 WL 2674944 at *7 19 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 21of67 Trans ID: LCV20231668782 (unpublished). See also Ackerman v. Baldeo, 2014 WL 3537904 at *3 (App. Div., July 18, 2014) (unpublished) (“Establishing reckless disregard requires a showing that the defendant made the statement with a high degree of awareness of its probably falsity.”). Where a speaker fabricates a statement, as a matter of law this constitutes reckless and intentional conduct constituting actual malice. See Pistilli-Leopardi v MediaNews Group Inc. 2020 WL 3967992 at *7 (App. Div. July 14, 2020) (holding that the Plaintiff pled sufficient facts to support the conclusion that the defendants fabricated the statements and, in doing so, they acted in reckless disregard for the truth.). In the defendants’ motion for summary judgment, Ciara McGovern argues that she is somehow justified in defaming the Defendant, because she asserts that she merely repeated one of the statements that she heard from someone else. Motion for Summary Judgment, pg. 10. But this argument is without merit. The assertion in the defendants’ motion for summary judgment that Defendant Ciara McGovern allegedly heard a component of one of the three defamatory statements she texted regarding the Plaintiff from someone else fails to defeat her mental culpability for an obvious reason: Ciara McGovern made three defamatory allegations regarding the Plaintiff, but only allegedly heard one component of one of those allegations from someone else.? As for two of the defamatory statements at issue in this case, as set forth above, Ciara McGovern did not hear them from someone else, but rather fabricated them out of whole cloth. Specifically, Ciara McGovern texted Rebecca Bell that there was some “case” or legal proceeding against the Plaintiff involving girls under the age of 14 at the Francis Academy, but Ciara McGovern admitted at her Deposition that she made this up. C. McGovern Dep. 67:3-9 (Gallop 3 See Defendants’ Motion for Summary Judgment dated February 23, 2023, Doc. No. ESX-L-008124-20, at 10. In the Defendant’s deposition she claims that the statement alleging that the Plaintiff had sex with a 17-year-old was also based on a rumor, however this is not mentioned in the Defendants’ motion. 20 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 22 of67 Trans ID: LCV20231668782 Cert. Exhibit A) (“Q: Did anybody tell you that there was some criminal or civil proceeding, a case about this incident? A: “...there wouldn’t be a case going, from my understanding.”). And, with respect to Ciara McGovern’s allegation that she herself heard the Plaintiff talk inappropriately about young dancers, she admitted that in fact she never heard him do so. C. McGovern Dep., 75:14-17 (Gallop Cert. Exhibit A) (“Q: When did you hear [Plaintiff] talk inappropriately a few times about dancers? A: I didn’t.”) Even with respect to the one defamatory statement that Ciara McGovern claims she heard from someone else -- that the Plaintiff allegedly sent inappropriate messages on Instagram to two 14 -year-old girls from the Francis Academy -- critically, Ciara McGovern did not simply repeat this unsubstantiated rumor, but instead wildly exaggerated it, and fabricated key component of the defamatory assertion she made to Rebecca Bell. Ciara McGovern said in her deposition that she heard was told “that there [were] messages sent on Instagram from [Plaintiff] to two 14-year-old girls from the Francis Academy that were inappropriate.” C. McGovern Dep., 54:14-17 (Gallop Cert. Exhibit A). But when Ciara McGovern relayed this information to Rebecca Bell stated - as fact - a much more serious charge: “there’s an allegation and a case going on that [Plaintiff] was involved with two prelim ul4s from the Francis Academy.” Ciara McGovern then doubled-down on this assertion, repeating that “I know they have a case going.” Stating as a fact that the Plaintiff is involved in a legal proceeding involving underage children is obviously a much more serious charge than what Ciara McGovern had actually been told - that the Plaintiff allegedly sent messages to two girls. Defendant Ciara McGovern admitted in her deposition that the plain text of her defamatory allegation - and use of the word “case” - meant that her accusation conveyed that there was some legal proceeding against the Plaintiff. In Ciara McGovern’s own words, she admitted that by 21 ESX-L-008124-20 05/30/2023 10:39:31 PM Pg 23 of 67 Tran