United States District Court, S.D. Florida
P. GAYLES UNITED STATES DISTRICT JUDGE.
CAUSE comes before the Court on Plaintiff's
Motion to Dismiss Defendant's Counterclaim
(“Motion”). [ECF No. 49]. The Court has carefully
reviewed the submissions of the parties and the applicable
law. For the reasons that follow, the Motion is granted.
to the Second Amended Complaint, on July 10, 2013, Plaintiff
Sushil Malhotra (“Plaintiff”) wired $500, 000 to
Defendant Sanjay Aggarwal (“Defendant”), which
Defendant accepted that day. [ECF No. 26 at ¶ 13]. In
September 2016, during an accounting review and audit,
Plaintiff discovered that the wire transfer was a mistake and
notified Defendant of the mistake. Id. at
¶¶ 18-20. Plaintiff requested that Defendant return
the money; however, Defendant failed to do so. Id.
at ¶ 20. On November 2, 2017, Plaintiff filed suit in
the Circuit Court of the Eleventh Judicial Circuit in and for
Miami-Dade County, Florida. [ECF No. 1-1]. Plaintiff brought
claims for civil theft, unjust enrichment, and fraud against
Defendant. Id. On December 6, 2017, the case was
removed to this Court based on diversity jurisdiction. [ECF
No. 1]. Plaintiff filed his Second Amended Complaint on July
3, 2018. [ECF No. 26]. This case previously came before the
Court on two separate Motions to Dismiss the Complaint and
the Second Amended Complaint. [ECF Nos. 13 & 27]. The
Court granted in part those motions leaving only
Plaintiff's claim for fraud remaining. [ECF Nos. 25 &
April 29, 2019, Defendant filed his Answer, Affirmative
Defenses, and Counterclaim for defamation against Plaintiff.
[ECF No. 47]. According to the Counterclaim, around 2016 and
“several times thereafter” Plaintiff told
multiple people that Defendant was “a liar and a thief
and that he owed him a debt of money and he would not
pay.” Id. at ¶ 5. Defendant maintains
that those oral statements were false, intentional, not
privileged, and defamatory. Id. at ¶¶ 6-9.
Defendant claims that “falsely calling someone a liar[,
] a thief[, ] and a debtor is defamation per se.”
Id. at ¶ 9.
order for a complaint to withstand a motion to dismiss, it
“must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on
its face.'” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly,
550 U.S. 544, 570 (2007)). A claim is considered facially
plausible when the court is able to draw a reasonable
inference that the defendant is liable based on the factual
content pleaded by the plaintiff. Id. The
“plausibility standard” requires there be
“more than sheer possibility that a defendant acted
unlawfully.” Id. A determination of a
claim's plausibility “is a context-specific task
that requires the reviewing court to draw on its judicial
experiences and common sense.” Id. at 679. It
is not enough for a complaint to recite the statutory
elements of a cause of action. Id. at 678.
Allegations within a complaint must be more than conclusory
and must have a factual basis. Id. at 679.
reviewing a motion to dismiss, courts accept the allegations
presented in the complaint as true and view those facts
“in the light most favorable to the plaintiff.”
Hill v. White, 321 F.3d 1334, 1335 (11th Cir. 2003).
The issue before the Court is “‘not whether
[Plaintiff] will ultimately prevail' . . . but whether
his complaint [is] sufficient to cross the federal
court's threshold.” Skinner v. Switzer,
562 U.S. 521, 529-30 (2011) (quoting Scheuer v.
Rhodes, 416 U.S. 232, 236 (1974)).
federal court sitting in diversity applies a state's
substantive law, it need not adhere to a state's pleading
standard. Instead, a federal court sitting in diversity
follows the standards set forth in Federal Rule of Civil
Procedure 8(a). Caster v. Hennessey, 781 F.2d 1569,
1570 (11th Cir. 1986). In contrast to Florida's
heightened fact-pleading standard, a well-pleaded complaint
under Rule 8(a)(2) requires only “a short and plain
statement of the claim showing that the pleader is entitled
to relief.” Id. (citing Fed.R.Civ.P. 8(a)(2));
see also Grief v. Jupiter Med. Ctr., Inc., N o.
08-80070-CIV-MARRA, 2008 WL 2705436, at *5 (S.D. Fla. July 9,
moves to dismiss the Counterclaim arguing that Defendant has
failed to state a claim for defamation. To state a
counterclaim for defamation, Defendant “must allege
that (1) [Plaintiff] published a false statement; (2) about
[Defendant]; (3) to a third party; (4) proximately damaging
[Defendant].” SZS Sols., Inc. v. Brother Int'l
Corp., No.17-CV-61942, 2018 WL 3126220, at *2 (S.D. Fla.
June 26, 2018) (citing Forston v. Colangelo, 434
F.Supp.2d 1369, 1378 (S.D. Fla. 2006)). Plaintiff argues that
Defendant failed to identify the specific statements claime d
to be defamatory, identify who the statements were made to,
and attach copies of the publication in which the statements
Plaintiff correctly notes that Defendant failed to identify
the specific statements claimed to be defamatory. In a
defamation case, “a plaintiff ‘must allege
certain facts such as the identity of the speaker, a
description of the statement, and provide a time frame within
which the publication occurred.'” Five for
Entm't S.A. v. Rodriguez, 877 F.Supp.2d 1321, 1328
(S.D. Fla. 2012) (quoting Morrison v. Morgan Stanley
Props., No. 06-CV-80751, 2008 WL 1771871, at *10 (S.D.
Fla. Apr. 15, 2008)). For the description of “oral
statements, a plaintiff must ‘set out the substance of
the spoken words with sufficient particularity to enable
[the] court to determine whether the publication was
defamatory.'” B & D Nutritional
Ingredients, Inc. v. Unique Bio Ingredients, LLC, No.
16-CV-62364, 2017 WL 8751751, at *4 (S.D. Fla. Jan. 25, 2017)
(quoting Spitalny v. Insurers Unlimited, Inc., No.
2:05-CV-12FTM-29SPC, 2005 WL 1528629, at *3 (M.D. Fla. June
identified Plaintiff as the publisher of the oral statements
but failed to provide an adequate description of the
statements and time frame. The Counterclaim merely states
that, “[c]ommencing on or about 2016 and several times
thereafter [Plaintiff] told multiple persons that [Defendant]
was a liar and a thief and that he owed [Plaintiff] a debt of
money and he would not pay.” [ECF No. 47 at ¶ 5].
Such conclusory allegations are insufficient to state a claim
for relief. See Five for Entm't S.A., 877
F.Supp.2d at 1328 (noting that a defamation claim based on a
press release and statements allegedly uttered by defendant
“in the days or ...