7
(S.D.N.Y. Nov. 17, 2015) (citing Morien v. Munich Reins. Am., Inc., 270 F.R.D. 65, 66-67 (D.
Conn. 2010); Josie-Delerme v. Am. Gen. Fin. Corp., No. 08 Civ. 3166, 2009 WL 497609, at *1
(E.D.N.Y. Feb. 26, 2009)).6 Defendant has not met her burden as to any aspect of this test.
B. Ms. Giuffre’s Claim Is Meritorious And Defendant Has Not Made An
Adequate Showing To Defeat The Claim.
Of course, in ruling on a motion to dismiss, the Court must take all allegations in the
Complaint as true. Worldhomecenter.com, Inc. v. M.J. Resurrection, Inc., (Sweet, J.) No. 11
CIV. 3371 (RWS), 2012 WL 12922, at *2 (S.D.N.Y. Jan. 3, 2012) (citing Mills v. Polar
Molecular Corp., 12 F.3d 1170, 1174 (2d Cir.1993)). Taking the allegations here as true,
Defendant does not, and cannot, show that Ms. Giuffre’s claim is unmeritorious. Ms. Giuffre has
properly alleged a simple claim for defamation based on Defendant publically proclaiming that
Ms. Giuffre is a “liar” when Ms. Giuffre reported her sexual abuse. While Defendant has tried to
muddy the waters by raising privilege claims, those privileges do not save the Defendant.
Defendant argues that two privileges protect her defamatory statements: (1) the “self-defense”
privilege and (2) the “pre-litigation” privilege. But both of those privileges are qualified
privileges, which disappear in situations where a speaker has published statements knowing they
were false or when they were made to bully, harass and intimate, respectively. Here, Defendant
has not only made defamatory statements which were plainly false, but also made the statements
with the malicious intent to ruin the reputation of this sexual assault victim. Because Ms.
Giuffre’s complaint repeatedly and specifically alleges that Defendant has knowingly lied about
Ms. Giuffre, the Motion to Dismiss is frivolous.

6 The cases Defendant cites to support her stay are readily distinguished. For example, Defendant relies
on Integrated Sys. And Power Inc. v. Honeywell Int’l Inc., No. 09 CV 5874 (RPP), 2009 WL 2777076 at
*1 (S.D.N.Y. Sept. 1, 2009) for the proposition that the Court should grant a stay, yet that case involved a
number of complicated antitrust claims against multiple distributors which would require extensive
discovery. This case involves a single defamation claim between two individuals.
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 12 of 26

8

1. The Qualified “Self Defense” Privilege Does Not Protect The Publication Of
   Deliberately False Statements.
   As will be explained fully in the Opposition to Maxwell’s Motion to Dismiss, the “self-
   defense” privilege does not protect the Defendant for a number of reasons. Most fundamentally,
   the self-defense privilege is inapplicable because Ms. Giuffre has alleged that Defendant made
   not only false and defamatory statements, but did so deliberately. See, e.g., Complaint, ¶ 8
   (“Maxwell made her false statements knowing full well that they were completely false.
   Accordingly, she made her statements with actual and deliberate malice, the highest degree of
   awareness of falsity.”) This allegation alone defeats the application of the privilege.7 As the
   Second Circuit has made clear, even if a qualified privilege otherwise applies, it “is nevertheless
   ‘forfeited if the defendant steps outside the scope of the privilege and abuses the occasion.’”
   Weldy v. Piedmont Airlines, Inc., 985 F.2d 57, 62 (2d Cir. 1993) (quoting Harris v. Hirsh, 161
   A.D.2d 452, 453, 55 N.Y.S. 2d 735, 737 (1st Dep’t 1990) which quoted Prosser and Keeton on
   Torts §115, at 832 (5th ed. 1984); see also Mirabella v. Turner Broadcasting Systems, Inc., Case.
   No. 01 Civ. 5563 (BSJ), 2003 WL 21146657, at *4 (S.D.N.Y. May 19, 2003) (court refusing to
   dismiss slander claim as premature based on assertion of qualified privilege); see also Rodney
   A. Smolla, Vol. 1, Law of Defamation § 8:63, 8:64 (2d ed. 2014); Robert D. Sack, Sack on
   Defamation: Libel, Slander, and Related Problems § 9.3 and § 9.3.1 (4th ed. 2015); Restatement
   (Second) of Torts §§ 600, 605 (1977).
   In Weldy, the Second Circuit explained that a Plaintiff may defeat an assertion of a
   qualified privilege by demonstrating abuse of the privilege “by proving that the defendant acted
   (1) with common law malice, or (2) outside the scope of the privilege, or (3) with knowledge that

7 The case law also makes clear that a decision on a qualified privilege would be premature at the Motion
to Dismiss stage. See Teichner v. Bellan, 7 A.D. 2d 247, 252, 181 N.Y.S. 2d 842 (1959); See also
Kermichi v. Weissman, 125 A.D. 3d 142, 159, 1 N.Y.S. 3d 169, 182 (N.Y. App. Div. 2014). Accordingly,
there is no basis for staying discovery based on the assertion of a qualified privilege.
Case 1:15-cv-07433-RWS Document 20 Filed 12/10/15 Page 13 of 26