The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
From Shanley a/k/a T.S. Joyce v. Hutchings a/k/a Terry Bolryder a/k/a Domino Savage, decided Friday by Judge David Barlow (D. Utah):
Ms. Shanley and Ms. Hutchings both write paranormal romance fiction. Readers of such fiction gather online to discuss books and promote authors. For instance, Ms. Hutchings avers that she has 8,000 followers on Facebook and 1,500 followers on Instagram. Ms. Shanley and Ms. Hutchings interacted in one online community for four months in 2016.
At diverse times, Ms. Hutchings published various negative comments about Ms. Shanley. She accused Ms. Shanley of being a "known homewrecker[,]" "sexually coerc[ing] and blacklist[ing] male models[,]" and engaging in "white supremacy dog whistling." She asked Ms. Shanley to "come answer for all the cheating and husband stealing[.]" Ms. Hutchings called Ms. Shanley a "repeat offender" rapist who "ruined everyone's rep[utation]" and said, "now its [sic] your turn."
In addition to the rape allegations, Ms. Hutchings accused Ms. Shanley of being "an actual child molester" who "raped a kid[,]" including her own child. She offered one thousand dollars if "anyone brings [Ms. Shanley] … here." And she uploaded a picture of a man with a noose around his neck after a post stating, "I'm really mad [Ms. Shanley] … you existing is like a total blight on humanity."
Shanley sued for libel; Hutchings sought summary judgment; and Shanley opposed on the grounds that she hadn't been given adequate discovery:
"[T]he general rule is that summary judgment should not be entered 'where the nonmoving party has not had the opportunity to discover information that is essential to his opposition[.]' … Under Rule 56(d), a court may defer ruling on a motion for summary judgment or deny it outright "[i]f a nonmovant shows by affidavit or declaration that, for specified reasons, it cannot present facts essential to justify its opposition." … Plaintiffs must first identify facts likely to result from discovery and explain why the facts are unavailable. The affidavit must "'state with specificity' how discovery would yield "'probable facts' that would 'rebut the summary judgment motion.'" Plaintiffs identify four areas for currently unavailable probable facts.
One area pertains to David Hendricks's … affidavit. He asserts Ms. Shanley stalked and abused him when he was a child and tried to cover up her actions. Plaintiffs seek to discover the alleged abuse and its factual basis, who committed the abuse, when and where the abuse occurred, who witnessed the abuse, and which of Ms. Hutchings's comments in the Complaint were based on the alleged abuse. Plaintiffs further identify as probable facts the supposed "many felonies" Mr. Hendricks allegedly witnessed Ms. Shanley commit against him, other children, and animals.
For the next area, Plaintiffs expect to obtain facts about posted "community warnings." Specifically, they seek to know when the comments were made, on what platform, and by whom. Plaintiffs also expect to discover which books or ideas Ms. Shanley allegedly plagiarized, who she allegedly blackmailed, and who she allegedly used to threaten others' children and how.
As to Ms. Hutchings's myriad accusations, Plaintiffs seek discovery for the claims of rape, human trafficking, and white supremacy. They identify probable facts concerning who Ms. Shanley allegedly trafficked, the basis for Ms. Shanley's alleged white supremacist comments, and who Ms. Shanley allegedly raped. Finally, Plaintiffs assert the need for discovery regarding Ms. Hutchings's claim that Ms. Shanley is a public figure.
Plaintiffs contend these facts are unavailable. They declare they have not received supplemental written discovery responses or document productions. And they have not deposed Mr. Hendricks, Ms. Hutchings, or other relevant witnesses. Plaintiffs aver more discovery will support their causes of action by showing Ms. Hutchings's comments are "entirely false."
Ultimately, Ms. Hutchings's summary judgment motion rests on whether there is a genuine dispute of material fact as to the truth of her accusations. Plaintiffs seek specific facts necessary to help determine the comments' truth. For this reason, Plaintiffs' affidavit sufficiently identifies "useful evidence" to "rebut the summary judgment motion."
Next, Plaintiffs' affidavit must explain past efforts to obtain necessary evidence, state why more time is needed to present the evidence, and clarify how additional time will help them rebut the motion for summary judgment. It does so. Plaintiffs served discovery requests on Ms. Hutchings on February 15, 2023. The requests sought to obtain the factual bases for Ms. Hutchings's allegations through responses and document production.
In particular, Plaintiffs asked Ms. Hutchings to explain the factual bases for Ms. Shanley's alleged acts of sexual coercion, white supremacy, rape, child molestation, human trafficking, stalking, abuse, and other offenses. But Ms. Hutchings did not provide Plaintiffs with adequate responses. The responses mainly consisted of boilerplate objections or were vague and incomplete. After a hearing, the court ordered Ms. Hutchings to supplement her discovery responses. Plaintiffs have not received any supplemental responses. While Plaintiffs have not yet deposed Mr. Hendricks or Ms. Hutchings, they have not been "dilatory in conducting discovery."
Plaintiffs easily have met their burden to show that more time is needed before the court rules on summary judgment. Additional discovery will address potential facts surrounding Ms. Hutchings's accusations. If present, such facts may help Plaintiffs "understand the claims against [them] and to prove the falsity of those claims." The court thus grants Plaintiffs' Rule 56(d) motion. In consequence, Ms. Hutchings's motion for summary judgment is premature.
While I'm at it, from a jacket blurb for defendant Domino Savage's The Demon's Pet (Rise of the Morningstar Book 1) (>3000 Amazon reviews):
Ever since the great divide, when supernaturals emerged to take back the world, wolf shifters like me have lived in sheltered havens.
The celestials, winged gods who inhabit the sky realms above us, protect us as long as we follow the rules, and kill us if we don't.
So when I refuse to accept my place as the pack's scapegoat, they send an archangel to kill me. From the instant I see Samael, something burns between us. He's as powerful as I am powerless, with authority no one can gainsay.
And he decides he'd rather take me than kill me….
And from a jacket blurb for plaintiff T.S. Joyce's Lumberjack Werebear (Saw Bears Series Book 1) (also >3000 Amazon reviews):
Painter, Brooke Belle, is running from her past and hoping that a few weeks in a quaint country cabin will bring her artistic muse back from the brink. But when she lands smack dab in the middle of Asheland Mobile Park, she's sure there's been a mistake. Not only has her mentor rented her a dilapidated mobile home in the middle of nowhere, but the trailer park is filled with big, burly, growly, flirty, sexy-as-hell lumberjacks. And one in particular is making her think that maybe she's landed right where she needs to be….
You'll note that such books very rarely feature law professors rather than lumberjacks (or archangels).