Filing # 95234554 E-Filed 09/05/2019 04:02:07 PM

IN THE CIRCUIT COURT OF THE 11TH JUDICIAL

CIRCUIT OF FLORIDA, IN AND FOR MIAMI-DADE COUNTY, FLORIDA

CIVIL DIVISION

CASE No. 2018- 035872-CA-01

ANTHONY DEFILLIPO,

Plaintiff,
vs.

AMERICAN FEDERATION OF STATE,

COUNTY, AND MUNICIPAL
EMPLOYEES, ET AL,

Defendants.
__________________________________/

MAYOR ANTHONY DEFILLIPO'S

MEMORANDUM OF LAW IN OPPOSITION TO
THOR MEDIA GROUP’S MOTION TO DISMISS COMPLAINT

Plaintiff, Mayor Anthony DeFillipo, by and through undersigned counsel, hereby responds

to the Motion to Dismiss Complaint filed by Thor Media, with Incorporated Memorandum of law

and states:

INTRODUCITON

Last May, this Court already DENIED the argument that the utterly disgraceful and false

statements by the Defendants were protected opinion and Ordered the Defendants to Answer and

the case to proceed. Discovery is underway and the parties are preparing for trial and/or Summary

Judgment. The Motion to Dismiss filed by Defendant THOR MEDIA GROUP should be DENIED

as it is patently frivolous because:

1. It consists of identical boilerplate First Amendment arguments that this Court has
already ruled upon in Defendant, HECTOR ROOS’ earlier motion to dismiss: This

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 Court has already DENIED the argument that these slanderous statements are pure
opinion as a matter of law.
2. It seeks to create immunity from liability for any form of slander directed at public
officials, which has never been the law.
3. It asks this Court to improperly usurp the role of the jury in this case.
When these identical arguments were raised by Defendant HECTOR ROOS, this Court

DENIED them in their entirety and correctly held that calling someone a thief who is for sale to

“highest bidder” and a mafia criminal (head of a “crime family”) in mailers that were paid for

illegally cash stuffed in paper bags, is actionable. This was not a close call. THOR MEDIA

GROUP is not a media Defendant, but merely an alter ego consulting firm owned, managed and

uses by ROOS. It is not a blogger or newspaper or any type of media medium and such has never

been contended.

THE FACTS

1. This is a claim for defamation brought by Mayor Anthony DeFillipo based upon a

mailer that was prepared and sent by Defendants to an entire City. The comments were so

slanderous that some of the Defendants hid their identity and others have denied responsibility.

2. The Complaint was filed on October 23, 2018 and alleges that the statements in the

Mailer attached to the Complaint (and hereto) as Exhibit “A” consist of libel and libel per se.

3. The statements referenced in the Complaint and attached as an exhibit are not

opinion or protected speech under any definition and include the following statements:

“Tony “Soprano” DeFillipo is FOR SALE to the highest bidder”

“ Tony Soprano’s CRIME FAMILY is asking for your support”

‘Don’t let their corrupt money buy this election”

“Tony “Soprano” DeFillipo’s slate is more like a crime family….”

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 4. The statements are explicit in telling thousands of people not to trust the Mayor

because he is falsely stated to be a thief, corrupt person, member of Italian organized crime, which

includes murderers and extortionists. They also state that he is just like Tony Soprano, a thief, drug

dealer, and murderer, among other things.

5. On May 16, 2019, this Court entered an order denying Defendant Hector Roos’s

Motion to Dismiss that, among other things, suggested that the statements were protected opinion,

the same claims made in the instant motion. A copy of the order is attached hereto is as Exhibit

“B”.

6. The order states the following finding: “The Motion to Dismiss is Denied in all

respects...”

7. As will be seen in the argument that follows, Defendants' arguments lack merit and

the THOR MEDIA GROUP motion to dismiss should be denied in all respects.

ARGUMENT

A. THE STATEMENTS MADE BY THE DEFENDANTS ARE

STATEMENTS OF FACT, WHICH ARE NOT PROTECTED AS
STATEMENTS OF PURE OPINION.

A statement is pure opinion only if the speaker states all of the facts upon which he

bases his opinion or such facts are otherwise known or available to the reader as a general member

of the public. From v. Tallahassee Democrat, Inc., 400 So.2d 52, 57 (Fla. 1st DCA 1981).

However, a speaker cannot invoke pure opinion if the facts underlying the opinion are false or

inaccurately presented. Lipsig v. Ramlawi, 760 So.2d 170, 183 (Fla. 3rd DCA 2000).

Even if a speaker states the facts upon which he bases his opinion, the statement may still

imply false assertions of fact if those facts are incorrect, incomplete or the speaker's assessment of

those facts is erroneous. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 (1990).

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 In the case at bar, mailer contains various false factual assertions or implications. These
include:

a) That Plaintiff is for sale to the highest bidder and a thief;

b) That Plaintiff is part of a crime family;
c) That Plaintiff is in the Italian mafia, which includes murder and other crimes
like extortion and drug dealing;

The implications are that the Plaintiff is a thief, a criminal, a murderer and subject to taking

bribes, all of which are factual assertions that are totally false. It is submitted that these are false

statements of fact and not opinions which can be derived logically from the disclosed facts. At a

minimum, these assertions imply the existence of undisclosed defamatory facts, or are an

erroneous assessment of the actual facts, which create a question for the jury as to whether the

statement is opinion. Lipsig v. Ramlawi, 760 So.2d 170, 185.

In Lipsig, the Third District held that a statement which implied that the Plaintiff had

wrongfully taken money, from partnership companies resulting in his expulsion from the

partnership, was sufficient to support a jury finding that the statement was false and defamatory,

where the Defendant omitted additional facts that would have eliminated the defamatory

implication of the statement, even though the statement as made was not inaccurate. Id. at 185.

B. WHETHER THE STATEMENTS IN QUESTION ARE DEFAMATORY

IS A QUESTION FOR THE JURY

Defamatory communications which are not actionable per se may be actionable upon

adequate averments of actual damage and express malice. Wolfson v. Kirk, 273So.2d 774, 777(Fla.

4th DCA 1973). In determining whether words are defamatory the court must give the words a

reasonable construction in view of the thought intended to be conveyed and that which would be

a reasonable construction of the language by those who heard or read the same. Id, at 778. In

construing language used in a common law libel, the court is not limited to the words themselves

but may consider extrinsic facts and circumstances. Boyles v. Mid-Florida Television Corp., 431

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So.2d 627, 633 (Fla. 5th DCA 1983).

The Complaint alleges that Mayor DeFillipo was, at all times, a businessman, candidate

for public office and a man of outstanding reputation in the community. It is further alleged that

the Defendants made the libelous statements in question with knowledge that the statements were

false or with reckless disregard for the truth. Those are the allegations to be taken as true. This

latter allegation sets forth actual malice as required by New York Times Co. v. Sullivan, 376 U.S.

254, 84 S.Ct, 710, 11 L.Ed.2d 686 (1964), in claims for defamation by public figures.

The Complaint sets forth allegations of express malice by stating “The statements were

made by Defendants with the primary malicious purpose of causing injury to Plaintiff.” See ¶23.

See Nodar v Galbreath, 462 So.2d 803,806 (Fla. 1984). (Express malice under Florida common

law, necessary to overcome the common law qualified privilege, is present where the primary

motive for the statement is shown to have been an intention to injure the Plaintiff.) Express malice

may be inferred from the language itself, or may be proven by extrinsic circumstances.

The Complaint further alleges that the above statements expose Plaintiff to hatred, ridicule,

distrust and contempt by the public, injured the Plaintiff's business and that the statements accused

the Plaintiff of committing deceitful and dishonest acts related to a political campaign. That as a

direct and natural consequence of the publication of the subject statement by Defendants, the

Plaintiff suffered injury to his reputation and good name, damages to his business and his public

image as a community activist has been irreparably damaged. .

C. THE SUBSTANTIAL TRUTH DOCTRINE DOES NOT JUSTIFY

DISMISSAL

Under the substantial truth doctrine, as statement does not have to be perfectly accurate if

the “gist” or the “sting” of the statement is true. Smith v. Cuban American National Foundation,

731 So.2d 702, 706 (Fla. 3d DCA 1999). However, in determining whether a publication is false

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and defamatory the publication must be considered in its totality. Id. at 706. The alleged

defamatory publication, implies that Mr. Defillipo is a liar, a crook and is part of organized crime.

It is alleged that these statements are false. As such the substantial truth doctrine is not applicable

in the case at bar, on a motion to dismiss.

D. THE COMPLAINT SHOULD NOT BE DISMISSED ON THE GROUNDS THAT

THE PLAINTIFF IS A PUBLIC FIGURE

The law has never been that a public figure's reputation is “fair game” for all who wish to

slander it with impunity. The Third District Court, in Miami Herald Pub. Co. v. Ane, 423 So.2d

376 (Fla. 3d DCA 1982) set forth the standards for defamation of someone who is a public figure,

as well as the standards for a private person:

The central question presented for review is whether a Plaintiff [who is

neither a public official nor public figure] in a libel action is required
under Florida law to establish as an element of his cause of action that
the Defendant published the alleged false and defamatory statements
sued upon with “actual malice” as defined in New York Times Co. v.
Sullivan, 376 U.S. 254, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) [i.e., either
with knowledge of its falsity or with reckless disregard of its truth or
falsity] when the alleged false and defamatory statements relate to an
event of public or general concern. We hold, in accord with established
First Amendment law and the overwhelming weight of authority
throughout the country, that under Florida law such a non-public figure
Plaintiff is not required under any circumstances to make such an
“actual malice” showing as an element of his cause of action, it
being sufficient if the Plaintiff establishes, as here, that the Defendant
published the alleged false and defamatory statements with
negligence [i.e., without reasonable care as to whether the alleged false
and defamatory statements were actually true or false].

Emphasis added.

The Complaint in this case alleges, that Defendants knew that the defamatory statements

they made were false, or that they were made with reckless disregard as to whether the statements

were true or not. (¶30). Regardless of whether the Defendants assert that Plaintiff is a public figure,

the standards of both Ane and Sullivan are satisfied by the Complaint. Defendant’s arguments

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relating to the burden of proof, are misplaced, at this stage. It is well-established that a motion to

dismiss merely tests the allegations of the Complaint.

E. F.S. 770.01 IS NOT APPLICABLE BECAUSE THE DEFENDANTS ARE

NOT PRINT OR BROADCAST MEDIA

Florida Statute 770.0l only applies to media Defendants such as newspapers, radio and

television stations. Davies v. Bissert, 449 So.2d 418 (Fla. 3d DCA 1984). Thor Media has made

no such contention in this case and this is a not an issue for a Motion to Dismiss.

F. THE COMPLAINT SUFFICIENTLY ALLEGES EXPRESS MALICE TO

PRECLUDE DISMISSAL UNDER A QUALIFIED PRIVILEGE.

Express malice, under the common law, qualified privileges is present when the primary

motive for the statement is shown to have been an intention to injure the Plaintiff. See Nodar v.

Galbreath, 462 So.2d 803, 806 (Fla. 1984). It is alleged in the Complaint that the defamatory

statements were “false and malicious and were intended to injure Plaintiff and bring him into

public scandal and disgrace.” This sufficiently sets forth the express malice required to overcome

any common law qualified privilege.

Thus the question of whether the recipients of the mailer were all individuals with a

corresponding duty or interest relative to the information being provided by the Defendants, cannot

be determined from the allegations of the Complaint. Thus the question of whether the common

interest qualified privilege applies, is subject to proof and should be raised as an affirmative

defense, not on a motion to dismiss.

There is no legal distinction between the political privilege and common interest privilege

claimed by the Defendants. In both instances the Defendant is required to establish a

communication made to someone with a corresponding interest in the information. Nodar v.

Galbreath, 462 So.2d 803, 809 Both qualified privileges fail in the presence of express malice as

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that term is defined in Nodar. Id. at 810.

G. THE STATEMENTS ARE NOT RHETORICAL HYPERBOLE

Rhetorically hyperbolic statements are those which cannot reasonably be interpreted as

stating actual facts about an individual. Milkovich v Lorain Journal Co., 497 U.S. 1, 20 (1990). To

be actionable a defamatory publication must convey to a reasonable reader the impression that it

describes actual facts about the Plaintiff or the activities in which he participated. Ford v. Rowland,

502 So.2d. 731, 735 (Fla. 5th DCA 1990). Some statements are so obviously comedic or

nonsensical that no sensible person would take them seriously. Id. Others are more questionable

and require submission to the trier of fact rather than resolution by the court. Id. citing to Wolfson

v. Kirk, 273 So.2d 774 (Fla. 4th DCA 1973). In this case,, the Defendants are clearly attacking the

integrity of Mr. DeFillipo is a serious manner and telling people not to trust him based on false

statements. This is not a laughing matter to the Plaintiff and his family.

CONCLUSION

For any or all of the foregoing reasons, the Court should deny Thor Media Group’s Motion

to Dismiss the Complaint and order the Defendant to answer within 10 days.

Respectfully submitted,

MICHAEL A. PIZZI, P.A.

Co-Counsel for Plaintiff
6625 Miami Lakes Drive, Suite 316
Miami Lakes, Florida 33014
Tel: (786) 594-3948; Fax: (305) 777-3802
mpizzi@pizzilaw.com

/s/ Michael A. Pizzi, Jr., Esq.

By: ____________________________________
MICHAEL A. PIZZI, JR.; FBN 079545

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 CERTIFICATE OF SERVICE

WE HEREBY CERTIFY that on September 5, 2019, we electronically filed the foregoing

document with the Clerk of the Court using Florida Courts eFiling Portal. We also certify that the
foregoing document is being served this day on all counsel of record, or pro se parties via
transmission of Notices of Electronic Filing generated by Florida Courts eFiling Portal or in some
other authorized manner for those counsel or parties who are not authorized to receive electronically
Notices of Electronic Filing.

REINER & REINER, P.A.

Co-Counsel for Plaintiff
9100 South Dadeland Blvd., Suite 901
Miami, Florida 33156-7815
Tel: (305) 670-8282; Fax: (305) 670-8989
dpr@reinerslaw.com; eservice@reinerslaw.com

/s/ DAVID P. REINER, II

By: ________________________________
DAVID P. REINER, II; FBN 416400

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EXHIBIT "B"