The lawyers representing Sabrina Rubin Erdely, Wenner Media LLC and Rolling Stone magazine have filed a motion to dismiss the complaint of three 2013 University graduates and Phi Kappa Psi fraternity members.
George Elias IV, Stephen Hadford and Ross Fowler first filed suit for $75,000 in July 2015, based on claims of defamation in Erdely’s article “A Rape on Campus,” published in Rolling Stone in November 2014. Court documents show the three plaintiffs alleged emotional and professional distress as a result of Erdely and Rolling Stone’s negligent writing and publishing.
“As a direct and proximate result of these statements by Erdely and Rolling Stone, [Elias, Hadford and Fowler] have suffered damages, including… injury to their reputations, embarrassment, humiliation, and emotional distress,” the complaint said.
Erdely, Wenner Media and Rolling Stone’s motion filed on Dec. 23, 2015, state that the graduates’ complaint was not valid because the article did not specifically discuss the plaintiffs nor did it state that the alleged gang rape was a fraternity initiation ritual.
“[The] Plaintiffs’ [Second Amended Complaint] relies on just such a strained and artificial construction to manufacture two theories as to why the Article makes defamatory statements ‘of and concerning’ them,” court documents said.
Elizabeth McNamara, the lawyer representing the trio of Erdely, Wenner Media and Rolling Stone, had no comment on the motion to dismiss the complaint.
It is common for defendants to file motions to dismiss complaints in defamation cases because they often want to end the case as soon as possible, Law Prof. George Rutherglen said.
“In this case, Rolling Stone wants to preserve what is left of its reputation by saying that what they did was perfectly consistent with the First Amendment,” Rutherglen said.
The amount of publicity surrounding the article “A Rape on Campus” and its implications will not likely play a major role in deciding if the case is dismissed, Rutherglen said. However, the publicity may make the complaints appear graver and therefore, make libel seem more plausible.
“The extent of the publicity is not good for the defendants because it enhances the likelihood of loss and the apparent seriousness of the claim,” Rutherglen said.
In the off chance the case is dismissed, the plaintiffs will likely ask to amend their complaint to fix any possible defects in their original arguments, Rutherglen said.
“If they can’t cure the defects in the complaint, then the case is dismissed and I doubt that there are much in the way of costs that can be imposed in a case like this,” Rutherglen said. “Personally, I think it is more likely than not that the motion [to dismiss] will be denied.”
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