IN THE CIRCUIT COURT OF WILSON COUNTY, TENNESSEE
NANDIGAM NEUROLOGY, PLC,
Plaintiff,
U.

Case No.: zoi9-cv-663

KELLY BEAVERS

JURY DEMANDED

and
DEVIN YOUNT,
Defendants.

DEFENDANT BEAVERS'S MEMORANDUM OF LAW IN SUPPORT OF HER
MOTION TO DISMISS AND TENN. CODE ANN. § 2o-i~-io4(a) PETTITON TO
DISMISS THE PLAINTIFF'S COMPLAINT PURSUANT TO THE TENNESSEE
PUBLIC PARTICIPATION ACT

I. INTRODUCTION
This is a Strategic Lawsuit Against Public Participation (a "SLAPP-suit") over a
truthful Yelp! review that is masquerading as a false light, defamation, and civil
conspiracy action.

Upset about Dr. Kaveer Nandigam's extraordinarily disturbing

behavior coming to light, the Plaintiff—Nandigam Neurology, PLC—has sued Kelly
Beavers regarding a constitutionally protected Yelp! review that she posted after taking
her father to the doctor. Ms. Beavers's Yelp! review, of course, was not illegal, and it falls
safely within the protections guaranteed by the First Amendment. For a wealth of
additional reasons, the Plaintiffs Complaint also fails to state a cognizable claim under
any pleaded theory of relief. Because the Plaintiff has sued Ms. Beavers for exercising her
right to free speech, Ms. Beavers further petitions this Court to dismiss the Plaintiffs
Complaint and to sanction the Plaintiff under the newly enacted Tennessee Public
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 TM

Participation Act. See TENN. CODE ANN. § zo-i~-io4(a).
The Plaintiffs Complaint—and every cause of action alleged in it—must be
dismissed with prejudice for several independent reasons:
First, longstanding, unambiguous, and controlling authority establishes that
corporations cannot sue for false light invasion of privacy. See West v. Media Gen.
Convergence, Inc., 53 S.W.3d 640, 648 (Tenn. zoos) ("the right to privacy is a personal
right. As such, the right cannot attach to corporations or other business entities . . .:').
The Plaintiff has inexplicably maintained a false light claim regardless.
Second, the Plaintiffs Complaint does not comport with threshold pleading
requirements and fails to set forth the substance of any of the statements that it alleges
are defamatory.
Third, Dr. Kaveer Nandigam—the human being about whom Ms. Beavers posted
her Yelp! review—is not a party to this action. The actual Plaintiff in this action may not
sue over statements that concern anon-party, however, and Dr. Nandigam may not
maintain his defamation action through a PLC.
Fourth, for multiple independent reasons, the statements in Ms. Beavers's Yelp!
review are inactionable as defamation and are incapable of conveying a defamatory
meaning as a matter of law.
Fifth, the Plaintiffs civil conspiracy claim fails as a matter of law because: (i) it is
not premised upon any tortious act; (z) it is not premised upon any unlawful purpose or
unlawful means; and, in any event, (3) it is not pleaded with the requisite degree of
specificity.
Separately, the Plaintiffs Complaint falls squarely within the protections of the
newly enacted Tennessee Public Participation Act. See TENN. CODE ANN. § 2o-i~-toi, et

 seq. Pursuant to the Tennessee Public Participation Act, Ms. Beavers has submitted
sworn, admissible evidence setting forth several outcome-determinative defenses to this
action. See Exhibit A, Beavers Affidavit. In furtherance of the Tennessee Public
Participation Act's substantive protections, Ms. Beavers additionally demands that the
Plaintiff establish a prima facie case for each essential element of its claims in order to
avoid dismissal.
II. LEGAL STANDARDS
A. MS. BEAVEI2S'S MOTION TO DISNIISS FOR FAILURE TO STATE A CLAIM
"A motion to dismiss a complaint for failure to state a claim pursuant to Rule
12.02(6) of the Tennessee Rules of Civil Procedure asserts that the allegations in the
complaint, accepted as true, fail to establish a cause of action for which relief can be
granted." Conley v. State,141 S.W.3d 591, 594 (Tenn. 2004). Where, as here, it "appears
that the plaintiff can prove no set of facts in support of the claim that would entitle the
plaintiff to relieft,]" a defendant's motion to dismiss must be granted. Crews v. Buckman
Labs. Intl, Inc., ~8 S.W.3d 852, 85~ (Tenn. 2002).
B. HEIGHTENED CONSTITUTIONAL REQinTiun~iFNTSGOVERNINGDEFAMATIONCLAIMS
To establish a prima facie case of defamation under Tennessee law, a plaintiff must
prove that: "(1) a party published a statement; (2) with knowledge that the statement was
false and defaming to the other; or (3) with reckless disregard for the truth of the
statement or with negligence in failing to ascertain the truth of the statement"~ Davis v.
Where—as here—the alleged defamatory statement involves a matter of public interest, a plaintiff is
required to prove actual malice. See West v. Media Gen. Convergence, Inc., 53 S.W.3d 640, 64~ (Tenn.
2ooi) ("In Time, Inc. v. Hill, 385 U•8.374, 87 8• Ct• 534, ~7 L.Edsd 456 (1960, the Court extended the
actual malice standard to alleged defamatory statements about matters of public interest:'). Statements
about the quality of services offered to the public are per se deemed matters of public interest for both First
Amendment andAnti-SLAPP purposes. See, e.g., Neumann v. Liles, 369 P.3d ll1'J, n26 (Or. 2016) (finding
-3-

 ,\
The Tennessean, 83 S.W.3d 125, 128 (Tenn. Ct. App. 2ooi). Critically, however, "the
Supreme Court of the United States has constitutionalized the law of libel[.]" Press, Inc.
v. Verran, 56g S.W.zd 435, 440 (Tenn. ig~8). See also N.Y. Times v. Sullivan, 376 U.S.
254, 269 (1964). Thus, defamation claims present several threshold and outcomedeterminative questions of law that do not require any deference to the Plaintiffs own
characterizations of the statements that it has sued over. See, e.g., Moman v. M.M. Corp.,
No. ozAoi-9608-CVooi82,1997 WL i6~uo, at'*3 (Tenn. Ct. App. Apr. io, ig97) ("If the
[allegedly defamatory] words are not reasonably capable of the meaning the plaintiff
ascribes to them, the court must disregard the latter interpretation."). See also Brown v.
Mapco Express, Inc., 393 S.W.3d 696, X08 (Tenn. Ct. App. zolz); McWhorter v. Barre,
13z S.W.3d 354, 364 (Tenn. Ct. App. 2003).
Given the constitutional limitations that govern defamation claims, "ensuring that
defamation actions proceed only upon statements which may actually defame a plaintiff
is an essential gatekeeping function of the court" Pendleton v. Newsome, ~~2 S.E.zd 759
X63 (Va. 2015) (internal quotation omitted). With this "essential gatekeeping function"
in mind, see id., both our Court of Appeals and our Supreme Court have instructed that
in defamation cases, "the issue of whether a communication is capable of conveying a
defamatory meaning is a question of law for the court to decide in the first instance ...:'
Brown, 393 S.W.3d at X08. See also Aegis Scis. Corp. v. Zelenik, No. Mzoi2-oo898-

statements critical of wedding planning services were matters of public concern under OregonAnti-SLAPP
statute, and holding that a defendant's review was "an expression of opinion on matters of public concern
that is protected under the FirstAmendment"); Melaleuca, Inc. v. Clark, 66 Cal. App.4ih 1344,1363 (199$)
(holding that "the public has awell-recognized interest in lmowing about the quality and contents of
consumer goods" and fording that statements alleging that products were unhealthy were "matters of
obvious widespread public interest"); DuPont Merck Pharmaceutical Co. v. Superior Court, 98 Cal. App.
4th 562, 566 (2000) (holding that statements comparing the quality and effectiveness of drug products
were made "in connection with a public issue" forAnti-SLAPP purposes).

-4-

 COA-I~CV, 2013 WL 17580, at *6 (Tenn. Ct. App. Jan. i6, zoi3) ("[T]he preliminary
question of whether a statement `is capable of conveying a defamatory meaning' presents
a question of law." (quoting Revis v. McClean, 3i S.W.3d z5o, z53 (Tenn. Ct. App.
2000))); McWhorter, i3z S.W.3d at 364 ("The question of whether [a statement] was
understood by its readers as defamatory is a question for the jury, but the preliminary
determination of whether [a statement] is `capable of being so understood is a question
of law to be determined by the court."' (quoting Memphis Pub1'g Co. v. Nichols, 569
S W.zd 4iz, 4i9 (Tenn. 1978))). If an allegedly defamatory statement is not capable of
being understood as defamatory as a matter of law, then a plaintiffs complaint must be
dismissed for failure to state a claim. McWhorter,132 S.W.3d at 364.
Of note, Tennessee courts have also adopted several categorical bars that prevent
claimed defamations from being actionable as a matter of law, several of which are
outcome-determinative here:
First, our courts have held that opinions enjoy robust constitutional protection
under the First Amendment. See generally Stones River Motors, Inc. v. Mid-S. Publ'g
Co., 65i S.W.zd 7zz (Tenn. Ct. App. 1983), abrogation on other grounds recognized by
Zius v. Shelton, No. E1999oi157COAR9CV, 200o WL 739466, at *3 (Tenn. Ct. App. June
6, z000). As a result, "an opinion is not actionable as libel unless it implies the e~astence
of unstated defamatory facts:' Id. at 7zz.
Second. an allegedly defamatory statement "must be factually false in order to be
actionable."2 See Moman,1997 WL i67zio, at *4. Thus, any statement that is not capable

In Tennessee, defamatory implications regarding an allegedly tortious publication are governed by a
distinct and independent tort. See Loftin v. Rayburn, No. Mzoi~oi5o2COA)~3CV, 2oi8 WL 189584z~ at
«5-6 (Tenn. Ct. App. Apr. 20, 2018) (describing Tennessee's independent recognition of "defamation by
implication or innuendo"). In this case, the Plaintiffs Complaint exclusively alleges defamation, false light,
and conspiracy claims. See Complaint.

-5-

 of being proven false as a matter of fact or that constitutes mere rhetorical hyperbole
cannot form the basis for a defamation claim. See id.
Third, merely unpleasant or embarrassing statements are not capable of conveying
a defamatory meaning as a matter of law. Davis v. Covenant Presbyterian Church of
Nashville, No. M2o14-02400-COA-R9-CV, 2oi5 WL 5766685, at *3 (Sept. 30, 2oi5).
Instead,
[f]or a communication to be [defamatory], it must constitute a serious
threat to the plaintiffs reputation. A [defamation] does not occur
simply because the subject of a publication finds the publication annoying,
offensive or embarrassing.
The words must reasonably be
construable as holding the plaintiff up to public hatred, contempt
or ridicule. They must carry with them an element "of disgrace."
Id. (quoting Brown, 393 S.W.3d at 708) (emphases added), appeal denied (Tenn. Feb.
i8, 2oi6).
Fourth Tennessee has adopted the "substantial truth doctrine" with respect to
defamation cases. See Isbell v. Travis Elec. Co., No. M199900052C0AI~3CV, 200o WL
1817252, at *5 (Tenn. Ct. App. Dec. i3, 2000). Thus, statements that are true or
substantially true are not actionable as defamation as a matter of law. Id.
Fifth, damages camiot be presumed; instead, a plaintiff is "required to prove actual
damages in all defamation cases." Hibdon v. Grabowski, 1g5 S.W.3d 48, 68 (Tenn. Ct.
App. 2005) (citing Handley v. May, 588 S.W.2d ~2, T76 (Tenn. Ct. App. 1979))•
C. THE TENNESSEE PUBLIC PARTICIPATION ACT

Tennessee's newly enacted Public Participation Act—which the legislature adopted
to deter, expediently resolve, and punish SLAPP-suits like this one—provides that "[i]f a
legal action is filed in response to a party's exercise of the right of free speech, right to
petition, or right of association, that party may petition the court to dismiss the legal
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 action" subject to the specialized provisions of Tennessee Code Annotated § 20-1~-1o4(a).
The Tennessee Public Participation Act's special petition to dismiss "provide[s] an
additional substantive remedy to protect the constitutional rights of parties" that
"supplement[s] any remedies which are otherwise available ...under the Tennessee Rules
of Civil Procedure."

TENN. CODE ANN. § 2o-i~-1o9.

As such, nothing in the Act "affects,

limits, or precludes the right of any party to assert any defense, remedy, immunity, or
privilege otherwise authorized by law[,]" see TENN. CODE ANN. § 2o-1~-io8(4), and Ms.
Beavers's special petition to dismiss has been presented in conjunction with her Motion
to Dismiss under Tennessee Rule of Civil Procedure i2.oz(6) as a result.
In enacting the Tennessee Public Participation Act, the Tennessee General
Assembly forcefully established that:
The purpose of this chapter is to encourage and safeguard the constitutional
rights of persons to petition, to speak freely, to associate freely, and to
participate in government to the fullest extent permitted by law and, at the
same time, protect the rights of persons to file meritorious lawsuits for
demonstrable injury. This chapter is consistent with and necessary to
implement the rights protectedby Article I, §§ i9 and z3, of the Constitution
of Tennessee, as well as by the First Amendment to the United States
Constitution, and shall be construed broadly to effectuate its purposes and
intent.
TENN. CODE ANN. § 2o-i~-io2.

Substantively, the Tennessee Public Participation Act also

provides, among other things, that:
(i)

When a defendant has been sued in response to the party's exercise of the

right to free speech, he or she is entitled to file a special petition to dismiss the legal action,
TENN. CODE ANN. § 20-1'J-lOq(a);
(2)

Discovery is automatically stayed by statute pending the entry of an order

ruling on the petition, TENN. CODE ANN. § 2o-i~-io4(d); and
(3)

In the event that the petition is denied, the petitioning party is entitled to
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 an immediate interlocutory appeal as of right, TEtJrr. CODE Arrrr. § 2o-i~-io6.
A petition to dismiss an action under the Tennessee Public Participation Act "may
be filed within sixty (60) calendar days from the date of service of the legal action or, in
the court's discretion, at any later time that the court deems proper." See TENN. CODE
ANrr. § 2o-i~-io4(b). Under the Act, "[t]he petitioning party has the burden of making a
prima facie case that a legal action against the petitioning party is based on, relates to, or
is in response to that party's exercise of the right to free speech, right to petition, or right
of association." TErrrr. CoDEAtvrr. § zo-l~-io5(a). Thereafter, the Court "shall dismiss the
legal action unless the responding party establishes a prima facie case for each essential
element of the claim in the legal action." TENi`r. CODE Arrrr. § 2o-iy-io5(b). Separately,
"[n]otwithstanding subsection (b), the court shall dismiss the legal action if the
petitioning party establishes a valid defense to the claims in the legal action." TEivrr. CODE
ANN. § zo-i~-io5(c).

III. FACTS
"In early November 2oig, Defendant Beavers accompanied her father to a medical
consultation at the office of Plaintiff Nandigam." See Complaint, p. 1, ¶ 6. "On November
~, zo19, Defendant Beavers posted a negative Yelp review on the Internet[.]" Id. at ¶ ~.
The Plaintiffs Complaint does not include any mention of what the Yelp! review at issue
says. See generally Complaint. It also does not append the review as an exhibit. See id.
Nonetheless, the Plaintiff asserts, without explanation, that it "contained false,
disparaging, and misleading statements." Id. at ¶ ~. The Plaintiff has additionally sued
Defendant Devin Yount over "a negative Google" [sic] that similarly is not described,
quoted, or appended to the Plaintiffs Complaint as an exhibit. Id. at p. 2, ¶ 8.

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 4~`

The Yelp! review at issue was posted after Kelly Beavers brought her 6~-year-old
father—who was experiencing dizziness and memory loss—to a doctor's appointment. See
Exhibit A, p. i, ¶ 5. Ms. Beavers's father has significant difficulty remembering what
occurred during his doctors' appointments. Id. at pp. i-2, ¶ 6. As a result, once in a
private room and away from other patients, Ms. Beavers routinely (and lawfully, see TENrr.
CODE ANN. § 3g-i3-6oi) records her father's medical appointments so that she can later
play them for her father and remind him what doctors and other medical professionals
have told him in order to ensure that he is following medical advice and receiving proper
care. Id.
On this occasion, when Dr. Nandigam—who is not a party to this action—saw Ms.
Beavers recording the visit, he became enraged, slammed his clipboard, demanded Ms.
Beavers's phone, and demanded that she delete the recording. Id. at p. 2, ¶¶ ~ & 9.
Shocked and frightened by Dr. Nandigam's behavior, Ms. Beavers complied and deleted
the recording. Id. at ¶ io. Ms. Beavers then exercised her constitutional right to post a
truthful review on Yelp! about the service she had received. See id. at ¶ ti. Her Yelp!
review stated, in its entirety:
This "Dr's" behavior today was totally unprofessional and unethical to put
it mildly. I will be reporting him to the State of TN Medical Review Board
and be filing a formal complaint. How this guy is in business is beyond me.
Since when did they start allowing Doctors, to throw a complete temper
tantrum in front of Patients and slam things when they get upset? He does
not belong in the medical field at all.
Exhibit B, Yelp! Review.
Devin Yount—Ms. Beavers's co-defendant—is the son of Ms. Beavers's friend.
Exhibit A, p. 3, ¶ 22. After hearing a conversation between his mother and Ms. Beavers
about the visit, Mr. Yount posted a truthful review on Google regarding it. Id. at ¶ 23.

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 This action for false light, defamation, and civil conspiracy against both Ms. Beavers and
Mr. Yount followed. See generally Complaint.
IV. ARGUMENT
A.

THE PLAINT'IFF'S COMPLAINT FAIIS TO STATE ANY CLAIM UPON WHICH RELIEF CAN
BE GRANTED.

i. Plaintiffs false light claim is inactionable as a matter of law because
corporations cannot sue for false light.
A claim for false light invasion of privacy concerns a "personal right" that is
premised upon a natural person's right to privacy. See West, 53 S.W.3d at 648.
Accordingly, the Tennessee Supreme Court has clearly established that:
the right cannot'attach to corporations or other business entities, may not
be assigned to another, nor may it be asserted by a member of the
individual's family, even if brought after the death of the
individual. Therefore, only those persons who have been placed in a false
light may recover for invasion of their privacy.
Id.

(Cltlrig RESTATEMENT (SECOND) OF TORTS §

652I Cmt. a-C (19'J~)) (emphases added).

Thus, as a categorical matter, corporations may never maintain false light claims.
Id. See also Seaton v. TripAdvisorLLC, X28 F.3d 592, 6oI (6th Cir. 2013) ("Seaton cannot
recover on behalf of Grand Resort because it is a business and as such does not have the
right under Tennessee law to recover for a violation of its privacy.").
Here, the Plaintiffs Complaint reflects that the Plaintiff—Nandigam Neurology,
PLC—is "a Tennessee professional limited liability company." Complaint, p. i, ¶ 1. As
such, the Plaintiff is categorically prohibited from maintaining a false light invasion of
privacy claim under any circumstances against any party. West, 53 S.W.3d at 648;
Seaton, X28 F.3d at 6oI. The Plaintiffs claims for false light invasion of privacy must be
dismissed with prejudice for failure to state a claim as a consequence.

-to-

 2. The Plaintiff has failed to plead the substance of any of the statements
over which it is suing.
Plaintiffs who sue for defamation are required to plead—at minimum—the
substance of the statements over which they are suing. See, e.g., Rose v. Cookeville Reg'1
Med. Ctr., No. M2oo~o2368COAR3CV, 2008 WL 208056, at *4 (Tenn. Ct. App. May 14,
2008) (noting requirement that a plaintiff plead, at minimum, "the substance of the
slanderous statement" even under relaxed pleading standards (citing Handley, 588
S.W.2d at 774-75)); Webb v. Stanley Jones Really, Inc., No. 04-1288-T/AN, 2005 WL
1959160, at *2 (W.D. Tenn. Aug. 11, 2005) ("the substance of the utterance must be set
forth" (citing Handley, 588 S.W.2d at 775)). A plaintiffs failure to set forth the substance
of an allegedly defamatory statement compels dismissal. See, e.g., Markowitz u. Skalli,
No. 13-2186-JDT-CGC, 2013 WL 4782143, at *4 (W.D. Tenn. Sept. 5, 2013) ("In the
instant case, Plaintiff merely makes the conclusory statement that Defendant made
"slanderous remarks" without providing Defendant with "the substance of the slanderous
utterance [ . . . ]along with notice of the time and place of the utterance [to appraise
Defendant] of the allegations that he must defend against. Therefore, it is
RECOMMENDED that the Court DISMISS the complaint for failure to state a claim on
which relief maybe granted .. .. " (citing Handley, 588 S.W.zd at 775)).
Here, despite describing the statements at issue as defamatory, the Plaintiff has
not bothered to set forth the substance of any of the statements over which it has sued as
to either defendant. See Complaint, pp. 1-2, ¶¶ ~-13. As noted, however, such bald,
conclusory allegations are insufficient to state a cognizable claim for defamation as a
matter of law. See, e.g., Rose, 2008 WL 208056, at ~`4; Webb, 2005 WL 1959160, at *2.
Nor has the Plaintiff appended the written publications over which it has sued as

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 exhibits. But see Tenn. R. Civ. P. 10.03 ("Whenever a claim or defense is founded upon a
written instrument other than a policy of insurance, a copy of such instrument or the
pertinent parts thereof shall be attached to the pleading as an exhibit" absent exceptions
not present here). A Plaintiff s failure to comply with Rule 10.03 can similarly warrant
dismissal. See, e.g., Clear Water Partners, LLC v. Benson, No. E2o16-00442-COA-R3CV,

201

WL 376391, at *8 (Tenn. Ct. App. Jan. 26,

201) ("Rule 10.03

applies to this

claim by Clear Water. In response to Clear Water's argument that Rule 10.03 does not
contemplate dismissal as a sanction for failing to comply with the rule, we note that Rule
41.02(1)

provides that a plaintiffs complaint may be dismissed if the plaintiff fails to

comply with the rules set forth in the Tennessee Rules of Civil Procedure:' (citing Tenn.
R.

Civ. P. 41.02(1))). See also id. (citing Maynard u. Meharry Med. Coll., No.

9408-CH-00400, 1995

WL

41598,

at

*1

(Tenn. Ct. App. Feb.

1, 1995)

of-A-ol-

(granting

defendants' motion to dismiss complaint due to failure to attach copy of contract
documents to complaint as required by Rule 10.03)).
Here, the Plaintiff has failed to plead the substance of any of the allegedly
defamatory statements at issue or to attach the statements as exhibits to its Complaint.
These omissions serve to deprive both the Court and the Defendantsthemselves—who are
being sued for not only their own statements, but also for one another's allegedly
defamatory statements—of any opportunity to determine what, specifically, the Plaintiff
alleges is defamatory. Given this context, the Plaintiff s failure to plead the substance of
its defamation claims as required compels dismissal as a matter of law. See Markowitz,
2013 WL 4782143,

at *4. Accordingly, as to both defendants, the Plaintiffs defamation

claims should be dismissed.

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 e

\•

3. The Plaintiff may not sue over statements that concern anon-party to
this litigation, and Dr. Nandigam may not maintain his defamation
action through a PLC.
Ms. Beavers's Yelp! review was expressly about—and it unambiguously concerns—
Dr. Kaveer Nandigam the human being, making explicit reference to "[t]his `Dr,"' "he"
"him," and "this guy." See Exhibit B. Critically, however, Dr. Nandigam is not a party
to this litigation, and he is not the Plaintiff. See Complaint. That fact is necessarily fatal
to the Plaintiffs defamation claims, because "[a] plaintiff may not support a claim for
defamation based on an alleged defamatory statement made `of and concerning' a third
party." Steele v. Ritz, No. W2oo8ozr25COAR3CV, 2009 WL 4825183, at *'3 (Tenn. Ct.
App. Dec. i6, 2009) (citations omitted). As the Court of Appeals explained in Stones
River Motors, 651 S.W.2d at ~i~:
As an essential element of a cause of action for defamation, the plaintiffs
must prove a false and defamatory statement concerning another.
RESTATEMENT (SECOND) OF TORTS § 558 (1977). Otherwl5e Stated at COlrimOri
law, one of the required elements of proof was the "colloquium," a showing
that the language was directed to or concerning the charging party."
(partial emphasis added).
Put differently: Dr. Nandigam cannot prosecute—through the veil of a PLC—
defamationclaims over statements that concern him. See id. Nothing, of course, prevents
the Plaintiff from substituting Dr. Nandigam as the plaintiff in this action, which would
subject Dr. Nandigam personally to the inevitable sanctions associated with this bad-faith
and facially frivolous lawsuit. Unless and until that happens, however, Dr. Nandigam
cannot hide behind his PLC and prosecute his defamation claims through the corporate
plaintiff that is actually maintaining this lawsuit. See id. Accordingly, the Plaintiffs
defamation claims must be dismissed as a matter of law for failure to satisfy colloquium.
See Steele, 2009 WL 4825183, at *'3 ("This [colloquium] requirement—often referred to
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 as the `of and concerning' requirement—confines actionable defamation to statements
made against an `ascertained or ascertainable person, and that person must be the
plaintiff."' (quoting 53 C.J.S. LIBEL AND SLANDER; Irrauiuous Ftu.sExoon § 35 (2005))).
4. The statements contained in Ms. Beavers's Yelp! review are
inactionable as defamation as a matter of law.
To state a claim for defamation, it goes without saying that a statement must be
capable of conveying a defamatory meaning. Crucially, "whether a communication is
capable of conveying a defamatory meaning is a question of law for the court to decide in
the first instance .. .:' Brown, 393 S.W.3d at X08. See also Aegis Scis. Corp., 2oi3 WL
i~58o~, at *6 ("[T]he preliminary question of whether a statement `is capable of conveying
a defamatory meaning' presents a question of law." (quoting Revis, 3i S.W.3d at 253))
McWhorter, i32 S.W.3d at 364 ("The question of whether [a statement] was understood
by its readers as defamatory is a question for the jury, but the preliminary determination
of whether [a statement] is `capable of being so understood is a question of law to be
determined by the court."' (quoting Memphis Pubi'g Co., 56g S.W.2d at 4i9)).
Consequently, the Plaintiffs allegations that the statements at issue are reasonably
capable of conveying a defamatory meaning represent questions of law that must be
decided by this Court without any deference to the manner in which the Plaintiff
characterizes them. See Brown, 393 S.W.3d at ~o8—og ("The issue of whether a
communication is capable of conveying a defamatory meaning is a question of law for the
court to decide in the first instance .. . To make this determination, courts `must look to
the words themselves and are not bound by the plaintiffs interpretation of them."');
Moman,199~ WL i6~2io, at *3 ("If the words are not reasonably capable of the meaning
the plaintiff ascribes to them, the court must disregard the latter interpretation.").
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 ~-

Additionally, every statement that the Plaintiff insists is defamatory "should be read as a
person of ordinary intelligence would understand it in light of the surrounding
circumstances." Aegis Scis. Corp., 2oi3 WL r758o~, at *6 (quoting Revis, 3r S.W.3d at
253)•
For the reasons provided in the following subsections, none of the statements that
form the basis of the Plaintiffs Complaint comes anywhere close to clearing these hurdles.
As such, the Plaintiff has failed to state a cognizable claim for defamation as a matter of
law.
i. The statements in Ms. Beavers's Yelp! review are not capable of convening a
defamatory meaning as a matter of law.
Overlooking the fact that the Plaintiffs Complaint does not set forth the substance
of the statements over which it is suing, the statements in Ms. Beavers's Yelp! review are
not capable of conveying a defamatory meaning as a matter of law. With respect to Ms.
Beavers, the Plaintiffs lawsuit is premised entirely upon her online Yelp! review, which
states—in its entirety—as follows:
This "Dr's" behavior today was totally unprofessional and unethical to put
it mildly. I will be reporting him to the State of TN Medical Review Board
and be filing a formal complaint. How this guy is in business is beyond me.
Since when did they start allowing Doctors, to throw a complete temper
tantrum in front of Patients and slam things when they get upset? He does
not belong in the medical field at all.
Exhibit B.
For the reasons detailed below, none of these statements is capable of conveying a
defamatory meaning.
a. Subjective opinions based on disclosed facts and statements regarding
future intent are not capable of defamatory meaning.
Because the Plaintiff has not specified which statements within Ms. Beavers's
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 review it contends are tortious, it is not clear whether the Plaintiff is claiming that Ms.
Beavers's statements that "[t]his `Dr's' behavior today was totally unprofessional and
unethical to put it mildly[,]" "[h]ow this guy is in business is beyond me[,]" and "[h]e
does not belong in the medical field at all" were defamatory. Regardless, none of these
statements is capable of a defamatory meaning as a matter of law for several reasons. In
particular, these statements: (i) are based on fully disclosed, non-defamatory facts; (z)
are statements of subjective opinion; and (3) are incapable of being proven false. See,
e.g., Covenant Presbyterian Church, 2015 WL 5766685, at *3 ("[Coomments upon true
and nondefamatory published facts are not actionable, even though [the comments] are
stated in strong or abusive terms:') (cleaned up); Weidlich v. Rung, No. M2oi7-00045COA-R3-CV, 2017 WL 4862068, at *6 (Tenn. Ct. App. Oct. 26, zoi7) (holding that "[a]
writer's comments upon true and nondefamatory published facts are not actionable" as
a matter of law); Cummins u. Suntrust Capital Markets, Inc., 649 F. Supp. 2d 224, 255
(S.D.N.Y. 2009) ("the characterization of the plaintiff s complicity in the June i5 option
grants as self-interested, dishonest and unethical was anon-actionable statement of
opinion based on fiilly disclosed facts"), reconsideration denied, No. 07 CIV. 4633(JGIQ,
2oio WL 885222, at *1 (S.D.N.Y. Mar. i7, 2oio), and affd, 4i6 F. App'x ioi (2d Cir.
zoii); Clark v. Viacom Int'1 Inc., 6i7 F. App'x 495, 508 (6th Cir. 2oi5) ("[T]he falsity
requirement is met only if the statement in question makes an assertion of fact—that is,
an assertion that is capable of being proved objectively incorrect"). As another court
recently explained in a similar setting:
Henry's statements that Tamburo's actions were "unethical" and "deceitful"
are not actionable. The First Amendment protects opinions that do not
misstate actual facts. See Milkovich v. Lorain Journal Co., 487 U.S. 1, 20,
iio S. Ct. 2695, ui L. Ed. zd i (1990); see also Moriarty v. Greene, 315 Ill.
App. 3d 2z5, 247 Ill• Dec. 675, 73z N.E.2d 730, 739 (2000). A plainly
-i6-

 subjective remark is not actionable. Wilkow v. Forbes, 241 F.3d 552, 555
(7th Cir. 2001). Whether a person's actions are ethical or deceptive is not
objectively verifiable. See Lifson v. Bd, of Educ. of the City of Chicago, 416
F.3d 571, 579 (7th Cir. 2005). See also Hopewell v. Vitullo, 299 Ill. App. 3d
513, 233 Ill• Dec. 456, 701 N.E.zd 99, 104 (1998) (concluding that the
statement "fired because of incompetence" did not have a "precise and
readily understood meaning," and that "the veracity of the statement" was
unverifiable).
Tamburo v. Dworkin, 974 F. Supp. 2d 1199,1213 (N.D. Ill. 2013).
Further, as a statement regarding her future intent, Ms. Beavers's indication that
she "will be reporting [Dr. Nandigam] to the State of TN Medical Review Board and be
filing a formal complaint" similarly is not capable of a defamatory meaning as a matter
of law because it cannot be proven false. See, e.g., S. Middlesex Opportunity Council,
Inc. v. Town of Framingham, 752 F. Supp. 2d 85, 120 (D. Mass. zolo) ("Because Orr's
statement is unambiguously an expression of opinion about a future event, he cannot be
held liable for defamation as to this statement."); Caesars Entm't Operating Co. v.
Appaloosa Inv. Ltd. P'ship I, No. 65z39z/2o14, 2015 WL 4430268, at *8 (N.Y. Sup. Ct.
July 20, 2015) ("As for the Second Lien Holders' litigation threats, they too cannot give
rise to a defamation claim because they are expressions of future intent, not facts:'). Put
differently: Statements concerning Ms. Beavers's anticipated future actions cannot be
proven false, and they cannot be construed as objectively verifiable false facts as a
consequence. See, e.g., Haynes v.A~edA. Knopf, Inc., 8 F.3d 1222,1zz'J (7th Cir.1993)
("[I]f it is plain that the speaker is expressing a subjective view, an interpretation, a
theory, conjecture, or surmise, rather than claiming to be in possession of objectively
verifiable facts, the statement is not actionable." (citing Milkovich, 497 U.S. at 1'J-21)
(other citations omitted)); Oracle USA, Inc. v. Rimini Street, Inc., No. 2:10—CV—oo1o6—
LRH—PAL, 2010 WL 4386957, at *3 (D. Nev. Oct. 29, 2010) ("[Defendant's] statements
-17-

 are predictions of the future that could not be proven true or false at the time the
statements were made. Therefore, these statements are not defamatory. Accordingly,
the court will grant [the defendant's] motion to dismiss as to these allegations of
defamation.").
Nor is Ms. Beavers's question: "Since when did they start allowing Doctors, to
throw a complete temper tantrum in front of Patients and slam things when they get
upset?" capable of any defamatory meaning. It is a "widely adopted defamation principle
that questions are questions." Abbas v. Foreign Policy Grp., LLC, X83 F.3d 1328,1339
(D.C. Cir. 2015). Thus, "inquiry itself, however embarrassing or unpleasant to its subject,
is not accusation." Chapin v. Knight-Ridder, Inc., 993 F.2d 108,1094 (4th Ch'• 1993)•
For all of these reasons, Ms. Beavers's Yelp! review is not capable of a defamatory
meaning as a matter of law, and the Plaintiff's defamation claim against her must be
dismissed as a consequence.
b. Ms. Beavers's statements were, at worst, merely annoying, offensive, or
embarrassing.
To provide substantial breathing room to promote free speech, unfettered
communication, and commentary on issues of public importance, Tennessee's courts
have additionally held that statements that are merely "`annoying, offensive or
embarrassing"' are categorically inactionable. Covenant Presbyterian Church, 2015 WL
566685, at *3 (quoting Brown, 393 S.W.3d at X08). "[T]he crux of free-speech rights is
that generally they can be exercised even if (and perhaps especially when) they cause
disruption and disharmony." Bennett v. Metro. Gov't of Nashville & Davidson Cty., No.
3:1y-CV-00630, 2019 WL 1572932, at X12 (M.D. Tenn. Apr. 11, 2019). Consequently,
[f]or a communication to be [defamatory], it must constitute a serious
-18-

 threat to the plaintiff's reputation. A [defamation] does not occur simply
because the subject of a publication finds the publication annoying,
offensive or embarrassing. The words must reasonably be construable as
holding the plaintiff up to public hatred, contempt or ridicule. They must
carry with them an element "of disgrace:'
Covenant Presbyterian Church, 2015 WL 5766685, at *3 (quoting Brown, 393 S.W.3d at
X08).
Here, the Plaintiff has not sued over implications. Even if it had, however, the only
statements underlying the Plaintiffs Complaint that could even plausibly imply any
statements offact—whether the Dr. Nandigam "thr[ew] a complete temper tantrum" and
whether he "slam[s] things when [he] gets] upset[,]" see Exhibit S —cannot be
considered defamatory as a matter of law. Considered in the most generous fashion
possible, the Yelp! review at issue, and each of its component parts, was—atmost—merely
"`annoying, offensive or embarrassing"'—a deficiency that renders the statements at issue
inactionable. Covenant Presbyterian Church, 2oi5 WL 5766685, at *3 (quoting Brown,
393 S.W.3d at X08). Certainly, none of the statements at issue can plausiblybe considered
"disgrace[ful]" or "`a serious threat to the plaintiffs reputation."' See Davis, 83 S.W.3d at
i28 (quoting Stones River Motors, 65i S.W.2d at ~i9). Consequently, notwithstanding
the Plaintiffs own characterizations, none of the statements in the Yelp! review at issue is
capable of conveying a defamatory meaning as a matter of law. See id.
ii. The statements in Ms. Beavers's Yelp! review are mere rhetorical hyperbole that
cannot reasonablybe read as objective assertions of false fact.
The statements in Ms. Beavers's Yelp! review also qualify as constitutionally
protected rhetorical hyperbole, rather than unprotected defamation. The doctrine of
rhetorical hyperbole exists to provide necessary breathing space for expression in a free
society. Ms. Beavers's innocuous Yelp! review easily falls within its protection.
-19-

 The U.S. Supreme Court has emphasized that heated and emotionally charged
rhetoric is entitled to free-speech protection under the doctrine of rhetorical hyperbole.
For example, in OId Dominion No. 496, Nat'l Assn of Letter Carriers u. Austin, 4i8 U.S.
264, 284 (1974), the Supreme Court ruled that labor union members did not defame nonunion members when they referred to them as "scabs." The Court characterized the use
of the term "scab" as "a lusty and imaginative expression of the contempt felt by union
members towards those who refuse to join." Id. at 286.
Similarly, in Greenbelt Co-Op. Publ'g Assn, Inc. u. Bresler, 398 U.S. 6,14 (i97o),
the U.S. Supreme Court ruled that a newspaper engaged in constitutionally protected
rhetorical hyperbole when it referred to a developer's contract with a city as "blackmail:'
The Court reasoned that "even the most careless reader must have perceived that the word
was no more than rhetorical hyperbole, a vigorous epithet used by those who considered
[the developer's] negotiating position extremely unreasonable." Id. at i4. Accordingly,
the Court determined that "[n]o reader could have thought that either the speakers at the
meetings or the newspaper articles reporting their words were charging [the plaintiff]
with the commission of a criminal offense." Id.
In keeping with the U.S. Supreme Court's guidance on the matter, the Sixth Circuit
has similarly held that TripAdvisor's use of the term "dirtiest" to describe a hotel in a
review was protected rhetorical hyperbole. See Seaton, 7z8 F.3d at 598. There, the court
explained, "`Dirtiest' is a loose, hyperbolic term because it is the superlative of an adjective
that conveys an inherently subjective concept," and thus, "no reader of TripAdvisor's list
would understand Grand Resort to be, objectively, the dirtiest hotel in all the Americas,
the North American continent, or even the United States." Id. (citing Greenbelt Coop.
Pub1'g Assn, 398 U.S. at i4). The Sixth Circuit also has held that lyrics in a rap song that
-20-

 referred to someone as "a `disgrace to the species"' constituted mere rhetorical hyperbole
that could not be deemed defamatory as a matter of law. Boladian v. UMGRecordings,
Inc., 123 F. App'x 165,170 (6th Cir. 2005) (unpublished).
Suffice it to say that extensive legal authority supports the proposition that the
statements in Ms. Beavers's Yelp! review referring to Dr. Nandigam as "totally
unprofessional and unethical" and having "throw[n] a complete temper tantrum in front
of Patients" amounted to plain rhetorical hyperbole—exactly the type of heated and
emotional expression protected by the First Amendment. See supra, pp. 1g-21. See also
David L. Hudson, Jr., Rhetorical Hyperbole Protects Free Speech, FREEDOM FORUM INST.
(Oct.

28,

2018),

https://www.freedomforuminstitute.org/2o18/1o/28/rhetorical-

hyperbole-protects-free-speech/. Accordingly, the statements at issue are inactionable as
defamation, and the Plaintiff's defamation claim should be dismissed as a result.
5. The Plaintiff's civil conspiracy claim fails as a matter of law for multiple
independent reasons.
Tennessee law does not recognize any freestanding tort for civil conspiracy.
Instead, to be actionable, a civil conspiracy requires an underlying predicate tort
committed pursuant to the conspiracy. See Watson's Carpet &Floor Coverings, Inc. v.
McCormick, 247 S.W.3d 16g, i8o (Tenn. Ct. App. 2007) (citations omitted). See also id.
("Since liability for civil conspiracy depends on the performance of some underlying
tortious act, the conspiracy is not independently actionable; rather, it is a means for
establishing vicarious liability for the underlying tort" (quoting Halberstam v. Welch, 705
F.2d 472, 479 (D.C. Cir.1983))).
Additionally, "[a]n essential element of a conspiracy claim is that the conspiring
parties intend to accomplish an unlawful purpose, or a lawful purpose by unlawful
-21-

 means:' Kincaid v. SouthTrust Bank, 221 S.W.3d 3z, 39 (Tenn. Ct. App. zoo6) (citing
Morgan v. Brush Wellman, Inc., 165 F. Supp.2d 704, 720 (E.D. Tenn. zoos)). As such,
the absence of any unlawful purpose or means is fatal to a civil conspiracy claim.
Separately, given their highly fact-dependent nature, civil conspiracy claims are
subject to heightened pleading standards and must be pleaded with some degree of
specificity. See McGee v. Best, l06 S.W.3d 48, 64 (Tenn. Ct. App. 2ooz) ("As to civil
conspiracy, this Court has stated that `[i]t is well-settled that conspiracy claims must be
pled with some degree of specificity and that vague and conclusory allegations
unsupported by material facts will not be sufficient to state such a claim[.]"' (quoting
Haynes v. Harris, No. olAol- 9810—CV—oo5i8, 1999 WL 317946, at *2 (Tenn. Ct. App.
1999)))•
For the reasons that follow, none of these requirements is satisfied. Accordingly,
the Plaintiffs civil conspiracy claim must be dismissed as a matter of law.
i. Because there was no underlying tortious act, the Plaintiffs civil conspiracy
claim fails as a matter of law.
Tennessee law does not recognize civil conspiracy as its own freestanding tort.
Instead, a civil conspiracy requires an underlying tortious act committed pursuant to the
conspiracy.

See Watson's Carpet, 247 S.W.3d at

180

(citations omitted).

As a

consequence, the absence of an underlying predicate tort is fatal to a civil conspiracy
claim. Id.
Here, for the reasons set forth above, see supra, pp. to—zl, the Plaintiff has not
stated a cognizable claim for either false light or defamation. As such, the Plaintiffs civil
conspiracy claim is not premised upon any underlying tort. Thus, the Plaintiffs civil
conspiracy claim is necessarily foreclosed—and must be dismissed—as a matter of law.
-22-

 ii. The Plaintiffs civil conspiracy claim is not premised upon anv unlawful
nuruose or lawful uurpose accomplished by unlawful means.
"An essential element of a conspiracy claim is that the conspiring parties intend to
accomplish an unlawful purpose, or a lawful purpose by unlawful means." Kincaid, zzr
S.W.3d at 39. Here, the only supposedly unlawful purpose that the Plaintiff s Complaint
alleges is "a civil conspiracy between the two Defendants which resulted in injury to
Plaintiff Nadigam's [sic] business" through actions "intentionally coordinated by the
Defendants in order to cause damage to Plaintiff s business reputation." Complaint, p. z,
44 r8—r9.
Critically, though, even talung the Plaintiffs allegations as true, a coordinated
effort to cause economic damages through criticism of a business is (ally protected First
Amendment activity that is not unlawful. See, e.g., Taubman Co. u. Webfeats, 319 F.3d
~~o, 9~8 (6th Cir. 2003) ("[A]lthough economic damage might be an intended effect of
Mishkoffs expression, the First Amendment protects critical commentary when there is
no confusion as to source, even when it involves the criticism of a business:'). As such,
the Plaintiffs Complaint fails to allege "an unlawful purpose, or a lawful purpose by
unlawful means" necessary to state a cognizable civil conspiracy claim. See Kincaid, zzr
S.W.3d 39. The Plaintiffs civil conspiracy claim must be dismissed accordingly.
iii. The Plaintiffs civil conspiracy claim is not pleaded with the requisite
specificity.
"As to civil conspiracy, [the Tennessee Court of Appeals] has stated that `[i]t is wellsettledthat conspiracy claims must be pled with some degree of specificity and that vague
and conclusory allegations unsupported by material facts will not be sufficient to state
such a claim."' McGee, rob S.W.3d at 64 (quoting Harris, r999 WL 317946 at *2)). Here,
-z3-

 the Plaintiff s conspiracy claim is based entirely upon conclusory legal allegations—rather
than material factual allegations—that are nowhere near sufficient to sustain the cause of
action. See Kincaid, 221 S.W.3d at 38 ("Conclusory allegations, however, unsupported by
material facts will not be sufficient to state such a claim.').
Specifically, the Plaintiffs civil conspiracy claim is premised upon the following
bare allegations:
9.
Upon information and belief, Defendant Yount was an acquaintance
of Defendant Beavers who was specifically recruited by Defendant Beavers
for the purpose of posting false and misleading statements on Google
concerning Plaintiff Nandigam's medical office.
18. The actions of Defendant Beavers and Defendant Yount constitute a
civil conspiracy between the two Defendants which resulted in injury to
Plaintiff Nandigam's business.
i9.
The actions of Defendant Beavers and Defendant Yount were
intentionally coordinated by the Defendants in order to cause damage to
Plaintiffs business reputation.
zo. Due to the acts of Defendant Beavers and Defendant Yount, Plaintiff
Nandigam suffers from damage to its business reputation, potential loss of
patients and business revenue, loss of income, Internet "cleanup" expenses,
and legal expenses.
Complaint, pp. 2-3.
These allegations are precisely the sort of "vague and conclusory allegations
unsupported by material facts" that are manifestly insufficient to state a civil conspiracy
claim and require dismissal. See McGee, to6 S.W.3d at 64. The Plaintiffs lack of
specificity is also particularly prejudicial in the instant case, where the Plaintiff has sued
the Defendants not only over their own statements, but also over unspecified statements
made by one another. This failure utterly deprives the Defendants of fair notice of what
they must defend against. The Plaintiffs civil conspiracy claim fails and compels
-24-

 dismissal as a matter of law due to this fatal defect as well. See id.
B. THE PLAINTIFF'S COMPLAINT SHOULD BE DISMISSED PURSUANT TO THE TENNESSEE
PUBLIC PARTICIPATION ACT.

i. Applicability of the Tennessee Public Participation Act
The Tennessee Public Participation Act provides that "[i]f a legal action is filed in
response to a party's exercise of the right of free speech, right to petition, or right of
association, that party may petition the court to dismiss the legal action" subject to the
Act's specialized provisions. See TENN. CODE ANN. § 2o-i~-lo4(a) s

Pursuant to

Tennessee Code Annotated § 2o-I.~-I.o3(3), "`[e]xercise of the right of free speech' means
a communication made in connection with a matter of public concern or religious
expression that falls within the protection of the United States Constitution or the
Tennessee Constitution." In turn, Tennessee Code Annotated § 2o-i~-Io3(6) provides
that:
"Matter of public concern" includes an issue related to:
(A) Health or safety;
(B) Environmental, economic, or community well-being;
(C) The government;
(D) A public official or public figure;
(E) A good, product, or service in the marketplace;
(F) A literary, musical, artistic, political, theatrical, or audiovisual work;
or
(G) Any other matter deemed by a court to involve a matter of
public concern[.]
a The petition "may be filed within sixty (60) calendar days from the date of service of the legal action or, in
the court's discretion, at any later time that the court deems proper." See TFS7T7. ConEAxrr. § 2o-t~-to4(b).
As a consequence, having been filed within sixty (60) days of service, Ms. Beavers's Tennessee Public
Participation Act petition to dismiss this action is timely filed. See id.
-25-

 (emphases added).
Here, Ms. Beavers's statements qualify as "a communication made in connection
with a matter of public concern" under several independent criteria. See id. See also
Complaint, p. i, ¶¶ i & y; Exhibit B. Consequently, for purposes of the Public
Participation Act, this action qualifies as one filed in response to Ms. Beavers's exercise of
the right of free speech in several independent regards. See TENN. CODE ANN. §§ 20-i~lo4(a); 2o- i7-io3(3); 2o-17-io3(6).
2.

Grounds for Granting Ms. Beavers' TPPA Petition
The Tennessee Public Participation Act provides that "[t]he petitioning party has

the burden of making a prima facie case that a legal action against the petitioning party is
based on, relates to, or is in response to that party's exercise of the right to free speech,
right to petition, or right of association."

TENN.

CODE ANN. § 20-1~-1o5(a). As noted

above, the Yelp! review over which Ms. Beavers has been sued involves, at minimum,
services in the marketplace, and that basisalone—along with several others—qualifies this
action as one filed in response to a party~s "exercise of the right of free speech" within the
meaning of the Tennessee Public ParticipationAct. See TENN. CoDEANN. §§ 2o-i~-1o4(a);
2o-i~-lo3(3); 2o-1~-io3(6)(E). See also TENN. CoDEANN. § 2o-i~-io3(6)(A), (B), (D), &
(G). Thus, Ms. Beavers having met her initial burden of production, see TENN. CoDEANN.
§ 2o-i~-io5(a), this Court "shall dismiss the legal action unless the responding party
establishes a prima facie case for each essential element of the claim in the legal action."
TENN. CODE ANN. § 20-1'J-105(h).

Separately, "[n]otwithstanding subsection (b), the court shall dismiss the legal
action if the petitioning party establishes a valid defense to the claims in the legal action."
-26-

 TENN. CODE ANN. § 2o-i~-lo5(c).

Pursuant to this section, Ms. Beavers expressly

incorporates into this Petition each defense set forth above in support of her Motion to
Dismiss. In further support of her defenses to this action, Ms. Beavers has appended a
sworn Affidavit as Exhibit A to provide further factual support for the defenses raised in
her Motion to Dismiss; to refute the factual allegations underlying the Plaintiffs claims;
and to establish the following additional defenses to this action:
(i)

The Yelp! review at issue was true or substantially true; and

(2)

The Yelp! review at issue was not posted with actual malice or negligence in

failing to ascertain the truth.
See TENN. CODEANN. § 20-1~-1o5(d) ("The court may base its decision on supporting and
opposing sworn affidavits stating admissible evidence upon which the liability or defense
is based and on other admissible evidence presented by the parties:').
"Truth is an absolute defense to a claim for defamation when the otherwise
defamatory meaning of the words used turns out to be true."4 Sullivan u. Wilson Cty.,
No. M2oii-oo2i~-COA-R3CV, 2oi2 WL i8682g2, at *i2 (Tenn. Ct. App. May 22, 2oi2),
appeal denied (Tenn. Sept. i8, 2oi2). Here, Ms. Beavers maintains that everything
written in her Yelp! review is true, and she relies on that absolute defense in support of
her Tennessee Public Participation Act Petition. Of note, substantially true statements
are privileged pursuant to the substantial truth doctrine as well, which Ms. Beavers
similarly relies upon as a defense to this action. See Isbell, 2000 WL i8i~z52, at *5. Ms.
Beavers's Yelp! review additionally was not posted with actual malice or negligence. See

a Tennessee law provides that establishing truth is the defendant's burden. See Memphis Publ'g Co. v.
Nichols, 569 S.W.2d 4i2, 420 (Tenn. i9~8). Although Ms. Beavers has no difficulty establishing truth as a
defense to this action under the circumstances of this case, Ms. Beavers nonetheless preserves and
maintains the claim that the presumption of falsity doctrine recognized under Tennessee law should be
overruled.
-2'J-

 Exhibit A. Instead, it was premised upon her own good-faith recollection and personal
observations of Dr. Nandigam's conduct during her father's visit. See id.
V. COSTS, ATTORNEY'S FEES, &SANCTIONS
Pursuant to Tennessee Code Annotated § 2o-1~-io~(a):
If the court dismisses a legal action pursuant to a petition filed under this
chapter, the court shall award to the petitioning party:
(i) Court costs, reasonable attorney's fees, discretionary costs, and other
expenses incurred in filing and prevailing upon the petition; and
(2) Any additional

relief, including sanctions, that the court determines
necessary to deter repetition of the conduct by the party who brought
the legal action or by others similarly situated.

The Plaintiffs prosecution of this facially frivolous action merits costs, fees, and
severe sanctions. The transparent purpose of this lawsuit is to silence, censor, intimidate,
and retaliate against Ms. Beavers and her family because Ms. Beavers had the audacity to
post a truthful, negative Yelp! review of Dr. Nandigam's abusive behavior, which this
litigation itself evidences in spades. No litigant or attorney acting in good faith could
reasonably believe that the Plaintiff s claims in this lawsuit had merit. Both mandatory
costs and attorney's fees and severe discretionary sanctions to deter further misconduct
should be awarded accordingly.
VI. CONCLUSION
For the foregoing reasons, Defendant Beavers's Motion and Tennessee Public
Participation Act Petition to dismiss this action should be GRANTED; the Plaintiff
should be ordered to pay Defendant Beavers's court costs, reasonable attorney's fees, and
discretionary costs pursuant to Tennessee Code Annotated §§ 2o-i~-io~(a)(i) and § 20i2-ilo(c); and this Court should assess sanctions against the Plaintiff as necessaryto deter
repetition of its conduct pursuant to Tennessee Code Annotated § 2o-i~-io~(a)(2).
-28-

 Respectfully submitte
By:
Daniel A. Horwitz, BPR #032176
1803 Broadway, Suite #531
Nashville, TN 37203
daniel.a.horwitz@gmail.com
(615) 739-2888
Sarah L. Martin, BPR #037707
l02o Stainback Avenue
Nashville, TN 37207
Sarahmartinlo26@gmail.com
(615) 335-3118
Counselfor Defendant Kelly Beavers

-29-

 CERTIFICATE OF SERVICE
I hereby certify that on this 23rd day of December, 2o1g, a copy of the foregoing
was served via UPS mail, postage prepaid, and/or e-mailed to the following parties:
Angello L. Huong
435 Park Avenue, Professional Building
Lebanon, Tennessee 37087
Bennett Hirschhorn
80o South Gay Street, Suite 700
Knoxville, TN 37929
Counselfor Plaintiff
Devin Yount
3025 Cairns Dr.
Mt. Juliet, TN 37122
Co-Defendant
By:
Daniel A. Horwitz, Esq.

-30-

 FSLED

ZIISDEC 27 PH 2= 32

DEBBIE M033
CIRCUIT COURT CLERK
WILSON COUNTY. TN

1 HA

Exh

a

IN THE CIRCUIT COURT OF WILSQN COUNT, TENNESSF.F,
NANDIGAM NEUROLOGY, PLC,
Plaintiff,
U.

KELLY BEAVERS
and
DEVIN YOUNT,
Defendants.

1.

My name is Kelly Beavers, Ihave personal know.edge of the facts affirmed

in this Affidavit, I am competent to testify regarding them, and I swear under penalty of
perjury that they are true.
2.

I am a named Defendant in Wilson County Circuit Court Case No.: 2019-cv-

3.

I am the person who posted theI'elp! review that is referenced in the

6G3.

Plaintiff s Complaint. See Complaint, p. 1, ¶ ~. A true and exa, copy of the Yelp! review
I posted is attached to my Tennessee Public Partici~iation Act ' etition as Exhibit B.
4.

DevinYount had nothing whatsoev~~ to do with he review I posted.

g.

After my 6y-year-old father—who c~~s experien ing dizziness and memory

loss—was referred to Dr. Kaveer Nandigam, I brqught my fath r to Nandigam Neurology
for a consultation in early November 2019.
6.

ii

Due to myfather's condition, he has diffiiculty r

-1-

embering what occurred

 0
n.

during his medical appointments, so Iroutinely ~ttendhis me 'cat appointments. Once
in a private room and away from other patients, I also record is appointments so that I
can later remind him what doctors and other medicalprofessi~nals told him and ensure
that he is following medical advice and receiving p oper care.
y.

When Dr. Nandigam saw that ~ was recor.~'~g my father's medical

appointment, Dr. Nadigam began yelling, slammed his clipooard, and demanded my
phone.
8.

Dr. Nadigam's behavior scared m~ and deeply upset my father. In my

opinion, his behavior was unprofessional and incompatible

'th, among other things,

doctors' ethical responsibility to do no harm.
9.

Dr. Nandigam demanded that I delete the recor. ing of my father's medical

appointment before leaving his office.
io.

Atthoughhavingreeordingsofmyfather'sappoi~tmentsisimportanttohis

health, because I was shocked and frightened by Dr. Nandiga3n's behavior, I deleted the
recording as Dr. Nandigam demanded. There

er, even hough the visit was not

complete, my father and I left.
ii.

I ultimately posted a critical but truthful re ew on Yelp! about my

experience with Dr. Nandigam. The Plaintiff is cu ently suing me for that review.
12.

T`he Yelp! review I posted was bas~d upon m personal. opinion of Dr.

Nandigam's behavior, My opinion was based o the facts t ~ at I disclosed within the
review.
13.

I genuinely intend to report Dr. Nandigam to the tate ofTennessee Medical

Review Board and to file a formal complaint regarding his behavior.
i4•

I genuinely do not know how, behaving as he

, Dr. Nandigam is still in

 0

business.
is.

In my opinion, Dr. Nandigam does n t belong in he medical field.

i6.

I posted theYelp! review at issue in fi„fiherance of my right of flee speech

under the Tennessee and United States Constitutions in co nection with a matter of
public concern.
i~.

All of the statements in my Yelp! review we-e based on my truthful

recollection of Dr, Nandigam's behavior.
i$.

I do not and did nothave any reason o believe th= t any of the statements in

my Yelp! review were false.
i9.

T did not communicate any of the information in my Yelp! review with

reckless disregard of its falsity or with. negligence ' failing to . scertain the truth.
zo.

Instead, I posted the review based o

y own pe sonal observations during

my father's medial appointment with Dr. Kaveer ~iindigam of andigam Neurology.
21.

I~o other person requested that I post the Yelp! review, nor did I work with

or in conjunction with anyone in posting the Yelp! review. I did not conspire to post the
Yelp! review or any other review with Devin Yount or any othe~ person.
22,

~e other Defendant in Wilson Coun Circuit Co art Case No.: 2oi9-cv-663,

Devin Yount, is the son of a friend of mine.
z3.

It is my understanding that Mr. ~o

t posted a review on Google after

overhearing a conversation between his mother and I about my father's appointmentwith
Dr. Nandigam
24.

he statements in 1VIr. Yount'S Google review we e true.

25.

I did not ask or encourage Mr. Yount to post any review of Dr. Nandigam.

z6.

I did not conspire with Mr. Yount to arm the Pl 'ntiff in any way.
-3-

 The Plaintiffs allegations regardin~ an alleged conspiracy between Mr.
l
Yount and me ke unequivocally false.
2y.

Further affiant sayethnot.

Pursuan to Tennessee Rule of Civil Proce ure 72, I • eclare under penalty of
perjury that the foregoing is true and correct.

D'at'e Executed
f
i

 i

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5

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Cn C~

O .y ~
Z n W
o~m
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y

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~ n cn
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~ m
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Exhibit B

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'D
3
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N

 11;.56
~ App Store

Reviews
Kelly B.
iv 236 ®31 0

[~~)(~~a ~`~ (%s) ~'~

1 month ago

This "Dr's" behavior today was totally
unprofessional and unethical to put it mildly. I will
be reporting him to the State of TN Medical Review
Board and be filing a formal complaint. How this
guy is in business is beyond me. Since when did
they start allowing Doctors, to throw a complete
temper tantrum in front of Patients and slam things
when they get upset? He does not belong in the
medical field at all.
Useful 31

Cool6

;~ Funny 4

Teresa G. and 32 others voted for this review

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