IN THE UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF ALABAMA

))CONFEDERATE MOTORS, INC. , )))Plaintiff, )))v. )

ivil Action Number) 2:09-cv-949-JEO)WES SILER,

ET AL

))))Defendants. )

PLAINTIFF’S RESPONSE TO DEFENDANTS’ MOTION TO DISMISSCOMES NOW

the Plaintiff, Confederate Motors, Inc., by and through undersignedcounsel, and requests this Honorable Court to deny the motion to dismiss or, in the alternative, toconvert the Defendants’ motion to dismiss to a motion for summary judgment and allow relief under Fed. R. Civ. P. Rule 56(f) for the Plaintiff to conduct discovery. As grounds for thisrequest the Plaintiff offers the following:

INTRODUCTION

The plaintiff, Confederate Motors, Inc. (hereinafter ‘CMI’) has filed a complaint againstthe defendants describing claims of Libel

per se

, Tortious Interference with Business Relations,Gross Negligence and Libel

per quod

. These claims arise from an article written by defendant

FILED

2009 Jul-28 PM 04:22U.S. DISTRICT COURTN.D. OF ALABAMA

Case 2:09-cv-00949-JEO Document 18 Filed 07/28/09 Page 1 of 12

Wes Siler, and published on the internet website of defendants Jalopnik.com and Gawker MediaLLC. On June 30, 2009 three of the Defendants in the case at bar filed a motion to dismisspursuant to Fed. R. Civ. P. Rule 12(b)(6).The plaintiff has clearly met the minimum standard for pleading under Fed. R. Civ. P.Rule 8. Moreover, the Defendant has failed to meet its burden for dismissal under Fed. R. Civ.P. Rule 12(b)(6). Additionally, the defendant tries to buttress its weak position by presentingevidence outside of the pleadings.The defendant asks this Honorable Court to allow the interjection of additional evidencein its motion under the guise that this Court should take “judicial notice” of it. The defendantalso feebly attempts to argue the affirmative defense that the statements in the defamatory articlewritten and published by the defendants are true. The defendants do not deny that the article waswritten and published by the defendants as more specifically stated in the complaint. Thus thecrux of the issue becomes whether the defendants interfered with the business relations of theplaintiff and whether the article is defamatory or not, both matters of fact not law.

Plaintiff Meets the Standard for a Complaint Under Fed. R. Civ. P. Rule 8

Plaintiff’s Complaint meets the “notice pleading” requirements of Fed. R. Civ. P. Rule 8whereby pleadings must contain only short and plain statements sufficient to put the defendantson notice of the claims against them. See, Sams v. United Food and Commercial WorkersInternational Union, 866 F.2d 1380, 1384 (11

Cir. 1989) (complaint need not specify in detailprecise theory of recovery, but must put opponents on notice of claims or defenses asserted);Little v. City of North Miami, 805 F.2d 962, 969 (11

Cir. 1986) (complaint which stated thatthe defendant degraded the plaintiff was adequate to plead a claim of injury to business

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reputation). Courts have liberally interpreted Fed. R. Civ. P. Rule 8 to require that a plaintiff begiven an opportunity to proceed even if his or her claim is “in artfully stated”. Dussouy v. Gulf Coast Inv. Corp., 660 F.2d 594, 604 (5

Cir. 1981).The plaintiff in its complaint specifically sets out a short and plain statement describingeach of its claims and theories of recovery. This is all that is required under Rule 8. Thedefendants’ arguments to the contrary, including its attempts to introduce additional evidenceoutside the complaint, are more appropriate for a Fed. R. Civ. P. Rule 56 Summary JudgmentMotion.

Defendant Fails to Meet the Burden for Dismissal Under Fed. R. Civ. P. Rule 12(b)(6)

The dismissal of a lawsuit pursuant to Fed. R. Civ. P. Rule 12(b)(6) shall

only

be grantedif the plaintiff can prove no set of facts consistent with the allegations which can entitle plaintiff to relief. Hishon v. King & Spaulding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232 (1984); Conley v.Gibson, 355 U.S. 41, 78 S. Ct. 101-102 (1957); Stone Mountain Game Ranch, Inc. v. Hunt, 746F.2d 761, 763, n. 4 (11th Cir. 1984); Cook & Nichol, Inc. v. Plimsoll Club, 451 F.2d 505, 506(5

Cir. 1971). Defendants have not offered any evidence from the face of the complaint that thefacts as alleged in plaintiff’s Complaint would not entitle plaintiff to relief and would not rise tothe level of a short and plain statement under Fed. R. Civ. P. Rule 8. Defendants do attempt toargue that additional evidence would support an affirmative defense in the instant case. Thisevidence should either be stricken from the record by the court or should serve to convert thedefendants’ motion to a Motion for Summary Judgment under Fed. R. Civ. P. Rule 56.

Pages 9 – 24 of the Defendants’ motion are arguments of law which are clearly improperin a Fed. R. Civ. P. Rule 12(b)(6) motion. These arguments address the merits of the claims

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