Almanzar v. Kebe

USCA11 Case: 22-12512 Date Filed: 08/29/2022 Page: 1 of 45
No. 22-12512
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
BELCALIS MARLENIS ALMANZAR,
Plaintiff-Appellee,
v.
LATASHA TRANSRINA KEBE and KEBE STUDIOS, LLC,
Defendants-Appellants.
Appeal from the United States District Court

for the Northern District of Georgia, Atlanta Division
Case No. 1:19-cv-01301-WMR
OPENING BRIEF OF APPELLANTS
OLGA IZMAYLOVA
SADEER SABBAK
SABBAK & IZMAYLOVA, P.C.
1875 Old Alabama Road
Suite 510
Roswell, GA 30076
p. (404) 793-7773
f. (770) 797-5887
olga@silawatl.com
sabbak@silawatl.com
Counsel for Defendants-Appellants

Latasha Kebe and Kebe Studios, LLC
Almanzar v. Kebe, et al., No. 22-12512
APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
In accordance with Federal Rule of Appellate Procedure 26.1 and Eleventh
Circuit Rule 26.1, Appellants provide the following certificate of interested persons
and corporate disclosure statement.
The undersigned counsel of record certifies that the following is a full and
complete list of all trial judges, attorneys, persons, associations of persons, firms,
partnerships, or corporations that have an interest in the outcome of the particular
case or appeal, including subsidiaries, conglomerates, affiliates, parent corporations,
any publicly held corporation that owns 10% or more of the party’s stock, and other
identifiable legal entities related to a party:
Adelman, Gary – trial counsel for Plaintiff/Appellee Belcalis Almanzar
Almanzar, Belcalis Marlenis – Plaintiff/Appellee
Izmaylova, Olga – counsel for Defendants/Appellants
Kebe, Cheickna – co-owner of Kebe Studios, LLC
Kebe, Latasha Transrina – Defendant/Appellant
Kebe Studios, LLC – Defendant/Appellant
Matz, Sarah - trial counsel for Plaintiff/Appellee Belcalis Almanzar
Moore, Lisa - trial counsel for Plaintiff/Appellee Belcalis Almanzar
Pequignot, Andrew - trial counsel for Plaintiff/Appellee Belcalis Almanzar
C-1 of 2
Almanzar v. Kebe, et al., No. 22-12512
Ray, William M. – district court judge
Sabbak, Sadeer – counsel for Defendants/Appellants
The undersigned counsel further certifies that no publicly traded company or
corporation has an interest in the outcome of the case or appeal.
Dated: August 29, 2022 /s/Olga Izmaylova

Olga Izmaylova
Counsel for Defendants/Appellants
Latasha Kebe and Kebe Studios, LLC
C-2 of 2
STATEMENT REGARDING ORAL ARGUMENT
Defendants-Appellants, Latasha Kebe and Kebe Studios, LLC, believe that
oral argument in this matter is unnecessary because the facts and legal arguments
are adequately presented in the briefs and record, and the decisional process would
not be significantly aided by oral argument.
Should oral argument be deemed appropriate, however, Defendants-
Appellants do not waive their participation.
i
TABLE OF CONTENTS
Certificate of Interested Persons and Corporate Disclosure Statement . . . . . . . . C-1
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii
Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1
1. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .2
2. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4
3. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
I. The Evidence Was Not Sufficient to Support a

Verdict for Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
A. There Was Not a Clear and Convincing Showing of

Actual Malice to Support a Verdict for Plaintiff
on the Defamation Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
B. Plaintiff Failed to Allege a Nondefamatory Statement

for the False Light Invasion of Privacy Claim to
Survive as a Separate Action. . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
C. The Evidence Was Insufficient to Support a

Verdict for Plaintiff on the Intentional Infliction of
Emotional Distress Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .29
ii
II. The District Court Erroneously Excluded Evidence of

Plaintiff’s Character and Specific Instances of
Plaintiff’s Conduct . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .32
III. The Verdict Was Not Entered Upon a Proper Basis,

Therefore, the Verdict Cannot Stand . . . . . . . . . . . . . . . . . . . . . . . . .34
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 37
iii
TABLE OF CITATIONS
CASES
Abdul-Malik v. AirTran Airways, Inc.,

678 S.E.2d 555 (Ga. Ct. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 32
Bollea v. World Championship Wrestling, Inc.,

610 S.E.2d 92 (Ga. Ct. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24
Cottrell v. Smith,
788 S.E.2d 772 (Ga. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23, 27
EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am.,

845 F.3d 1099 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
Goldsmith v. Bagby Elevator Co., Inc.,

513 F.3d 1261 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 33, 34
*Howerton v. Harbin Clinic, LLC,

776 S.E.2d 288 (Ga. Ct. App. 2015) . . . . . . . . . . . . . . . . . . . . . . . . 30, 31, 32
*Hunt v. Liberty Lobby,

720 F.2d 631 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 20, 23, 24, 25, 29
Jones v. Fayette Family Dental Care, Inc.,

718 S.E.2d 88 (Ga. Ct. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 30
Lively v. McDaniel,
522 S.E.2d 711 (Ga. Ct. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 30
Monge v. Madison Cnty. Record, Inc.,

802 F. Supp. 2d 1327 (N.D. Ga. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
N.Y. Times Co. v. Connor,

365 F.2d 567 (5th Cir. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23, 24
N.Y. Times Co. v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .23
iv
*Rosanova v. Playboy Enters., Inc.,

411 F. Supp. 440 (S.D. Ga. 1976) . . . . . . . . . . . . . . . . . . . . . . . 24, 26, 28, 29
*Schafer v. Time, Inc.,

142 F.3d 1361 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 32
*Smith v. Stewart,
660 S.E.2d 822 (Ga. Ct. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29, 34
*St. Amant v. Thompson,

390 U.S. 727 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24, 28
Troncalli v. Jones,
514 S.E.2d 478 (Ga. Ct. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31, 34
Vandenburg v. Newsweek, Inc.,

507 F.2d 1024 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
*Wolff v. Middlebrooks,
568 S.E.2d 88 (Ga. Ct. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . 30, 34, 35
FEDERAL STATUTES
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
v
STATEMENT OF JURISDICTION
The district court had jurisdiction over the subject matter of this action based
on diversity of citizenship pursuant to 28 U.S.C. § 1332. After a jury returned a
verdict for Plaintiff, the district court entered an amended final judgment on July 19,
2022. R2411. Defendants filed a timely notice of appeal on July 29, 2022. R242. This
Court has jurisdiction of appeals from all final decisions of the district court pursuant
to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the evidence was sufficient to support a verdict for Plaintiff.
2. Whether the district court committed evidentiary errors.
3. Whether a general verdict for Plaintiff against the Defendants was entered
upon a proper basis.
STATEMENT OF THE CASE
The Appellants were the Defendants in the district court and, collectively, will
be referred to as the Defendants. Latasha Kebe will be referred to as Ms. Kebe and
Kebe Studios, LLC will be referred to as Kebe Studios. The Appellee, Belcalis
Almanzar, will be referred to as Plaintiff.
1
This brief uses the following abbreviations: “R__ at ___” refers to the case record
and lists the document number on the district court docket sheet, followed by a page
number of the document, if applicable. “P__” refers to exhibits Plaintiff moved into
evidence at trial. “D__” refers to exhibits Defendants moved into evidence at trial.
1
1. Course of Proceedings
On March 21, 2019, Plaintiff filed a complaint in this action, naming Ms.
Kebe and Starmarie Ebony Jones (hereinafter referred to as “Jones”) as co-
defendants. R1. The complaint consisted of four counts: the first three counts alleged
defamation and the fourth count alleged false light invasion of privacy. Id. Ms. Kebe
timely filed her answer, raising truth and privilege as two of her affirmative defenses.
R5. Ms. Kebe also filed a counterclaim for slander per se, punitive damages, and
litigation expenses. Id.
On June 12, 2019, Plaintiff filed her first amended complaint, adding three
more counts, alleging intentional infliction of emotional distress, punitive damages,
and litigation expenses. R11. Ms. Kebe timely filed an answer, again raising truth
and privilege as two of her affirmative defenses. R12. Ms. Kebe also amended her
counterclaims, adding assault and intentional infliction of emotional distress. Id. The
parties filed a joint preliminary report and discovery plan on August 26, 2019. R17.
After several extensions from the district court, the discovery period was
scheduled to end on November 29, 2020. R57. On the last day of the discovery
period, Plaintiff filed her second amended complaint, removing Jones and adding
Kebe Studios as a co-defendant. R69. On April 8, 2021, the district court heard oral
argument from counsel regarding summary judgment and took the matter under
advisement. R145. On July 8, 2021, the district court entered an order, granting
2
summary judgment as to Ms. Kebe’s counterclaims and denying summary judgment
as to Plaintiff’s claims. R150.
On October 14, 2021, the parties filed a proposed pretrial order. R159. Over
the next month, the parties filed their motions in limine, R163-R165, and their
respective responses to said motions, R166-R168. The district court held a pretrial
conference on November 9, 2021. R177, R181. Jury trial began on January 10, 2022.
R189.
On January 24, 2022, the jury returned a general verdict for Plaintiff, finding
the Defendants jointly and severally liable for defamation, invasion of privacy (false
light), and intentional infliction of emotional distress, and awarding Plaintiff
$1,000,000.00 for pain and suffering and reputational injury, and $250,000.00 for
medical expenses. R198. The following day, the jury returned their second verdict
for Plaintiff, finding the Defendants liable for punitive damages ($1,000,000.00
against Ms. Kebe and $500,000.00 against Kebe Studios) and $1,338,753.47 in
litigation expenses. R204.
Due to serious concerns that the evidence did not support a $250,000.00 award
for medical expenses, the parties stipulated, without waiving any appellate rights, to
reduce the medical expenses award to $25,000.00 and the district court entered its
final judgment on February 17, 2022. R206. Defendants filed a timely notice of
appeal on March 17, 2022. R228. All parties consented to a permanent injunction
3
and, on April 4, 2022, the district court entered a stipulated order granting permanent
injunction. R233.
On July 15, 2022, this Court filed an order dismissing appeal number 22-
10871 for lack of jurisdiction. R238. On July 19, 2022, in compliance with this
Court’s dismissal order, the district court entered an amended final judgment. R241.
Defendants timely filed a notice of appeal on July 29, 2022. R242.
2. Statement of the Facts
Plaintiff is a Grammy award-winning musical artist and songwriter
professionally known as “Cardi B.” R159-5 at 1. Ms. Kebe is an entertainment and
celebrity news blogger whose brand is unWinewithTashaK. R79 at 23. Ms. Kebe is
the owner, producer, and host of a YouTube Channel called unWinewithTashaK. Id.
Ms. Kebe and her husband, Cheickna Kebe, are the only two members of Kebe
Studios and they each own fifty percent of its membership units. R159-5 at 2.
This controversy began in September of 2018, when Ms. Kebe published a
video on her YouTube channel, in which Ms. Kebe interviewed Jones regarding her
past friendship with Plaintiff. R69 at 7. Over the following three years, Ms. Kebe
and Plaintiff went back and forth with each other via their social media accounts,
and Ms. Kebe published several additional videos discussing Plaintiff. R159-5 at 8.
Since September of 2018, Plaintiff sent Ms. Kebe three separate requests to remove
certain videos and retract certain statements regarding Plaintiff. R159-5 at 5-7. Ms.
4
Kebe did not remove any of the requested videos or issue any retractions or
repudiations. R159-5 at 8.
Plaintiff sued the Defendants for slander and libel, alleging that they defamed
Plaintiff by publishing the following six statements: (1) Plaintiff was a prostitute;
(2) Plaintiff was a drug user, specifically cocaine; (3) Plaintiff has herpes; (4)
Plaintiff has HPV; (5) Plaintiff engaged in a debasing act with a beer bottle; and (6)
Plaintiff committed infidelity. R69 at 18-19. Plaintiff also sued for false light
invasion of privacy, based on the same six statements as her defamation claims, and
intentional infliction of emotional distress. R69 at 30-38. Plaintiff alleged that
Defendants caused her embarrassment, humiliation, mental anguish, emotional
distress, and impairment to her name, character, and reputation, for which Plaintiff
sought general and special damages. R69 at 23, 26, 29, 33, 37, and 40. Plaintiff also
sought punitive damages and litigation expenses. R69 at 38-39. Plaintiff is a public
figure. R150 at 16.
At the trial, Ms. Kebe testified that the mission of unWinewithTashaK is to
investigate stories that sources bring to her, or that are already on the internet, and
determine whether those stories are real or fake. R2122 at 75:5-10. Ms. Kebe
explained that when she says it is okay to “put out fake news,” she means that
sometimes she will highlight a story on her YouTube channel specifically to inform
2
R212 is a Transcript of Jury Trial, Volume V of X.
5
her viewers that, based on Ms. Kebe’s investigation into that story, she has
determined that the story is fake, and if her viewers come across said story, they
should disregard it. R212 at 79:14-80:6.
Ms. Kebe first heard about Jones when a video (describing Jones’ relationship
with Plaintiff) published on Jones’ Instagram page went viral. R212 at 100:24-
101:15. Jones’ story was super viral and Ms. Kebe, like most other entertainment
bloggers, quickly went after that story. R212 at 101:7-9. Ms. Kebe reached out to
Jones and Jones agreed to record an interview for Ms. Kebe’s YouTube channel.
R212 at 102:20-103:11. On September 19, 2018, Ms. Kebe published the Jones
interview on her YouTube channel, titling it “Exclusive: Cardi B’s Ex-friend Alleges
Cardi B Kept a Huge Box filled with Monistat and Reveals More.” R212 at 104:14-
19; see also D67. The video of the Jones interview was admitted into evidence as
Defendant’s Exhibit 5 and published to the jury in its entirety. R212 at 105:12-17.
In the interview, Jones explained that she met Plaintiff in New York, when
Jones was working at a strip club there. See D5. Plaintiff asked Jones to get Plaintiff
a job at that strip club and, in exchange, Plaintiff agreed to let Jones live in Plaintiff’s
apartment with her. See id. Throughout the interview, Jones detailed her experience
as Plaintiff’s roommate and shared stories about what occurred inside the strip club
while they were working, as well as things they did after work. See id. Jones even
6
shared a story about the night she met up with Plaintiff and a man, whom Plaintiff
invited because Plaintiff agreed to have sex with him for money. See id.
Jones recalled that Plaintiff used drugs, such as molly and cocaine, and that
Plaintiff got cold sores on her lips. See id. Jones used the words “cold sores” and
“herpes” interchangeably while talking about Plaintiff, so Ms. Kebe made it a point
to clarify that Jones was not referring to genital herpes when Jones used the word
“herpes.” See id. Jones confirmed that she was talking about Plaintiff’s cold sores,
which are one form of the herpes virus. See id. Even during Ms. Kebe’s cross-
examination, when asked whether she knew that Jones said Plaintiff had herpes, Ms.
Kebe answered, “[c]old sores to be exact.” R2093 at 90:15-17. The jury also watched
a video Ms. Kebe published on her YouTube channel on December 18, 2018. R2144
at 27:5-11. In that video, Ms. Kebe projected the definition of cold sores onto the
screen for the viewers and that definition stated that cold sores are an “infection with
the herpes simplex virus around the border of the lips.” See D8.
When Plaintiff found out that Ms. Kebe interviewed Jones, Plaintiff initially
took to her social media and denied knowing Jones at all, but shortly thereafter,
Plaintiff posted a video on her social media, where Plaintiff admitted that she knew
Jones. R209 at 143:5-7. At trial, Plaintiff testified that she reached out to Ms. Kebe
3
R209 is a Transcript of Jury Trial, Volume II of X.
4
R214 is a Transcript of Jury Trial, Volume VII of X.
7
via social media to notify her that Jones was lying about living with Plaintiff. R2115
at 85:18-25. In response, Ms. Kebe offered Plaintiff the opportunity to come on Ms.
Kebe’s platform and tell Plaintiff’s side of the story, but Plaintiff declined an
interview with Ms. Kebe. R211 at 86:24-87:1. However, Plaintiff did provide Ms.
Kebe the names of some individuals, who worked with Plaintiff and Jones during
the time-period Jones discussed in her interview. R209 at 146:5-7. Ms. Kebe
honored Plaintiff’s request and had conversations with those individuals to see
whether they would corroborate Jones’ story. Id.
After Ms. Kebe spoke with the former co-workers, Ms. Kebe released an
update video on her YouTube channel on September 21, 2018. R214 at 13:16-18.
The title of the update video is “Actual Proof Cardi B Knew Her Ex-Roommate,
Drake, Funky Dineva vs Tamar, Beyonce Black Majic” and Ms. Kebe explained that
this video contains multiple stories, so Plaintiff was not the sole topic of discussion.
R214 at 13:6-15. In the video, Ms. Kebe revealed that Plaintiff’s former co-workers
corroborated some of the statements Jones made during her interview. See D11.
Specifically, Ms. Kebe was able to confirm that the other co-workers did not
like Jones and that Plaintiff was the only one of them, who was nice to Jones and
even defended Jones at the strip club. See id. Additionally, Ms. Kebe confirmed that
Jones was punched in the face by one of their co-workers and that Plaintiff did try
5
R211 is a Transcript of Jury Trial, Volume IV of X.
8
to help Jones out while they were both working at the strip club. See id. Throughout
Ms. Kebe’s cross-examination, opposing counsel relentlessly questioned Ms. Kebe
about supposed “receipts”6 (which allegedly discredited Jones’ story) that another
blogger, named Lovelyti, had.7 Opposing counsel made a huge deal, in front of the
jury, about Ms. Kebe’s “failure to review” the supposed “receipts” prior to
publishing Jones’ interview; however, Plaintiff never moved any such “receipts”
into evidence and did not call Lovelyti to testify.
Ms. Kebe explained that Lovelyti did not discuss any “receipts” with Ms.
Kebe. R214 at 15:18-20. In the update video, Ms. Kebe actually pulled up Lovelyti’s
supposed “receipts,” which turned out to be photoshopped, and Ms. Kebe informed
her viewers that those “receipts” were fake, just as Ms. Kebe suspected. See D11.
Ms. Kebe could not corroborate every single word from Jones’ interview but, based
on the conversations with former co-workers and some common sense, Ms. Kebe
concluded that, at the time in question, Jones and Plaintiff were close friends and
Jones lived with Plaintiff; otherwise, Plaintiff wouldn’t have bothered to defend
Jones from the other dancers at the strip club. See id.
In addition to the information Ms. Kebe obtained from Plaintiff’s former co-
workers, Ms. Kebe testified that she has seen pictures of Plaintiff with cold sores on
6
In this context, the term “receipts” means proof or evidence.
7
See, e.g., R209 at 126:6-10; R209 at 140:16-141:1; R209 at 150:20-25.
9
her lips. R214 at 35:20-36:21; see D3. Ms. Kebe has also seen pictures of Plaintiff’s
husband with cold sores on his lips. R214 at 39:1-12; see D68. Furthermore, Ms.
Kebe testified that, as far back as 2015 (at least three years prior to Jones’ interview),
Twitter users have been posting about Plaintiff having cold sores or herpes. R214 at
39:19-24. Ms. Kebe even heard a viral diss track released in 2017 (at least one year
prior to Jones’ interview) by Josaline Hernandez (a Love & Hip Hop star), where
Josaline tells Plaintiff to “worry about your herpe bumpy mouth.” R214 at 39:24-
40:7. Ms. Kebe also knew that Azealia Banks (another celebrity) publicly discussed
Plaintiff having cold sores. R214 at 40:8-9. All those tweets, songs, and interviews
were published prior to Jones’ interview and are still available to the public, and Ms.
Kebe testified that Plaintiff has never sued Josaline Hernandez, Azealia Banks, the
Twitter users, or any other people for defamation. R214 at 40:18-24.
In fact, Plaintiff admitted on the stand that in May of 2018 (four months prior
to Jones’ interview), Azealia Banks publicly called Plaintiff a “mediocre cold sore
having bird,” which sparked an online feud between Plaintiff and Azealia Banks.
R211 at 158:7-13. Azealia Banks also discussed Plaintiff’s cold sores and their
ongoing feud during an interview on The Breakfast Club (a nationally syndicated
radio show). R211 at 158:14-18. Plaintiff admitted on the stand that Azealia Banks’
tweets, posts, and interview on The Breakfast Club are all still available online; in
10
spite of that, Plaintiff confirmed that she has never sued Azealia Banks for
defamation. R211 at 159:25-160:10.
Lastly, Ms. Kebe saw a video Plaintiff posted on social media, which, at the
time, Ms. Kebe believed (based on her Google translator search) was Plaintiff’s
admission to having cold sores. R2158 at 166:11-15; see D8. Although, Ms. Kebe
later found out that her translation of Plaintiff’s statements from that particular video
was inaccurate, Ms. Kebe still believed that Plaintiff had cold sores because of all
the aforementioned publicly available information. R215 at 166:1-6.
Ms. Kebe testified that when she said Plaintiff used to be a prostitute, she
believed that to be a true statement because “Ms. Almanzar has made various videos9
over the course of her career bragging about being a prostitute and having tricks.”
R214 at 43:21-44:2. Plaintiff testified that when she was a stripper, before she was
famous for her music, she became an internet sensation because of her posts on social
media. R211 at 78:7-13. A lot of Plaintiff’s content consisted of short videos of
herself informing her followers about various topics of interest. R211 at 144:16-25.
Plaintiff admitted that she referred to herself as a “stripper hoe” in the videos she
posted on social media. R211 at 164:9-11.
8
R215 is a Transcript of Jury Trial, Volume VIII of X.
9
A few of the videos Ms. Kebe was referencing in her testimony were authenticated
by Plaintiff, admitted into evidence, and published for the jury. See, e.g., D6, D36,
D37, D57, D58, D60, D63.
11
Ms. Kebe was questioned about telling her viewers that Plaintiff put a beer
bottle in her vagina. R214 at 31:7-10. Ms. Kebe testified she made that statement
after she watched a video of a woman, dancing on stage at a strip club, grab a beer
bottle from a patron, put it up her vagina, take it out, and then give it back to the
patron. R214 at 31:7-25; see also D34. Ms. Kebe explained that she believed the
woman in the video was Plaintiff because the woman looked just like Plaintiff, and
because the title of the video is “Cardi B Puts Beer Bottle in her Pussy.” R214 at
32:8-9; see also D34. The first time Ms. Kebe saw that video was on a website called
Pornhub. R214 at 32:2-3. Ms. Kebe has also seen that same video on other popular
porn websites. R214 at 32:2-7.
Plaintiff testified that when she found out about the existence of the beer bottle
video, she Tweeted that she is not the person in the video. R211 at 127:3-10.
However, Ms. Kebe testified that the beer bottle video is still available on all the
popular porn websites, where it continues to be monetized with Plaintiff’s name in
the title. R214 at 32:2-9. Plaintiff testified that she has never sued anyone for
defamation, besides the Defendants and Jones. R211 at 138:8-10. Ms. Kebe testified
that when Ms. Kebe said Plaintiff put a beer bottle in her vagina, Ms. Kebe believed
that to be a true statement because the person in the video looks just like Plaintiff;
Plaintiff’s name is in the title of the video, which continues to be available on all the
popular porn websites; and Plaintiff has not taken any legal action against those porn
12
websites (who continue to monetize the video using Plaintiff’s name) to have the
video removed or, at the very least, to have Plaintiff’s name removed from the title.
R214 at 45:9-23.
Ms. Kebe testified that the reason she called Plaintiff a drug user was because
Plaintiff admitted, in an interview with Rolling Stone magazine, that Plaintiff used
molly to boost her confidence when Plaintiff was a stripper and Jones (during her
interview) told Ms. Kebe that Plaintiff used molly and cocaine. R214 at 44:3-16; see
D5. Ms. Kebe testified that Plaintiff “[h]as videos where she’s bragged about
popping, you know, whatever she gotta pop to make her feel good. She calls it a little
something, something.” R214 at 44:19-21. Additionally, back in 2018, Ms. Kebe
read a long post from Plaintiff’s father-in-law’s Facebook account, in which he
mentioned his son’s and Plaintiff’s drug use. See D8. Most importantly, Plaintiff
admitted, on the stand, that she has used drugs, such as molly, Percocets, weed, and
alcohol. R211 at 154:18-155:14. Notwithstanding her admissions of illicit drug use,
Plaintiff maintained that she didn’t use cocaine. R211 at 155:15-16.
Throughout the entire trial, there was only one piece of evidence pertaining to
Plaintiff having HPV. See P592 at 01:16:00-01:16:29. That evidence was a twenty-
nine-second video clip in which Ms. Kebe mentions that Plaintiff has HPV and then,
immediately says, “Can I confirm it? I can’t confirm the HPV diagnosis.” See id.
After that video clip was played for the jury, Ms. Kebe testified that she has never
13
reported Plaintiff having HPV as a fact. R214 at 41:11-12. Furthermore, Ms. Kebe
testified that she never mentions HPV anywhere else in that video, which is one-
and-a-half hours long; nor has Ms. Kebe ever mentioned Plaintiff having HPV in
any of Ms. Kebe’s other videos. R214 at 41:13-20.
In the same twenty-nine-second clip, Ms. Kebe said that there are constant
reports of Plaintiff’s husband cheating on Plaintiff, so Ms. Kebe said she heard (from
an undisclosed source) that Plaintiff was sleeping with someone other than her
husband. See P592 at 01:16:00-01:16:29. Plaintiff testified that on December 5,
2018, she made an announcement to the media that she split from her husband. R211
at 155:21-25. On January 31, 2019, Plaintiff announced their reconciliation. R211 at
156:1-4. Plaintiff also admitted to making and publishing a video, in which Plaintiff
advised her followers that “[i]f a guy cheat on you, you should cheat on him back.”
R211 at 156:9-24; see also D61.
Ms. Kebe testified that she did not build her YouTube channel for the purpose
of harassing Plaintiff; Ms. Kebe has not engaged in a malicious campaign to defame
Plaintiff; Ms. Kebe has never made up any stories about Plaintiff; and the majority
of Ms. Kebe’s information about Plaintiff comes from Plaintiff’s own public posts
and videos. R214 at 46:2-12.
Plaintiff testified that she felt like Ms. Kebe’s posts and videos were directed
at Plaintiff. R211 at 93:1-5. During cross-examination, while being questioned about
14
one of the videos at issue, Ms. Kebe was asked whether the video was directed at
Plaintiff; to which Ms. Kebe replied, “[m]y audience.” R21010 at 84:15-16. Later on,
while Ms. Kebe was being questioned about a different video (also at issue), Ms.
Kebe was asked whether she was talking directly to Plaintiff, and Ms. Kebe, again,
stated that she was talking to her viewers. R210 at 107:9-14.
On direct, Plaintiff testified that over the last two years (since the Jones
interview was published), Plaintiff experienced feelings of helplessness, fatigue,
anxiety, deep depression, anger, weight loss, and felt extremely suicidal. R211 at
94:7-95:22. Plaintiff also stated that in late October going into November of 2018,
she was having “[a] mental freaking crisis,” so her therapist, Dr. Sherry Blake, came
to New York for the weekend. R211 at 134:2-17. Plaintiff testified that, from
November of 2018 through January of 2022, she has had about ten sessions (both,
virtually and in person) with Dr. Blake. R211 at 135:2-5. Plaintiff also stated that
she continues to experience anxiety. R211 at 136:12-19. Despite that testimony,
Plaintiff was only able to provide proof of three sessions; all of which were for
therapeutic coaching, not psychotherapy. See P24, P45, and P46.
Dr. Blake testified that she does a lot of marital therapy, where she helps
couples understand and resolve their problems and conflicts. R212 at 10:24-11:2.
Dr. Blake also testified that she offers therapeutic coaching, which is “[w]orking
10
R210 is a Transcript of Jury Trial, Volume III of X.
15
with people towards being goal oriented, trying to resolve issues where they may be
stuck and trying to work through those.” R212 at 12:1-3. Dr. Blake explained that
therapeutic coaching is different from therapy “[i]n that therapy is working with
emotional healing.” R212 at 12:4-5.
Regarding her weekend trip to New York in November of 2018, Dr. Blake
testified that Plaintiff was in a mental health crisis, not doing well, and that Dr. Blake
was quite concerned. R212 at 28:3-6. Even so, Dr. Blake did not make a diagnosis
or conduct any therapy sessions. R212 at 54:8-12. In fact, Dr. Blake didn’t even
write a report about her 2018 New York visit until October 26, 2020, nearly two
years after the fact (and almost one-and-a-half years after Plaintiff filed this lawsuit).
R212 at 53:19-54:2.
Dr. Blake titled that report Therapeutic Coaching Summary and noted, in the
first paragraph, that sessions were conducted to determine barriers that may interfere
with Plaintiff achieving her career goals. See D99. Although Dr. Blake has been in
practice for over thirty years, there is absolutely no mention of Plaintiff’s “mental
health crisis” or that Dr. Blake was “quite concerned” about Plaintiff in Dr. Blake’s
report. See id. Dr. Blake did make sure to note that Plaintiff was not exhibiting any
suicidal thoughts or feelings; a fact Dr. Blake confirmed during her trial testimony.
R212 at 28:22; see D99.
16
Dr. Blake testified on direct that, on a scale of one to ten, with ten being the
worst, Plaintiff was at a ten when Dr. Blake saw her in New York; another seemingly
important fact that was omitted from Dr. Blake’s report. R212 at 27:5-7; see D99.
On cross-examination, Dr. Blake was confronted with text messages Dr. Blake sent
in November of 2018 to her assistant, Johnny Lester, in which Dr. Blake stated that
her sessions with Plaintiff went great and that she turned a corner with Plaintiff about
establishing and maintaining a stress plan. R212 at 40:20-22, 42:16-18; see D96,
D97.
In contrast to Dr. Blake’s trial testimony, the documentary evidence clearly
showed that in November of 2018, Dr. Blake’s only concern was that Plaintiff and
Plaintiff’s husband invited others to join them on a trip to the Dominican Republic
because Dr. Blake wanted Plaintiff and Plaintiff’s husband to have alone time on
that trip. R212 at 42:16-43:5; see D97. Not even a month later, on December 5, 2018,
Plaintiff reported a split from her husband. R211 at 155:21-25. Then, on January 31,
2019, Plaintiff announced her reconciliation with her husband. R211 at 156:1-4.
Approximately a week later (two short months after they first met), Plaintiff notified
Dr. Blake that Plaintiff no longer needed her services and in February of 2019, Dr.
Blake’s services were discontinued by Plaintiff. R212 at 44:2-15; see D98.
Dr. Blake did not hear from Plaintiff again until the end of 2020 (right around
the close of the discovery period in this case). R212 at 29:12-16; see R57. On direct,
17
Dr. Blake testified that Plaintiff’s mental health status deteriorated since 2018. R212
at 30:1-2. Dr. Blake also said, at that point, Plaintiff mentioned having feelings of
suicide and Dr. Blake was concerned, so she “created” a safety plan for Plaintiff.
R212 at 31:19-32:6. Dr. Blake admitted that she wrote a summary regarding her
2020 sessions with Plaintiff. R212 at 56:9-14; see D103. Yet, Dr. Blake’s written
summary is devoid of any information concerning Plaintiff’s suicidal thoughts and
feelings. R212 at 57:6-7; see D103. Strangely, Dr. Blake’s written summary also
does not contain the safety plan she “created” for Plaintiff; nor does it allude to the
fact that a safety plan was created or even discussed. See D103.
Dr. Blake testified that she had sessions with Plaintiff in 2021. R212 at 34:19-
20. However, no invoices or summaries from any 2021 sessions were provided in
discovery or introduced at trial. And even though this trial began ten days into the
new year, Dr. Blake stated that she had sessions with Plaintiff in 2022. R212 at 37:3-
4. Once again, no invoices or summaries from any 2022 sessions were provided in
discovery or introduced at trial. Dr. Blake testified that, for all their therapy sessions,
Plaintiff has been invoiced a total of ten thousand dollars. R212 at 35:16-20. In the
complaint, Plaintiff demanded a jury trial and sought to recover damages for mental
anguish and emotional distress. R69. However, at trial, Plaintiff introduced only
three invoices from Dr. Blake, totaling $5,980.37. See P24, P45, and P46.
18
On cross-examination, Plaintiff was questioned about some of her personal
and professional accomplishments since 2018, including: winning a Grammy for
best rap album in February of 2019; winning top female artist at Billboard Music
Awards in May of 2019; purchasing her dream home in Atlanta in December of
2019; releasing a very successful hit, “WAP,” with Megan Thee Stallion in August
of 2020; becoming the first female rapper to be named woman of the year at the
Billboard Women in Music Awards in 2020; attending Fashion Week in Paris in
October of 2021; hosting the American Music Awards in November of 2021 and
winning an award for her song, “Up”; signing a deal with Warner Chappell Music;
purchasing a home in New York; releasing a vodka whipped cream, “Whipshots”;
collaborating with Halle Berry on a soundtrack for a movie, “Bruised”; becoming
the first female rapper to have earned three diamond singles; being named the
creative director for Playboy Magazine; and gifting her husband two million dollars
for his birthday. R211 at 140:1-142:18.
Plaintiff presented absolutely no evidence to support her claim that Plaintiff’s
reputation among her fans and followers was damaged by the Defendants. In fact,
Plaintiff admitted that, by the end of 2021, Plaintiff had 120 million followers on
Instagram and twenty million followers on Twitter. R211 at 143:14-24.
19
3. Standard of Review
This Court is required to examine the evidence with careful scrutiny when
determining whether the evidence is sufficient to support the verdict. Hunt v. Liberty
Lobby, 720 F.2d 631, 643 (11th Cir. 1983). “Although we are not in a position to
judge the credibility of witnesses, our duty is to make an independent examination
of the evidence and determine whether there was a clear and convincing showing of
actual malice.” Id.
This Court reviews the district court’s legal decision to apply a particular rule
of evidence de novo but its decision to admit or exclude particular evidence under
the rule for an abuse of discretion. Schafer v. Time, Inc., 142 F.3d 1361, 1370 (11th
Cir. 1998). “We will not overturn an evidentiary ruling unless the moving party
establishes a substantial prejudicial effect.” Goldsmith v. Bagby Elevator Co., Inc.,
513 F.3d 1261, 1276 (11th Cir. 2008).
In cases where jurisdiction exists based on diversity of citizenship, “[s]tate
law controls as to any issue not governed by the Constitution or treaties of the United
States.” EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d 1099,
1105 (11th Cir. 2017).
20
SUMMARY OF THE ARGUMENT
Plaintiff is a public figure, who filed a complaint against the Defendants, for
defamation, false light invasion of privacy, and intentional infliction of emotional
distress. Plaintiff sought to recover compensatory damages, punitive damages, and
litigation expenses. At trial, the Defendants were prohibited from presenting
evidence of Plaintiff’s character and specific instances of Plaintiff’s conduct, even
though under Georgia law, when there is an assertion of damage to reputation (like
in this case), Plaintiff’s character is substantively at issue. The district court’s
erroneous exclusion of Plaintiff’s character evidence resulted in a very lopsided
presentation of evidence to the jury. Because the jury did not get to learn the type of
conduct Plaintiff engages in or who the Plaintiff truly is as a person, the jury returned
a general verdict for the Plaintiff, against both Defendants.
Plaintiff’s claims were based on six statements, which she alleged were
defamatory. However, Plaintiff failed to prove, with clear and convincing evidence,
that the Defendants published any of those six statements with actual malice. The
gist of Plaintiff’s evidence consisted of her testimony that those six statements were
not true. Meanwhile, the Defendants presented a plethora of evidence, showing the
origin of each one of the six statements and proving the Defendants did not act with
actual malice. Because the evidence showed the Defendants did not act with a
reckless disregard for the truth, Plaintiff should not have recovered damages for
21
defamation or false light invasion of privacy. Furthermore, Georgia law disallows
using the same six statements as a basis for both, defamation and false light invasion
of privacy; therefore, the jury’s general verdict (finding liability for defamation and
false light invasion of privacy) was not entered upon a proper basis.
Plaintiff’s intentional infliction of emotional distress claim cannot proceed on
its own and, given that Plaintiff failed to prove her defamation and invasion of
privacy claims, Plaintiff’s intentional infliction of emotional distress claim shouldn’t
have been considered by the jury. Additionally, Plaintiff failed to prove that the
Defendants directed any of those six statements at Plaintiff, which is a requirement
for an intentional infliction of emotional distress claim in Georgia.
Nevertheless, the jury found both Defendants liable for defamation, false light
invasion of privacy, and intentional infliction of emotional distress, and returned a
general verdict for Plaintiff. Being that this Court cannot determine whether the
verdict was entered upon a proper basis, the verdict cannot stand. Additionally,
because the jury erroneously found the Defendants liable for both, defamation and
invasion of privacy, this Court cannot determine the underlying tort theory upon
which the jury based its award for punitive damages, so it too, cannot stand. The jury
verdict must be reversed in its entirety and this case must be remanded for a new
trial, with specific instructions that the Defendants cannot be prohibited from
22
presenting evidence of Plaintiff’s character and specific instances of Plaintiff’s
conduct, in accordance with Georgia law.
ARGUMENT
I. The Evidence Was Not Sufficient to Support a Verdict for Plaintiff
A. There Was Not a Clear and Convincing Showing of Actual Malice

to Support a Verdict for Plaintiff on the Defamation Claims
To prevail in a defamation action, as a public figure, Plaintiff must prove with
clear and convincing evidence that the Defendants acted with actual malice. N.Y.
Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). The showing of malice may not
be presumed. N.Y. Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. 1966). “It is
incumbent upon the plaintiff to establish either that the defendant in fact knew that
the material was false or that it was published with reckless disregard of whether it
was false or not.” Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir. 1983).
It is not sufficient to measure reckless disregard by a reasonable person
standard. The evidence must show, in a clear and convincing manner, that a
defendant, in fact, entertained serious doubts as to the truth of his statements. Cottrell
v. Smith, 788 S.E.2d 772, 782 (Ga. 2016). “This is not a proposition that can be
supported by a normative conclusion that the publisher should have known of the
falsity of the statement.” Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1026 (5th
Cir. 1975).
23
In the case at bar, Plaintiff’s defamation claims are based on the following six
statements: (1) Plaintiff was a prostitute; (2) Plaintiff was a drug user, specifically
cocaine; (3) Plaintiff has herpes; (4) Plaintiff has HPV; (5) Plaintiff engaged in a
debasing act with a beer bottle; and (6) Plaintiff committed infidelity. R69 at 18-19.
At trial, Plaintiff testified that all six statements were false, but that is not nearly
enough to satisfy her high burden of proof. “The statement may be false but it is still
not actionable unless it was made by the publisher in reckless disregard for the truth.”
Rosanova v. Playboy Enters., Inc., 411 F. Supp. 440, 446 (S.D. Ga. 1976).
Plaintiff spent a significant amount of time questioning Ms. Kebe about the
fact that, over the course of three years, Ms. Kebe received three demands to retract
those six statements and didn’t retract them. R209 at 103; R210 at 17-20; R210 at
170-72; R215 at 76. However, it has long been established that failure to retract or
correct a falsehood does not prove actual malice. See Hunt, 720 F.2d at 643; N.Y.
Times Co. v. Connor, 365 F.2d at 577.
Ms. Kebe was questioned about her personal dislike for Plaintiff, which also
does not prove actual malice. In fact, it is impermissible to use a defendant’s hatred,
spite, ill will, or desire to injure as evidence of actual malice. Bollea v. World
Championship Wrestling, Inc., 610 S.E.2d 92, 97 (Ga. Ct. App. 2005). Even failure
to investigate does not in itself establish bad faith. See St. Amant v. Thompson, 390
U.S. 727, 733 (1968); Hunt, 720 F.2d at 643; Rosanova, 411 F. Supp. at 448.
24
Especially given that Jones’ story was super viral and Ms. Kebe, like a lot of other
entertainment bloggers, quickly went after the story. R212 at 101:7-9.
“The test of actual malice is not whether the defendant acted as a reasonable
publisher would have acted under the circumstances. Rather, the inquiry focuses on
the defendant’s state of mind at the time of publication.” Hunt, 720 F.2d at 647.
When Ms. Kebe published her interview with Jones, Ms. Kebe believed that Jones
was telling the truth about Plaintiff being a prostitute. See 524A. Furthermore, Ms.
Kebe testified that when she said Plaintiff was a prostitute, she believed that to be a
true statement because “Ms. Almanzar has made various videos over the course of
her career bragging about being a prostitute and having tricks.” R214 at 43:21-44:2.
The Defendants proved that Ms. Kebe did not act with actual malice when Ms. Kebe
said Plaintiff was a prostitute, so Plaintiff cannot prevail on the defamation claim
with that statement.
Ms. Kebe testified that she believed Plaintiff used drugs because Ms. Kebe
has seen Plaintiff’s videos, where Plaintiff talks about using drugs. R214 at 44:19-
21. Ms. Kebe read an article in which Plaintiff told Rolling Stone magazine that
Plaintiff took molly to boost her confidence when she was a stripper. R214 at 44:3-
16. Plaintiff’s father-in-law mentioned Plaintiff’s drug use in a Facebook post that
Ms. Kebe saw online. See D8. In the interview, Jones mentioned that Plaintiff used
molly and cocaine, so Ms. Kebe inferred that because Plaintiff publicly admitted to
25
using molly, Jones was also telling the truth about Plaintiff using cocaine. See
Rosanova, 411 F. Supp. at 446 (“The publisher’s protection extends to reasonable
inferences drawn from the spectrum of information . . . .”).
Most importantly, Plaintiff admitted, on the stand, that she has used drugs,
such as molly, Percocets, weed, and alcohol. R211 at 154:18-155:14. Under Georgia
law, truth is an absolute defense to defamation and substantial truth is all that is
required. Monge v. Madison Cnty. Record, Inc., 802 F. Supp. 2d 1327, 1333 (N.D.
Ga. 2011). As the district court pointed out during the pretrial conference, it is
disingenuous to argue that using molly and using cocaine is any different as it relates
to defamation and the harm that would occur. R18111 at 84:21-85:1. The Defendants
proved that Ms. Kebe did not act with actual malice when Ms. Kebe said Plaintiff
was a drug user, so Plaintiff cannot prevail on the defamation claim with that
statement.
Ms. Kebe has never made the statement that Plaintiff has genital herpes and
no evidence of such a statement was introduced at trial. When asked whether Jones
said Plaintiff had herpes, Ms. Kebe clarified “[c]old sores to be exact.” R209 at
90:15-17. Ms. Kebe testified that when she says Plaintiff has cold sores or herpes,
she is basing that statement on the following information: the definition of cold sores
as an “infection with the herpes simplex virus around the border of the lips, D8; a
11
R181 is a Transcript of the Pretrial Conference.
26
video in which Ms. Kebe believed she heard Plaintiff admit to having cold sores,
D8; pictures of Plaintiff with cold sores on her lips, D3; pictures of Plaintiff’s
husband with cold sores on his lips, D68; tons of tweets, dating back to 2015, stating
that Plaintiff has cold sores or herpes, R214 at 39:19-24; hearing other celebrities
say that Plaintiff has cold sores or herpes, R214 at 39:24-40:9; and knowing that
those pictures, tweets, and statements (published long before the Jones interview)
are still available to the public and that Plaintiff has never sued any of the people,
who made those statements, for defamation, R214 at 40:18-24. The Defendants
proved that Ms. Kebe did not act with actual malice when Ms. Kebe said Plaintiff
has cold sores or herpes, so Plaintiff cannot prevail on the defamation claim with
that statement.
Ms. Kebe has never said that Plaintiff has HPV as a fact. R214 at 41:11-12.
“A defamation action will lie only for a statement of fact.” Cottrell v. Smith, 788
S.E.2d 772, 781 (Ga. 2016). Given that Ms. Kebe has never reported Plaintiff having
HPV as a fact, Ms. Kebe did not act with actual malice and Plaintiff cannot prevail
on the defamation claim with that statement.
Ms. Kebe testified that when she said Plaintiff put a beer bottle in her vagina,
she believed that to be a true statement because the person in the video looks just
like Plaintiff; Plaintiff’s name is in the title of the video; the video is still available
on all the popular porn websites; and Plaintiff has not taken any legal action against
27
those porn websites (who continue to monetize the video using Plaintiff’s name).
R214 at 45:9-23. The Defendants proved that Ms. Kebe did not act with actual
malice when Ms. Kebe said Plaintiff put a beer bottle in her vagina, so Plaintiff
cannot prevail on the defamation claim with that statement.
Lastly, while discussing yet another report of Plaintiff’s husband’s infidelity,
Ms. Kebe mentioned that she heard Plaintiff was sleeping with someone other than
her husband. See P592 at 01:16:00-01:16:29. Ms. Kebe opined that it was Plaintiff’s
right to sleep with someone else because of the countless times Plaintiff’s husband
has cheated on her. See id. Furthermore, Plaintiff admitted to publicly giving the
following advice: “[i]f a guy cheat on you, you should cheat on him back.” R211 at
156:9-24; see also D61. The publisher’s protection extends to reasonable inferences
drawn from the spectrum of information. Rosanova, 411 F. Supp. at 446. The
Defendants proved that Ms. Kebe did not act with actual malice when Ms. Kebe said
Plaintiff was sleeping with someone other than her husband, so Plaintiff cannot
prevail on the defamation claim with that statement.
There was no evidence that any of Ms. Kebe’s stories about Plaintiff were
fabricated by Ms. Kebe, a product of Ms. Kebe’s imagination, based wholly on an
unverified anonymous call, or so inherently improbable that only a reckless person
would have put them in circulation. See St. Amant v. Thompson, 390 U.S. 727, 732
(1968). “Negligence is constitutionally insufficient to show the recklessness that is
28
required for a finding of actual malice.” Rosanova, 411 F. Supp. at 448. Given that
Plaintiff failed to establish, in a clear and convincing manner, that Ms. Kebe knew
her statements about Plaintiff were false or, in fact, entertained serious doubts as to
the truth of her statements, Plaintiff cannot prevail on the defamation claims. See
Hunt, 720 F.2d at 642.
B. Plaintiff Failed to Allege a Nondefamatory Statement for the False

Light Invasion of Privacy Claim to Survive as a Separate Action
A single statement cannot form the basis of both, a defamation claim, and a
false light claim. “To survive as a separate action, a false light claim must allege a
nondefamatory statement. If the statements alleged are defamatory, the claim would
be for defamation only, not false light invasion of privacy.” Smith v. Stewart, 660
S.E.2d 822, 834 (Ga. Ct. App. 2008). Plaintiff’s false light claim alleges the same
six defamatory statements as her defamation claims and fails to allege even one
nondefamatory statement, as required by Georgia law. R69 at 30-34. Therefore,
Plaintiff’s false light claim cannot survive as a separate action. See Smith at 834.
C. The Evidence Was Insufficient to Support a Verdict for Plaintiff on

the Intentional Infliction of Emotional Distress Claim
In the absence of any physical impact to her person, a plaintiff seeking to
recover for emotional distress must show, in addition to the four elements, that the
conduct in question was directed at her. Jones v. Fayette Family Dental Care, Inc.,
718 S.E.2d 88, 90 (Ga. Ct. App. 2011). Defamatory remarks made to others, or to
29
the public in general, are classic examples of conduct that, though harmful to the
plaintiff, was directed toward the hearer of the statements, not at the plaintiff, and
thus is not actionable as intentional infliction of emotional distress. See Wolff v.
Middlebrooks, 568 S.E.2d 88, 90 (Ga. Ct. App. 2002); Lively v. McDaniel, 522
S.E.2d 711, 713 (Ga. Ct. App. 1999).
It is undisputed that the comments here were made during video streams on
Ms. Kebe’s YouTube channel to thousands of people. Furthermore, Ms. Kebe
testified that in those video streams she is talking to her viewers, not to the Plaintiff.
R210 at 84:15-16, 107:9-14. Given that Plaintiff cannot show the conduct in question
was directed at her, Plaintiff cannot prevail on her intentional infliction of emotional
distress claim. See Jones at 90; Wolff at 90; Lively at 713.
Assuming, arguendo, that Plaintiff could somehow prove the conduct in
question was directed at her, Plaintiff must also show that Ms. Kebe’s conduct was
intentional or reckless; extreme and outrageous; there was a causal connection
between the wrongful conduct and the emotional distress; and the emotional distress
was severe. Jones at 90. Plaintiff must show all four elements in order to recover for
intentional infliction of emotional distress. Id. Plaintiff bears a heavy burden with
respect to proving that defendant’s conduct rose to the level of outrageousness
required and the distress suffered by plaintiff rose to the level of severity required.
Howerton v. Harbin Clinic, LLC, 776 S.E.2d 288, 300 (Ga. Ct. App. 2015).
30
It has not been enough that a defendant has acted with an intent which is
tortious or even criminal, or that defendant has intended to inflict emotional distress,
or even that defendant’s conduct has been characterized by malice, or a degree of
aggravation that would entitle a plaintiff to punitive damages for another tort. Abdul-
Malik v. AirTran Airways, Inc., 678 S.E.2d 555, 559 (Ga. Ct. App. 2009).
Conduct that can be characterized as merely vulgar, tasteless, rude, or
insulting will not support a claim for intentional infliction of emotional distress. See
Howerton at 300; Troncalli v. Jones, 514 S.E.2d 478, 483 (Ga. Ct. App. 1999).
Actionable conduct does not include insults, threats, indignities, annoyances, petty
oppressions, or other vicissitudes of daily living. Howerton at 300. The defendant’s
conduct must be so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Howerton at 299.
Emotional distress includes all highly unpleasant mental reactions such as
fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea. Abdul-Malik at 560. The law intervenes only
where the distress inflicted is so severe that no reasonable person could be expected
to endure it. Id.
Ms. Kebe is an entertainment and celebrity news blogger, who discusses
trending stories about celebrities on her YouTube channel. Plaintiff’s complaint
31
centers around the fact that in a few of the videos Ms. Kebe publishes, she sometimes
talks about Plaintiff. Georgia’s definition of outrageous conduct provides a high
degree of tolerance for a wide variety of questionable conduct and Ms. Kebe’s
actions simply do not rise to the level of outrageousness required. See Howerton at
299-300; Abdul-Malik at 559. Plaintiff cannot prove that Ms. Kebe’s statements
were directed at Plaintiff and she cannot show the four elements required to recover,
therefore Plaintiff cannot prevail on her intentional infliction of emotional distress
claim.
II. The District Court Erroneously Excluded Evidence of Plaintiff’s

Character and Specific Instances of Plaintiff’s Conduct
Georgia law confirms that an assertion of damage to reputation in a
defamation case makes the plaintiff’s character an issue under the substantive law.
Schafer v. Time, Inc., 142 F.3d 1361, 1372 (11th Cir. 1998). Plaintiff alleged that
Defendants caused her embarrassment, humiliation, mental anguish, emotional
distress, and impairment to her name, character, and reputation, for which Plaintiff
sought general and special damages. R69 at 23, 26, 29, 33, 37, and 40. Since the
plaintiff’s character is substantively at issue in a defamation case under Georgia law,
Rule 405(b) permits the admission of evidence regarding specific instances of the
plaintiff’s conduct on that issue. Schafer at 1372.
The district court, at the pretrial conference and during the trial, excluded a
myriad of relevant evidence regarding Plaintiff’s character. Specifically, the district
32
court excluded all the evidence listed in Exhibit A of Plaintiff’s Motion In Limine.
See R163-1. The Defendants argued since Plaintiff voluntarily asserted damage to
her reputation, evidence of Plaintiff’s character was highly relevant and extremely
important for the jury to consider. See R166 at 1-3. Specifically, the jurors should’ve
seen and heard evidence of Plaintiff’s admissions regarding Plaintiff’s gang
membership; Plaintiff’s threats to other bloggers, especially when Plaintiff doesn’t
like how she’s being portrayed; Plaintiff’s hateful comments to strangers on social
media; and Plaintiff’s Instagram Live videos posted around the time of Plaintiff’s
alleged “mental freaking crisis.”12
The Defendants have shown a substantial prejudicial effect because it’s
extremely likely that the erroneously excluded character evidence would have
impacted the jury’s verdict, had the jury been able to consider it. See Goldsmith v.
Bagby Elevator Co., Inc., 513 F.3d 1261, 1276 (11th Cir. 2008). Even the district
court stated that “[t]he plaintiff that testified on the stand is not certainly the plaintiff
in the videos, not the same person in the videos that I’ve seen so far. . . .” R213 13 at
85:14-17. Clearly, the Defendants should have been able to present evidence
12
The following is a non-exhaustive list of the evidence Defendants should have
been able to introduce to show Plaintiff’s character: Kebe 007; Kebe 009; Kebe 011;
Kebe 012; Kebe 013; Kebe 374; Kebe 378; Kebe 379; Kebe 382; Kebe 385; Kebe
610; Kebe 612. All the listed items will be included in the Appendix, for the Court’s
convenience.
13
R213 is a Transcript of Jury Trial, Volume VI of X.
33
regarding Plaintiff’s character because it was a substantive issue in this case and
their inability to present such evidence to the jury resulted in a substantial prejudicial
impact on their defenses at trial. See Goldsmith at 1276.
III. The Verdict Was Not Entered Upon a Proper Basis, Therefore,
the Verdict Cannot Stand
The jury returned a general verdict for the Plaintiff, finding the Defendants
liable for Defamation, False Light Invasion of Privacy, and Intentional Infliction of
Emotional Distress. R198. There were six separate statements, any one of which
could have been the reason the jury found the Defendants liable for defamation or
for false light invasion of privacy. However, the law provides that a single statement
cannot form the basis of both, a defamation claim and a false light claim. See Smith
v. Stewart, 660 S.E.2d 822, 834 (Ga. Ct. App. 2008). Therefore, the only way to
determine which of the six statements the jury relied upon, would have been to list
each statement separately on the verdict form; something that was not done. See
R198.
Given that the jury returned a general verdict, and considering the argument
presented in section I, above, the jury verdict cannot stand because this Court cannot
determine whether the verdict was entered upon a proper basis. See Wolff v.
Middlebrooks, 568 S.E.2d 88, 91 (Ga. Ct. App. 2002); Troncalli v. Jones, 514 S.E.2d
478, 481 (Ga. Ct. App. 1999). The jury also returned an award of punitive damages
for Plaintiff, against both Defendants. R204. Considering that this Court cannot
34
determine the underlying tort theory upon which the jury based its award for punitive
damages, the punitive damages award must also be reversed. See Wolff at 91.
CONCLUSION
For the foregoing reasons, this Court should reverse the Amended Judgment
entered on July 19, 2022, and remand this case for a new trial.
Respectfully submitted this 29th day of August, 2022.
/s/Olga Izmaylova
olga@silawatl.com
Georgia State Bar No. 666858
SABBAK & IZMAYLOVA, P.C. Counsel for Defendants/Appellants

1875 Old Alabama Road Latasha Kebe and Kebe Studios, LLC
Suite 510
Roswell, Georgia 30076
p. (404) 793-7773
f. (770) 797-5887
35
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of Fed. R. App. P.
32(c)(2) because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f), this document contains 8,739 words.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because
this document has been prepared in a proportionally spaced typeface using
Microsoft Word for Mac Version 16.60 in 14-point Times New Roman font.
/s/Olga Izmaylova
olga@silawatl.com

Suite 510
p. (404) 793-7773
f. (770) 797-5887
36
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court
for the United States Court of Appeals for the Eleventh Circuit by using the appellate
CM/ECF system on August 29, 2022. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
/s/Olga Izmaylova
olga@silawatl.com

Suite 510
p. (404) 793-7773
f. (770) 797-5887
37

Almanzar v. Kebe

Uploaded by

Document Information

Copyright

Available Formats

Share this document

Share or Embed Document

Sharing Options

Did you find this document useful?

Is this content inappropriate?

Copyright:

Available Formats

Almanzar v. Kebe

Uploaded by

Copyright:

Available Formats

USCA11 Case: 22-12512 Date Filed: 08/29/2022 Page: 1 of 45

IN THE UNITED STATES COURT OF APPEALS

BELCALIS MARLENIS ALMANZAR,

LATASHA TRANSRINA KEBE and KEBE STUDIOS, LLC,

Appeal from the United States District Court

OPENING BRIEF OF APPELLANTS

Counsel for Defendants-Appellants

APPELLANTS’ CERTIFICATE OF INTERESTED PERSONS AND

In accordance with Federal Rule of Appellate Procedure 26.1 and Eleventh

and corporate disclosure statement.

partnerships, or corporations that have an interest in the outcome of the particular

case or appeal, including subsidiaries, conglomerates, affiliates, parent corporations,

identifiable legal entities related to a party:

Adelman, Gary – trial counsel for Plaintiff/Appellee Belcalis Almanzar

Almanzar, Belcalis Marlenis – Plaintiff/Appellee

Izmaylova, Olga – counsel for Defendants/Appellants

Kebe, Cheickna – co-owner of Kebe Studios, LLC

Kebe, Latasha Transrina – Defendant/Appellant

Kebe Studios, LLC – Defendant/Appellant

Matz, Sarah - trial counsel for Plaintiff/Appellee Belcalis Almanzar

Moore, Lisa - trial counsel for Plaintiff/Appellee Belcalis Almanzar

Pequignot, Andrew - trial counsel for Plaintiff/Appellee Belcalis Almanzar

Ray, William M. – district court judge

Sabbak, Sadeer – counsel for Defendants/Appellants

The undersigned counsel further certifies that no publicly traded company or

corporation has an interest in the outcome of the case or appeal.

Dated: August 29, 2022 /s/Olga Izmaylova

STATEMENT REGARDING ORAL ARGUMENT

Defendants-Appellants, Latasha Kebe and Kebe Studios, LLC, believe that

not be significantly aided by oral argument.

Should oral argument be deemed appropriate, however, Defendants-

Appellants do not waive their participation.

Certificate of Interested Persons and Corporate Disclosure Statement . . . . . . . . C-1

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .ii

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .1

2. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .4

3. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .21

I. The Evidence Was Not Sufficient to Support a

A. There Was Not a Clear and Convincing Showing of

B. Plaintiff Failed to Allege a Nondefamatory Statement

C. The Evidence Was Insufficient to Support a

II. The District Court Erroneously Excluded Evidence of

III. The Verdict Was Not Entered Upon a Proper Basis,

Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .36

Abdul-Malik v. AirTran Airways, Inc.,

Bollea v. World Championship Wrestling, Inc.,

EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am.,

Goldsmith v. Bagby Elevator Co., Inc.,

*Howerton v. Harbin Clinic, LLC,

*Hunt v. Liberty Lobby,

Jones v. Fayette Family Dental Care, Inc.,

Monge v. Madison Cnty. Record, Inc.,

N.Y. Times Co. v. Connor,

N.Y. Times Co. v. Sullivan,

*Rosanova v. Playboy Enters., Inc.,

*Schafer v. Time, Inc.,

*St. Amant v. Thompson,

Vandenburg v. Newsweek, Inc.,

on diversity of citizenship pursuant to 28 U.S.C. § 1332. After a jury returned a

STATEMENT OF THE ISSUES

1. Whether the evidence was sufficient to support a verdict for Plaintiff.