Falsity Is Assumed at the Motion to Dismiss Stage

Truth may be a complete defense to a defamation claim, but defending against such a claim on that basis is unlikely to get the case thrown out at the outset. If the plaintiff alleges that a statement harming his reputation is false and defamatory, asserting that the statement was substantially true is not going to result in dismissal of the case (unless it’s obvious from the pleadings that the statements are, in fact, true). Rather, it will be up to the finder of fact to analyze the statement at trial and determine whether the plaintiff has met his burden to prove falsity. At the motion to dismiss stage, courts have to accept all well-pleaded allegations as true and view the complaint in the light most favorable to the plaintiff. In other words, if a plaintiff alleges the statement is false, courts will credit the allegation of falsity until the case goes to trial and evidence is presented.

The case of Kissinger-Stankevitz v. Town of Tappahannock, pending in the Richmond Division of the Eastern District of Virginia, provides an example. The case involves various accusations exchanged between Amy Kissinger-Stankevitz, her husband Christian Stankevitz, and her ex-husband Dr. David Bailey. The conflict began in 2015, when Dr. Bailey was subject to a no-contact order following an incident involving allegations of family abuse. The court order barred him from communicating with Ms. Kissinger-Stankevitz or his son for two years. After it expired, and despite his prior conviction for “secret peeping” in violation of North Carolina law, Dr. Bailey regained unsupervised visitation rights with his son. Subsequently, the plaintiffs alleged that their son began exhibiting sexualized behavior and emotional distress, which they attributed to abuse by Dr. Bailey. They reported these concerns to the police, but no charges were brought against him.

In 2021, the boy disclosed to a nurse that he had been sexually abused by Dr. Bailey. Despite these disclosures, the plaintiffs alleged that local law enforcement and social services conducted a biased and inadequate investigation, failing to act on the boy’s allegations. They further alleged that town officials conspired with Dr. Bailey and others to protect Dr. Bailey from prosecution while undermining Ms. Kissinger-Stankevitz’s credibility.

Frustrated, Ms. Kissinger-Stankevitz turned to social media, where she allegedly made various posts containing the following statements:

• Statements on Linkedin and Facebook calling Dr. Bailey a “child molester,” a “serial predator,” and a “pedophile”
• “Don’t tell me Tappahannock Police that Davids bestiality orders while he was a LT CDR in the Navy as a doctor…has nothing to do with his serial child sex abuse that Chesapeake Social services lied about to Chesapeake Circuit Court…. David has ordered sick cyber streaming of voyeur rape of kids.”
• “…witness tampering for child sex abuse (the acts disclosed were oral, hand, and finger in my daughters rectum) death threats validated by the Navy, spousal abuse with DOD transitional compensation and my other child was too terrified to tell me he was being sexually abused by his father.”
• “Tappahannock Virginia social services asking the pedophile if he can fire his attorney …. Why does she have a list of attorneys for a child molester to hire? The attorney he hired I believe was totally unaware he was being hired by this criminal …. The Chesapeake PD relied on the Chesapeake social services who lied in court and covered up the child’s abuse by this predator”
• “David Bailey is a convicted sex offender and child molester hiding a camera on his victims. … He has ordered child rape movies and books”

Her husband, Christian Stankevitz, wrote a letter to Dr. Bailey’s employer, Signify Health, making the following accusations:

“David F. Bailey has a criminal and civil abuse history that includes:
* North Carolina founded sexual abuse of 11-year-old girl
* Virginia CPS founded sexual abuse of 8-year-old boy
* Multiple court issued protective orders for spousal and child abuse …
* Warrant for his arrest
* Multiple purchases of international porn for which the content is illegal in the United States.

Documents included substantiate this history. It is believed that David F. Bailey represents a Danger to Society and as a medical care employer you should be aware of his history and ongoing criminal investigations. Multiple lawsuits are underway due to the severity of the damages that David F. Bailey has inflicted on both children and adults. Please take appropriate actions to protect potential victims from this voyeur and pedophile.”

These statements and others formed the basis for a defamation claim filed by Dr. Bailey against Mr. and Mrs. Stankevitz. They filed a motion to dismiss, arguing that the statements at issue were not actionable because they were substantially true. (Truth is a complete defense, right?) Dr. Bailey responded that arguments about the supposed truth of the defamatory statements were improper because at the motion-to-dismiss stage, a court must accept the claimant’s representation that the statements at issue are false. The court agreed and denied the motion to dismiss. All elements of a valid defamation claim were properly pleaded. Whether the statements were substantially true was an issue reserved for trial.