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Henderson v. Loewenfeldt

United States District Court, Southern District of Georgia, Savannah Division

January 29, 2015



Ex-police officer Eric Henderson brought this since-removed 42 U.S.C. §§ 1981 & 1983 action in state court against Robert von Loewenfeldt[1] and the City of Savannah. Doc. 1-1; see also doc. 25 at 5. Von Loewenfeldt, also sued for defamation and interfering with Henderson's employment contract, doc. 1-1 at 6-7, moves to dismiss and stay discovery. Doc. 18. His dismissal motion is before the district judge, while his stay motion will be addressed here. Doc. 18 at 1. The City, meanwhile, has since been dismissed by stipulation. Docs. 34 & 35.

Finally, even though no such stay has been entered by any court, Henderson moves "to lift the automatic stay of discovery pursuant to O.C.G.A. § 9-11-11.1(d) in the instant case, " doc. 23 at 1, and also "extend discovery until February 27, 2015." Id. at 2; see also doc. 13 (discovery ended January 15, 2015). That motion also will be reached here, along with his motion for leave to amend his complaint. Doc. 22 at 3, 7-8.[2]


Henderson is black. He alleges that von Loewenfeldt, while one of his white supervisors on Savannah's police force, colluded with the then (black) police chief to perpetuate a "racially balanced" promotion system. They thus deployed nefarious tactics to selectively guide promotion in quest of their racial balancing efforts. Id. at 1-4. E.g.: "Solely because of [Henderson's] race, black, the Defendant City of Savannah and [white supervisors Kovak and Von Loewenfeldt] determined that [Henderson] was providing information to suspected [criminal] perpetrators." Id. at ¶ 13.

Von Loewenfeldt also "made decisions that discriminated against [Henderson] because he was black; and because the suspected perpetrators of the crimes Plaintiff was charged with investigating, were black." Id. ¶ 12. He also "made [a] false statement during his employment with [the City] and after his employment with the City terminated, and continues making false accusations against [Henderson] that was the proximate and direct cause of Plaintiffs loss of income." Id. at 5 ¶ 16. Specifically, von Loewenfeldt submitted an ante litem notice[3] to the City, as a predicate for his own lawsuit against it, doc. 18 at 3, and in it he accused Henderson "of crimes, which were not true, and . . . published the accusation in violation of O.C.G.A. § 51-5-9[4] as set forth in the attached ante litem notice[5] published by Defendant Von Loewenfeldt's attorney." Doc. 1-1 at 5 ¶ 17 (footnotes added); see also doc. 22 at 2 ("The false statements made in the ante litem notice after Von Loewenfeldt's employment were not privileged and amounted to defamation, slander, slander per se and tortuous interference with Plaintiffs employment.").[6]

Henderson thus alleges that Von Lowenfeldt defamed him and interfered with his employment contract. Doc. 1-1 at 5-7. He was not served until October 13, 2014. Doc. 17 at 1. Again, the City has since been dismissed. Doc. 35.

Contained within one of plaintiffs briefs, evidently to clarify that he sues von Loewenfeldt in his individual (not official, hence against the City) capacity, is this: "Plaintiff seeks leave to amend the complaint to plead that he seeks a liability determination against von Loewenfeldt's personal assets and for his actions as an employee of the Defendant City." Doc. 22 at 2. Plaintiff also wants to amend to allege actual malice, id. at 2-3, 7-8 -- evidently to overcome defendant's insistence that he is immune from defamation liability absent allegation and proof of actual malice, doc. 18 at 9-11. And, as noted above, plaintiff seeks to lift the "SLAPP statute" stay, doc. 23 at 1, and also "extend discovery until February 27, 2015." Id. at 2.


SLAPP means "Strategic Lawsuits Against Public Participation." Emory Univ. v. Metro Atlanta Task Force for the Homeless, Inc., 320 Ga.App. 442, 442 (2013). SLAPPs are typically filed against the "little guy" who complains to the government about a "big guy, " like a land developer or mining company who "slaps" him with a defamation lawsuit just to shut him up. See generally 2 Ga. Proc. CONSIDERATIONS IN INITIATING SUIT § 6:30 (Dec. 2014). Georgia's General Assembly thus passed an anti-SLAPP statute, O.C.G.A. § 9-11-11, "to encourage citizens to participate in matters of public significance by exercising their constitutional rights to free speech and to petition the government for redress of grievances, and to prevent the chilling of those rights through abuse of the judicial process." Emory Univ., 320 Ga.App. at 444.

Thus, "the statute requires the timely filing of a written verification when the [big guy's] complaint asserts a claim against a person or entity arising from an act by that person or entity which could reasonably be construed as an act in furtherance of the right of free speech or the right to petition government for a redress of grievances ... in connection with an issue of public interest or concern." Emory Univ., 320 Ga.App. at 444 (quotes and cite omitted); Browns Mill Development Co., Inc. v. Denton, 247 Ga.App. 232, 234 (2000) (upholding dismissal of defamation action for failing to comply with O.C.G.A. § 9-11-11.1's verification requirements). And the SLAPP target can invoke the anti-SLAPP statute's stay component merely by moving to dismiss the SLAPP complaint.[7]

Here, Henderson sued von Loewenfeldt for, inter alia, defamation after von Loewenfeldt (by sending to the City the ante litem notice in question) exercised his right to sue the City for alleged wrongs committed against him. But the Removal filings (docs. 1 & 2) reveal no successful (in state court) invocation by von Loewenfeldt of O.C.G.A. § 9-11-11.1(d), so there is no anti-SLAPP stay to be lifted, thus mooting Henderson's lift-stay motion. Doc. 23 at 1. In fact, it is apparent that Henderson simply did not want to bear the expense of discovery ahead of the district judge's dismissal-motion ruling; he thus has bogusly maintained that a § 9-11-11.1(d) stay has been in effect. He couldhave moved to stay discovery, or joined with von Loewenfeldt to stay discovery, but did not.[8] Instead, he has wasted this Court's time.


Plaintiff Henderson's lift-stay motion is DENIED as moot. Doc. 23 at 1. His motion to extend discovery (doc. 23 at 2) is DENIED without prejudice to his right to renew it after the district judge rules on von Loewenfeldt's dismissal motion.[9] Next, plaintiffs motion for leave to amend his complaint, doc. 22 at 3, 7-8, is DEFERRED in that it is inextricably intertwined with the analysis the district judge will apply in ruling on the dismissal motion (the district judge could reasonably conclude, for example, that plaintiff has pled enough to stay in Court, or that the proposed amendments are unnecessary because Henderson has essentially pled those matters already). Finally, defendant von Loewenfeldt's motion to ...

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