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Smith v. Silver

United States District Court, W.D. New York

May 5, 2014

LORRAINE SMITH, Plaintiff,
v.
GERDA SILVER, GERDA'S ANIMAL AID, INC., KAREN JONES, CHERYL HOFFARTH, LAUREN SABATINI CABRERA, and JEAN ARMOUR POLLY, Defendants.

DECISION AND ORDER

WILLIAM M. SKRETNY, Chief District Judge.

I. INTRODUCTION

Jack Frost and Pumpkin wanted to be together. In equine parlance, the two horses had "bonded." And so the plaintiff, Lorraine Smith, who owned the horses but couldn't keep them, entered into a contract with Gerda Silver and her organization, Gerda's Animal Aid, Inc., for their continued care and companionship. But Smith says that Gerda breached that contract; she split up the horses, says Smith. And, as result, Pumpkin's health took a turn for the worse.[1]

That's not all. Smith alleges that the remaining defendants - Karen Jones, Cheryl Hoffarth, Lauren Sabatini Cabrera, and Jean Armour Polly, all of whom somehow became aware of this escalating dispute - inserted themselves in the conflict, aligned themselves against Smith, and wrote defamatory messages about Smith on Gerda's Facebook page. Gerda allegedly did nothing to remove the comments.

Attempting to invoke this Court's diversity jurisdiction, Smith now brings this action alleging state-law claims for fraud, breach of contract, and defamation.

There are currently four motions pending before this Court: Both Gerda and Smith have moved to transfer this case (Smith to the Eastern District of New York and Gerda to Vermont); Smith - after moving for transfer - moved for a preliminary injunction; and Cabrera moved to dismiss the complaint as against her. Smith's transfer motion also contains a request in the alternative, asking this Court to grant her permission to withdraw her complaint. Of all these motions, Smith's is properly decided first. And, for the following reasons, her motion is denied insofar as it seeks transfer, but granted insofar as it seeks permission to withdraw her complaint. The remaining motions are thus rendered moot.

II. BACKGROUND

A. Facts

Lorraine Smith rescued Pumpkin and Jack Frost from "imminent slaughter, " and, as noted above, maintained them as a "bonded" pair. (Am. Compl., ¶ 13.) She eventually arranged for the two horses to be placed with Gerda, who was to care for them and keep them together. But Smith alleges that Gerda split up the horses, "resulting in the depression and further illness of Pumpkin." ( Id., ¶ 20.) According to Smith, Gerda wanted Pumpkin to die, and in fact, intended to euthanize Pumpkin, thereby "gain[ing]... Jack Frost unencumbered by a bonded companion." (Id.)

Displeased and disheartened, Smith arranged for the horses' return. Although Smith paid Gerda some money for veterinary expenses as part of the deal that Smith struck with Gerda to get the horses back, Gerda allegedly reneged and refused to return the horses. (As of now, the horses apparently remain under Gerda's care.)

In the course of this dispute, Defendants Jones, Hoffarth, Cabrera, and Polly, though apparently not formally associated with Gerda's organization, somehow learned of the equines' plight, and they allegedly made comments on Gerda's Facebook page that called into question the state of the horses' health before Smith delivered them to Gerda. Smith contends that these comments, which "were not removed by Defendants Gerda Silver and Gerda's Animal Aid Inc., " impugn her character and constitute "libel per se." ( Id., ¶ 38.) All defendants, she therefore contends, are liable for defamation.

B. Procedural History

Smith commenced this action on January 8, 2014 by filing a complaint in this Court. This set off a flurry of motions.

Gerda Silver and Gerda's Animal Aid, Inc. first filed a motion to transfer venue on February 27, 2014. (Docket No. 10). Then, on March 11, 2014, Smith made a cross-motion to change venue to the Eastern District of New York, or in the alternative, for permission to withdraw the complaint without prejudice. ...


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