Paul Swartwood, Appellant,

This opinion will be unpublished and
may not be cited except as provided by
Minn. Stat. § 480A.08, subd. 3 (2018).

STATE OF MINNESOTA
IN COURT OF APPEALS
A18-0649

Paul Swartwood,
Appellant,

vs.

Mark Fodness, et al.,
Respondents.

Filed December 17, 2018
Reversed and remanded
Stauber, Judge*

Beltrami County District Court
File No. 04-CV-17-2540

Patrick T. Tierney, Collins, Buckley, Sauntry & Haugh, P.L.L.P., St. Paul, Minnesota (for
appellant)

Lori Swanson, Attorney General, Kathryn I. Landrum, Assistant Attorney General, St.
Paul, Minnesota (for respondents)

Considered and decided by Bjorkman, Presiding Judge; Worke, Judge; and Stauber,
Judge.

* Retired judge of the Minnesota Court of Appeals, serving by appointment pursuant to
Minn. Const. art. VI, § 10.

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U N P U B L I S H E D O P I N I O N
STAUBER, Judge
Appellant Paul Swartwood challenges the district court’s order dismissing his
defamation claim against respondent Mark Fodness for failing to state a claim upon which
relief can be granted. Because Swartwood’s complaint pleads his defamation claim with
sufficient specificity, we reverse and remand.
F A C T S
In August, 2017, appellant Paul Swartwood, a local tennis instructor and president
of the Be midji Area Tennis Associ ation, sued respondent Mark Fodness for defamation
and Bemidji State University for vicarious liability. The complaint allege s that, in late
September 2015, Fodness, “while acting in the course and scope of his employment” as the
Bemidji State University tennis coach, “made false and defamatory statements about Paul
Swartwood to the members of the Bemidji State University wom en’s tennis team and
others.” The complaint state s that Fodness told the tennis team to “stay away from Paul
Swartwood because he wa s a sexual predator who acted inappro priately around young
women.” The complaint also states that Fodness made similar statement s on other
occasions. The complaint alleges that the statements were false and affected Swartwood’s
professional reputation.
In September 2017, Fodness filed a motion to dismiss under Minn. R. Civ.
P. 12.02(e), for failing to state a claim upon which relief can be granted.1 Fodness argued

1 Bemidji State moved to dismiss under Minn. R. Civ. P. 12.02(d), for insufficient service
of process of the vicarious liability claim. Swartwood later conceded there was insufficient

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that Swartwood failed to “identify (1) who heard the alleged statements; (2) when the
alleged statements were made; or (3) where the alleged statements were made.” Fodness
argued that Swartwood failed to adequately plead defamation because the complaint did
not provide the “precise defamatory language or even the context in which the allege d
statements were made.” Fodness also moved for a more definite statement, under Minn.
R. Civ. P. 12.05, and Swartwood conceded that he does not have any additional facts to
add to his complaint.
On December 21, 2017, the district court heard arguments on the motion to dismiss.
Fodness argued that the complaint did not provide sufficient specificity to satisfy the
requirements of a defamation claim, and that instead, the “complaint contains an
inflammatory characterization as to what Mr. Swartwood thin ks might have been said by
[Fodness] to unknown persons at an unkno wn time at an unknown place.” Counsel for
Swartwood argued that the complaint states specifically that “Fodness told the members of
the Bemidji State University Women’s tennis team” that S wartwood “was a sexual
predator,” which are two facts sufficient to meet the “more rigid s tandard in defamation
cases.” Swartwood also argued that Minnesota law allows him to commence this lawsuit
and “conduct discovery to determine what the precise language is.”
On March 9, 2018, the district court issued a written order granting the motion to
dismiss. The district court determined that, aside from the allegation that Fodness “advised
members of the [tennis team] to stay away from [Swartwood] because he is a sexual

service of process upon Bemidji State and effectively withdrew the vicarious -liability
claim. The withdrawal of the vicarious-liability claim is not at issue on appeal.

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predator who has acted inappropriately around young women,” “[n]o further information
is provided in the complaint as t o the exact statement made, which individuals heard the
statement, where the alleged defamation occurred, or even any context in which the alleged
statements were made.” The district court continued, “[t]his description of the defamation
is imprecise and vague.”
Swartwood appeals.
D E C I S I O N
Swartwood argues that the district court erred by dismissing his complaint because
the facts pleaded in his complaint are sufficiently precise—in September 2015, Fodness
told the members of the Bemidji State tennis team that Swartwood was a sexual predator.
Swartwood also argues that, although defamation claim s should generally be alleged
verbatim, in this case, he need only include a short and plain statement of the claim.
A district court may dismiss a co mplaint when the plaintiff fails to state a claim
upon which relief can be granted. Minn. R. Civ. P. 12.02(e). In deciding a motion to
dismiss on that ground, the district court must take the facts alleged in the complaint as
true and draw inferences in favor of the nonmoving party. See Bodah v. Lakeville Motor
Express, Inc. , 663 N.W.2d 550, 553 (Minn. 2003). “We review de novo whether a
complaint sets forth a legally sufficient claim for relief. We accept the facts alleged in the
complaint as true and construe all reasonable inferences in favor of the nonmoving party.”
Walsh v. U.S. Bank, N.A, 851 N.W.2d 598, 606 (Minn. 2014) (citation omitted).
Generally, “[a] pleading which sets forth a claim for reli ef . . . shall contain a short
and plain statement of the claim showing that the pleader is entitled to relief.”

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Minn. R. Civ. P. 8.01. The supreme court has observed that “[a] claim is sufficient against
a motion to dismiss for failure to state a claim if it is possible on any evidence which might
be produced, consistent with the pleader’s theory, to grant the relief demanded.” Walsh,
851 N.W.2d at 603.
In pleading a claim for defamation, a plaintiff must show that another person made
a false statement, communicated it to a third party, and that the statement harmed the
plaintiff’s reputation in the community. Weinberger v. Maplewood Review , 668 N.W.2d
667, 673 (Minn. 2003). Generally, “t he defamatory matter must be set ou t verbatim. ”
Moreno v. Crookston Times Printing Co. , 610 N.W.2d 321, 326 (Minn. 2000). But, if a
plaintiff’s complaint does not state the exact language spoken, it is not fatal to the claim as
long as the plaintiff identifies who made the defamatory statement. See Schibursky v. Int’l
Bus. Machs. Corp., 820 F. Supp. 1169, 1182 (D. Minn. 1993).
The parties rely on numerous cases, the majority of which are unpublished cases 2
and regard the written or broadcasted publication of allegedly defamatory statements. See,
e.g., Moreno, 610 N.W.2d 321; American Book Co. v. Kingdom Publ’g Co., 73 N.W. 1089
(Minn. 1898); Special Force Ministries v. WCCO Television, 584 N.W.2d 789 (Minn. App.
1998). Each of these cases appealed from summary judgment or judgment as a matter of
law, not from dismissal under rule 12.02. These cases are not on all -fours with the case
before us.

2 Unpublished opinions of this court are not precedential and can be used only as persuasive
authority. See Minn. Stat. § 480A.08, subd. 3(c) (2018).

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Swartwood’s complaint makes more than a broad characterization or general
assertion that someone said that he acted inappropriately around young women. Rather,
Swartwood’s complaint allege s that, in late September 2015, a particular person —
Fodness—told an identifiable and readily ascertainable audience —the women of the
Bemidji State women’s tennis team and others —that Swartwood was a sexual predator.
Swartwood’s failure to provide a verbatim quo tation of the defamatory statement, which
was made out of his presence, is not fatal to his claim. Because Swartwood’s complaint
alleges with sufficient specificity that a known individual made a false statement about him
to third parties, and that the statement harmed his reputation in the community, he satisfied
the general pleading standard of rule 8.01. Therefore, the district court erred by dismissing
the complaint under rule 12.02(e).
Reversed and remanded.