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KOBAYASHI SUGITA & GODA, LLP

DAVID M. LOUIE 2162-0
NICHOLAS R. MONLUX 9309-0
JESSE D. FRANKLIN-MURDOCK 10778-0
First Hawaiian Center
999 Bishop Street, Suite 2600
Honolulu, Hawaii 96813
Telephone: (808) 535-5700
Facsimile: (808) 535-5799
Email: dml@ksglaw.com;
nrm@ksglaw.com; jfm@ksglaw.com

KAPLAN & COMPANY, LLP

ROBERTA A. KAPLAN (admitted Pro Hac Vice)
JULIE E. FINK (admitted Pro Hac Vice)
JOSHUA MATZ (admitted Pro Hac Vice)
350 5th Avenue, Suite 7110
New York, New York 10118
Telephone: (212) 763-0883
Facsimile: (212) 564-0883
Email: rkaplan@kaplanandcompany.com;
jfink@kaplanandcompany.com; jmatz@kaplanandcompany.com

SUSMAN GODFREY L.L.P.

DAVIDA P. BROOK (admitted Pro Hac Vice)
1900 Avenue of the Stars, Suite 1400
Los Angeles, California 90067
Telephone: (310) 789-3100
Facsimile: (310) 789-3150
Email: DBrook@susmangodfrey.com

Attorneys for Defendant

MELANIE KOHLER
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IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF HAWAI’I

BRETT RATNER, CIVIL NO. CV 17-00542 HG-KSC

Plaintiff, DEFENDANT MELANIE KOHLER’S

REPLY TO PLAINTIFF BRETT
vs. RATNER’S MEMORANDUM IN
OPPOSITION TO DEFENDANT
MELANIE KOHLER and JOHN and/or MELANIE KOHLER’S MOTION TO
JANE DOES, DISMISS COMPLAINT, FILED
Defendants. NOVEMBER 1, 2017, AND TO
STRIKE THE COMPLAINT, FILED
NOVEMBER 1, 2017; CERTIFICATE
OF SERVICE

[Related Doc No. 34]

Hearing:
Date: February 8, 2018
Time: 10:30 a.m.
Judge: Honorable Helen Gillmor

Trial: March 12, 2019

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DEFENDANT MELANIE KOHLER’S REPLY TO PLAINTIFF BRETT

RATNER’S MEMORANDUM IN OPPOSITION TO DEFENDANT MELANIE
KOHLER’S MOTION TO DISMISS COMPLAINT, FILED NOVEMBER 1, 2017,
AND TO STRIKE THE COMPLAINT, FILED NOVEMBER 1, 2017

Defendant Melanie Kohler (“Ms. Kohler”) hereby submits her Reply to

Plaintiff Brett Ratner (“Mr. Ratner”)’s Memorandum in Opposition to Defendant

Melanie Kohler’s Motion to Dismiss Complaint, Filed November 1, 2017, and to

Strike the Complaint, Filed November 1, 2017 (“Opposition” or “Opp.”).1

PRELIMINARY STATEMENT
In November 2017, a number of women bravely came forward and revealed

that they had been the victims of sexual misconduct by Mr. Ratner. Hours later,

Mr. Ratner filed this case in an attempt to silence Ms. Kohler and to intimidate his

other victims. The Complaint he filed is barely three pages long and contains no

factual allegations supporting an inference that Ms. Kohler acted with actual

malice.

Mr. Ratner now asks this Court to declare the actual malice requirement to

be a dead letter at the pleading stage in this case. In his view, conclusory

allegations alone are enough. But Mr. Ratner’s position has been rejected by every

court to consider it, and is squarely at odds with Bell Atlantic Corp. v. Twombly,

1
Thomas A. Bland and Rachel L. Tuchman participated in the preparation of this
Reply under the supervision of Roberta A. Kaplan, Esq.

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550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), not to mention

the free speech safeguards established by New York Times Co. v. Sullivan, 376

U.S. 254 (1964). It isn’t every day that a plaintiff represented by counsel responds

to a Rule 12(b)(6) motion without addressing a single case cited in support of

dismissal. But then again, it isn’t every day that a plaintiff files a lawsuit alleging

nothing more than the elements of a cause of action. If wealthy, powerful

plaintiffs like Mr. Ratner can burden victims of sexual assault like Ms. Kohler

based on nothing more than their own say-so, then our fundamental First

Amendment protections will offer no sanctuary to those who need them most.

Dismissal is also warranted under California’s anti-SLAPP statute. While

Mr. Ratner insists that Hawaii law should govern, the balance of interests strongly

favors California. Not only does Mr. Ratner reside there, but all of his alleged

injury occurred in California, as did all of the events described in Ms. Kohler’s

Facebook post (“FB Post”). Moreover, this lawsuit flows directly from efforts to

expose and remedy patterns of sexual abuse in Hollywood and may therefore affect

important public policy issues in that state. Applying California law, there can be

no doubt that Mr. Ratner has failed to show that he is likely to succeed on the

merits, and this case should be dismissed with prejudice.

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ARGUMENT

I. MR. RATNER’S DEFAMATION CLAIM IS INSUFFICIENT AS A

MATTER OF LAW
Forced to defend a manifestly inadequate complaint, Mr. Ratner advances

two arguments: (1) that he need not plead actual malice with particularity; and (2)

that a bare allegation of malice is sufficient. As discussed below, neither of these

arguments holds water.

A. Mr. Ratner must plead actual malice with particularity

Mr. Ratner argues that defamation cases may never be dismissed under Rule

12(b)(6) for failure to adequately allege malice. Opp. at 10–11. But this argument

is foreclosed by Iqbal itself. There, the plaintiff alleged that federal officials had

detained him on account of his race, religion, or national origin. See 556 U.S. at

669. The United States Supreme Court, however, concluded that his complaint

failed to state a claim under Rule 12(b)(6). See id. at 682–83. Squarely rejecting

the argument that mental states may be alleged generally, the Court held that

plaintiffs must allege enough particularized facts to create a plausible inference of

improper intent. See id. at 686–87.

This rule is not limited to certain types of claims or allegations. Thus,

“[e]very circuit that has considered the matter has applied the Iqbal/Twombly

standard and held that a defamation suit may be dismissed for failure to state a

claim where the plaintiff has not pled facts sufficient to give rise to a reasonable
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inference of actual malice.” Michel v. NYP Holdings, Inc., 816 F.3d 686, 702

(11th Cir. 2016) (citing Biro v. Conde Nast, 807 F.3d 541, 544–45 (2d Cir.

2015)); McDonald v. Wise, 769 F.3d 1202, 1220 (10th Cir. 2014); Pippen v.

NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir. 2013); Mayfield v. Nat’l

Ass’n for Stock Car Auto Racing, Inc., 674 F.3d 369, 377 (4th Cir. 2012); Schatz v.

Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012).

Faced with the sheer weight of this authority, what does Mr. Ratner have to

say in response? Nothing. He neither cites nor distinguishes any of the cases that

were discussed in Ms. Kohler’s moving papers. Instead, he relies on four other

cases that he claims stand for the proposition that a Plaintiff can allege malice

without any supporting factual allegations. Opp. at 10–11. But none of the cases

Mr. Ratner cites actually supports that conclusion. One is a state court decision

that does not address federal pleading requirements. See Christian Research Inst.

v. Alnor, 55 Cal. Rptr. 3d 600 (2007). Two of Mr. Ratner’s cases were decided

before Iqbal and Twombly, which established new rules for federal pleading. See

Flowers v. Carville, 310 F.3d 1118 (9th Cir. 2002); Metabolife Int’l, Inc. v.

Wornick, 264 F.3d 832 (9th Cir. 2001). And the fourth case directly contradicts

Mr. Ratner’s position—while noting that a plaintiff need not use the term “malice”

in a complaint, it emphasizes that defamation claims may be dismissed “where the

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plaintiff failed to plead malice sufficiently[].” Kosegarten v. Dep’t of the

Prosecuting Attorney, 892 F. Supp. 2d 1245, 1265 (D. Haw. 2012).2

B. Mr. Ratner has failed to plead actual malice with particularity

Applying the correct standard, there can be no doubt that the Complaint here

is fatally flawed. Simply put, it offers no particularized factual allegations to

support an inference of actual malice. See Iqbal, 556 U.S. at 678. The Complaint

does not explain why Ms. Kohler was somehow suddenly and maliciously

motivated to lie about being raped by Mr. Ratner. Even worse, the Complaint

ignores the majority of Ms. Kohler’s FB Post, including her detailed account of the

rape and her convincing explanation of what motivated her to come forward at this

time.

In his Opposition, Mr. Ratner makes two arguments. First, he asserts that

the Complaint must survive because it gives Ms. Kohler notice of the claims

against her. Opp. at 5–8. Even if that were true—and it is not—as discussed

2
Despite the weakness of Mr. Ratner’s argument, his lawyers nevertheless sent a
Rule 11 letter, dated January 19, 2018, stating as follows: “In our view the motion
[to dismiss] is frivolous, entirely unsupported factually and/or legally, and was
brought in bad faith. Please be advised that we will request the Court to award
sanctions if the motion is not withdrawn in a timely manner.” Not only does this
letter corroborate Mr. Ratner’s intent to silence Ms. Kohler, but courts have held
that the “filing of a motion for sanctions is itself subject to the requirements of
[Rule 11] and can lead to sanctions” on the moving party. See Safe-Strap Co., Inc.
v. Koala Corp., 270 F. Supp. 2d 407, 421 (S.D.N.Y. 2003) (quoting Fed. R. Civ. P.
11 advisory committee’s note (1993 Amendments)).

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above and in the moving papers, this argument rests on a mistaken view of modern

pleading requirements: “Iqbal and Twombly moved us away from a system of pure

notice pleading. In addition to providing fair notice, the complaint’s allegations

must now suggest that the claim has at least a plausible chance of success.” In re

Century Aluminum Co. Sec. Litig., 729 F.3d 1104, 1107 (9th Cir. 2013) (citation

omitted). Before subjecting Ms. Kohler to the burdens of federal litigation, Mr.

Ratner must allege a plausible claim of defamation: “Rule 12(b)(6) not only

protects against the costs of meritless litigation, but provides assurance to those

exercising their First Amendment rights that doing so will not needlessly become

prohibitively expensive.” Biro v. Conde Nast, 963 F. Supp. 2d 255, 279 (S.D.N.Y.

2013).

Mr. Ratner next argues that his Complaint somehow does allege actual

malice with sufficient particularity. Opp. at 8–10. But once again, Mr. Ratner is

wrong. With respect to actual malice, the only allegations in the Complaint are as

follows:

Plaintiff contends that the Defendant’s aforementioned

statement was published by the Defendant with
knowledge of its falsity, maliciously, and with the intent
to harm Plaintiff’s reputation and standing.

Compl. ¶ 9. As a matter of both precedent and common sense, these barebones

allegations do not suffice. See Besen v. Parents & Friends of Ex-Gays, Inc., No.

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12-Civ-204, 2012 WL 1440183, at *5–7 (E.D. Va. Apr. 25, 2012); Parisi v.

Sinclair, 845 F. Supp. 2d 215, 218–19 (D.D.C. 2012); Biro, 963 F. Supp. 2d at

279–89.

Although Mr. Ratner cites three cases to assert that his allegations of malice

are sufficient, two of his cases—described by Mr. Ratner as “instructive” (Opp. at

9)—are inapposite. See Clougherty v. Lonsdale, No. 15-Civ-382, 2015 WL

2062476, at *1–2 (N.D. Cal. Apr. 30, 2015); Eldorado Stone, LLC v. Renaissance

Stone, Inc., No. 04-Civ-2562, 2006 WL 4569360, at *3–4 (S.D. Cal. Feb. 6, 2006).

Neither case involved a public figure; neither addressed the actual malice standard;

and neither discussed how to plead state of mind. To the extent that Mr. Ratner

believes these cases show that he has properly pleaded other elements of

defamation per se, Opp. at 8, that misses the point. Here, the Complaint fails

because of deficient allegations of actual malice.

Mr. Ratner’s third case, Kosegarten v. Dep’t of the Prosecuting Attorney,

held that defamation plaintiffs need not use the word “malice” in their complaints.

See Opp. at 10. While true, that’s irrelevant here: the problem with Mr. Ratner’s

Complaint isn’t that it’s missing a buzzword; it is that it includes only buzzwords.

On this score, Kosegarten actually reinforces Ms. Kohler’s position. There, Judge

Kobayashi allowed a defamation claim to proceed only after observing that the

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complaint in that case, unlike the Complaint here, contained dozens of factual

allegations supporting an inference of malice. See Kosegarten, 892 F. Supp. at

1265–66 (summarizing the plaintiff’s allegations).

The Eleventh Circuit has explicitly warned against pleadings like Mr.

Ratner’s:

Forcing [defamation defendants] to defend inappropriate

suits through expensive discovery proceedings in all
cases would constrict that breathing space in exactly the
manner the actual malice standard was intended to
prevent. The costs and efforts required to defend a
lawsuit through that stage of litigation could chill free
speech nearly as effectively as the absence of the actual
malice standard altogether. Thus, a public figure
bringing a defamation suit must plausibly plead actual
malice in accordance with the requirements set forth
in Iqbal and Twombly.

Michel, 816 F.3d at 702. That reasoning applies with equal force here. Ms. Kohler

should not have to defend Mr. Ratner’s “inappropriate suit,” or engage in

“expensive discovery,” since doing so would “chill free speech.” Id.

II. CALIFORNIA’S ANTI-SLAPP STATUTE APPLIES, AND MR.

RATNER CANNOT DEMONSTRATE A PROBABILITY THAT HE
WILL PREVAIL ON HIS CLAIM
A. California’s anti-SLAPP statute applies
There is substantial agreement between the parties about the scope of the

dispute with respect to anti-SLAPP. Both parties agree that anti-SLAPP statutes

apply in federal court; both parties agree that California and Hawaii law are in

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conflict; and both parties agree that the Court must engage in a balancing of

interests in order to ascertain which state (California or Hawaii) “has the strongest

interest in seeing its law applied to [this] case.” Lemen v. Allstate Ins. Co., 938 F.

Supp. 640, 643 (D. Haw. 1995); Opp. at 13. The parties only disagree about

whether California or Hawaii ultimately has the stronger interest. To make that

decision, this Court should consider such factors as “(1) where relevant events

occurred, (2) the residence of the parties, and (3) whether any of the parties had

any particular ties to one jurisdiction or the other.” Kukui Gardens Corp. v. Holco

Capital Grp., Inc., No. 08-Civ-49, 2010 WL 145284, at *5 (D. Haw. Jan. 12,

2010).

Here, the balance of interests overwhelmingly favors California. That is

where Mr. Ratner sexually assaulted Ms. Kohler; it is where Mr. Ratner resides; it

is where Ms. Kohler resided at the time of the events in question; and it is where

the alleged injury occurred. Moreover, Mr. Ratner and Ms. Kohler both have

strong personal ties to California, and this case is deeply enmeshed in an important

public debate centered on the culture in Hollywood. See John Myers and Melanie

Mason, California Legislature Releases a Decade’s Worth of Sexual Harassment

Investigations, LA T IMES , Feb. 2, 2018, http://www.latimes.com/politics/la-pol-

ca-legislature-sexual-harassment-records-released-20180202-story.html.

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While Mr. Ratner pays lip service to this standard, he insists that Hawaii law

must apply simply because Ms. Kohler now lives in Hawaii and published her

statement there. But Mr. Ratner ignores many of the factors that Hawaii courts

treat as crucial to their decision. See, e.g., Wells Fargo Bank, N.A. v. Klosterman,

No. 17-Civ-347, 2017 WL 5490836, at *2 (D. Haw. Nov. 15, 2017) (quoting

Mikelson v. United Servs. Auto. Ass’n, 107 Hawaii 192, 198, 111 P.3d 601, 607

(2005)). In Peters v. Peters, 63 Haw. 653, 634 P.2d 586 (1981), for example, a

case relied upon by Mr. Ratner, Opp. at 13, the Hawaii Supreme Court recognized

that “[t]he preferred analysis, in our opinion, would be an assessment of the

interests and policy factors involved with a purpose of arriving at a desirable result

in each situation.” Id. at 664, 634 P.2d at 593. And in Mikelson, the Hawaii

Supreme Court noted that its “approach places primary emphasis . . . on deciding

which state would have the strongest interest in seeing its laws applied to the

particular case.” Mikelson, 107 Hawaii at 198, 111 P.3d at 607.

It is telling that Mr. Ratner fails to include or even discuss most of the

factors ordinarily encompassed in “interest analysis,” such as where the underlying

events occurred or where the alleged injury was felt. Opp. at 13. Mr. Ratner also

fails to recognize that the publication of Ms. Kohler’s FB Post online reduces the

significance of Ms. Kohler’s location: “Any relationship that exists between the

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parties is not centered in a particular state, given that the statements at issue were

made on the internet.” Tobinick v. Novella, 108 F. Supp. 3d 1299, 1304 (S.D. Fla.

2015) (citation omitted). Perhaps most significantly, none of the cases cited by

Mr. Ratner involve a public figure embroiled in a public debate over issues that

originated in and which is focused on one of the two relevant states (here,

California).

The main case on which Mr. Ratner relies, Diamond Ranch Academy, Inc. v.

Filer, 117 F. Supp. 3d 1313 (D. Utah 2015), does not support his argument either.

In Diamond Ranch, the court had to choose between California and Utah law. As

Mr. Ratner notes, it ultimately chose California law emphasizing the defendant’s

domicile and the locus of publication. But it did so as part of a more holistic

assessment, where no other policy factors favored Utah, the defendant had visited

Utah only once, and the case otherwise lacked any connection to Utah. See id. at

1316–23.3 Indeed, it is no surprise that the Diamond Ranch court ultimately

applied the anti-SLAPP law of the state that provided the more robust protections

3
The other case that Mr. Ratner relies on, Chi v. Loyola University Medical
Center, 787 F. Supp. 2d 797 (N.D. Ill. 2011), is similarly distinguishable since the
bulk of the relevant activity occurred in the state whose anti-SLAPP law was
applied and the speech at issue was not available on the internet. Moreover, the
Chi court’s approach, prioritizing certain factors over others, is not the law in the
Ninth Circuit and Hawaii. Peters, 63 Haw. at 664, 634 P.2d at 593.

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for speech. See 117 F. Supp. 3d 1313 at 1323. As explained in the Restatement

(Second) of Conflict of Laws (1971): “[T]here is good reason for the court to apply

the local law of that state which will best achieve the basic policy, or policies,

underlying the particular field of law involved.” Id. at § 6 comment (h); see also

Beals v. Kiewit Pac. Co., 825 F. Supp. 926, 930 (D. Haw. 1993). Here, that policy

is encouraging free and open debate about issues of public import.

In this case, but for the fact that Ms. Kohler’s FB Post was published online

from Hawaii, every relevant act occurred in California, and both parties resided in

California at the time of the events in question. In fact, the major impact of Ms.

Kohler’s statement has been felt in California, which is currently engaged in a

fierce public debate over the issues at the heart of this case. And, as Ms. Kohler

explained in her Motion, this lawsuit is itself aimed primarily at silencing other

women—most of whom reside in California and wish to speak about California

residents. Significantly, while Mr. Ratner has publicly denied all the allegations

against him, he has effectively engaged in “defendant-shopping” by choosing to

sue the only woman accusing him of misconduct who does not live in California—

such an effort to circumvent California’s anti-SLAPP statute should not be

permitted here.

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B. Mr. Ratner cannot satisfy his anti-SLAPP burden

Under California’s anti-SLAPP law, Mr. Ratner must “demonstrate the

complaint is both legally sufficient and is supported by a prima facie showing of

facts sufficient to sustain a favorable judgment if the evidence submitted by the

plaintiff is given credit.” Contemporary Servs. Corp. v. Staff Pro Inc., 61 Cal.

Rptr. 3d 434, 443 (Ct. App. 2007). Notably, California law requires that Mr.

Ratner make this showing now, rather than at some unspecified later point in the

litigation.4 Unlike under Rule 12(b)(6), there is no dismissal without prejudice

under California anti-SLAPP statute. The order ruling on an anti-SLAPP motion is

final since the whole point of anti-SLAPP statutes is to permit early dismissal of

cases intended to chill speech. See Mattel, Inc. v. Luce, Forward, Hamilton &

Scripps, 99 Cal. App. 4th 1179, 1188–89 (2002).

4
Although Mr. Ratner seeks to reserve the “right to submit evidence demonstrating
that he has a probability of prevailing on the merits of his defamation claim,” Opp.
at 16, no such right exists. Mr. Ratner had an opportunity to submit evidence and
has failed to do so. Further, Mr. Ratner agreed to stay discovery on January 8,
2018 at the Rule 16 Scheduling Conference after receiving Ms. Kohler’s motion to
strike under California’s anti-SLAPP statute. See Paterno v. Superior Court, 78
Cal. Rptr. 3d 244, 249–51 (Ct. App. 2008). Similarly, while Mr. Ratner contends
that Ms. Kohler improperly filed the anti-SLAPP motion “at the same time . . . as
the Rule 12(b)(6) [motion],” Opp. at 12, he fails to identify any rule that requires
that these two motions be filed separately. In fact, courts have encouraged such
motions to be combined in the interests of judicial economy. See, e.g., Espinoza v.
City of Imperial, No. 07-Civ-2218, 2009 WL 10671316, at *10 (S.D. Cal. Mar. 4,
2009).

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As Ms. Kohler has now explained, Mr. Ratner has utterly failed to allege

that Ms. Kohler acted with actual malice in publishing her FB Post. For this reason

alone, he cannot satisfy his burden of showing that the Complaint is legally

sufficient or likely to succeed. In other words, if Mr. Ratner cannot properly allege

actual malice in his Complaint, then he certainly will not be able to prove it at trial.

Instead of addressing this common-sense proposition, Mr. Ratner argues that

he is likely to prevail because of two alleged inconsistencies in Ms. Kohler’s

public statements: (1) Ms. Kohler has said that she might have been mistaken

about the date of the assault; and (2) while Ms. Kohler’s post said she did not tell

anyone about the rape, she now has reason to believe that she may have discussed

it with a friend. Opp. at 16–17.

But even if these inconsistencies are true, they come nowhere close to

establishing that Mr. Ratner will likely prevail on the merits. In a defamation case,

like this, a defendant is not required to establish the literal truth of every word or

detail of the challenged statement; instead, the statement need only be substantially

true. See Kohn v. West Hawaii Today, Inc., 65 Haw. 584, 590, 656 P.2d 79, 83-84

(1982); Maheu v. Hughes Tool Co., 569 F.2d 459, 465–66 (9th Cir. 1977); Basilius

v. Honolulu Publ’g Co., 711 F. Supp. 548, 551 (D. Haw. 1989); Wilson v. Freitas,

121 Hawaii 120, 128, 214 P.3d 1110, 1118 (App. 2009). The minor

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inconsistencies alleged by Mr. Ratner—one of which is not even contained in the

alleged defamatory statement—pose no impediment to Ms. Kohler’s defenses that

her FB Post was substantially true and that she did not publish it with “knowledge

of its falsity or reckless disregard for the truth.”

III. CONCLUSION

For the reasons set out above and in the Motion, Defendant Melanie Kohler

respectfully requests that the Court dismiss and/or strike the Complaint with

prejudice and enter Judgment in her favor. Ms. Kohler reserves her right to seek

fees and costs provided under California’s anti-SLAPP statute. See Cal. Civ. Proc.

Code § 425.16(c)(1).

DATED: Honolulu, Hawaii, February 5, 2018.

/s/ David M. Louie

DAVID M. LOUIE, ESQ.
NICHOLAS R. MONLUX, ESQ.
JESSE D. FRANKLIN-MURDOCK, ESQ.
ROBERTA A. KAPLAN, ESQ.
JULIE E. FINK, ESQ.
JOSHUA MATZ, ESQ.
DAVIDA P. BROOK, ESQ.

Attorneys for Defendant

MELANIE KOHLER

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