In his Renewed Motion to Dismiss (“the Motion”), Mr. Frey established that the
First Amended Complaint (“FAC”) fails utterly, as did its predecessor, to meet the
standards required to sustain a lawsuit under Fed. R. Civ. P. 12(b)(6). Mr. Frey
demonstrated that the FAC does not allege facts, plausible or otherwise consistent
with the record Plaintiff has placed before the Court, to sustain that burden, and that the purpose of Plaintiff’s lawsuit – as set out in Mr. Frey’s previous submissions – is to settle political scores and abuse the litigation process, not to state a claim for which relief can be granted. Plaintiff’s Opposition (“the Opposition”) does nothing to bridge the chasm between what Mr. Frey described in his moving papers – a patchwork of
inconsistencies, vague generalities and arbitrary bursts of anger – and a legal claim justifying continuing litigation in this court. To the contrary, the opposition, which focuses on Mr. Frey’s motion under Rule 12(b)6) seeking dismissal of Plaintiff’s claims under Section 1983, demonstrates the FAC’s complete lack of merit:
? * Plaintiff presents neither new factual allegations nor legal authority to support her position that Mr. Frey’s private actions as a blogger who is known to be a Deputy District Attorney amount to actions taken “under color of state law”;
? * Plaintiff fails to enunciate any plausible deprivation of her constitutional rights as a result of some action taken by Mr. Frey; and
? * To overcome the obvious objection to her claim of “chilled speech” – the fact that the record indicates that she was not intimidated from expressing herself at all – Plaintiff relies on utterly inapposite case law arising out of serious, actual abuses of state power bearing no relation at all to the “indignities” of which she complains.
For these reasons, set out below in detail, the Court should grant the Motion in full.