The defendants, CHARLES GRANDE, EDWARD McKAY, ROGER SHARP and KEVIN STINNETTE, pursuant to Fla. R. Civ. p.1.l40(b)(6), move to dismiss the Complaint for failure to state a cause of action, and in so moving state:

1. In its Complaint, the plaintiff, Figg Bridge Engineers, Inc. ("Figg"), pretends to seek damages for defamation. In reality, however, this action is a SLAPP suit, or a Strategic Lawsuit Against Public Participation, aimed at silencing opponents of the Walton Road bridge project. Figg seeks only to intimidate not only the defendants, but all the people of St. Lucie County, from exercising their First Amendment-protected rights to free speech and to petition the government for redress of grievances.

2. The Complaint attempts to set forth four counts of libel, six counts of

slander, and a count of conspiracy to commit the other 10 counts. The two issues raised in this motion to dismiss the complaint are equally applicable to every count.

3. Interpreting the allegations of the Complaint in the light most favorable to the plaintiff, the plaintiff is a public figure as a matter of law, and is required to plead and prove constitutional actual malice. See New York Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964) (holding that a public official cannot recover for defamation absent showing the defendant published a false statement with "‘actual malice’ — that is, with knowledge that it was false or with reckless disregard of whether it was false or not"); Gertz v. Robert Welch, Inc., 418 U.S. 323, 345 (1974) (extending the New York Times standard to cover "public figures" and "limited purpose public figures").

4. Yet the Complaint is ambiguous as to whether the plaintiff recognizes the requirement that it prove actual malice in accordance with the standard set forth in New York Times. For instance, at paragraph 21, the Complaint alleges that one of the allegedly defamatory statements was published "with actual malice towards Figg andlor with reckless disregard for the truth or falsity" of the allegedly defamatory publication. This exact phrase — "with actual malice towards Figg andlor with reckless disregard for the truth or falsity" of the allegedly defamatory publication — appears in every count of the Complaint. See’J’IJ 21, 26, 31, 37, 42, 47, 52, 57, 63, 68, 74.

5. The quoted phrase is not a correct statement of the actual malice standard. Actual malice is defined as knowledge of falsity or a reckless disregard for the truth, not as actual malice or reckless disregard for the truth. The Complaint may have had the correct intention, but nonetheless the defendants move the Court to hold that the actual malice standard applies as a matter of law, and to require the Complaint to set forth the actual malice standard correctly.

6. Again taking the allegations of the Complaint in the light most favorable to the plaintiff, they demonstrate, as a matter of law, that each of the defendants’ allegedly defamatory statements was "made upon a conditionally privileged occasion." Nodar v. Galbreath, 462 So. 2d 803, 809 (Fla. 1984)’ (holding, inter alia, that "the statements of a citizen to a political authority regarding matters of public concern" are qualifiedly privileged). Therefore, the publications were protected by the Florida common law privilege set forth in Abraham v. Baldwin, 52 Fla. 151, 42 So. 591 (1906). See also Seropian v. Forman, 652 So. 2d 490, 497 (Fla. ₄th DCA 1995) ("One of the recognized occasions for such a privilege involves the discussion or debate on public issues, or the

 In Nodar, 462 So. 2d at 809, the Supreme Court of Florida noted that Florida’s century-old common law privilege is consistent with the Restatement (Second) of Torts § 593 (one who "publishes defamatory matter concerning another is not liable for the publication if (a) the matter is published upon an occasion that makes it conditionally privileged, and (b) the privilege is not abused").

‘statement of a citizen to a political authority regarding matters of public concern."’); Demby v. English, 667 So. 2d 350, 353 (Fla. ~ DCA 1995) (holding that a letter from a private citizen to a county commissioner on a public controversy within the county government’s jurisdiction is qualifiedly privilegcd).

7. It is "well established in Florida law that when the facts and circumstances of a communication are revealed, the issue of whether a privilege has been established is a question of law for the court to decide." Huszar ~‘. Gross, 468 So. 2d 512, 515 (Fla. ~ DCA 1985). Trial courts routinely determine at the early stages of litigation whether a particular privilege or legal standard applies in defamation case. Huszar at 516 ("trial courts, upon motions to dismiss, routinely make decisions as to whether a privilege applies to protect an allegedly defamatory statement") (citing five Florida DCA cases). See also Abraham, 52 Fla. at 151,42 So. at 591; Nodar, 462 So. 2d at 810.

8. Once it is determined tat a communication was made on a privileged occasion, "plaintiffs must prove express malice or malice in fact in order to recover." Schreide!l v. Shoter, 500 So. 2d 230 (Fla. 3d DCA 1986). Florida’s common law express malice is unlike the federal First Amendment-based concept of "actual malice,"² but is

There has been "some confusion in terminology" between the "actual malice" of the New York Times standard and Florida’s century-old "[e]xpress malice, or malice in fact, as it is sometimes more aptly termed." Lewis v. Evans, 406 So. 2d 489, 492 (Fla. 2d DCA 1981).