Bankruptcy Court Dismisses Defamation Counterclaim, March 20

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March 20, 2026 Get Citation Alerts Download PDF Add Note

In re: Nikia Nicole Patterson; Kori Henderson, an individual v. Nikia Nicole Patterson, an individual

United States Bankruptcy Court, W.D. Oklahoma

• Citations: None known
• Docket Number: 25-01090

• Precedential Status: Unknown Status

• Opinion

• Authorities (18)

• Cited By (0)

• Summaries (0)

• Similar Cases (0)

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Trial Court Document

Ke OD, □□
SY a RES a NO
S/S a NO
Dated: March 20, 2026 2 Sere
The following is ORDERED: wo
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D OF
{STRICT OF

Janice D. Loyd
U.S. Bankruptcy Judge

IN THE UNITED STATES BANKRUPTCY COURT
FOR THE WESTERN DISTRICT OF OKLAHOMA
In re: )
)
Nikia Nicole Patterson, )
) Case No. 25-12805-JDL
Debtor. ) Ch. 7
)
Kori Henderson, an individual, )
)
Plaintiff, )
V. ) Adv. No. 25-1090-JDL
)
Nikia Nicole Patterson, an individual, )
)
Defendant. )

OPINION AND ORDER GRANTING MOTION
TO DISMISS COUNTERCLAIM
I. Introduction
This matter is before the Court on the Plaintiff's Amended Motion to Dismiss
Defendant’s Counterclaim (“Motion”) [Doc. 7]. The time within which the pro se Defendant
had to object to the Motion has expired without any objection being filed by the Defendant;
however, it is incumbent upon the Court to consider the merits of the Motion rather than

granting relief solely on a default basis.
Although Local Rule 9013-1(E) provides that a party’s failure to respond to a motion
“may be deemed confessed and the relief granted ex parte,” the Court nonetheless has
ruled substantively on such motions and generally does not grant motions on procedural
default alone. The Court must consider the merits of the motion. See, e.g., Issa v. Comp

USA, 354 F.3d 1174, 1177-78 (10th Cir. 2003) (“[E]ven if a plaintiff does not file a response
to a motion to dismiss for failure to state a claim, the district court must still examine the
allegations in the plaintiff's complaint and determine whether the plaintiff has stated a claim
upon which relief can be granted.”); Reed v. Bennett, 312 F.3d 1190, 1194-95 (10th Cir.
2002) (“[A] party's failure to file a response to a summary judgment motion is not, by itself,
a sufficient basis on which to enter judgment against the party.”); In re Millspaugh, 302 B.R.
90, 95 (Bankr. D. Idaho 2003) (“[C]ourts are not required to grant a request for relief simply
because the request is unopposed.”); In re Nunez, 196 B.R. 150, 156 (9th Cir. BAP 1996)
(“The granting of an uncontested motion is not an empty exercise but requires that the

court find merit to the motion.”). The Court will therefore examine the merits of the
Plaintiff’s Motion notwithstanding that the Defendant has not come forward with argument
in opposition to it.
This adversary proceeding is brought by the Plaintiff to determine that the debts
owed him by the Defendant are non-dischargeable pursuant to 11 U.S.C. § 523 (a)(2)(A)
(misrepresentation, false premises and/or actual fraud), § 523(a)(4) (fraud or defalcation
while acting in a fiduciary capacity), and § 523(a)(6) (willful and malicious injury by the
debtor to another entity or to the property of another entity-conversion). In general, Plaintiff

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asserts that he and the Defendant were in a personal relationship, and when the
relationship ended the Defendant refused to vacate the house in which they were living,
prohibited the Plaintiff from gaining possession of his personal property, vacated the
residence taking all of the Plaintiff’s personal property, including the Plaintiff’s vehicle which
the Defendant sold to a third-party without the Plaintiff’s knowledge or consent. The

Defendant’s answer generally denies the Plaintiff’s substantive allegations. Defendant also
filed a counterclaim asserting in its entirety that “Plaintiff owes defendant(s) $20,500
because he lies and tried to ruin my reputation (Defamation).” The issue before the Court
is whether such an allegation can withstand Defendant’s Motion pursuant to Rule
7012(b)(6) of the Federal Rules of Bankruptcy Procedure.1
II. Jurisdiction
Generally speaking, United States bankruptcy courts do not have jurisdiction to
adjudicate defamation claims as they are considered personal injury torts, which are all
explicitly excluded from the jurisdiction of the bankruptcy courts under 28 U.S.C. §

157 (b)(5). In Bankruptcy Court, state law determines whether defamation claims are
regarded as personal injury torts. See e.g., Palm Beach Golf Center-Boca, Inc., v. John G.
Sarris, D.D.S., P.A., 781 F.3d 1245 (11th Cir. 2015); Randesi v. Reyna (In re Reyna), 657
B.R. 845, 853 (Bankr. E.D. Va. 2024). Though the majority of bankruptcy courts find that
defamation cases fall within the “personal injury” prohibition under § 157(b)(5), the Court
is not aware of any case holding under Oklahoma law defamation is considered a personal

1 All future references to “Rule” or “Rules” are to the Federal Rules of Bankruptcy
Procedure or to the Federal Rules of Civil Procedure made applicable to bankruptcy
proceedings, unless otherwise indicated.
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injury tort for the purposes of determining jurisdiction in bankruptcy proceedings under §
157(b)(5). However, the Supreme Court in Stern v. Marshall, 564 U.S. 462,479-80, 131
S.Ct. 2594 (2011), clarified that § 157(b)(5) is procedural rather than jurisdictional, meaning
its requirements can be waived by the parties. Thus, if parties consent, a bankruptcy court
may adjudicate a defamation claim. Yellow Sign, Inc. v. Freeway Foods, Inc. (In re

Freeway Foods of Greensboro, Inc.), 466 B.R. 750, 770 (Bankr. M.D. N.C. 2012). In the
present case, pursuant to Bankruptcy Rule 7008, the Plaintiff has consented to the entry
of final orders or judgment by the bankruptcy court. Pursuant to Rule 7012(b), the
Defendant and Counter-Claimant in her Counterclaim, has consented to entry of final
orders or judgment by the bankruptcy court.2

2 Federal Rule of Bankruptcy Procedure 7008 requires in an adversary proceeding that
“a complaint, counterclaim, crossclaim, or third-party complaint must state whether the pleader
does or does not consent to entry of final orders or judgment by the bankruptcy court.” The
plaintiff has consented to the Bankruptcy Court entering a final order on his Complaint for
nondischargeability, but has not separately consented in a responsive pleading (the motion to
dismiss) to the Defendant’s Counterclaim for defamation.
The question thus becomes, whether a party that has expressly consented to the bankruptcy
court’s authority under Rule 7008, is required to restate that consent in subsequent filings, such
as a motion to dismiss. Under Fed.R.Civ.P. 7(a), made applicable to bankruptcy proceedings by
Bankruptcy Rule 7007, only these pleadings are allowed: (1) a complaint; (2) an answer to a
complaint; (3) an answer to a counterclaim; (4) an answer to a crossclaim; (5) a third-party
complaint; (6) an answer to a third-party complaint; and (7) if the court orders one, a reply to an
answer. Rule 7 explicitly excludes everything else from its definition of pleadings. Motions,
briefs, memoranda, applications, objections, responses, joinders, and other ancillary papers are
not pleadings. Cf. Dillworth v. Diaz (In re Bal Harbour Quarzo, LLC), 638 B.R. 660, 668 n. 51
(Bankr. S.D. Fla. 2022).
The Court believes the language in Rules 7007, 7008 and 7012 leads to the conclusion that
once a party has expressly consented to bankruptcy court’s authority under Rule 7008, there is
no requirement to restate that consent in subsequent filings such as a motion to dismiss, which
is not generally regarded in the rules as a “responsive pleading.” Here, the initial statement of
consent under Rule 7008 coupled with the defendant’s consent under Rule 7012 is sufficient to
establish the bankruptcy court’s authority to enter final judgments or orders.
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Accordingly, the Court has subject matter jurisdiction pursuant to 28 U.S.C. §§
1334 (a) and 157(a) and the Order of Reference of the United States District Court for the
Western District of Oklahoma as Local Rule LCvR 81.4(a) and, pursuant to Rules 7008
and 7012(b), the parties have consented to entry of final orders or judgment by the
bankruptcy court. This adversary proceeding is brought pursuant Rule 7001(f) (a

proceeding to determine whether a debt is dischargeable) is a “core proceeding” under 28
U.S.C. § 157 (b)(2)(I) (a determination as to the dischargeability of particular debts).
III. The Standards for a Motion to Dismiss
A plaintiff bears the burden to frame a complaint with enough factual matter to
suggest that he or she is entitled to relief. Robbins v. Oklahoma ex rel. Oklahoma
Department of Human Services, 519 F.3d 1242, 1247 (10th Cir. 2008). A motion to dismiss
for “failure to state a claim upon which relief can be granted” is governed by Rule 12(b)(6)
of the Fed.R.Civ.P., made applicable to adversary proceedings by Fed.R.Bankr.P. 7012.
The purpose of a motion to dismiss under Rule 12(b)(6) is to test “the sufficiency of the

allegations within the four corners of the complaint after taking those allegations as true.”
Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir. 1994). To survive a motion to dismiss
under Rule 12(b)(6), the complaint must contain enough facts to state a cause of action
that is “plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct.
1955 (2007). This standard requires the factual allegations contained in an adversary
complaint be sufficient to raise a right to relief above mere speculation. Twombly, 550 U.S.
at 555; Ridge at Red Hawk, L.L.C., v. Schneider, 493 F.3d 1174, 1177 (10th Cir. 2007)
(stating complaint must give the Court reason to believe that the “plaintiff has a reasonable

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likelihood of mustering factual support” for the claims raised). Bare legal conclusions and
simple recitations of the elements of a cause of action do not satisfy this standard. In
considering a motion to dismiss, the Court must evaluate the facts alleged in the complaint
in the light most favorable to the plaintiff. Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.
2006); Casanova v. Ulibarri, 595 F.3d 1120, 1124 (10th Cir. 2010).

IV. Discussion
As stated in the Introduction above, Plaintiff has brought this adversary proceeding
seeking to determine non-dischargeable damages he claims which, along with other action
of the Defendant, resulted from the Defendant’s conversion of his personal property,
including his automobile, when their personal relationship ended. Defendant has filed a
pleading designated as a “Counterclaim” which, in its entirety, states that “plaintiff owes
defendant(s) $20,500 because: he lies and tried to ruin my reputation (Defamation).”
Under federal law, as articulated in Ashroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937 (2009) and Twombly, 550 U.S. at 556, a complaint must contain sufficient factual matter

to state a claim for relief that is plausible on its face. A plaintiff must provide more than
“labels and conclusions” or a “formulaic recitation of the elements of a cause of action.”
Barenberg v. Burton (In Re Burton), 2010 WL 3422584, at *2 (10th Cir. 2010) (citing
Twombly, 550 U.S. at 555). The allegations must allow the court to draw a reasonable
inference that the defendant is liable for the alleged misconduct. A complaint that merely
offers “naked assertions” devoid of “further factual enhancement” will not suffice. Twombly, 550 U.S. at 557.
Under Oklahoma law, to withstand a motion to dismiss in an action for defamation,

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a plaintiff (here, the counterclaiming Defendant must) must plead the following elements:
1. A False and Defamatory Statement Concerning the Plaintiff: The
plaintiff must allege that the defendant made a statement that is both
false and defamatory. A defamatory statement is one that exposes
the plaintiff to public hatred, contempt, ridicule, or obloquy, or which
tends to deprive the plaintiff of public confidence, or injure the plaintiff
in their occupation. 12 O.S. § 1441. If the statement is not defamatory
per se (i.e., inherently defamatory), the plaintiff must plead special
damages to establish defamation per quod.
2. An Unprivileged Publication to a Third Party: The plaintiff must
allege that the statement was communicated to at least one person
other than the plaintiff and that the communication was not privileged.
3. Fault on the Part of the Publisher: The level of fault required
depends on the plaintiff's status:
For private figures, the plaintiff must plead that the
defendant acted with at least negligence in making the
statement.
For public officials or public figures, the plaintiff must
plead that the statement was made with “actual malice,”
meaning it was made with knowledge of its falsity or
with reckless disregard for its truth.
4. Actionability or Special Damages: The plaintiff must allege either
that the statement is actionable irrespective of special damages (e.g.,
defamatory per se) or that the statement caused special damages.
Special damages must be specifically pleaded if the statement is not
defamatory per se.
Sturgeon v. Retherford Publications., Inc., 1999 OK CIV APP 78, 987 P2d 1218, 1223;
Trice v. Burress, 2006 OK CIV APP 79, 137 P.3d 1253, 1257; Steidley v. Singer, 2026 OK
CIV APP 1, __P.3d __; Yates v. Gannett Co, 2022 OK CIV APP 41, 523 P.3d 69; 12
O.S. § 1441.
The only claim that the Defendant makes in her counterclaim is that “he lies and
tried to ruin my reputation,” presumably referring to the Plaintiff. Defendant’s counterclaim
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is totally devoid of the necessary factual allegations for stating a claim for defamation.
The Court is aware of the general rule that a pro se litigant’s pleadings are to be
liberally construed and held to a less stringent standard than formal pleadings drafted by
lawyers. Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). This means that if a court

can reasonably read the pleadings to state a valid claim on which the plaintiff could prevail,
it should do so despite the plaintiff’s failure to cite proper legal authority, his confusion of
various legal theories, his poor syntax and sentence construction, or his unfamiliarity with
pleading requirements. Id. The broadest reading of the Defendant’s counterclaim does not
relieve her of the burden of alleging sufficient facts on which a recognized legal claim could
be based. Conclusory allegations without supporting factual averments are insufficient to
state a claim upon which relief can be based. Dunn v. White, 880 F.2d 1188, 1197-98 (10th
Cir.1989), cert. denied, 493 U.S. 1059, 110 S.Ct. 871 (1990). For example, it has been
held that a plaintiff failed to state a plausible defamation claim because plaintiff failed to
“identify precisely to whom the alleged ‘disparaging remarks’ were made, the time and

place of the publication, and the alleged defamatory words themselves.” Woods v. Ross, 2021 WL 3077236, at *13 (D. Kan. 2021) (citation omitted). Here, the Defendant’s sole
statement that “he lies and tried to ruin my reputation” cannot survive this motion to
dismiss.
In his Motion, Plaintiff asserts that an additional ground for dismissal is that the
Defendant is apparently referring to “lies” contained in the Plaintiff’s Complaint, and that
such allegations are therefore protected by the privilege attaching to allegations in
pleadings. If the Court was sure that the “lies” referred to only those contained in the

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Plaintiff’s Complaint, it would dismiss the Counterclaim with prejudice. The law is clear that
“statements made before or during a judicial proceeding are privileged so long as they are
related to the proceeding, and claims sounding in defamation for such statements are
barred.” Vivos Therapeutics, Inc. v. Ortho-Tain, Inc., 2022 WL 2223141, at *3 (10th Cir.
2022). Recognizing that “granting a motion to dismiss is a harsh remedy which must be

cautiously studied,” Dias v. City and County of Denver, 567 F.3d 1169, 1178 (10th Cir.
2009), the Court is reluctant to dismiss this pro se case with prejudice at this motion to
dismiss stage unless it were absolutely sure what “lies” the Defendant is asserting and the
context in which they arise.
There is one other matter which the Court feels the need to address. In an action
for defamation, privilege is generally an affirmative defense, and “a defendant [generally]
cannot render a complaint defective by pleading an affirmative defense,” and “the possible
existence of [an affirmative] defense is not ordinarily a ground for a Rule 12(b)(6)
dismissal.” Weatherly v. Ford Motor Co., 994 F.3d 940, 943 (8th Cir. 2021). Only, “[i]f an

affirmative defense such as a privilege is apparent on the face of the complaint,... that
privilege can provide the basis for dismissal under Rule 12(b)(6).” Noble Systems Corp. v
Alorica Central LLC, 543 F.3d 978, 983 (8th Cir. 2008). While the Court finds that the
Defendant has not stated a claim for relief for defamation, because of the Defendant’s
nebulous assertion of “lies” it cannot find that the claim of such “lies” unquestionably falls
within the judicial privilege.
IT IS THEREFORE ORDERED that Plaintiffs’ Amended Motion to Dismiss
Defendant’s Counterclaim [Doc. 7] is hereby Granted, and the Defendant’s Counterclaim

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is hereby Dismissed without Prejudice. Should she so wish, the Defendant-Counter-
Claimant has 14 days from the date of the entry of this Order within which to file an
amended counterclaim .
# # #

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