Wesley argues that the Amended Complaint does not allege that Wesley's advertisements mention Westgate explicitly or even by reference and, therefore, fails to satisfy the "of and concerning" rule. (Id. (citing Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183, at *3 (Tenn. Ct. App. Dec. 16, 2009); Stones River Motors, Inc. v. Mid-South Publ'g Co., 651 S.W.2d 713, 717 (Tenn. Ct. App. 1983)). However, Wesley cites no caselaw to support application of the "of and concerning" requirement to a statutory disparagement claim under § 104(b)(8).

In Tennessee, both "defamation and false light causes of action require a plaintiff to allege that the defaming party communicated a false or misleading statement of fact, or statement of opinion that implies having a basis in defamatory facts." Seaton v. TripAdvisor, LLC, No. 3:11-cv-549, 2012 WL 3637394, at *5 (E.D. Tenn. Aug. 22, 2012) (citing Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183 (Tenn. Ct. App. Dec. 16, 2009)). As discussed above, the statements contained in the Giglio Email are opinions and do not imply the existence of undisclosed, false facts.

Tennessee, the fourth state whose law might apply, has the same "'of and concerning' requirement," which "confines actionable defamation to statements made against an ascertained or ascertainable person, and that person must be the plaintiff." Steele v. Ritz, No. W200802125COAR3CV, 2009 WL 4825183, at *3 (Tenn. Ct. App. Dec. 16, 2009) (citation and quotation marks omitted). "A plaintiff may not support a claim for defamation based on an alleged defamatory statement made 'of and concerning' a third party."

Accordingly, defamation and false light causes of action require a plaintiff to allege that the defaming party communicated a false or misleading statement of fact, or statement of opinion that implies having a basis in defamatory facts. Steele v. Ritz, 2009 Tenn. App. LEXIS 843, *9 (Tenn. Ct. App. Dec., 16, 2009). 2.

While Plaintiff is never identified by name in the Program, “[s]tatements that do not specifically name a plaintiff are capable of a defamatory meaning if the plaintiff establishes extrinsic facts to show that the statement was made ‘of and concerning’ the plaintiff.” Steele v. Ritz, 2009 WL 4825183 at *3 n. 5 (Tenn.Ct.App. Dec. 16, 2009). Clearly the person pictured in the driver's license and on screen is Plaintiff.

However, in Morris v. Grusin, the Court of Appeals, urged by the defendants to adopt the Twombly/Iqbal standard, correctly stated that See Deja Vu of Nashville, Inc. v. Metro. Gov't, 311 S.W.3d 913, 918-19 (Tenn.Ct.App. 2009); State ex. rel. Watson v. Waters, No. E2009-01753-COA-R3-CV, 2010 WL 3294109, at *4 (Tenn.Ct.App. Aug. 20, 2010); Jackson v. Metro. Gov't, No. M2009-01970-COA-R3-CV, 2010 WL 2287639, at *3 (Tenn. Ct.App. June 7, 2010); Morris v. Grusin, No. W2009-00033-COA-R3-CV, 2009 WL 4931324, at *3 (Tenn.Ct.App. Dec. 22, 2009); Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183, at *2 n. 3 (Tenn.Ct.App. Dec. 16, 2009); IV. Express, Inc. v. Brentwood Servs., Inc., No. M2008-02227-COA-R3-CV, 2009 WL 3448747, at *9 (Tenn.Ct.App. Oct. 26, 2009); Hermosa Holdings, Inc. v. Mid-Tenn. Bone Joint Clinic, P.C., No. M2008-00597-COA-R3-CV, 2009 WL 711125, at *3 (Tenn.Ct.App. Mar. 16, 2009); Ind. State Dist. Council of Laborers v. Brukardt, No. M2007-02271-COA-R3-CV, 2009 WL 426237, at *7 (Tenn.Ct.App. Feb. 19, 2009).

Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183, at *2 (Tenn. Ct. App. Dec. 16, 2009).

Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183, at *4 (Tenn. Ct. App. Dec. 16, 2009) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513 (1st Cir. 1988)). Indeed, the Tennessee Supreme Court has recognized that despite the liberal pleading standard set forth in Tennessee Rule of Civil

"[T]he threshold for surviving a motion to dismiss for failure to state a claim upon which relief can be granted is 'generally low.'" Moses v. Dirghangi, 430 S.W.3d 371, 378 (Tenn. Ct. App. 2013), perm. app. denied (Feb. 11, 2014) (quoting Steele v. Ritz, No. W2008-02125-COA-R3-CV, 2009 WL 4825183, at *4 (Tenn. Ct. App. Dec. 16, 2009) (describing the requirements as "minimal"). A petitioner is not required to prove his case at the motion to dismiss stage.

The court need not conjure up unpled allegations or contrive elaborately arcane scripts in order to carry the blushing bride through the portal.Steele v. Ritz, No. W2008–02125–COA–R3–CV, 2009 WL 4825183, at *4 (Tenn.Ct.App. Dec. 16, 2009) (quoting Gooley v. Mobil Oil Corp., 851 F.2d 513 (1st Cir.1988)). Indeed, the Tennessee Supreme Court has recognized that despite the liberal pleading standard set forth in Tennessee Rule of Civil Procedure 8.01 “ ‘[t]here is no duty on the part of the court to create a claim that the pleader does not spell out in his complaint.’ ” Trau–Med of America, Inc. v. Allstate Ins. Co., 71 S.W.3d 691, 704 (Tenn.2002) (quoting Donaldson v. Donaldson, 557 S.W.2d 60, 62 (Tenn.1977)).