Opinion
Civ. A. No. 60-484.
September 16, 1960.
Patterson, Crawford, Arensberg Dunn, Pittsburgh, Pa., for plaintiff.
Moorhead Knox, Pittsburgh, Pa., for defendant.
In this action for damages alleging defamation of character, defendant moves to dismiss the complaint for failure to state a claim upon which relief can be granted, Rule 12(b) Federal Rules of Civil Procedure, 28 U.S.C.
The complaint alleges, inter alia, that defendant, a mercantile reporting corporation, submitted a report concerning the plaintiff's moral character to one of its subscribers to whom plaintiff had made application for employment, that was scandalous, derogatory and defamatory, and that such publication was made by the defendant maliciously and in wanton and reckless disregard of plaintiff's rights.
Counsel for defendant contends that the allegation is not inclusive of the requirement that a complainant must assert an abuse of the privileged relationship existing between the defendant and its subscriber, Campbell v. Willmark Service System, 3 Cir., 123 F.2d 204.
A motion to dismiss a complaint must be viewed in the light most favorable to the plaintiff. A complaint should not be dismissed unless it appears to a certainty that plaintiff would not be entitled to relief under any state of facts which could be proved in support of his claim; further, no matter how likely it may seem that the pleader will be unable to prove his case, he is entitled upon averring a claim to an opportunity to try to prove it. Frederick Hart Co., Inc. v. Recordgraph Corp., 3 Cir., 169 F.2d 580.
I am satisfied that construing the complaint in a light most favorable to plaintiff, the allegation embraces language sufficient to allege an abuse of a privileged relationship, and states a claim upon which relief can be granted.
Defendant's motion to dismiss the complaint will be refused.
An appropriate order is entered.