daniel steinhart and stacy luther metz guy i respectfully request approximately four minutes for rebuttal and to address the issue the appeal of the attorneys can watch your time i'll try to help  you there thank you thank you for the opportunity to do this oral argument this appeal questions the district court's dismissal of a complaint for an intentional infliction of emotional distress caused by received a private threatening e mail from ted whole teen the arts and entertainment director of the durango herald to the  and in this situation the district court failed to allies the totality of the circumstances surrounding that e mail specifically instead well i think one of the things in your briefing you contend the whole team was in a position of power and that this position affects the outrageousness of his contract did you make that argument in the district court and if you didn't why i don't see any basis for us to consider it at this point ok ms now i realize this is always a hazard of the appellate counsel is you have to take the record as you find there there is an issue regarding the totality of the surrounding circumstances of an e mail that when a plaintive alleges outrageous behavior as a matter of law the trial court must analyze the totality of the defendant's conduct and that's in  is in the colorado jury instructions and versus their bread dots on the one nine hundred eighty two case colorado also states that although that colorado case that you first mentioned yes there was there were questions falsity i think and defamation and the communication was distributed we have quite a different as you characterized it here it's a private e mail so i'm having some trouble understanding how that first colorado case really has applicability here yeah there's other cases grain versus quest reviewed the colorado jury instructions from two thousand and fifteen and the in those jury instructions that give sources and authorities for that particular specifically are you saying is the totality here because i notice one thing in your brief you state that whole team later informed delavan that other specified person shared delavan meant when he said other shared his negative comments i would say that others shared his negative comments is what was said that others well that's focus sad but is your interpretation that that means that did he actually say others wanted him harmed and dad no so it's your interpretation of what other shared the negative comments yes ok would you elaborate on one thing yes there's some suggestion again it's the record below there was no request to a man and and no proffer of what the amendment would say yes i think in your brief you use the term the e u could amplify existing allegations if the only real evidence is the e mail what would be the amplification that would be offered up well i think it would be circumstances surrounding that  because in making this decision like i'm sorry like what i think i had some information and that for example excuse me just a moment i mean what you need to do is give us a proffer of what the complaint would say that would be different than what it said last time well some of the facts i don't think were introduced and you're asking me for the facts that weren't in it is that correct well i'm asking yes we don't have it in the trial court we now say well maybe it could be amplified and judges in general don't like to dismiss things without prejudice and we don't necessarily like to see things dismissed without prejudice but with we don't have any foundation of what facts would change the calculus i don't see how there is any error here i think i know that you i know that you have that you're talking about the amendment of the complaint right now correct and we've switched from the totality of the circumstances as though that's not an issue but i'll go i'll go back and we're not i don't want you to think that we don't think it's an issue it's just that  we have questions on a variety of subjects without putting a priority on one or the other thank you in terms of amending the complaint i think that at the time  there was no response that came from the actual newspaper and they were apprised of and aware of this e mail that had come in and the newspaper did not respond at all i mean that seems kind of odd to me because it's sort of like saying we wrote you an email we'd like some publicity and we didn't hear from you how can that be a basis for a legal complaint the content of the e mail on that date and the newspaper failed to respond at all and is that a crime or some kind of tort well it seems to me your honor it might be bad manners but maybe there's a legal basis to like i guess the the idea is looking at the facts surrounding the case people come to an area they're not for a million with on the date and they've had a relationship with a newspaper because they've been placing ads and they've been corresponding and that kind of thing and on the day of the actual concert everybody is there everybody is prepared and then this particular e mail comes  and so when it comes then the police are notified and various things happen that you know of that are on the record and so when when the newspaper also asked about this there's no response and so i think that this is this is another thing leading to them being  complicit somehow or and not knowing exactly why there would be no response and what what was that about what was that leading to i think the outrageousness here relates to  sort of a dishonest response to a request that had been made on june ninth to go ahead and do an editorial and put something on the calendar to have that response come in on the morning of something  that's going to happen with a lot of people away from their homes and so on and in the wake of all the violence and gabby giffords thing that happened in and you know that was very close and i think that  for that for the individuals they were and this was not also they went ahead with the concert right but the concert or the event took place yes ok and nobody at the event got this e mail correct that we know of nobody at the event got it because and not too many people showed up for the event well and that's an interesting thing because well yes or no where there are many no no no and it is are you somehow attributing that to the newspaper i'm attributing that to the fact that there was police on this please notify that day and it's a small community and that you have any evidence that they do you have any evidence in the record on that argument in terms of people saying they didn't show up because of x or no your honor ok not if not you may want to save yeah i think your remaining time i'll sa at issue that gave rise to the claim does not constitute extreme an outrageous conduct that presents a jury question the just record appropriately found that consistent with colorado case law and specifically relying upon is it is also a single event as your honour's has already indicated the argument concerning a power relationship even if it were valid which is not was not raised below it's not properly before the court i can address brief actually i think as an adequate job for explaining why on the merits there's no basis to that argument but it was not raised below and so looking at colorado case law and the absence of a special relationship or fiduciary relationship of some sort or power relationship between the parties it is not impossible for a single act to constitute an extreme and in their statements to be sufficiently outrageous well let me i mean at minimum this was in a very rude and unprofessional response no question about it around or let me see if i can answer the question two ways first of all the tort is for extreme and outrageous conduct and so unquestionably a single act of conduct threatening behavior physical attack assault conduct a single action by a without physical ramifications it could still rise to the level of the tour yes absolutely a scene you know where your kids go to school i know where you go to work i know what time you get up i know when you have coffee and and i'm going to be there exactly a a very concrete is that's right true threat can i be threatened by that if someone says that to me that i intend to attack you a different based on statutes and case little bit different well the trying to tell anyone here it's like you'll be lucky don't leave durango without being in handcuffs or slaughtered by an angry mob and we're not idiots here concerning a president of the united states or a prison guard and you know are we just assumed that this person that made this threat because he's this person sapan pencil pusher you now sitting behind it das that we don't have to be worried about him well again i respectfully disagree there are some pencil pushers that have done some pretty violent things i agree but we look at the context of the speech and the speech itself and under this court's precedents i would respectfully suggest your honor is that cannot be deemed a threat and if it is not a threat as we argued below it's protected by the first amendment and it's neither vs phelps a case involving intentional infliction of emotional distress claim under state tort law for the west by road baptist church present confrontation at the funeral of the fallen soldier including you're going to hell and other highly offensive and inappropriate communications deemed to be on a matter of public concern the us supreme court said the first amendment bars the implicate the imposition of any civil tort liability for the very tort alleged here intentional infliction of emotional distress for speech that is protected by the first article concerning ms lee could constitute intentional infliction of emotional distress claim was because it was false and it was knowingly or recklessly false falling into the category of unprotected speech of libel as defined by new york times versus sullivan and the court expressly just sting wished the gordon movie boyles case in which colorado supreme court where also a defamation intentional infliction case where there was a tagalong claim of four at defamation even though one of the allegations that officer boils clearly went further though than i hate your music here you know he said for light i mean he seems to  fired my way it'll be in prison or worse i hope you play to an empty venue tonight to example hi how are relevant you are so that that you're doing well there it's disgusting the way you people prey on the unsuspecting and  only a matter of time before tony delavan not gabriel not a prophet not a c or tony fellow and gets what's coming to him so what's coming and any of you that helped him perpetuate his crimes are just as guilty oh yeah and you know talent produced a singularly worst music i've ever heard in my life you'll be lucky to leave durango without being in handcuffs or slaughtered by an angry mob we're not idiots around here like the suckers you broke in down in arizona if there was a hell i'd wish you were burn there for eternity but since there is no place to exist i can only hope that you suffer horribly painful death shame on you yes and i would do for your honor to pay just thirty two and thirty three if our  and the court there found that that was not a true threat and we have a variety of cases cited in our pages have all one but i think her argument wise it's the totality of the circumstances you have one here one there you know i mean some of it clearly goes to i hate your music and i take this you know let me suggest is that if the court were to find that the totality of the circumstances the content of the speech and the interaction between the defendant and the pla station manager all of that was acknowledged by the district court in its findings if this court were to find that that and sitting to nova review that that constitutes a cognizable claim a dreary question i read the whole email so assuming that we agree with you and i'm just it's a hypothetical add one more sentence that would take this run free speech to a threat at one of our sentenced all of that to me that would tells me that it would take it to a threat and if you guys show up i intend to blow up the auditorium and if you continue to prevent one you argue well that's just rhetorical well i don't know but i  what that would be enough i'm not sure but that it clearly has to be more than what was said because what was said is the hope that they die a miserable death and under this court's  precedents those are not true threats they're protected speech so we're this court to find that they make a claim for outrageous conduct under colorado law it with the necessarily then we'd go into the first amendment and have to read analysis correct what what what both of one of which was found to be true and the court says in hanley because it was found to be true with their four could not serve as the basis for an outrageous conduct claim because true speech is protect it also said the following we have kind of an interesting thing first we have an opinion of course so that can't be a false or rather not false we have an opinion i don't want you know you have really bad music ok kind of takes out the first part the real focus of course is the being slaughtered by a mob and suffering horrible death so if i understand your analysis we look at that including the whole ema under colorado law and if we somehow think that there is either factual issues or the potential that there could be a tort we would still need to then go to the first amendment and and he speech on a matter of public concern not constituting recognize category one protected speech cannot serve as the basis for asking is why should that we should interpret this fact as indicating that arizona public policy disfavors laws such as colorado what's your response to that my response is that the district court properly applied   if this case wearing arizona state court it too would have applied colorado substantive law because the attorneys fees provision is part of colorado's tort law it is it's substantive law including its cap on non economic  outrageous conduct case and the restatement third of toward section forty six says states incorporate those first amendment limitations into their common law florence and that's  instructions that are given it says a single incident may constitute already just conduct if the incident would be so regarded by a reasonable member of the community and it also goes on to state in terms of the sources and authorities for those jury instructions it says angle incident will give rise to outrageous conduct he conceded that he said a single incident can he said on to say if the incident involves far more than an isolated unkindness or insult and consists of conduct that meets the definition of outrage as expressed in the instruction and of course he makes the distinction that there is no conduct  issue only speech what is your response to that i would say because this is this is when they're talking about conduct they're actually talking about the totality of the conduct which includes the e mail and all the surrounding circumstances and that is something that i think has been briefed so anyway that that is the totality of the conduct can go further than just  just a single incident in terms of the that's reasonable well you you use argue in your briefing that the district court should have considered th substantial quote unquote policy of arizona before applying the colorado fifteen statute what policy where you are referring to you don't tell me what you're referring to say a substantial policy  you can't just say that and expect me not to ask you that i understand your honor i would say that i can't i can't respond but i can send you i can send you a response to that might want to address the attorney's fees because even if your client were to lose on the substantive unfortunately at the receiving end of a big attorney feel bored do you want to address the attorney's fees issue yes please i do i i would just say that as far as the attorney is applying the colorado mandatory statute that applies when colorado is the form state for diversity purposes and it's been it's been briefed and it says that the availability of attorneys fees is governed by the law of the forum state and there many many cases cited the carnes case and and that whole progeny of cases surrounding that all right thank you do you have any further questions at all here is not thank you thank you thank both counsel for your arguments this morning delavan versus whole team is submitted thank you