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IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF TEXAS 

AUSTIN DIVISION 

AUDREY DUFF, 

Plaintiff, 

v. 

BETTY BEWLEY, 

Defendant. 

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CAUSE NO. 1:20-CV-00375-RP 

MOTION TO DISMISS 

 Defendant Betty Bewley moves to partially dismiss defamation claims asserted by 

Plaintiff Audrey Duff in this suit. Bewley also moves to dismiss Duff’s claim for intentional 

infliction of emotional distress because that claim fails as a matter of law. 

BACKGROUND 

 Audrey Duff alleges that her mother, Betty Bewley, published a defamatory 

statement by sending a text message to Duff’s father, Doug Duff, on May 1, 2018. Am. 

Compl. [#7] ¶ 6. According to Audrey, the text message accused her of having an incestuous 

relationship with her father. Id. ¶ 8. 

Duff also alleges that Bewley “repeated these same allegations” during 14 different 

phone conversations with Doug Duff that occurred between September 30 and October 25, 

2019. Id. ¶ 7. But phone records attached to Duff’s complaint show that only one phone call 

was placed to Doug Duff during that time span, on October 2, 2019. The other 13 phones 

calls were all placed to Bewley’s daughter, Jodie Pennington. Compare id. at 8 (phone records 

for 432-557-8846), with id. at 9–15 (phone records for 432-557-8851, labeled “Jodie – my 

sister”). 

In February 2020, Duff brought this lawsuit, asserting a defamation claim against 

Bewley in connection with the May 2019 text message. On April 29, 2020, Duff amended 

her complaint and added a claim for intentional infliction of emotional distress. Bewley now 

moves to partially dismiss Duff’s claims. 

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ARGUMENT 

Under Rule 12(b)(6), courts must dismiss claims when the facts pleaded in support 

do not state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 679 

(2009). “A claim has facial plausibility when the plaintiff pleads sufficient factual content 

that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Iqbal, 566 U.S. at 678. In addition to the plaintiff’s pleaded factual 

allegations, the court must also consider documents attached to the complaint or 

incorporated by reference. See, e.g., Funk v. Stryker Corp., 631 F.3d 777, 783 (5th Cir. 2011). 

I. Duff cannot bring a defamation claim based on Bewley’s May 2018 text message 

because the statute of limitations has run. 

 Duff alleges that Bewley sent that message to Doug Duff on May 1, 2018. Compl. 

[#1-2] ¶ 6. But in Texas, the statute of limitations for defamation claims is just one year. TEX.

PRAC. & REM.CODE § 16.002(a). That limitations period expired in May 2019—long before 

Duff sent her retraction letter or brought these claims. Id. This Court should dismiss Duff’s 

claim for defamation based on the May 2018 text message as barred by the statute of 

limitations.1 See Jones v. Alcoa, Inc., 339 F.3d 359, 366 (5th Cir. 2003) (“A statute of 

limitations may support dismissal under Rule 12(b)(6) where it is evident from the plaintiff’s 

pleadings that the action is barred and the pleadings fail to raise some basis for tolling or the 

like.”). 

II. Duff cannot recover exemplary damages. 

 Under Texas law, plaintiffs can only recover exemplary damages for a defamatory 

statement if they request a “correction, clarification, or retraction” within 90 days of 

learning of the statement. See TEX. CIV. PRAC. & REM. CODE § 73.055(c). The retraction 

request must be in writing and must “state[] with particularity the statement alleged to be 

false and defamatory” as well as “the defamatory meaning of the statement.” Id. 

§ 73.055(d)(2)–(3). 

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 To her credit, Duff has now tacitly acknowledged that this alleged defamatory statement is a nonstarter. See 

Am. Compl. [#7] ¶ 24 (“It is possible that recovery based on the text message . . . is time-barred.”). 

Case 1:20-cv-00375-RP Document 8 Filed 05/12/20 Page 2 of 4
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 The retraction demand attached to Duff’s complaint shows that Duff requested 

Bewley retract a single defamatory statement—the May 2018 text message sent to Doug 

Duff. See Am. Compl [#7] at 17–18 (“We request that you retract the defamatory statement 

that you published and remit payment in the amount of $500,000 . . . .”). But as explained 

above, Duff cannot bring a defamation claim based on that message because the statute of 

limitations has run as to that claim. And Duff has not requested that Duff retract any other 

defamatory statements. See id. Since Duff failed to request retraction of any of the other 

alleged defamatory statements within 90 days, Duff cannot recover exemplary damages for 

those statements. 

III. Duff’s claim for intentional infliction of emotional distress fails as a matter of 

law. 

 Frequently asserted but rarely successful, intentional infliction of emotional distress 

is a gap-filler tort that was “never intended to supplant or duplicate existing statutory or 

common-law remedies.” Tubbs v. Nicol, 675 F. App’x 437, 439–40 (5th Cir. 2017). If the 

“gravamen of a plaintiff’s complaint is the type of wrong” already addressed by a separate 

common-law or statutory remedy, a plaintiff “cannot maintain” a claim for intentional 

infliction of emotional distress—regardless of whether those alternative remedies are 

available or not. Id. 

 Here, Duff asserts a claim for intentional infliction of emotional distress because her 

defamation claim based on the May 2018 text message is barred by the statute of limitations. 

Am. Compl. [#7] ¶ 24. See Am. Compl. [#7] ¶ 24. That is not how the tort works. Duff has 

already tried to assert a defamation claim based on that text message, and the gravamen of 

her complaint is clearly defamation. Because intentional infliction of emotional distress is not 

available as an end-run around the statute of limitations for defamation, Duff’s emotionaldistress claim fails as a matter of law. See Tubbs, 675 F. App’x at 440 (concluding IIED claim 

failed as a matter of law because “the gravamen of [plaintiff’s] complaint is clearly 

defamation”). The Court should dismiss this claim with prejudice. 

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CONCLUSION 

 The Court should dismiss with prejudice Duff’s defamation claim based on the 

May 2018 text message, because that claim is barred by the statute of limitations. Further, 

because Duff has not sought a retraction as to any other statements, Duff cannot recover 

exemplary damages in this case, and this Court should dismiss Duff’s claim for exemplary 

damages as a matter of law. Finally, the Court should dismiss Duff’s claim for intentional 

infliction of emotional distress with prejudice because that tort is not available in these 

circumstances. 

Respectfully submitted, 

/s/ Timothy Cleveland 

Timothy Cleveland 

State Bar No. 24055318 

Austin H. Krist 

State Bar No. 24106170 

CLEVELAND | TERRAZAS PLLC 

4611 Bee Cave Road, Suite 306B 

Austin, Texas 78746 

512-689-8698 

tcleveland@clevelandterrazas.com 

akrist@clevelandterrazas.com 

CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing documents was served 

on all counsel of record by way of e-service through the CM/ECF system as well as by e-mail 

on May 12, 2020. 

/s/ Timothy Cleveland 

 Timothy Cleveland 

Case 1:20-cv-00375-RP Document 8 Filed 05/12/20 Page 4 of 4