Netflix Makes Motion to Dismiss Defamation Suit Filed by Retired Manitowoc County Cop — Andrew Colborn

First Amendment and Failed Legal Claim Expected to Drop Wisconsin Cop's Effort to Silence Critics of Police Frame-up

Update: In July 2019, U.S. District Judge Pamela Pepper published a NOTICE of Hearing on pending motions set for December 19, 2019.

It appears likely Judge Pepper will dismiss Colborn's legal action, Colborn v. Netflix, Inc (1:19-cv-00484).

Just as likely, Colborn will appeal the case to the United States Court of Appeals for the Seventh Circuit.
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Madison, Wisconsin — The distributor of the Emmy-winning Making a Murderer documentary series, Netflix, Inc, is asking a federal court to dismiss a defamation lawsuit filed by a retired lieutenant of the Manitowoc County Sheriff's Office, (ANDREW L. COLBORN, Plaintiff, vs. Civil No.: 19-CV-484 NETFLIX, INC.; CHROME MEDIA LLC, F/K/A SYNTHESIS FILMS, LLC; LAURA RICCIARDI; AND MOIRA DEMOS, Defendants. MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BY NETFLIX, INC) (May 9, 2019).

Lt. Andrew Colborn (ret) filed an assault-defamation action against Netflix, Inc and others on Dec 17, 2018.

Netflix and others' Memorandum in support of its motion to dismiss notes deficiencies in the law enforcement officer Colborn's amended defamation complaint on First Amendment grounds; and on the failure to meet the low threshold of stating a claim upon which relief can be granted, citing Federal Rules of Civil Procedure, 12(b)(6). 

Reads the motion:

MEMORANDUM IN SUPPORT OF MOTION TO DISMISS BY NETFLIX, INC

Andrew L. Colborn, a sworn law enforcement officer, brings this lawsuit over a documentary television series that uses the unique experiences of Steven Avery, a DNA exoneree charged with murder, to provide a window into the American criminal justice system. Taking viewers from Avery’s 1985 wrongful conviction for rape through his 2005 arrest and prosecution for murder, the series explores whether twenty years of scientific advances and legislative reforms have resulted in a more reliable system. As is obvious from even this brief summary, as well as the nationwide, contemporaneous media coverage of Avery’s prosecution and trial, the series—titled  Making a Murderer— explores issues of the utmost public interest and concern.

Given the subject matter of  Making a Murderer and Colborn’s status as a public official, to prevail in this defamation case, he must plead and prove that Defendants  published the documentary series with “actual malice”—i.e., either knowing it was false or despite a “high degree of awareness” of its “probable falsity.” Garrison v. Louisiana , 379 U.S. 64, 74 (1964). Even if Colborn were not a public official, he would still be obliged to plead and prove that Defendants negligently disseminated a material falsehood about him. Gertz v. Robert Welch, Inc. , 418 U.S. 323, 352 (1974).

With regard to defendant Netflix, Inc., however, Colborn’s Amended Complaint comes nowhere close to satisfying federal pleading standards. Instead, he simply lumps Netflix together with co-defendants Chrome Media, LLC—the concededly independent production company that created Making a Murderer —and its filmmakers, Laura Ricciardi and Moira Demos, and makes vague, conclusory allegations (on “information and belief,” no less) about “defendants” collectively.

Setting aside all the other problems with Colborn’s lawsuit—most fundamentally, that Making a Murderer contains no false statements of fact about him—he has not plausibly alleged that Netflix distributed the documentary series negligently, much less with the requisite actual malice. All of his claims against Netflix should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(6).
1 See, e.g., Monica Davey, Freed by DNA, Now Charged in New Crime, NYTimes.com (Nov. 23, 2005), https://www.nytimes.com/2005/11/23/us/freed-by-dna-now-charged-in-new-crime.html?searchResultPosition=1.

Correction: Motion to dismiss includes remaining co-defendants, (Appleton Post-Crescent).


The effort by Colborn and former Manitowoc County prosecutor Michael C. Griesbach to advance a legal action based upon failing arguments is consistent with the institutional disregard for life and liberty in the corrupt Manitowoc County Sheriff's Office and Calumet County Sheriff's Office and respective county district attorneys' offices.

Advocates for Steven Avery, who was framed for murder in 2005, are watching the developments of what they believe is an increasingly desperate Wisconsin law enforcement effort to protect a wrongful conviction.

Colborn v. Netflix Inc et al, Case # 1:19-cv-00484, was removed from Manitowoc County circuit court to federal court on April 10, 2019. 

The case is being heard by Judge Pamela Pepper, United States District Judge of the United States District Court for the Eastern District of Wisconsin.

The text of the Motion to Dismiss is reproduced below:

Netflix Motion to Dismiss by on Scribd