Almanzar v. Kebe

USCA11 Case: 22-10871 Date Filed: 05/27/2022 Page: 1 of 41
No. 22-10871
IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
BELCALIS MARLENIS ALMANZAR,
Plaintiff-Appellee,
v.
LATASHA TRANSRINA KEBE and KEBE STUDIOS, LLC,
Defendants-Appellants.
Appeal from the United States District Court

for the Northern District of Georgia, Atlanta Division
Case No. 1:19-cv-01301-WMR
OPENING BRIEF OF APPELLANTS
OLGA IZMAYLOVA
SADEER SABBAK
SABBAK & IZMAYLOVA, P.C.
1875 Old Alabama Road
Suite 510
Roswell, GA 30076
p. (404) 793-7773
f. (770) 797-5887
olga@silawatl.com
sabbak@silawatl.com
Counsel for Defendants-Appellants

Latasha Kebe and Kebe Studios, LLC
Almanzar v. Kebe, et al., No. 22-10871
CERTIFICATE OF INTERESTED PERSONS AND

CORPORATE DISCLOSURE STATEMENT
In accordance with Federal Rule of Appellate Procedure 26.1 and Eleventh
Circuit Rule 26.1, Appellants provide the following certificate of interested persons
and corporate disclosure statement.
The undersigned counsel of record certifies that the following is a full and
complete list of all trial judges, attorneys, persons, associations of persons, firms,
partnerships, or corporations that have an interest in the outcome of the particular
case or appeal, including subsidiaries, conglomerates, affiliates, parent corporations,
any publicly held corporation that owns 10% or more of the party’s stock, and other
identifiable legal entities related to a party:
Adelman, Gary – counsel for Plaintiff/Appellee Belcalis Almanzar
Almanzar, Belcalis Marlenis – Plaintiff/Appellee
Izmaylova, Olga – counsel for Defendants/Appellants
Kebe, Cheickna – co-owner of Kebe Studios, LLC
Kebe, Latasha Transrina – Defendant/Appellant
Kebe Studios, LLC – Defendant/Appellant
Matz, Sarah - counsel for Plaintiff/Appellee Belcalis Almanzar
Moore, Lisa - counsel for Plaintiff/Appellee Belcalis Almanzar
Pequignot, Andrew - counsel for Plaintiff/Appellee Belcalis Almanzar
Ray, William M. – district court judge
C-1 of 2
Almanzar v. Kebe, et al., No. 22-10871
Sabbak, Sadeer – counsel for Defendants/Appellants
The undersigned counsel further certifies that no publicly traded company or
corporation has an interest in the outcome of the case or appeal.
Dated: May 27, 2022 /s/Olga Izmaylova

Olga Izmaylova
Counsel for Defendants/Appellants
Latasha Kebe and Kebe Studios, LLC
C-2 of 2
STATEMENT REGARDING ORAL ARGUMENT
Defendants-Appellants, Latasha Kebe and Kebe Studios, LLC, believe that
oral argument in this matter is unnecessary because the facts and legal arguments
are adequately presented in the briefs and record, and the decisional process would
not be significantly aided by oral argument.
Should oral argument be deemed appropriate, however, Defendants-
Appellants do not waive their participation.
i
TABLE OF CONTENTS
Certificate of Interested Persons and Corporate Disclosure Statement . . . . . . . . C-1
Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i
Table of Contents . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . ii
Table of Citations . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . iv
Statement of Jurisdiction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
I. Course of Proceedings . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2
II. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
III. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
I. The Evidence Was Not Sufficient to Support a

Verdict for Plaintiff . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
A. There Was Not a Clear and Convincing Showing of

Actual Malice to Support a Verdict for Plaintiff
on the Defamation Claims . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
B. There Was Not a Clear and Convincing Showing of

Actual Malice to Support a Verdict for Plaintiff
on the False Light Invasion of Privacy Claim . . . . . . . . . . . . . . . 25
C. The Evidence Was Insufficient to Support a

Verdict for Plaintiff on the Intentional Infliction of
Emotional Distress Claim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .26
ii
II. The District Court Erroneously Excluded

Evidence of Plaintiff’s Character . . . . . . . . . . . . . . . . . . . . . . . . . . . .28
III. The Verdict Was Not Entered Upon a Proper Basis,

Therefore, the Verdict Cannot Stand . . . . . . . . . . . . . . . . . . . . . . . . .30
Conclusion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31
Certificate of Compliance . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 32
Certificate of Service . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 33
iii
TABLE OF CITATIONS
CASES
Abdul-Malik v. AirTran Airways, Inc.,

678 S.E.2d 555 (Ga. Ct. App. 2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
Bollea v. World Championship Wrestling, Inc.,

610 S.E.2d 92 (Ga. Ct. App. 2005) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21
Cottrell v. Smith,
788 S.E.2d 772 (Ga. 2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20, 24
EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am.,

845 F.3d 1099 (11th Cir. 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
Ga. Power Co. v. Busbin,

250 S.E.2d 442 (Ga. 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .30
Goldsmith v. Bagby Elevator Co., Inc.,

513 F.3d 1261 (11th Cir. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18
*Howerton v. Harbin Clinic, LLC,

776 S.E.2d 288 (Ga. Ct. App. 2015) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 28
*Hunt v. Liberty Lobby,

720 F.2d 631 (11th Cir. 1983) . . . . . . . . . . . . . . . . . . . . . . . 18, 20, 21, 22, 25
Jones v. Fayette Family Dental Care, Inc.,

718 S.E.2d 88 (Ga. Ct. App. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 27
Lively v. McDaniel,
522 S.E.2d 711 (Ga. Ct. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26
Monge v. Madison Cnty. Record, Inc.,

802 F. Supp. 2d 1327 (N.D. Ga. 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23
N.Y. Times Co. v. Connor,

365 F.2d 567 (5th Cir. 1966) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20, 21
iv
N.Y. Times v. Sullivan,

376 U.S. 254 (1964) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .20
*Rosanova v. Playboy Enters., Inc.,

411 F. Supp. 440 (S.D. Ga. 1976) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 25
*Schafer v. Time, Inc.,

142 F.3d 1361 (11th Cir. 1998) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18, 28, 29
*Smith v. Stewart,
660 S.E.2d 822 (Ga. Ct. App. 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 25, 30
*St. Amant v. Thompson,

390 U.S. 727 (1968) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21, 24
Troncalli v. Jones,
514 S.E.2d 478 (Ga. Ct. App. 1999) . . . . . . . . . . . . . . . . . . . . . . . . . . . 27, 30
Vandenburg v. Newsweek, Inc.,

507 F.2d 1024 (5th Cir. 1975) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20
*Wolff v. Middlebrooks,
568 S.E.2d 88 (Ga. Ct. App. 2002) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26, 30
FEDERAL STATUTES
28 U.S.C. § 1291 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
28 U.S.C. § 1332 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
v
STATEMENT OF JURISDICTION
The district court had jurisdiction over the subject matter of this action based
on diversity of citizenship pursuant to 28 U.S.C. § 1332. After a jury returned a
verdict for Plaintiff, the district court entered final judgment on February 17, 2022.
R206 1. Defendants filed a timely notice of appeal on March 17, 2022. R228. This
Court has jurisdiction of appeals from all final decisions of the district court pursuant
to 28 U.S.C. § 1291.
STATEMENT OF THE ISSUES
1. Whether the evidence was sufficient to support a verdict for Plaintiff.
2. Whether the district court committed evidentiary errors.
3. Whether a general verdict for Plaintiff against the Defendants was entered
upon a proper basis.
STATEMENT OF THE CASE
The Appellants were the Defendants in the district court and, collectively, will
be referred to as the Defendants. Latasha Kebe will be referred to as Ms. Kebe and
Kebe Studios, LLC will be referred to as Kebe Studios. The Appellee, Belcalis
Almanzar, will be referred to as the Plaintiff.
1
This brief uses the following abbreviations: “R__ at ___” refers to the case record
and lists the document number on the district court docket sheet, followed by a page
number of the document, if applicable. “P__” refers to exhibits Plaintiff moved into
evidence at trial. “D__” refers to exhibits Defendants moved into evidence at trial.
1
1. Course of Proceedings
On March 21, 2019, Plaintiff filed a complaint in this action, naming Ms.
Kebe and Starmarie Ebony Jones (hereinafter referred to as “Jones”) as co-
defendants. R1. The complaint consisted of four counts: the first three counts alleged
defamation and the fourth count alleged invasion of privacy. Id. Ms. Kebe timely
filed her answer, raising truth and privilege as two of her affirmative defenses. R5.
Ms. Kebe also filed a counterclaim for slander per se, punitive damages, and
litigation expenses. Id.
On June 12, 2019, Plaintiff filed her first amended complaint, adding three
more counts, alleging intentional infliction of emotional distress, punitive damages,
and litigation expenses. R11. Ms. Kebe timely filed an answer, again raising truth
and privilege as two of her affirmative defenses. R12. Ms. Kebe also amended her
counterclaims, adding assault and intentional infliction of emotional distress. Id. The
parties filed a joint preliminary report and discovery plan on August 26, 2019. R17.
After several extensions from the district court, the discovery period was
scheduled to end on November 29, 2020. R57. On the last day of the discovery
period, Plaintiff filed her second amended complaint, removing Jones and adding
Kebe Studios as a co-defendant. R69. On April 8, 2021, the district court heard oral
argument from counsel regarding summary judgment and took the matter under
advisement. R145. On July 8, 2021, the district court entered an order, granting
2
summary judgment as to Ms. Kebe’s counterclaims and denying summary judgment
as to Plaintiff’s claims. R150.
On October 14, 2021, the parties filed a proposed pretrial order. R159. Over
the next month, the parties filed their motions in limine, R163-R165, and their
respective responses to said motions, R166-R168. The district court held a pretrial
conference on November 9, 2021. R177, R181. Jury trial began on January 10, 2022.
R189.
On January 24, 2022, the jury returned a general verdict for Plaintiff, finding
the Defendants jointly and severally liable for defamation, invasion of privacy (false
light), and intentional infliction of emotional distress, and awarding Plaintiff
$1,000,000.00 for pain and suffering and reputational injury, and $250,000.00 for
medical expenses. R198. The following day, the jury returned their second verdict
for Plaintiff, finding the Defendants liable for punitive damages ($1,000,000.00
against Ms. Kebe and $500,000.00 against Kebe Studios) and $1,338,753.47 in
litigation expenses. R204. Due to serious concerns that the evidence did not support
a $250,000.00 award for medical expenses, the parties stipulated, without waiving
any appellate rights, to reduce the medical expenses award to $25,000.00 and the
district court entered its final judgment on February 17, 2022. R206. Defendants
filed a timely notice of appeal on March 17, 2022. R228.
3
2. Statement of the Facts
Plaintiff is a Grammy award-winning musical artist and songwriter
professionally known as “Cardi B.” R159-5 at 1. Ms. Kebe is an entertainment and
celebrity news blogger whose brand is unWinewithTashaK. R79 at 23. Ms. Kebe is
the owner, producer, and host of a YouTube Channel called unWinewithTashaK. Id.
Ms. Kebe and her husband, Cheickna Kebe, are the only two members of Kebe
Studios and they each own 50% of its membership units. R159-5 at 2.
This controversy began in September of 2018, when Ms. Kebe published a
video on her YouTube channel, in which Ms. Kebe interviewed Jones regarding her
past friendship with Plaintiff. R69 at 7. Over the following three years, Ms. Kebe
and Plaintiff went back and forth with each other via their social media accounts,
and Ms. Kebe published several additional videos discussing Plaintiff. R159-5 at 8.
Since September of 2018, Plaintiff sent Ms. Kebe three separate requests to remove
certain videos and retract certain statements regarding Plaintiff. R159-5 at 5-7. Ms.
Kebe did not remove any of the requested videos or issue any retractions or
repudiations. R159-5 at 8.
Plaintiff sued the Defendants for slander and libel, alleging that they defamed
Plaintiff by publishing the following six statements: Plaintiff was a prostitute;
Plaintiff was a drug user, specifically cocaine; Plaintiff has herpes; Plaintiff has
HPV; Plaintiff engaged in a debasing act with a beer bottle; and Plaintiff committed
4
infidelity. R69 at 18-19. Plaintiff also sued for false light invasion of privacy, based
on the same six statements as her defamation claims, and intentional infliction of
emotional distress. R69 at 30-38. Plaintiff alleged that Defendants caused her
embarrassment, humiliation, mental anguish, emotional distress, and impairment to
her name, character, and reputation, for which Plaintiff sought general and special
damages. R69 at 23, 26, 29, 33, 37, and 40. Plaintiff also sought punitive damages
and litigation expenses. R69 at 38-39. Plaintiff is a public figure. R150 at 16.
At the trial, Ms. Kebe testified that the mission of unWinewithTashaK is to
investigate stories that sources bring to her, or that are already on the internet, and
determine whether those stories are real or fake. R212 2 at 75:5-10. Ms. Kebe
explained that when she said it is okay to put out fake news, she meant that
sometimes she will talk about a story on her YouTube channel specifically to inform
her viewers that, based on her investigation into that story, she has determined that
the story is fake, so the viewers should not believe it. R212 at 79:14-80:6.
As with most other stories that Ms. Kebe discusses on her YouTube channel,
she first heard about Jones when a video Jones published on her Instagram page,
detailing her relationship with Plaintiff, went viral. R212 at 100:24-101:15. Jones’
story was super viral and Ms. Kebe, much like a lot of other entertainment bloggers,
went after the story. R212 at 101:7-9. Ms. Kebe reached out to Jones and Jones
2
R212 is a Transcript of Jury Trial, Volume V of X.
5
agreed to record an interview with Ms. Kebe for Ms. Kebe’s YouTube channel. R212
at 102:20-103:11. On September 19, 2018, Ms. Kebe published the Jones interview
on her YouTube channel, titling it “Exclusive: Cardi B’s Ex-friend Alleges Cardi B
Kept a Huge Box filled with Monistat and Reveals More.” R212 at 104:14-19; see
also D67. The video of the Jones interview was admitted into evidence as
Defendant’s Exhibit 5 and published to the jury in its entirety. R212 at 105:12-17.
In the interview, Jones explained that she met Plaintiff in New York, when
Jones was working at a strip club there. See D5. Plaintiff asked Jones to get Plaintiff
a job at the strip club and, in exchange, Plaintiff agreed to let Jones live in Plaintiff’s
apartment with her. See id. Throughout the interview, Jones detailed her experience
as Plaintiff’s roommate and shared stories about what occurred inside the strip club
while they were working, as well as things they did after work. See id. Jones even
shared a story about the night she met up with Plaintiff and a man, whom Plaintiff
invited because Plaintiff agreed to have sex with him for money. See id.
Jones recalled that Plaintiff used drugs, such as molly and cocaine, and that
Plaintiff got cold sores on her lips. See id. Jones used the terms, herpes and cold
sores, interchangeably while talking about Plaintiff, so Ms. Kebe made sure to
clarify that Jones was not referring to genital herpes when she used the term, herpes.
See id. Jones confirmed that she was talking about Plaintiff’s cold sores, which are
one form of the herpes virus. See id. Even during Ms. Kebe’s cross-examination,
6
when asked whether she knew that Jones said Plaintiff had herpes, Ms. Kebe
answered, “[c]old sores to be exact.” R209 3 at 90:15-17. The jury also watched a
video Ms. Kebe published on her YouTube channel on December 18, 2018. R214 4
at 27:5-11. In that video, Ms. Kebe projected the definition of cold sores onto the
screen for the viewers and that definition stated that cold sores are an “infection with
the herpes simplex virus around the border of the lips.” See D8.
Once Plaintiff found out that Ms. Kebe interviewed Jones, Plaintiff initially
took to her social media and denied knowing Jones at all, but shortly thereafter,
Plaintiff posted a video on her social media, where Plaintiff admitted that she knew
Jones. R209 at 143:5-7. At trial, Plaintiff testified that she reached out to Ms. Kebe
via social media to notify her that Jones was lying about living with Plaintiff. R211
at 85:18-25. In response, Ms. Kebe offered Plaintiff the opportunity to come on Ms.
Kebe’s platform and tell Plaintiff’s side of the story, but Plaintiff declined an
interview with Ms. Kebe. R211 at 86:24-87:1. However, Plaintiff did provide Ms.
Kebe the names of some people, who worked with Plaintiff and Jones during the
period of time Jones discussed in her interview. R209 at 146:5-7. Ms. Kebe honored
Plaintiff’s request and had conversations with those people to see whether they
would corroborate Jones’ story. Id.
3
R209 is a Transcript of Jury Trial, Volume II of X.
4
R214 is a Transcript of Jury Trial, Volume VII of X.
7
After Ms. Kebe had conversations with the former co-workers, Ms. Kebe
released an update video on her YouTube channel on September 21, 2018. R214 at
13:16-18. The title of the video was “Actual Proof Cardi B Knew Her Ex-
Roommate, Drake, Funky Dineva vs Tamar, Beyonce Black Majic” and Ms. Kebe
explained that this video contained a variety of stories, so it wasn’t just about
Plaintiff. R214 at 13:6-15. In the video, Ms. Kebe revealed that Plaintiff’s former
co-workers corroborated some of the statements Jones made during her interview.
See D11.
Specifically, Ms. Kebe was able to confirm that the other co-workers did not
like Jones and that Plaintiff was the only one of them, who was nice to Jones and
even defended Jones at the strip club. See id. Additionally, Ms. Kebe confirmed that
Jones was punched in the face by one of their co-workers and that Plaintiff did try
to help Jones out while they were both working at the strip club. See id. Throughout
Ms. Kebe’s cross-examination, opposing counsel relentlessly talked about supposed
receipts Lovelyti had that discredited Jones’ story and made a huge deal about Ms.
Kebe not reviewing those receipts prior to publishing Jones’ interview. 5 Ms. Kebe
explained that Lovelyti did not discuss her receipts with Ms. Kebe because Lovelyti
wanted to make sure that her receipts weren’t fake. R214 at 15:18-20. In the proof
video, Ms. Kebe published Lovelyti’s screenshots and informed her viewers that
5
See, e.g., R209 at 126:6-10; R209 at 140:16-141:1; R209 at 150:20-25.
8
those screenshots were, indeed, fake because they were photoshopped. See D11.
Although Ms. Kebe did not corroborate every single word from Jones’ interview,
based on her conversations with the co-workers, Ms. Kebe concluded that Jones did
live with Plaintiff and that they were close because Plaintiff wouldn’t have bothered
to defend Jones at the strip club otherwise. See id.
In addition to the information Ms. Kebe obtained from Plaintiff’s former co-
workers, Ms. Kebe testified that she has seen pictures of Plaintiff with cold sores on
her lips. R214 at 35:20-36:21; see D3. Ms. Kebe has also seen pictures of Plaintiff’s
husband with cold sores on his lips. R214 at 39:1-12; see D68. Furthermore, Ms.
Kebe knew about tons of tweets regarding Plaintiff having herpes or cold sores,
dating back to 2015. R214 at 39:19-24. Ms. Kebe also heard the viral diss track
released by Josaline Hernandez (another Love & Hip Hop star), where she tells
Plaintiff to “worry about your herpe bumpy mouth.” R214 at 39:24-40:7. Ms. Kebe
also knew that Azealia Banks, another celebrity, talked about Plaintiff having cold
sores. R214 at 40:8-9. All those tweets, songs, and interviews are still available to
the public and Ms. Kebe testified that Plaintiff has never sued Josaline Hernandez,
Azealia Banks, or any other social media users for defamation. R214 at 40:18-24.
In fact, Plaintiff admitted on the stand that in May of 2018, Azealia Banks
publicly called her a “mediocre cold sore having bird,” which sparked an online feud
between Plaintiff and Azealia Banks. R211 at 158:7-13. Azealia Banks even
9
appeared on the Breakfast Club to talk about Plaintiff’s cold sores and their ongoing
feud. R211 at 158:14-18. Plaintiff also admitted that Azealia Banks’ tweets, posts,
and Breakfast Club interview are all still available online; yet, Plaintiff confirmed
that she has never sued Azealia Banks for defamation. R211 at 159:25-160:10.
And, finally, Ms. Kebe saw a video Plaintiff posted on social media, which
Ms. Kebe believed (based on her Google translator search) was Plaintiff’s admission
that she has cold sores. R215 6 at 166:11-15; see D8. Although, Ms. Kebe did find
out later that she was mistaken about what Plaintiff actually said in that video. R215
at 166:1-6.
Ms. Kebe testified that when she said Plaintiff used to be a prostitute, she
believed that to be a true statement because “Ms. Almanzar has made various videos
over the course of her career bragging about being a prostitute and having tricks.” 7
R214 at 43:21-44:2. Plaintiff testified that when she was a stripper, before she was
famous for her music, she became an internet sensation because of her posts on social
media. R211 at 78:7-13. A lot of Plaintiff’s content consisted of short videos of
herself informing her followers about various topics of interest. R211 at 144:16-25.
6
R215 is a Transcript of Jury Trial, Volume VIII of X.
7
A few of the videos Ms. Kebe was referencing in her testimony were authenticated
by Plaintiff, admitted into evidence, and published for the jury. See D6, D36, D37,
D57, D58, D60, D63.
10
Plaintiff admitted that she referred to herself as a stripper hoe in the videos she posted
on social media. R211 at 164:9-11.
Ms. Kebe was questioned about telling her viewers that Plaintiff put a beer
bottle in her vagina. R214 at 31:7-10. Ms. Kebe testified she made that statement
after she watched a video of a woman, dancing on stage at a strip club, grab a beer
bottle from a patron, put it up her vagina, take it out, and then give it back to the
patron. R214 at 31:7-25; see also D34. Ms. Kebe explained that she believed the
woman in the video was Plaintiff because she looked just like Plaintiff, and because
the title of the video was “Cardi B Puts Beer Bottle in her Pussy.” R214 at 32:8-9;
see also D34. The first time Ms. Kebe saw that video was on a website called
Pornhub. R214 at 32:2-3. Ms. Kebe has also seen that video on various popular porn
websites. R214 at 32:2-7.
Plaintiff testified that when she found out about the existence of the beer bottle
video, she got on Twitter and said that it wasn’t her in the video. R211 at 127:3-10.
However, Ms. Kebe testified that the video is still available on all the popular porn
websites, where it continues to be monetized with Plaintiff’s name in the title. R214
at 32:2-9. Plaintiff testified that besides the Defendants and Jones, she has never
sued anyone else for defamation. R211 at 138:8-10. Ms. Kebe testified that when
she said that Plaintiff put a beer bottle in her vagina, Ms. Kebe believed that to be a
true statement based on the fact that the person in the video looks just like Plaintiff;
11
Plaintiff’s name is in the title of the video, which continues to be available on all the
popular porn websites; and the fact that Plaintiff has not taken any legal action
against those porn websites (who continue to monetize the video) to have the video
removed or, at the very least, to have her name removed from the title. R214 at 45:9-
23.
Ms. Kebe testified that the reason she called Plaintiff a drug user was because
Plaintiff admitted, in an interview with Rolling Stone magazine, that she took molly
to boost her confidence when she stripped and Jones mentioned, in the interview,
that Plaintiff did molly and cocaine. R214 at 44:3-16. Ms. Kebe testified that
Plaintiff “[h]as videos where she’s bragged about popping, you know, whatever she
gotta pop to make her feel good. She calls it a little something, something.” R214 at
44:19-21. Additionally, back in 2018, Ms. Kebe read a long post from Plaintiff’s
father-in-law’s Facebook account, in which he mentioned his son’s and Plaintiff’s
drug use. See D8. Most importantly, Plaintiff admitted, on the stand, that she has
used drugs, such as molly, Percocets, weed, and alcohol. R211 at 154:18-155:14.
Plaintiff denied using cocaine. R211 at 155:15-16.
Throughout the entire trial, there was only one piece of evidence pertaining to
Plaintiff having HPV. See P592 at 01:16:00-01:16:29. That evidence was a twenty-
nine-second video clip in which Ms. Kebe mentions that Plaintiff has HPV and then,
immediately says, “Can I confirm it? I can’t confirm the HPV diagnosis.” See id.
12
After that video clip was played for the jury, Ms. Kebe testified that she never
reported Plaintiff having HPV as a fact. R214 at 41:11-12. Furthermore, Ms. Kebe
testified that she never mentioned HPV anywhere else in that video, which is one
and a half hours long, nor has Ms. Kebe ever mentioned anything about Plaintiff and
HPV in any other videos. R214 at 41:13-20.
In the same twenty-nine-second clip, Ms. Kebe said that there are constant
reports of Plaintiff’s husband cheating on Plaintiff, so Ms. Kebe stated that she heard
(from an undisclosed source) that Plaintiff was sleeping with someone other than her
husband. See P592 at 01:16:00-01:16:29. Plaintiff testified that on December 5,
2018, she made an announcement to the media that she split from her husband. R211
at 155:21-25. On January 31, 2019, Plaintiff announced their reconciliation. R211 at
156:1-4. Plaintiff also admitted to making and publishing a video, in which Plaintiff
advised her followers that “[i]f a guy cheat on you, you should cheat on him back.”
R211 at 156:9-24; see also D61.
Ms. Kebe testified that she did not build her YouTube channel for the purpose
of harassing Plaintiff; that she has not engaged in a malicious campaign to defame
Plaintiff; that she has never made up any stories about Plaintiff; and that Ms. Kebe’s
information about Plaintiff comes from Plaintiff’s posts and videos for the most part.
R214 at 46:2-12.
13
Plaintiff testified that she felt like Ms. Kebe’s posts and videos were directed
at Plaintiff. R211 at 93:1-5. During cross-examination, while being questioned about
one of her videos, Ms. Kebe was asked whether the video is supposed to be directed
at Plaintiff; to which Ms. Kebe replied, “[m]y audience.” R210 8 at 84:15-16. Later
on, while Ms. Kebe was being questioned about a different video, she is asked
whether she is talking directly to Plaintiff, and Ms. Kebe, again, states that she is
talking to her viewers. R210 at 107:9-14.
On direct, Plaintiff testified that over the last two years (since the Jones
interview was published), Plaintiff experienced feelings of helplessness, fatigue,
anxiety, deep depression, anger, weight loss, and felt extremely suicidal. R211 at
94:7-95:22. Plaintiff also stated that in late October going into November of 2018,
she was having “[a] mental freaking crisis,” so her therapist, Dr. Sherry Blake, came
to New York for the weekend. R211 at 134:2-17. Plaintiff testified that, from
November of 2018 through January of 2022, she has had about ten sessions (both,
virtually and in person) with Dr. Blake. R211 at 135:2-5. Plaintiff also stated that
she continues to experience anxiety. R211 at 136:12-19. Despite that testimony,
Plaintiff was only able to provide proof of three sessions; all of which were for
therapeutic coaching, not therapy. See P24, P45, and P46.
8
R210 is a Transcript of Jury Trial, Volume III of X.
14
Dr. Blake testified that she does a lot of marital therapy, where she helps
couples understand and resolve their problems and conflicts. R212 at 10:24-11:2.
Dr. Blake also testified that she offers therapeutic coaching, which is “[w]orking
with people towards being goal oriented, trying to resolve issues where they may be
stuck and trying to work through those.” R212 at 12:1-3. Dr. Blake explained that
therapeutic coaching is different from therapy “[i]n that therapy is working with
emotional healing.” R212 at 12:4-5.
Regarding her weekend trip to New York in November of 2018, Dr. Blake
testified that Plaintiff was in a mental health crisis, not doing well, and that Dr. Blake
was quite concerned. R212 at 28:3-6. Despite that, Dr. Blake did not make a
diagnosis or conduct any therapy sessions. R212 at 54:8-12. In fact, Dr. Blake didn’t
even write a report about those sessions until October 26, 2020, almost two years
after the fact. R212 at 53:19-54:2. Dr. Blake titled that report Therapeutic Coaching
Summary and noted in the first paragraph that sessions were conducted to determine
barriers that may interfere with Plaintiff achieving her career goals. See D99. Dr.
Blake also noted that, at the time, Plaintiff was not suicidal, which Dr. Blake
confirmed during her trial testimony. R212 at 28:22; see D99.
Dr. Blake testified on direct that, on a scale of one to ten, with ten being the
worst, Plaintiff was at a ten when Dr. Blake saw her in New York. R212 at 27:5-7.
However, Dr. Blake told her assistant, Johnny Lester, that her sessions with Plaintiff
15
went great and Dr. Blake felt that she turned a corner with Plaintiff about establishing
and maintaining a stress plan. R212 at 40:20-22, 42:16-18; see D96, D97. The only
concern Dr. Blake seemed to have was that other people were joining Plaintiff and
Plaintiff’s husband on their upcoming trip to Dominican Republic because Dr. Blake
was hoping for Plaintiff and her husband to have down time on the trip. R212 at
42:16-43:5; see D97. In February of 2019, just two months after their first session,
Plaintiff discontinued Dr. Blake’s services. R212 at 44:2-15; see D98.
The next time Dr. Blake saw Plaintiff was in 2020. R212 at 29:12-16. On
direct, Dr. Blake testified that Plaintiff’s mental health status deteriorated. R212 at
30:1-2. Dr. Blake also said, at that point, Plaintiff talked about having feelings of
suicide and Dr. Blake was concerned, so she made a safety plan. R212 at 31:19-32:6.
Dr. Blake wrote a summary regarding her sessions with Plaintiff in 2020. R212 at
56:9-14; see D103. And, again, Dr. Blake’s summary was devoid of any mention
about Plaintiff being suicidal or having any suicidal thoughts. R212 at 57:6-7; see
D103. Curiously, Dr. Blake’s summary does not include a safety plan nor does it
even allude to the fact that a safety plan was needed or created. See D103.
Dr. Blake testified that she had sessions with Plaintiff in 2021. R212 at 34:19-
20. However, no invoices or summaries from their 2021 sessions were provided or
introduced at trial. Dr. Blake said that she had sessions with Plaintiff in 2022. R212
at 37:3-4. Again, no invoices or summaries from their 2022 sessions were provided
16
or introduced at trial. Dr. Blake testified that Plaintiff has been invoiced for $10,000
worth of therapy sessions. R212 at 35:16-20. Yet, Plaintiff only introduced three
invoices at trial totaling $5,980.37 (that includes travel expenses for the New York
trip). See P24, P45, and P46.
On cross-examination, Plaintiff was questioned about some of her personal
and professional accomplishments since 2018, including: winning a Grammy for
best rap album in February of 2019; winning top female artist at Billboard Music
Awards in May of 2019; purchasing her dream home in Atlanta in December of
2019; releasing a very successful hit, called “WAP”, with Megan Thee Stallion in
August of 2020; becoming the first female rapper to be named woman of the year at
the Billboard Women in Music Awards in 2020; attending Fashion Week in Paris in
October of 2021; hosting the American Music Awards in November of 2021 and
winning an award for her song, called “Up”; signing a deal with Warner Chappell
Music; purchasing a home in New York; releasing a vodka whipped cream, called
Whipshots; collaborating with Halle Berry on a soundtrack for her movie, “Bruised”;
becoming the first female rapper to have earned three diamond singles; being named
the creative director for Playboy Magazine; and gifting her husband two million
dollars for his birthday. R211 at 140:1-142:18. At the end of 2021, Plaintiff had 120
million followers on Instagram and twenty million followers on Twitter. R211 at
143:14-24.
17
3. Standard of Review
This Court is required to examine the evidence with careful scrutiny when
determining whether the evidence is sufficient to support the verdict. Hunt v. Liberty
Lobby, 720 F.2d 631, 643 (11th Cir. 1983). “Although we are not in a position to
judge the credibility of witnesses, our duty is to make an independent examination
of the evidence and determine whether there was a clear and convincing showing of
actual malice.” Id.
This Court reviews the district court’s legal decision to apply a particular rule
of evidence de novo but its decision to admit or exclude particular evidence under
the rule for an abuse of discretion. Schafer v. Time, Inc., 142 F.3d 1361, 1370 (11th
Cir. 1998). “We will not overturn an evidentiary ruling unless the moving party
establishes a substantial prejudicial effect.” Goldsmith v. Bagby Elevator Co., Inc.,
513 F.3d 1261, 1276 (11th Cir. 2008).
In cases where jurisdiction exists based on diversity of citizenship, “[s]tate
law controls as to any issue not governed by the Constitution or treaties of the United
States.” EmbroidMe.com, Inc. v. Travelers Prop. Cas. Co. of Am., 845 F.3d 1099,
1105 (11th Cir. 2017).
SUMMARY OF THE ARGUMENT
The Plaintiff is a public figure, who filed a complaint against the Defendants,
for defamation, false light invasion of privacy, and intentional infliction of emotional
18
distress. Plaintiff sought to recover compensatory damages, punitive damages, and
litigation expenses. During the jury trial, the Defendants were prevented from
presenting character evidence and specific instances of conduct of the Plaintiff,
despite the fact that under Georgia law, if there is an assertion of damage to
reputation, Plaintiff’s character is substantively at issue. The jury heard a very lop-
sided presentation of evidence and, because they did not get to learn who the Plaintiff
truly is, the jury returned a general verdict for the Plaintiff, against both Defendants.
The Plaintiff’s case was based on six statements, which she alleged were
defamatory. However, Plaintiff failed to prove, with clear and convincing evidence,
that the Defendants published any of the six statements with actual malice. The gist
of Plaintiff’s evidence consisted of her general denial that any of the statements were
true. Meanwhile, the Defendants presented evidence that proved they did not act
with actual malice. The Plaintiff also failed to present evidence to show that the
Defendants directed any of the six statements at her, thereby preventing her from
recovering for intentional infliction of emotional distress.
Nevertheless, the jury’s general verdict found both Defendants liable for
defamation, false light invasion of privacy, and intentional infliction of emotional
distress. Due to the fact that this Court cannot determine whether the verdict was
entered upon a proper basis, the verdict cannot stand. Additionally, this Court cannot
determine the underlying tort theory upon which the jury based its award for punitive
19
damages, so it too, must be reversed. This case should be remanded for a new trial,
with specific instructions that the Defendants should be able to present evidence of
Plaintiff’s character.
ARGUMENT
I. The Evidence Was Not Sufficient to Support a Verdict for Plaintiff
A. There Was Not a Clear and Convincing Showing of Actual Malice

to Support a Verdict for Plaintiff on the Defamation Claims
To prevail in a defamation action, as a public figure, Plaintiff must prove with
clear and convincing evidence that the Defendants acted with actual malice. N.Y.
Times v. Sullivan, 376 U.S. 254, 279-80 (1964). The showing of malice may not be
presumed. N.Y. Times Co. v. Connor, 365 F.2d 567, 576 (5th Cir. 1966). “It is
incumbent upon the plaintiff to establish either that the defendant in fact knew that
the material was false or that it was published with reckless disregard of whether it
was false or not.” Hunt v. Liberty Lobby, 720 F.2d 631, 642 (11th Cir. 1983).
It is not sufficient to measure reckless disregard by a reasonable person
standard. The evidence must show, in a clear and convincing manner, that a
defendant, in fact, entertained serious doubts as to the truth of his statements. Cottrell
v. Smith, 788 S.E.2d 772 (Ga. 2016). “This is not a proposition that can be supported
by a normative conclusion that the publisher should have known of the falsity of the
statement.” Vandenburg v. Newsweek, Inc., 507 F.2d 1024, 1026 (5th Cir. 1975).
20
In the case at bar, Plaintiff’s defamation claims are based on the following six
statements: Plaintiff was a prostitute; Plaintiff was a drug user, specifically cocaine;
Plaintiff has herpes; Plaintiff has HPV; Plaintiff engaged in a debasing act with a
beer bottle; and Plaintiff committed infidelity. R69 at 18-19. At trial, Plaintiff
testified that all six statements were false, but that is not nearly enough to satisfy her
high burden of proof. “The statement may be false but it is still not actionable unless
it was made by the publisher in reckless disregard for the truth.” Rosanova v.
Playboy Enters., Inc., 411 F. Supp. 440, 446 (S.D. Ga. 1976).
At trial, Plaintiff spent a significant amount of time questioning Ms. Kebe
about the fact that, over the course of three years, Ms. Kebe received three demands
to retract those six statements and didn’t retract them. R209 at 103; R210 at 17-20;
R210 at 170-72; R215 at 76. However, it has long been established that failure to
retract or correct a falsehood does not prove actual malice. See Hunt, 720 F.2d at
643; N.Y. Times Co., 365 F.2d at 577.
Ms. Kebe was questioned about her personal dislike for Plaintiff, which also
does not prove actual malice. In fact, it is impermissible to use a defendant’s hatred,
spite, ill will, or desire to injure as evidence of actual malice. Bollea v. World
Championship Wrestling, Inc., 610 S.E.2d 92, 97 (Ga. Ct. App. 2005). Even failure
to investigate does not in itself establish bad faith. See St. Amant v. Thompson, 390
U.S. 727, 733 (1968); Hunt, 720 F.2d at 643; Rosanova, 411 F. Supp. at 448.
21
Especially given that Jones’ story was super viral and Ms. Kebe, much like a lot of
other entertainment bloggers, went after the story. R212 at 101:7-9.
“The test of actual malice is not whether the defendant acted as a reasonable
publisher would have acted under the circumstances. Rather, the inquiry focuses on
the defendant’s state of mind at the time of publication.” Hunt, 720 F.2d at 647.
When Ms. Kebe published her interview with Jones, Ms. Kebe believed that Jones
was telling the truth about Plaintiff being a prostitute. See 524A. Furthermore, Ms.
Kebe testified that when she said Plaintiff was a prostitute, she believed that to be a
true statement because “Ms. Almanzar has made various videos over the course of
her career bragging about being a prostitute and having tricks.” R214 at 43:21-44:2.
Ms. Kebe testified that the reason she believed that Plaintiff used drugs is
because Ms. Kebe has seen Plaintiff’s videos, where she talks about using drugs.
R214 at 44:19-21. Ms. Kebe read an article in which Plaintiff told Rolling Stone
magazine that she took molly to boost her confidence when she was a stripper. R214
at 44:3-16. Plaintiff’s father-in-law mentioned her drug use in a Facebook post that
Ms. Kebe saw online. See D8. In the interview, Jones mentioned that Plaintiff used
molly and cocaine, so Ms. Kebe assumed that because Plaintiff admitted to using
molly, Jones was telling the truth about Plaintiff also using cocaine. See Rosanova,
411 F. Supp. at 446 (“The publisher’s protection extends to reasonable inferences
drawn from the spectrum of information . . . .”).
22
Most importantly, Plaintiff admitted, on the stand, that she has used drugs,
such as molly, Percocets, weed, and alcohol. R211 at 154:18-155:14. Under Georgia
law, truth is an absolute defense and substantial truth is all that is required. Monge
v. Madison Cnty. Record, Inc., 802 F. Supp. 2d 1327, 1333 (N.D. Ga. 2011). As the
district court pointed out at the pretrial conference, it is disingenuous to argue that
using molly and using cocaine is any different as it relates to defamation and the
harm that would occur. R181 9 at 84:21-85:1.
Ms. Kebe has never stated that Plaintiff has genital herpes. When asked
whether Jones said Plaintiff had herpes, Ms. Kebe clarified “[c]old sores to be
exact.” R209 at 90:15-17. Ms. Kebe testified that when she says Plaintiff has herpes
or cold sores, she is basing that statement on the following information: the
definition of cold sores as an “infection with the herpes simplex virus around the
border of the lips, D8; pictures of Plaintiff with cold sores on her lips, D3; pictures
of Plaintiff’s husband with cold sores on his lips, D68; tons of tweets, dating back
to 2015, stating that Plaintiff has herpes or cold sores, R214 at 39:19-24; hearing
other celebrities say that Plaintiff has herpes or cold sores, R214 at 39:24-40:9;
knowing that those pictures, tweets, and statements are still available to the public
and that Plaintiff has never sued any of those people for defamation, R214 at 40:18-
9
R181 is a Transcript of the Pretrial Conference.
23
24; and seeing a video in which Ms. Kebe believed she heard Plaintiff say she has
cold sores, D8.
Ms. Kebe has never stated that Plaintiff has HPV as a fact. R214 at 41:11-12.
“A defamation action will lie only for a statement of fact.” Cottrell v. Smith, 788
S.E.2d 772 (Ga. 2016). Ms. Kebe testified that when she said Plaintiff put a beer
bottle in her vagina, she believed that to be a true statement because the person in
the video looks just like Plaintiff; Plaintiff’s name is in the title of the video; the
video is still available on all the popular porn websites; and Plaintiff has not taken
any legal action against those porn websites (who continue to monetize the video).
R214 at 45:9-23.
Lastly, while discussing yet another report of Plaintiff’s husband’s infidelity,
Ms. Kebe mentioned that she heard Plaintiff was sleeping with someone other than
her husband. See P592 at 01:16:00-01:16:29. Ms. Kebe opined that it was Plaintiff’s
right to sleep with someone else because of the countless times Plaintiff’s husband
has cheated on her. See id.
There was no evidence that any of Ms. Kebe’s stories about Plaintiff were
fabricated by Ms. Kebe, were a product of Ms. Kebe’s imagination, were based
wholly on an unverified anonymous call, or were so inherently improbable that only
a reckless person would have put them in circulation. See St. Amant v. Thompson,
390 U.S. 727, 732 (1968). “Negligence is constitutionally insufficient to show the
24
recklessness that is required for a finding of actual malice.” Rosanova, 411 F. Supp.
at 448. Given that Plaintiff failed to establish, in a clear and convincing manner, that
Ms. Kebe knew her statements about Plaintiff were false or, in fact, entertained
serious doubts as to the truth of her statements, Plaintiff cannot prevail on her
defamation claims. See Hunt, 720 F.2d at 642.
B. There Was Not a Clear and Convincing Showing of Actual Malice

to Support a Verdict for Plaintiff on the False Light Invasion of
Privacy Claim
A single statement cannot form the basis of both, a defamation claim, and a
false light claim. “To survive as a separate action, a false light claim must allege a
nondefamatory statement. If the statements alleged are defamatory, the claim would
be for defamation only, not false light invasion of privacy.” Smith v. Stewart, 660
S.E.2d 822, 834 (Ga. Ct. App. 2008). Plaintiff’s false light claim alleges the same
six statements as her defamation claims. R69 at 30-34. Therefore, Plaintiff’s false
light claim cannot survive as a separate action. See Smith at 834.
Even if Plaintiff could use the same statements as the basis for both claims, to
prevail on a false light invasion of privacy claim, Plaintiff must prove three essential
elements, one of which is that Defendants acted with actual malice when publishing
the statements. Adopting the argument from section I.A., above, because Plaintiff
failed to establish, in a clear and convincing manner, that Ms. Kebe knew her
25
statements about Plaintiff were false or, in fact, entertained serious doubts as to the
truth of her statements, Plaintiff cannot prevail on her false light claim.
C. The Evidence Was Insufficient to Support a Verdict for Plaintiff on

the Intentional Infliction of Emotional Distress Claim
In the absence of any physical impact to her person, a plaintiff seeking to
recover for emotional distress must show, in addition to the four elements, that the
conduct in question was directed at her. Jones v. Fayette Family Dental Care, Inc.,
718 S.E.2d 88, 90 (Ga. Ct. App. 2011). Defamatory remarks made to others, or to
the public in general, are classic examples of conduct that, though harmful to the
plaintiff, was directed toward the hearer of the statements, not at the plaintiff, and
thus is not actionable as intentional infliction of emotional distress. See Wolff v.
Middlebrooks, 568 S.E.2d 88, 90 (Ga. Ct. App. 2002); Lively v. McDaniel, 522
S.E.2d 711, 713 (Ga. Ct. App. 1999).
It is undisputed that the comments here were made during video streams on
Ms. Kebe’s YouTube channel to thousands of people. Furthermore, Ms. Kebe
testified that in those video streams she is talking to her viewers, not to the Plaintiff.
R210 at 84:15-16, 107:9-14. Given that Plaintiff cannot show that the conduct in
question was directed at her, Plaintiff cannot prevail on her intentional infliction of
emotional distress claim.
Even if Plaintiff could somehow prove that the conduct in question was
directed at her, Plaintiff must also show that Ms. Kebe’s conduct was intentional or
26
reckless; extreme and outrageous; there was a causal connection between the
wrongful conduct and the emotional distress; and the emotional distress was severe.
Jones, 718 S.E.2d at 90. Plaintiff must show all four elements in order to recover for
intentional infliction of emotional distress. Id. Plaintiff bears a heavy burden with
respect to proving that defendant’s conduct rose to the level of outrageousness
required and the distress suffered by plaintiff rose to the level of severity required.
Howerton v. Harbin Clinic, LLC, 776 S.E.2d 288, 300 (Ga. Ct. App. 2015).
It has not been enough that a defendant has acted with an intent which is
tortious or even criminal, or that defendant has intended to inflict emotional distress,
or even that defendant’s conduct has been characterized by malice, or a degree of
aggravation that would entitle a plaintiff to punitive damages for another tort. Abdul-
Malik v. AirTran Airways, Inc., 678 S.E.2d 555, 559 (Ga. Ct. App. 2009).
Conduct that can be characterized as merely vulgar, tasteless, rude, or
insulting will not support a claim for intentional infliction of emotional distress. See
Howerton at 300; Troncalli v. Jones, 514 S.E.2d 478, 483 (Ga. Ct. App. 1999).
Actionable conduct does not include insults, threats, indignities, annoyances, petty
oppressions, or other vicissitudes of daily living. Howerton at 300. The defendant’s
conduct must be so extreme in degree, as to go beyond all possible bounds of
decency, and to be regarded as atrocious, and utterly intolerable in a civilized
community. Howerton at 299.
27
Emotional distress includes all highly unpleasant mental reactions such as
fright, horror, grief, shame, humiliation, embarrassment, anger, chagrin,
disappointment, worry, and nausea. Abdul-Malik at 560. The law intervenes only
where the distress inflicted is so severe that no reasonable person could be expected
to endure it. Id.
Ms. Kebe is an entertainment and celebrity news blogger, who discusses
current stories about celebrities on her YouTube channel. Plaintiff’s complaint
centers around the fact that in some of the video Ms. Kebe publishes, she sometimes
talks about Plaintiff. Georgia’s definition of outrageous conduct provides a high
degree of tolerance for a wide variety of questionable conduct and Ms. Kebe’s
actions simply do not rise to the level of outrageousness required. See Howerton at
299-300. Plaintiff cannot show the four elements required to recover, therefore
Plaintiff cannot prevail on her intentional infliction of emotional distress claim.
II. The District Court Erroneously Excluded Evidence of Plaintiff’s

Character
Georgia law confirms that an assertion of damage to reputation in a
defamation case makes the plaintiff’s character an issue under the substantive law.
Schafer v. Time, Inc., 142 F.3d 1361, 1372 (11th Cir. 1998). Plaintiff alleged that
Defendants caused her embarrassment, humiliation, mental anguish, emotional
distress, and impairment to her name, character, and reputation, for which Plaintiff
sought general and special damages. R69 at 23, 26, 29, 33, 37, and 40. Since the
28
plaintiff’s character is substantively at issue in a libel case under Georgia law, Rule
405(b) permits the admission of evidence regarding specific instances of the
plaintiff’s conduct on that issue. Schafer at 1372.
The district court excluded a myriad of relevant character evidence, both at
the pretrial conference and during the trial. Specifically, the district court excluded
all the evidence listed in Exhibit A of Plaintiff’s Motion In Limine. See R163-1. The
Defendants described that the evidence was relevant to show Plaintiff’s character 10.
See R166 at 1-3.
In the middle of trial, the district court heard additional argument from the
Defendants regarding their desire to introduce evidence of Plaintiff’s character. See
R213 11. The Defendants believe that they have shown a substantial prejudicial effect
because even the district court stated that “[t]he plaintiff that testified on the stand is
not certainly the plaintiff in the videos, not the same person in the videos that I’ve
seen so far. . . .” R213 at 85:14-17. The Defendants should have been able to present
evidence of Plaintiff’s character, as well as specific instances of Plaintiff’s conduct.
10
Specifically, Defendants believe they should have been able to introduce the
following items of evidence to show Plaintiff’s character: Kebe 001; Kebe 007; Kebe
009; Kebe 011; Kebe 012; Kebe 374; Kebe 378; Kebe 379; Kebe 382; Kebe 385;
Kebe 610; Kebe 612. All the listed items will be included in the Appendix, for the
Court’s convenience.
11
R213 is a Transcript of Jury Trial, Volume VI of X.
29
III. The Verdict Was Not Entered Upon a Proper Basis, Therefore,
the Verdict Cannot Stand
The jury returned a general verdict for the Plaintiff, finding the Defendants
liable for Defamation, False Light Invasion of Privacy, and Intentional Infliction of
Emotional Distress. R198. There were six separate statements, any one of which
could have been the reason the jury found the Defendants liable for defamation and
for false light invasion of privacy. However, the law provides that a single statement
cannot form the basis of both a defamation claim and a false light claim. See Smith
v. Stewart, 660 S.E.2d 822, 834 (Ga. Ct. App. 2008). The jury also returned an award
of punitive damages for Plaintiff, against both Defendants. R204.
Given that the jury returned a general verdict, and considering the argument
presented in section I, above, the jury verdict cannot stand for the reason that this
Court cannot determine whether the verdict was entered upon a proper basis. See
Ga. Power Co. v. Busbin, 250 S.E.2d 442, 445 (Ga. 1978); Wolff v. Middlebrooks,
568 S.E.2d 88, 91 (Ga. Ct. App. 2002); Troncalli v. Jones, 514 S.E.2d 478, 481 (Ga.
Ct. App. 1999). Additionally, this Court cannot determine the underlying tort theory
upon which the jury based its award for punitive damages, so the punitive damages
must also be reversed. See Wolff at 91.
30
CONCLUSION
For the foregoing reasons, this Court should reverse the Judgment entered on
February 17, 2022, and remand this case for a new trial.
Respectfully submitted this 27th day of May, 2022.
/s/Olga Izmaylova
olga@silawatl.com
Georgia State Bar No. 666858
SABBAK & IZMAYLOVA, P.C. Counsel for Defendants/Appellants

1875 Old Alabama Road Latasha Kebe and Kebe Studios, LLC
Suite 510
Roswell, Georgia 30076
p. (404) 793-7773
f. (770) 797-5887
31
CERTIFICATE OF COMPLIANCE
1. This document complies with the type-volume limit of Fed. R. App. P.
32(c)(2) because, excluding the parts of the document exempted by Fed. R.
App. P. 32(f), this document contains 7,490 words.
2. This document complies with the typeface requirements of Fed. R. App. P.
32(a)(5) and the type-style requirements of Fed. R. App. P. 32(a)(6) because
this document has been prepared in a proportionally spaced typeface using
Microsoft Word for Mac Version 16.60 in 14-point Times New Roman font.
/s/Olga Izmaylova
olga@silawatl.com

Suite 510
p. (404) 793-7773
f. (770) 797-5887
32
CERTIFICATE OF SERVICE
I hereby certify that I electronically filed the foregoing with the Clerk of Court
for the United States Court of Appeals for the Eleventh Circuit by using the appellate
CM/ECF system on May 27, 2022. I certify that all participants in the case are
registered CM/ECF users and that service will be accomplished by the appellate
CM/ECF system.
/s/Olga Izmaylova
olga@silawatl.com

Suite 510
p. (404) 793-7773
f. (770) 797-5887
33

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USCA11 Case: 22-10871 Date Filed: 05/27/2022 Page: 1 of 41

IN THE UNITED STATES COURT OF APPEALS

BELCALIS MARLENIS ALMANZAR,

LATASHA TRANSRINA KEBE and KEBE STUDIOS, LLC,

Appeal from the United States District Court

OPENING BRIEF OF APPELLANTS

Counsel for Defendants-Appellants

CERTIFICATE OF INTERESTED PERSONS AND

In accordance with Federal Rule of Appellate Procedure 26.1 and Eleventh

and corporate disclosure statement.

partnerships, or corporations that have an interest in the outcome of the particular

case or appeal, including subsidiaries, conglomerates, affiliates, parent corporations,

identifiable legal entities related to a party:

Adelman, Gary – counsel for Plaintiff/Appellee Belcalis Almanzar

Almanzar, Belcalis Marlenis – Plaintiff/Appellee

Izmaylova, Olga – counsel for Defendants/Appellants

Kebe, Cheickna – co-owner of Kebe Studios, LLC

Kebe, Latasha Transrina – Defendant/Appellant

Kebe Studios, LLC – Defendant/Appellant

Matz, Sarah - counsel for Plaintiff/Appellee Belcalis Almanzar

Moore, Lisa - counsel for Plaintiff/Appellee Belcalis Almanzar

Pequignot, Andrew - counsel for Plaintiff/Appellee Belcalis Almanzar

Ray, William M. – district court judge

Sabbak, Sadeer – counsel for Defendants/Appellants

The undersigned counsel further certifies that no publicly traded company or

corporation has an interest in the outcome of the case or appeal.

Dated: May 27, 2022 /s/Olga Izmaylova

STATEMENT REGARDING ORAL ARGUMENT

Defendants-Appellants, Latasha Kebe and Kebe Studios, LLC, believe that

not be significantly aided by oral argument.

Should oral argument be deemed appropriate, however, Defendants-

Appellants do not waive their participation.

Certificate of Interested Persons and Corporate Disclosure Statement . . . . . . . . C-1

Statement Regarding Oral Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . i

Statement of the Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

Statement of the Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

II. Statement of the Facts . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

III. Standard of Review . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

Summary of the Argument . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 18

I. The Evidence Was Not Sufficient to Support a

A. There Was Not a Clear and Convincing Showing of

B. There Was Not a Clear and Convincing Showing of

C. The Evidence Was Insufficient to Support a

II. The District Court Erroneously Excluded

III. The Verdict Was Not Entered Upon a Proper Basis,

Abdul-Malik v. AirTran Airways, Inc.,

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Goldsmith v. Bagby Elevator Co., Inc.,

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N.Y. Times v. Sullivan,

*Rosanova v. Playboy Enters., Inc.,

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*St. Amant v. Thompson,