Full opinion text
MEMORANDUM OPINION AND ORDER JAMES 0. BROWNING, District Judge. THIS MATTER comes before the Court on the Defendant’s Motion to Dismiss Complaint (Incorporating Authorities), filed April 27, 2012 (Doc. 7)(“Motion to Dismiss”). The Court held a hearing on July 27, 2012. The primary issues are: (i) whether the Motion to Dismiss is premature as Plaintiff Ben Heyward has not been provided the identity of his critics in discovery; and (ii) whether the statements on which Heyward bases his defamation allegations fail to state a prima facie claim for defamation as a matter of law, because each statement: (i) is an unambiguous assertion of opinion; (ii) does not concern Heyward; (iii) is not a false assertion of fact; or (iv) is not defamatory. The Court will grant in part and deny in part the Motion to Dismiss. The Motion to Dismiss is not premature, because the Defendant Credit Union Times asserts that even if Heyward’s allegations are taken as true, his allegations are not legally sufficient to state a prima facie claim for defamation. 'While the majority of the statements are not actionable for defamation, construing Heyward’s allegations in the light most favorable to him, and drawing all reasonable inferences in his favor, the Court concludes that some of the statements Heyward alleges as defamatory could be actionable as defamatory, because they are not unambiguously opinion. FACTUAL BACKGROUND The Credit Union Times, an unincorporated publication owned by The National Underwriting Company, published an article entitled “Historic Development Stains CU’s Balance Sheet” on April 6, 2011. See Complaint for Defamation ¶ 11, at 2, filed Mar. 13, 2012 (Doc. l)(“Complaint”); His-tone Development Stains CU’s Balance Sheet, 22 Credit Union Times No. 13, at 2, filed Mar. 13, 2012 (Doc. l-DC'Article”). The Article reports about controversy surrounding a loan that First Financial Credit Union of Albuquerque, New Mexico, made to Vincent Garcia and two other developers to finance the redevelopment of a building in downtown Albuquerque, at Copper Square. See Complaint ¶ 11, at 2; Article at 1. The Article notes that Garcia and the two other developers had been indicted with bank fraud, and that First Financial was forced to foreclose on the property. See Article at 2. Heyward, First Financial’s Chief Executive Officer, was the subject of the Article. See Complaint ¶ 11, at 2. The Article “was based upon statements of anonymous persons and alleged ‘critics[,]’ which were untrue, false and inaccurate.... ” Complaint ¶ 12 at 2. PROCEDURAL BACKGROUND On March 13, 2012, Heyward filed this lawsuit, alleging that the following twelve statements in the Article are false and defamatory. See Complaint ¶ 15, at 2-9. STATEMENT 1: But critics lay the responsibility for making the Copper Avenue loan at the feet of CEO Robert Heyward, alleging that the loan merely represented, the largest example of a ‘cowboy style’ of leadership that, they charged depended more on Heyward’s desire to show off and make a big splash than on due diligence and responsibility that should characterize a safely run credit union. Complaint ¶ 15a, at 3. Heyward alleges that “[t]his statement is false and inaccurate as well as defames the reputation of Mr. Heyward.” Complaint ¶ 15a, at 3. STATEMENT 2: “Heyward’s inclination to fire executives who have disagreed with him.” Complaint ¶ 15b, at 3. In his Complaint, Heyward does not contend that this statement is defamatory, but alleges only that “[t]his statement is inaccurate and untrue.” Complaint ¶ 15b, at 3. STATEMENT 3: “But all charged that Heyward’s determination to make unilateral decisions and a lack of attention to detail led to the Copper Square loan and a significant number of poor loans.” Complaint ¶ 15c, at 3. Heyward alleges that this statement “is untrue and inaccurate.” Complaint ¶ 15c, at 3. Heyward states that “had CU Times performed due diligence and a reasonable investigation rather than relying on the unsubstantiated opinions of the anonymous critics ... it would have determined the allegations to be false and inaccurate.” Complaint ¶ 15c, at 3. STATEMENT 4: “The U.S. Attorney has indicted developers for fraud but critics blame CU CEO.” Complaint ¶ 15d, at 4. Heyward does not dispute either that the United States Attorney indicted the developers for fraud or that critics blamed him for approving the loan. Rather, he contends that “[tjhis accusation ... implies Mr. Heyward committed fraud by approving this loan ... [which] maliciously defames Mr. Heyward’s reputation in the industry as well as is simply not true.” Complaint ¶ 15d, at 4. STATEMENT 5: “Critics charge loan as the latest in a pattern of reckless lending.” Complaint ¶ 15e, at 4. Heyward alleges that “[t]his is inaccurate and untrue and defames [Heyward’s] reputation.... ” Complaint ¶ 15e, at 4. STATEMENT 6: “For his part, Hey-ward did not answer detailed questions about the Copper Avenue loan, but reported that the credit union relied on the borrower’s representations.” Complaint ¶ 16f, at 5. Heyward alleges that “[t]his statement implies that CU Times gave Mr. Heyward the opportunity to respond or comment on the allegations of [the] anonymous critics that CU Times relied upon as fact. This is not the case.” Complaint ¶ 16f, at 5. Additionally, Heyward states that “the purported quoted statement by Mr. Heyward was inaccurate, taken out of context and incomplete .... [demonstrating] the bias and lack of due diligence on ... the CU Timesf part].” Complaint ¶ 16f, at 5. STATEMENT 7: “Heyward was the only one at First Financial with authority to sign off on the Copper Square Avenue loan, the critics said, and he knew what the credit union knew and went on to approve it anyway.” Complaint ¶ 15g, at 5. Heyward does not dispute that he “was the only person at First Financial who could approve the Copper Square loan due to its size, [but alleges that] the approval was based upon the representations and presentations of the business loan department at First Financial....” Complaint ¶ 15g, at 5-6. He alleges that “the statement that he had the same information as his staff and despite this approved the loan is false and inaccurate.” Complaint ¶ 15g, at 6. STATEMENT 8: “Six of the credit union’s executive team in place in February 2008 when First Financial made the loan have since left.” Complaint ¶ 15h, at 6. Heyward alleges that this statement is false, as “[t]here were never six members of the executive team,” and defamatory, because this statement “falsely implies that there was a hostile work environment. ...” Complaint ¶ 15h, at 6. STATEMENT 9: “The critics argued their concern flowed from their observations that the Copper Avenue loan was only the largest in a systematic lending pattern without regard to due diligence, including the purchase business loan participations.” Complaint ¶ 15i, at 6. In his Complaint, Heyward alleges that “[t]his quote [sic] is false, untrue, inaccurate [,] ... misleading and defamatory....” Complaint ¶ 15i, at 6. STATEMENT 10: “Critics reported that Heyward had bought these loan participations with little or no due diligence from a credit union where he had worked previously....” Complaint ¶ 15j, at 7. Heyward states that this statement is defamatory to him and false. See Complaint ¶ 15j, at 7. Heyward alleges: “The false allegation of lack of due diligence coupled with the allegation that Mr. Hey-ward purchased the participation loans from a previous employer clearly implies that Mr. Heyward was guilty of some sort of wrong doing.” Complaint ¶ 15i, at 8. STATEMENT 11: In further support of their allegations, the critics pointed out that the credit union’s net worth has dropped steadily since Heyward took the helm in early 2005. NCUA records show that CU’s net worth ratio at the end of 2005 stood at 12.32%, took a brief uptick to 12.37% in 2006 before falling steadily to 9.36% at the end of 2010. Complaint f 15k, at 8. In his Complaint, Heyward alleges that the statement is false: “To imply that a decline is bad or otherwise abnormal merely because Mr. Heyward is the CEO is without any factual support, ignores outside economic factors and is defamatory.” Complaint ¶ 15k, at 8. STATEMENT 12: “Critics acknowledge that CU’s with all sorts of management have lost money in the poor economy since 2008 but maintained that Heyward’s management has led First Financial into a significantly deeper hole than it would have been if Heyward was not CEO.” Complaint ¶ 151, at 9. Heyward alleges that this quotation is not true and that, “to sustain this statement, CU Times would have to objectively prove that First Financial is worse off as a direct result of Mr. Heyward being CEO. There are no facts to support this.” Complaint ¶ 151, at 9. Heyward alleges that these “defamatory statements made about Ben Heyward in the article caused irreparable damage to Mr. Heyward’s reputation, specifically in the credit industry .... [from which he] continues to suffer damage.... ” Complaint at ¶ 17, at 9. On April 27, 2012, the Credit Union Times filed its Motion to Dismiss, arguing: “Because each of the challenged statements either reports the constitutionally protected, unverifiable views of Heyward’s critics or is otherwise not defamatory, Heyward’s complaint states no claim for defamation and should be dismissed.” Motion to Dismiss at 3. The Credit Union Times asserts that: “None of the statements challenged ... [are] actionable as defamation, because they are either incapable of being proven true or false, are not damaging to Heyward’s reputation, are not reasonably capable of conveying the alleged defamatory meaning, or do not carry more than a defamatory ‘sting’ than the pleaded truth.” Motion to Dismiss at 4. The Credit Union Times contends that Statement 1 cannot be the basis of a defamation claim, because whether Heyward had a “cowboy style of leadership, and whether his leadership style depended more on his desire to show off and make a big splash than on due diligence and responsibility, are not factual statements that reasonably could be verified.” Motion to Dismiss at 5 (internal quotations and alterations omitted). The Credit Union Times asserts that a court must determine whether the alleged defamatory statement is constitutionally protected expression, which turns on whether a statement is sufficiently verifiable — whether the statement can be proved or disproved. See Motion to Dismiss at 5 (citing Marchiondo v. Brown, 98 N.M. 394, 400, 649 P.2d 462, 468 (1982); Mendoza v. Gallup Indep. Co., 107 N.M. 721, 723, 764 P.2d 492, 494 (Ct.App.1988); Moore v. Sun Publ’g Corp., 118 N.M. 375, 382, 881 P.2d 735, 742 (Ct.App. 1994)). The Credit Union Times contends that statements must be viewed in context to determine whether they would be understood by readers as verifiable facts, and here, the “article’s attributing unfavorable views of Heyward to ‘critics’ unmistakably signals that those statements represent the subjective views of people with poor opinions of Heyward who therefore have negative things to say about him.” Motion to Dismiss at 6 (citing Fikes v. Furst, 2003-NMSC-033, ¶¶ 18, 19, 134 N.M. 602, 81 P.3d 545). The Credit Union Times additionally states that “[c]ourts have routinely held that allegedly libelous statements concerning an executive’s leadership style are not actionable because they cannot be proven false.” Motion to Dismiss at 6-7 (citing Mangan v. Corporate Synergies Group, Inc., 834 F.Supp.2d 199 (D.N.J. 2011); Mino v. Clio Sch. Dist., 255 Mich. App. 60, 661 N.W.2d 586, 597 (2003); Rose v. Hollinger Int’l Inc., 383 Ill.App.3d 8, 321 Ill.Dec. 379, 889 N.E.2d 644, 652 (2008)). In regard to Statement 2, the Credit Union Times states that Heyward “does not contend that this statement is defamatory ... and, indeed, it is not.” Motion to Dismiss at 7. It argues that “whether, and for what reason, [Heyward] may have terminated subordinates’ employment simply is not defamatory of him.” Motion to Dismiss at 8 (citing Ullah v. Nat’l Westminster Bank, No. 94 Civ. 5167(DC), 1995 WL 747831, at **1-2 (S.D.N.Y. Dec. 18, 1995); Bitsie v. Walston, 85 N.M. 655, 659, 515 P.2d 659, 663 (Ct.App.1973)). As to. Statement 3, the Credit Union Times asserts that the statement, that it was Heyward’s unilateral decision to make the loan, is true, as Heyward concedes in his Complaint, and is not otherwise defamatory. See Motion to Dismiss at 9 (citing Complaint ¶ 15g, at 5). The Credit Union Times contends that “substantial truth is a defense to [a] defamation claim,” and the “charge that the loan was the result of a ‘lack of attention to detail’ is, at the very least, substantially true.” Motion to Dismiss at 9 (citing Cory v. Allstate Ins., 583 F.3d 1240, 1244 (10th Cir.2009)). The Credit Union Times argues that the substantial truth of the statement is supported by considerable evidence, including: (i) Heyward’s admission in his Complaint that he was not privy to the same information regarding Garcia as was his staff; and (ii) that, at the time Heyward approved the loan in 2008, “Garcia had a well-documented, public record of real estate development failures.” Motion to Dismiss at 9-10.' In response to Heyward’s argument that Statement 3 is defamatory because it “suggests] that this ‘lack of attention to detail’ was responsible for a ‘significant number of poor loans,’ ” Motion to Dismiss at 11 (quoting Complaint ¶ 15c, at 3), the Credit Union Times asserts that the “vague and subjective charge, like the characterization of Heyward’s leadership style, requires the reader to speculate about its precise meaning,” Motion to Dismiss at 11, and are thus not verifiable facts, see Motion to Dismiss at 12 (citing Associated Press v. Cook, 17 S.W.3d 447, 454 (Tex.Ct.App.2000)). The Credit Union Times argues that Statement 4 — “The U.S. Attorney has indicted developers for fraud[,] but critics blame CU CEO” — cannot properly serve as the basis of a defamation claim, because it is “not reasonably capable of bearing the defamatory implication alleged by [Hey-ward].” Motion to Dismiss at 12. In regard to Statement 5, the Credit Union Times contends that “[t]he gist or sting of this statement is that First Financial has a ‘pattern’ of ‘reckless lending’ like the Copper Square loan. But on its face, the Statement does not refer to plaintiff Hey-ward” and thus cannot form the basis of defamation claim. Motion to Dismiss at 12. The Credit Union Times asserts that, because proving that First Financial has a reckless lending history requires speculation, the statement is unverifiable and therefore cannot form the basis of a defamation claim. See Motion to Dismiss at 13. In regard to Statement 6, the Credit Union Times contends that Heyward does not allege that the statement is defamatory as to him and that it is not: “News reports often include a statement that the subject of the report, for whatever reason, has declined to comment, and such statements are not defamatory.” Motion to Dismiss at 13-14 (citing Dodds v. Am. Broad. Co., 145 F.3d 1053, 1067 (9th Cir. 1998); Brewer v. Capital Cities/ABC, 986 S.W.2d 636, 643 (Tex.CtApp.1998)). In regard to Statement 7, the Credit Union Times asserts that Heyward acknowledges as true that “he was the only First Financial officer with authorization to approve a $7 million loan, and that he did in fact approve it.” Motion to Dismiss at 14 (citing Complaint at 15g). As to Heyward’s contention that the statement is defamatory because he did not know what his subordinates at First Financial knew, the Credit Union Times argues: [T]he sting is the same whether he approved a large loan without learning important details from his subordinates or whether he knew those details but approved the loan anyway. Whether by inattention to detail, misplaced reliance on his subordinates, or knowing disregard of clear red flags, Heyward is responsible for a blunder that unquestionably proved costly for First Financial. Where as here, a libel plaintiff has admitted the truth of facts that would have the same effect on the mind of the reader as the allegedly defamatory statement, no claim for libel exists. Motion to Dismiss at 14 (internal citations omitted)(citing Nicholson v. Promotors on Listings, 159 F.R.D. 343, 355 (D.Mass.1994); Masson v. New Yorker Magazine, Inc., 501 U.S. 496, 517, 111 S.Ct. 2419, 115 L.Ed.2d 447 (1991)). The Credit Union Times contends that Statement 8 cannot serve as a basis for a claim of defamation by Heyward, because the statement is about First Financial and not about Hey-ward. See Motion to Dismiss at 15. With regard to Statement 9, the Credit Union Times asserts that “the sting of the statement ... — that there was a ‘systematic lending pattern at First Financial ‘without regard to due diligence’ — is not susceptible to a precise meaning.” Motion to Dismiss at 15 (quoting Complaint ¶ 15i, at 6). The Credit Union Times argues that, because it reports only on the arguments of Hey-ward’s critics, and those arguments use “colloquial terms, not in the precise and parsed language of an official regulatory report,” the statement is not sufficiently verifiable and therefore cannot serve as a basis for defamation. Motion to Dismiss at 15-16. The Credit Union Times argues that Statement 10 cannot serve as the basis for a defamation claim. The Credit Union Times contends that, in addition to Hey-ward admitting in his Complaint that he purchased business loan participations from his previous employer, the assertion is not defamatory. See Motion to Dismiss at 16. The Credit Union Times argues that the other assertion in Statement 10-that “[c]rities reported that Heyward had bought these loan participations with little or no due diligence ...,” Complaint ¶ 15j, at 8 — read in context, “is simply another variation on the unverifiable view of the critics that more investigation should have been conducted.... ” Motion to Dismiss at 16-17 (citing Fikes v. Furst, 2003-NMSC-033, ¶ 18). In regard to Statement 11, the Credit Union Times states: “Plaintiff does not deny the accuracy of these figures; rather, he contends that the statement ‘impl[ies] that a decline is bad or otherwise abnormal merely because Mr. Heyward is the CEO.” Motion to Dismiss at 17. The Credit Union Times asserts that, even .if this interpretation were reasonable, the statement still could not constitutionally serve as a basis for a defamation claim, because “whether a decline in a financial institution’s net worth is ‘bad’ or ‘abnormal’ is a subjective view, not a verifiable fact.” Motion to Dismiss at 17. As to Statement 12, the Credit Union Times asserts: The sting of this statement — that First Financial is “in[ ] a significantly deeper hole” than if someone else were CEO— is the quintessential kind of speculation that is incapable of being proven true or false, and therefore not properly subject to a defamation claim. No one can know what condition First Financial might have been in if Heyward had not been hired as the CEO. Motion to Dismiss at 17-18 (quoting Complaint 151, at 9)(citing Am. Broad. Cos. v. Gill, 6 S.W.3d 19, 44 (Tex.Ct.App.1999), disapproved of on other grounds in Turner v. KTRK Television, Inc., 38 S.W.3d 103, 115 (Tex.2000)). On May 25, 2012, Heyward filed the Plaintiffs Response to Defendant’s Motion to Dismiss Plaintiffs Complaint. See Doc. 16 (“Response”). Heyward argues that, in the Court’s review of the Motion to Dismiss, the standard of review is such that “material allegations of [the] complaint must be accepted as true; dismissal [of the Complaint] is appropriate only if it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief.” Response at 2. Heyward argues that the Credit Union Times’ Motion to Dismiss is premature: Defendant, in its Motion to Dismiss, has separated each of the statements ... in an attempt to show that they are not actionable; however, Defendant’s Motion is premature because Defendant attempts in its Motion to argue facts of the case and get into the merits. The Purpose of [a] motion to dismiss is to test sufficiency of [the] complaint, not to decide [the complaint’s] merits. Response at 4 (citing Moore v. Bd. of Educ. of the City of Chicago, 300 F.Supp.2d 641 (N.D.Ill.2004)). Heyward contends that the Motion to Dismiss is also premature, because discovery has not yet begun. See Response at 5 (citing Klebanow v. Funston, 35 F.R.D. 518, 520 (S.D.N.Y.1964)). Heyward contends that his Complaint is sufficient to withstand the Motion to Dismiss: “[I]f the allegations contained in Plaintiffs Complaint are deemed to be true, which is exactly what the well settled law with regard to reviewing a Motion to Dismiss requires, [then] Plaintiffs Complaint more than satisfies the minimal standard of pleading at this early stage in litigation.” Response at 5. Heyward argues that the Credit Union Times’ “desperate argument that Defendant’s statements ... are not factual statements that reasonably could be verified .... ” is flawed, because the “majority of the defamatory statements ... could in fact be verified.” Response at 6. Heyward asserts that the statements are not constitutionally protected opinions, because the critics’ statements “are facts that can and will be proven false and incorrect and therefore not protected by the First Amendment.” Response at 6. Heyward argues that Statement 1 is false and that the “Defendant’s failure to investigate the lending history during Plaintiffs tenure to validate the ‘critics[’]’ comments before publishing them is a clear display of reckless journalism .... [for which the] Defendant should not be rewarded.... ” Response at 7. Heyward argues that the Credit Union Times’ reliance on Jefferson Cnty. Sch. Dist. No. R-1 v. Moody’s Investor’s Servs., Inc., 175 F.3d 848 (10th Cir.1999), to support its argument that the statement is entitled to protection under the First Amendment to the United States Constitution is flawed, because Heyward “is not a public figure.” Response at 8. Heyward contends that the Credit Union Times’ assertions that some of the statements are constitutionally protected opinions is premature: Defendant cites to Jefferson County Sch. Dist. No. R-1 v. Moody’s Investor’s Servs[, Inc.,] to illustrate that before there can be liability in a defamation claim there must be proof the[ ] [statements] are false and not opinions. Again, Plaintiff would take the position that a Motion to Dismiss is not the proper forum to argue the merits of the case and these determinations should be reserved for trial. Response at 8. Heyward asserts that, regardless whether it is true that one’s management style is unverifiable, there are allegations in Statement 1 that tie his cowboy style of leadership to his failure to perform due diligence, and that Heyward can prove that he performed due diligence in connection with the Copper Square loan. See Response at 9. In regards to Statement 2, Heyward argues that the statement “implies that there have been multiple individuals fired and for no other reason than they disagreed with Mr. Heyward.” Response at 9-10. Heyward asserts that the statement is untrue, as only one executive left during Heyward’s tenure before the article was written, and the statement is defamatory to Heyward because it has discouraged potential employees from interviewing with him. See Response at 10. Heyward contends that Statement 3 is a factual issue that cannot be decided on a motion to dismiss, but must go to the trier of fact, stating: “Heyward did not show any lack of attention to detail for the Copper Square loan or in any other previous loans .... [and thus] Defendant’s Motion to dismiss [sic] is premature and .... [t]his is an allegation which poses a factual situation for the trier of fact to decide.” Response at 11. Heyward argues that the Credit Union Times’ reliance on Associated Press v. Cook, 17 S.W.3d at 447, is misplaced, because the Court of Appeals of Texas in Associated Press v. Cook made clear that there were too many instances of which the reader would have to speculate, whereas in this case, the Credit Union Times could have researched and discovered the amount of loans Heyward approved. See Response at 12. Heyward argues, with regard to Statement 4, that the “implications that ‘might reasonably be drawn’ from” the Statement are that “the developers are not responsible for the alleged fraudulent acts [for which the U.S. Attorney has indicted them], but rather Mr. Heyward is.” Response at 13-14. In response to the Credit Union Times’ argument that Statement 5 does not refer to him, Heyward asserts that this argument is disingenuous, because “throughout their Motion they state that Ben Heyward acted unilaterally and was the only one who could authorize loans.” Response at 14. Hayward recognizes that, under Andrews v. Stallings, 119 N.M. 478, 892 P.2d 611 (Ct.App.1995), defamation must be clearly directed towards the plaintiff, but contends that Statement 5 is clearly directed towards Heyward, because “[t]he CU Times article makes it very clear that all of the critics’ allegations and the alleged pattern of reckless lending were the responsibility of Ben Heyward.” Response at 14. Heyward asserts that Statement 6 is “inaccurate, taken out of context and incomplete,” because the questionnaire provided to Heyward did not allow him to respond to or comment oh the anonymous critics’ statements. Response at 15-16. As to Statement 7, Heyward contends that the Credit Union Times’ reliance on Nicholson v. Promotors on Listings, 159 F.R.D. at 355, “to show that [the] statement ... is not actionable because Mr. Heyward was responsible for a blunder that unquestionably proved costly for First Financial,” is misplaced. Response at 16. Heyward argues that Nicholson v. Promotors on Listings is not analogous to his case, because he alleges that he is not a public figure, and there was no reported falsity or inaccuracy in Nicholson v. Pro-motors on Listings. However, according to Heyward, the Article’s report that he had the same knowledge as his staff is untrue. See Response at 16. Heyward argues that Nicholson v. Promotors on Listings is also distinguishable in that the Credit Union Times’ inaccuracies were malicious: Nicholson states that “if there is no actual malice with regard to the bulk of the assertions and with regard to the general thrust of an article, inaccuracies with regard to subsidiary matters will not support recovery.” Nicholson v. Promotors on Listings, 159 F.R.D. [at] 355[ ]. In the instant case, there is actual malice with regard to the bulk of the assertions and with regard to the general thrust of the article. At a minimum there are factual disputes on the malice behind, the allegations and therefore a Motion to Dismiss would be premature. Response at 17. In response to the Credit Union Times’ argument that Statement 8 cannot serve as a basis for defamation as it is riot about Heyward, he points out that “the sentence immediately following [Statement [8] is: ‘Heyward has maintained that none were fired but sources familiar with the credit union said all six were fired or forced out after they raised questions about the credit union’s direction.’” Response at 17. Heyward thus contends that the “Defendant’s, cited case law is not-applicable because the statement is about Plaintiff and is untruthful and without any factual basis,” because Statement 8 is about his “false[] alleged tendency to terminate or force out employees that disagree with his operations of the credit union.” Response at 18. In regard to the Credit Union Times’ argument that Statement 9 is not actionable because “there is no precise meaning to the ‘systematic lending pattern’ and ‘without regard to due diligence,’” Heyward argues that Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 90 S.Ct. 1537,,26 L.Ed.2d 6 (1970) — the case on which the Credit Union Times relies for its argument — is distinguishable. Response at 19. Heyward asserts: “In Greenbelt ... all the reported information was accurate and truthful, which is distinguishable from the instant case because the allegations in the CU Times article are inaccurate and untruthful.” Response at 19. Heyward contends that the Credit Union Times’ cite to Mendoza v. Gallup Indep. Co., 107 N.M. at 721, 764 P.2d at 492, as supporting its argument that Statement 9 considered in context cannot be interpreted as an assertion of fact, is misplaced, because Mendoza v. Gallup Indep. Co., is distinguishable on the grounds that it was a motion for summary judgment, not a motion to dismiss, and, notably, that the article in Mendoza v. Gallup Indep. Co. was published on the newspaper’s opinions page. See Response at 19. Hey-ward asserts that the statements at issue in this case “do not contain language, such as ‘in my opinion’ or any other language to indicate to the reader that the assertions are merely opinions and not factual allegations.” Response at 20. As to Statement 10, Heyward argues that the Credit Union Times,.in its Motion to. Dismiss, “attempts to create a perception that the critics were merely dissatisfied with the level of due diligence conducted prior to purchasing the business loan participations and the CU Times’ article reporting this dissatisfaction is not actionable.” Response at 20. Heyward argues, however, that, because the asserted facts in the statement that allegedly caused that dissatisfaction are false, the statement-is actionable. See Response at 20. ' Heyward alleges that Statement 11 “is misleading and inaccurate .... [because] [w]hen read in its entire contextf,] Defendant is alleging that the loss in net worth of First Financial is in large part due to Mr. Heyward without any factual evidence to back the allegation.” Response at 21. In regard to Statement 12, Heyward argues that the Credit Union Times cannot hide behind defamatory statements, alleging that they are not facts, by couching them in terms of critics’ concerns or criticisms. See Response at 22. Heyward states: A plaintiff can bring a claim for defamation when discrete facts, literally or substantially true, are published in such a way that they create a substantially false and defamatory impression by omitting material facts or juxtaposing facts in a misleading way. We thus' disapprove of the language of these court of appeals cases to the extent that they hold or suggest otherwise. Turner v. KTRK TV., Inc., 38 S.W.3d [at] 115.... The court in Turner overruled the court in ABC, Inc. v. Gill, 6 S.W.3d [at] 44 ..., which was cited by Defendant. In the instant case, while CU Times acknowledges that the economy had a negative effect on Credit Unions, the manner in which the article was published indicates that any downfall of First Financial was solely because of Mr. Hey-ward. Even if an individual, or in this case critics, state the facts upon which opinions are based on, if those facts are either incorrect or incomplete, or if these assessment of them is erroneous, the statement may still imply a false assertion of fact. Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19 [110 S.Ct. 2695, 111 L.Ed.2d 1 (1990) ].... Simply couching such statements in terms of opinion does not dispel these implications. Id. Therefore, Defendant cannot hide behind its assertion that these false statements are merely opinions when Defendant bases its “opinions” on completely untrue facts. Response at 22. On June 11, 2012, the Credit Union Times filed its Reply Brief in Support of Motion to Dismiss Complaint. See Doc. 18 (“Reply”). The Credit Union Times contends that Heyward’s citation to DIRECTV, Inc. v. Cope, 301 F.Supp.2d 1303 (M.D.Ala.2003), for the proposition that the threshold is exceedingly low to survive a motion to dismiss, “ignor[es] the stricter standard applied to complaints in disfavored causes of action such as defamation.” Reply ¶ 1, at 1-2. The Credit Union Times argues that Heyward misunderstands its Motion to Dismiss, asserting: “[D]efendant does not contest the sufficiency of plaintiffs pleading but, rather, contends that under the First Amendment and applicable common law, the statements challenged by plaintiff cannot properly give rise to a claim for defamation.” Reply ¶ 2, at 2 (citing Schuler v. McGrawHill Cos., Inc., 989 F.Supp. 1377 (D.N.M.1997), aff'd sub nom., Schuler v. McGraw Hill Cos., Inc., 145 F.3d 1346 (10th Cir.1998)). In response to Heyward’s argument in connection with Statement 1 that his due diligence in commercial loans can be proven, the Credit Union Times asserts that, “even by his own account, what is at issue is whether he performed ‘the appropriate due diligence’ or ‘proper due diligence,’— standards that are clearly evaluative and subjective, not quantitative or otherwise capable of objective verification.” Reply ¶ 4, at 2-3 (emphasis omitted). The Credit Union Times disagrees with Heyward’s contention that Statement 2 is defamatory as it implies that “unless you agree with Plaintiff you will be fired,” Reply ¶ 5, at 3 (quoting Response at 10), arguing that such an implication cannot reasonably be drawn from statement 2, see Reply ¶ 5, at 3. Similarly, where Heyward contends that Statement 4 implies that he was guilty of fraudulent activity, the Credit Union Times asserts that, in the context of the article referring to the loan as a “mistake,” the only reasonable implication is that Heyward is sloppy, and not criminal. Reply ¶ 6, at 3. In response to Heyward’s criticism of the Credit Union Times’ citation to Nicholson v. Promotors on Listings, 159 F.R.D. at 355, the Credit Union Times clarifies that it cites to Nicholson v. Promotors on Listings “for the well-settled principle that it is the ‘gist’ or ‘sting’ of a statement that must be false for it to give rise to a claim for defamation.” Reply ¶ 7, 3^4 (quoting Nicholson v. Promotors on Listings, 159 F.R.D. at 355). The Credit Union Times argues that Statement 9, although it does not contain any language such as “in my opinion,” can still classify as unverifiable opinion that the Constitution protects, because the Supreme Court of the United States has made clear that “the distinction between actionable facts and protected opinion does not depend on the use of phrases such as ‘in my opinion.’ ” Reply ¶ 8, at 4 (quoting Milkovich v. Lorain Journal Co., 497 U.S. at 19,110 S.Ct. 2695). As to Statement 12, the Credit Union Times asserts that Hey-ward’s contention that it implies that “any downfall ... was solely caused because of Mr. Heyward,” Reply ¶ 9, at 4 (quoting Response at 22), is not reasonable in the context of the article, Reply ¶ 9, at 4. The Credit Union Times contends that Hey-ward’s reliance on Turner v. KTRK TV, Inc., 38 S.W.3d at 113, is unpersuasive, because Heyward fails to “explain how Turner might apply, and it does not, as there are no omitted or juxtaposed facts here that in any manner suggest that the ... financial problems were ‘solely because of Mr. Heyward.’ ” Reply ¶ 9, at 5. The Credit Union Times thus requests that the Court dismiss Heyward’s claims with prejudice. See Reply at 5. At the hearing on the Credit Union Times’ Motion to Dismiss, the Credit Union Times asserted that Heyward’s “principal response to [the Motion to Dismiss] seems to be that it’s premature, that issues are not ripe for decision by the Court at ... this stage.” Transcript of Hearing (taken July 27, 2012) at 7:8-10 (Koch)(“Tr.”). The Credit Union Times noted that Heyward’s argument appears to be that, because Heyward has pleaded all the elements for defamation, he has sufficiently stated a claim under rule 8(a) of the Federal Rules of Civil Procedure. See Tr. at 7:10-12 (Koch). The Credit Union Times made clear that it is “not contesting the sufficiency of allegations in the Complaint as you would in a [Bell Atl. Corp. v.] Twombly[, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007),] context, but, rather our motion, is more in the nature of a motion for judgment on the pleadings.” Tr. at 7:13-16 (Koch). The Credit Union Times contended that, unlike most torts, libel is disfavored by courts and should be dismissed at the earliest possible opportunity. See Tr. 7:17-20 (Koch). The Credit Union Times argued that the Motion to Dismiss is not premature, because “[e]ach of the legal bases ... rel[ied] upon are issues that are to be determined ... as a matter of law....” Tr. at 7:21-23 (Koch). The Credit Union Times argued that Statement 1 cannot serve as the basis of a defamation allegation, because “no one can prove whether Mr. Heyward ... has a cowboy style of leadership, that’s not something that’s verifiable as true or false....” Tr. at 9:19-22 (Koch). In response to the Court’s inquiry how one would verify that Heyward has a cowboy style of leadership, Heyward contended that one can verify that Heyward has performed his job as CEO of First Financial with due diligence, that performance is verified by monthly reports of the First Financial Board of Directors, and that the federal regulators overseeing the credit union have never made negative findings regarding Heyward. See Tr. at 12:1-24 (Court, Danoff). Heyward asserted that he can verify that he has performed with due diligence by showing that he has met all of the regulators’ requirements, and that, under federal regulators’ scrutiny, the credit union’s financial safety has never been questioned. See Tr. at 13:14-14:1 (Danoff). The Court asked the Credit Union Times whether the assertion that the “critics lay the responsibility for making the Copper Avenue loan at the feet of Heyward” could be verified. Tr. at 16:12-16 (Court). The Credit Union Times responded that it could, but that: (i) Hey-ward is not challenging the content of what the critics say as true, and (ii) were Hey-ward to challenge the content, whether critics blame Heyward for the loan is not defamatory to Heyward. See Tr. at 16: 19-25 (Koch). The Credit Union Times argued that Heyward’s contention that Statement 1 implies that First Financial is in financial jeopardy because of Heyward’s management is not reasonable in the context of the Article, as the Article does not suggest or support an inference that First Financial is in jeopardy. Rather, the Article states that critics view Heyward’s leadership style — what they allege is his desire to make a big splash rather than perform due diligence — as jeopardizing First Financial’s safety. See Tr. at 17:10-18:2 (Koch). Moving to Statement 2, the Court asked Heyward, even assuming that Statement 2 is false, whether it is defamatory. See Tr. at 19:6-9 (Court). Heyward responded that Statement 2 implies that he “arbitrarily and capriciously” fires his subordinates, which damages his reputation. Tr. at 19:10-17 (Danoff). The Court then inquired, while Statement 2 may not be flattering, whether it rises to the level of subjecting Heyward to “contempt or ridicule,” as New Mexico law requires for a defamatory statement. Tr. at 19:18-22 (Court). Heyward replied that it “absolutely” does, because Heyward would be ridiculed for not having an open mind and “be contemptuous of something that’s not even true about his character.” Tr. at 20:1-9 (Danoff). Heyward argued that no credible person would want to associate with him after reading Statement 2, and, Schuler v. McGraw-Hill Cos., Inc., 989 F.Supp. at 1377, concluded that was a sufficient standard to find that a statement was defamatory. See Tr. at 20:16-21:8 (Danoff). In regard to Statement 3, the Credit Union Times argued that the statement is true, as Heyward concedes he had sole authority to sign off the loan, and thus authorize the loan and that, to the extent that the statement goes beyond that assertion, the statement is not defamatory of Heyward. See Tr. at 22:12-25- (Koch). The Credit Union Times contended that the critics’ charge that Heyward suffered from a lack of attention to detail is a generalized statement not provable as true or false. See Tr. at 22:25-23:3 (Koch). The Credit Union Times asserted that, under New Mexico law, the issue is whether the “gist” of the statement is true or false, and the gist of Statement 3 — that Heyward had the sole authority to authorize the Copper Square loan, that the Copper Square loan was a costly decision, and that there was a lack of attention to detail in Heyward’s authorization of it — is substantially true. See Tr. at 23:7-24:15 (Koch). The Court asked Heyward whether he disagrees that he has conceded what the Credit Union Times classifies as Statement 3’s gist. See Tr. at 24:21-23 (Court). Heyward responded that he does not concede that the decision to make the loan was unilateral, because there are policies and procedures in place which he must follow in making the loan, and there is a committee which makes recommendations on whether to make the loan. See Tr. at 25:3-10 (Danoff). Heyward stated that he has data to prove that he was attentive to details in making the Copper Square loan. See Tr. at 25:10-20 (Danoff). The Court inquired how, if Heyward contends that he was attentive to the details in making the Copper Square loan, Heyward reconciles that contention with his contention as to Statement 7, that he was not privy to the same information regarding Garcia as was his staff. See Tr. at 26:21-27:1 (Court). Heyward contended that, although he concedes that he did not have the information that his employees had at the time he made the loan, the lack of this particular information does not mean that he was inattentive to the details of making the loan, because the Court and the law cannot require Heyward to be omniscient. See Tr.' at 27:2-28:10 (Danoff). The Credit Union Times, in regard to Statement 4, argued that Heyward’s contention that it is defamatory for the Credit Union Times to have juxtaposed the United States Attorney’s indictment of Garcia with the critics’ blame of Heyward for the loan, because it implies that Heyward acted criminally, is not persuasive. See Tr. at 28:18-25 (Koch). The Credit Union Times contended that “it’s very clear that what the critics are charging is that Mr. Hey-ward paid insufficient attention to detail, not that he did anything illegal.” Tr. at 29:14-19 (Koch). The Court broke the statement down into its parts, and asked Heyward first whether he disputes that the United States Attorney indicted the developers, including Garcia, in connection with the loan. See .Tr. at 30:23-24 (Court). Heyward responded that he does not disagree with that statement. See Tr. at 30:25. (Danoff). The Court then asked whether Heyward is disputing that the critics blame him as First Financial’s CEO. See Tr. at 30:25-31:1 (Court). Hey-ward responded that, in light of the context of the Article, and in a light.most favorable to Heyward, the statement implies that the critics blame Heyward for fraud, which Heyward does not concede and asserts is defamatory. See Tr. at 31:2-13 (Danoff, Court). The Court asked, reading the statement in that light, whether Heyward disputes that the critics blame hjm for approving the loan. See Tr. at 31:14-18 (Court, Danoff). Heyward responded that he objects that he does not know who the alleged critics are, and he has not been provided with any of the requested information identifying these critics, and thus he cannot say whether he disputes the allegations when he does not know of whom the critics consist. See Tr. at 31:19-32:8 (Court, Danoff). The Court asked if it was only this particular reading, with the implication that the critics are blaming Heyward for fraud, rather than for approving of the loan, that Heyward is alleging is defamatory. See Tr. at 32:9-13 (Court). Heyward conceded that the Court is correct; it is under that implication only that is he contending that the statement is defamatory, but he contended that the case law allows for defamation by implication where there is “reputational injury caused by communication ... resulting] from not what is said but from what is implied. And this clearly implies ... [that] Heyward ... is responsible for fraud.” Tr. at 32:19-25 (Danoff). Hey-ward asserted that “to link [the critics’ blame of Heyward] in the same sentence ... [with] fraud to me is very clear that they’re ... blaming Mr. Heyward for a fraud and it’s all his fault.” Tr. at 33:8-10 (Danoff). The Credit Union Times responded by arguing that the phrase “critics blame CU CEO” must be construed in the context of the whole Article, which discusses the critics’ blame of Heyward for approving of a bad loan and not performing his job with due care; the Article is not about Garcia’s indictment for fraud. See Tr. at 34:15-35:16 (Koch). The Credit Union Times asserted that Statement 5’s “language ... particularly in the context[,] is not specific enough to form a factual statement that can be the basis of a libel suit.” Tr. at 37:13-15 (Koch). The Credit Union Times stated that the context is a statement in an “article that’s reporting about subjective criticisms of Mr. Heyward and of the fact that ... the credit union is not being run in a way that they would like to see; that they believe that [it’s part of] a pattern [of loans] ... that aren’t getting sufficient ... attention to the details.” Tr. at 37:22-38:5 (Koch). The Court inquired: “Well can a publisher escape a defamation suit by simply putting the words ‘critics charge’ [in front of] whatever they want to say?” Tr. at 38:23-25 (Court). The Credit Union Times responded that a publisher cannot so easily escape defamation liability. See Tr. at 39:l(Koch). The Credit Union Times asserted, however, that “[fit’s not that the publisher is not responsible because they’re just citing to critics; its that the fact that it’s ... a report about the beliefs of other people who were unhappy.” Tr. at 39:8-11 (Koch). Heyward responded that Statement 5 is particularly concerning, and particularly defamatory, because of the term “reckless.” Tr. at 39:19-21 (Danoff). Heyward asserted: “Recklessness] is a direct professional accusation.” Tr. at 40:1 (Danoff). Heyward stated that he can “factually prove that there has not been reckless lending.” Tr. at 40:5-6 (Danoff). The Credit Union Times responded that, if this were a federal regulator’s report, rather than an article relating people’s opinions, a charge of recklessness may be actionable, but this Article could not reasonably be read to imply that the charge of recklessness is asserting fact. See Tr. at 40:20-41:7 (Koch). In regard to Statement 6, the Court inquired whether the reporter talked to Heyward before publishing the article. See Tr. at 41:15-16 (Court). The Credit Union Times replied that, although not part of the facts on which the Motion to Dismiss is based, the reporter submitted questions to Heyward, but received only a short electronic mail transmission reply from Heyward, which the Article quoted. See Tr. at 41:15-21 (Koch). The Credit Union Times asserted: “[T]here is nothing defamatory about a subject of a story not answering detailed questions, not being willing to respond at all, to not provide comment, to do anything that he or she wishes in response to a story.” Tr. at 42:20-23 (Koch). The Court asked whether the quotation in the Article is from the electronic mail transmission that Heyward sent to the reporter, to which the Credit Union Times responded that it was, and that the contents of the entire electronic mail transmission appears in the Article. See Tr. at 43:10-23 (Court, Koch). In response to the Court’s inquiry of Hey-ward what he found defamatory about Statement 6, Heyward responded that a reasonable person would infer from the statement that he is obfuscating his duties by not answering questions and, rather than merely not wanting to answer the questions, is attempting to avoid the questions altogether. See Tr. at 43:24-44:15 (Court, Danoff). The Credit Union Times asserted that, “just because a reader might have questions about why the subject of a story did not provide answers to ... questions doesn’t ... rise to the level of defamation. ...” Tr. at 44:17-20 (Koch). The Credit Union Times moved to dismiss the Complaint to the extent that it is based on Statement 11, arguing that Hey-ward does not contest the numbers reported that reflect First Financial’s financial condition, and that any implication of the statement that the decline is abnormal or worse than it would have been without Heyward, cannot form the basis of a defamation claim, as it is not verifiable. See Tr. at 46:11-19 (Koch). Similarly, with regard to Statement 12, the Credit Union Times contended that whether Heyward led First Financial into “a significantly deeper hole than it would have been if Heyward was not CEO .... cannot be proven true or false.” Tr. at 47:5-15 (Koch). The Court asked Heyward how he or anyone would prove as true or false that First Financial would be in a deeper, or less-deep, hole had Heyward not been its CEO. See Tr. at 47:24-48:1 (Court). Heyward responded that it can be proved true or false by comparing how First Financial has performed with Heyward as CEO compared with how other credit unions performed over the same period. See Tr. at 48:8-10 (Danoff). Heyward argued that Statement 12 goes beyond asserting that First Financial would have performed better had he not been there and, when read in context of the whole Article, is “assailing his management.” Tr. at 48:12-16 (Danoff). Heyward contended that such a comparison would not be speculative, because “there are industry performance periodicals and publications that will depict whether he put this in a deep[er] hole or not.” Tr. at 50:23-51:1 (Danoff). Heyward then argued that Statement 9 is “the most important one,” because it implies that the Copper Square loan was the capstone to what has been a systematic practice of Heyward making terrible loans, of which Heyward stated that he could “think of nothing that is more contemptuous.” Tr. at 51:23-52:8 (Danoff). Hey-ward asserted that this statement implies that almost everything he does is part of a system of poor loans, including the business loan participations, and that he does not perform due diligence anywhere within this system. Heyward contended that this implication is defamatory as to him. See Tr. at 52: 15-1 (Danoff). Heyward argued that the statements are, and the Article viewed in its entirety is, defamatory, because it says that “[h]e’s a bad manager, he’s a hatchet machine, he doesn’t do due diligence, he systematically does bad loans, he was ultimately responsible for the fraud of the developers with regards to matters that people [have been] indicted for, and that he just doesn’t do his job.” Tr. at 54:1-6 (Danoff). Heyward asserted that this Article and these statements have “hurt him immensely through the industry and people in the industry have and will continue to call him about this.” Tr. at 54:22-25 (Danoff). Heyward concluded by stating that “[h]e’s not a reckless lender. He’s a reasonable, sincere lender.” Tr. at 55:6-7 (Danoff). LAW REGARDING RULE 12(b)(6) Rule 12(b)(6) authorizes a court to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed.R.Civ.P. 12(b)(6). “The nature of a Rule 12(b)(6) motion tests the sufficiency of the allegations within the four corners of the complaint after taking those allegations as true.” Mobley v. McCormick, 40 F.3d 337, 340 (10th Cir.1994). The sufficiency of a complaint is a question of law, and when considering a rule 12(b)(6) motion, a court must accept as true all well-pleaded factual allegations in the complaint, view those allegations in the light most favorable to the non-moving party, and draw all reasonable inferences in the plaintiffs favor. See Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007)(“[0]nly if a reasonable person could not draw ... an inference [of plausibility] from the alleged facts would the defendant prevail on a motion to dismiss.”); Smith v. United States, 561 F.3d 1090, 1098 (10th Cir.2009)(“[F]or purposes of resolving a Rule 12(b)(6) motion, we accept as true all well-pleaded factual allegations in a complaint and view these allegations in the light most favorable to the plaintiff.”)(quoting Moore v. Guthrie, 438 F.3d 1036, 1039 (10th Cir.2006)). A complaint need not set forth detailed factual allegations, yet a “pleading that offers labels and conclusions or a formulaic recitation of the elements of a cause of action” is insufficient. Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)(citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007)). “Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. “Factual allegations must be enough to raise a right to relief above the speculative level, on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Bell Atl. Corp. v. Twombly, 550 U.S. at 555, 127 S.Ct. 1955 (citation omitted). To survive a motion to dismiss, a plaintiffs complaint must contain sufficient facts that, if assumed to be true, state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955; Mink v. Knox, 613 F.3d 995, 1000 (10th Cir.2010). “A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678, 129 S.Ct. 1937 (citing Bell Atl. Corp. v. Twombly, 550 U.S. at 556, 127 S.Ct. 1955). “Thus, the mere metaphysical possibility that some plaintiff could prove some set of facts in support of the pleaded claims is insufficient; the complainant must give the court reason to believe that this plaintiff has a reasonable likelihood of mustering factual support for these claims.” Ridge at Red Hawk, LLC v. Schneider, 493 F.3d 1174, 1177 (10th Cir.2007)(emphasis omitted). The Tenth Circuit stated: “[Plausibility” in this context must refer to the scope of the allegations in a complaint: if they are so general that they encompass a wide swath of conduct, much of it innocent, then the plaintiffs “have not nudged their claims across the line from conceivable to plausible.” The allegations must be enough that, if assumed to be true, the plaintiff plausibly (not just speculatively) has a claim for relief. Robbins v. Oklahoma, 519 F.3d 1242, 1247 (10th Cir.2008)(quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 570, 127 S.Ct. 1955)(internal citations omitted). LAW REGARDING DEFAMATION More than forty years ago, in New York Times v. Sullivan, 376 U.S. 254, 84 5.Ct. 710, 11 L.Ed.2d 686 (1964), the Supreme Court of the United States declared that state-law defamation claims must be measured by standards that satisfy the First Amendment, which permits no law “abridg[ing] the freedom of speech, and of the press.” 376 U.S. at 269, 84 S.Ct. 710. That holding is grounded in “a profound national commitment to the principle that debate on public issues should be unlimited, robust, and wideopen, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks on government and public officials.” 376 U.S. at 270, 84 S.Ct. 710. The protection of speech on issues of public concern extends even to false speech, so that the First Amendment’s “freedom of expression ... ha[s] the ‘breathing space’ ” it needs to survive. 376 U.S. at 271-72, 84 S.Ct. 710. See Gertz v. Robert Welch, Inc., 418 U.S. 323, 341, 94 S.Ct. 2997, 41 L.Ed.2d 789 (1974) (“The First Amendment requires that we protect some falsehood in order to protect speech that matters.”). Under New Mexico law, a primafacie case of the tort of defamation includes: (i) a published communication by the defendant; (ii) the communication includes an asserted statement of fact; (iii) the communication was concerning the plaintiff; (iv) the statement of fact is false; (v) the communication was defamatory; (vi) the persons receiving the communication understood it to be defamatory; (vii) the defendant knew the communication was false or negligently failed to recpgnize that it was false, or acted with malice; (viii) the communication caused actual injury to the plaintiffs reputation; and (ix) the defendant abused its privilege to publish the communication. See Civ. U.J.I. 13-1002(B) N.M.R.A. See also Newberry v. Allied Stores, Inc., 108 N.M. 424, 429, 773 P.2d 1231, 1236 (1989)(“Generally, the elements of a defamation action include: a defamatory communication, published by the defendant, to a third person, of an asserted fact, of and concerning the plaintiff, and proximately causing actual injury to the plaintiff.”)(citing Civ. U.J.I. 13-1002 N.M.R.A. (1986)). 1. Statement of Fact. The Supreme Court of the United States has held that, under the First Amendment to the United States Constitution, a statement can serve as a basis for a defamation claim only if it is a statement of fact and not of opinion: Under the First Amendment there is no such thing as a false idea. However pernicious an opinion may seem, we depend for its correction not on the conscience of judges and juries but on the competition of other ideas. But there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society’s interest in “uninhibited, robust, and wide-open” debate on public issues. New York Times Co. v. Sullivan, 376 U.S., at 270, .84 S.Ct. 710. They belong to that, category of utterances which “are no essential part of any exposition of ideas, and are of such slight social value as a step to truth that any benefit that may be derived from them is clearly outweighed by the social interest in order and morality.” Chaplinsky v. New Hampshire, 315 U.S. 568, 572, 62 S.Ct. 766, 86 L.Ed. 1031 (1942). Gertz v. Robert Welch, Inc., 418 U.S. at 339-40, 94 S.Ct. 2997. Thus, “[a]n action for defamation lies only for false statements of fact and not for statements of opinion.” Mendoza v. Gallup Indep. Co., 107 N.M. 721, 723, 764 P.2d 492, 494 (Ct.App.1988). The Supreme Court of New Mexico, in Marchiondo v. Brown, 98 N.M. 394, 649 P.2d 462 (1982), held that the court is to determine as a matter of law whether the alleged defamatory statement was or contained a statement of fact: Where the statements are unambiguously fact or opinion, ... the court determines as a matter of law whether the statements are fact or opinion. However, where the alleged defamatory remarks could be determined either as fact or opinion, and the court cannot say as a matter of law that the statements were not understood as fact, there is a triable issue of fact for the jury. Marchiondo v. Brown, 98 N.M. at 404, 649 P.2d at 472. Whether a statement asserts a fact turns on whether the statement is verifiable — whether it “is sufficiently factual to be susceptible of being proved true or false.” Milkovich v. Lorain Journal Co., 497 U.S. 1, 21, 110 S.Ct. 2695, 111 L.Ed.2d 1 (1990). See Moore v. Sun Publ’g Corp., 118 N.M. 375, 382, 881 P.2d 735, 742 (Ct.App.1994)(“New Mexico appears to be among the states requiring verifiability as the controlling element in determining whether a statement is fact or opinion. Under this analysis, opinions are statements which cannot be proved or disproved.”)(internal citations and quotations omitted). Opinions may be actionable as defamatory where they implicitly contain an assertion of fact. See Schwartz v. Am. Coll, of Emergency Physicians, 215 F.3d 1140, 1145 (10th Cir.2000)(“Certain expressions of opinion implicitly contain an assertion of objective fact, and such statements are not exempt from a defamation claim.”)(citing Milkovich v. Lorain Journal Co., 497 U.S. at 18-19, 110 S.Ct. 2695). The Supreme