Caudle v. Thomason

• Decision Date: 25 April 1996
• Docket Number: Civil Action No. 94-0707.
• Citation: 942 F.Supp. 635
• Parties: Charles P. CAUDLE, Plaintiff, v. Harry THOMASON, Defendant.
• Court: U.S. District Court — District of Columbia

Page 635

942 F.Supp. 635

Charles P. CAUDLE, Plaintiff, v. Harry THOMASON, Defendant.

Civil Action No. 94-0707.

United States District Court, District of Columbia.

April 25, 1996.

James K. Archibald, David W. Goewey, Venable, Baetjer, Howard & Civiletti, Washington, DC, Douglas E. Kahle, Pender & Coward, Virginia Beach, VA, for Plaintiff.

Robert S. Bennett, Richard L. Brusca, Katharine R. Stollman, Laura A. Ingraham, Skadden, Arps, Slate, Meagher & Flom, Washington, DC (Michael J. Plonsker, Lavely & Singer, Los Angeles, CA, of counsel), for Defendant.

MEMORANDUM

HAROLD H. GREENE, District Judge.

This case is before the Court on defendant's motion to dismiss. Upon consideration of that motion, plaintiff's opposition, and defendant's reply, the Court concludes that the motion should be granted in part and denied in part.

I

This case, alleging defamation, is related to the problems in the White House Travel Office. Plaintiff, Charles Caudle, was the president and Chief Executive Officer of Airlines of the Americas, Inc. ("AOA"), which was subsequently renamed UltrAir, Inc. AOA provided charter service to the White House Press Corps until some time in May of 1993, pursuant to travel arrangements made by the White House Travel Office. From January 1992 to May 1993, AOA provided approximately $2.5 million worth of domestic air travel to the White House Press Corps.

Defendant, Harry Thomason, is a one-third owner of an aviation consulting and charter firm, Thomason, Richland, & Martens, Inc. ("TRM"). In February of 1993, Thomason contacted Dee Dee Myers, the then-White House Press Secretary, and Billy Dale, head of the White House Travel Office, to inquire about the possibility of having TRM provide air charter service for the travel office.

The complaint filed in this case alleges that Thomason and Darnell Martens, a one-third owner and president of TRM, undertook a "campaign to discredit Mr. Caudle," and thereby win for TRM the White House Travel business from AOA. The complaint is in two counts, one for libel, the other for slander. The libel claim is based on a memorandum that is attached to the amended complaint as an exhibit. The memorandum is marked "CONFIDENTIAL" and is entitled "WHITE HOUSE PRESS CHARTERS." The author of the memorandum is not indicated, but in the complaint, Caudle alleges that the memorandum "was drafted and/or published in whole or in part by Defendant Thomason or at Thomason's behest." The memorandum states that Billy Dale had told Martens that there was no possibility of TRM earning the White House business. The memo notes that "the White House Press Corps has been flown on a virtually exclusive basis by [AOA and its predecessors]." The memo further states that:

[AOA] is a Republican-operated charter airline. The company ran into controversy during the [1992] presidential campaign when it provided press transportation without chargebacks to the press in order to insure good press coverage of Bush campaign appearances.

AOA wanted the flights to be considered a contribution but this was denied by the FEC/DOT subsequent to a complaint initiated by David Buxbaum of the Clinton/Gore `92 Committee. The uncompensated flights were discontinued to the satisfaction of the concerned government agencies.

The memo concluded that the semi-exclusive use of one domestic air charter service "is not illegal. It probably isn't unethical." The memo summarized that "[AOA] attempted to provide free transportation to press covering Bush campaign appearances" and that "[Dale] must have been aware of the above aborted attempt to provide free transportation and took no subsequent action."

The slander claim is premised on statements allegedly made by Thomason to First Lady Hillary Rodham Clinton, and to various members of the White House Staff and the Clinton Administration, including Catherine Cornelius, Jeffrey Eller, Vincent Foster, William Kennedy III, Mack McLarty, George Stephanopoulos, Dee Dee Myers and David Watkins. In these statements, Thomason allegedly claimed or suggested that Caudle was involved in corrupt practices with the White House Travel Office and that Caudle was paying or providing illegal kickbacks to the White House Travel Office.

Thomason has moved to dismiss the complaint on several grounds. He argues that the complaint fails to state a claim for libel because: (1) the statements were not "of and concerning" Caudle, (2) Caudle has failed to identify any defamatory statements, (3) Caudle did not allege any actionable republication, and (4) the communications are privileged. As for the slander claim, Thomason contends that it is barred by the statute of limitations. The Court will address each of these in turn.

II

The standard to be applied in reviewing a motion to dismiss for failure to state a claim is well established:

For purposes of determining whether a plaintiff has failed to state a cause of action, the factual allegations of the complaint must be taken as true, and any ambiguities or doubts must be resolved in favor of the pleader. Despite this generous standard, the complaint must set forth sufficient information to suggest that there exists some recognized legal theory upon which relief can be granted. A court must dismiss a complaint where, even assuming all the factual allegations are true, the plaintiff has failed to establish a right to relief based upon those facts.

Gregg v. Barrett, 771 F.2d 539, 547 (D.C.Cir. 1985) (internal citations and punctuation omitted). The Court must limit its review to the pleadings, and the "defendant must show `beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" In re Swine Flu Immunization Prods. Liability Litigation, 880 F.2d 1439, 1442 (D.C.Cir.1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1955)).

A.

Thomason first argues that the allegedly libelous statements were not "of and concerning" Caudle, because they referred only to AOA. Plaintiff does not dispute that he must show that the remarks were "of and concerning him." He argues that because he was the president and Chief Executive Officer of AOA, any allegations of wrongdoing on the part of AOA implicated him personally.

Even though the statements do not explicitly refer to Caudle, Caudle may prevail if a listener would reasonably believe that the statements referred to him. See RESTATEMENT (SECOND) TORTS § 564 cmt. b (1976). As this Court stated in Cunningham v. United Nat'l Bank of Washington:

The requirement that the libelous statement "must leave no doubt" as to the person's identity[] is met by the fact that the statements were specific enough that some readers could precisely identify the person mentioned in the [defamatory statement] as [plaintiff]. While the published statements would not implicate her in the minds of layman readers, they probably would leave "no doubt" in the minds of those familiar with the situation [to which the defamatory remarks referred].

710 F.Supp. 861, 863 (D.D.C.1989) (internal citations and emphasis omitted). Accordingly, courts have held that "if plaintiff can prove that the defamatory remarks directed against the corporation also concerned him personally, he will have a proved cause of action for libel." Patzer v. Liberty Communications, Inc., 58 Or.App. 679, 650 P.2d 141, 143 (1982); see also Murdaugh Volkswagen, Inc. v. First Nat'l Bank of South Carolina, 801 F.2d 719, 725 (4th Cir.1986) (individual closely associated with corporation may recover for defamation of corporation where libel of corporation personally concerned the individual plaintiff).

Caudle was the CEO and President of AOA and was otherwise closely associated with AOA. He alleges in the complaint that he "made all business decisions regarding corporate actions which are the subject matter of this lawsuit." Taking these allegations to be true, and resolving all ambiguities in favor of Caudle, see Gregg, 771 F.2d at 547, the Court is unable to say that a reasonable listener, familiar with the White House Travel Office, see Cunningham, 710 F.Supp. at 863, would not infer that Caudle was responsible for or involved with the alleged wrongdoings of AOA. Thus, the Court is unable to say that there are no set of facts plaintiff can prove which would entitle him to relief. See In re Swine Flu Prods. Liability Litigation, 880 F.2d at 1442. That, of course, is sufficient to defeat a motion to dismiss.

B.

Next, Thomason argues that Caudle has failed to identify any defamatory statements and has failed to plead the defamatory statements with particularity. In order to plead defamation, a plaintiff should allege specific defamatory comments, see Leo Winter Assocs. v. Department of Health & Human Svcs., 497 F.Supp. 429, 432 (D.D.C. 1980), by "plead[ing] the time, place, content, speaker, and listener of the alleged defamatory matter." Wiggins v. Philip Morris, Inc., 853 F.Supp. 458, 465 (D.D.C.1994). A statement is defamatory "`if it tends to injure plaintiff in his trade, profession or community standing, or lower him in the estimation of the community.'" Howard Univ. v. Best, 484 A.2d 958, 988-89 (D.C.1984) (quoting McBride v. Merrell Dow & Pharmaceuticals, 540 F.Supp. 1252, 1254 (D.D.C.1982)). The issue of whether a statement carries a defamatory meaning is a factual one:

The trial judge has the responsibility to determine whether the statements in question are capable of carrying a defamatory meaning; only when the court can say that the publication is not reasonably capable of any defamatory meaning and cannot reasonably be understood in a defamatory sense, can it rule as a matter of law that it was not libelous.

Id. at 989.

The complaint alleges the time, place, speaker, and listener of the alleged libel. With respect to the defamatory content of the statement, paragraphs 14 and 15 of the amended complaint quote and refer to various parts of the memo which ...