Jankovic v. Int'l Crisis Grp.

• Decision Date: 04 November 2014
• Docket Number: Civil Action No. 04–1198 RBW
• Citation: 72 F.Supp.3d 284
• Parties: Milan Jankovic, Plaintiff, v. International Crisis Group, Defendant.
• Court: U.S. District Court — District of Columbia

72 F.Supp.3d 284

Milan Jankovic, Plaintiff

v.International Crisis Group, Defendant.

Civil Action No. 04–1198 RBW

United States District Court, District of Columbia.

Signed November 4, 2014

Rodney A. Smolla, Furman University, Greenville, SC, Caroline H. Mankey, Ivana Ognjanovic, Peter C. Sheridan, Christensen Miller Fink Jacobs Glaser Weil & Shapiro, LLP, Los Angeles, CA, Joaquin Ezcurra, Malcolm I. Lewin, Morrison Cohen LLP, New York, NY, John William Lomas, Jr., Lisa Norrett Himes, William T. O'Brien, McKenna Long & Aldridge LLP, Washington, DC, for Plaintiff.

Michael Dennis Sullivan, Thomas Curley, Levine Sullivan Koch & Schulz, LLP, Andrea Ernst, Anna Tevini, Jonathan Richard DeFosse, Neil H. Koslowe, Philip Urofsky, Jonathan L. Greenblatt, Shearman & Sterling, LLP, Amy Lynn Neuhardt, Boies, Schiller & Flexner, LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge

The plaintiff, Milan Jankovic, also known as Philip Zepter, brings this action to recover damages for injuries allegedly caused by a defamatory publication circulated by the defendant, the International Crisis Group. There are several motions currently pending before the Court: (1) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming His Status as a Private Figure (“Pl.'s Private Figure Mot.”); (2) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming the Falsity of [International Crisis Group]' s Defamatory Statements (“Pl.'s Falsity Mot.”); (3) Motion for Summary Judgment of Defendant International Crisis Group (“Def.'s Summ. J. Mot.”); (4) Defendant International Crisis Group's Motion to Strike [the] Plaintiff's Hearsay Declarations (“Def.'s Strike Mot.”); and (5) Plaintiff Philip Zepter's Motion to Strike the 2003 Expense Receipts of James Lyon (“Pl.'s Strike Mot.”). Upon careful consideration of the parties' submissions,¹ the Court will deny the plaintiff's motion for partial summary judgment affirming his status as a private figure, deny the plaintiff's motion for partial summary judgment affirming the falsity of International Crisis Group's defamatory statements as moot, grant summary judgment for the defendant, grant the defendant's motion to strike the plaintiff's hearsay declarations, and deny the plaintiff's motion to strike the expense receipts as moot.

I. STANDARD OF REVIEW

A motion for summary judgment must be granted “if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law,” based upon the depositions, affidavits, and other factual materials in the record. Fed. R. Civ. P. 56(a), (c). A fact is “material” if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And “a dispute over a material fact is ‘genuine’ if ‘the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Arrington v. United States, 473 F.3d 329, 333 (D.C.Cir.2006) (quoting Anderson, 477 U.S. at 247, 106 S.Ct. 2505 ). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this burden is satisfied by the moving party, the burden then shifts to the opposing party to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. “Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate ‘if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.’ ” Talavera v. Shah, 638 F.3d 303, 308 (D.C.Cir.2011) (citations omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 895 (D.C.Cir.2006) ). “[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party.” Anderson, 477 U.S. at 249, 106 S.Ct. 2505. In making this assessment, “[t]he evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party.”Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at 255, 106 S.Ct. 2505 ). These inferences, however, must be “justifiable.” Anderson, 477 U.S. at 255, 106 S.Ct. 2505.

II. BACKGROUND

At the outset, the Court notes that the plaintiff has made it difficult to discern which purported material facts are in dispute.² See generally ECF No. 158–2, Plaintiff Philip Zepter's Statement of Genuine Issues of Material Facts in Opposition to Defendant [International Crisis Group]'s Motion for Summary Judgment (“Material Facts I”) (disputing the defendant's proffered undisputed material facts). In response to many of the allegedly undisputed facts proffered by the defendant, the plaintiff raises a garden variety of objections that do not genuinely dispute the truth of the undisputed facts asserted by the defendant. For example, the plaintiff merely cites case law, therefore making only legal arguments in many of its responses to the defendant's undisputed facts. But legal arguments alone are insufficient to create a factual dispute to defeat a motion for summary judgment. See Glass v. Lahood, 786 F.Supp.2d 189, 199 (D.D.C.2011) (“legal memoranda are not evidence and cannot themselves create a factual dispute sufficient to defeat a motion for summary judgment”), aff'd, 11–5144, 2011 WL 6759550 (D.C.Cir. Dec. 8, 2011) ; see alsoConservation Force v. Salazar, 715 F.Supp.2d 99, 106 n. 9 (D.D.C.2010) (“arguments of counsel ... are not evidence” (internal quotations and citations omitted)).

The plaintiff also repeatedly uses qualifiers that do not genuinely dispute the truth of the allegedly undisputed facts set forth by the defendant. Thus, when the defendant cites Serbian press articles from the record as the evidentiary basis for its undisputed facts, the plaintiff merely disputes those facts “to the extent they rely on an article from the Serbian press which [the defendant] described as ‘sensationalist bordering on libel’ and ‘notorious for spreading [rumors] and outright lies.’ ” E.g., ECF No. 158–2, Material Facts I ¶ 145 (quoting Pl.'s Private Figure Mot., ECF No. 145–4, Exhibit (“Ex.”) 12 (July 2003 International Crisis Group Report Entitled “Serbian Reform Stalls Again” (“Report 145”)) at 9–10). However, Report 145 does not reasonably suggest that these characterizations are attributable to all publications of the Serbian press in the relevant timeframe. See Pl.'s Private Figure Mot., ECF No. 145–4, Ex. 12 (Report 145) at 9–10. Indeed, the primary researcher and author of Report 145 recognized that the accuracy of the Serbian press articles had to be assessed on a “case-by-case basis.” Def.'s Summ. J. Mot., ECF No. 150–1, Ex. 16 (Deposition of James Lyon, Ph.D. (“Lyon Dep.”)) at 22:6–15. Thus, where the plaintiff does not specifically dispute the facts from a particular Serbian press article by citing to evidence from the record, these facts remain uncontroverted.³ See Local Civ. R. 7(h); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153 (D.C.Cir.1996) (placing “burden on the parties to focus the court's attention on the salient factual issues in what otherwise may amount to a mountain of exhibits and other materials”).

Alternatively, when the defendant cites Serbian press articles as the evidentiary basis for its undisputed facts, the plaintiff sometimes merely disputes those facts “to the extent they rely on a news article which is hearsay.”⁴ E.g., ECF No. 158–2, Material Facts I ¶ 145. This objection is without merit under controlling precedent, as the defendant cites these articles for purposes other than the truth of the matter asserted.See Def.'s Summ. J. Reply, ECF No. 163–21, Response of Defendant [International Crisis Group] to Plaintiff Philip Zepter's Statement of Genuine Issues of Material Fact and His Response to [International Crisis Group]'s Statement of Undisputed Material Facts (“Resp. to Material Facts I”) at 6–8. First, the articles assist the Court in identifying a public controversy, Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1297 (D.C.Cir.1980) (“The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy.” (internal footnotes omitted)). And second, they aid the Court in determining the plaintiff's role, if any, in that public controversy. Id. (“The plaintiff either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution. In undertaking this analysis, a court can look to the plaintiff's past conduct, the extent of press coverage, and the public reaction to his conduct and statements.”).⁵

The plaintiff also objects to the defendant's proffered undisputed facts that rely on reports from the defendant's experts on hearsay grounds.⁶ E.g., ECF No. 158–2, Material Facts I ¶ 24. But expert reports are an exception to the rule against hearsay in the summary judgment context. See Fed. R. Evid. 802 advisory committee's note (listing “Rule 56 : affidavits in summary judgment proceedings” as an exception to prohibition against hearsay). The Court, therefore, can and will consider expert reports in resolving the parties' summary judgment motions, provided that the expert...