Katz v. Odin, Feldman & Pittleman, P.C.

• Decision Date: 26 August 2004
• Docket Number: No. 1:04CV735.,1:04CV735.
• Citation: 332 F.Supp.2d 909
• Court: U.S. District Court — Eastern District of Virginia
• Parties: Warren KATZ, Plaintiff, v. ODIN, FELDMAN & PITTLEMAN, P.C., Defendant.

332 F.Supp.2d 909

Warren KATZ, Plaintiff, v. ODIN, FELDMAN & PITTLEMAN, P.C., Defendant.

No. 1:04CV735.

United States District Court, E.D. Virginia, Alexandria Division.

August 26, 2004.

COPYRIGHT MATERIAL OMITTED

Warren Katz, Boca Raton, FL, Pro se.

Frank Douglas Ross, Odin Feldman & Pittleman PC, Fairfax, VA, for Defendant.

MEMORANDUM OPINION

ELLIS, District Judge.

In this diversity defamation action, a pro se plaintiff sues his former law firm with which he disputed a fee, alleging that the law firm made oral and written defamatory statements in the context of the fee arbitration proceeding. Specifically at issue on a threshold dismissal motion are the following questions:

(i) whether plaintiff's defamation claims are barred by Virginia's one-year statute of limitations where, as here, the defendant's written statements were sent to the arbitration tribunal more than one year before this action was filed, but then were subsequently repeated orally during the arbitration hearing, which occurred less than a year before the filing date.

(ii) whether plaintiff's defamation claim is barred by an absolute privilege where, as here, the written and oral statements alleged as defamatory were made in furtherance, and in the course, of a fee arbitration proceeding.

I.¹

Plaintiff Warren Katz, a Florida resident, is the president of Wrenn Associates, Ltd, a Virginia corporation formerly engaged in the business of residential development in Virginia. Defendant, Odin, Feldman & Pittleman (OF & P), is a law firm organized as a professional corporation under the laws of Virginia. Bill Richardson, Timothy J. McEvoy, Kevin T. Oliveira, and Edward W. Cameron are OF & P partners who played roles in the events at issue.

According to the complaint, plaintiff retained Alexander Laufer of Eisenhower, Tarby, and Laufer, P.C. in May 1998 to represent Wrenn in a commercial claim against Lake Manassas L.L.C., a Virginia development and management company. During the course of the representation, Katz took issue with Laufer's assessment of the value of Wrenn's claim against Lake Manassas, and thus Laufer recommended a second opinion on this matter. Thereafter, on or about August 28, 2000, Laufer retained Richardson and McEvoy of OF & P to render this opinion. When Laufer forwarded the bill from OF & P to plaintiff, however, a dispute ensued. Plaintiff, claiming he never authorized the second opinion, refused to pay OF & P's bill for services. Shortly thereafter, on May 25, 2001 Laufer sought, and obtained, leave to withdraw from the case as Wrenn's counsel.

In June 2001, plaintiff contacted McEvoy at OF & P to request that OF & P undertake to represent Wrenn in the case against Lake Manassas. OF & P agreed to do so, but only for a limited purpose. Specifically, by letter dated July 3, 2001, OF & P limited the scope of the representation to an evaluation of a possible copyright claim against Lake Manassas based on the latter's use of architectural plans allegedly copied from plaintiff and Wrenn's plans for townhouses on property adjacent to the Lake Manassas development. In its letter, OF & P noted that it would decline to continue the representation should the investigation disclose that the copyright claim lacked merit. It appears that plaintiff paid OF & P a $2,500 retainer for this representation.

By letter dated September 25, 2001, OF & P notified plaintiff that it was declining to continue the representation because plaintiff had failed to provide original copies of drawings, which OF & P considered necessary to an evaluation of the copyright claim. Plaintiff protested, claiming that he had indeed delivered the requested drawings. When plaintiff sought return of the $2,500 retainer fee, both parties agreed to submit the dispute to voluntary fee arbitration through the Virginia State Bar.²

By letter dated June 28, 2002,³ OF & P formally agreed to arbitrate the matter and submitted a position statement to James A. Watson, III, Esq., then Chairman of the Fee Arbitration Committee for the 19th Circuit Committee on the Resolution of Fee Disputes. In its statement, OF & P outlined its argument that plaintiff was not entitled to reclaim the retainer fee paid to OF & P to investigate Wrenn's copyright claim. In support of its claim, OF & P recounted the history of its professional relationship with plaintiff, including, as relevant background, details of plaintiff's previous attorney-client relationship with Alexander Laufer and the legal opinion OF & P provided during the course of that representation. In this case, plaintiff alleges that statements included in the letter defamed his reputation before members of the arbitration panel, and, more broadly, had a potentially adverse effect on his reputation in the legal community by falsely portraying him as a litigious client. Specifically, plaintiff objects to the following three statements in the June, 28 2002 letter:

(i) "Both Mr. Katz and Mr. Laufer agreed it would be useful to obtain a second opinion about Mr. Katz' case from another attorney;"

(ii) "Now, as with Mr. Laufer before, Mr. Katz disagrees with his attorney's judgment. As a result, he wants his money back;" and

(iii) "[N]otwithstanding that he has never paid Mr. Laufer for the opinion letter, it has come to the attention of OF & P that Mr. Katz continues to use it and has given it to his current attorney (Ben DiMuro) for his use in connection with the lawsuit."

Plaintiff alleges that the first statement is defamatory because it falsely recites the facts of plaintiff's relationship with Laufer by suggesting that he had agreed to obtain a second opinion from OF & P when he had clearly stated his objection to this course of action. The second is defamatory in plaintiff's view because he believes it portrays him as a litigious and undesirable client by alleging a pattern of disputed advice and refusals to pay money owed. The significance of the third statement is unclear from the complaint. Presumably, however, plaintiff claims this statement is defamatory because it intimates that he appropriated an opinion letter for which he refused to pay and then gave it to yet another attorney to use on plaintiff's behalf.

The fee arbitration hearing was held on June 30, 2003, more than a year after the date OF & P's letter was sent to the panel but within one year (barely) of the filing of this action. At the hearing, Cameron, OF & P's representative, allegedly repeated the defamatory statements from the letter. Moreover, plaintiff claims that during cross-examination Cameron "intensified his attack" on plaintiff by asking him to name all the attorneys he had consulted in connection with his claims against Lake Manassas. When he hesitated, plaintiff claims that Cameron "ridiculed" him for his inability to recall their names. No other defamatory statements are specifically alleged in the complaint. Following the hearing, the arbitration panel denied plaintiff's claim for a refund of any fees paid to OF & P and directed that its decision would be enforceable in accordance with the Virginia Arbitration Act.

A year later, plaintiff filed this diversity action on June 28, 2004, asserting a claim for defamation under Virginia law and demanding compensatory and punitive damages due to loss of reputation, standing in the community, embarrassment, humiliation and mental suffering. On July 19, 2004, defendant filed a motion to dismiss the case, arguing that (i) a majority of the claims are barred by Virginia's one-year statute of limitations on actions for defamation, (ii) any alleged defamatory statements not time-barred are protected by absolute or qualified privilege, and (iii) the alleged statements are not actionable under Virginia law. The parties fully briefed the issues raised in defendant's dismissal motion and the matter was properly noticed for hearing on August 13, 2004. Plaintiff did not appear on that date, apparently owing to poor health, and hence no oral argument was heard. Instead, because the issues and governing authorities are adequately set forth in the parties' pleadings and briefs, oral argument is unnecessary and the matter is appropriately resolved on the papers.

II.

The first question presented is whether Virginia's one-year statute of limitations⁴ operates to bar all or any of the alleged defamatory statements, which temporally fall into two categories: (1) those contained in OF & P's June 28, 2002 letter to the arbitration board and (2) those uttered by OF & P lawyers in the course of the June 30, 2003 arbitration proceeding. Because plaintiff filed this action on June 28, 2004, it is clear that any defamatory statements made more than one year prior to this date are barred by the one-year statute of limitations. This is so because in Virginia, a tortious cause of action arises on the date the injury is sustained, or, in the case of a defamation cause of action, on the date of publication. See Va.Code. § 8.01-230; Shands, 255 Va. at 498, 500 S.E.2d 215 ("Any cause of action that the plaintiff may have had for defamation against any of the defendants accrued on ... the date she alleges ... that the defamatory acts occurred."). It follows, therefore, that plaintiff's claims based on the statements in OF & P's June 28, 2002 are barred as they were made more than one year (indeed exactly two years) prior to the filing of this action.⁵ By the same token, plaintiff's defamation claims based on statements made in the arbitration hearing are not barred by the statute of limitations because they occurred within the one-year limitations period.

Plaintiff raises several arguments in an effort to avoid the conclusion that the statute of limitations period bars any defamation claims based on the June 28, 2002 letter. Yet, closely examined, none of these arguments succeeds.

First, plaintiff argues that, without respect to the date the letter was sent, the statute of limitations did not begin to run until...