Maddox v. Polk St., LLC.

• Decision Date: 24 April 2015
• Docket Number: 2014 CA 007438 B
• Parties: RHONDA MADDOX, Plaintiff, v. POLK STREET, LLC. and KELLY SMITH, Defendants.
• Court: D.C. Superior Court

RHONDA MADDOX, Plaintiff, v. POLK STREET, LLC. and KELLY SMITH, Defendants.

2014 CA 007438 B

SUPERIOR COURT FOR THE DISTRICT OF COLUMBIA CIVIL DIVISION

April 24, 2015

Judge Michael O'Keefe

ORDER

Before the Court is Defendants Polk Street, LLC and Kelly Smith's Motion to Dismiss the Amended Complaint (filed March 20, 2015). Pro se Plaintiff filed opposition thereto on March 31, 2015, and Defendants filed reply on April 6, 2015. Pro se Plaintiff filed her amended complaint on March 6, 2015, pursuant to the Court's Order dated February 4, 2015. The Court notes that Plaintiff is pro se and liberally views her amended complaint, which alleges defamation in Count I, and intentional infliction of emotional distress in Count II. For the reasons set forth below, Defendants' Motion to Dismiss is granted in part as to Count II.

STANDARD OF REVIEW

In order to survive a motion to dismiss, a complaint must provide sufficient factual matter to support the elements of the plaintiff's claims and rise above a speculative level. Grayson v. AT&T Corp., 980 A.2d 1137, 1144 (D.C. 2009). Pertinent information to support a plaintiff's allegation(s) against the defendant includes the defendant's offending actions, and the surrounding circumstances relevant to the offending actions such as names, places, and dates. See Elmore v. Stevens, 824 A.2d 44, 45 (D.C. 2003) (evaluating a pro se complaint by the pleading requirements for a defamation action and for intentional infliction of emotional distress and stating that the trial court's duty to construe a pro se complaint liberally does not require the court to conjure up unplead allegations). The most basic requirement is that the complaint must be sufficient to put the defendant on notice of the claim against him. Keranen v. AMTRAK, 743 A.2d 703, 713 (D.C. 2000). In evaluating a complaint, the Court must accept its factual allegations and construe them in a light most favorable to the non-moving party. Dismissal is proper when, taking the material allegations of the complaint as admitted, and construing them in plaintiff's favor, the Court finds that plaintiff has failed to allege all material elements of a cause of action. The Court analyzes each of Plaintiff's potential claims by this standard.

DISCUSSION

According to Plaintiff's amended complaint, Plaintiff leased commercial space at 4609 Polk St, NW, Washington, DC, 20019, from Defendants Kelly Smith and Polk Street, LLC, from September 1, 2011, (Am. Compl. ¶ 4), until she vacated on December 9, 2014 (Am. Compl. ¶ 16). Upon executing the lease, Plaintiff advised Defendants of the nature of her business: "a biodiesel/used vegetable oil refining operating consisting of collecting and filtering used cooking oil for purchase, and that no hazardous or toxic materials were being collected or used," (Am. Compl. ¶ 4), and Defendants Kelly Smith and Polk Street LLC asked probing questions to ensure that the operation was exactly as she described. Am. Compl. ¶ 5. Additionally, Plaintiff submits that on September 1, 2011, she posted her operating permit and business license on the premises to notify the public and Defendants of the nature of her business, and that Defendants visited her jobsite and were provided a complete tour. Defendants frequented her jobsite thereafter on close to a weekly basis until October 2014 to observe Plaintiff's operating in progress. Am. Compl. ¶ 6. Then, by "letter dated August 1, 2014, Defendant Kelly Smith on behalf of Polk Street LLCinformed Plaintiff that her lease would not be renewed because of an alleged odor, reported by Neighborhood Legal Services, and that she would have to vacate the premises by August 30, 2014." Am. Compl. ¶ 7. By letter dated September 1, 2014, Plaintiff requested an extension, which was denied on September 23, 2014. On that same date, Plaintiff submits that Defendant Kelly Smith on behalf of Polk Street LLC retained Gary Dean to call Plaintiff and advise her of her 30-days notice to vacate. According to Plaintiff, Gary Dean called Plaintiff while he was on her property and questioned her telephonically as he inspected her operation. Am. Compl. ¶ 10. After "inspecting Plaintiff's jobsite on behalf of Kelly Smith and Polk Street LLC," Plaintiff alleges that Gary Dean "left a Notice to Quit with Plaintiff's employee and contacted the D.C. Fire Department to be dispatched to Plaintiff's jobsite [. . .] [by] falsely reporting that Ms. Maddox was maintaining hazardous, toxic, and explosive materials on her property." Am. Compl. ¶ 11. While Plaintiff was not present when Gary Dean allegedly inspected Plaintiff's jobsite, Plaintiff alleges that "[a] DC Fire Department Emergency vehicle reported to Plaintiff's jobsite, inspected the premises and then contacted the DC Government Department of Environment and Environmental Crimes Department based on the Defendant's representation to DC Fire Department personnel that Plaintiff maintained hazardous, toxic, and explosive materials on her property all the while knowing that such and assertion was false." Am. Compl. ¶ 11. "Between August and September 29^th, 2014, Kelly Smith and Polk Street LLC harassed Plaintiff and employed strong arm tactics by making harassing phone calls and knowingly making false and defamatory statements about her business operation in order to get her to vacate the premises." Am. Compl. ¶ 12. As a result of Defendants' representative Gary Dean's false representation to the D.C. Fire Department that Plaintiff was maintaining hazardous, toxic, and explosive materials at her jobsite, "on October 22, 2014 Special Agent Chris Michael of theUnited States Environmental Protection Agency served Plaintiff's jobsite with a search warrant for the search of her biodiesel/used vegetable oil." Am. Compl. ¶ 13. Plaintiff ceased half of her business operation that allegedly had an odor due to Defendants false representations about Plaintiff's business. Am. Compl. ¶ 15. EPA investigations, interrogations, and interruptions of Plaintiff's jobsite continued on a weekly basis until December 9, 2014, when Plaintiff vacated the premises. Am. Compl. ¶ 16. Plaintiff submits that "[o]n October 23^rd, 2014, Plaintiff's competitor Mark Kent called Plaintiff inquiring about her customers due to the false representations that Defendants Kelly Smith and Polk Street, LLC made and the slanderous comments made to business associates that shared the 4609 Polk Street, NE Washington, DC 20019 site." Am. Compl. ¶ 17.

Count I: Defamation

First, Plaintiff alleges a claim for "defamation and false reporting" against Kelly Smith and Polk Street LLC based on the alleged actions of their "representative" Gary Dean who "knowingly [made] false and defamatory representations about [Plaintiff's] biodiesel/used vegetable oil small business operation" to the D.C. Fire Department. Am. Compl. ¶ 19. Plaintiff alleges that on September 23, 2014, Gary Dean inspected her jobsite, and falsely reporting to the D.C. Fire Department "that Ms. Maddox was maintaining hazardous, toxic, and explosive materials on her property." Am. Compl. ¶ 11.

To state a claim for defamation, a plaintiff must allege and prove four elements: (1) that the defendant made a false statement concerning the plaintiff, (2) to a third party without privilege, (3) the defendant's fault in publishing the statement amounted to at least negligence, and (4) the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm. See, e.g., Oparaugo v. Walls, 884 A.2d 63, 76(D.C. 2005). The District of Columbia requires that the factual pleading be sufficiently detailed to allow a defendant to craft a responsive pleading. Crowley v. North Am. Telecomms. Ass'n, 691 A.2d 1169, 1172 (D.C. 1997) (allowing a defamation claim to proceed over a motion to dismiss because it alleged the substance of the defamatory statement, the date, and the identification of the recipient by employment). "If it appears that the statements are at least capable of a defamatory meaning, [then] whether they were defamatory and false arc questions of fact to be resolved by the jury." Moss, 580 A.2d 1011, 1023 (D.C. 1990). "A statement is defamatory if it tends to injure the plaintiff in [her] trade, profession or community standing, or lower [her] in the estimation of the community." Moss, 580 A.2d at 1023.

Here, the statement that Plaintiff alleges is false is that "Plaintiff was maintaining hazardous, toxic and explosive materials at her jobsite." Am. Compl. ¶ 13. While not expressly stated, Plaintiff impliedly argues that the statement is false because Plaintiff's "biodiesel/used vegetable oil" business is not the type of business operation that is inherently hazardous, toxic or explosive. Plaintiff argues she lost revenue due to "Defendants Kelly Smith, Gary Dean on behalf of Polk Street LLC because they knew her business operation was "exactly as she described" namely that "no hazardous or toxic materials were being collected or used" Am. Compl. ¶ 4. Nevertheless, Defendants allowed their alleged representative Gary Dean to report her business to the D.C. Fire Department, purportedly to force Plaintiff to vacate the premises.

Defendants argue that Plaintiff's claim of defamation should be dismissed for failing to plead sufficiently specific facts to support such a claim as Plaintiff's amended complaint "only provides the identity of one alleged speaker and content of one such statement, the Dean call." Mot. Dismiss, 9. Defendants argue that "Plaintiff does not identify the recipient(s) of the statements she alleges, including the Dean call," and "Plaintiff's allegation that the Dean call wasplaced to [the D.C. Fire Department] does not advance her claim [ . . . because] Plaintiff here has been no more specific than identifying an entire Department of the District of Columbia government." While Plaintiff states that Gary Dean allegedly made the statement on September 23, 2014,...