Marsh v. Hollander

• Decision Date: 09 July 2004
• Docket Number: No. CIV.A.03-02412 CKK.,CIV.A.03-02412 CKK.
• Citation: 339 F.Supp.2d 1
• Parties: Virgil H. MARSH, Plaintiff, v. Barry I. HOLLANDER, Defendant.
• Court: U.S. District Court — District of Columbia

Page 1

339 F.Supp.2d 1

Virgil H. MARSH, Plaintiff, v. Barry I. HOLLANDER, Defendant.

No. CIV.A.03-02412 CKK.

United States District Court, District of Columbia.

July 9, 2004.

COPYRIGHT MATERIAL OMITTED

Virgil H. Marsh, Washington, DC, Pro se.

David Block Bergman, Arnold & Porter, Washington, DC, for Defendant.

MEMORANDUM OPINION

KOLLAR-KOTELLY, District Judge.

Currently pending before the Court is Defendant's Motion to Dismiss, which Plaintiff opposes. After reviewing the Defendant's Motion, Plaintiff's Opposition, Defendant's Reply, the submitted exhibits and the relevant law, the Court shall grant Defendant's Motion to Dismiss.

I: BACKGROUND

On September 22, 2003, Plaintiff filed the above-captioned action.¹ Barry I. Hollander was named as Defendant. Compl. at 1. Plaintiff's Complaint contains two counts of libel, alleging that Defendant published or caused to be published false statements that were defamatory to Plaintiff's professional reputation as an attorney. Id. at 12-13.

The following facts are alleged in Plaintiff's Complaint. Plaintiff, Virgil H. Marsh, is a partner in the law firm partnership of Fisher Christen & Sabol. Id. ¶ 2. Defendant Hollander used to be a partner in that firm, but withdrew in July 1999. Id. ¶ 12. After Defendant left the firm, Plaintiff and Defendant proceeded to account for partnership funds and accounts receivable, pursuant to a 1986 partnership agreement and a 1999 supplementary agreement. Id. ¶¶ 14-18. On September 20, 1999, the bookkeeper at Fisher Christian & Sabol — Plaintiff's firm — made an entry of $11,479.78 as having been received from Maejima & Company. Id. ¶ 17. It was later determined that the bookkeeper had made an entry error and that Maejima & Company's account showed $8,405.60 paid "above the accounts receivable." Id. Since this client, Maejima & Company, had ceased using the services of Fisher Christen & Sabol and instead retained Defendant, Plaintiff notified Defendant and asked whether these funds had been sent to Plaintiff's firm mistakenly for work Defendant had done after he left the firm. Defendant responded that this was not the case. Id.

In 2002, more discussions took place between the two parties regarding accounts receivable. Id. ¶¶ 20-21. Plaintiff and Defendant had a meeting on July 16, 2002, with their own certified public accountants in attendance to resolve outstanding issues. Id. ¶ 23. At this point, the parties have somewhat different recollections of the evolution of the accounting dispute. According to Plaintiff, he told Defendant that the $8,415.60 discrepancy had not been resolved.² Id. Plaintiff further states that he told Defendant that the client "could have made an overpayment, but that the company had not asked for any return of such amount so it was basically certain that Maejima & Company had not made an overpayment." Id. Defendant appears to have focused on the statement that the client "could have made an overpayment," and in providing Plaintiff with some accounting information regarding the client, requested that Plaintiff inform him of how the discrepancy was resolved. Def.'s Stmt. of P. & A. in Supp. of Def. Barry Hollander's Mot. to Dismiss ("Def.'s Stmt.") at 4. On September 20, 2002, Defendant faxed two letters to Plaintiff's office, which arrived within three minutes of each other. Compl. ¶¶ 32-33. One letter said that Defendant had "hired a new attorney, Howard Cayne of Arnold & Porter." Id. ¶ 32. The body of the other letter stated in its entirety:

Further to my facsimile letter of July 26, 2002 please immediately provide me with a copy of your correspondence returning the $8,415.60 overpayment which you received from Maejima & Co. I need this information for ascertaining compliance with the DC Rules of Professional Conduct.

Id. ¶ 33; Def.'s Ex. 3. Plaintiff states that this letter was read by "at least one person" in his office before he received it. Compl. ¶ 33.

Plaintiff asserts that on September 25, 2002, he contacted the client to get information about the $8,415.60 payment, and about a week later he received information from the client that did not indicate any overpayment. Id. ¶¶ 34-35. Plaintiff states that this was consistent with other information Plaintiff collected from the firm's bookkeeper, and concluded there was no overpayment.³ Id. ¶ 36.

Nearly a year later, on August 29, 2003, Plaintiff sent Defendant a letter stating that Defendant's September 20, 2002, letter was libelous, had been read by at least one unnamed person in Plaintiff's office, and demanded a retraction. Compl. ¶ 38.

On September 2, 2003, Mr. Cayne (Defendant's personal attorney) responded via a hand-delivered letter to Plaintiff. Id. ¶ 39. In recounting the events that led up to the allegation of defamation, Defendant's attorney wrote:

Mr. Hollander has informed me that during your July 16, 2002, meeting with your separate accountants you said that the September 20, 1999 overpayment in the amount of $8,415.60 by Maejima & Co., compared to the July 31, 1999 Fisher Christen & Sabol account receivable balance of $0.00, was not returned to the client because he had not asked for return of any money.

Def.'s Ex. 4 at 1 ¶ 2. The letter also requested that Plaintiff respond to Defendant's September 20, 2002, request for Plaintiff to inform Defendant of how the matter was resolved, and specifically asked for "an explanation and copies of supporting documents" regarding the client's account. Def.'s Ex. 4 at 2 ¶ 2.

Plaintiff responded with letters to Defendant and his attorney dated September 11 and 12, 2003, charging that the September 2, 2003, letter — in that it alleged the existence of an overpayment — was defamatory, accusing Defendant of causing the publication of defamation, and demanding a retraction. Compl. ¶ 40. Plaintiff alleges that at least one person in Plaintiff's office read the letter before it was given to Plaintiff. Compl. ¶ 39.

Plaintiff filed suit in the District of Columbia Superior Court on September 22, 2003. His Complaint alleges that with regard to both statements, Defendant was at least negligent in not ascertaining the truth of the statements at the time of publication, that at least one person in Plaintiff's office read the statements, that the statements are libel per se as they involve the professional reputation of Plaintiff as an attorney, and that Defendant has not retracted the libelous statements. Compl. at 12-13. He claims damages of $500,000 for each count of libel "in assumed and punitive damages." Id. Defendant removed the case to federal court based on diversity jurisdiction on November 20, 2003, and filed the pending Motion to Dismiss on December 15, 2003.

II: LEGAL STANDARD

Defendant argues that Plaintiff's Complaint must be dismissed because Plaintiff has failed to state a claim upon which relief may be granted pursuant to Federal Rule of Civil Procedure 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6), a court will not grant the motion "unless is appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957). The Court will assume that the facts alleged by Plaintiff are true, and any ambiguities or doubts concerning the sufficiency of the claim must be resolved in favor of the Plaintiff. See Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985). In addition, any inferences that can be drawn from those facts will be done so in favor of Plaintiff, as the non-moving party. See Schuler v. United States, 617 F.2d 605, 608 (D.C.Cir.1979). However, the Court need not accept the legal conclusions of the non-moving party. See Taylor v. FDIC, 132 F.3d 753, 762 (D.C.Cir.1997).⁴

III: DISCUSSION

In order to make out a prima facie case of defamation under District of Columbia law, a plaintiff must allege facts showing:

(1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement is actionable as a matter of law irrespective of special harm, or that its publication caused the plaintiff special harm.

Crowley v. N. Am. Telecomm. Ass'n, 691 A.2d 1169, 1172 n. 2 (D.C.1997) (quoting Prins v. Int'l Tel. & Telegraph Corp., 757 F.Supp. 87, 90 (D.D.C.1991)); see also Restatement (Second) of Torts § 558 (1977).⁵

Defendant argues that Plaintiff's case should be dismissed under Rule 12(b)(6) under each of the following alternative theories: (a) "on their face, the September 20, 2002 and September 2, 2003 letters are not defamatory;" (b) "Marsh fails to identify the listener or reader to whom these letters were allegedly published;" (c) "Marsh has not sufficiently alleged that Hollander's fault in publishing the statements amounts to at least negligence;" (d) "the statements, even if defamatory — and they are not — are protected by an absolute or qualified privilege." Def.'s Stmt. at 6.

The Court examines Defendant's arguments with regard to each statement, beginning with the September 2, 2003, statement.

A. The Statement of September 2, 2003

The September 2, 2003, statement at issue, as noted supra, is a statement in a letter written by Defendant's attorney to Plaintiff, which stated:

Mr. Hollander has informed me that during your July 16, 2002, meeting with your separate accountants you said that the September 20, 1999 overpayment in the amount of $8,415.60 by Maejima & Co., compared to the July 31, 1999 Fisher Christen & Sabol account receivable balance of $0.00, was not returned to the client because he had not asked for return of any money.

Def.'s Ex. 4 at 1 ¶ 2; see also Compl. ¶ 23. The letter was written in response to an August 29, 2003, letter by Plaintiff alleging that Defendant had...