Messina v. Krakower, 04-7163.

• Citation: 439 F.3d 755
• Decision Date: 07 March 2006
• Docket Number: No. 04-7163.,04-7163.
• Parties: Karyne MESSINA, Appellant v. Daniel S. KRAKOWER and Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)

439 F.3d 755

Karyne MESSINA, Appellant v. Daniel S. KRAKOWER and Shulman, Rogers, Gandal, Pordy & Ecker, P.A., Appellees.

No. 04-7163.

United States Court of Appeals, District of Columbia Circuit.

Argued December 6, 2005.

Decided March 7, 2006.

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Appeal from the United States District Court for the District of Columbia (No. 03cv00011).

Sol Z. Rosen argued the cause and filed the brief for appellant.

Glenn C. Etelson argued the cause and filed the brief for appellee.

Before: GARLAND, BROWN, and GRIFFITH, Circuit Judges.

Opinion for the Court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

Plaintiff Karyne Messina brought this diversity action charging attorney Daniel Krakower and his law firm, Shulman, Rogers, Gandal, Pordy & Ecker, P.A., with defamation. The district court concluded that the defendants were protected from liability for defamation by the judicial proceedings privilege and granted summary judgment in their favor. We affirm.

I

Karyne Messina and Susan Fontana were equal owners and co-presidents of a corporation called Totally Italian.com, Inc. By December 2002, the two had become embroiled in disputes regarding the management of the business. To assist her in resolving those conflicts, Fontana retained the services of Krakower and his law firm. Krakower drafted a letter to Messina, outlining Fontana's grievances and proposing a process that would allow one owner to buy out the other. The letter is the source of Messina's defamation claim against Krakower and the law firm.

In the letter, Krakower advised Messina that he understood "that disputes have arisen between you and [Fontana]," that he had "reviewed these circumstances with [Fontana]," and that he had "serious concerns about the propriety and legality" of Messina's actions. J.A. 29. Krakower then enumerated a long list of concerns, including Messina's failure to share information with Fontana and to return Fontana's telephone calls, her lease of the corporation's headquarters and establishment of a corporate bank account without Fontana's consent, and her exertion of unilateral control over the corporation's internet accounts. "It seems abundantly clear to me," Krakower concluded, "that you cannot continue in business together," and he therefore proposed a detailed process "designed to result in one of you buying out the other at a fair price." J.A. 31.

Krakower's proposal, he wrote, would "result[] in a win/win scenario, as compared to the inevitable lose/lose scenario that would result if you are unable to resolve this matter and [Fontana] was forced to commence legal proceedings and/or dissolution of the Corporation." J.A. 32. Krakower warned that if Messina were not "willing to deal with [Fontana] reasonably and fairly," Fontana would have to "consider taking appropriate legal action to protect her interest in the corporation." Id. "If we do not hear from you (or your attorney if you are represented by one) by close of business on January 13, 2003," he said, "we will assume that you are not interested in resolving this matter amicably, and will proceed accordingly." Id. Krakower closed by declaring that "[t]his letter is for settlement purposes only" and "is inadmissible in any legal proceeding." Id.

On December 27, 2002, before sending the letter to Messina, Krakower emailed Fontana a draft for her review. He also sent a copy of the email to a businessman named Chaim Kalfon. Earlier that month, Fontana had sent Messina an email "to introduce" Kalfon and to authorize him "to negotiate an amicable settlement for our partnership." J.A. 66. On December 31, 2002, Krakower sent the letter to Messina by Federal Express.

Messina never replied. Instead, she filed suit in the United States District Court for the District of Columbia, charging Krakower and his law firm with defamation. The complaint alleged that Krakower's letter constituted libel per se, because it imputed "unfitness to perform and/or the lack of integrity of performance of the duties of the job that [Messina] was designated to perform for the business enterprise." Compl. ¶ 5.¹

On January 31, 2003, Krakower and the law firm filed a motion to dismiss and/or for summary judgment. The defendants contended, inter alia, that they were absolutely protected by the judicial proceedings privilege. Messina opposed the motion and submitted an affidavit, pursuant to Federal Rule of Civil Procedure 56(f), requesting further discovery.

On May 8, 2003, the district court concluded that the defendants were protected from Messina's defamation claim by the judicial proceedings privilege and granted their motion for summary judgment. Thereafter, Messina filed a motion to vacate the judgment pursuant to Federal Rule of Civil Procedure 59(e), which the court denied on June 12, 2003. This appeal followed.

II

"A Rule 59(e) motion is discretionary and need not be granted unless the district court finds that there is an intervening change of controlling law, the availability of new evidence, or the need to correct a clear error or prevent manifest injustice." Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996) (internal quotation marks omitted). We review the denial of a Rule 59(e) motion "only for abuse of discretion." Ciralsky v. CIA, 355 F.3d 661, 672 (D.C. Cir. 2004). As the district court noted, Messina's motion did nothing more than "rel[y] on the same arguments that she originally made." Messina v. Fontana, No. 03-0011, Order at 2 (D.D.C. June 12, 2003). Messina cited "no intervening change of law," did "not present[] any new evidence that was not previously available," and "failed to establish an error of law or fact" in the court's original opinion. Id. We agree with the district court and therefore find no abuse of discretion in its decision to deny Messina's motion to vacate the judgment.²

According to the defendants, that should end this appeal. They note that the notice of appeal that Messina filed in the district court designated only the June 12, 2003 Order denying the Rule 59(e) motion and did not mention the May 8, 2003 Order granting summary judgment. The defendants ignore, however, the Rule 28(a)(1) statement that Messina filed with this court, which specified her intention to appeal from both orders and attached a copy of each. See D.C. CIR. R. 28(a)(1)(B) ("Rulings Under Review") (requiring that an appellant's Rule 28(a)(1) statement make "[a]ppropriate references . . . to each ruling at issue in this court, including the date . . . and any official citation"); see also D.C. CIR. R. 15(c)(3) (requiring appellants to attach provisional Rule 28(a)(1) statements to their docketing statements).

This circuit adheres to the "rule that a mistake in designating the specific judgment or order appealed from should not result in loss of the appeal as long as the intent to appeal from a specific judgment can be fairly inferred from the appellant's notice (and subsequent filings) and the opposing party is not misled by the mistake." Foretich v. ABC, 198 F.3d 270, 274 n. 4 (D.C. Cir. 1999). Messina's Rule 28(a)(1) filing removed any doubt regarding her intent to appeal from the May 8 as well as the June 12 Order, and likewise eliminated any possibility that the defendants could have been misled in that regard. Indeed, at oral argument, the defendants conceded that the Rule 28(a)(1) statement clearly indicated Messina was challenging both orders and that they were not misled. Oral Arg. Tape at 20:39. Accordingly, Messina's challenge to the district court's May 8 grant of summary judgment is properly before us.³

III

We review the district court's grant of summary judgment de novo. Republican Nat'l Comm. v. Taylor, 299 F.3d 887, 890 (D.C. Cir. 2002). We will affirm if "there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

The judicial proceedings privilege, upon which the district court grounded its grant of summary judgment, is well-settled in District of Columbia law. See Finkelstein, Thompson, & Loughran v. Hemispherx Biopharma, Inc., 774 A.2d 332 (D.C. 2001); McBride v. Pizza Hut, Inc., 658 A.2d 205 (D.C. 1995); Arneja v. Gildar, 541 A.2d 621 (D.C. 1988); see also Brown v. Collins, 402 F.2d 209 (D.C. Cir. 1968).⁴ The District has adopted the version of the privilege found in § 586 of the Restatement of Torts, which states:

An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if it has some relation to the proceeding.

RESTATEMENT (SECOND) OF TORTS § 586 (1977) (RESTATEMENT); see Finkelstein, 774 A.2d at 338; McBride, 658 A.2d at 207. Accordingly, for the privilege to apply, "two requirements must be satisfied: (1) the statement must have been made in the course of, or preliminary to a judicial proceeding; and (2) the statement must be related in some way to the underlying proceeding." Arneja, 541 A.2d at 623. If the privilege does apply, it "is absolute rather than qualified: it `protects the attorney from liability in an action for defamation irrespective of his purpose in publishing the defamatory matter, his belief in its truth, or even his knowledge of its falsity.'" Finkelstein, 774 A.2d at 338 (quoting RESTATEMENT § 586 cmt. a). The privilege is "`based upon a public policy of securing to attorneys as officers of the court the utmost freedom in their efforts to secure justice for their clients.'" Id.

Messina contends that neither of the privilege's two requirements are satisfied in this case. First, she insists that the allegedly "defamatory communications. . . merely involve a business dispute between two partners in...