Monge v. Madison County Record, Inc.

• Decision Date: 04 August 2011
• Docket Number: No. 1:10–CV–0037–SCJ.,1:10–CV–0037–SCJ.
• Citation: 802 F.Supp.2d 1327
• Parties: Scott MONGE, Plaintiff, v. MADISON COUNTY RECORD, INC., and Brian Timpone, Defendants.
• Court: U.S. District Court — Northern District of Georgia

802 F.Supp.2d 1327

Scott MONGE, Plaintiff,

v.MADISON COUNTY RECORD, INC., and Brian Timpone, Defendants.

No. 1:10–CV–0037–SCJ.

United States District Court, N.D. Georgia, Atlanta Division.

Aug. 4, 2011.

Daniel J. Hoppe, Jr., Samuel C. Harvey, The Law Office of Daniel J. Hoppe, Jr., Atlanta, GA, for Plaintiff.

Andrew G. May, Steven F. Pflaum, Neal Gerber & Eisenberg, LLP, Chicago, IL, Bruce Bramley Weddell, Burbage & Weddell, Atlanta, GA, for Defendants.

ORDER

STEVE C. JONES, District Judge.

THIS MATTER is before the Court on Defendants' Motion to Dismiss [Doc. No. 40]. For reasons given below, Defendants' Motion is GRANTED.

BACKGROUND

This lawsuit alleging defamation—inter alia—arises out of the publication of an article on October 25, 2007, in newspapers owned and operated by Defendant Madison County Record, Inc. (the “Article”) (attached as “Attachment A”). The Article reported on Mr. Clark Kirkland's trials and tribulations as he attempted to litigate his silicosis claim, and the troubling behavior of Mr. Kirkland's attorneys—Michael Martin and Scott Monge.¹

In 2004, Monge was retained as local Georgia counsel for Mr. Kirkland and his wife Sharon Kirkland, and Monge filed a claim on their behalf in a Georgia state court. (Second Am. Compl. [Doc. No. 38] ¶ 7.) That action was removed to the United States District Court for the Northern District of Georgia, and subsequently transferred in December of 2004 to the United States District Court for the Southern District of Texas as part of multi-district silicosis litigation. Docket, Kirkland v. 3M Co., No. 1:04–cv–2152 (N.D.Ga.2004). Judge Janis Jack presided over the action in the Texas district court. Docket, Kirkland v. 3M Co., No. 2:04–cv–639 (S.D.Tex.2004).

In December of 2004, after the case was transferred, it became apparent that Mr. Kirkland's claim was barred by the statute of limitations, and the parties seem to agree that Monge was blameless. (Second Am. Compl. [Doc. No. 38] ¶ 8.) Mr. Kirkland, however, believed Martin was at fault. (First Am. Compl. [Doc. No. 24–1] Ex. 1.)

In January of 2005, both Monge and Martin tried to withdraw as Mr. Kirkland's attorneys. Docket, Kirkland, No. 2:04–cv–639 (S.D.Tex.2004). Monge moved to withdraw in both the Georgia federal and state courts, and in the Texas district court. (Second Am. Compl. [Doc. No. 38] ¶ 8); Docket, Kirkland, No. 2:04–cv–639 (S.D.Tex.2004). At that time, neither Georgia court had jurisdiction over Mr. Kirkland's case, but both granted Monge's motion to withdraw.² (Second Am. Compl. [Doc. No. 38] ¶ 8.) The Texas court did not grant either attorney's motion. Order No. 22 at p. 1, Kirkland, No. 2:04–cv–639 (S.D.Tex. Jan. 25, 2005); ( Order No. 21 [Doc. No. 40–2 Ex. 9, p. 67] p. 1.)

The Texas court scheduled a deposition of Mr. Kirkland for February 16, 2005 (the “Kirkland Deposition”) at the request of a defendant in that action who wished to explore Mr. Kirkland's allegations against Martin. Mot. for Permission to Contact Pl. at passim, Kirkland, No. 2:04–cv–639 (S.D.Tex. Jan. 14, 2005); Order, Kirkland, No. 2:04–cv–639 (S.D.Tex. Jan. 20, 2005). Judge Jack ordered both Monge and Martin “to appear in person” for the court-monitored deposition. (Order No. 23 [Doc. No. 40–2, Ex. 10, p. 70] p. 3.) In her order dated February 16, 2005, Judge Jack noted that because Mr. Kirkland “had accused Martin of malfeasance, it was important for Monge to appear on Plaintiff's behalf during the deposition.” (Order Setting Show Cause Hr'g [Doc No. 40–2, p. 75] Ex. 11, p. 2.)

Despite the fact that Monge was Kirkland's attorney of record and had been ordered to appear at the Kirkland Deposition, Monge did not show up. ( See Pl.'s Statement of Disputed Material Facts [Doc. 27–1] ¶ 10 (admitting that Monge had not been in Texas on February 16, 2005 when the Kirkland Deposition was held); Hr'g Transcript at pp. 2, 4, Monge v. Timpone, 1:10–cv–00037–SCJ (July 14, 2011) (admissions by Monge's attorney that Monge was attorney of record in the Texas action, and that it “looks like” Monge had not attended the Kirkland Deposition).) According to Judge Jack, the deposition did not go well. Judge Jack observed that Martin failed to represent and defend Mr. Kirkland during the deposition; in her own words, “Martin succumbed to the urge to torpedo his client's case.” ³ (Order No. 29 [Doc. No. 40–2, p. 38] Ex. 4, p. 168.) Judge Jack lamented that “despite [Mr. Kirkland] being genuinely sick, despite his having two attorneys of record, and despite his being in a courtroom full of lawyers, he had no one to represent his interests.” ⁴ ( Id. [Doc. No. 40–2, p. 34–35] Ex. 4, p. 164–165.)

Right after the hearing, Judge Jack ordered Monge to appear the next day—February 17, 2005—“to show cause why he should not be held in contempt for failing to appear [at the Kirkland Deposition].” (Order Setting Show Cause [Doc. No. 40–2, p. 74] Ex. 11, p. 1.) This time, Monge appeared. (Second Am. Compl. [Doc. No. 38] ¶ 14.)

Over the months that followed, Monge repeatedly tried to withdraw from the Texas action to no avail, and Monge was still the attorney of record in the Texas court when the action was conditionally remanded to the Northern District of Georgia in August of 2005. Docket, Kirkland, No. 2:04–cv–639 (S.D.Tex. July 23, 2004). Monge alleges that Mr. Kirkland's case was then dismissed because it was time barred, and Mrs. Kirkland subsequently settled her claims. (Second Am. Compl. [Doc. 38] ¶ 13.)

On October 25, 2007, Defendants published the Article that prompted Monge's suit. (The Article [Doc. No. 40–4, p. 24] Ex. 27, p. 1.) The Article is entitled “Honest silicosis claimant ‘torpedoed’ by own Attorney, Jack says.” ( Id.) The Article makes the following statements that ostensibly refer to Monge:

• U.S. District Judge Janis Jack of Corpus Christi, Texas, found an honest silicosis suit among 10,000 phony ones, but an attorney for the honest plaintiff torpedoed his case and no other silicosis attorney would take him for a client.

• Kirkland's attorneys, Michael Martin of Houston and Scott Monge of Dunwoody, Ga., stooped as low as any.

• The Kirklands sued in another Georgia court in 2004, with Monge and Martin as counsel.

• Martin and Monge moved to withdraw as Kirkland's counsel, but Jack denied the motions and ordered them to represent Kirkland at his deposition.

• On deposition day, Feb. 16, 2005, Martin showed up with an attorney of his own.

Monge did not show up at all.

• In an order she signed in June 2005 she wrote, “... despite his being genuinely sick, despite his having two attorneys of record, and despite his being in a courtroom full of lawyers, he had no one to represent his interests.”

• “Should Mr. Monge be permitted to withdraw, plaintiffs, both Georgia residents, would be left to proceed pro se,” she wrote. “Requiring pro se litigants to prosecute a case in a court over a thousand miles from their residence would be a significant imposition....”

• In August 2005, Kirkland protested to the court that Monge continued trying to withdraw as his counsel and refused to notify him of filings.

• Monge replied that he “was not hired because of any experience dealing with silicosis claims, has no contractual relationship with Kirkland and has never met Kirkland.”

• Monge wrote, “During the course of this litigation, it became apparent that Kirkland believed his claims were frivolous.”

• Kirkland then settled with 3M and Ingersoll–Rand.

(The Article [Doc. No. 40–4, pp. 24–26] Ex. 27, passim.) The Article also details Martin's behavior as Mr. Kirkland's attorney. ( Id.)

Monge took issue with the Article and filed suit in Georgia state court in June of 2009. (Compl., Monge v. U.S. Chamber of Commerce, 2009CV170559 (Ga. Sup.Ct. June 12, 2009) [Doc. 40–4, Ex. 29].) Monge voluntarily dismissed that action in November of 2009, and then re-filed essentially the same action in this Court. (Voluntary Dismissal Without Prejudice, Monge, 2009CV170559 (Nov. 18, 2009) [Doc. No. 40–4, Ex. 31].)

Monge has amended his complaint twice and now asserts seven counts: Count One, Tortious Interference with Business Relations; Count Two, Defamation; Count Three, Invasion of Privacy—False Light; Count Four, Fraud; Count Five, Negligent Misrepresentation; Count Six, Promissory Estoppel; and Count Seven, Bad Faith.

Defendants seek to dismiss all of Monge claims.

DISCUSSIONI. Legal Standard

A complaint may be dismissed if the facts as pled do not state a claim for relief that is plausible on its face. Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1950, 173 L.Ed.2d 868 (2009) (explaining “only a complaint that states a plausible claim for relief survives a motion to dismiss”); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 561–62, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (retiring the prior standard, which allowed a claim to proceed unless it appeared “beyond doubt” the plaintiff could not prove a set of facts that stated a claim). In Iqbal, the Supreme Court reiterated that although Rule 8 of the Federal Rules of Civil Procedure does not require detailed factual allegations, it does demand “more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Iqbal, 129 S.Ct. at 1949.

In Twombly, the Supreme Court emphasized that a complaint “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do.” 550 U.S. at 555, 127 S.Ct. 1955. Factual allegations in a complaint need not be detailed but “must be enough to raise a right to relief above the speculative level on the assumption that all the allegations in the complaint are true (even if doubtful in fact).” Id. at 555, 127 S.Ct. 1955 (internal citations and emphasis omitted).

II. Count One: Defamation

In order to establish a claim for defamation, “a plaintiff must submit evidence of (1) a false and defamatory statement about himself; (2) an unprivileged communication to a third party; (3) fault by the defendant amounting...