Ortberg v. Goldman Sachs Grp., s. 11–CV–125

• Decision Date: 11 April 2013
• Docket Number: Nos. 11–CV–125,11–CV–440.,s. 11–CV–125
• Citation: 64 A.3d 158
• Parties: Adam ORTBERG and Michael Weber, Appellants, v. GOLDMAN SACHS GROUP, et al., Appellees.
• Court: D.C. Court of Appeals

64 A.3d 158

Adam ORTBERG and Michael Weber, Appellants,

v.GOLDMAN SACHS GROUP, et al., Appellees.

Nos. 11–CV–125, 11–CV–440.

District of Columbia Court of Appeals.

Argued Oct. 3, 2012.

Decided April 11, 2013.

Jeffrey L. Light, Washington, for appellants.

Christopher T. Handman, with whom Douglas S. Crosno, Washington, was on the brief, for appellees.

Arthur B. Spitzer, with whom Mark L. Goldstone, Washington, was on the brief, for The Metropolitan Washington Council, AFL–CIO, The American Civil Liberties Union of the Nation's Capital, and The National Lawyers Guild, D.C. Chapter, amicus curiae, in support of appellants.

Before BLACKBURNE–RIGSBY and McLEESE, Associate Judges, and REID, Senior Judge.

REID, Senior Judge:

This case arises out of a series of protests held by Adam Ortberg, Michael Weber, and others at the District of Columbia offices of Goldman Sachs and the District of Columbia home of a Goldman Sachs' employee, Michael Paese. On January 11, 2011, after a hearing in Superior Court, Goldman Sachs and Mr. Paese obtained a preliminary injunction restricting the protests.¹ Mr. Ortberg and Mr. Weber now appeal the grant of that injunction and its scope. On this record, and for the reasons set forth below, we are constrained to reverse the trial court's grant of a preliminary injunction.

FACTUAL SUMMARY

Beginning in late August 2010, protestors appeared on a regular basis outside the building that housed Goldman Sachs' District of Columbia office. The demonstrators were affiliated with a group called Defenders of Animal Rights Today and Tomorrow (“DARTT”), a defendant in this case. The protest called attention to Goldman Sachs' business dealings with an investment group (Fortress) that did business with a third company: Huntingdon Life Sciences (“HLS”). HLS and the companies that do business with it have been targeted by animal-rights activists in the United States and Europe. These activists have engaged in lengthy protest campaigns, which have occasionally included harassment and violence. After demonstrations at Goldman Sachs' office began, the protestors also appeared outside the home of Mr. Paese, a Managing Director at Goldman Sachs. In all, the demonstrators held thirteen protests, eight at Goldman Sachs and five at Mr. Paese's residence, between August and October 2010.

Generally, the protests followed a pattern. A group of demonstrators, usually between four and six in number, would arrive with bullhorns, airhorns, and posters. They would begin chanting slogans or making speeches accusing Goldman Sachs, and later Mr. Paese, of complicity in the deaths of animals. These chants and speeches were often amplified through the use of a bullhorn. Occasionally, according to Goldman Sachs, the protestors would enter the lobby of the building that contained Goldman Sachs' office and use their bullhorns or airhorns there. The shouting and the chanting usually lasted for roughly 30 minutes, at which point the protestors would move on. At Mr. Paese's home, and at Goldman Sachs' office, the protestors identified Mr. Paese by name and chanted a slogan that included the phrase “we know where you sleep at night.” Following a tense encounter between neighbors and protestors outside of Mr. Paese's home on the night of October 31, 2010, Goldman Sachs and Mr. Paese filed a complaint against Mr. Ortberg, Mr. Weber, DARTT, and others, alleging claims for private nuisance, intentional infliction of emotional distress, negligent infliction of emotional distress and conspiracy. The plaintiffs also sought a temporary restraining order and a preliminary injunction.

On December 10, 2010, the parties appeared in the trial court for a hearing on a preliminary injunction. After hearing testimony from Mr. Paese, Mr. Ortberg and Mr. Weber, the court determined that the plaintiffs were likely to succeed on their claims of private nuisance and conspiracy, and that Mr. Paese was likely to succeed on his claim of intentional infliction of emotional distress. The court then issued a preliminary injunction, and Mr. Ortberg and Mr. Weber appealed.

ANALYSIS

We begin our analysis with the trial court's decision to grant the preliminary injunction. Mr. Ortberg and Mr. Weber's main argument is that the trial court abused its discretion when it concluded that Goldman Sachs and Mr. Paese were likely to succeed on the merits of their claims for intentional infliction of emotional distress and private nuisance.² The decision to grant or deny a preliminary injunction is a discretionary one. Feaster v. Vance, 832 A.2d 1277, 1287 (D.C.2003). To grant an injunction, the trial court must find, among other things, that “the moving party has clearly demonstrated” a “substantial likelihood” of success on the merits. Id. at 1287 (quotation marks and citation omitted).

We review a trial court's decision to grant a preliminary injunction “not to resolve the merits of the underlying dispute between the litigants, except insofar as the action of the trial court turns on a question of law or statutory interpretation.” Id. at 1288 (internal quotation marks and citation omitted). Therefore, “our role is confined to (1) examining the trial court's findings and conclusions to see if they are sufficiently supported by the record; (2) assuring that the trial court's analysis reflects a resolution of all the issues which necessarily underlie the issuance of an injunction; and (3) inquiring into any other claims of an abuse of discretion by the trial court.” Id. (internal quotation marks and citations omitted). When reviewing challenges to a trial court's determination that a party is likely to succeed on the merits, we have said that “[a] party seeking temporary equitable relief need not show a mathematical probability of success on the merits.... Nevertheless, if the appellees' claims are barred by law, we must reach the merits of the decision” on appeal. In re Estate of Reilly, 933 A.2d 830, 837 (D.C.2007) (internal quotation marks and citations omitted).

Substantial Likelihood of Success on Mr. Paese's Intentional Infliction of Emotional Distress Claim

Mr. Ortberg and Mr. Weber argue that the trial court erred when it concluded Mr. Paese would be able to prove that the defendants' conduct was “extreme and outrageous” and that Mr. Paese had “suffer[ed] severe emotional distress.” For the reasons set forth below, we hold that on this record Mr. Paese has not “clearly demonstrated” a “substantial likelihood” of success on the merits of his intentional infliction of emotional distress claim. Feaster, supra, 832 A.2d at 1287. Hence, the trial court should not have granted Mr. Paese's motion with respect to that claim.

At the hearing on the preliminary injunction, the trial court ruled that “to the extent that the conduct [of the defendants] is outrageous, over the top, extreme, beyond the bounds of decency ... the [c]ourt finds that on balance Mr. Paese would prevail.” The court did not explain what it meant by the language “to the extent that,” and did not explicitly indicate what specific action it considered to be “extreme and outrageous.” However, the trial court also made clear that it regarded the protestors' chant “we know where you sleep at night” to be a threat of “future injury or disturbance.” In addition, the trial court did not make a specific ruling regarding the severity of Mr. Paese's distress, noting only that “the [c]ourt heard from Mr. Paese regarding his emotional distress.” Mr. Paese had explained in his testimony and a written declaration that he felt “afraid” that the protests would lead to violence and that he found the protests “humiliating, embarrassing and intimidating.” Mr. Paese also recounted that his family felt “targeted and terrorized in our own home because of the actions of these people.”

In order to prove the tort of intentional infliction of emotional distress, “a plaintiff must show (1) extreme and outrageous conduct on the part of the defendant which (2) intentionally or recklessly (3) causes the plaintiff [to suffer] severe emotional distress.” Baltimore v. District of Columbia, 10 A.3d 1141, 1155 (D.C.2011) (internal quotation marks and citations omitted). Our case law establishes strict tests for the elements of intentional infliction of emotional distress. Bernstein v. Fernandez, 649 A.2d 1064, 1075 n. 17 (D.C.1991). “Liability will only be imposed for conduct so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community.” Homan v. Goyal, 711 A.2d 812, 818 (D.C.1998); accord Wood v. Neuman, 979 A.2d 64, 77 (D.C.2009). In order to establish “extreme and outrageous conduct,” a plaintiff must show that “the recitation of the facts to an average member of the community would arouse his resentment against the actor, and lead him to exclaim, ‘Outrageous!’ ” Id. (quoting Restatement (Second) of TortsS § 46 cmt. d). Further, “in determining whether the conduct complained of is ‘extreme and outrageous,’ the court must consider ‘the specific context in which the conduct took place.’ ” Estate of Underwood v. National Credit Union Admin., 665 A.2d 621, 641 (D.C.1995) (citation omitted). When evaluating “context,” a court should examine “not only ... the nature of the activity at issue but also ... the relationship between the parties, and the particular environment in which the conduct took place.” Id. (internal quotation marks and citation omitted). In any context, no liability can be “imposed for ‘mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities.’ ” Homan, supra, 711 A.2d at 818 (internal citations omitted). As a result, “[t]he requirement of outrageousness is not an easy one to meet.” Drejza v. Vaccaro, 650 A.2d 1308, 1312 (D.C.1994).

When viewed in context, the conduct in this case was not extreme and outrageous. The parties had no relationship before the...