Szymkowicz v. Frisch

Decision Date31 July 2020
Docket NumberCivil Action No. 19-3329 (BAH)
PartiesJOHN PAUL SZYMKOWICZ, Plaintiff, v. MICHAEL STUART FRISCH, Defendant.
CourtU.S. District Court — District of Columbia

Chief Judge Beryl A. Howell

MEMORANDUM OPINION

Plaintiff John Paul Szymkowicz, an attorney and member in good standing of the bars of three states and the District of Columbia, claims that he was defamed in five blog posts published between October, 2012 and November, 2018 on the website "Legal Profession Blog," and authored by defendant Michael Stuart Frisch, a legal ethics professor. Compl. ¶¶ 2-3, 28-35, ECF No. 1. These blog posts reported on District of Columbia bar disciplinary proceedings involving plaintiff, which lasted approximately eleven years and ultimately resulted in dismissal of all bar charges against plaintiff on November 8, 2018. See id. ¶¶ 1, 26-35. When defendant failed to respond to plaintiff's demand for a retraction of the last blog post, plaintiff initiated this lawsuit, in November 2019, asserting claims for defamation, id. ¶¶ 38-47, invasion of privacy - false light, id. ¶¶ 48-54, and intentional infliction of emotional distress, id. ¶¶ 55-63.

Defendant now moves to dismiss this action, under Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), and the District of Columbia Anti-SLAPP Act. See Def.'s Mot. to Dismiss Pursuant to Fed. Rules of Civil Proc. 12(b)(1) and 12(b)(6) ("Def.'s 12(b) Mot."), ECF No. 13; Def.'s Special Mot. to Dismiss Pursuant to the Dist. of Columbia Anti-SLAPP Act ("Def.'s Anti-SLAPP Mot."), ECF No. 14. For the following reasons, defendant's 12(b) motion is granted and this action is dismissed for lack of subject matter jurisdiction.

I. BACKGROUND

The events leading up to this suit spanned nearly two decades and involved several separate legal proceedings, but that history need only be recounted briefly to resolve the pending motions. In 2002, nonparty Mary Frances Abbott established a revocable trust for her parents, nonparties Stephen Ackerman, Sr. and Genevieve Ackerman, and "signed the trust documents on behalf of both parents as their attorney-in-fact," making her husband, nonparty Frank Abbott, the trustee. Compl. ¶ 12; see also In re Szymkowicz (In re Szymkowicz II), 195 A.3d 785, 786-87 (D.C. 2018) (per curiam); In re Szymkowicz (In re Szymkowicz I), 124 A.3d 1078, 1079 (D.C. 2015) (per curiam).1 Soon thereafter, Abbott's brother and the Ackermans' son, nonparty Stephen Ackerman, Jr., expressed unhappiness with the trust and hired plaintiff and his father, nonparty John T. Szymkowicz, who is also an attorney ("the Szymkowiczes"), to represent him in an action in D.C. Superior Court to reform the trust. Compl. ¶ 13; In re Szymkowicz II, 195 A.3d at 787. In 2005, the Szymkowiczes were also hired by Genevieve Ackerman to represent her in a separate, second action in D.C. Superior Court to reform the trust. Compl. ¶ 13; In re Szymkowicz II, 195 A.3d at 787. In March 2007, however, the Szymkowiczes withdrew as Genevieve Ackerman's counsel in the second suit, after being alerted by counsel for trustee Frank Abbott that plaintiff's father would be called as a witness in the case. Compl. ¶ 14; In re Szymkowicz II, 195 A.3d at 787. The Szymkowiczes continued to represent the son in his suit. Compl. ¶ 14.

Despite the Szymkowiczes' voluntary withdrawal as counsel to Genevieve Ackerman, the District of Columbia Office of Bar Counsel (now called the District of Columbia Office ofDisciplinary Counsel) initiated disciplinary proceedings against the Szymkowiczes based on a complaint filed by Mary Frances Abbott against plaintiff's father in 2005 and another filed against plaintiff "two years later." Id. ¶ 17. "There was a substantial dispute before the Hearing Committee [of the District of Columbia Board on Professional Responsibility ('Hearing Committee')] as to whether Ms. Ackerman was competent during the relevant time period, or whether instead Ms. Ackerman was not competent and [the Szymkowiczes] knew or should have known that she was incompetent and wrongfully took advantage of Ms. Ackerman to benefit themselves and Dr. [Stephen] Ackerman[, Jr.]" In re Szymkowicz II, 195 A.3d at 787. "The Hearing Committee found that although Ms. Ackerman had some mental limitations, she was competent," and that conclusion was ultimately upheld by, first, the D.C. Board on Professional Responsibility ("Board"), and, ultimately, the D.C. Court of Appeals. Id.; see generally In re Szymkowicz I, 124 A.3d 1078. The D.C. Court of Appeals remanded, though, for further consideration of whether the Szymkowiczes had obtained informed consent from Genevieve Ackerman to represent both her and her son simultaneously. In re Szymkowicz I, 124 A.3d at 1086.

During the initial hearing, the Hearing Committee had "heard and credited testimony that [plaintiff's father] 'many times' discussed with Ms. Ackerman potential conflicts and risks arising out of [his] joint representation of Ms. Ackerman and [her son]." In re Szymkowicz II, 195 A.3d at 787.2 Thus, on remand the Board decided the case on the existing evidentiary record, and "concluded that the Szymkowiczes had introduced evidence of informed consent and that Disciplinary Counsel had failed to prove by clear and convincing evidence that they hadfailed to obtain informed consent." Id. at 788. Accordingly, the Board "recommend[ed] that the case against the Szymkowiczes be dismissed." Compl. ¶ 24.

The case then returned to the D.C. Court of Appeals, before which the outcome "turn[ed] on the allocation of the burden of proof." In re Szymkowicz II, 195 A.3d at 789 (internal quotation mark omitted) (quoting In re Allen, 27 A.3d 1178, 1187 (D.C. 2011)). The Court of Appeals "agree[d] with Disciplinary Counsel" that "if the Szymkowiczes had borne the burden of proving the adequacy of Ms. Ackerman's consent, they would have failed to carry their burden." Id. at 790. Yet, it concluded that the burden of proof in fact lay with Disciplinary Counsel, and observed that Disciplinary Counsel "d[id] not appear to have attempted to elicit a complete and specific record of precisely what [plaintiff's father] did and did not say to Ms. Ackerman on the topic of conflict of interest." Id. The Court of Appeals thus concluded: "[A]lthough we fully understand Disciplinary Counsel's concerns about the Szymkowiczes' conduct in this case, we accept the Board's conclusion that the Szymkowiczes were not shown by clear and convincing evidence to have violated [the District of Columbia Rules of Professional Conduct]." Id. at 790-91.

While these disciplinary proceedings were ongoing, defendant published five articles on the website "Legal Profession Blog" that commented on the decisions of the Hearing Committee, the Board, and the D.C. Court of Appeals. On October 22, 2012, defendant wrote an article entitled "The Worst Hearing Committee Report in D.C. History," which asserted that the Hearing Committee's initial decision "reflect[ed] the most superficial reasoning and failure to comprehend fundamental principles of legal ethics that [defendant had] seen in nearly 30 years of reading these reports." Compl. ¶ 28. On July 28, 2014, defendant published a second article, entitled "Worst Report Affirmed," accusing the Hearing Committee of ignoring evidence "in aidof its steadfast desire to find no misconduct." Id. ¶ 29. On September 17, 2016, after the D.C. Court of Appeals remanded the Szymkowiczes' case, defendant "published a third article, this time describing the Hearing Committee as 'obviously rogue.'" Id. ¶ 30. Then, on May 22, 2017, defendant published a fourth article, entitled "The Most Blatant Regulatory Failure in D.C. Bar History Nears a Conclusion," which, according to the complaint, accused the Szymkowiczes "of instituting 'frivolous' litigation, helping their client 'loot his mother's estate,' and 'stage managing' the representation of Mrs. Ackerman after they withdrew from her representation." Id. ¶ 31. Finally, on November 8, 2018—the date the D.C. Court of Appeals issued its final decision—defendant published his fifth and last article at issue in this case, entitled "District of Columbia Court Absolves Attorneys of Horrific Elder Abuse Conflict," which stated that "[a]s a consequence" of the decision of the D.C. Court of Appeals, "attorneys who clearly engaged in a gross conflict of interest get off scot-free for horrific elder abuse." Id. ¶ 35.

"On or about August 30, 2019, [plaintiff] demanded a retraction of the November 8, 2018 article in a letter, and, on or about September 7, 2019, emailed a pdf of this letter to [defendant] and Paul L. Caron, owner and/or manager of Law Professor Blogs, LLC." Id. ¶ 36. Plaintiff's demand, however, was ignored. Id. ¶¶ 1, 37. Accordingly, on November 5, 2019, plaintiff initiated the present suit against defendant, see generally id. at ¶¶ 1-63, to which defendant responded by filing the pending motions.3 After multiple extensions requested by the parties and the filing of supplemental briefing, these motions became ripe for resolution on June 25, 2020.4

II. LEGAL STANDARD

"Article III of the Constitution prescribes that '[f]ederal courts are courts of limited subject-matter jurisdiction' and 'ha[ve] the power to decide only those cases over which Congress grants jurisdiction.'" Bronner ex rel. Am. Studies Assoc. v. Duggan, 962 F.3d 596, 602 (D.C. Cir. 2020) (alterations in original) (quoting Al-Zahrani v. Rodriguez, 669 F.3d 315, 317 (D.C. Cir. 2012)); see Gunn v. Minton, 568 U.S. 251, 256 (2013) ("'Federal courts are courts of limited jurisdiction,' possessing 'only that power authorized by Constitution and statute.'" (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994))). Federal courts therefore have a corresponding "independent obligation to ensure that they do not exceed the scope of their jurisdiction" and "must raise and decide jurisdictional questions that the parties either overlook or elect not to press." Henderson...

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