Washburn v. Lavoie, 04-7158.

CourtUnited States Courts of Appeals. United States Court of Appeals (District of Columbia)
Citation437 F.3d 84
Docket NumberNo. 04-7158.,04-7158.
PartiesAlan V. WASHBURN, Appellant v. Michael LAVOIE, et al., Appellees.
Decision Date10 February 2006

Appeal from the United States District Court for the District of Columbia (No. 03cv00869).

Alan V. Washburn, appearing pro se, argued the cause and filed the briefs for appellant.

Keisha A. Gary argued the cause for appellees. With her on the brief were Woody N. Peterson and Peter J. Kadzik.

Before: SENTELLE, HENDERSON, and GARLAND, Circuit Judges.

Opinion for the court filed by Circuit Judge GARLAND.

GARLAND, Circuit Judge.

It may be, as Robert Frost wrote, that "[s]omething there is that doesn't love a wall."1 In this case, however, an even thicker wall might have forestalled what the district court accurately described as a "lengthy and vitriolic neighborhood dispute." Washburn v. Lavoie, 357 F.Supp.2d 210, 212 (D.D.C. 2004). On one side of the wall in question was Alan V. Washburn, an attorney and thirty-year resident of the Georgetown neighborhood of Washington, D.C. On the other side were four Georgetown University undergraduates. Washburn complained that the students were making too much noise. The students complained that Washburn was illegally tape-recording them. Testy letters were exchanged, and Washburn sued the students for defamation. For the reasons explained below, we affirm the district court's grant of summary judgment in favor of the students.


Plaintiff Washburn has lived at his address on O Street in Georgetown since at least 1973. In August 2001, defendants Michael Lavoie, Christian Wood, Robert Bercik, and Edmund Donnelly moved into an adjacent townhouse. The property — located about three blocks from the main gates of Georgetown University — is owned by Richard and Nancy Itteilag, who rented it to the four students for the duration of their junior and senior years. The two townhouses share a common wall. On the other side of the students' residence, another common wall separated them from Lee Garling and his mother, who has resided in her O Street townhouse for forty-two years.

Shortly after the students moved in, Washburn began complaining that they were too noisy at night and that the noise frequently disturbed his sleep. Between September 22 and December 28, 2001, Washburn documented his complaints in three lengthy letters directed to Julianne Fultz, Georgetown University's Coordinator of Off-Campus Student Life, and Nancy Itteilag, the students' landlord.

On March 1, 2002, Washburn sent another letter to Fultz, complaining that "spasms of noise" from the students' residence had awakened him eight times during the night of February 27-28, 2002. Joint Appendix (J.A.) 247. According to Washburn, he had made recordings of the noise: "I documented these times with a dictation-type tape recorder. Even though the recorder picks up most background sounds poorly, you can clearly hear sounds from [the students' residence] as I was noting the time and event." Id. Washburn offered to bring the recordings to Fultz so that she could have "contemporaneous evidence of the disturbances." Id. Washburn's letter also stated that "the frequent and excessive noise ... constitute[d] a common-law nuisance remediable by the courts" and that he was "prepared to pursue th[at] avenue[]." J.A. 248. Washburn hand-delivered a copy of the letter to the students.

The students consulted with Fultz, who advised them to put their side of the story in writing so that it would be on record with the university. The students began drafting a letter to Fultz; at the same time, they slipped a note under Washburn's door, requesting a meeting. Washburn replied by delivering a letter to the students on the morning of April 16, 2002, again documenting the number of times he had been wakened by noise and stating that his "small dictation-type recorder" had picked up a "burst of laughter" from the students' residence. J.A. 255. Washburn threatened that he had no "reasonable alternative now but to take the matter to court" because he had "exhausted whatever remedies [Georgetown University could] provide." J.A. 256. He sent copies of this letter to Fultz and Itteilag.

Later that same day, April 16th, the students responded in a letter addressed to Fultz, with copies to Washburn and Itteilag. The students expressed concern that Washburn saw their "supposed behavior as a common law nuisance." J.A. 250. They denied Washburn's allegations about noise coming from their residence at night and described their frustration regarding their relationship with him, contending that they "enjoyed a very constructive and cordial relationship with [their] neighbor on the other side, Mr. Lee Garling." J.A. 249. The students recalled only two occasions on which Garling had approached them about noise and stated that they were "confident that [Garling] would attest to the celerity with which [they] met his request" to lower the volume. J.A. 250.

In a passage that would later become the focus of Washburn's defamation suit, the students also expressed alarm that Washburn was recording sounds coming from their residence:

We are also especially concerned that Mr. Washburn has been, unbeknownst to us, tape recording noises, however faint, that come from our home. This is a clear violation of privacy and something that greatly concerns us. Specifically, we feel Mr. Washburn is violating Section 2511(2)(d) of U.S.Code (attached) that states,

It shall not be unlawful under this chapter for a person not acting under color of law to intercept a wire, oral, or electronic communication where such person is a party to the communication or where one of the parties to the communication has given prior consent to such interception unless such communication is intercepted for the purpose of committing any criminal or tortuous [sic] act in violation of the Constitution or laws of the United States or of any state.

Given this statute, we feel Mr. Washburn is violating our privacy since he was neither a party to the faint communications he recorded, nor was he given any form of consent by any of the parties to the communication. In the same way that Mr. Washburn expects us to adhere to the guidelines of the Georgetown community with regards to ... appropriate noise levels, we would hope that Mr. Washburn would respect our right to privacy as outlined in the above law.

Id.2 The students repeated that they were upset at "the implicit threats of litigation for `a common law nuisance' ... especially since ... [they had] repeatedly had [their] own rights violated by Mr. Washburn's illegal tape recording." J.A. 251. And they closed with the suggestion to Fultz that "a meeting between Mr. Washburn and the four of us in your office may be the best way to iron out our differences." J.A. 252.

Approximately one year later, on April 11, 2003, Washburn filed this action in the United States District Court for the District of Columbia, invoking the court's diversity jurisdiction. Washburn alleged that he was defamed and placed in a false light3 by the April 16, 2002 letter's allegation that he had violated the students' rights by illegally recording sounds from their residence. He sought $1.5 million in compensatory damages and $6 million in punitive damages for defamation and false light invasion of privacy arising out of the students' "patently false charge that Plaintiff had violated a federal felony law." Compl. ¶ 45.

The district court referred all discovery matters to a magistrate judge, who issued a scheduling order limiting the parties to five depositions per side and setting an initial discovery deadline of January 23, 2004. On August 27, 2003, the students filed a motion to bifurcate the issues of liability and damages and to stay discovery regarding damages, which the district court granted. Just before the scheduled close of discovery, Washburn moved to compel production of all emails between the students that referred to him or the pending lawsuit in any way. The magistrate ordered the students to produce the emails for his in camera review, but ultimately found them irrelevant to the litigation. He also granted an extension of discovery until February 27, 2004.

Two weeks before the extended deadline, Washburn requested an additional extension and an increase in the number of permitted depositions. In support, he produced an affidavit from his neighbor, Garling, who attested that one of the students (Donnelly) told Garling in mid-2002 that Washburn had been recording noises coming from the students' home and that such action was "illegal." J.A. 160. The magistrate ultimately denied the request for an extension of time and increase in depositions, concluding that it had "come[] too late in the game." Washburn v. Lavoie, No. 03-869, Mem. Op. at 7 (D.D.C. May 4, 2004) (Magistrate's Op.).

Following the close of discovery, Washburn moved for summary judgment, contending that the students' statements constituted libel per se and placed him in a false light. The students cross-moved for summary judgment, contending that their statements were protected by the qualified privilege of self-defense. Washburn countered that no privilege attached, and that even if one did, the students had vitiated it through malice and excessive publication. In support of the claim of excessive publication, Washburn relied on the Garling affidavit.

The district court rejected the students' request for summary judgment based on the self-defense privilege, stating that "a genuine issue of material fact exist[ed] as to whether there was excessive publication of defendants' statements, in particular to defendants' neighbor Lee Garling." Washburn, 357 F.Supp.2d at 213 n. 4. Nonetheless, and sua sponte, the court entered summary judgment in favor of the students on the ground that, "as a matter of law, the defendants' statements were not capable...

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