Washburn v. Lavoie

Decision Date30 August 2004
Docket NumberNo. 03-0869 (RJL).,03-0869 (RJL).
Citation357 F.Supp.2d 210
PartiesAlan V. WASHBURN, Plaintiff, v. Michael LAVOIE, et al., Defendants.
CourtU.S. District Court — District of Columbia

Alan V. Washburn, Washington, DC, pro se.

Peter J. Kadzik, Dickstein Shapiro Morin & Oshinsky LLP, Washington, DC, for Defendants.


LEON, District Judge.

Alan V. Washburn ("Plaintiff"), a 69-year old attorney proceeding pro se, seeks damages from Michael Lavoie, Christian Wood, Robert Bercik, and Edmund Donnelly ("Defendants"), on claims of defamation and false light publicity. The claims arise from statements and a letter written by defendants voicing concerns that plaintiff violated both their privacy rights and 18 U.S.C. § 2511(2)(d) of the Federal Wiretap Act. Several motions are currently before the Court in this matter, including cross-motions for summary judgment, additional discovery, and motions to strike various affidavits and pleadings. After reviewing the record and the parties briefs, the Court GRANTS defendants' motion for summary judgment, and, for the following reasons, DENIES all other motions.1 Simply stated, this is a matter that does not belong in this Court.


The plaintiff's claims against the defendants are the culmination of a lengthy and vitriolic neighborhood dispute between the two parties in the Georgetown area of Washington, D.C. The plaintiff is a resident of 3427 O Street ("3427 O"). The defendants resided at the adjacent 3425 O Street ("3425 O") during the relevant time period beginning in August 2001 while attending Georgetown University.

A series of disputes between the two neighbors began just a few weeks after the defendants moved into 3425 O. The plaintiff addressed numerous letters complaining of the defendants' behavior to the defendants, Nancy Itteilag ("Ms. Itteilag"), the defendants' landlord, and Julianne Fultz ("Ms. Fultz"), Georgetown University's Coordinator of Off-Campus Student Life. In his letters, the plaintiff complained of alleged aspects of the defendants' behavior such as excessive noise, improper disposal of household trash, and abusive language aimed at the plaintiff.

On or about March 1, 2002, the plaintiff wrote a letter to Ms. Fultz complaining of excessive noise emanating from the residence of the defendants. Included in this letter was a statement alleging that plaintiff, while recording the date and time of a loud noise made by the defendants into a dictation recording device, had captured yet another noise disruption on the tape. The plaintiff offered to produce the tape to Ms. Fultz at her request as evidence of the disruptions.

The defendants responded to this letter by consulting with Ms. Fultz and sending the plaintiff a letter requesting a personal meeting. The plaintiff did not respond to this letter. On April 16, 2002, the plaintiff addressed another letter to the defendants, Ms. Fultz, and Ms. Itteilag, complaining of excessive noise. In this letter the plaintiff informed the defendants that his dictation recorder had picked up a burst of noise from their apartment. The plaintiff threatened litigation for nuisance if the disruptions did not cease.

In response to the April 16 letter, the defendants sent a letter to Ms. Fultz with copies to the plaintiff and Ms. Itteillag presenting their side of the story and seeking assistance from the University to resolve the situation. The letter included a section in which the defendants expressed concerns that the plaintiff's recording of noise emanating from their apartment was an infringement on their privacy rights, specifically a violation of 18 U.S.C. § 2511(2)(d), a subsection of the criminal wiretapping statute that carves out an exception under the wiretapping statute for persons intercepting wire, oral or electronic communications if such person is party to the communication or has been given prior consent.2 The text of the statute was also attached to the letter.

Upon receiving the letter, the plaintiff sent another letter to the defendants in which he argued that his recording of noises from 3425 O was completely lawful. The plaintiff demanded that the defendants retract their statement and apologize, threatening litigation for defamation in the event of noncompliance. The defendants failed to respond to this letter. Thereafter, the plaintiff filed suit for defamation and false light publicity.3


In their motion for summary judgment, the defendants' petition the Court to find that their statements were made in self-defense, and thus were protected by a qualified privilege constituting a complete defense to a claim of defamation. However, summary judgment on this basis fails because a genuine issue of material fact exists as to the publication element of the qualified privilege.4 This failure notwithstanding, the Court finds that summary judgment for the defendants is appropriate on grounds that the defendants' statements were not defamatory.5

Summary judgment should be granted if "there is no genuine issue as to any material fact." Fed.R.Civ.P. 56(c); see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). "District courts are widely acknowledged to possess the power to enter summary judgments sua sponte, so long as the losing party was on notice that [he] had to come forward with all [his] evidence." Id. at 326, 106 S.Ct. 2548; See also Athridge v. Rivas, 141 F.3d 357, 362 (D.C.Cir.1998). However, a basic requirement of summary judgment is that "[a] party must be given notice ... so that the evidence necessary to oppose the motion may be marshaled and presented to the Court." Gibson v. Mayor of Wilmington, 355 F.3d 215, 223 (3d Cir.2004). The losing party is considered to have "notice" when there is "reason to believe the court might reach the issue," and that party has "received a fair opportunity to put its best foot forward." Id.; Leyva v. On the Beach, Inc., 171 F.3d 717, 720 (1st Cir.1999).

The plaintiff argues in his summary judgment motion that the defendants' statements were libelous per se because they impute to him criminal activity. Pl.'s Mem. of P. & A. 13-16. Acting as an exception to the general rule that libel is not actionable unless actual damages are demonstrated, the District of Columbia recognizes charges of criminal conduct as libelous per se. Grossman, 631 F.Supp. at 973. However, this exception has traditionally been restricted by courts to crimes with severe consequences, such as crimes leading to social ostracism, or even, as in past English courts, crimes punishable by corporal punishment. Dan B. Dobbs et al., Prosser and Keeton on Torts 788-89 (1984). Such exceptions are grounded in the belief that "[c]ertain words are considered libelous per se because their publication is so obviously and naturally hurtful to the person aggrieved that proof of their injurious character is unnecessary." Gardner v. Senior Living Systems, Inc., 314 Ill.App.3d 114, 246 Ill.Dec. 822, 731 N.E.2d 350, (2000). Thus, in this case, a consideration of "whether, from the language attributed to the defendant, there is something from which the commission of a crime involving moral turpitude can be inferred" is appropriate. Farnum v. Colbert, 293 A.2d 279, 281 (D.C.1972). Regrettably for the plaintiff, no such inference can be inferred in this case.

The plaintiff's argument for per se defamation fails because the defendants' words do not impute to him the commission of a criminal offense involving moral turpitude.6 The plaintiff primarily relies on two communications made by the defendants: (1) the April 16 letter in which the defendants expressed their concerns to Ms. Fultz that the plaintiff had violated their privacy rights and, specifically, 18 U.S.C. § 2511(2)(d); and (2) the defendants' alleged statements to neighbor Lee Garling that plaintiff had "illegally" taped them. Pl.'s Mem. of P. & A. 5-6, 8-9. The plaintiff's argument for per se liability rests on the basis that the defendants, through their letter and remarks, have imputed to him a crime of moral turpitude. However, the Court is unconvinced that the accusations made by the defendants, in any way, imply that he may have committed a crime of that nature. The defendants merely expressed what they believed to be true: that plaintiff, for whatever reason, had recorded noise emanating from their house, and that such tapings were a violation of 18 U.S.C. § 2511(2)(d). Under the circumstances of this case, such an accusation can hardly be considered one imputing the commission of a crime of shameful wickedness or depravity (i.e. a crime of moral turpitude). Accordingly, the Court finds that the defendants' statements were not libelous per se. Could the statements be defamatory nonetheless?

A statement is defamatory "if it tends to injure the plaintiff in his trade, profession, or community standing." Moss, 580 A.2d at 1011. Such statement "must be more than unpleasant or offensive; the language must make the plaintiff appear odious, infamous, or ridiculous." Klayman, 783 A.2d at 613. "[C]ourts are charged with the responsibility of determining whether a challenged statement is capable of conveying a defamatory meaning." White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.Cir.1990). The power of the Court in this area is limited to the extent that it may only rule as a matter of law when "the publication is not reasonably capable of any defamatory meaning and cannot be reasonably understood in any defamatory sense." Id. In making this determination, a publication should be "considered as a whole, in the sense in which it would be understood by the readers to whom it was addressed." Klayman, 783 A.2d at 613.

Viewed within context, the Court finds that, as a matter of law, the defendants' statements were not capable of a defamatory meaning. In arriving at this conclusion, the Court is conscious of the fact that at the time of their publication, the two parties had been...

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4 cases
  • Robertson v. Cartinhour
    • United States
    • U.S. District Court — District of Columbia
    • March 16, 2012
    ...statement concerning the plaintiffs.”) Although false charges of criminal conduct are considered defamatory, Washburn v. Lavoie, 357 F.Supp.2d 210, 214 (D.D.C.2004), aff'd on other grounds,437 F.3d 84 (D.C.Cir.2006), that is not the case here. Robertson was in fact the subject of a criminal......
  • Ning Ye v. Holder
    • United States
    • U.S. District Court — District of Columbia
    • August 13, 2009
    ...reasons for restraining plaintiff, which in turn was a reason why he was denied jail visitation privileges. Cf. Washburn v. Lavoie, 357 F.Supp.2d 210, 215-16 (D.D.C. 2004) (finding that defendants' letter which accused plaintiff of engaging in illegal conduct was not capable of defamatory m......
  • Franklin v. Pepco Holdings, Inc.
    • United States
    • U.S. District Court — District of Columbia
    • July 13, 2012
    ...statement's characterization as defamatory also depends in part on the receiving party and the context. See, e.g., Washburn v. Lavoie, 357 F.Supp.2d 210, 215–16 (D.D.C.2004). Pepco's sending the purported debt to a collection agency, which routinely handles such claims, is unlikely to impac......
  • Washburn v. Lavoie
    • United States
    • U.S. Court of Appeals — District of Columbia Circuit
    • February 10, 2006
    ...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 neighbo......

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