Forras v. Rauf , 39 F. Supp. 3d 45 ( 2014 )

UNITED STATES DISTRICT COURT FOR THE
DISTRICT OF COLUMBIA
VINCENT FORRAS, et al., )
)
Plaintiffs, ) CIVIL ACTION NO. 12-00282 (BJR)
)
v. )
) MEMORANDUM OPINION
IMAM FEISAL ABDUL RAUF, et al. ) GRANTING DEFENDANTS’
) SPECIAL MOTION TO DISMISS
)
Defendants. )
)
Plaintiffs Larry Klayman and Vincent Forras bring this action against Defendants Imam
Feisal Abdul Rauf and Adam Leitman Bailey to recover damages for defamation, false light,
assault, and intentional infliction of emotional distress. Before the Court is Defendants’ motion
to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3) and (6), and special
motion to dismiss under the District of Columbia Anti-Strategic Lawsuits Against Public
Participation Act of 2010 (the “Anti-SLAPP Act”), D.C. Code § 16-5501-5505. Defendants’
Memorandum of Law in Support of Motion to Dismiss and For Attorneys’ Fees (hereinafter
“Mot. to Dismiss”) at 3. Upon careful consideration of the parties briefs, submissions, and
exhibits, the Court concludes for the following reasons that Defendants’ special motion to
dismiss must be granted.
I. BACKGROUND
This litigation springs out of the efforts of Imam Rauf and members of the Islamic
community in New York City to build an Islamic community center on Park Place in lower
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Manhattan, several blocks away from the site of the tragic destruction of the World Trade Center
in the September 11, 2001 attacks. Complaint (“Compl.”) ¶¶ 3, 4.
A. Plaintiffs’ New York Supreme Court Action
On September 9, 2010, Plaintiff Forras, through his attorney Plaintiff Klayman, brought
an action in the Supreme Court of the State of New York, New York County against Defendant
Imam Rauf, alleging that Rauf’s plan to construct the community center constituted nuisance,
intentional and negligent infliction of emotional distress, and assault. See Forras v. Rauf, No.
111970/2010, 2012 WL 7986872 (N.Y. Sup. Ct. Sept. 26, 2012) (the “New York Action”).
Defendant Bailey represented Rauf.
Forras claims to have been a “first responder” to the terrorist attacks of September 11,
2001 and has made himself an outspoken public advocate on issues regarding the September 11
attacks, personally and through an organization he founded, the Gear Up Foundation. Compl. ¶
7.
Klayman is a “publically known civil rights and individual rights activist.” Id. Personally
and through an organization he founded, Freedom Watch, he engages in political commentary
and institutes litigation on behalf of causes he advocates. Id. ¶ 2.
On October 7, 2010, Rauf (through his attorney, Bailey) filed a motion to dismiss the
New York Action. The “Memorandum of Law in Support of Motion to Dismiss” stated in
pertinent part:
“Plaintiff’s attorney, an infamous publicity hound, has found in Plaintiff the
perfect victim, a man who could have comfortably concluded his life as a national
hero, as [a] self-described ‘first responder’ to the greatest national tragedy since
Pearl Harbor. Instead, thanks to this wholly frivolous lawsuit, he trades in his well
deserved laurels for fifteen minutes of fame as a nationally recognized bigot.”
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“His cause and his case have all the rationality of one who would seek to tear
down New York City’s Chinatown as vengeance for Pearl Harbor on the theory
that all Asians are alike.”
“Plaintiff’s view is simple. According to him, Islam equates with terrorism….”
“Yet because [] Plaintiff’s revulsion for one particular religion has so poisoned his
mind, he claims the right to use the power of the court….”
“He has elected to transform himself from America’s poster child hero to
America’s Spokesman of Bigotry…”
“That the plaintiff in this suit finds Islam unacceptable to him personally is simply
irrelevant to the protection which Islam is entitled under the First Amendment…”
“… we find that Plaintiff has nothing to offer but his bigoted assumption that all
Muslims approve terrorism…”
Id. ¶ 9. Bailey submitted an affidavit in the New York Action, which stated:
“I am an American and profoundly proud to be a citizen of the greatest most
diversely embracing nation the planet earth has ever had in all of its recorded
history.”
“I am a Jew and profoundly proud to adhere to the nation that brought to Western
Civilization the commands to love one’s neighbor as oneself and not to oppress
the foreigner for we were once strangers in another land.”
“I will not let the right to the free exercise of religion be confined by narrowness
of vision and I will not let the right to erect a house of prayer to be torn down by
blind bigotry.”
“When in the days following an analogous atrocity in 1941 our people marshaled
their will and marched off, nobody was an American of this type. We were all
united under a single banner pledged to eradicate the very kind of religious
intolerance we see in Plaintiff, represented in those years by the Third Reich and
those aligned with it.”
Id. ¶ 10.
On October 12, 2010, the New York Post reported on the motion to dismiss in an article
entitled “Anti-Mosque Lawsuit Slammed as Bigotry.” Id. ¶ 11; Annie Karni, Anti-Mosque
Lawsuit Slammed as Bigotry, N.Y. Post, Oct. 12, 2010. The article quoted the Defendants’
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statement in their dismissal motion that the New York Action was “motivated by ‘blind
bigotry.’” Affidavit of Larry Klayman in Support of Plaintiff’s Opposition to Defendants’
Motion to Dismiss and For Attorneys Fees, Exhibit 1.
On January 2, 2011, Klayman cross-motioned for sanctions, objecting to the language of
the dismissal motion and citing the New York Post article. On April 5, 2011, the Honorable Lucy
Billings orally denied the sanctions motion because Defendants’ “controversial statements” were
“related to their litigation.” Declaration of Adam Leitman Bailey in Support of Defendant’s
Motion to Dismiss and for Attorneys’ Fees (hereinafter “Bailey Dec.”), Exhibit 5.
On September 26, 2012, Justice Billings granted Defendants’ motion to dismiss the
action for failure to state a claim. Forras, 2012 WL 7986872.
B. Plaintiffs’ D.C. Superior Court Action
On October 11, 2011—after the court in the New York Action orally denied Klayman’s
motion for sanctions, but before the court granted Defendants’ motion for dismissal—Klayman
and Forras filed a complaint against Rauf and Bailey in the District of Columbia Superior Court.
See Vincent Forras & Larry Klayman v. Iman Feisal Abdul Rauf & Adam Leitman Bailey, 2011
CA 0008122 B (D.C. Super. Aug. 7, 2012) (the “D.C. Superior Court Action”). Forras and
Klayman sought to recover damages for defamation, false light, assault, and intentional infliction
of emotional distress stemming from the statements Defendants made in their motion to dismiss
the New York Action, and the subsequent partial publication of those statements in the New
York Post. Declaration of Christopher G. Hoge in Support of Defendant’s Motion to Dismiss and
For Attorneys’ Fees, Exhibit 2.
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On February 21, 2012, Plaintiffs, after having been granted three extensions of time by
the Superior Court, commenced the present action in this Court and filed a Notice of Dismissal
in the Superior Court. Id., Exhibit 5. Plaintiffs explained that they wanted to take advantage of a
recent federal court decision, 3M v. Boulter, 842 F. Supp. 2d 85, 93-111 (D.D.C. 2012), which
declined to apply the Anti-SLAPP Act to federal diversity cases. Id.
C. The Present Action
Plaintiffs’ Complaint in the instant case is identical in substance to the D.C. Superior
Court Action complaint. Plaintiffs allege defamation, false light, assault, and intentional
infliction of emotional distress stemming from the statements Defendants made in their motion
to dismiss the New York Action, and the subsequent partial publication of those statements in the
New York Post. Compl. ¶¶ 1, 8-10.
Defendants present a mélange of reasons why this case should be dismissed. They have
filed a motion to dismiss under Rules 12(b)(1), (2), (3) and (6) and a special motion to dismiss
under the Anti-SLAPP Act, which authorizes dismissal where a defendant shows that the claims
at issue arise from an act in furtherance of the right of advocacy on issues of public interest. 1 The
Court will resist the temptation to deal with all of Defendants arguments and will instead focus
on Defendants’ Anti-SLAPP Act and statute of limitations arguments. Mot. to Dismiss at 3.
Because the Anti–SLAPP Act instructs courts to address special motions to dismiss on an
expedited basis, see D.C. Code § 16–5502(d), the Court gives that motion priority and will
address it first.
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Although D.C. Code § 16-5502 provides that a special motion to dismiss should be filed within forty-five days of
the service of the claim, here Defendants moved promptly to stay this action because of the pendency of the
Superior Court Action. As such, considering the circumstances under which the action was brought, the time to file
the special motion to dismiss is equitably tolled and this motion is considered timely.
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II. SPECIAL MOTION TO DISMISS UNDER THE ANTI-SLAAP ACT
A. Applicability of the Anti–SLAPP Act in Federal Diversity Actions
As a threshold matter, Plaintiffs argue that the Anti–SLAPP Act's special motion to
dismiss provisions do not apply in federal proceedings where, as here, the court's jurisdiction is
based on diversity. See Erie v. Tompkins, 304 U.S. 64, 58 (1938) (federal courts sitting in
diversity must apply state substantive laws and federal procedural laws); see also Compl. ¶ 1
(invoking the Court's diversity jurisdiction). Plaintiffs rely exclusively on 3M Co. v. Boulter. In
that case the Court held that the Anti–SLAPP Act “squarely attempts to answer the same
question that [Federal Rules of Civil Procedure] 12 and 56 cover and, therefore, cannot be
applied in a federal court sitting in diversity.” 842 F. Supp. 2d 85, 102 (D.D.C. 2012) (Wilkins,
J.).
While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three
Courts of Appeals have deemed it appropriate to enforce state anti-SLAPP laws in diversity
actions, finding no conflict between those statutes' special motion to dismiss provisions and
Federal Rules of Civil Procedure 12 and 56. See Godin v. Schencks, 629 F.3d 79, 81 (1st Cir.
2010); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.
1999); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009) (summarily
adopting Newsham's reasoning).
In Sherrod v. Breitbart, a D.C. District Court case decided after 3M Co., the court held
that the Anti-SLAPP Act “is substantive—or at the very least, has substantive consequences” and
thus is applicable in federal court. 843 F. Supp. 2d 83, 85 (D.D.C. 2012) (Leon, J.) aff'd on other
grounds 720 F.3d 932 (D.C. Cir. 2013). In Sherrod, the plaintiff—former Georgia State Director
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for Rural Development for the United States Department of Agriculture— brought an action
against the defendants—Internet bloggers Andrew Breitbart and Larry O'Connor—asserting
claims for defamation, false light, and intentional infliction of emotional distress, which the
defendants moved to dismiss under the Anti–SLAPP Act. Sherrod, 843 F. Supp. 2d at 83-84. The
Honorable Judge Leon examined the legislative history of the Anti-SLAPP Act and found that
the intent was “to create new substantive rights for defendants in SLAPP suits.” Id. at 85. “‘Bill
18–893, the Anti–SLAPP of 2010, incorporates substantive rights with regard to a defendant's
ability to fend off lawsuits filed by one side of a political or public policy debate aimed to punish
or prevent the expression of opposing points of view.’” Id. (quoting Council on the District of
Columbia Committee on Public Safety and the Judiciary, Report on Bill 18–893, Anti–SLAPP
Act of 2010 (Nov. 18, 2010) (“Comm. Report”) at 1). In addition, since 3M Co. three other D.C.
District Court judges have found that the Anti-SLAPP Act applies to diversity actions in federal
court. See Boley v. Atl. Monthly Grp., 950 F. Supp. 2d 249, 254 (D.D.C. 2013) (Walton, J.)
(finding the Courts of Appeals cases persuasive and adopting their reasoning); Farah v. Esquire
Magazine, Inc., 863 F. Supp. 2d 29, 36 n. 10 (D.D.C. 2012) (Collyer, J.) aff'd sub nom. Farah v.
Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013) (“it was certainly the intent of the D.C.
Council and the effect of the law—dismissal on the merits—to have substantive consequences”);
Abbas v. Foreign Policy Grp., LLC, CV 12-1565 (EGS), 2013 WL 5410410 *5 (D.D.C. Sept. 27,
2013) (Sullivan, J.) (same).
Finding the Courts of Appeals cases and the recent D.C. District Court cases persuasive,
the Court concludes that the Anti-SLAPP Act empowers defendants with the substantive right to
fend off SLAPP lawsuits. Therefore the Court will apply the Anti-SLAPP Act’s special motion
to dismiss provisions in this case.
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B. The Anti-SLAPP Act
The subsection of the Anti–SLAPP Act governing special motions to dismiss provides in
pertinent part:
(a) A party may file a special motion to dismiss any claim arising from an act in
furtherance of the right of advocacy on issues of public interest within 45 days
after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima
facie showing that the claim at issue arises from an act in furtherance of the right
of advocacy on issues of public interest, then the motion shall be granted unless
the responding party demonstrates that the claim is likely to succeed on the
merits, in which case the motion shall be denied.
D.C.Code § 16–5502(a)–(b).
The “broad” protections afforded by the Act “follow[ ] ‘the lead of other jurisdictions,
which have similarly extended absolute or qualified immunity to individuals engaged in
protected actions’” by enacting anti-SLAPP laws. Farah, 863 F. Supp. 2d at 36 (quoting the
Comm. Report at 4). These statutes, like the District of Columbia's Anti–SLAPP Act, reflect a
legislative judgment that
SLAPPs ... have been increasingly utilized over the past two decades as a means
to muzzle speech or efforts to petition the government on issues of public interest.
Such cases are often without merit, but achieve their filer's intention of punishing
or preventing opposing points of view, resulting in a chilling effect on the
exercise of constitutionally protected rights. Further, defendants of a SLAPP must
dedicate a substantial amount of money, time, and legal resources. The impact is
not limited to named defendants' willingness to speak out, but prevents others
from voicing concerns as well.
Boley, 950 F. Supp. 2d at 255 (quoting Comm. Report at 1) (internal citations omitted).
The Anti–SLAPP Act seeks to address these concerns “by incorporating substantive
rights that allow a defendant to more expeditiously, and more equitably, dispense of a SLAPP.”
Comm. Report at 1.
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In construing the Anti–SLAPP Act, this Court unfortunately has no guidance from the
D.C. Court of Appeals, which, to date, has not issued a published opinion interpreting the statute.
Where, as here, “the substantive law of the forum state is uncertain or ambiguous, the job of the
federal courts is carefully to predict how the highest court of the forum state would resolve the
uncertainty or ambiguity.” Travelers Ins. Co. v. 633 Third Assocs., 14 F.3d 114, 119 (2d Cir.
1994). With this principle in mind, the Court deems it noteworthy that the Committee Report
prepared in connection with the Anti–SLAPP Act emphasizes that the law was designed to
“follow[ ] the model set forth in a number of other jurisdictions,” Comm. Report at 1, and that
the D.C. Court of Appeals often accords significant weight to such reports, see, e.g., District of
Columbia v. Place, 892 A.2d 1108, 1113–15 (D.C. 2006) (“[W]e must look to the legislative
history of the statute so that we may interpret the relevant provision in a way that is more faithful
to the purpose than to the word.”) (internal citations omitted). “Where appropriate, then, the
Court will look to decisions from other jurisdictions (particularly those from California, which
has a well-developed body of anti-SLAPP jurisprudence) for guidance in predicting how the
D.C. Court of Appeals would interpret its own anti-SLAPP law.” Boley, 950 F. Supp. 2d at 254-
55.
C. Prima Facie Showing of Protected Activity
For Defendants' motion to prevail, they must initially make a “prima facie showing that
the claim at issue arises from an act in furtherance of the right of advocacy on issues of public
interest.” D.C. Code § 16–5502(b). The Act defines an “[a]ct in furtherance of the right of
advocacy on issues of public interest” to include:
(A) Any written or oral statement made:
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(i) In connection with an issue under consideration or review by a legislative,
executive, or judicial body, or any other official proceeding authorized by law; or
(ii) In a place open to the public or a public forum in connection with an issue of
public interest;
D.C. Code § 16–5501(1)(A, B) (emphasis added).
Defendants have made a prima facie showing that their allegedly defamatory statements
are protected under the Anti-SLAPP Act. Bailey’s statements about Forras and Klayman were
made in Bailey’s Motion to Dismiss the pending action before the Supreme Court of the State of
New York, New York County. Therefore, Bailey’s statements qualify as “written…statement[s]
made…[i]n connection with an issue under consideration or review by a…judicial body.” D.C.
Code § 16–5501(1)(A).
D. Likelihood of Success on the Merits
Because defendants have made a prima facie showing that Plaintiffs’ claim “arises from
an act in furtherance of the right of advocacy on issues of public interest,” Plaintiffs must now
show that they are “likely to succeed on the merits” of their claim in order to survive
Defendants’ Anti-SLAPP motion. D.C. Code § 16–5502(b).
The Anti-SLAPP Act does not define the required showing for likelihood of succeed on
the merits, so the Court looks to relevant case law from other jurisdictions as instructive. The 9th
Circuit precedent case law is instructive. In order to show a “probability of prevailing on a
claim” in opposition to an Anti–SLAPP motion to dismiss, a plaintiff “must satisfy a standard
comparable to that used on a motion for judgment as a matter of law.” Abbas, 2013 WL 5410410
*7 (citing Price v. Stossel, 620 F.3d 992, 1000 (9th Cir. 2010); Arenas v. Shed Media U.S. Inc.,
881 F. Supp. 2d 1181, 1188 (C.D. Cal. 2011)). Thus, a plaintiff “must demonstrate that the
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complaint is legally sufficient and supported by a prima facie showing of facts to sustain a
favorable judgment if the evidence submitted by the plaintiff is credited.” Price, 620 F.3d at
1000 (internal citations omitted). If a “plaintiff fails to present a sufficient legal basis for the
claims or if the evidence offered is insufficiently substantial to support a judgment in favor of the
plaintiff, then the defendant's anti-SLAPP motion should be granted.” Arenas, 881 F. Supp. 2d at
1188 (internal citations omitted).
1. Defamation and False Light Claims
To prevail on a claim for defamation under District of Columbia law, a plaintiff must
prove four elements:
(1) that the defendant made a false and defamatory statement concerning the
plaintiff; (2) that the defendant published the statement without privilege to a third
party; (3) that the defendant's fault in publishing the statement amounted to at
least negligence; and (4) either that the statement was actionable as a matter of
law irrespective of special harm or that its publication caused the plaintiff special
harm.
Blodgett v. Univ. Club, 930 A.2d 210, 222 (D.C. 2007).
Similarly, a false light claim under District of Columbia law requires a showing
of:
(1) publicity (2) about a false statement, representation or imputation (3)
understood to be of and concerning the plaintiff, and (4) which places the plaintiff
in a false light that would be offensive to a reasonable person.”
Kitt v. Capital Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999).
“[W]here the plaintiff rests both his defamation and false light claims on the same
allegations…the claims will be analyzed in the same manner.” Stovell v. James, 965 F. Supp. 2d
97 (D.D.C. 2013) (citing Blodgett, 930 A.2d at 222). Plaintiffs’ defamation and false light claims
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are both based on Bailey’s statements in the New York Action Motion to Dismiss and will
therefore be analyzed together.
Defendants contend Bailey’s statements are protected from defamation and false light
claims by the judicial proceedings privilege. Mot. to Dismiss at 15. In this jurisdiction, an
attorney is protected by an absolute privilege to publish statements that may be false and
defamatory if: (1) the statements are made in the course of, or preliminary to, a judicial
proceeding; and (2) the statements are in some way related to the underlying proceeding. Mohler
v. Houston, 356 A.2d 646, 647 (D.C. 1976) (per curiam); see Restatement (Second) of Torts §
586 (1977). The privilege affords an attorney absolute immunity from actions in defamation for
communications related to judicial proceedings. Sturdivant v. Seaboard Serv. Sys., Ltd., 459
A.2d 1058 (D.C. 1983). The determination of whether a communication is privileged is a
question of law for the court. Mosrie v. Trussell, 467 A.2d 475, 477 (D.C. 1983); Alfred A.
Altimont, Inc. v. Chatelain, Samperton & Nolan, 374 A.2d 284, 290 (D.C. 1977).
In Arneja v. Gildar a landlord’s attorney made the following statements to a tenant’s
attorney while both parties and clients were present in hearing room awaiting the imminent
arrival of a hearing examiner to adjudicate their dispute:
You're unnecessarily pursuing this case. You don't understand the law. Where did
you go to law school; you should go back to law school before you practice law.
You don't understand. You better learn your English, go to elementary school.
Arneja v. Gildar, 541 A.2d 621, 622 (D.C. 1988).
The court held that the statements by the landlord’s attorney were protected by the
judicial proceedings privilege because they (1) “[had] been made…preliminary to a judicial
proceeding,” and (2) “related in some way to the underlying proceeding” because they were
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intended to “induce [the tenant’s attorney] to cease the litigation by highlighting his supposed
incredulous position.” Id.
This Court rules that Defendants’ statements in this case are protected by the judicial
proceedings privilege. First, the statements were made in the course of a judicial proceeding.
They were contained in Defendants’ motion to dismiss the New York Action. The statements
related to the underlying proceeding since they represented Defendants’ attempts to highlight
Plaintiffs’ allegedly frivolous position. Defendants’ motion to dismiss centered on the fact that
Plaintiffs had failed to plead any cognizable cause of action, and that the action was brought
exclusively because Plaintiffs had or have an aversion towards Islam. Mot. to Dismiss at 15. In
addition, Justice Billings, in dismissing Plaintiffs’ sanctions motion in the New York Action,
found that the Defendants’ “controversial statements” were “related to their litigation” and thus
not a basis for sanctions. Bailey Dec., Exhibit 1. While this Court does not wish to be understood
as condoning Defendants’ statements, “the immunity of the absolute privilege supports the
public policy of allowing counsel to zealously represent a client's interests without fear of
reprisal through defamation actions.” Arneja, 541 A.2d at 624. Because Defendants’ statements
qualify under the judicial proceedings privilege, Plaintiffs fail to demonstrate that their
defamation and false light claims are likely to succeed on the merits.
2. Assault Claim
In the District of Columbia, defendants are subject to liability for assault if “(a) they act
intending to cause a harmful or offensive contact…or an imminent apprehension of such a
contact, and (b) the other party is thereby put in such imminent apprehension.” Acosta Orellana
v. CropLife Int'l, 711 F. Supp. 2d 81, 92 (D.D.C. 2010) (quoting Rogers v. Loews L'Enfant Plaza
13
Hotel, 526 F. Supp. 523, 529 (D.D.C. 1981)) (internal citations omitted). An actor will not be
held liable for assault for negligent or reckless behavior lacking the requisite intent to commit an
assault. See Jackson v. District of Columbia, 412 A.2d 948, 955 n. 15 (D.C. 1980). Also, “an
essential element of ... assault is…intentional[ly] putting another in apprehension” and absent
such an allegation a complaint is “clearly deficient.” See Madden v. D.C. Transit Sys., Inc., 307
A.2d 756, 757 (D.C. 1973) (per curiam) (holding that a plaintiff who alleged he was assaulted by
fumes and offensive oily substances discharged from two of the defendant’s passing buses did
not meet the elements of assault).
Plaintiffs allege that because Defendants’ statements were read by “radical Muslims,”
Defendants put a de facto Fatwah on Plaintiffs” and that Plaintiffs now fear for their safety.
Compl. ¶¶ 23-24. However, Defendants’ privileged statements, while uncomplimentary of
Plaintiffs, are too attenuated to amount to an assault. Despite Plaintiffs’ allegations to the
contrary, they are unable to show that Defendants intended to harm them, or that Defendants’
statements were threats. See Madden, 307 A.2d at 757. Accordingly, Plaintiffs fail to
demonstrate that their assault claim is likely to succeed on the merits.
3. Intentional Infliction of Emotional Distress Claim
“To establish a claim for intentional infliction of emotional distress, a plaintiff must
prove that the defendant engaged in: (1) extreme and outrageous conduct that (2) intentionally or
recklessly caused (3) severe emotional distress to another.” Jung v. Jung, 791 A.2d 46, 50 (D.C.
2002) (quoting Jonathan Woodner Co. v. Breeden, 665 A.2d 929, 934–35 (D.C. 1995)) (holding
that appellee’s suggestion that the parties in a real estate dispute “fight till the death” was a
metaphor and did not rise to the level of intentional infliction of emotional distress).
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The first element of the tort is satisfied only when the conduct at issue is “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) (internal citation omitted). Liability “clearly does not extend to mere
insults, indignities, threats, annoyances, petty oppressions, or other trivialities.” Restatement
(Second) of Torts § 46 cmt. d (1965). In determining whether specific acts rise to the extreme
and outrageous level, courts are guided by “(1) applicable contemporary community standards of
offensiveness and decency, and (2) the specific context in which the conduct took place.” King v.
Kidd, 640 A.2d 656, 668 (D.C.1993).”
Defendants’ statements do not rise to the extreme and outrageous level. Under
contemporary community standards, the statements are best characterized as “mere insults,”
especially given the context of the statements, that is, during the course of an adversarial
proceeding. See Jung, 791 A.2d at 50. Accordingly, Plaintiffs fail to demonstrate that their
intentional infliction of emotion distress claim is likely to succeed on the merits.
III. STATUTE OF LIMITATIONS
Under D.C. Code § 12-301(4), the statute of limitations for defamation and assault are
expressly set at one year, and under the “single publication” rule, defamation-based claims
accrue on the date the allegedly defamatory statements were first published. Mullin v.
Washington Free Weekly, Inc., 785 A.2d 296, 298 (D.C. 2001). Although false light and
intentional infliction of emotional distress are not expressly mentioned in D.C. Code § 12-
301(4), the D.C. courts hold that when such claims are “intertwined” with defamation claims,
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they share the one year statute of limitations. Bond v. U.S. Department of Justice, 828 F. Supp.
2d 60, 78 (D.D.C. 2011).
Plaintiffs filed their initial complaint in this Court on February 21, 2012. The New York
Post article was published on October 12, 2010. Plaintiffs’ claims have therefore accrued and are
time-barred by the one-year statute of limitations.
Plaintiffs argue that their claims are not time-barred by the statute of limitations. They
argue that under the “relation back” doctrine, the statute of limitations has not run because the
D.C. Superior Court Action was commenced on October 12, 2011, which is in satisfaction of the
one-year statute of limitations. Plaintiffs are incorrect. “The relation back doctrine has
application only in instances where an original pleading is amended... The amendment does not,
however, relate back to any prior proceedings which are not part of the action in question....”
Monrouzeau v. Asociacion del Maestro, 354 F. Supp. 2d 115, 118 (D.P.R. 2005) (quoting Rayo
v. State of New York, 882 F. Supp. 37, 40 (N.D.N.Y.1995)) aff'd sub nom. Monrouzeau v.
Asociacion Del Hosp. Del Maestro, Inc., 153 F. App'x 7 (1st Cir. 2005). The D.C. Superior
Court Action is a prior proceeding. Therefore, Plaintiffs’ claims before this Court cannot relate
back, and the one-year statute of limitations has run.
IV. ATTORNEYS’ FEES
Defendants requests attorney's fees in this action as well as fees incurred in the D.C.
Superior Court Action, pursuant to D.C. Code § 16-5504(a). The Anti-SLAPP Act establishes
that a court may award a moving party who prevails, in whole or in part, on a motion brought
under D.C. Code § 16-5502 [Special Motion to Dismiss] or D.C. Code § 16-5503 [Special
Motion to Quash] the costs of litigation, including reasonable attorney fees.” D.C. Code § 16-
16
5504(a). While Defendants have addressed their request for attorney’s fees in their brief,
Defendants have not cited any cases in support of the proposition that a court may award
attorney’s fees for actions brought in other courts.
Defendants shall file documentation in support of their motion for attorney’s fees no later
than May 9, 2014. The Court will retain jurisdiction to consider the motion for attorney’s fees.
Plaintiffs shall file their opposition to Defendants’ motion for attorney’s fees no later than May
23, 2014. Defendants shall file their reply by May 30, 2014.
V. CONCLUSION
For the foregoing reasons, the Court concludes that Defendants have made a prima facie
showing that Plaintiffs’ claims arise from an act in furtherance of the right of advocacy on issues
of public interest, and that Plaintiffs have failed to demonstrate a likelihood of success on the
merits of their defamation, false light, assault, and intentional infliction of emotional distress
claims. Accordingly, Defendants' special motion to dismiss pursuant to the Anti-SLAPP Act is
GRANTED and Plaintiffs’ complaint is DISMISSED.
An appropriate Order accompanies this Memorandum Opinion.
April 18, 2014
BARBARA J. ROTHSTEIN
UNITED STATES DISTRICT JUDGE
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