Myers v. District of Columbia Housing Authority ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
_________________________________________
)
BELINDA MYERS et al., )
)
Plaintiffs, )
)
v. ) Case No. 1:20-cv-00700-APM
)
DISTRICT OF COLUMBIA HOUSING )
AUTHORITY et al., )
)
Defendants. )
_________________________________________ )
MEMORANDUM OPINION AND ORDER
I. INTRODUCTION
It is common these days for law firms to tout their work on their websites. Plaintiffs’
counsel did so in this case after filing the Complaint. Their website announced that the firm had
filed a lawsuit against Defendant Tifaqur Quantay Oliver, accusing him of sexually harassing
Plaintiffs in violation of the Fair Housing Act and the Fourteenth Amendment’s Equal Protection
Clause. Taking offense to the website posting, Oliver filed a Counterclaim, in which he asserts
that the posting was defamatory and cast him in a false light and that Plaintiffs—not their
counsel—are libel for the tortious acts. Plaintiffs now move to dismiss the Counterclaim. For the
reasons that follow, the court grants Plaintiffs’ motion to dismiss.
II. BACKGROUND
On March 10, 2020, Plaintiffs filed a Complaint alleging that Defendants D.C. Housing
Authority and Oliver violated the Fair Housing Act and the Fourteenth Amendment’s Equal
Protection Clause. Compl., ECF No. 1 [hereinafter Compl.], at 16–17. Specifically, Plaintiffs
allege that on multiple occasions, Oliver sexually harassed Plaintiffs by “explicitly and implicitly
offer[ing] material housing benefits to [D.C. Housing Authority] tenants in exchange for sex.” Id.
¶ 4.
About two weeks after filing the Complaint, Plaintiffs’ counsel, Relman Colfax PLLC
(“Relman”), announced the lawsuit on its website (the “Relman Post”). See Pls.’ Mot. to Dismiss
Def. Oliver’s Am. Counterclaims, ECF No. 32 [hereinafter Pls.’ Mot.], Ex. 1, ECF No. 32-2
[hereinafter Pls.’ Ex. 1]. The Relman Post, entitled “Public Housing Tenants Sue D.C. Housing
Authority, Property Manager for Sexual Harassment,” was published under the “News & Updates”
section of Relman’s website. See Pls.’ Mot., Mem. in Supp. of Pls.’ Mot. to Dismiss Def. Oliver’s
Am. Counterclaims [hereinafter Pls.’ Mem.], ECF No. 32-1, at 3. As the title suggests, the Post
announces that Relman is representing Plaintiffs in an action against the D.C. Housing Authority
and Oliver. The first paragraph of the Post states:
Relman Colfax has filed a federal lawsuit against the D.C. Housing
Authority (“DCHA”) and its property manager, Quantay Oliver,
who DCHA permitted to sexually harass women who lived at
DCHA properties for years, including repeatedly badgering them to
perform sexual favors and offering them money in exchange for sex.
The complaint alleges that DCHA and Mr. Oliver created a hostile
housing environment and permitted quid pro quo sexual harassment
in violation of the Fair Housing Act and the Equal Protection Clause
of the Fourteenth Amendment.
Pls.’ Ex. 1. Relman provided a link to the Complaint at the end of the statement. Id.
Oliver then filed a Counterclaim, which he later amended. It alleges that the Relman Post
“targeted [an] audience consisting of hundreds of persons,” harming his professional and familial
reputation, Def.’s Am. Counterclaim, ECF No. 29 [hereinafter Def.’s Counterclaim], ¶¶ 13, 16,
22, and that the Post “denigrate[s] and impugn[s] [his] character as a longstanding married man,
devoted father, and highly respected manager in the workplace and community where the
[Plaintiffs] reside,” id. ¶ 6.
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III. LEGAL STANDARD
Plaintiffs have moved to dismiss Oliver’s Counterclaim for failure to state a claim under
Federal Rule of Civil Procedure Rule 12(b)(6). See Pls.’ Mot. Such a “motion tests the legal
sufficiency of a claim.” See Sickle v. Torres Advanced Enter. Sols., LLC, 884 F.3d 338, 344 (D.C.
Cir. 2018). “To survive a motion to dismiss, a complaint must contain sufficient factual matter . . .
to state a claim to relief that is plausible on its face.” Id. at 344–45 (alteration in original) (quoting
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A claim is facially plausible “when the plaintiff
pleads factual content that allows the court to draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.
When evaluating a Rule 12(b)(6) motion, the court must “accept the plaintiff’s factual
allegations as true,” Sickle, 884 F.3d at 345 (internal quotation marks omitted), and “construe the
complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be
derived from the facts alleged,” Hettinga v. United States, 677 F.3d 471, 476 (D.C. Cir. 2012)
(internal quotation marks omitted). The court need not accept as true, however, “a legal conclusion
couched as a factual allegation.” Iqbal, 556 U.S. at 678 (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007)). Accordingly, “[t]hreadbare recitals of the elements of a cause of action,
supported by mere conclusory statements, do not suffice.” Id.IV. DISCUSSION
Plaintiffs advance three arguments in support of their motion. See Pls.’ Mem. at 1–2. First,
they argue that Oliver’s Counterclaim is foreclosed by the fair report privilege because the Relman
Post is an accurate summary of “pleadings or judicial proceedings.” Id. at 1. Second, Plaintiffs
assert that Oliver’s Counterclaim must be dismissed because “he failed to allege facts indicating
that the statements are false—a required element of his claims.” Id. at 2. And third, Plaintiffs
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maintain that because they did not publish the alleged defamatory statements—their counsel did—
they cannot be held liable for their counsel’s actions. Id. As the court finds that Oliver’s
Counterclaim is defeated by the fair report privilege and fails to state a claim, it does not reach
Plaintiffs’ third argument regarding attribution of the Post.
A. The Fair Report Privilege
Because the “issue of privilege antecedes the question of” defamation, White v. Fraternal
Order of Police, 909 F.2d 512, 527 (D.C. Cir. 1990), the court begins by considering whether the
fair report privilege forecloses Oliver’s libel and false light claims, see id. at 518 (“[T]he same
privileges applicable to libel claims may be invoked to defend false light claims.”).
“There is no question that, as a matter of District of Columbia law, publications do enjoy
a conditional fair report privilege.” Dameron v. Washington Mag., Inc., 779 F.2d 736, 739 (D.C.
Cir. 1985) (citing Phillips v. Evening Star Newspaper Co., 424 A.2d 78 (D.C. 1980)). “The
conditional immunity that applies to the publication of fair and accurate reports of official
proceedings is an exception to the common law rule that one who repeats or republishes a
defamation uttered by another ‘adopts’ it as his own.” Id. The fair report privilege serves the
public’s interest “in having information made available to it as to what occurs in official
proceedings,” RESTATEMENT (SECOND) OF TORTS § 611 cmt. a. (AM. LAW INST. 1977) [hereinafter
RESTATEMENT (SECOND)], and reflects the First Amendment’s protection for “accurate account[s]
of judicial proceedings,” see Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1299 (D.C.
Cir. 1988) (noting the First Amendment protects “the publication of truthful information contained
in official court records open to public inspection” (internal quotation marks omitted)).
For the privilege to attach, the author of a statement must “clear[] two major hurdles.”
Phillips, 424 A.2d at 89. The publication must be both fair and accurate and properly attributed
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to a qualified government source. Jankovic v. Int’l Crisis Grp., 593 F.3d 22, 26 (D.C. Cir. 2010).
Oliver contends that the Relman Post clears neither hurdle. The court disagrees.
1. Fair and Accurate Report
The fair report privilege bars defamation claims against “full and accurate” publications of
official government proceedings. Curtis Publ’g Co. v. Vaughn, 278 F.2d 23, 29 (D.C. Cir. 1960)
(internal quotation marks omitted). A “full” publication recites the “essential and important
features” of the underlying document. Id. (internal quotation marks omitted). Further, where it is
“apparent either from specific attribution or from the overall context that the article is quoting,
paraphrasing, or otherwise drawing upon official documents or proceedings,” the publication
includes the underlying document’s essential and important features and thus qualifies for the
privilege. Dameron, 779 F.2d at 739. Because the fair report privilege’s “intended beneficiary
. . . is the public,” id., the court must ensure that the publication’s recitation of the underlying
document’s “essential and important features” is “substantially accurate,” Curtis Publ’g Co., 278
F.2d at 29. A report is substantially accurate where it is clear from the publication’s “overall
context” that an “average reader” would understand the publication as a “report on or summary of
an official document or proceeding.” Dameron, 779 F.2d at 739; see also White, 909 F.2d at 527(explaining that the fair report privilege requires that the publication present the information in
“such a manner that the average reader would be likely to understand the communication to be a
report on . . . an official document or proceeding”); Curtis Publ’g Co., 278 F.2d at 29 (explaining
that a publication need not reproduce “every detail” of the underlying proceedings for the court to
determine that it is “substantially accurate”).
Oliver argues that the fair report privilege does not protect the statement at issue here
because the Relman Post is an unfair and inaccurate description of Plaintiffs’ Complaint.
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See Def.’s Opp’n to Pls.’ Mot. to Dismiss, ECF No. 33 [hereinafter Def.’s Opp’n], at 7. The
portion of the Post he finds most offensive is as follows: DCHA “permitted [Oliver] to sexually
harass women who lived at DCHA properties for years, including repeatedly badgering them to
perform sexual favors and offering them money in exchange for sex.” See id. at 3 (emphasis
omitted) (internal quotation marks omitted). He argues that the average reader would not
understand the Relman Post to summarize a judicial pleading because it recounts Plaintiffs’ claims
without identifying them as allegations and thus represents the claims as facts. See id. at 7. The
omission of the word “alleged” in the Post’s first sentence, Oliver contends, “creates an absolute,
predicate, defamatory accusation and inference” that the rest of the document cannot overcome.
Id. He also complains that neither “[t]he number of women, properties, nor years is mentioned.”
See id.
When assessing the applicability of the fair report privilege, the court must read the whole
Post in context, see Curtis Publ’g Co., 278 F.2d at 26 (explaining that reading and construing the
words as the average reader would requires evaluating the “whole item” and paying attention to
“context” (internal quotation marks omitted)), in order to determine the average reader’s
understanding of the publication, Dameron, 779 F.2d at 739; see also Boley v. Atl. Monthly Grp.,
950 F. Supp. 2d 249, 258 (D.D.C. 2013) (rejecting claimant’s misleading characterization and
“cherry-picked” quotation of a statement that was not defamatory when “[v]iewed in context” with
the surrounding sentences). Thus, the court cannot read the first sentence of the Relman Post in
isolation, as Oliver encourages.
Viewed in context and looking to the whole statement, the Relman Post fairly and accurately
describes the allegations in Plaintiffs’ Complaint. First, the publication is posted on Relman’s
webpage under the “News & Updates” tab. Pls.’ Ex. 1. The context of the “News & Updates” tab
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and Relman’s website generally frames the information as relating to Relman’s active litigation.
Second, the headline clearly reads, “Public Housing Tenants Sue D.C. Housing Authority, Property
Manager for Sexual Harassment.” Id. (emphasis added). The average reader would understand
Relman’s use of the word “sue” to reference a lawsuit. Third, although the Post’s first sentence
does not contain the word “allege,” it begins by stating that “Relman Colfax has filed a federal
lawsuit.” Id. What’s more, the word “allege” is used multiple times throughout the rest of the
Post. Id. For example, the Post’s second sentence begins, “The complaint alleges”; likewise, the
second paragraph states, “Ms. Myers and Ms. Thomas allege.” Id. Finally, the Post concludes
with a link to the Complaint itself, which further provides the reader with context that the Post is
summarizing allegations that have not yet been proven. Id. Thus, when reading the Relman Post
in its entirety, it can be reasonably understood only as a summary of Plaintiffs’ Complaint.
And that summary is fair and accurate. Plaintiffs’ Complaint contains multiple allegations
that support the Post’s assertion that DCHA “permitted [Oliver] to sexually harass women who
lived at DCHA properties for years, including repeatedly badgering them to perform sexual favors
and offering them money in exchange for sex,” id. For instance, Plaintiffs allege that, for “a
decade,” Oliver engaged in sexual harassment by “repeatedly badgering [tenants] to perform
sexual favors, conditioning resolution of pending eviction proceedings or approval of home repairs
on female tenants having sex with him, and offering money to DCHA tenants in exchange for sex.”
Compl. ¶ 2. Elsewhere, Plaintiffs say that Oliver “claimed he could help delay or prevent eviction
proceedings if tenants would sleep with him, and he promised to approve needed housing repairs
in exchange for sex.” Id. ¶ 4. Other allegations are to the same effect. See id. ¶ 41 (claiming
Oliver offered Plaintiff Myers $150 to sleep with him); id. ¶¶ 54–55 (describing multiple instances
in which Oliver asked Myers to sleep with him to secure his assistance or cooperation in addressing
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her housing needs); id. ¶ 68 (alleging that Oliver told Thomas he could help her avoid eviction if
she slept with him); id. ¶ 83 (referencing Oliver’s “repeated attempts to coerce Ms. Thomas into
sex”). The fairness and accuracy of the Relman Post cannot be reasonably disputed.
Oliver further argues that it is improper for the court to determine how an “average reader”
would understand the Post at the pleadings stage because “this court would have to step into the
shoes of a reasonable juror to determine the extent to which the subject accusatory language is
clear.” See Def.’s Opp’n at 8. The court disagrees. “If after an examination of the entire article
there is only one reasonable interpretation of its meaning, it is for the judge and not the jury to say
whether or not the words are defamatory.” Johnson v. Johnson Publ’g Co., 271 A.2d 696, 697
(D.C. 1970); see also Curtis Publ’g Co., 278 F.2d at 26 (holding that only publications that are
“capable of two meanings, one of which would be libelous and actionable and the other not”
present fact issues). That is the case here. The only reasonable interpretation of the Post is that it
summarizes Plaintiffs’ Complaint. Accordingly, as a matter of law, the first element of the fair
report privilege is satisfied.
2. Proper Attribution to a Qualified Government Source
Oliver also argues that the fair report privilege cannot apply to the Relman Post because a
complaint is not a qualified government source. See Def.’s Opp’n at 6–7. But this contention is
foreclosed by the decision of the D.C. Court of Appeals in Johnson, 271 A.2d at 699 (holding that
the fair report privilege applies to complaints and pleadings); see also Harper v. Walters, 822
F. Supp. 817, 824 (D.D.C. 1993) (explaining that the District “has adopted the minority rule”
articulated in Johnson “that pleadings filed in judicial proceedings qualify as official records under
the privilege even before any official judicial action is taken”). In Johnson, the defendant argued
that the fair report privilege does not attach to pleadings “until some official action” has been taken
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by the court. 271 A.2d at 698. The defendant reasoned that, if the fair report privilege applied to
complaints, then a plaintiff could file a “groundless” lawsuit containing defamatory allegations
and republish those allegations with impunity. Id. The D.C. Court of Appeals rejected that
position. Id. The court accepted that “[t]here is always the possibility that groundless suits may
be filed and immediately dismissed after the defamatory allegations have been given wide
circulation.” Id. But it did not make sense, the court explained, for it to “prevent[] the
republication of what may be groundless defamatory allegations of a complaint when filed, yet
allow[] such republication the moment trial begins or any other judicial action is taken.” Id.at 698–99. Accordingly, the court held that “a qualified privilege extends to reports of charges
contained in pleadings filed in court.” Id. at 699. Oliver has cited no case calling Johnson into
question, and in light of this precedent, the court rejects his argument that the policy concerns that
undergird the fair report privilege do not support protection of statements made in complaints, see
Def.’s Opp’n at 6–7.
3. Defenses to the Fair Report Privilege
Oliver advances three additional arguments for why the fair report privilege does not apply
here. First, he questions whether the privilege applies at all, as the statement at issue was made by
a law firm and not the media. As he puts it, “the policy concern for this exception”—purportedly
to encourage the media to publicize official records—“is not implicated because [Plaintiffs] are
[not] the media.” Def.’s Opp’n at 7. Second, he contends that the privilege does not apply because
the statement was not a republication of statements made by someone else; rather, the law firm
republished its own statements made in the Complaint. Id. This argument involves what is known
as the “self-reporting exception” to the fair report privilege. Third, he contends that he has
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overcome the privilege at the motion-to-dismiss stage by sufficiently pleading actual malice. Id.at 10–11. None of these arguments bars the privilege’s application in this case.
a. Application of the privilege to a law firm
The fair report privilege is not limited to members of the traditional media. The
Restatement (Second) of Torts makes this clear: the fair report privilege
is commonly exercised by newspapers, broadcasting stations and
others who are in the business of reporting news to the public. It is
not, however, limited to these publishers. It extends to any person
who makes an oral, written or printed report to pass on the
information that is available to the general public.
RESTATEMENT (SECOND) § 611 cmt. c (emphasis added).
Oliver’s mistaken position stems from his misreading of Dameron as stating that the
“underlying principle driving the doctrine is to ‘encourage[] the media to disseminate official
records . . . without fear of liability for any false, defamatory material that they might contain.’”
Def.’s Opp’n at 6–7 (quoting Dameron, 779 F.2d at 739). The quote is accurate so far as it goes,
but protecting the media is not the “principle driving the doctrine.” Rather, as the Circuit
recognized in Dameron, “[t]he basis of the privilege is the interest of the public in having
information made available to it as to what occurs in official proceedings and public meetings.”
779 F.2d at 739 (internal quotation marks omitted). Extending the fair report privilege to a posting
in a law firm’s “News & Updates” section is therefore consistent with the privilege’s purpose to
inform the public about “what occurs in official proceedings,” id.b. The self-reporting exception
The court turns next to the self-reporting exception. Oliver does not explicitly frame his
argument in terms of the self-reporting exception but does so in sum and substance. He contends
that Plaintiffs should not be able to invoke the privilege because they were not “merely ‘repeating
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or republishing a defamation uttered by another.’” Def.’s Opp’n at 7 (alterations omitted) (quoting
Dameron, 779 F.2d at 739). The court has not identified any case applying the self-reporting
exception under D.C. law. The court therefore turns to the Restatement and Maryland caselaw for
guidance. See Phillips, 424 A.2d at 88 (citing to Restatement (Second) § 611 as source of law for
the fair report privilege); Napoleon v. Heard, 455 A.2d 901, 903 (D.C. 1983) (observing that
Maryland law is “especially persuasive authority when the District’s common law is silent”
because Maryland is the source of D.C. common law).
Under the self-reporting exception to the fair report privilege, “[a] person cannot confer
this privilege upon himself by making the original defamatory publication himself and then
reporting to other people what he had stated. This is true whether the original publication was
privileged or not.” RESTATEMENT (SECOND) § 611, cmt. c. The self-reporting exception therefore
attaches only where the claimant files a defamatory complaint, then republishes it in order to avoid
liability. See e.g., Rosenberg v. Helinski, 616 A.2d 866, 877 (Md. 1992); Amway Corp. v. Procter
& Gamble Co., 346 F.3d 180, 187–88 (6th Cir. 2003) (considering state statutory exception to
privilege that applied to libelous publications and holding that, where the defendant publishes a
report of a complaint that itself was not libelous, the self-reporting exception does not apply). In
Rosenberg, the Maryland Court of Appeals considered whether to apply the self-reporting
exception when an expert witness testified in court and afterward recounted his testimony to the
news media. 616 A.2d at 869–70. The court declined to apply the exception to the expert’s
statements, reasoning that the fair report “privilege will be forfeited only if the defamer
illegitimately fabricated or orchestrated events so as to appear in a privileged forum in the first
place.” Id. at 876. The court reasoned that it was “clear” that the exception was created “to deter
those persons who, acting out of a corrupt defamatory motive, abuse the privilege accorded to fair
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and accurate reports of judicial proceedings.” Id. at 877. Accordingly, because “[t]here [was] not
the remotest indication in the record that” the defendant testified only in order to later republish
otherwise defamatory comments, the court found the self-reporting exception did not deprive the
defendant of the fair report privilege’s protection. Id.
Likewise here, Oliver has not pled facts that would support the plausible inference that
Plaintiffs filed the Complaint only to later publish statements defaming him. Without allegations
that the Complaint itself is defamatory or that Plaintiffs filed the Complaint with a defamatory
motive, the self-reporting exception cannot apply. Plaintiffs are entitled to the protection of the
fair report privilege.
c. Actual malice
Plaintiffs also argue that D.C. law requires a showing of actual malice to overcome the fair
report privilege and that Oliver fails to plead malice. See Pls.’ Mem. at 11–15; Oparaugo v. Watts,
884 A.2d 63, 81 (D.C. 2005) (stating that the privilege “can be defeated by the presence of
malice”); Johnson, 271 A.2d at 698 (observing that “the defense of qualified privilege is available
to appellee absent proof that the article was published with malice”). Oliver does not contest this
legal framework; instead, he argues that he has adequately pled actual malice. See Def.’s Opp’n
at 10–11. The court disagrees. Generously construed, Oliver’s closest allegation to malice is that
the Relman Post “deliberately omit[s]” the word “alleged” in order “to further denigrate and
impugn [his] character and reputation.” Am. Counterclaim ¶ 6. But Oliver fails to allege that
Plaintiffs “knew or believed” that failing to include the word “alleged” in the first sentence
rendered the Post false. See Harper, 822 F. Supp. at 829. Oliver pleads no supporting facts from
which the court could reasonably infer that Plaintiffs’ omission of the word “alleged” in the first
sentence was malicious. Accordingly, Oliver has failed to overcome the privilege.
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B. Failure to State a Claim
Even if the fair reporting privilege did not apply, the court would dismiss Oliver’s
Counterclaim because he has failed to state a claim for libel or false light. See Pls.’ Mem. at 15.
At the pleadings stage, a libel claim requires the claimant to allege:
(i) a false and defamatory statement was written by the defendant
about the plaintiff; (ii) the defendant published it without privilege
to a third party; (iii) the defendant exhibited some fault in publishing
the statement; and (iv) the statement is actionable as a matter of law
or the publication has caused the plaintiff special harm.
Ning Ye v. Holder, 644 F. Supp. 2d 112, 117 (D.D.C. 2009) (quoting Messina v. Fontana, 260
F. Supp. 2d. 173, 176–77 (D.D.C. 2003)). Similarly, Oliver’s false light claim requires a showing
of: “(1) publicity (2) about a false statement [or] representation . . . (3) understood to be of and
concerning the [claimant], . . . (4) which places [him] in a false light that would be offensive to a
reasonable person.” Armstrong v. Thompson, 80 A.3d 177, 188 (D.C. 2013) (quoting Kitt v.
Capital Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999)). Because Oliver’s defamation and false
light claims both require that he allege that the Relman Post is false, the court analyzes them in
tandem.
At a minimum, Oliver must assert factual allegations that give rise to the inference that the
challenged publication is false. See e.g., Parisi v. Sinclair, 845 F. Supp. 2d 215, 218–19 (D.D.C.
2012) (dismissing plaintiffs’ libel claim for failure to include factual allegations of falsity);
Armstrong, 80 A.3d at 183 (explaining that a defamation claim must include sufficient facts to
prove that the challenged statements are not “substantially true”). He fails to do so. The closest
that Oliver comes to pleading falsity is alleging that the Relman Post’s statement that Oliver was
“permitted to sexually harass women who lived at DCHA properties for years,” Pls.’ Ex. 1
(emphasis added), “creates the false impression that there are numerous women, in addition to the
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two Plaintiffs,” that he has sexually harassed, see Def.’s Counterclaim ¶ 7. That argument,
however, falls flat. The Complaint alleges that Oliver sexually harassed at least two women.
Compl. ¶ 3. Accordingly, the Post’s statement that Oliver sexually harassed “women”—thus two
or more—is not false. See Pls.’ Ex. 1.
Because Oliver has not identified any other particular statements in the Relman Post that
are false, the court finds that Oliver has not adequately pled falsity, and his claims for libel and
false light thus fail.
V. CONCLUSION AND ORDER
For the foregoing reasons, Plaintiffs’ Motion to Dismiss, ECF No. 32, is granted.
Dated: March 26, 2021 Amit P. Mehta
United States District Court Judge
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