Yeager v. National Public Radio ( 2021 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
WILLIAM YEAGER, II, )
)
Plaintiff, )
v. ) Civil Action No. 20-cv-00755 (RC)
)
NATIONAL PUBLIC RADIO, et al., )
)
Defendants. )
MEMORANDUM OPINION
This matter is before the court on defendants’ motion to dismiss and memorandum in
support (“MTD Mem.”), collectively ECF No. 12. The court will grant the motion and dismiss
the complaint with prejudice for the reasons discussed herein.
I. BACKGROUND
i. The Instant Lawsuit
Plaintiff, a resident of Cottonwood Falls, Kansas, who is proceeding pro se and in forma
pauperis (“IFP”), filed the complaint in this matter on March 17, 2020. See Complaint (“Compl.”),
ECF No. 1, at p. 1; see also Application to Proceed IFP, ECF No. 2; Min. Ord. (Apr. 14, 2020)
(granting IFP application). Plaintiff identifies as a “songwriter/musician, independent filmmaker,
humanitarian[,] and media activist.” Compl. ¶¶ 9, 194. He describes this matter as “a case
concerning a serious Tort of Negligence against National Public Radio (NPR) and members of []
NPR's journalistic staff, management/corporate team, legal counsel and board of directors.” Id. ¶¶
1, 56–62. He names as defendants: National Public Radio (“NPR”), Andrew Flanagan (NPR
1
journalist), Jacob Ganz (NPR journalist), Elizabeth Jensen (NPR journalist and “Ombudsman”),
Michael Oreskes (former NPR journalist and former “VP of News and Editorial”), David Sweeney
(former NPR journalist and “former chief news editor”), Edith Chapin (NPR journalist and
“Executive Editor/ Senior Manager”), Mark Memmott (NPR journalist and “Senior Editor of
Standards and Ethics”), Carline Watson (NPR’s “Executive Producer” of “All Things
Considered”), Ashley Messenger (NPR attorney), Jonathan Hart (NPR attorney), Terri Minatra
(NPR attorney), Gregory A. Lewis (NPR attorney), John Lansing (“CEO of NPR”), Paul Haaga
(former “NPR Board Chairman"), and finally, Christopher Turpin (NPR’s “Vice [P]resident of
News”). Id. at p. 2; see also id. ¶¶ 27, 47, 50, 56, 82, 85–6, 105, 113, 117–18, 126, 131, 146, 149,
151–52, 162–63, 165, 167, 180, 183, 204.
At root, this case arises from an article, published by NPR on its own website on March
23, 2017, entitled: “The Most Expensive Record Never Sold, Discogs, Billy Yeager and the
$18,000 Hoax that Almost Was.” MTD Mem. at p. 2; see also Decl. of David J. Bodney, ECF No.
12-1, ¶ 2; MTD Ex. 1 (copy of the article), ECF 12-2. Flanagan authored the article. See id; see
also Compl. ¶ 47. On March 24, 2017, the article was then discussed as a topic on NPR’s radio-
show, “All Things Considered.” Compl. ¶ 19. Flanagan and Ganz both participated in the
broadcast. See id. ¶ 162.
The article and broadcast covered the intended sale of plaintiff’s copy of a 1989 vinyl
record, "301 Jackson Street." Id. ¶ 11. The record was offered for sale in January 2017 on Discogs,
an online marketplace for music collectors. Id. The transaction was going to set a record as
2
Discogs’s most expensive ever. Id. ¶¶ 11, 45. On March 22, 2017, Discogs sent a press release to
NPR regarding the sale, but the following day, Discogs cancelled the sale because they believed it
was fraudulent. Id. ¶¶ 12, 45, 128. Notwithstanding, plaintiff insists on the validity of the sale,
noting that he has never been charged with any crime; he believes that Discogs was falsely
influenced by NPR. See id. ¶¶ 16, 20, 25.
Plaintiff contends that both the article and the broadcast, which he purports was heard by
millions, contained intentional, malicious, and biased “defamatory accusations and malicious
falsehoods[,]” that were never properly verified. See id. ¶¶ 14, 19, 22, 26, 45–6. He alleges that
he was never “contacted and offered the opportunity to reply and defend himself against the attacks
on his character and reputation.” Id. ¶ 19. NPR contends, to the contrary, that the article and its
contents were well-researched and properly vetted. See MTD Mem. at pp. 1–2.
Plaintiff alleges that he was depicted as a corrupt and dishonest individual with a “hunger
for fame, or infamy[,]” who enjoyed “the chase of pulling the wool over people's eyes” and that
the article claimed that he “repeatedly poured more of his creative energy into being a trickster-
booster than he has as an artist[,]” due to a life "of purposeless obfuscation[.]” See Compl. ¶¶ 23,
27, 167, 182. In response to the article and broadcast, NPR listeners allegedly sent plaintiff
messages that were “extremely offensive, insulting, [and] contemptuous[.]” Id. ¶¶ 24, 45.
Around June 2017, plaintiff contacted Messenger to request removal of the article and
broadcast. He alleges that her response was unsympathetic and contained implicit admissions that
NPR had failed to do its due diligence, and sometime thereafter, the article was removed from the
3
website. See id. ¶¶ 28–31, 49, 178. Both parties agree that plaintiff declined to provide some of
the information sought by Messenger during these exchanges. See id. ¶ 31; MTD Mem. at p. 3.
Plaintiff states that, in addition to the article’s removal, he wanted, and still wants, “a true apology,
a public statement to the audience explaining what NPR had done wrong, a new article and
broadcast telling the truth about his and his wife's work and mission and benefit concerts, and
recompense for damages to his work and health.” Compl. ¶ 33. At the time, NPR offered plaintiff
an opportunity to “write his own story[,]” with the caveat that it reserved the right not to publish
his statement if such publication would create liability for NPR. See id. ¶¶ 39–41; MTD Mem. at
pp. 3–4. According to plaintiff, NPR eventually reposted to the article to its site, and it has since
remained accessible to the public. See Compl. ¶¶ 128, 185.
Plaintiff alleges that all of these actions, namely, “[p]ublishing and broadcasting
accusations of fact that had not been verified and for which there was no evidence[,]” id. ¶ 124,
and defendants’ alleged continued failure to correct their actions and make proper amends,
constitute professional negligence and malpractice, see id. ¶¶ 1, 21, 38, 43, 56–66, 78, 105, 118,
120, 128, 131, 144–7, 154–61, 167–68, 174, 182, 200, 202; see also Pl.’s Opposition (“Opp’n”),
ECF No. 20, ¶¶ 68–70, 73, 91, 97 (also describing plaintiff’s intention to “prove numerous
violations of the journalistic standard of care and the standard of care of supervisors, executives,
directors, and officers of a company/corporation/organization receiving federal funding.”).
He contends that “National Public Radio . . . and members of NPR's programming staff,
corporate/legal teams and board of directors[] are expected, the same as any other professional in
4
the United States of America, to exercise . . . reasonable care in their actions, by taking account of
the potential harm that they might foreseeably cause to other people or property.” Compl. ¶ 60.
He advocates that defendants should be held to a higher standard of care because “as part of the
'public media' system in the USA, [they] not only have a bigger responsibility than other media
outlets in the country to serve the public (by informing, educating, enlightening and enriching the
public and helping inform civil discourse essential to American society), but they also have Duty
of Care (a legal obligation that requires they adhere to a standard of reasonable care while
performing any acts that could foreseeably harm others) to all American citizens” because of
NPR’s receipt of federal funding. See id. ¶¶ 61, 67, 72, 119, 199; Opp’n ¶¶ 55, 97. He further
alleges that the individual defendants are either directly or vicariously liable based on their
knowing failures to follow NPR’s own “Handbook” and “Codes of Rules, Standards and Ethics,”
as well as the standards set forth in the Corporation for Public Broadcasting’s “Mission Statement,”
and other standards espoused by the “American Society of News Editors,” and the “Society of
Professional Journalists, Sigma Delta Chi.” See id. ¶¶ 13, 17, 20, 24, 32, 39, 44, 62–5, 69, 73–6,
78, 90, 102, 113–14, 116–18, 124, 127–29, 131, 133–46, 149, 153–4, 161–66, 169, 180, 188–9,
196–200; Compl. Ex. A (NPR Handbook), ECF No. 1-1; see also Opp’n ¶¶ 16–19, 22, 25–7, 29–
37, 57, 74–88, 92.
As a result of the alleged reputational damage, plaintiff states that he suffers from severe
depression and suicidal ideations, and other emotional and physical distress. See Compl. ¶¶ 7, 29,
52, 45, 54–5, 173, 207–09. He further alleges that he and his wife have suffered economic
5
damages, for example, potential business partners in their charitable endeavors withdrew from
scheduled events, see id. ¶ 37, 45, 173, 183. He demands unspecified compensatory damages and
$500 million in punitive damages. Id. at 57.
On December 14, 2020, defendants filed the pending motion to dismiss, arguing that the
case should be dismissed pursuant to Federal Rule 12(b)(6), on one or more of three total bases,
specifically: (1) res judicata and collateral estoppel; (2) failure to comply with the statute of
limitations, 1 and; (3) failure to state a claim upon which relief may be granted. See MTD Mem. at
pp. 12–20. Plaintiff filed an opposition on January 18, 2021, and on January 25, 2021, Defendants
filed a reply (“Reply”), ECF No. 21, in response to the opposition. Plaintiff filed a motion for
leave to file a surreply, ECF No. 26, with the intended surreply (“Surreply”) contained therein,
ECF No. 26-1, and leave to file the surreply was granted by court order, ECF No. 28, the following
day. Consequently, this matter is now fully briefed for the court’s consideration. 2
ii. Other Lawsuits
a. The “Kansas Case”
1
Because the court will dismiss all claims on the other two noted bases, it need not reach
the parties’ arguments regarding the statute of limitations.
2
Plaintiff has also filed a consent motion for leave to file a “note” with the court, ECF No.
29-1. That motion, filed on February 16, 2021, does not seek specific relief, but instead was
intended as a notification that plaintiff was, at the time, going to be living temporarily and
intermittently between both Florida and his address of record in Cottonwood, Kansas. See id. at
p. 1. He further indicated that, while in Florida, he would have limitations with email access, but
that this arrangement would “in no way affect his handling of the case[.]” Id. The court has taken
notice and reviewed this filing, and to the extent that plaintiff sought leave to file the “note,” the
motion will be granted.
6
Plaintiff has filed other lawsuits against NPR, among other defendants, regarding
the same circumstances raised in the instant lawsuit. He filed the first suit, Yeager v. NPR,
et al., No. 5:18-cv-4019 (hereinafter, the “Kansas Case”), on March 6, 2018, in the United
States District Court of the District of Kansas. See generally Compl., ECF No. 1. In the
Kansas Case, plaintiff sued NPR, Flanagan, Ganz, and Messenger. Id. at p. 1. Defendants
filed a motion to dismiss, ECF Nos. 13–14, and upon review, the court issued a
memorandum opinion finding that the complaint would be dismissed for failure to state a
claim unless plaintiff filed a suitable amended complaint, correcting several noted
deficiencies. See id. at First Memorandum Opinion (“First KS Mem. Op.”), ECF No. 29,
at pp. 14–29.
Yeager then filed an amended complaint, predicated on the same set of facts. See
id. at Amended Complaint (“KS Am. Compl.”), ECF No. 36, at pp. 4–51. In the amended
complaint, plaintiff raised alleged claims for defamation, “false-light/invasion of privacy,”
and “outrage.” See id. at pp. 2–3, 7, 9, 46 51–63, 74, 77–81, 116–17, 131–32, 139, 176,
186–92, 205, 208–17. The amended complaint also included the “tort of negligence.” See id.
at pp. 104–05, 128–9, 139–86. For example, he alleged that Messenger was negligent for
refusing to agree to remove the article from the website, or to make other suitable amends for
the alleged defamation. See id. at pp. 15–16, 21–2, 27, 30–5, 43, 46, 52, 60, 74, 119, 139–86.
While plaintiff did not formally sue specific individuals, he discussed the alleged liability of
“NPR's 12 board of directors, managers, general managers, editorial managers, Jonathan Hart
7
(the other lawyer for NPR), Mark Memmott (NPR's supervising senior editor for Standards &
Practices), Christopher Turpin[,] and at least a dozen more people,” as well as “C.E.O. Jarl
Mohn[,]”and other “superiors,” contending that they were all “responsible for increasing [his]
pain and suffering[,]” in some combination of direct negligence and/or supervisory liability. See
id. at pp. 15, 39, 46, 59, 174, 197 202–03, 214, 216.
Upon review, the District of Kansas found that Yeager's claims failed because NPR's
statements were: (1) not made with actual malice; (2) based on the speaker's subjective
opinion; (3) not defamatory, and; (4) were so vague as to be subject to multiple
interpretations. Yeager v. Nat'l Public Radio, 2018 WL 5884596, at *3–*9 (D. Kan. Nov.
9, 2016) (citing First KS Mem. Op. at pp. 17–26). The court also found that the offending
statements were protected by the First Amendment and that plaintiff was a limited-purpose
public figure due to the newsworthiness of the Discogs incident. See id. at *3, *6, id. n.2
(citing First KS Mem. Op. at p. 15), *7. Further, none of the allegations attributed to
Messenger were found to be actionable. See id. at *9 (citing First KS Mem. Op. at pp. 27–8).
Consequently, defendants’ motion was granted, and the matter was dismissed with
prejudice pursuant to Federal Rule 12(b)(6). Id. at *10; see also First KS Mem. Op. at pp.
7, 29.
Plaintiff then appealed this determination to the United States Court of Appeals for
the Tenth Circuit, see Yeager v. NPR, et al., No. 18-3252, and he also filed a motion for
reconsideration with the trial court, see Kansas Case, at Mot. (Dec. 8, 2018), ECF No. 15.
8
The trial court denied the motion for reconsideration, see id. at Ord. (Jan. 9, 2019), ECF No. 57,
and the Tenth Circuit affirmed the trial court’s dismissal, 3 773 Fed. Appx. 1030 (10th Cir.
2019), finding that the appellate “briefs offer[ed] little more than generalized assertions of error,
together with attacks on the appellees and their counsel[,]” id. at 1032. On December 16, 2019,
the Supreme Court denied plaintiff’s petition for writ of certiorari, 140 S. Ct. 665 (2019).
b. The “Arkansas Case”
Plaintiff filed another lawsuit against NPR and a local Arkansas radio station, see
Yeager v. KUAF 91.3 NPR Pub. Radio, No. 5:20-cv-5054-TLB (W.D. Ark.) (hereinafter, the
"Arkansas Case"), on March 23, 2020, in the United States District Court of the Western
District of Arkansas, see generally Compl. (“Ark. Compl.”), ECF No. 2, and that court
screened the complaint, see 28 U.S.C. § 1915(e)(2)(B)(ii), dismissing it for failure to state a claim,
see 2020 WL 2449348, at *3–*6 (W.D. Ark. May 12, 2020).
3
To any extent that plaintiff suggests that he may seek review or re-litigate issues that the
Tenth Circuit found that he had failed to preserve for appellate review, see Opp’n ¶¶ 41–2, there
is no basis for jurisdiction to do so in this court. See 28 U.S.C. §§ 1331, 1332 (general
jurisdictional provisions); Panko v. Rodak, 606 F. 2d 168, 171 n.6 (7th Cir. 1979) (“[I]t seems
axiomatic that a lower court may not order the judges or officers of a higher court to take an
action.”), cert. denied, 444 U.S. 1081 (1980); United States v. Choi, 818 F. Supp. 2d 79, 85 (D.D.C.
2011) (stating that federal district courts “generally lack[] appellate jurisdiction over other judicial
bodies, and cannot exercise appellate mandamus over other courts”) (citing Lewis v. Green, 629
F. Supp. 546, 553 (D.D.C. 1986)); Fleming v. United States, 847 F. Supp. 170, 172 (D.D.C. 1994)
(finding same) (applying District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 482
(1983), and Rooker v. Fidelity Trust Co., 263 U.S. 413, 415, 416 (1923)), aff’d, 1994 WL 474995(D.C. Cir. 1994), cert. denied, 513 U.S. 1150 (1995).
9
More specifically, the court found that the District of Kansas had “already decided Mr.
Yeager’s defamation claim” and that it was thus barred by res judicata and collateral estoppel.
See id. at *4–*5. Consequently, the defamation claim was dismissed with prejudice. Id. at *6.
The court found some hesitation in precluding the false light claims by res judicata, because under
Arkansas law, defamation and false light are treated separately, and in the Kansas Case (and
under Kansas law), the claims were analyzed jointly. See id. at *5 n.5. The court nonetheless
dismissed the false light claims without prejudice because plaintiff had not pleaded facts that
could plausibly show that defendants acted with actual malice. See id. at *5. Finally, the court
dismissed with prejudice the newly raised professional negligence claims because Arkansas law
does not recognize a separate cause of action or heightened standard of care for journalists, and
plaintiff had not otherwise established a duty of care attributable to defendants for ordinary
negligence. See id. at *5–*6.
Plaintiff appealed this determination to the United States Court of Appeals for the
Eighth Circuit, which issued its mandate on March 3, 2021, summarily affirming the
judgment of the trial court. See No. 20-2198, at Mandate (8th Cir. Mar. 3, 2021); see also
Arkansas Case at USCA Judgment, ECF No. 17. Plaintiff also filed a motion for reconsideration
with the trial court, see Arkansas Case at Mot. (“AK Mot. Recon.”) (June 10, 2020), ECF Nos.
10–11, which was denied on October 13, 2020, see id. at Ord., ECF No. 15.
c. The “Massachusetts Case” and “Wisconsin Case”
10
On March 21, 2020, plaintiff filed a lawsuit in the United States District Court for the
Eastern District of Wisconsin, see Yeager v. WUWM 89.7 Milwaukee NPR Pub. Radio, No. 2:20-
cv-459-PP (E.D. Wis. Mar. 21, 2020) at Compl., ECF No. 1, and on the following day, filed
another lawsuit in the United States District Court for the District of Massachusetts, see Yeager
v. WBUR 90.9 Boston NPR Pub. Radio, No. 3:20-cv-30028- KAR (D. Mass. Mar. 22, 2020) at
Compl., ECF No. 1. The complaints in those matters raise substantially similar issues and claims
against NPR and respective local radio stations. See generally id. Defendants do not appear to
have been served yet in the Massachusetts case, and have only been partially served in the
Wisconsin case, and consequently, defendants have not yet responded, nor has either case yet
progressed to any analysis on the merits.
II. LEGAL STANDARD
In evaluating a motion to dismiss under Federal Rule 12(b)(6), a court must “treat a
complaint's factual allegations as true . . . and must grant a plaintiff ‘the benefit of all inferences
that can be derived from the facts alleged.’ ” Sparrow v. United Air Lines, Inc., 216 F.3d 1111,
1113 (D.C. Cir. 2000) (internal citations omitted) (quoting Schuler v. United States, 617 F.2d 605,
608 (D.C. Cir. 1979)); see also Am. Nat'l Ins. Co. v. FDIC, 642 F.3d 1137, 1139 (D.C. Cir. 2011).
Where an action is brought by a pro se plaintiff, as in the instant matter, a district court has an
obligation “to consider his filings as a whole before dismissing a complaint,” Schnitzler v. United
States, 761 F.3d 33, 38 (D.C. Cir. 2014) (citing Richardson v. United States, 193 F.3d 545, 548
(D.C. Cir. 1999)), and such complaints are held “to less stringent standards than formal pleadings
11
drafted by lawyers.” Haines v. Kerner, 404 U.S. 519, 520–21 (1972). Nevertheless, a court need
not accept inferences drawn by a plaintiff if those inferences are unsupported by facts alleged in
the complaint, nor must the court accept a plaintiff's legal conclusions. Browning v. Clinton, 292
F.3d 235, 242 (D.C. Cir. 2002).
In order to survive a Rule 12(b)(6) motion to dismiss, a complaint must contain sufficient
factual matter, accepted as true, to state a claim to relief that is plausible on its face. Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009); accord Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). In
Iqbal, the Supreme Court reiterated the two principles underlying its decision in Twombly: “First,
the tenet that a court must accept as true all of the allegations contained in a complaint is
inapplicable to legal conclusions.” Id. at 678. “Second, only a complaint that states a plausible
claim for relief survives a motion to dismiss.” Id. at 679.
A claim is facially plausible when the pleaded factual content “allows the court to draw the
reasonable inference that defendant is liable for the misconduct alleged.” Id. at 678. “The
plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer
possibility that a defendant has acted unlawfully.” Id. “Threadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice.” Id. Additionally, when
a plaintiff is proceeding IFP, a court is mandated to dismiss a complaint which fails to state a claim
upon which relief can be granted. See 28 U.S.C. §§ 1915(e)(2)(B)(ii); see also Baker v. Director,
U.S. Parole Comm’n, 916 F.2d 725, 727 (D.C. Cir. 1990) (holding that a sua sponte dismissal is
proper for failure to state a claim pursuant to Fed. R Civ. P. 12(b)(6)).
12
In ruling upon a motion to dismiss for failure to state a claim, a court is limited to
considering the facts alleged in the complaint, any documents attached to or incorporated in the
complaint, matters of which a court may take judicial notice, and matters of public record. See
EEOC v. St. Francis Xavier Parochial Sch., 117 F. 3d 621, 624 (D.C. Cir. 1997); see also Vanover
v. Hantman, 77 F. Supp. 2d 91, 98 (D.D.C. 1999), aff'd, 38 Fed. Appx. 4 (D.C. Cir. 2002)
(“[W]here a document is referred to in the complaint and is central to plaintiff's claim, such a
document attached to the motion papers may be considered without converting the motion to one
for summary judgment.”) (citing Greenberg v. The Life Ins. Co. of Va., 177 F.3d 507, 514 (6th Cir.
1999)).
A defendant may also assert in a Rule 12(b)(6) motion to dismiss that the issues or claims
are barred by res judicata or collateral estoppel. See Stanton v. D.C. Court of Appeals, 127 F.3d
72, 76–77 (D.C. Cir. 1997). And the court may take judicial notice of public records from other
proceedings in deciding whether a complaint asserts a claim or issue barred by res judicata or
collateral estoppel. See Covad Commc'ns Co. v. Bell Atl. Corp., 407 F.3d 1220, 1222 (D.C. Cir.
2005).
III. DISCUSSION
a. Res Judicata
The doctrine of res judicata, or claim preclusion, acts to “conserve judicial resources, avoid
inconsistent results, engender respect for judgments of predictable and certain effect, and to
prevent serial forum-shopping and piecemeal litigation.” Hardison v. Alexander, 655 F.2d 1281,
1288 (D.C. Cir. 1981). As explained by the Supreme Court:
13
[T]he doctrine of res judicata provides that when a final judgment has been
entered on the merits of a case, ‘[i]t is a finality as to the claim or demand
in controversy, concluding parties and those in privity with them, not only
as to every matter which was offered and received to sustain or defeat the
claim or demand, but as to any other admissible matter which might have
been offered for that purpose.’
Nevada v. United States, 463 U.S. 110, 129–30 (1983) (quoting Cromwell v. Sac County, 94 U.S.
351, 352 (1876)).
Where, as here, the rules of decision in prior case were supplied by state law, a federal
court must rely on the preclusion law of the state in which a judgment was issued to determine the
effects of res judicata, including collateral estoppel, of such judgment. See Marrese v. Am. Acad.
of Orthopaedic Surgeons, 470 U.S. 373, 380–82 (1985); Heiser v. Woodruff, 327 U.S. 726, 733
(1946).
Defendants maintain that the decision in the Kansas Case is claim preclusive as to NPR,
Flanagan, Ganz, and Messenger. See MSJ Mem. at pp. 14–16. Under Kansas law, res judicata
bars re-litigation of a subsequent suit where there exists: (1) a judgment on the merits in the earlier
action; (2) identity of the parties or privies 4 in the two suits; (3) identity of the cause of action in
4
While defendants do not raise it, there may be a valid argument that even the “new”
defendants in this suit are in privity with NPR and other previously sued defendants. For instance,
under Kansas law, “a judgment in favor of a principal is conclusive between the plaintiff and an
agent of the principal[]” for purposes of res judicata. Hall v. Doering, 997 F. Supp. 1445, 1462
(D. Kan. 1998) (applying Kansas law); see also Midwest Crane & Rigging, LLC v. Schneider, No.
113725, 2016 WL 1391805, at *7 (Kan. Ct. App. Apr. 8, 2016) (finding that res judicata applies
to subsequent claims against employees because the employer is liable for all acts if they are
committed in the course of their employment, either in the execution of their express authority or
within the confines of their apparent authority); State v. Parson, 15 Kan. App. 2d 374, 808 P.2d
(continued . . . )
14
both suits, and; (4) a full and fair opportunity for plaintiff to litigate the claim in the first suit.
Nwosun v. Gen. Mills Rests., Inc., 124 F.3d 1255, 1257 (10th Cir. 1997); see also Waterview
Resolution Corp. v. Allen, 274 Kan. 1016, 1023 (2002) (citing Regency Park v. City of Topeka,
267 Kan. 465, 478 (1999)). Put simply, "[w]hen the same facts, same parties, and same issues
have previously been litigated before a court of competent jurisdiction, the doctrine of res judicata
prevents a second assertion of the same claim." Steele v. Guardianship and Conservatorship of
Crist, 251 Kan. 712, 720 (1992).
In opposition, plaintiff argues that he has previously raised claims of “defamation, false
light, and tort of outrage[,]” but because this matter is one for negligence, res judicata is
inapplicable. See Opp’n ¶¶ 2–7, 12. He also suggests that his negligence claims may survive
because the District of Kansas “never stated that the alleged conduct of any of the 3 defendants
[Flanagan, Ganz, and Messenger] was not wrongful [under a negligence standard][,]” see Surreply
at p. 2, and that the court’s “ruling that [] plaintiff has failed to state a claim for defamation does
not rule out that there was not [other] wrongful action done,” id. at 2–3.
Importantly, however, claim preclusion “applies not only to claims that were actually
litigated, but also to claims that should have been litigated in the first action but were not.” Zhu v.
444, 447–48 (1991) (“With no hesitation we find the requisite privity existing here insofar as Harp
Well and Pump Services, Inc., and Parson—an employer and its employee—are concerned.”).
Arkansas law also holds that a “principal-agent relationship is sufficient to satisfy the privity
requirement for purposes of res judicata[,]” Winrock Grass Farm Inc., v. Affiliated Real Estate
Appraisers of Arkansas, Inc., 2010 Ark. App. 279 (2010) (citing Jayel Corp. v. Cochran, 366 Ark.
175, 180–82 (2006)), particularly when the newly proposed defendants’ “existence and actions
were known to the plaintiff during the prior litigation[,]” id. (collecting cases).
15
St. Francis Health Center, 413 F. Supp. 2d 1232, 1239 (D. Kan. 2006) (emphasis added) (applying
Kansas law and citing Jackson Trak Group, Inc. v. Mid States Port Auth., 242 Kan. 683, 690 (1988)
(other citations omitted)), aff’d and remanded for the sole purpose of determing sanctions against
plaintiff, 215 Fed. Appx. 717 (10th Cir. Feb. 1, 2007), cert. denied, 555 U.S. 940 (2008). Similarly,
“[i]f a plaintiff fails to present all grounds or theories for relief arising from the single wrong, []he
may not split the cause of action or claim by bringing a subsequent suit that alleges new theories.”
Id. (citing Parsons Mobile Prods., Inc. v. Remmert, 216 Kan. 138, 140 (1975) (other citations
omitted)).
Here, claim preclusion prevents plaintiff from raising negligence claims against NPR,
Flanagan, Ganz, and Messenger. These four defendants were already sued in the Kansas Case,
and “although plaintiff has changed h[is] theories of recovery to some extent, as set out above . . .
plaintiff's theories for relief all arise” from defendants’ alleged publication of the defamatory
article, and the alleged subsequent refusal to permanently remove the article or to otherwise
remedy the situation, all of which plaintiff believes to be contrary to NPR’s internal policies and
other standards of journalism. See id. at 1240; Parsons Mobile Prods., 216 Kan. at 140. And even
assuming arguendo that these negligence claims were “new,” plaintiff provides no reason why
they could not have been raised in the Kansas Case.
Furthermore, plaintiff had a “full and fair opportunity” to litigate these claims against NPR,
Flanagan, Ganz, and Messenger. The claims were fully examined by the District of Kansas, and
plaintiff was provided yet an additional opportunity to amend his claims before they were
16
ultimately dismissed with prejudice on the merits. The District of Kansas then yet again considered
plaintiff’s arguments upon reconsideration before denying relief. Next, the Tenth Circuit
considered the matter on appeal and affirmed the dismissal, and finally, the Supreme Court
denied plaintiff’s petition for writ of certiorari. Because not one, but three, federal courts of
competent jurisdiction have considered these claims, there is simply no “reason to doubt the
quality, extensiveness, or fairness of procedures followed in prior litigation.” Zhu, 413 F. Supp.
2d at 1240 (citing Montana v. United States, 440 U.S. 147, 164 n.11 (1979)).
NPR, Ganz, Flanagan, and Messenger are unquestionably the same parties, and the claims
against them undoubtedly arise from the same nucleus of facts as those in the Kansas Case. See
Stanfield v. Osborne Industries, Inc., 263 Kan. 388, 400–01 (1997), cert. denied, 525 U.S. 831(1998). Regardless of plaintiff’s insistence that “the allegations made . . . in his complaint are
different” than those previously raised, the only specific argument made in support thereof is
that he now alleges negligence instead of defamation, which are “two different areas of law.”
See Opp’n ¶¶ 3–8, 12, 20, 28, 45–8, 51–2, 59–66, 93; see also Surreply at pp. 2–3. But the
facts and allegations from his previous litigation are so nearly identical that they can be virtually
transposed from one case to another. Plaintiff is simply attempting to now repackage them
under a different label, but this is a distinction without a difference.
Because all of the claims were, or alternatively, could have been raised in the Kansas Case
(and yet again, were or could have been raised against NPR in the Arkansas Case), res judicata
17
requires dismissal with prejudice of these claims against NPR, Flanagan, Ganz, and Messenger.
See State v. Martin, 294 Kan. 638, 640–41 (2012).
b. Collateral Estoppel
Collateral estoppel, or issue preclusion, dictates that once a court has decided an issue of
fact or law necessary to its judgment, that decision may preclude re-litigation of that issue in a suit
on a different cause of action. Allen v. McCurry, 449 U.S. 90, 94 (1980); Novak v. World Bank,
703 F.2d 1305, 1309 (D.C. Cir. 1983).
Without a doubt, for the reasons expressed above, collateral estoppel alternatively
precludes suit against NPR, Flanagan, Ganz, and Messenger. Defendants also contend that the
case against the “new” defendants 5 – Jensen, Oreskes, Sweeney, Chapin, Memmott, Watson, Hart,
Minatra, Lewis, Lansing, Haaga, and Turpin – is barred by collateral estoppel. MTD Mem. at pp.
16–18. In support, defendants argue that collateral estoppel “prohibits a party from re-litigating a
factual or legal determination even if it arises in another litigation involving different opposing
parties.” Id. at p. 16 (citing Gill & Duffus Servs., Inc. v. Islam, 675 F.2d 404, 407 (D.C. Cir. 1982)
5
Plaintiff argues that he has never “sued any NPR executive before.” Opp’n ¶¶ 1–2. While
plaintiff may not have formally named an NPR executive in his prior cases, many of these
“executives,” supervisors, and attorneys, and their alleged negligence, were explicitly discussed in
both the Arkansas Case and the Kansas Case, see, e.g., Ark. Compl. ¶¶ 158, 233 (discussing Hart),
172 (discussing Oreskes); KS Am. Compl. ¶¶ 89 (discussing Hart, Memmott, Turpin), 111
(discussing Turpin), 112 (discussing Memmott and Turpin), 113 (discussing Jensen, Memmott,
and Turpin), 116 (discussing Memmott), 121 (discussing Oreskes), 248 (same), 312–13
(discussing Memmott), 329 (same), 333 (discussing Hart, Memmott, and Turpin), 379 (discussing
Hart), and if not explicitly identified by name, referenced by way of job position, title, or team,
see, e.g., Ark. Compl. ¶¶ 1, 10, 14, 17, 19, 23, 25, 28–41, 49, 69, 100–72, 179, 189, 200, 218, 222,
232–235; KS Compl. ¶¶ 68, 89, 112, 333, 385, 397–99, 426.
18
(Issue preclusion “operates not only in favor of the opposing party in the first action, it
encompasses as well persons who had no part in that adjudication.”)); see also Novak, 703 F.2d at
1309 (finding same). While party “mutuality” is not mandatory under the law of this District, the
court must apply the rubrics set forth by the other courts that have adjudged the prior litigation.
See Marrese, 470 U.S. at 380–82; Heiser, 327 U.S. at 733.
According to plaintiff, because he has now sued, for the “first time,” “NPR executives,
directors and members of the corporate and legal teams,” the mutuality requirement is not met, and
collateral estoppel is rendered inapplicable. See Opp’n ¶¶ 4, 15, 93; Surreply at 3.
Turning first to the law in Kansas, “ ‘collateral estoppel, or issue preclusion, [requires]
mutuality; i.e., the issue subject to preclusion must have arisen in a prior case in which both of the
current parties were adequately represented.” Kansas Public Employees Retirement System v.
Reimer & Koger Associates, Inc., 262 Kan. 635, 670 (1997) (quoting Jones v. Bordman, 243 Kan.
444, 460 (1988)); see also Koger Associates, 262 Kan. 635 at 669–74.
However, under Arkansas law, and consistent with a majority of other jurisdictions,
mutuality of parties is not mandatory for application of collateral estoppel. See Riverdale
Development Co., LLC v. Ruffin Bldg. Systems, Inc., 356 Ark. 90, 102 (2004) (“Arkansas has
recognized and approved the defensive application of collateral estoppel, even where there is no
mutuality of parties.”) (citing Fisher v. Jones, 311 Ark. 450 (1993)); Hooten v. Mobley Law Firm,
P.A., 2011 Ark. App. 778 (2011) (finding that the requirement of mutuality has been abandoned
by most jurisdictions for collateral estoppel, especially when it is used defensively and stating that
19
“[u]nlike res judicata, collateral estoppel [under Arkansas law] does not require mutual identities
of parties and a stranger to the first decree may assert it as a defense in a subsequent action.”)
This “non-mutual defensive” collateral estoppel prevents a plaintiff from re-litigating an
issue that has been previously litigated unsuccessfully in another action against a different
defendant. Woodward v. Kelly, No. 5:19-cv-258, 2020 WL 5754009, at *5 (E.D. Ark. Aug. 28,
2020), report and recommendation adopted, 2020 WL 5750892 (E.D. Ark. Sept. 25, 2020) (citing
Bendet v. Sandoz Pharmaceuticals Corp., 308 F.3d 907, 910–11 (8th Cir. 2002)). This type of
collateral estoppel exists to protect “judicial economy by precluding a plaintiff from relitigating
issues by merely ‘switching adversaries.’ ” Id. (citing Parklane Hosiery Co., Inc. v. Shore, 439
U.S. 322, 329 (1979) and Taylor v. Sturgell, 553 U.S. 880, 892 (2008) (holding that issue
preclusion bars successive litigation of an issue of fact or law litigated and resolved in a
determination essential to the prior judgment, even if the issue recurs in the context of a different
claim)); see also Van Curen v. Arkansas Professional Bail Bondsman Licensing Bd., 79 Ark. App.
43 (2002) (holding same). Therefore, any want of mutuality is inconsequential here by application
of Arkansas law.
Having resolved the issue of mutuality, in order to properly assert collateral estoppel, a
party must meet four essential elements: (1) the issue sought to be precluded must be the same as
that involved in the prior litigation; (2) that issue must have been actually litigated; (3) it must have
been determined by a valid and final judgment; and (4) the determination must have been essential
to the judgment. East Texas Motor Freight Lines, Inc. v. Freeman, 289 Ark. 539, 543 (1986). All
20
four elements are met in this case, and plaintiff is barred from filing suit against the “new”
defendants due to issue preclusion.
The Western District of Arkansas found, as a matter of law, that plaintiff could not
plausibly state a claim for professional negligence, and upon determining that issue, dismissed
those claims with prejudice. See Yeager, 2020 WL 2449348 at *6. This determination was
rendered on the merits, because “it is a well-settled rule of law that a dismissal with prejudice is
as conclusive of the rights of the parties as if there were an adverse judgment as to the plaintiff
after a trial.” Sluder v. Steak & Ale of Little Rock, Inc., 368 Ark. 293, 299 (2006) (citing Security
Pac. Hous. Servs., Inc. v. Friddle, 315 Ark. 178,182 (1993)); see also United States v. Maull, 855
F.2d 514, 516 n.3 (8th Cir. 1988) (holding that “it is well-established that a Rule 12(b)(6) dismissal
is a ‘judgment on the merits’ for res judicata purposes unless the plaintiff is granted leave to amend
or the dismissal is reversed on appeal.”) (citing cases); Fed. R. Civ. P. 41(b) (specifying that
“[u]nless the dismissal order states otherwise, a dismissal under this subdivision (b) and any
dismissal not under this rule—except one for lack of jurisdiction, improper venue, or failure to join
a party under Rule 19—operates as an adjudication on the merits.”). And even if the Western
District of Arkansas had dismissed these claims without prejudice, under Arkansas law, when a
plaintiff chooses to appeal, he then waives the right to plead further, and the dismissal is thus
converted to one with prejudice. See Arkhola Sand & Gravel Co. v. Hutchinson, 291 Ark. 570, 574
(1987); Arkansas Dep't of Envtl. Quality v. Brighton Corp., 352 Ark. 396, 411 (2003).
21
Plaintiff raised identical negligence allegations against NPR in the Arkansas Case. In that
case, as here, plaintiff argued that NPR and others failed to exercise reasonable care and committed
“extreme negligence” and “professional negligence.” See Ark. Compl. ¶¶ 1, 19, 38, 41, 49, 100–
68, 200, 232. He alleged that
[t]he members of NPR’s journalistic and programming teams that
participated in the defamatory article and broadcast against the plaintiff
did not live up to the most basic standards any media outlet must hew to.
They acted with recklessness (with "an extreme departure from the
standards of investigation and reporting ordinarily adhered to by
responsible publishers”) and in consequence the plaintiff’s reputation,
work, and benefit concerts were destroyed and the plaintiff was injured . .
. Flanagan and Ganz’s supervisors are liable for negligence and
malpractice (professional negligence) because they failed to ensure the
standards of NPR’s Codes were met.
Id. ¶¶ 125–26. Throughout that complaint, he repeatedly alleged that the “violations that were
committed by NPR . . . did not only happen at the journalistic level; senior editors [] and
supervisors are also responsible.” Id. ¶ 116–18; see also id. ¶¶ 105, 126, 132, 152, 156–57
(alleging same). In support for this alleged breach of duty, plaintiff recurrently cited to the NPR
Handbook and Codes, and the canons of various journalism societies. See id. ¶¶ 10, 14, 17, 23,
33, 39–41, 69, 106–09, 114–16, 119–167, 200. He also raised these same allegations against
Messenger and members of the NPR legal team, arguing that they similarly breached professional
and company standards and were vicariously liable for other NPR employees, see id. ¶¶ 28–39,
128–38, 154, 158, 235, and he again raised the same allegations against NPR officers and board
members, see id. ¶¶ 35–8, 132, 138, 154, 172, 235. He again contended that these attorneys,
supervisors, and executives “failed to live up to their professional standards and committed a
22
breach of duty[,]” id. ¶ 104, by refusing to permanently remove the article and to otherwise atone
for the alleged wrongdoing, see id. ¶¶ 14, 25, 29–41, 130, 136–37, 141, 157, 179, 189, 218, 222,
232–34.
The Western District of Arkansas held that, under Arkansas law, there is no “heightened
duty of professional care for journalists,” and that “most of the out-of-state cases that have
addressed this question similarly reject the existence of a ‘journalistic malpractice’ cause of
action.” Yeager, 2020 WL 2449348 at *6 (collecting and citing cases). The court found that
plaintiff needed to establish a failure to exercise proper care in the performance of a legal duty,
and that, in turn, defendants owed him such a duty, but that, as an issue of law, no such duty
existed, and that it could not unliterally recognize a novel cause of action. See id. at *5–*6.
Plaintiff seeks re-litigation of this precise issue, but just as in Kansas, the law in the District of
Columbia also does not recognize this type of professional negligence claim.
Plaintiff cannot avoid the consequences of the Western District of Arkansas’s ruling by
now raising these same negligence claims here against “different” defendants. He points out that,
in his motion for reconsideration in the Arkansas Case, he retreated from any insistence on a
professional negligence standard, and instead clarified that he was only discussing negligence in
relation to his defamation claim. See Opp’n ¶ 60; see also generally AK Mot. Recon., ECF No.
11. In that motion for reconsideration, plaintiff vaguely postulates that “[w]hether Arkansas
recognizes or not the existence of professional legal duty in the case of journalists, journalists have
[a] duty, and NPR proclaims to take this duty very serious[ly].” AK Mot. Recon. at p. 34.
Regardless, this eleventh-hour differentiation has no bearing on the ultimate determination in the
23
Arkansas Case, particularly because the court denied relief on reconsideration. And the argument
is circular; if plaintiff was not attempting to bring issues and claims relating to an independent
negligence claim, it only bolsters defendants’ argument that plaintiff continues to contrive new
ways to re-litigate the underlying alleged defamation. Thus ultimately, plaintiff cannot
demonstrate that issue preclusion would serve a basic unfairness here, see Yamaha Corp. of
America v. U.S., 961 F.2d 245, 254 (D.C. Cir. 1992), and “given his persistence in seeking . . .
[litigation of several] civil proceedings in [other district courts], coupled with the rulings rendered
in those proceedings . . . invoking the preclusive impact of collateral estoppel in this case is not at
odds” with any principles of fundamental fairness. 6 Lewis v. DEA, 777 F. Supp. 2d 151, 163
(D.D.C. 2011), aff’d, 2012 WL 1155698 (D.C. Cir. Mar. 8, 2012).
As noted by defendants, “[a] losing litigant deserves no rematch after a defeat fairly
suffered.” MTD Mem. at p. 17 (quoting B&B Hardware, Inc. v. Hargis Industries, Inc., 575 U.S.
6Plaintiff also argues that he could not have sued the “new” defendants for negligence in his
prior litigation because, based on his understanding of the Kansas opinion, neither the District of
Kansas nor the Western District of Arkansas could have exercised personal jurisdiction over the
individual defendants. See Opp’n ¶¶ 1, 15, 20, 47. More specifically, he believes that the District
of Kansas found that it had no personal jurisdiction over Messenger, and therefore, he presumes
that all individual defendants must be sued in this District. See id. Plaintiff’s interpretation is
incorrect. The District of Kansas found that it did, in fact, have personal jurisdiction over
Messenger, even though she is domiciled in the District of Columbia. See First KS Mem. Op. at
p. 28 n.8 (also citing cases). As noted, the court instead dismissed the case against Messenger
because plaintiff had failed to state a claim, not for want of jurisdiction. See id. Therefore, the
District of Kansas indicated that it could exercise personal jurisdiction over NPR employees
domiciled in the District of Columbia. See id. Aside from plaintiff’s own personal belief, there
has been no legal finding that he could not sue them in the District of Kansas or the Western
District of Arkansas.
24
138, 147 (2015) (citation omitted)). “Indeed, plaintiffs should not be permitted to forum-shop
because they disliked the outcome of that earlier case.” Administrators of Tulane Educational
Fund v. Ipsen Pharma, S.A.S., 770 F. Supp. 2d 24, 30 (D.D.C. 2011). For all of these reasons, this
suit is issue-precluded as to all defendants and will be dismissed with prejudice.
c. Failure to State a Claim
Even if plaintiff was not precluded by collateral estoppel, he alternatively still fails to state
a claim for negligence against any of the “new” defendants. Preliminarily, in setting forth the
“grounds” of “entitle[ment] to relief” a plaintiff must furnish “more than labels and conclusions”
or “a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555–56.
Pursuant to this standard, and Federal Rule 8(a), plaintiff has failed to specify a duty or alleged
wrongdoing by these defendants.
The allegations against the senior journalists Chapin, Memmott, and Watson do not extend
beyond the implication that their supervisory positions alone should render them somehow
culpable. See Compl. ¶ 146; Compl. Ex. A. The allegations against the officers and board
members fare no better. Plaintiff again alleges that Turpin, as NPR’s Vice President, should be
responsible merely based on his position. See id. ¶ 146. The claims against Lansing and Jensen
are also based on their positions alone, and supports this supposition only by alleging that they
failed to follow NPR’s Handbook and Codes, see id. ¶¶ 105–10, 146, 183, and failed to “rectify
things, and together find a solution without filing a lawsuit[,]” id. ¶ 204; see Opp’n ¶¶ 42–3.
Similarly, plaintiff again bases the allegations against the NPR attorneys – Hart, Minatra, and
25
Lewis – on their alleged failure to follow NPR’s Handbook and Codes, and alleged refusal to
recognize plaintiff’s hardship and to somehow make amends to his satisfaction. See Compl. ¶¶
85, 146, 152, 174, 201. And any claims against them fundamentally fail because, as the District
of Kansas and the Western District of Arkansas found, as a matter of law, that plaintiff failed to
show that the journalists violated any duty to him, sufficient to constitute a claim of either
defamation or false light. Given these conclusions, it would be irreconcilable for this court to then
conclude that the journalists’ superiors owed a duty to plaintiff or were somehow otherwise
obligated to provide him with a remedy.
Finally, the allegations against former NPR former executives – Oreskes, Sweeney, and
Haaga, bear no relevance. See id. ¶¶ 82–6, 146; Opp’n ¶ 54. While plaintiff attempts to bring
attention to other alleged incidents at NPR to show an overall “lack of honesty in NPR’s
leadership[,]” Opp’n ¶ 38, these anecdotes have no applicability to plaintiff’s specific issues,
claims, and alleged injuries. This, in turn, raises a fundamental defect in plaintiff’s ability to bring
suit against these particular defendants.
Significantly, even if plaintiff had pleaded with more specificity, as noted, the claims must
fail because District of Columbia law does not recognize a cause of action for journalistic
professional negligence. Plaintiff has cited to no authority, and the court is aware of none, that has
applied a professional duty of care to a journalist. Similarly, he provides no authority by which
the court may somehow legally enforce NPR’s Handbook or Codes, PBS’s Mission Statement, or
the other standards espoused by various journalism societies. See Robinson v. WMATA, 941 F.
26Supp. 2d 61, 69 (D.D.C. 2013) (requiring discrete legal authority to establish that rules and
guidelines represent a national standard versus an aspirational practice), aff’d, 774 F.3d 33 (D.C.
Cir. 2014). “Aspirational practices do not establish the standard of care which the plaintiff must
prove in support of an allegation of negligence.” Varner v. District of Columbia 891 A.2d 260,
272 (D.C. 2006) (citing Messina v. District of Columbia, 663 A.2d 535, 538 (D.C. 1995)); see
Beckwith v. Interstate Management Co., LLC, 82 F. Supp. 3d 255, 263, id. n.9 (“under D.C. law,”
“best practices” and “aspirational industry standards cannot suffice” as a standard of care) (internal
quotation marks, alterations, and additional citation omitted) (quoting Briggs v. WMATA, 481 F.3d
839, 848 (D.C. Cir. 2007)). The court cannot recognize a non-existent cause of action.
And to establish the elements of an ordinary negligence claim, plaintiff must plausibly
allege that defendants owe him a duty of care, and that they breached that duty, thereby causing
him harm. See, e.g., District of Columbia v. Harris, 770 A.2d 82, 87 (D.C. 2001). He “must
specify a negligent act and ‘characterize the duty whose breach might have resulted in negligence
liability.’ ” District of Columbia v. White, 442 A.2d 159, 162 (D.C. 1982) (quoting Kelton v.
District of Columbia, 413 A.2d 919, 922 (D.C. 1980)). The existence of a legal duty owed by
defendants to plaintiff is an essential element of a negligence claim. Wash. Metro. Area Transit
Auth. v. Ferguson, 977 A.2d 375, 377 (D.C. 2009).
Plaintiff has failed to identify any duty of care owed to him. While he often repeats the
legal elements of a negligence claim, see, e.g., Opp’n ¶¶ 16–17, 45, 65, 71–86, 96, 98, aside from
his unsupported insistence that NPR’s own Handbook and Codes instill some sort of obligation,
27
there is nothing in plaintiff’s briefing to establish an actual legal duty. It is clear that plaintiff
believes that he is entitled to compensation for his suffering, but he does not identify a legal
obligation by which any of these defendants are required to do so, particularly when prior final
court judgments have already been entered in their favor. A description of a legal duty cannot,
“rest on mere ‘conclusory assertions.’ ” Simms v. District of Columbia, 699 F. Supp. 2d 217, 227
(D.D.C. 2010) (quoting White, 442 A.2d at 162). Essentially, plaintiff has not “nudged” his
negligence claim “across the line from conceivable to plausible.” Twombly, 550 U.S. at 570.
It follows then that, without a predicate negligence claim, to the extent that plaintiff sues
the senior NPR journalists and NPR executives for failure to supervise, or NPR attorneys for failure
to rectify, he also fails to state a viable claim. “[A] common law claim of negligent supervision
may be predicated only on common law causes of action or duties otherwise imposed by the
common law . . . [and] [t]o hold otherwise would be to impose liability on employers for failing
to prevent a harm that is not a cognizable injury under the common law.” Tridico v. District of
Columbia, 130 F. Supp. 3d 17, 31 (D.D.C. 2015) (internal quotation marks omitted); see also
Griffin v. Acacia Life Ins. Co., 925 A.2d 564, 576 (D.C. 2007) (holding same). Because plaintiff
has failed to adequately plead a negligence action, he cannot then maintain a claim against the
purported superiors for negligently retaining or supervising. See Islar v. Whole Foods Market
Group, 217 F. Supp. 3d 261, 268 (D.D.C. 2016) (dismissing negligent supervision and retention
claims where plaintiff could not identify a “predicate claim . . . that would permit him to recover
on a negligent supervision or retention theory”).
28
Furthermore, plaintiff fails to identify any legal duty owed to him by NPR’s attorneys.
Notably, opposing counsel is not legally obligated in any way to an adverse party. 7 See Bell v.
United States, 301 F. Supp. 3d 159, 164 (D.D.C. 2018), aff’d, 2018 WL 6720681 (D.C. Cir. Dec.
17, 2018). More specifically, “because ‘there is no common law duty between a plaintiff and
opposing counsel, [there is] no standard of care that could be breached.’ ” Id. (quoting Ginsberg
v. Granados, 963 A.2d 1134, 1141 (D.C. 2009)); Conservative Club of Washington v. Finkelstein,
738 F. Supp. 6, 9 (D.D.C. 1990) (holding that negligence claims “must fail because an attorney
owes no duty to opposing counsel or an adverse party”); Morowitz v. Marvel, 423 A.2d 196, 199
(D.C. 1980) (finding that “a negligence action will not lie . . . against adverse counsel . . . primarily
for the reason that there is an absence of privity . . . between counsel and an opposing party and
for public policy reasons”).
In sum, even if res judicata and collateral estoppel did not preclude suit, plaintiff has failed
to state a claim upon which relief may be granted because (1) District of Columbia law does not
7
Insofar as plaintiff may insinuate legal malpractice committed by NPR’s attorneys, he has
failed to state a claim because “[b]efore an attorney can have a duty to a client, there must be an
attorney-client relationship.” Hinton v. Rudasill, 624 F. Supp. 2d 48, 53 (D.D.C. 2009) (applying
District of Columbia law), aff’d, 384 Fed. Appx. 2 (D.C. Cir. 2010); Smith v. Haden, 872 F. Supp.
1040, 1044, 1053 (D.D.C. 1994) (stating that plaintiff must establish the existence of an attorney-
client relationship in order to sustain a legal malpractice suit under District of Columbia tort law),
aff’d, 69 F.3d 606 (D.C. Cir. 1995). Accordingly, because there was never an attorney-client
relationship between plaintiff and defendants, “he cannot sustain a claim for legal malpractice
under the tort law of the District of Columbia.” Lewis v. United States, 83 F. Supp. 3d 198, 208
(2015) (citing Smith, 872 F. Supp. at 1044), aff’d, 2015 WL 9003971 (D.C. Cir. Oct. 30, 2015).
29
recognize the proposed professional negligence claims, and (2) plaintiff has otherwise failed to
state a claim for negligence under District of Columbia tort law.
IV. CONCLUSION
Ultimately, after receiving unfavorable determinations in his prior litigation, plaintiff is
now attempting to “end-run the requirements for a defamation claim by pleading it as a negligence
claim[,]” which is “not recognize[d] under D.C. law.” Teltschik v. Williams & Jensen, PLLC, 748
F.3d 1285, 1287–88 (D.C. Cir. 2014) (also finding that “no D.C. case holds that a plaintiff may
maintain a negligence action for a defamatory statement” where, as here, “the defamation claim
would be barred.”). Consequently, and for all of the foregoing reasons, the court concludes that
defendants are entitled to dismissal of all claims with prejudice. A separate order accompanies
this memorandum opinion.
DATE: August 10, 2021
_/s/______________________
RUDOLPH CONTRERAS
United States District Judge
30