UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) JOEY D. GONZALEZ RAMOS, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-01690 (APM) ) ADR VANTAGE, INC., ) ) Defendant. ) _________________________________________ )
ORDER
Before the court is Defendant ADR Vantage, Inc.’s Motion to Dismiss all counts of
Plaintiff Joey Ramos’s Complaint. See Def.’s Mot. to Dismiss, ECF No. 4 [hereinafter Def.’s
Mot.]; Mem. of P&A in Support of Def.’s Mot., ECF No. 4-1 [hereinafter Def.’s Mem.]. For the
following reasons, the court denies Defendant’s Motion in its entirety.
Count I: Defamation
Defendant offers a raft of disjointed arguments for why Plaintiff’s defamation claim must
be dismissed. None are persuasive.
First, Defendant argues that the defamation claim is time-barred under the District of
Columbia’s one-year limitations period. See Def.’s Mem. at 3. But under District of Columbia
law, a defamation claim, as here, which does not involve publication through the media, begins to
accrue when the plaintiff “first saw or became aware of the contents of the [publication].” Maupin
v. Haylock, 931 A.2d 1039, 1043 (D.C. 2007). Here, Plaintiff makes a plausible allegation that he
did not learn of at least some of the alleged false statements contained in Defendant’s report until February 10, 2018, within the one-year limitations period. See Compl., ECF No. 1 [hereinafter
Compl.], ¶ 34.1
Second, Defendant maintains that the report does not contain any defamatory statements.
But that is not correct. “[A] statement is ‘defamatory’ if it tends to injure the plaintiff in his trade,
profession or community standing, or lower him in the estimation of the community.” Jankovic v.
Int’l Crisis Grp., 494 F.3d 1080, 1091 (D.C. Cir. 2007) (quoting Moss v. Stockard, 580 A.2d 1011,
1023 (D.C. 1990)). Here, Plaintiff has identified multiple purportedly false statements that he
claims have injured his professional reputation. See Compl. ¶¶ 33–34, 36.
Third, Defendant insists that the statements in question cannot be defamatory because
“[n]owhere in the report is the plaintiff identified by name.” Def.’s Mem. at 4. The absence of an
express reference to Plaintiff by name is not, however, fatal to his claim. This court recently
observed: “In [a prior case], the D.C. Circuit explained that the first element of defamation—that
the defendant made a false and defamatory statement of and concerning the plaintiff—can be
satisfied without specifically identifying the plaintiff by name. ‘[I]t suffices that the statements at
issue lead the listener to conclude that the speaker is referring to the plaintiff by description.’”
Vasquez v. Whole Foods Mkt., Inc., 302 F. Supp. 3d 36, 64 (D.D.C. 2018) (quoting Croixland
Properties Ltd. Partnership v. Corcoran, 174 F.3d 213, 216 (D.C. Cir. 1999)). In this case, the
alleged defamatory report refers to an “IT Specialist,” “Union President,” and “IT Specialist/Union
President.” Compl. ¶ 30. According to Plaintiff, he was the only IT Specialist at his place of
employment and he was the union president at relevant times. Id. ¶¶ 8, 10. Thus, the alleged
defamatory statements are plausibly “of and concerning” Plaintiff.
1 According to Plaintiff, he did receive redacted versions of the report through two separate FOIA requests more than one year before filing suit. See Compl. ¶¶ 33–34. Thus, it may be that some of the purportedly defamatory statements contained in the report are not actionable. The court cannot, however, draw a firm conclusion at this stage.
2 Fourth, Defendant asserts that, because the report was commissioned to study the
employment environment and make recommendations to agency management, the statements
contained therein were privileged. See Def.’s Mem. at 4–5. Defendant is correct that the
statements at issue might be privileged. See Wallace v. Skadden, Arps, Slate, Meagher & Flom,
715 A.2d 873, 879 (D.C. 1998) (recognizing a privilege “for anything ‘said or written by a master
in giving the character of a servant who has been in his [or her] employment’”) (quoting White v.
Nicholls, 44 U.S. 266, 287 (1845)). But such privilege is qualified, not absolute. See id. It “can
be lost if the publication occurs outside the normal channels, is otherwise excessive, or was made
with malicious intent.” District of Columbia v. Thompson, 570 A.2d 277, 292 (D.C. 1990). Here,
Plaintiff has alleged facts that make plausible the inapplicability of the privilege. The allegation
that Defendant published the report to the union, see Compl. ¶ 39, may constitute “excessive
publication” that defeats the privilege, see Thomas v. Howard, 168 A.2d 908, 910 (D.C. 1961) (“It
was for the trier of fact to determine whether the publication was designedly excessive and whether
the words were motivated by ill-will.”). Also, Plaintiff claims that Defendant should have known
that the sources it relied on in the report were biased against him, see id. ¶ 48, thereby suggesting
possible bad faith. In short, whether the privilege applies will have to await further factual
development. See Armenian Assembly of Am., Inc. v. Cafesjian, 597 F. Supp. 2d 128, 138–39
(D.D.C. 2009) (rejecting application of qualified privilege on motion to dismiss where there were
“disputed questions of fact”).
Finally, Defendant maintains that, because the statements at issue are in the form of an
opinion, they are not actionable. See Def.’s Mem. at 5. Even if Defendant’s characterization of
the statements as opinions was accurate, there “is no wholesale exemption from liability in
defamation for statements of ‘opinion.’ Instead, statements of opinion can be actionable if they
3 imply a provably false fact, or rely upon stated facts that are provably false.” Moldea v. New York
Times Co., 22 F.3d 310, 313 (D.C. Cir. 1994). The defense of a “legitimate expression of opinion
. . . cannot . . . be made on the basis of the complaint, standing alone.” Wallace, 715 A.2d at 878.
For these reasons, Plaintiff’s defamation claim may proceed to discovery.
Count IV: False Light Invasion of Privacy
The court next turns to Plaintiff’s claim for false light invasion of privacy. The torts of
defamation and false light are “often analyzed in the same manner, at least where the plaintiff rests
both his defamation and false light claims on the same allegations.” Zimmerman v. Al Jazeera
Am., LLC, 246 F. Supp. 3d 257, 273 (D.D.C. 2017) (internal quotation marks omitted). Because
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) JOEY D. GONZALEZ RAMOS, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-01690 (APM) ) ADR VANTAGE, INC., ) ) Defendant. ) _________________________________________ )
ORDER
Before the court is Defendant ADR Vantage, Inc.’s Motion to Dismiss all counts of
Plaintiff Joey Ramos’s Complaint. See Def.’s Mot. to Dismiss, ECF No. 4 [hereinafter Def.’s
Mot.]; Mem. of P&A in Support of Def.’s Mot., ECF No. 4-1 [hereinafter Def.’s Mem.]. For the
following reasons, the court denies Defendant’s Motion in its entirety.
Count I: Defamation
Defendant offers a raft of disjointed arguments for why Plaintiff’s defamation claim must
be dismissed. None are persuasive.
First, Defendant argues that the defamation claim is time-barred under the District of
Columbia’s one-year limitations period. See Def.’s Mem. at 3. But under District of Columbia
law, a defamation claim, as here, which does not involve publication through the media, begins to
accrue when the plaintiff “first saw or became aware of the contents of the [publication].” Maupin
v. Haylock, 931 A.2d 1039, 1043 (D.C. 2007). Here, Plaintiff makes a plausible allegation that he
did not learn of at least some of the alleged false statements contained in Defendant’s report until February 10, 2018, within the one-year limitations period. See Compl., ECF No. 1 [hereinafter
Compl.], ¶ 34.1
Second, Defendant maintains that the report does not contain any defamatory statements.
But that is not correct. “[A] statement is ‘defamatory’ if it tends to injure the plaintiff in his trade,
profession or community standing, or lower him in the estimation of the community.” Jankovic v.
Int’l Crisis Grp., 494 F.3d 1080, 1091 (D.C. Cir. 2007) (quoting Moss v. Stockard, 580 A.2d 1011,
1023 (D.C. 1990)). Here, Plaintiff has identified multiple purportedly false statements that he
claims have injured his professional reputation. See Compl. ¶¶ 33–34, 36.
Third, Defendant insists that the statements in question cannot be defamatory because
“[n]owhere in the report is the plaintiff identified by name.” Def.’s Mem. at 4. The absence of an
express reference to Plaintiff by name is not, however, fatal to his claim. This court recently
observed: “In [a prior case], the D.C. Circuit explained that the first element of defamation—that
the defendant made a false and defamatory statement of and concerning the plaintiff—can be
satisfied without specifically identifying the plaintiff by name. ‘[I]t suffices that the statements at
issue lead the listener to conclude that the speaker is referring to the plaintiff by description.’”
Vasquez v. Whole Foods Mkt., Inc., 302 F. Supp. 3d 36, 64 (D.D.C. 2018) (quoting Croixland
Properties Ltd. Partnership v. Corcoran, 174 F.3d 213, 216 (D.C. Cir. 1999)). In this case, the
alleged defamatory report refers to an “IT Specialist,” “Union President,” and “IT Specialist/Union
President.” Compl. ¶ 30. According to Plaintiff, he was the only IT Specialist at his place of
employment and he was the union president at relevant times. Id. ¶¶ 8, 10. Thus, the alleged
defamatory statements are plausibly “of and concerning” Plaintiff.
1 According to Plaintiff, he did receive redacted versions of the report through two separate FOIA requests more than one year before filing suit. See Compl. ¶¶ 33–34. Thus, it may be that some of the purportedly defamatory statements contained in the report are not actionable. The court cannot, however, draw a firm conclusion at this stage.
2 Fourth, Defendant asserts that, because the report was commissioned to study the
employment environment and make recommendations to agency management, the statements
contained therein were privileged. See Def.’s Mem. at 4–5. Defendant is correct that the
statements at issue might be privileged. See Wallace v. Skadden, Arps, Slate, Meagher & Flom,
715 A.2d 873, 879 (D.C. 1998) (recognizing a privilege “for anything ‘said or written by a master
in giving the character of a servant who has been in his [or her] employment’”) (quoting White v.
Nicholls, 44 U.S. 266, 287 (1845)). But such privilege is qualified, not absolute. See id. It “can
be lost if the publication occurs outside the normal channels, is otherwise excessive, or was made
with malicious intent.” District of Columbia v. Thompson, 570 A.2d 277, 292 (D.C. 1990). Here,
Plaintiff has alleged facts that make plausible the inapplicability of the privilege. The allegation
that Defendant published the report to the union, see Compl. ¶ 39, may constitute “excessive
publication” that defeats the privilege, see Thomas v. Howard, 168 A.2d 908, 910 (D.C. 1961) (“It
was for the trier of fact to determine whether the publication was designedly excessive and whether
the words were motivated by ill-will.”). Also, Plaintiff claims that Defendant should have known
that the sources it relied on in the report were biased against him, see id. ¶ 48, thereby suggesting
possible bad faith. In short, whether the privilege applies will have to await further factual
development. See Armenian Assembly of Am., Inc. v. Cafesjian, 597 F. Supp. 2d 128, 138–39
(D.D.C. 2009) (rejecting application of qualified privilege on motion to dismiss where there were
“disputed questions of fact”).
Finally, Defendant maintains that, because the statements at issue are in the form of an
opinion, they are not actionable. See Def.’s Mem. at 5. Even if Defendant’s characterization of
the statements as opinions was accurate, there “is no wholesale exemption from liability in
defamation for statements of ‘opinion.’ Instead, statements of opinion can be actionable if they
3 imply a provably false fact, or rely upon stated facts that are provably false.” Moldea v. New York
Times Co., 22 F.3d 310, 313 (D.C. Cir. 1994). The defense of a “legitimate expression of opinion
. . . cannot . . . be made on the basis of the complaint, standing alone.” Wallace, 715 A.2d at 878.
For these reasons, Plaintiff’s defamation claim may proceed to discovery.
Count IV: False Light Invasion of Privacy
The court next turns to Plaintiff’s claim for false light invasion of privacy. The torts of
defamation and false light are “often analyzed in the same manner, at least where the plaintiff rests
both his defamation and false light claims on the same allegations.” Zimmerman v. Al Jazeera
Am., LLC, 246 F. Supp. 3d 257, 273 (D.D.C. 2017) (internal quotation marks omitted). Because
Defendant’s arguments as to defamation and false light invasion of privacy are one and the same,
see Def.’s Mem. at 7, that claim likewise survives Defendant’s Motion to Dismiss.
Count III: Intentional Infliction of Emotional Distress
Next up is Plaintiff’s claim for intentional infliction of emotional distress. Defendant’s
sole argument is that Plaintiff has not alleged “extreme or outrageous conduct” in connection with
the report’s drafting. Def.s Mem. at 6–7. But the report contains at least one statement that is
arguably libel per se in that it accuses Plaintiff of possible criminal misconduct. See Compl. ¶ 34
(alleging improper access to “data, email and telephones”); see also Def.’s Mem., Exs., ECF No.
4-2, at 47. “[S]tatements that are defamatory per se by their very nature are likely to cause mental
and emotional distress . . . .” Carey v. Piphus, 435 U.S. 247, 262 (1978); cf. Amobi v. D.C. Dep’t
of Corr., 755 F.3d 980, 996 (D.C. Cir. 2014) (holding that incident report “contain[ing] several
glaring omissions, and at least one false statement” could constitute “extreme and outrageous”
conduct). Plaintiff’s claim thus may proceed.
4 Count II: Civil Conspiracy
Finally, as to Plaintiff’s claim of civil conspiracy, Defendant argues that “[t]here [was] no
agreement to perform an unlawful act” and “Plaintiff’s complaint is deficient because it merely
alleges that there was some sort of conspiracy with some unknown person.” Def.’s Mem. at 6.
Defendant’s first contention fails because it is premised on an affidavit. See id. (citing
“Exhibit 4,” which is the Affidavit of Diane Lipsey, see Def.’s Mot., Exs., at 52–53). The court
cannot consider an affidavit on a motion to dismiss without converting it to a motion for summary
judgment. See Fed. R. Civ. P. 12(d).
As to Defendant’s second assertion, to support a claim of civil conspiracy, the complaint
must contain “enough factual matter (taken as true) to suggest that an agreement was made.” Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007). A mere conclusory allegation is not enough.
Id. Courts in this circuit have recognized that “a plaintiff need not allege that an express or formal
agreement was entered into.” United States ex rel. Tran v. Comput. Scis. Corp., 53 F. Supp. 3d
104, 134 (D.D.C. 2014). In fact, “in most civil conspiracy cases,” courts are required to “infer an
agreement from indirect evidence.” Halberstam v. Welch, 705 F.2d 472, 486 (D.C. Cir. 1983). In
this case, the gist of Plaintiff’s claim is that his co-workers took the opportunity to spread lies and
falsehoods about him through Defendant’s workplace report and that Defendant agreed to use the
report for that malicious purpose. See Compl. ¶¶ 16–18, 48. Proof to support that theory seems
unlikely. But viewing the allegations in the light most favorable to Plaintiff, the court finds that
Plaintiff has made out a plausible claim of civil conspiracy. See Twombly, 550 U.S. at 556 (stating
that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of
those facts is improbable”).
5 For the foregoing reasons, Defendant’s Motion to Dismiss is denied.
Dated: December 19, 2018 Amit P. Mehta United States District Judge