UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
TRITA PARSI and NATIONAL IRANIAN AMERICAN COUNCIL,
Plaintiffs, v. Civil Action No. 08-705 (JDB) SEID HASSAN DAIOLESLAM,1
Defendant.
MEMORANDUM OPINION
This is a defamation case filed by Trita Parsi and the National Iranian American Council
(collectively, "plaintiffs"). Plaintiffs allege that Seid Hassan Daioleslam ("defendant") published
numerous false and defamatory statements that characterize plaintiffs as agents of the Iranian
government. Now before the Court is defendant's motion for summary judgment.2 For the
reasons discussed below, further discovery is needed to develop certain aspects of plaintiffs'
claim. Hence, defendant's summary judgment motion is denied.
BACKGROUND
Dr. Parsi, a resident of Washington, D.C., is the president of the National Iranian
American Council ("NIAC"), a Washington, D.C.-based non-profit group. Compl. ¶¶ 9-10. The
1 Plaintiffs' complaint names "Daioleslam Seid Hassan" as the defendant in this case. Defendant's memorandum in support of his motion clarifies that defendant's proper name is Seid Hassan Daioleslam. 2 Defendant styles his motion as a motion to dismiss, or in the alternative, for summary judgment. Because the Court has considered the materials the parties have appended to their pleadings, "the motion must be treated as one for summary judgment under Rule 56." See Fed. R. Civ. P. 12(d). NIAC portrays itself as "dedicated to promoting Iranian American involvement in American
civic life and relying on the public for financial and human resource support." Id. ¶ 10. Plaintiffs
filed a three-count complaint against defendant, an Arizona resident, on April 25, 2008, seeking
damages and injunctive relief for common law defamation and portrayal in a false light. Id. ¶ 11.
The thrust of plaintiffs' complaint is that defendant "has published false and defamatory
statements indicating that [plaintiffs are] member[s] of a subversive and illegal Iranian lobby
colluding with the Islamic Republic of Iran . . . ." Id. ¶ 13. Plaintiffs highlight a series of
defendant's allegedly defamatory statements in their complaint. See id. ¶¶ 17-18, 36. For
example, plaintiffs take issue with defendant's statement that "NIAC is one of the Iranian
regime's Lobby arms in the US." Id. ¶ 36(B). In another statement, defendant wrote that "Trita
Parsi was the regime's trusted man within the new network." Id. ¶ 17(D). Plaintiffs also append
six articles authored by the defendant, all of which allegedly contain defamatory statements.
Plaintiffs argue that these statements injured their reputations in the community, thereby
hampering NIAC's effectiveness as an advocacy group and damaging its ability to raise funds.
Id. ¶¶ 23, 42-43.
Defendant filed this summary judgment motion on July 8, 2008. He claims that his
statements are protected by the First Amendment because plaintiffs are public figures and
because he did not publish the statements with actual malice. Defendant also argues that the
First Amendment protects his statements because they are reasonably read as expressions of
opinion, not declarations of facts. Finally, he argues that plaintiffs' claim must fail as a matter of
law because the challenged statements are neither false nor defamatory.
-2- STANDARD
Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate
"if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact
and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material
facts are those that "might affect the outcome of the suit under the governing law." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of
demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely
merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or
as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed.
R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some
metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be
accepted as being true unless the opposing party submits his own affidavits or other documentary
evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).
ANALYSIS
Defamation cases that, like this one, involve public figures fall at the intersection of
common law and the First Amendment. The district court, sitting in diversity, must apply the
state common law of defamation to the facts before it. Those laws seek to protect the individual's
interest in his reputation. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1291 (D.C. Cir.
1980) ("From its earliest days, the law of defamation made the individual's interest in his
reputation supreme."). But at the same time, the Court must determine whether otherwise
-3- defamatory speech is protected by the First Amendment. The First Amendment reflects the
"national commitment to the principle that debate on public issues should be uninhibited, robust,
and wide-open . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The Supreme
Court has reconciled these interests by concluding that the First Amendment requires some
"breathing space" when public figures are involved. Id. at 272; see also Gertz v. Robert Welch,
Inc., 418 U.S. 323, 342 (1974) (extending New York Times from public officials to public
figures). To create that space, the Supreme Court has decreed that a public figure can only
prevail in a defamation case upon a showing, by clear and convincing evidence, that an otherwise
defamatory statement was made with "actual malice" -- that is, with "knowledge that it was false
or with reckless disregard of whether it was false or not." Masson v. New York, 501 U.S. 496,
509 (1991).
Here, the Court, sitting in diversity in the District of Columbia, applies the District's
defamation law.
To state a cause of action for defamation, a plaintiff must allege four elements: (1) that the defendant made a false and defamatory statement concerning the plaintiff; (2) that the defendant published the statement without privilege to a third party; (3) that the defendant's fault in publishing the statement amounted to at least negligence; and (4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm.
Blodgett v. University Club, 930 A.2d 210, 222 (D.C. 2007) (quoting Oparaugo v. Watts, 884
A.2d 63, 76 (D.C.2005)). However, defendant argues that plaintiffs are public figures. If the
Court agrees -- and, as discussed below, it does -- then the First Amendment requires a greater
showing of fault than is normally required by the third element listed above. Mere negligence
will not suffice. Instead, plaintiffs must demonstrate that defendant published the statement with
-4- "actual malice." Masson, 501 U.S. at 509; Gertz, 418 U.S. at 342.
I. Public Figure
"Public figures" fall into one of two categories. "General public figures" are household
names and well-known celebrities. See Waldbaum, 627 F.2d at 1294. Neither Dr. Parsi nor the
NIAC has the kind of "general fame or notoriety" to be labeled a general public figure. See id.
The closer question in this case is whether plaintiffs qualify for the second category of "limited
public figures." Defendant, of course, argues that they do. See Memorandum in Support of
Defendant's Motion ("Def. Mem.") at 5-7. And plaintiffs appear to take no issue with the
application of that label to them -- their opposition memorandum makes no effort to rebut
defendant's "public figure" argument. Based on the facts now in the record, the Court agrees that
plaintiffs are limited public figures.
A three-part inquiry guides courts in determining whether a plaintiff is a limited public
figure. The court should first identify a "public controversy." Waldbaum, 627 F.2d at 1297-98.
Next, the court should examine the plaintiffs' role in that controversy. Id. at 1297. Finally, the
court should determine whether the "alleged defamation [was] germane to the plaintiff's
participation in the controversy." Id. at 1298.
Courts must carefully identify the public controversy. "[A] public controversy is a
dispute that in fact has received public attention because its ramifications will be felt by persons
who are not direct participants." Id. at 1296. But a "general concern or interest will not suffice."
Id. at 1297. Nor is newsworthiness alone enough, because courts must ensure that they do not
become "censors of 'what information is relevant to self-government.'" Id. (quoting Gertz, 418
U.S. at 346). Here, however, a public controversy is readily identified. The relationship between
-5- the United States and Iran has been debated at length and for years. Indeed, the controversy was
a significant area of contention between then-Senator Obama and Senator McCain in the 2008
presidential election campaign. The controversy is specific enough that it is not a general
concern, but it is not so specific as to affect only the direct participants. Indeed, the controversy
is similar in scope to those found adequate in other cases. See, e.g., Tavoulareas v. Piro, 817
F.2d 762, 773 (D.C. Cir. 1987) (identifying the relevant public controversy as "whether the
management and structure of the United States' private oil industry was in need of alteration or
reform . . . [based on] the oil shortages of the 1970's"); OAO Alfa Bank v. Ctr. for Public
Integrity, 387 F. Supp. 2d 20, 43 (D.D.C. 2005) (identifying the relevant public controversy as
"[t]he rise of the oligarchs and the decline of the Russian economy into . . . a 'criminal-syndicalist
state'").
Plaintiffs' role in the public controversy can be determined by reference to the NIAC
website, portions of which are attached as exhibits to defendant's brief. NIAC "advances the
interests of the Iranian American Community on civic, cultural and political issues."3 See Def.
Mem. Ex. 1. The website also lists Dr. Parsi's involvement in the controversy. He has authored
a book on the subject of U.S.-Iran relations, as well as articles that have been published in the
Financial Times, Jane's Intelligence Review, and other reputable publications. Id. Ex. 3. He is "a
frequent commentator on US-Iranian relations and Middle Eastern affairs, and has appeared on
BBC World News, PBS NewsHour with Jim Lehrer, CNN, Al Jazeera, C-Span, NPR, ABC, and
MSNBC." Id. Hence, plaintiffs have clearly assumed "special prominence" in this controversy.
3 The "public figure" analysis is not limited to natural persons. See OAO Alfa Bank, 387 F. Supp. 2d at 47-48. Therefore, the actual malice standard may apply to both NIAC and Mr. Parsi.
-6- Waldbaum, 627 F.2d at 1297.
Finally, the alleged defamation was "germane" to plaintiffs' participation in the
controversy. Id. at 1298. The statements complained of concern plaintiffs' relationship with the
government of Iran. See Compl. ¶¶ 17-18. Because the relationship between the United States
and Iran is the relevant public controversy, the statements are germane to plaintiffs' participation
in that controversy.
The Court, then, is satisfied that plaintiffs qualify as limited public figures, thereby
triggering the actual malice standard. In short, defendant's unchallenged assertion that plaintiffs
are public figures is fully supported by the Court's independent inquiry.
II. Actual Malice
Having determined that plaintiffs are limited public figures, the next question is whether
plaintiffs are incapable of proving actual malice -- by clear and convincing evidence -- as a
matter of law. "The standard of actual malice is a daunting one." McFarlane v. Esquire
Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). Plaintiffs must show that "the defendant in fact
entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S.
727, 731 (1968). Purposeful avoidance of truth can constitute actual malice, see Harte-Hanks
Commc'ns v. Connaughton, 491 U.S. 657, 692 (1989), but failure to investigate cannot, see St.
Amant, 390 U.S. at 731. To make matters even more difficult for plaintiffs, the "clear and
convincing evidence" requirement is "significantly more onerous than the usual preponderance of
the evidence standard." Tavoulareas, 817 F.2d at 776. Unsurprisingly, "[f]ew public figures
have been able clearly and convincingly to prove that the scurrilous things said about them were
published by someone with 'serious doubts as to the truth of [the] publication.'" McFarlane v.
-7- Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C. Cir. 1996) (quoting St. Amant, 390 U.S. at
731).
Whether a defendant published a statement with actual malice is normally a question of
fact for the jury. Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988). A defendant
cannot "automatically insure a favorable verdict by testifying that he published with a belief that
the statements were true." St. Amant, 390 U.S. at 732. But if the plaintiff has not made a
showing that a defendant could have published a defamatory statement with actual malice, then
the defendant may prevail as a matter of law. Rees, 852 F.2d at 598.
Defendant argues that he could not have made the challenged statements with actual
malice because of the so-called "wire services defense." Although this circuit has not squarely
recognized this defense, defendant urges the Court to adopt it here and to find that he faithfully
quoted or re-published articles in authoring the allegedly defamatory statements. Def. Mem. at
19-27. Under defendant's proposed defense, if "an allegedly defamatory statement was taken
without substantial change from a reputable news-gathering agency," then the defendant cannot
be held liable for defamation unless he "actually knew that the wire service report was false or
there is something unusual in the wire service report that should have put the publisher on notice
that the report was probably false." Id. at 24.4
Even if the Court were to recognize defendant's proposed "wire services defense," two
problems would defeat its application here. As a legal matter, the second prong of defendant's
test begs the question of whether he acted with actual malice. If defendant did have actual
4 Citing Brown v. Courier Herald Publ'g Co., 700 F. Supp. 534 (S.D. Ga. 1988); Nelson v. Associated Press, Inc., 667 F. Supp. 1468 (S.D. Fla. 1987); Howe v. Detroit Free Press, Inc., 555 N.W.2d 738 (Mich. Ct. App. 1996).
-8- knowledge of falsity, then his proposed wire services defense fails and he has acted with actual
malice. That is because the second prong of defendant's proposed test is basically the same as the
test for actual malice. Compare Def. Mem. at 24 (defendant not liable unless he "actually knew
that the wire service report was false or there is something unusual in the wire service report that
should have put the publisher on notice that the report was probably false"), with Sheridan
Square Press, 91 F.3d at 1508 ("A publisher acts with 'actual malice' if it either knows that what
it is about to publish is false or it publishes the information with 'reckless disregard' for its truth
or falsity.").
Defendant's argument fails as a factual matter as well. Defendant points to ten sources he
cited in one of his allegedly defamatory articles to demonstrate that the sources were quoted
without substantial change. Def. Mem. at 25. But seven of those ten articles are in Arabic,
provided without translation,5 and hence are unhelpful. Without knowing what they say, the
Court cannot determine if "defendant in fact entertained serious doubts as to the truth of his
publication." St. Amant, 390 U.S. at 731. None of the remaining three exhibits -- the
"frequently asked questions" website page from an organization that Dr. Parsi previously directed
(Ex. 13), a paper co-authored by Dr. Parsi entitled "Iran-Americans: The bridge between two
nations" (Ex. 14), and a page from the NIAC website describing the organization's efforts to
involve Iranian-American youths in politics (Ex. 16) -- describe an official relationship between
plaintiffs and the Iranian government. Therefore, if any of the cited articles do report on facts
that would establish an agency relationship between plaintiffs and the Iranian government, then it
5 Defendant's affidavit provides brief descriptions of some of these articles. See Affidavit of Seid Hassan Daioleslam ¶¶ 6-7. But these brief descriptions are not adequate substitutes for verbatim translations of those articles.
-9- must be those articles that defendant has provided in Arabic without translation. Hence, at this
stage the Court cannot conclude that defendant drew from other news sources "without
substantial change" in authoring the offending statements.
Plaintiffs, on the other hand, have pointed out that the record could support a finding of
actual malice. See Plaintiffs' Memorandum in Opposition to Defendant's Motion ("Pls.' Opp.") at
7. For example, in an article entitled "Ayatollah's Lobby in Washington Offering Human Rights
as a Negotiating Item," defendant wrote that when "Ahmadinejad [the president of Iran] held the
Holocaust conference and declared that 'Israel should be wiped off the map,' Trita Parsi and his
cohorts did not only not condemn this anti-Iranian and anti-humanity act, but launched a
campaign . . . to blame the fault on the 'neocon' media . . . ." See id. Ex. A. But, as plaintiffs
point out, Dr. Parsi has frequently criticized the Iranian government's stance on human rights in
general and on the Holocaust in particular. See Affidavit of Trita Parsi ¶ 15. At this stage of the
proceedings, the Court cannot determine the source of, much less resolve, this discrepancy.6 A
failure to investigate adequately could not alone amount to actual malice, see St. Amant, 390
U.S. at 731, but purposeful avoidance of the truth could, see Harte-Hanks, 491 U.S. at 692.
Discovery is needed, then, to determine what defendant knew at the time he made the contested
statements.7
6 The Court offers no opinion on whether defendant in fact mischaracterized plaintiffs' stance on human rights, and instead finds only that based on the current record, defendant may have mischaracterized plaintiffs' stance. Of course, if discovery reveals that defendant's characterization was accurate, then this statement is not actionable. 7 The parties should bear in mind that the Court's resolution of this motion does not mean that a trial is necessary to determine whether defendant published his statements with actual malice. Discovery may provide a clear answer. Each party will have an opportunity to file a summary judgment motion, based on a complete record, explaining why the actual malice
-10- III. False and Defamatory Statement
A. False Statements
"[T]ruth is a complete defense to defamation." Moldea v. New York Times Co., 15 F.3d
1137, 1142 (D.C. Cir. 1994). A statement that is not completely error-free can still be "true" for
purposes of defamation law. See Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1296
(D.C. Cir. 1988) (holding that a "substantially true" statement does not give rise to a defamation
action); see also Restatement (Second) of Torts § 581A, comment f (1977) ("It is not necessary to
establish the literal truth of the precise statement made. Slight inaccuracies of expression are
immaterial provided that the defamatory charge is true in substance."). The D.C. Circuit has
employed a rough test to determine whether a defendant's defense of truth will dispatch a
plaintiff's defamation suit: is the "sting of the charge" "substantially true"? See Dow Jones &
Co., 838 F.2d at 1296; Moldea, 15 F.3d at 1150. If so, then a defamation suit must fail.
Here, defendant argues that his allegedly defamatory statements are indeed substantially
true. He claims that plaintiffs are "lobbyists" under the plain meaning of the term. Def. Mem. at
9-10. Defendant also argues that plaintiffs' goals align with the Iranian government's goals, and
that some Iranian government-owned publications and Iranian officials have suggested support of
plaintiffs. Id. at 10-12. Finally, defendant points out that Dr. Parsi previously was the president
of an organization known as Iranians for International Cooperation ("IIC"), which "identified
itself as 'an Iranian lobby' and indicated that its 'main objective [was] to safeguard Iran and Iran's
interests.'" Id. at 12 (brackets and emphasis in original) (quoting Def. Mem. Ex. 13).
But defendant parses his statements too finely. The "sting of the charge" is not, as
standard is (or is not) satisfied by clear and convincing evidence.
-11- defendant would have it, that plaintiffs are lobbyists. Nor does the assertion that plaintiffs' goals
align with the Iranian government's goals carry real bite. Truthful or not, those statements do not
form the core of plaintiffs' defamation claim. Rather, the sting of the charge is that plaintiffs are
agents of the Iranian government. Plaintiffs take issue with statements like: "Officially founded
in 2002, NIAC is one of the Iranian regime's Lobby arms in the US." Compl. ¶ 36(B). In another
article, defendant wrote: "Trita Parsi was the regime's trusted man within the new network." Id. ¶
17(D).
To be sure, defendant points to Dr. Parsi's tenure as president of the IIC as proof that he
was, in fact, the head of a self-described "Iranian lobby." But examination of the IIC website, see
Def. Mem. Ex. 13, reveals that the "Iranian lobby" label is not as straightforward as defendant
would have it. The Court has reviewed Exhibit 13 -- the sole page from the IIC website that is
now part of the record in this case -- and cannot find a single mention of support by the Iranian
government. Unless "a trial court can find as a matter of law that a challenged publication is
substantially true . . . it is the jury's province to determine whether the publication was
sufficiently false so as to have defamed the plaintiff." Moldea, 15 F.3d at 1150. Based on the
record now before the Court, reasonable jurors could differ in their conclusions as to whether
defendant's statements were substantially true. Hence, defendant's defense of truth, at this stage
of the proceedings, must fail.
B. Defamatory Statements
Defendant also contends that his statements were not defamatory. See Def. Mem. at 13-
15. Courts must determine whether a statement is "capable of conveying a defamatory meaning"
as a matter of law. S. Air Transp. v. Am. Broad. Cos., Inc., 877 F.2d 1010, 1013-14 (D.C. Cir.
-12- 1989). For this inquiry, the Court, sitting in diversity, applies the District's defamation law. "'It
is only when the court can say that the publication is not reasonably capable of any defamatory
meaning and cannot be reasonably understood in any defamatory sense that it can rule as a matter
of law, that it was not libelous.'" White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.
Cir. 1990) (quoting Levy v. Am. Mutual Ins. Co., 196 A.2d 475, 476 (D.C. 1964)). A statement
can be understood in a defamatory sense if it "tends to lower plaintiff in the estimation of a
substantial, respectable group, though they are a minority of the total community or plaintiff's
associates." Afro-American Publ'g Co. v. Jaffe, 366 F.2d 649, 664 n.10 (D.C. Cir. 1966).
The Court concludes that defendant's statements are capable of conveying a defamatory
meaning. Plaintiffs point out that the Iranian-American community "overwhelmingly
disapproves of the government of the Islamic Republic of Iran." Parsi Aff. ¶ 8; see also id. ¶¶ 9-
14 (describing how defendant's statements have allegedly damaged plaintiffs' reputation). If,
based on defendant's statements, the Iranian-American community believes that plaintiffs are
employed by the Iranian government, then defendant's statements may have "lower[ed]
plaintiff[s] in the estimation of a substantial, respectable group." See Afro-American Publ'g Co.,
366 F.2d at 664 n.10. Hence, the Court cannot find that defendant's statements are incapable of
conveying a defamatory meaning as a matter of law.
IV. Fact-Opinion Distinction
Defendant also characterizes his statements as opinions, not facts. See Def. Mem. at 15-
19. The First Amendment protects statements of opinions -- "[h]owever pernicious an opinion
may seem, we depend for its correction not on the conscience of judges and juries but on the
competition of other ideas." Gertz, 418 U.S. at 340. To assist courts in distinguishing between
-13- facts and opinions, this circuit has set out a four-factor test: (1) the common usage or meaning of
the specific language used in the statement; (2) the statement's verifiability; (3) the full context of
the statement; and (4) the broader context in which the statement appears. See Ollman v. Evans,
750 F.2d 970, 979 (D.C. Cir. 1984).
The thrust of plaintiffs' claim addresses statements of fact, not statements of opinion.
Defendant insists that certain words in his challenged statements suggest the opposite conclusion.
Words like "unwary" and "smokescreen," defendant maintains, demonstrate that he was
expressing his point of view and nothing else. But the full context of the challenged statements,
not isolated words, determines whether statements are ones of fact or opinion. See id. And, as
discussed above, the "sting of the charge" is that plaintiffs are agents of the Iranian government.
This is a statement of fact. It can be verified -- plaintiffs either are or are not agents of the
Iranian government. See id. Moreover, defendant's statements are not intangible or imprecise
words with widely divergent definitions. See id. at 980-81 (explaining that political terms like
"fascist" lack a "correct" definition and that terms like "sloppy and irresponsible" are too
imprecise to support a defamation action). Take, for example, defendant's statement that "Trita
Parsi was the regime's trusted man within the new network." Compl. ¶ 17(D). Even shorn of
adjectives, the statement contains a statement of fact: that Dr. Parsi is an agent of the Iranian
government. Therefore, again based on the current record, the Court rejects defendant's
argument that his challenged statements are opinions, not facts, warranting dismissal of plaintiffs'
defamation action.
V. Paragraph 18(C) of Complaint
Finally, defendant requests that the Court strike paragraph 18(C) from the complaint.
-14- Paragraph 18 lists a number of allegedly defamatory statements made by defendant, including the
following statement set out at paragraph 18(C) (brackets in original):
Obviously, the Swiss ambassador [Parsi] did not intend to put at risk such a historical event by turning to Bob Ney's group. He was surely instructed by his Iranian contacts to do so.
Defendant made that statement in an article entitled "Iran's 2003 Grand Bargain Offer: Secrets,
Lies, and Manipulation." See Compl. Ex. 2. But, as defendant points out, his article never
referred to Dr. Parsi as the Swiss ambassador, but instead clearly identifies Tom Guldimann as
the Swiss ambassador. See Def. Mem. at 28-29. To be sure, plaintiffs may have accidentally
misplaced the bracketed portion or made some other typographical error. Yet plaintiffs are silent
on defendant's request that the Court strike paragraph 18(C). Because, as written, paragraph
18(C) misconstrues defendant's actual statement, the Court will strike paragraph 18(C) from the
complaint.
CONCLUSION
For these reasons, defendant's summary judgment motion is denied. A separate order has
been issued today.
SO ORDERED.
/s/ JOHN D. BATES United States District Judge
Dated: February 4, 2009
-15-