UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JILL SCHWARTZ,
Plaintiff/Counter-Defendant,
v. Civil Action No. 1:19-cv-00340 (CJN)
ALEXANDRA THOMAS SCHWARTZ,
Defendant/Counter-Plaintiff.
ORDER
A jury found Counter-Defendant Jill Schwartz liable for defaming her former colleague,
Alexandra Thomas Schwartz (“Thomas”). The matter is now before the Court on Schwartz’s
Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial (“Counter-Def.’s
Mot.”), ECF No. 118. For the reasons that follow, the Court denies the Motion.
“The legal standard for granting a renewed motion for judgment as a matter of law is the
same under Rule 50(b) as it is for a motion before entry of the verdict under Rule 50(a).” Rice v.
D.C., 818 F. Supp. 2d 47, 54 (D.D.C. 2011). Such relief is appropriate when “a party has been
fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). A
new trial is warranted “when a manifest error of law or fact is presented.” In re Lorazepam &
Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006). This “demanding standard
reflects the principle that Rule 59 is not a vehicle for relitigating old issues, presenting the case
under new theories, or securing a rehearing on the merits.” Morris v. Pruitt, 308 F. Supp. 3d 153,
159 (D.D.C. 2018) (cleaned up).
1 Schwartz makes four arguments in support of her Motion. First, she argues that the Court
erred in declining to instruct the jury on the common interest privilege to defamation. See Counter-
Def.’s Mot. at 3–6. But the Court previously held that Schwartz forfeited the privilege—which is
an affirmative defense to defamation—by failing to assert it in her original Answer. See Minute
Order, June 5, 2022. 1 And under the law-of-the-case doctrine, “the same issue presented a second
time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (en banc). Courts should depart from this principle only when
there are “extraordinary circumstances,” such as when the prior decision is “clearly erroneous and
would work a manifest injustice.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (quotations omitted). Schwartz has not shown that the Court’s prior ruling was clearly
erroneous—true, Schwartz raised the privilege in response to Thomas’s Amended Counterclaim,
but that doesn’t excuse her from having failed to assert the defense when she filed her original
Answer.
Second, Schwartz contends that the Court erred in allowing Thomas to offer “self-diagnosis
testimony” about damages. See Counter-Def.’s Mot. at 6–8. Schwartz argues that expert
testimony is required on the damages question because Thomas, if injured at all, was injured at
two distinct points in time—first, around September 2018 when Thomas learned about one of the
defamatory emails; and later, around August 2020 when Thomas learned of three more defamatory
emails. According to Schwartz, expert testimony is therefore needed to prove a causal connection
between the emails and the injury—Thomas cannot, says Schwartz, rely on an exception that
1 The Court also held that the privilege is inapplicable because Schwartz and Thomas were competitors at the time Schwartz made the relevant statements. See Minute Order, June 5, 2022 (citing Restatement (Second) of Torts § 594 cmt. g (1977)). 2 allows lay testimony to establish causation for injuries that occur shortly after the tortious act. See
Lightfoot v. Rosskopf, 377 F. Supp. 2d 31, 33 (D.D.C. 2005).
But Thomas did not testify about—and the jury did not award damages for—any injuries
resulting from her learning of the three emails in August 2020. See 6/3/22 Trial Tr. 4:13–5:20 2;
see also Verdict Form, ECF No. 117. Indeed, the Court excluded such testimony. See 6/3/22 Trial
Tr. 5:8–10. Thomas’s testimony instead centered on the harm that she suffered upon learning
about the September 11, 2018 email, which is the email that she discovered shortly after it was
published. See 6/2/22 Trial Tr. 204:16–205:21; see also Lightfoot, 377 F. Supp. 2d at 33
(explaining that lay testimony is permitted “when the injury develops within a reasonable time
after the accident”).
Third, Schwartz argues that the defamatory statements added to Thomas’s Amended
Counterclaim in May 2022—which are based on the three emails that Thomas discovered in
August 2020 during discovery—should have been excluded from trial under the District of
Columbia’s one-year statute of limitations for defamation claims. See Counter-Def.’s Mot. at 9;
see also Lin v. Ministry of State Sec., 254 F. Supp. 2d 61, 68 (D.D.C. 2003) (“In the District of
Columbia, the statute of limitations for defamation claims is one year from the date of first
publication.”). But even when the statute of limitations period has expired, “Federal Rule of Civil
Procedure 15(c) allows allegations in an amended complaint to relate back to the date of the
original complaint if the claims or defenses asserted in the amended pleading ‘arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.’”
Philogene v. D.C., 864 F. Supp. 2d 127, 133 (D.D.C. 2012) (quoting Fed. R. Civ. P. 15(c)(1)(B)).
In determining whether a claim relates back, “[t]he underlying question is whether the original
2 Rough Draft Trial Transcript 3 complaint adequately notified the defendants of the basis for liability the plaintiffs would later
advance in the amended complaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir.
2008).
Thomas’s original Counterclaim provided such notice. In it, Thomas alleged that Schwartz
made a series of defamatory statements between August 2018 and October 2018. And in her
Amended Counterclaim, Thomas added more particularity to this allegation by identifying several
of the specific statements (beyond the one previously included in the original Counterclaim). In
other words, the specific allegations in Thomas’s Amended Counterclaim fall within the language
of her original Counterclaim and amplify its general allegations—they do not raise a new theory
of liability or otherwise exceed the scope of what Thomas had already pleaded. See Morton Grove
Pharmaceuticals, Inc. v. Nat’l Pediculosis Ass’n, Inc., 525 F. Supp.
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA
JILL SCHWARTZ,
Plaintiff/Counter-Defendant,
v. Civil Action No. 1:19-cv-00340 (CJN)
ALEXANDRA THOMAS SCHWARTZ,
Defendant/Counter-Plaintiff.
ORDER
A jury found Counter-Defendant Jill Schwartz liable for defaming her former colleague,
Alexandra Thomas Schwartz (“Thomas”). The matter is now before the Court on Schwartz’s
Motion for Judgment as a Matter of Law or, in the Alternative, for a New Trial (“Counter-Def.’s
Mot.”), ECF No. 118. For the reasons that follow, the Court denies the Motion.
“The legal standard for granting a renewed motion for judgment as a matter of law is the
same under Rule 50(b) as it is for a motion before entry of the verdict under Rule 50(a).” Rice v.
D.C., 818 F. Supp. 2d 47, 54 (D.D.C. 2011). Such relief is appropriate when “a party has been
fully heard on an issue during a jury trial and the court finds that a reasonable jury would not have
a legally sufficient evidentiary basis to find for the party on that issue.” Fed. R. Civ. P. 50(a). A
new trial is warranted “when a manifest error of law or fact is presented.” In re Lorazepam &
Clorazepate Antitrust Litig., 467 F. Supp. 2d 74, 87 (D.D.C. 2006). This “demanding standard
reflects the principle that Rule 59 is not a vehicle for relitigating old issues, presenting the case
under new theories, or securing a rehearing on the merits.” Morris v. Pruitt, 308 F. Supp. 3d 153,
159 (D.D.C. 2018) (cleaned up).
1 Schwartz makes four arguments in support of her Motion. First, she argues that the Court
erred in declining to instruct the jury on the common interest privilege to defamation. See Counter-
Def.’s Mot. at 3–6. But the Court previously held that Schwartz forfeited the privilege—which is
an affirmative defense to defamation—by failing to assert it in her original Answer. See Minute
Order, June 5, 2022. 1 And under the law-of-the-case doctrine, “the same issue presented a second
time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87
F.3d 1389, 1393 (D.C. Cir. 1996) (en banc). Courts should depart from this principle only when
there are “extraordinary circumstances,” such as when the prior decision is “clearly erroneous and
would work a manifest injustice.” Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817
(1988) (quotations omitted). Schwartz has not shown that the Court’s prior ruling was clearly
erroneous—true, Schwartz raised the privilege in response to Thomas’s Amended Counterclaim,
but that doesn’t excuse her from having failed to assert the defense when she filed her original
Answer.
Second, Schwartz contends that the Court erred in allowing Thomas to offer “self-diagnosis
testimony” about damages. See Counter-Def.’s Mot. at 6–8. Schwartz argues that expert
testimony is required on the damages question because Thomas, if injured at all, was injured at
two distinct points in time—first, around September 2018 when Thomas learned about one of the
defamatory emails; and later, around August 2020 when Thomas learned of three more defamatory
emails. According to Schwartz, expert testimony is therefore needed to prove a causal connection
between the emails and the injury—Thomas cannot, says Schwartz, rely on an exception that
1 The Court also held that the privilege is inapplicable because Schwartz and Thomas were competitors at the time Schwartz made the relevant statements. See Minute Order, June 5, 2022 (citing Restatement (Second) of Torts § 594 cmt. g (1977)). 2 allows lay testimony to establish causation for injuries that occur shortly after the tortious act. See
Lightfoot v. Rosskopf, 377 F. Supp. 2d 31, 33 (D.D.C. 2005).
But Thomas did not testify about—and the jury did not award damages for—any injuries
resulting from her learning of the three emails in August 2020. See 6/3/22 Trial Tr. 4:13–5:20 2;
see also Verdict Form, ECF No. 117. Indeed, the Court excluded such testimony. See 6/3/22 Trial
Tr. 5:8–10. Thomas’s testimony instead centered on the harm that she suffered upon learning
about the September 11, 2018 email, which is the email that she discovered shortly after it was
published. See 6/2/22 Trial Tr. 204:16–205:21; see also Lightfoot, 377 F. Supp. 2d at 33
(explaining that lay testimony is permitted “when the injury develops within a reasonable time
after the accident”).
Third, Schwartz argues that the defamatory statements added to Thomas’s Amended
Counterclaim in May 2022—which are based on the three emails that Thomas discovered in
August 2020 during discovery—should have been excluded from trial under the District of
Columbia’s one-year statute of limitations for defamation claims. See Counter-Def.’s Mot. at 9;
see also Lin v. Ministry of State Sec., 254 F. Supp. 2d 61, 68 (D.D.C. 2003) (“In the District of
Columbia, the statute of limitations for defamation claims is one year from the date of first
publication.”). But even when the statute of limitations period has expired, “Federal Rule of Civil
Procedure 15(c) allows allegations in an amended complaint to relate back to the date of the
original complaint if the claims or defenses asserted in the amended pleading ‘arose out of the
conduct, transaction, or occurrence set out—or attempted to be set out—in the original pleading.’”
Philogene v. D.C., 864 F. Supp. 2d 127, 133 (D.D.C. 2012) (quoting Fed. R. Civ. P. 15(c)(1)(B)).
In determining whether a claim relates back, “[t]he underlying question is whether the original
2 Rough Draft Trial Transcript 3 complaint adequately notified the defendants of the basis for liability the plaintiffs would later
advance in the amended complaint.” Meijer, Inc. v. Biovail Corp., 533 F.3d 857, 866 (D.C. Cir.
2008).
Thomas’s original Counterclaim provided such notice. In it, Thomas alleged that Schwartz
made a series of defamatory statements between August 2018 and October 2018. And in her
Amended Counterclaim, Thomas added more particularity to this allegation by identifying several
of the specific statements (beyond the one previously included in the original Counterclaim). In
other words, the specific allegations in Thomas’s Amended Counterclaim fall within the language
of her original Counterclaim and amplify its general allegations—they do not raise a new theory
of liability or otherwise exceed the scope of what Thomas had already pleaded. See Morton Grove
Pharmaceuticals, Inc. v. Nat’l Pediculosis Ass’n, Inc., 525 F. Supp. 2d 1039, 1047 (N.D. Ill. 2007)
(“The criterion of relation back is whether the original complaint gave the defendant enough notice
of the nature and scope of the plaintiff’s claim that he shouldn’t have been surprised by the
amplification of the allegations of the original complaint in the amended one.” (quotations
omitted)). Schwartz was therefore on notice of “the basis for liability [that Thomas] would later
advance in the amended complaint.” Meijer, 533 F.3d at 866. Accordingly, the new claims relate
back to the date of the original Counterclaim and are not time-barred by the statute of limitations.
Fourth, Schwartz claims that four of the defamatory statements submitted to the jury were
neither statements of fact nor actionable statements of opinion. See Counter-Def.’s Mot. at 10–
11. Those statements are:
• “Her business model is to steal the JillSchwartz group Listings that I secured.”
• “As you even agreed and said, ‘this is stealing.’”
• “Who does that? Cheat, liars, thieves.”
4 • “[…] that is stealing.”
Id. at 10. For essentially the same reasons the Court gave when it denied Schwartz’s Motion for
Summary Judgment, see Mem. Op. at 12–13, ECF No. 78, the Court concludes that a reasonable
jury could have determined that each of these statements is actionable as defamation, see id. at 12
(“And while statements of opinion regarding matters of public concern cannot be defamatory if
they do not contain or imply a provably false fact, they are actionable if they imply a provably
false fact or rely upon stated facts that are provably false.”).
Accordingly, it is
ORDERED that Counter-Defendant’s Motion for Judgment as a Matter of Law or, in the
Alternative, for a New Trial, ECF No. 118, is DENIED.
DATE: November 21, 2022 CARL J. NICHOLS United States District Judge