court on remand found for plaintiff on both his statutory and common law claims. It awarded, in addition to compensatory damages, $ 15,000 in punitive damages on the fraudulent misrepresentation claims, based on its conclusion, applying the standard enunciated by the Court of Appeals, that the defendant did not "reasonably believe that its policies were completely lawful and in fact carried the approval of the Board."
The elements of the common-law tort of fraudulent misrepresentation which a plaintiff must prove in order to recover are: (1) a false representation, (2) with respect to a material fact, (3) made with knowledge of its falsity, (4) and with the intent to deceive, (5) with action taken in reliance upon the representation. Nader v. Allegheny Airlines, 167 U.S. App. D.C. 350, 512 F.2d 527, 541 n. 32 (D.C. Cir. 1975), rev'd on other grounds, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978 (1976). A false representation may be either an affirmative misrepresentation or a failure to disclose a material fact when a duty to disclose that fact has arisen.
As noted, plaintiff's first three claims of fraudulent misrepresentation are based on defendant's statement that it could handle his shipment within the dates set and its failure to disclose that it overbooks and that its agents could not determine when the order for service was executed what space would be available. As to these claims, plaintiff has failed to establish the materiality of the misrepresentations. Although these statements and non-disclosures would have been material if defendant had "strung the plaintiff along" until the last minute, see, e.g., Hanke v. Global Van Lines, 533 F.2d 396, 399, 411 (8th Cir. 1976); Nader v. Allegheny Airlines, 445 F. Supp. 168 (D.D.C. 1978), they were not material here, where defendant notified plaintiff more than two weeks before the agreed pickup date and a full three weeks before the delivery date that it would not honor the terms of the order for service. Plaintiff's reliance on Nader is therefore misplaced. Passengers awaiting departure of a scheduled commercial plane have and are entitled to different expectations from a person whose contract for carriage of household goods is broken by the carrier anticipatorily two or three weeks before their anticipated pick-up and delivery. One moving household goods does not, two to three weeks before his move, have the same stake in his "confirmed" reservation as the prospective airline passenger standing at the gate five minutes before his supposed departure, having made his "confirmed" reservation three days earlier. Plaintiff has failed to establish that there are generalized expectations, see Nader v. Allegheny Airlines, 167 U.S. App. D.C. 350, 512 F.2d 527, 542 (D.C. Cir. 1975), rev'd on other grounds, 426 U.S. 290, 48 L. Ed. 2d 643, 96 S. Ct. 1978 (1976), that movers of household goods must give more than two to three weeks notice of inability to honor an order for service. Instead, the Court is persuaded that the defendant's affirmative act in providing plaintiff with more than two weeks notice was sufficient to undo its past misconduct to the limited extent of relieving it from liability for fraud or for punitive damages. Defendant remains fully liable to compensate plaintiff for all of the actual damages he suffered as a result of its breach of the order for service. But more than compensatory damages are not appropriate. Defendant's conduct here, when viewed in its entirety, including the two-week notification, would not permit a reasonable jury to infer "malice or reckless disregard for the rights of others," or to find unreasonable defendant's belief that its practices were lawful. Id. at 551. For these reasons, defendant is entitled to summary judgment on the fraudulent misrepresentation issues and on the claim for punitive damages.
Plaintiff has not vigorously prosecuted his fourth claim of fraudulent misrepresentation. Adequate allegations of reliance on defendant's data are lacking; indeed, any allegations of such reliance would appear to be inconsistent with the first three claims, or at least to undercut them significantly.
With respect to the fifth claim, plaintiff has failed to raise an issue as to the third, fourth, and fifth elements outlined in Nader. Plaintiff has not introduced any evidence tending to demonstrate that the previous defense counsel's representation was made other than in good faith, or that at the time the statement was made counsel knew or suspected that it was not true. In any event, plaintiff's reliance on the representation may not be deemed to have been reasonable, as it is among the most elementary of legal propositions that jurisdictional defects are not waivable.
The same considerations that indicate that punitive damages are inappropriate here persuade the Court that damages for mental anguish or suffering are also inappropriate. Although the cases are not entirely in agreement on the standard to be applied in determining when plaintiffs may recover for mental anguish, the soundest standard is set out in Hanke v. Global Van Lines, Inc., 533 F.2d 396 (8th Cir. 1976), quoting section 46 of the Restatement (Second) of Torts:
One who by extreme and outrageous conduct intentionally or recklessly causes severe emotional distress to another is . . . liable for such emotional distress. . . .