complaint: (1) defamation and slander of business reputation, (2) tortious interference with business and contractual relationships and (3) violation of D.C.'s Consumer Protection Procedures Act ("CPPA"), D.C. Code § 28-3901 et seq. (1981 & 1986 Supp.). In damages, plaintiff requests $20 million in compensation for its losses, treble damages under the D.C. Code provisions, $5 million in punitive damages, prejudgment interest and attorneys' fees and costs. ICN further demands injunctive relief to prohibit MCI or Frier from continuing the type of conduct described in the complaint.
Presently before the Court is defendant's motion to dismiss Count III of the complaint for failure to state a claim. For the reasons explained below, the Court grants this motion.
Plaintiff ICN alleges in Count III of the complaint that MCI and Frier conspired "to destroy Plaintiff by disparaging the goods, services and business of Plaintiff by perpetrating false and misleading representations of material facts, all in violation of D.C. Code Ann. § 28-3904, as an unfair trade practice." MCI has moved the Court to dismiss Count III on the following grounds: (1) that this Court lacks jurisdiction to hear the claim, (2) that ICN has failed to state a claim for which relief may be granted since the CPPA applies only to consumer-merchant transactions, and (3) plaintiff lacks standing to bring an action under the CPPA.
First, this Court has jurisdiction to hear Count III of the complaint despite the fact that the statute provides for a cause of action to be brought in the Superior Court of the District of Columbia. See D.C. Code § 28-3905(k)(1) (1981). This Court retains diversity jurisdiction over this matter pursuant to 28 U.S.C. § 1332. See Markham v. City of Newport News, 292 F.2d 711, 713-14 (4th Cir. 1961) (substantive right enforceable in state court is also enforceable in federal court where controversy is between citizens of different states and concerns the minimum amount of money). This Court itself has entertained a suit involving unlawful trade practices under the CPPA. See Lawson v. Nationwide Mortgage Corp., 628 F. Supp. 804, 806-07 (D.D.C. 1986) (Gasch, J.).
MCI's second ground for dismissal is the central issue at bar. The CPPA seeks to prohibit a long list of "unlawful trade practices." D.C. Code § 28-3904. One type of practice prohibited is to "disparage the goods, services or business of another by false or misleading representations of material fact." D.C. Code § 28-3904(g). The Act also created the Office of Consumer Protection and established procedures within that office for the adjudication of complaints under the Act. D.C. Code § 28-3905. Persons seeking remedies under the Act may choose to bypass the administrative route and bring a complaint directly in D.C. Superior Court. D.C. Code § 28-3905(k).
Ambiguity appears to arise in that section of the Act which provides remedies alternative to bringing a complaint to the Office of Consumer Protection. Subsections (k)(1) and (2) of section 3905 state:
(k)(1) Any consumer who suffers any damage as a result of the use or employment by any person of a trade practice in violation of a law of the District of Columbia within the jurisdiction of the Office may bring an action in the Superior Court of the District of Columbia to recover or obtain any of the following: