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LEWIS v. MCTAVISH

November 2, 1987

Herbert J. Lewis, Plaintiff
v.
John E. McTavish, et al., Defendants



The opinion of the court was delivered by: HOGAN

 THOMAS F. HOGAN United States District Judge.

 Herbert J. Lewis, a GS-12 examiner in the Investment Management Division of the Securities and Exchange Commission, brought this defamation action against John E. McTavish and McTavish's employer, John Nuveen & Co., Inc. Plaintiff seeks damages allegedly caused by a "confidential" letter from defendants to his supervisor complaining of difficulties in dealing with plaintiff on matters relating to the Nuveen open end mutual fund and asking the supervisor to assign another examiner to the account. As a result, plaintiff was replaced on the Nuveen matters and "subjected to other disciplinary action" of an unspecified nature.

 The matter is before the Court on defendants' motion to dismiss for failure to state a claim, Fed. R. Civ. P. 12(b)(6). Because the challenged statements were expressions of opinion entitled to absolute protection under the First Amendment, plaintiff's claims cannot stand as a matter of law. Accordingly, upon consideration of the complaint, the motion to dismiss, the opposition thereto, and defendants' reply, the Court shall grant defendants' motion to dismiss.

 On March 24, 1986, defendants sent to plaintiff's supervisor a one-page letter, marked "confidential," purporting to follow up "our recent telephone conversation concerning the difficulties we have had with the examiner assigned to the Nuveen open end mutual funds." The letter, reproduced in full in the complaint, recounted a 1983 securities registration McTavish conducted with the plaintiff, an experience described as "frustrating." To avoid another such experience, McTavish had the company's outside counsel handle a subsequent securities registration. However, the two lawyers assigned to that case "experienced the same problems," according to the letter.

 The letter criticized the plaintiff on several accounts. Four of those criticisms are alleged to be libelous:

 1) "His primary problem is that he really does not have a substantive understanding of the Investment Company Act."

 2) "The related problem in dealing with Mr. Lewis is his inability to communicate an explanation of the comment . . . ."

 3) "The related problem in dealing with Mr. Lewis is . . . his absolute unwillingness to compromise."

 4) "In dealing with Mr. Lewis, we have not been given the opportunity for meaningful two-way communication and it is a totally frustrating experience. I do not think the problem is his unwillingness to discuss the matter. I think the problem is that he does not understand the comment he is passing on. He simply does not have the knowledge and skill to effectively communicate and engage in the give and take that is essential between the examiner and the registrant in the registration process. This being the case, I respectfully request that Nuveen be assigned another examiner on our open-end mutual funds."

 Plaintiff, initially proceeding pro se but subsequently represented by counsel, filed suit in diversity on March 23, 1987.

 DISCUSSION

 Defendants have moved to dismiss the complaint for failure to state a claim upon which relief can be granted. Defendants make two arguments: first, that the statements are not actionable because they are opinions absolutely protected under the First Amendment's free speech clause; and second, that the letter is not actionable because it is qualifiedly privileged under the First Amendment's right to petition clause. Because the Court concludes that the criticisms of plaintiff were expressions of ...


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