under RICO. See Pandick, supra, 632 F. Supp. at 1433.
With regard to the libel claim, defendants argue that Lhu's statement, "I've already made the allegation that Peter Lewis gave away approximately 9000 applications in the 1986 May 23rd filing," is (1) not libelous, (2) factually correct, and (3) privileged. First, within the telecommunications industry, an allegation that plaintiff was a real party in interest behind thousands of sham applications -- a violation of FCC rules -- could tend to expose plaintiff to "'scorn, hatred, contempt or ridicule, thereby discouraging others in the community from having a good opinion of, or from associating or dealing with, that person.'" Lewis v. Elliott, 628 F. Supp. 512, 516 (D.D.C. 1986) (quoting D.C. Jury Instruction 17-1). Second, even if it might be technically correct that Lhu had "already made" the allegation about Lewis, repetition of a defamatory statement is itself a publication that the repeater cannot defend on the ground of truth. See Olinger v. American Savings & Loan Ass'n, 133 U.S. App. D.C. 107, 409 F.2d 142, 144 (D.C. Cir. 1969). Finally, the allegedly libelous statement, although related to an ongoing administrative proceeding, was not made in that administrative proceeding. Rather, the statement was made in an industry publication and is, therefore, not privileged. See Lewis v. Elliott, 628 F.2d at 516-17.
Defendants moved to dismiss the slander cause of action on the same grounds as the libel cause of action. See Motion to Dismiss First Amended Complaint (filed May 27, 1988) at 27-28. The reasons stated above as grounds for denying defendants' motion on the libel claim apply identically to the motion on the slander claim.
In support of their motion to dismiss the abuse of process claim, defendants contend that (1) plaintiffs have failed to demonstrate proximate cause, (2) the claim is in the wrong forum, and (3) plaintiffs have not alleged "perversion of process." Although defendant Lhu is not himself a party before the FCC in any of the application proceedings at issue, he can nevertheless, under the set of facts alleged by plaintiffs, be considered the proximate cause of an abuse of process by his clients against the FCC. The amended complaint alleges that Lhu solicited prospective FCC licensing protestants, that he sold them forged and fraudulent materials, that, as a result of Lhu's advice, his clients filed these materials with the FCC, that Lhu benefitted as a consequence, that plaintiffs were injured, and that the FCC's processes were perverted in the process. See First Amended Complaint at paras. 12-21. Although this claim might ideally be heard before the FCC, the Commission, as previously described, has declined to investigate plaintiffs' claim. Even if the Commission did investigate, it is unclear that the Commission would have jurisdiction over a third-party such as Lhu or would have the authority to issue relief capable of redressing plaintiffs' alleged injuries. Finally, defendants' assertions that the FCC's process "is being used precisely for its intended purpose -- to determine whether it is in the public interest to grant a [sic] cellular licenses to tentative selectees," Motion to Dismiss First Amended Complaint at 26, must be untrue if plaintiffs' allegations are taken as true, as they must be in a motion under Fed. R. Civ. P. 12(b) (6). Encouraging the submission of forged and fraudulent documents to the FCC is surely a subversion and perversion of the Commission's processes.
As for the claim of interference with business relations, however, defendants' motion to dismiss must be granted. As plaintiffs admit, to recover in the District of Columbia on a claim for interference with business relations, one must show, inter alia, a breach of a contract. See Opposition to Motion to Dismiss at 14; Tuxedo Contractors, Inc. v. Swindell-Dressler Co., 198 U.S. App. D.C. 426, 613 F.2d 1159, 1162 (D.C. Cir. 1979). Although plaintiffs have alleged that defendants attempted to procure breaches of contractual relationships between the plaintiffs and several of their clients, the amended complaint does not allege that any one of these contracts was actually breached. Plaintiffs have failed to state a claim for interference with business relations upon which relief can be granted.
Finally, defendants challenge plaintiffs request for injunctive relief, arguing that the relief sought is vague and overbroad, that an injunction would infringe upon defendants' constitutional right to petition the government, and that plaintiffs have not alleged irreparable harm for which monetary damages will not suffice. First, plaintiffs have alleged a pattern of fraudulent activity in their amended complaint with sufficient precision and clarity to inform the Court and the defendants of the activity they seek to enjoin. Second, an injunction against encouraging the furnishing of false information to a government agency would not infringe upon defendants' constitutional rights. Cf. Clipper Exxpress v. Rocky Mountain Motor Tariff Bureau, Inc., 690 F.2d 1240, 1261 (9th Cir. 1982), cert. denied, 459 U.S. 1227, 75 L. Ed. 2d 468, 103 S. Ct. 1234 (1983) ("There is no first amendment protection for furnishing with predatory intent false information to an administrative or adjudicatory body."). Furthermore, with regard to either of these first two grounds, defendants must wait until an actual injunction, if any, is issued by the Court before making any well-founded arguments that the injunctive relief is overbroad or unconstitutional. Finally, defendants cite only Ashland Oil, Inc. v. Federal Trade Comm'n, 179 U.S. App. D.C. 22, 548 F.2d 977 (D.C. Cir. 1976), in arguing that plaintiffs have failed to allege irreparable injury. In Ashland Oil, however, the Court of Appeals denied injunctive relief because there was no substantial showing that the injury feared would necessarily occur. The injury, although perhaps irreparable, was not imminent. See id. at 979. Here, plaintiffs have alleged a continuing pattern of fraudulent conduct that has caused and, they allege, unless enjoined, will continue to cause irreparable harm to plaintiffs' reputation and business. As alleged in the amended complaint, plaintiffs' claim for injunctive relief is not improper.
Therefore, an Order accompanying this Memorandum will grant defendants' motion to dismiss the first amended complaint as it pertains to the claim for interference with business relations, but will deny the motion as to all other claims.
DATE: September 30, 1988
ORDER -September 30, 1988, Filed
For the reasons stated in the accompanying Memorandum, it is this 30th day of September, 1988, hereby
ORDERED: that defendants' Motion to Dismiss First Amended Complaint should be, and is hereby, GRANTED only as it pertains to plaintiffs' cause of action for interference with business relations and DENIED as to all other causes of action; and it is further
ORDERED: that defendants' Motion to Quash a Notice of Deposition is DENIED as moot; and it is further
ORDERED: that counsel shall attend a status conference in this matter on October 13, 1988, at 9:30 a.m.
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