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CAUDLE v. THOMASON

April 25, 1996

CHARLES P. CAUDLE, Plaintiff,
v.
HARRY THOMASON, Defendant.



The opinion of the court was delivered by: GREENE

 This case is before the Court on defendant's motion to dismiss. Upon consideration of that motion, plaintiff's opposition, and defendant's reply, the Court concludes that the motion should be granted in part and denied in part.

  I

 This case, alleging defamation, is related to the problems in the White House Travel Office. Plaintiff, Charles Caudle, was the president and Chief Executive Officer of Airlines of the Americas, Inc. ("AOA"), which was subsequently renamed UltrAir, Inc. AOA provided charter service to the White House Press Corps until some time in May of 1993, pursuant to travel arrangements made by the White House Travel Office. From January 1992 to May 1993, AOA provided approximately $ 2.5 million worth of domestic air travel to the White House Press Corps.

 Defendant, Harry Thomason, is a one-third owner of an aviation consulting and charter firm, Thomason, Richland, & Martens, Inc. ("TRM"). In February of 1993, Thomason contacted Dee Dee Myers, the then-White House Press Secretary, and Billy Dale, head of the White House Travel Office, to inquire about the possibility of having TRM provide air charter service for the travel office.

 The complaint filed in this case alleges that Thomason and Darnell Martens, a one-third owner and president of TRM, undertook a "campaign to discredit Mr. Caudle," and thereby win for TRM the White House Travel business from AOA. The complaint is in two counts, one for libel, the other for slander. The libel claim is based on a memorandum that is attached to the amended complaint as an exhibit. The memorandum is marked "CONFIDENTIAL" and is entitled "WHITE HOUSE PRESS CHARTERS." The author of the memorandum is not indicated, but in the complaint, Caudle alleges that the memorandum "was drafted and/or published in whole or in part by Defendant Thomason or at Thomason's behest." The memorandum states that Billy Dale had told Martens that there was no possibility of TRM earning the White House business. The memo notes that "the White House Press Corps has been flown on a virtually exclusive basis by [AOA and its predecessors]." The memo further states that:

 
[AOA] is a Republican-operated charter airline. The company ran into controversy during the [1992] presidential campaign when it Provided press transportation without chargebacks to the press in order to insure good press coverage of Bush campaign appearances.
 
AOA wanted the flights to be considered a contribution but this was denied by the FEC/DOT subsequent to a complaint initiated by David Buxbaum of the Clinton/Gore '92 Committee. The uncompensated flights were discontinued to the satisfaction of the concerned government agencies.

 The memo concluded that the semi-exclusive use of one domestic air charter service "is not illegal. It probably isn't unethical." The memo summarized that "[AOA] attempted to provide free transportation to press covering Bush campaign appearances" and that "[Dale] must have been aware of the above aborted attempt to provide free transportation and took no subsequent action."

 The slander claim is premised on statements allegedly made by Thomason to First Lady Hillary Rodham Clinton, and to various members of the White House Staff and the Clinton Administration, including Catherine Cornelius, Jeffrey Eller, Vincent Foster, William Kennedy III, Mack McLarty, George Stephanopoulos, Dee Dee Myers and David Watkins. In these statements, Thomason allegedly claimed or suggested that Caudle was involved in corrupt practices with the White House Travel Office and that Caudle was paying or providing illegal kickbacks to the White House Travel Office.

 Thomason has moved to dismiss the complaint on several grounds. He argues that the complaint fails to state a claim for libel because: (1) the statements were not "of and concerning" Caudle, (2) Caudle has failed to identify any defamatory statements, (3) Caudle did not allege any actionable republication, and (4) the communications are privileged. As for the slander claim, Thomason contends that it is barred by the statute of limitations. The Court will address each of these in turn.

 II

 The standard to be applied in reviewing a motion to dismiss for failure to state a claim is well established:

 Gregg v. Barrett, 248 U.S. App. D.C. 347, 771 F.2d 539, 547 (D.C. Cir. 1985) (internal citations and punctuation omitted). The Court must limit its review to the pleadings, and the "defendant must show 'beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" In re Swine Flu Immunization Prods. Liability Litigation, 279 U.S. App. D.C. 366, 880 F.2d 1439, 1442 (D.C. Cir. 1989) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1955)).

 A.

 Thomason first argues that the allegedly libelous statements were not "of and concerning" Caudle, because they referred only to AOA. Plaintiff does not dispute that he must show that the remarks were "of and concerning him." He argues that because he was the president and Chief Executive Officer of AOA, any allegations of wrongdoing on the part of AOA implicated him personally.

 Even though the statements do not explicitly refer to Caudle, Caudle may prevail if a listener would reasonably believe that the statements referred to him. See RESTATEMENT (SECOND) TORTS § 564 cmt. b (1976). As this Court ...


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