As a threshold matter, Steele's emotional distress claim must be
dismissed because it suffers from the same failings of causation
described in the Court's analysis of her fraud and negligent
misrepresentation claims. Steele's emotional distress claim also fails,
however, because she has not alleged facts that satisfy all the elements
of the tort.
To be "extreme and outrageous" in satisfaction of the first element
under D.C. law, the defendant's conduct must "go beyond all possible
bounds of decency, and to be regarded as atrocious, and utterly
intolerable in a civilized community." Sere, 443 A.2d at 37 (citing
Restatement (Second) of Torts § 46 (1965)). While Steele alleges in
conclusory fashion that Isikoff "acted in an extreme and outrageous
manner" and that his "conduct . . . is utterly outrageous and intolerable
in a civilized society," Am.Compl. ¶¶ 89, 92, she fails to allege
facts that support such a conclusion.
Steele claims that Isikoff intentionally misrepresented himself, that
he broke his promise of confidentiality, and that he "falsely report[ed]
in his articles and television appearances that Ms. Steele had attempted
to sell her story to a tabloid." Id. ¶ 90. While this alleged conduct
may be contrary to journalistic standards and upsetting to sources like
Steele, it does not approach the high "extreme and outrageous" standard
required by D.C. law. See, e.g., Smith v. Union Labor Life Insurance
Co., 620 A.2d 265, 269-270 (D.C. 1993) (holding that dismissing an
employee without following disciplinary procedures is not extreme and
outrageous); Adams v. George W. Cochran & Co., 597 A.2d 28, 35 (D.C.
1991) (firing an employee for refusing to violate the law is not extreme
and outrageous): Waldon v. Covington, 415 A.2d 1070, 1077-1078 (D.C.
1980) (holding that defendant's refusal to give, plaintiff keys to
laboratory, failure to notify plaintiff of departmental meetings, threats
of lawsuits, and deliberate efforts to embarrass plaintiff do not meet
the legal standard for emotional distress).*fn12
Although Steele has deployed the requisite emotional distress buzzwords
in her amended complaint, she has not pled facts supporting the
conclusion that Isikoff's conduct was "extreme and outrageous." Without
such facts, she cannot satisfy the first element of the tort. Because she
is unable to satisfy that element, she has failed to state a claim upon
which relief can be granted, and the claim will therefore be dismissed.
5. Breach of Fiduciary Duty/Duty of Confidence (Count VIII)
Like her contract claims, Steele's breach of fiduciary duty claim
raises general questions about the nature of the relationship between
reporter and source as well as specific questions about the relationship
between Isikoff and Steele.
The Defendants correctly point out that no court in any jurisdiction
has ever recognized the existence of a fiduciary or confidential
relationship between a reporter and his or her source. Moreover, the
Court notes that the mere existence of a contractual relationship is
ordinarily insufficient to give rise to a fiduciary duty. See Church of
Scientology Int'l v. Eli Lilly & Co., 848 F. Supp. 1018, 1028 (D.D.C.
(citing Don King Prode., Inc. v. Douglas, 742 F. Supp. 741, 769
Notwithstanding the absence of any favorable precedent, Steele counters
that the existence of a fiduciary or confidential relationship "is a
fact-intensive question, involving a searching inquiry into the nature of
the relationship, the promises made, the type of services or advice
given, and the legitimate expectation of the parties." Id. (denying
public relations firm's motion for summary judgment "even though no Court
has ever found there to be a fiduciary relationship between a public
relations firm and one of its clients"). On these grounds alone, Steele
asserts that her bare allegation that she "entered into a confidential
and/or fiduciary relationship wherein Isikoff received Ms. Steele's
statements in trust and confidence based both upon his status as a
professional journalist and his explicit agreement not to print Steele's
statements" permits an inference that such a relationship existed.
Am.Compl. ¶ 95.
Although the Court must construe the amended complaint in Steele's
favor, it "need not accept inferences drawn by the plaintiff if such
inferences are not supported by the facts set out in the complaint."
Kowal, 16 F.3d at 1276. Similarly, the Court need not "accept legal
conclusions cast in the form of factual allegations." Id. As the
Scientology court observed. "[t]he existence of a fiduciary relationship
would depend on whether the parties, through the past history of the
relationship and their conduct, had extended the relationship beyond the
limits of the contractual obligations." Church of Scientology Int'l, 848
F. Supp. at 1028.
Even if everything that Steele alleges were true, her relationship with
Isikoff was simply too fleeting and too superficial to give rise to a
fiduciary duty. See Hopper v. Financial Mgmt Sys., No. 96-456, 1997 WL
31101, *5-*6 (D.D.C. Jan 23, 1997) (granting summary judgment where
relationship lacked the "traditional earmarks" of a fiduciary
relationship); O'Hearn v. Bodyonics, Ltd., 22 F. Supp.2d 7, 12 (E.D.N Y
1998) (dismissing breach of fiduciary duty claim as a matter of law). By
her own account, their contact was limited to several short telephone
calls and one face-to-face meeting. This limited interaction stands in
sharp contrast to the relationship alleged in Scientology, which spanned
over two and one half years and entailed the performance of "substantial
services" to the client. See Church of Scientology Int'l, 848 F. Supp. at
1023-24. While the client in Scientology entrusted the public relations
firm with management of its affairs, Steele has not alleged that she
expected Isikoff to advise her or take care of her affairs.
In short, neither of the parties has unearthed any support for the
proposition that a reporter-source relationship entails a fiduciary duty
and a duty of confidentiality. Even ignoring the absence of such
precedent, however, the scope and duration of the relationship between
Steele and Isikoff are too limited to give rise to such duties. Because
those duties have not arisen in this case, Steele's claim based upon them
shall be dismissed.
6. Respondeat Superior, Negligent Hiring and Supervision, and Punitive
Damages (Counts IX, X, and XI)
In the last three counts of her amended complaint, Steele asks the
Court to find the Defendants derivatively liable for the alleged conduct
and resulting harms described in her first eight counts. The Court has
already determined, however, that the conduct alleged in the first eight
counts does not give rise to any primary liability. Without any primary
liability, there can be no derivative liability. Accordingly, each of
Steele's derivative claims will be dismissed.
For the reasons stated above, the Court has determined that Steele has
failed to state a claim for which relief can be granted
as to each of the eleven counts of her amended complaint. Therefore, the
Court shall grant Defendant's motion to dismiss.