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MESSINA v. FONTANA

May 8, 2003

DR. KARYN MESSINA, PLAINTIFF,
v.
SUSAN FONTANA, ET AL., DEFENDANTS.



The opinion of the court was delivered by: Rosemary M. Collyer, United States District Judge

MEMORANDUM OPINION

Dr. Karyn Messina, an equal business partner with Susan Fontana in a business venture known as Totally Italian.com, Inc., has sued Ms. Fontana and her attorney, Daniel S. Krakower, as well as Mr. Krakower's law firm, Shulman, Rogers, Gandal, Prody & Ecker, P.A. ("Firm"). Dr. Messina claims that Ms. Fontana and Mr. Krakower have defamed her through a December 27, 2002 email authored by Ms. Fontana and by a letter sent by Mr. Krakower to Dr. Messina. Mr. Krakower is alleged to be an agent of the Firm. The complaint alleges that "[t]he words used in correspondence by the defendants constitute libel per se in that they are designed to imputing [sic] unfitness to perform and/or the lack of integrity in the performance of the duties of the job that she [sic] was designated to perform for the business enterprise." Complaint ¶ 5. Pending before the Court are motions to dismiss and/or for summary judgment filed by Mr. Krakower and the Firm ("Lawyers' Motion") and by Ms. Fontana ("Fontana Motion").*fn1 For the reasons detailed below, the Lawyers' Motion for summary judgment will be granted. The Fontana Motion will be denied. Dr. Messina's Motion to Strike will be denied. The Lawyers Motion for Fees Under Rule 11 will be denied.

Background Facts

Dr. Messina and Ms. Fontana are equal owners of Totally Italian.com, Inc., a Delaware corporation.*fn2 They hold the positions of co-presidents. Certain disputes arose between the owners as to the management of the corporation. Ms. Fontana retained the services of the Firm and Mr. Krakower to advise her. She also contacted Mr. Chaim Kalfon "to resolve the dispute and assist Law Firm." Lawyers' Reply at 2, n. 2; see also Messina Opposition at List of Exhibits (Mr. Kalfon was "Ms. Fontana's proposed mediator for Totally Italian.com, Inc. business matters."). Mr. Krakower wrote to Dr. Messina, identifying some of Ms. Fontana's concerns and suggesting that the parties engage in a process to value the business and let one buy the other out ("Krakower Letter"). Mr. Krakower sent his letter to Dr. Messina by way of Federal Express on December 31, 2002. The complaint alleges that the Krakower Letter accused Dr. Messina of mismanagement of the business and that it constituted slander per se. Complaint ¶¶ 4, 5.*fn3

Ms. Fontana is also alleged to have defamed Dr. Messina.*fn4 The complaint states:

On December 27, 2002, the defendant Fontana sent an email to the defendant Krakower that was published in the District of Columbia and elsewhere which accused the plaintiff of mismanagement of the business and deceptive practices to the detriment of the defendant Fontana. She accused the plaintiff of falsely engaging in practices that were detrimental to the business enterprise. The same was published to the plaintiff, her husband and daughter as well as to others who are [on] her computer lists for receiving documents. The identities of these individuals are known to the defendant Fontana.
Complaint ¶ 3.

Rather than answer Mr. Krakower's letter, Dr. Messina filed this lawsuit seeking ten million dollars in damages.

Legal Standards

Summary judgment is appropriate when the record shows that no genuine issue exists as to any material fact and the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Summary judgment is not a "disfavored legal shortcut[;]" rather, it is a reasoned and careful way to resolve cases fairly and expeditiously. Celotex Corp. v. Catrett, 477 U.S. 317, 327 (1986). In determining whether a genuine issue of material fact exists, the court must view all facts and reasonable inferences in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio, 475 U.S. 574, 587 (1986); Tao v. Freeh, 27 F.3d 635, 638 (D.C. Cir. 1994). Any factual dispute must be capable of affecting the substantive outcome of the case to be "material" and "genuine." See Anderson, 477 U.S. at 247-48; Laningham v. United States Navy, 813 F.2d 1236, 1242-43 (D.C. Cir. 1987).

The Court applies the law of the District of Columbia in analyzing this case because Dr. Messina lives and works in the District of Columbia and alleges that she was injured there. See Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir. 2001) (D.C. uses the governmental interest test in considering choice of law issues for defamation). Under local law, to establish a cause of action for libel, a plaintiff must show: (i) a false and defamatory statement was written by the defendant about the plaintiff; (ii) the defendant published it without privilege to a third party; (iii) the defendant exhibited some fault in publishing the statement; and (iv) the statement is actionable as a matter of law or the publication has caused the plaintiff special harm. Beeton v. District of Columbia, 779 A.2d 918, 923 (D.C. 2001); Klayman v. Segal, 783 A.2d 607, 612 n. 4 (D.C. 2001).

Analysis

A. Specificity of the Complaint

The Firm and Mr. Krakower ("Lawyers") and Ms. Fontana urge the Court to dismiss the complaint for lack of specificity. However, heightened pleading standards do not apply in defamation actions. See Croixland Props. Ltd. P'ship v. Corcoran, 174 F.3d 213, 215 n. 2 (a defamation complaint "must allege the elements of the cause of action; the Federal Rules of Civil Procedure impose no special pleading requirements for defamation as they do for a specified list of other matters. See, e.g., FED. R. CIV. P. 9.") (D.C. Cir. 1999). The Court concludes the complaint in this matter satisfies the requirements of notice pleading as it alleges the elements of a cause of action for libel. It alleged that Mr. Krakower "sent and published . . . a letter" that accused Dr. Messina "of the mismanagement of the business enterprise and of professional misconduct" and was libelous per se. The complaint alleged publication to Dr. Messina, her husband, her daughter and unknown "others." It claimed that the Lawyers knew the statements were false and that the Lawyers published the statements with malice. Similarly, the ...


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