Appeal from the Superior Court of the District of Columbia (CA-6130-00) (Hon. Mary A. Gooden Terrell, Trial Judge).
The opinion of the court was delivered by: Wagner, Associate Judge
Before WASHINGTON, Chief Judge,*fn1 and FARRELL and WAGNER, Associate Judges.*fn2
Appellant, Cletus Oparaugo, appeals from an order of the trial court dismissing his case alleging libel and conspiracy to commit libel against appellees, Victoria Oparaugo, her attorney Lydia Watts and Women Empowered Against Violence, Inc. (WEAVE). We reverse and remand for further proceedings consistent with this opinion.
Appellant, appearing pro se, filed a "Complaint for Libel" against WEAVE, Lydia Watts, an attorney employed by WEAVE at the time relevant to his complaint, and his estranged wife, Victoria Oparaugo. Appellees filed a motion to dismiss the complaint pursuant to Super. Ct. Civ. R. (b)(6) (2000) that included several attachments. Appellant filed an opposition to the motion. Before the motion was ruled upon, the case was reassigned to Judge Mary A. Gooden Terrell. Subsequently, appellant retained counsel and filed an amended complaint on February 13, 2001. The trial court granted the motion to dismiss without opinion. Appellant filed a motion for reconsideration which appellees opposed. The trial court denied the motion for reconsideration, and appellant timely noted the present appeal.
Appellant and appellee, Mrs. Victoria Oparaugo, were married in their native country of Nigeria in 1987, and subsequently moved to the United States. Five children were born of the marriage, one of whom died. The parties separated, and in October 1997, Mrs. Oparaugo was awarded "sole, permanent custody of the parties' minor children" in an action between these parties in the Superior Court's Domestic Relations Branch. According to the custody decree, "[a]s a result of violence committed against [Mrs. Oparaugo], and [Mr. Oparaugo's] failure to return the parties' children to the United States, [Mrs. Oparaugo] sought and obtained a CPO [(civil protection order)] in D.C. Superior Court Case No. IF-2607-96."
In his original complaint, appellant alleged that appellee, Ms. Watts, is a lawyer representing Mrs. Oparaugo in a complaint for absolute divorce, and WEAVE is a corporation which has as its purpose providing legal services to women considered to be victims of domestic violence. He alleged that while he was in Nigeria, Mrs. Oparaugo's relatives ambushed him and that her brother shot him in the head and neck nine times and that a criminal investigation followed. According to appellant's complaint, in order to delay the criminal investigation, Mrs. Oparaugo wrote a document dated April 4, 1998 "To Whom It May Concern" in which she knowingly made false and libelous statements about him. The alleged false statements included "that [appellant] was arrested about five times for possession of drugs." He alleged that Mrs. Oparaugo "caused the document to be published to various officials in Nigeria[,]" and "[i]n February of 2000, the Nigerian Court published the document to [him]."
With respect to appellee Ms. Watts, appellant alleged that she wrote an affidavit asserting that an attached document "is a copy of the criminal arrest record of Cletus Oparaugo as kept by the D.C. Superior Court, Criminal Division." The attached document was designated "SUPERIOR COURT INFORMATION SYSTEM, SUMMARY BY PDID" and set out "a series of cases in the Superior Court listed by case number, purporting to belong to [appellant]." Appellant alleged that this report was in error, and it was corrected by the Clerk's Office by November of 1996, well before Ms. Watts reported it, and that appellee Watts' false report resulted from her gross negligence in publishing it in 1998.
Appellant alleged that Ms. Watts was employed by appellee WEAVE and that her actions on behalf of Mrs. Oparaugo were performed in the course of her work for WEAVE.
Appellees filed a joint motion to dismiss the complaint, and appellant filed an opposition. In support of their motion, appellees argued that: (1) the complaint failed to state a cause of action for defamation because it did not plead the essential elements of publication and falsity; (2) the complaint against Mrs. Oparaugo was barred by the statute of limitations, D.C. Code § 12-301 (4) (2001); (3) Ms. Watts' affidavit was privileged as a fair and accurate report of an official record and there were no grounds upon which appellant could overcome the privilege; and (4) Ms. Watts' affidavit and Mrs. Oparaugo's letter were absolutely privileged as statements relating to judicial proceedings and also privileged as statements made to advance protected interests. In his opposition, appellant challenged appellees' arguments, citing the law of this jurisdiction. However, in the last page of his opposition, appellant asserted that the law of the place of the publication governed the case. Therefore, he contended that the law of the District of Columbia applied to Ms. Watts' first publication in front of a notary public here, while the publication of the defamatory statements to her brother in Nigeria required application of Nigerian law. Appellant did not specify what that law is.
Appellant filed an amended complaint on February 13, 2001 in which he recounted the allegedly defamatory statements made by both Ms. Watts and Mrs. Oparaugo in the first complaint. Further, appellant alleged that Mrs. Oparaugo published her document to "various persons, both private and public, in Nigeria on various dates." He alleged that Ms. Watts published "[her] affidavit and the two attached pages to a notary in the District of Columbia, to whom she gave her oath" and that she "published the document [affidavit] to various persons in Nigeria, including but not limited to Emmanuel Usoh, [Mrs. Oparaugo's brother,] who took charge of publishing the document widely in Nigeria." He further alleged that Mrs. Oparaugo falsely accused him of giving her a "loathsome disease." In addition to alleging libel, appellant alleged conspiracy by appellees to commit libel.
The trial court granted the motion to dismiss the complaint. Appellant filed a motion for reconsideration in which he argued that appellees had made no competent showing of privilege and that the matter was not ripe for either dismissal or summary judgment because appellees failed to provide the law of Nigeria, which applies because it is "the major situs of this incident." Appellant also argued that the statute of limitations defense should not bar his claim because he had a disability, specifically, he had been shot, and had a "long period of recovery." The trial court denied the motion, noting that it had considered all of appellant's arguments and appellees' reply. Appellant noted the present appeal.
Appellant argues that the trial court erred in dismissing the complaint on the pleadings because he alleged all elements required to state a cause of action for defamation. Further, he contends that the trial court did not have before it sufficient facts to determine whether to apply the law of Nigeria or what that law is. Appellees argue that the trial court properly granted their motion to dismiss because appellant failed to plead with specificity the publication element of defamation and falsity of the statement. With respect to the choice of law issue, appellees contend that appellant waived the applicability of Nigerian law. Since the sufficiency of the complaint must be tested against the applicable law, we consider first appellant's claim that the law of Nigeria applies to at least the major portion of his claim.
Appellees argue that appellant waived the application of Nigerian law because he did not raise the issue in his complaint or amended complaint. Appellant responds that he was not required to plead the application of Nigerian law in the complaint or amended complaint to preserve the issue.
The applicable civil rule provides that
[a] party who intends to raise an issue concerning the law of a foreign country shall give notice by pleadings or other reasonable written notice. The Court, in determining foreign law, may consider any relevant material or source, including testimony, whether or not submitted by a party or admissible under Rule 43. The Court's determination shall be treated as a ruling on a question of law. Super. Ct. Civ. R. 44.1 (2004). Thus, the rule does not provide that the assertion of the applicability of foreign law must be made in the complaint or amended complaint. It provides only that such notice must be "by pleadings or other reasonable written notice." Id. The Advisory Committee (the Committee) notes to the comparable federal rule indicate that the issue of foreign law need not be included in the complaint. See Fed. R. Civ. P. 44.1 (2004) (Advisory Committee note to 1966 adoption).*fn3 The Committee notes state, "[t]he [previous] uncertainty under [Fed. R. Civ. P.] 8 (a) (2004)*fn4 about whether foreign law must be pleaded . . . is eliminated by the provision that the notice shall be 'written' and 'reasonable.' It may, but need not be, incorporated in the pleadings." Id. The Committee explains that:
[i]n some situations the pertinence of foreign law is apparent from the outset; accordingly the necessary investigation of that law will have been accomplished by the party at the pleading stage, and the notice can be given conveniently in the pleadings. In other situations the pertinence of foreign law may remain doubtful until the case is further developed. A requirement that notice of foreign law be given only through the medium of the pleadings would tend in the latter instances to force the party to engage in a peculiarly burdensome type of ...