The opinion of the court was delivered by: JOHN BATES, District Judge
Pro se plaintiff Josiah Coates brings this action against the
Law School Admission Council (LSAC) for defamation. Currently
before the Court is defendant's motion to dismiss for failure to
state a claim upon which relief can be granted pursuant to
Federal Rule of Civil Procedure 12(b)(6). For the reasons that
follow, the Court will grant defendant's motion.
The following facts are alleged in plaintiff's complaint.
Plaintiff took the Law School Admissions Test (LSAT) on February
12, 2005 at the American University School of Law in Washington,
D.C. On March 4, 2005 plaintiff received his score and concluded
that his test was incorrectly scored and was "significantly
lower" than the correct score. Compl. at 1. That day, plaintiff
spoke with LSAC representatives three times. Id. During the
third conversation, he was informed that a review of his test
score would not be conducted. Id. In keeping with LSAC policy,
plaintiff's score will remain on file for five years. Id.
Plaintiff is suing for damages equal to the amount that he estimates he will lose in wages due to the
unlikelihood that he will now gain admission to a competitive law
school and subsequently practice law. Compl. at 2.
A motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6) will
not be granted unless "it appears beyond doubt that the plaintiff
can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46
(1957); see also Haynesworth v. Miller, 820 F.2d 1245, 1254
(D.C. Cir. 1987). The Federal Rules of Civil Procedure require
only that a complaint contain "`a short and plain statement of
the claim' that will give the defendant fair notice of what the
plaintiff's claim is and the grounds upon which it rests." Dura
Pharm. Inc. v. Broudo, 125 S. Ct. 1627, 1634 (2005) (quoting
Conley, 355 U.S. at 47); see also Fed.R.Civ.P. 8(a).
"Given the Federal Rules' simplified standard for pleading, `[a]
court may dismiss a complaint only if it is clear that no relief
could be granted under any set of facts that could be proved
consistent with the allegations.'" Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002) (quoting Hishon v. King & Spalding,
467 U.S. 69, 73 (1984)).
Under Rule 12(b)(6), the plaintiff's factual allegations must
be presumed true and should be liberally construed in his or her
favor. Leatherman v. Tarrant Cty. Narcotics and Coordination
Unit, 507 U.S. 163, 164 (1993); Phillips v. Bureau of Prisons,
591 F.2d 966, 968 (D.C. Cir. 1979). The plaintiff must be given
every favorable inference that may be drawn from the allegations
of fact. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Sparrow
v. United Air Lines, Inc., 216 F.3d 1111, 1113 (D.C. Cir. 2000).
Conclusory legal and factual allegations, however, need not be
considered by the court. Domen v. Nat'l Rehab. Hosp.,
925 F. Supp. 830, 837 (D.D.C. 1996) (citing Papasan v. Allain, 478 U.S. 265, 286
Plaintiff alleges that defendant's publication of his
incorrectly-graded LSAT score is defamatory because the score is
a false statement that injures him in the pursuit of his desired
trade.*fn1 Defendant contends that plaintiff fails to state
a claim upon which relief can be granted because an LSAT score is
not capable of having a defamatory meaning and plaintiff presents
no evidence showing that his score was published to a third
party. Further, defendant argues that the motion to dismiss
should be granted as conceded because plaintiff filed his
memorandum in opposition to the motion after the deadline set
forth in Local Civil Rule 7(b).
Local Civil Rule 7(b) states that if a memorandum in opposition
to a motion "is not filed within the prescribed time, the court
may treat the motion as conceded." Local Civ. R. 7(b) (emphasis
added). Because plaintiff is pro se, the 13-day delay was not
exceptionally egregious, and there is no evidence that suggests
the delay was intentional, the Court declines to treat the motion
to dismiss as conceded.
To make a prima facie case for defamation under District of
Columbia law, a plaintiff must allege facts showing:
(1) that the defendant made a false and defamatory
statement concerning the plaintiff; (2) that the
defendant published the statement without privilege
to a third party; (3) that the defendant's fault in
publishing the statement amounted to at least
negligence; and (4) either that the statement is actionable as a matter
of law irrespective of special harm, or that its
publication caused the plaintiff special harm.
Crowley v. N. Am. Telecomm. Ass'n, 691 A.2d 1169
, 1172 n. 2
(D.C. 1997) (internal citations omitted); Marsh v. Hollander,
339 F. Supp. 2d 1, 5 (D.D.C. 2004). Defamation claims must be
pleaded with particularity and specify the "time, place, content,
speaker and listener of the alleged defamatory material."
Wiggins v. Dist. Cablevision, Inc., 853 F. Supp. 484, 494
(D.D.C 1994) (internal citations omitted); see Hoffman v. Hill
and Knowlton, Inc., 777 F. Supp. 1003, 1005 (D.D.C. 1991)
(stating that "the time and place of the publication should be
specifically stated in the complaint").*fn2
The Court concludes that a low LSAT score is not capable of
having a defamatory meaning, and plaintiff therefore fails to
state a claim that fulfills the first element of the prima facie
case for defamation. A statement is defamatory if it "tends to
injure plaintiff in his trade or lower him in the estimation of
the community or subject him to scorn, ridicule, shame, contempt
or embarrassment." Moss v. Stockard, 580 A.2d 1011, 1023 (D.C.
1990) (internal citations omitted); Marsh,
339 F. Supp. 2d at 9. Furthermore, "an allegedly defamatory remark must be more than
unpleasant or offensive; the language must make the plaintiff
appear `odious, infamous or ridiculous.'" Howard Univ. v. Best,
484 A.2d 958, 989 (D.C. 1984) (quoting Johnson v. Johnson Publ'g
Co., 271 A.2d 696, 697 (D.C. 1970)). The low LSAT score at issue
here has none of the foregoing characteristics.
To begin with, plaintiff's low LSAT score does not injure him
in his trade. Plaintiff does not allege that he is currently employed in a trade in which a
low LSAT score would injure him professionally. Instead, he
merely states that, if he remains at his "current job," Compl. at
2, instead of going to law school, he will have a lower salary
for years to come. That may well be, but plaintiff does not
allege that the publication of his score has resulted in the loss
of his current job, a reduction in salary, or inability to obtain
a promotion. See Marsh, 339 F. Supp. 2d at 9 (holding that a
publication was not capable of having a defamatory meaning
because it would "not tend to injure [p]laintiff in his
profession, because it does not accuse plaintiff of any wrongful
act or imply professional incompetence"). Thus, plaintiff has not
adequately alleged that his low LSAT score is defamatory.
Plaintiff also fails to allege facts showing that his LSAT
score has subjected him to scorn, ridicule, shame, contempt or
embarrassment. A low test score may be personally discouraging,
but it is unfortunately a fairly common occurrence. The test is
notoriously difficult. A low score may subject the test-taker to
personal disappointment, but this does not rise to the level of
scorn, ridicule, shame, contempt or embarrassment. Plaintiff has
presented no facts to the contrary he has not alleged that his
score reached an audience that reacted in an adverse manner or
treated him poorly as a result. In sum, a test score standing
alone is not reasonably capable of having a defamatory meaning
and cannot reasonably be understood in any defamatory sense.
See Ruf v. Am. Broad. Co., Inc., 1999 U.S. Dist. LEXIS ...