Appeal from the Superior Court of the District of Columbia (CA-7959-03) (Hon. Stephanie Duncan-Peters, Trial Judge).
The opinion of the court was delivered by: Reid, Associate Judge
Before REID, Associate Judge, and NEBEKER and TERRY,*fn1 Senior Judges.
Appellant Patrick M. Clawson appeals from the judgment of the trial court dismissing his complaint alleging defamation and other torts against appellees. He essentially argues that the trial court erred as a matter of law in dismissing his complaint because the words "informer" and "FBI informer," as used in a newspaper article, were defamatory as a matter of law, or reasonably capable of defamatory meaning. We affirm the judgment of the trial court and hold that the terms "informer" and "FBI informer" are not defamatory as a matter of law; nor are they reasonably capable of a defamatory meaning.
On September 26, 2005, Mr. Clawson, "a broadcaster, investigative reporter and licensed private investigator," filed a lawsuit against the St. Louis Post-Dispatch, LLC, three of its employees, and Pulitzer, Inc., the publisher of the St. Louis Post-Dispatch. Mr. Clawson's complaint contained five counts: (1) libel per se, (2) libel, (3) false light/invasion of privacy, (4) intentional infliction of emotional distress, and (5) disparagement -- injurious falsehood. He sought "compensatory damages in excess of $1,000,000 and punitive damages to be determined at trial."
The lawsuit grew out of Mr. Clawson's September 2002 interview by Karen Branch-Brioso, a reporter for the St. Louis Post-Dispatch who was stationed in the newspaper's Washington, D.C. Bureau. Ms. Branch-Brioso had been focusing on Dr. Steven Jay Hatfill, a "person of interest" in the well-publicized 2001anthrax investigation. The results of Ms. Branch-Brioso's interview with Mr. Clawson appeared in an article in the September 30, 2002 edition of the paper. A copy of the article was attached to the complaint. The first paragraph of the article referred to Dr. Hatfill's "denunciation of the FBI focus on him in the anthrax investigation." The first sentence of the next paragraph described Mr. Clawson as a "1970s-era St. Louis journalist turned private eye turned FBI informer." The next part of the article described the impact of the anthrax investigation on Dr. Hatfill. The last part of the article focused on Mr. Clawson and an incident in which he had tipped the FBI concerning wrongdoing at a private investigative firm for which he worked. Although he was arrested as part of the FBI's investigation of the firm, the grand jury did not indict him, and the article referenced Mr. Clawson's belief that he "deemed [the charges against him] as payback for 'blowing the whistle on corrupt cops.'"
Mr. Clawson alleged that the article "injured [him] and destroyed his reputation as a broadcaster, an investigative reporter, and private investigator," because it contained false and defamatory information. Specifically, he claimed that the reference to him as an "informer" rather than as a "whistle-blower" injured and destroyed his reputation. He maintained that the word "whistle-blower" has a positive connotation because "[w]histle-blowers are courageous law abiding citizens [who] expose corruption, usually corruption arising at their job." In contrast, ["i]nformers are generally feared and disdained," "act . . . in their own self-interest, providing information for compensation or personal reward." He further alleged that "informers are usually criminals who provide information for cash or to obtain favors from Government officials, such as leniency in sentencing." He asserted that after information in the article was picked up and printed in other publications, he "received dozens of calls from journalists covering [Dr.] Hatfill's case demanding to know how long he had been an FBI informer and if he had been informing on Dr. Hatfill." He interpreted these calls as questions about his ability "to assure his sources that the information he receives is kept in confidence and will not be passed on to the government." Such assurances are essential, he said, because of his work with law firms which require confidentiality. He asserted that his "reputation was harmed because many people believed, or asked, if he was informing on [D]r. Hatfill."
On December 8, 2003, the defendants filed a joint motion to dismiss the complaint, citing Super. Ct. Civ. R. 12 (b)(6), and arguing that the word "'informer' in the context used" (1) "is not reasonably capable of a defamatory meaning and would not be understood in a defamatory fashion by persons of ordinary intelligence," (2) "is a protected statement of opinion based on disclosed facts accurately stated"; and (3) "is substantially true as a matter of law." Defendants also submitted a legal memorandum in support of their motion. In addition, they included a forty-one page appendix consisting of various newspaper articles to show that the terms whistleblower and informer "mean the same thing and are used interchangeably." Moreover, they contended, "'informer' may refer to 'law-abiding citizens [who] expose corruption, usually corruption arising at their jobs' and who 'act in the public interest, often against their own self-interest.'"
In opposing the defendants' motion to dismiss, Mr. Clawson filed a memorandum of law defending the sufficiency of his complaint and noting that the District is a notice pleading jurisdiction. He sought to demonstrate how each of the counts in his complaint would survive a motion to dismiss. Defendants' reply reiterated Mr. Clawson's failure to state a claim as a matter of law, even when considered in the light most favorable to him.
On April 21, 2004, the trial court issued a twenty-page order and memorandum treating defendants' motion to dismiss as a motion for summary judgment "[b]ecause the Court considered materials outside of the pleadings, namely the St-Louis Post-Dispatch article in question . . . ." On the same day, the trial court granted defendants' motion. The court's memorandum consisted of an analysis of each count in Mr. Clawson's complaint, supported by case law. Mr. Clawson filed a timely notice of appeal.
Mr. Clawson first contends that the trial court erred in treating the defendants' motion as one for summary judgment without first giving him "a reasonable opportunity to present material evidence." He maintains that had the trial court applied the proper standard, that is the Super. Ct. Civ. R. 12 (b)(6) standard which "requires the trial court to construe the complaint 'in the light most favorable to the plaintiff,'" his complaint would not have been dismissed. In Kitt v. Pathmakers, Inc., 672 A.2d 76, 79 (D.C. 1996), we said: "Before a Rule 12 (b)(6) motion may be [treated as one for summary judgment] . . . , the express language of the Rule requires that 'all parties be given a reasonable opportunity to present material relevant to the [summary judgment] motion before it is decided." Id. at 79 (citing Vincent v. Anderson, 621 A.2d 367, 372-73 (D.C. 1993)) (other citation omitted). Here, the trial court inadvertently overlooked the fact that the St. Louis Post-Dispatch article, which it said was material outside the complaint, actually was attached to the complaint as "Exhibit A." Therefore, there was no need for the trial court to treat defendants' motion as one for summary judgment because the only document it considered, other than the complaint, was the attached newspaper article. Moreover, as presented by Mr. Clawson, the court was faced with a legal issue concerning the word "informer" as used in the context of the newspaper article. Consequently, the trial court's inadvertent mistake is of no moment since Mr. Clawson suffered no prejudice. Whether the trial court considered the legal issue raised by his case in the setting of a defense motion to dismiss, or a defense motion for summary judgment, the outcome would have been the same -- defendants/appellees would be entitled to judgment as a matter of law. To demonstrate that the outcome would have been the same, we next set forth and then apply applicable legal standards and principles.
We review both a Rule 12 (b)(6) motion and a motion for summary judgment de novo. See Klayman v. Segal, 783 A.2d 607, 612 (D.C. 2001) (citing Wallace v. Skadden, Arps, Slate, Meagher & Flom L.L.P., 715 A.2d 873, 877 (D.C. 1998)); Wallace v. Skadden, Arps, Slate, Meagher & Flom L.L.P., 799 A.2d 381, 385 (D.C. 2002). "We dismiss a complaint for failure to state a claim for which relief can be granted only if 'it is beyond doubt that the plaintiff can prove no set of facts in support of [his] claim which would entitle [him] to relief.'" Klayman, supra, 783 A.2d at 612 (citing Wallace, supra, 715 A.2d at 877 (other citations omitted)). "The allegations in the complaint must be taken as true and construed in the light most favorable to the plaintiff and, if these allegations are sufficient, the case must not be dismissed even if the court doubts that the plaintiff will ultimately prevail.'" Id. (citing Atkins v. Indus. Telecomm. Ass'n, Inc., 660 A.2d 885, 887 (D.C. 1995)). To prevail on a summary judgment motion, "the movant  must demonstrate that there is no genuine issue of material fact, and that [the movant] is entitled to ...