Appeal from the Superior Court of the District of Columbia (C-299-01) (Hon. Michael L. Rankin, Trial Judge).
The opinion of the court was delivered by: Thompson, Associate Judge
Before KRAMER and THOMPSON, Associate Judges, and STEADMAN, Senior Judge.
Appellant Ellis Maupin was a career employee of the United States. Department of Energy (DOE) and the former President of the DOE chapter of the National Treasury Employees Union (NTEU). On June 7, 2001, Maupin filed a complaint alleging, inter alia, that defendant/appellee Carolyn Haylock, a DOE employee who was the President of the DOE chapter of Blacks in Government (BIG), and co-defendant/appellee BIG defamed Maupin through statements made in various documents. On January 23, 2006, without having heard oral argument, the trial court granted defendants'/appellees' motion for summary judgment. The court specified that its ruling was "based on defendants' statute of limitations argument," i.e., defendants'/appellees' argument that Maupin's complaint was barred by the one-year statute of limitations applicable to defamation claims.
On March 15, 2006, after the trial court had denied his motion for reconsideration, Maupin noted his appeal to this court.
Maupin's complaint cited a number of allegedly defamatory documents that were written or (Maupin asserts) republished by Haylock and/or BIG, but on appeal he focuses on only three sets of documents. First, he complains of an article published in BIG's Spring 2000 newsletter, which asserted that Maupin had unfairly revoked Haylock's employee parking permit because Haylock did not support Maupin for re-election as President of the NTEU during a then-recent union election. Second, Maupin complains of a charge that Haylock filed on February 24, 2000, with the Federal Labor Relations Authority (FLRA), in which she accused Maupin of being "corrupt," of "perpetrat[ing] malicious wrongdoings against bargaining unit employees," and of "abuse and misuse of power and clear interference with the proper allocation of parking permits." Finally -- as he attempted to clarify at oral argument -- Maupin complains that appellees caused to be circulated within DOE a package containing defamatory materials that previously had been forwarded to United States Senator Mikulski and other public officials.*fn1 As to all these documents, Maupin contends that his complaint was filed within the limitations period and therefore that the court erred in entering summary judgment and dismissing his complaint. Maupin does not contend that all of these allegedly defamatory statements were made within the year before he filed suit,*fn2 but he contends that his claims are saved by application of the so-called "discovery rule"*fn3 -- a rule that this court has not heretofore applied to defamation claims.*fn4
We resolve this appeal by assuming without deciding that the discovery rule applies in at least some defamation cases. We conclude that, even if the discovery rule were to apply in this case, Maupin failed to meet his burden of showing that he filed suit within one year after he discovered the allegedly defamatory statements.
The Statute of Limitations and the Discovery Rule
A claim for defamation must be filed within one year of accrual of the cause of action. See Sturdivant v. Seaboard Serv. Sys., Ltd., 459 A.2d 1058, 1058 n.1 (D.C. 1983) ("A suit for libel must be filed within one year of the alleged defamation") (citing D.C. Code § 12-301 (4)). In our defamation decisions to date, we have held that the cause of action accrued, and the one-year limitations period began to run, at the time the allegedly defamatory statement was published. See, e.g., Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298 n.2, 299 (D.C. 2001) (adopting the "virtually unanimous rule" that in a case alleging defamation through a mass media outlet such as a book, magazine, or newspaper, the limitations period begins to run when the publication "is first generally available to the public").*fn5
However, in a footnote in Mullin, we also said that we "express[ed] no opinion as to whether application of the discovery rule might be justified during a time that the defamatory statement was inherently undiscoverable," i.e., because rather than having been published in a mass media outlet, "it was published secretly and/or the defendant took steps to prevent the plaintiff from uncovering the statement, or in the case of circulars, newsletters or even newspapers addressed to a specialized readership." Id. at 299 n.5; see also Oparaugo, supra note 4, 884 A.2d at 74 n.8 (noting that "whether the discovery rule should be applied where the statement was undiscoverable" would be "an issue of first impression in this jurisdiction"). Maupin contends that this is a case -- like those envisioned in footnote 5 of Mullin -- in which we should extend application of the discovery rule to claims of defamation.
Application of the discovery rule is appropriate in this case, he contends, because the allegedly defamatory statements were not made in a mass media context, but instead were contained in (what the record indicates was the very first issue of) a limited-circulation newsletter; in an FLRA complaint, the content of which was unknown to Maupin until he was approached by an FLRA investigator; and in a packet of correspondence of which Maupin was unaware until a colleague gave him a copy.
A plaintiff cannot "stave off the entry of summary judgment" through "[m]ere conclusory allegations." Musa v. Continental Ins. Co.,644 A.2d 999, 1002 (D.C. 1994). See also Super. Ct. Civ. R. 56 (e) (the plaintiff's "response, by affidavitsor as otherwise provided in this Rule, must set forth specific facts showing that there is a genuine issue for trial"). Similarly, a plaintiff's mere unsworn statement of material facts in dispute is insufficient to defeat a motion for summary judgment. See Johnson v. Hobson, 505 A.2d 1313, 1316 (D.C. 1986); see also Okoye v. Univ. of Tex. Houston Health Sci. Ctr., 245 F.3d 507, 515 (5th Cir. 2001) (an unsworn statement "is not competent summary judgment evidence"). And "[w]here the moving party supports the motion for summary judgment with . . . deposition responses or other evidence submitted under oath, the opposing party may not rely on general pleadings or a denial, but rather must respond similarly by [providing] material facts under oath which raise genuine issues of fact for trial." Tobin v. John Grotta Co., 886 A.2d 87, 90 (D.C. 2005) (citation omitted). "[O]n [a] defendant's motion for summary judgment on the basis of the statute of limitations, 'it is the plaintiff who then bears the burden of pointing to specific facts of record that would justify the factfinder in concluding that the suit is timely' under the discovery rule." Yarchak v. Trek Bicycle Corp., 208 F. Supp. 2d 470, 487 (D.N.J. 2002) (quoting Estate of Sarocco v. General Elec. Co., 939 F. Supp. 91, 95 (D. Mass. 1996)) (other citation omitted).
In his opposition to defendants'/appellees' motion for summary judgment, Maupin (who at that stage of the litigation was represented by counsel) failed to meet the ...