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Boley v. A. Monthly Group

United States District Court, District of Columbia

June 25, 2013

GEORGE S. BOLEY, Plaintiff,
v.
ATLANTIC MONTHLY GROUP, and JEFFREY GOLDBERG, Defendants

Page 250

[Copyrighted Material Omitted]

Page 251

GEORGE S. BOLEY, Plaintiff, Pro se, Irvington, NJ.

For ATLANTIC MONTHLY GROUP, JEFFREY GOLDBERG, Defendants: Constance Morrow Pendleton, LEAD ATTORNEY, Laura Rose Handman, DAVIS WRIGHT TREMAINE, LLP, Washington, DC; Micah J. Ratner, DAVIS, WRIGHT & TREMAINE, LLP, Washington, DC.

Page 252

MEMORANDUM OPINION

REGGIE B. WALTON, United States District Judge.

Plaintiff George S. Boley, proceeding pro se, brings this defamation action against the Atlantic Monthly Group, Inc. (the " Atlantic Group" ) and one of its employees, Jeffrey Goldberg. See Complaint (" Compl." ) ¶ ¶ 20-32. Currently before the Court is the defendants' motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and special motion to dismiss

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under the District of Columbia Anti-Strategic Lawsuits Against Public Participation Act of 2010 (the " Anti-SLAPP Act" ), D.C. Code § 16-5502(a) (2012). Upon careful consideration of the parties' submissions, [1] the Court concludes for the following reasons that the defendants' special motion to dismiss must be granted.

I. Background

Boley was formerly a public official in the Republic of Liberia, where he held positions including " Minister of State, Minister of Education and Minister of Post and Telecommunications." Compl. ¶ 4. He also served as chairman of the Liberia Peace Council during the Liberian Civil War in the early 1990s, a group which Boley claims sought " to find an amicable end to the civil war." Id. ¶ ¶ 16, 18.

The Atlantic Group publishes a monthly magazine, The Atlantic, which is widely distributed in print and online. Id. ¶ 5. Goldberg is a national correspondent for The Atlantic. Id. ¶ 6.

Goldberg made comments about Boley in two separate articles published on The Atlantic's website on January 27, 2010, and February 11, 2010. See id. ¶ ¶ 20-21. Boley's complaint excerpts the following passage from the January 27, 2010 article:

Some news out of New York. George Boley, a warlord I first met when covering the Liberian civil war in the mid-90s, and who later moved to New York, was arrested January 15th by U.S. Immigration and Customs and is now sitting in a jail cell in upstate Batavia. So far, he's being charged administratively, with lying in order to gain entry into the __ U.S. __ and with committing extrajudicial killings while in another country. Other branches of Homeland Security, I've been told, are looking at charging him with actual war crimes, which is a good thing, because he belongs in the Hague with his fellow warlord, Charles Taylor.
. . . I knew, from firsthand observation, that his organization, the grossly-misnamed Liberian Peace Council, recruited and armed child soldiers; fed them drugs; and ordered them to rape and kill.

Id. ¶ 20 (citing Jeffrey Goldberg, George Boley, Liberian Warlord, Is Finally Under Arrest, The Atlantic (Jan. 27, 2010), http://www.theatlantic.com/international/archive/2010/01/george-boley-liberian-warlord-is-finally-under-arrest/34330/ (last visited June 11, 2013) (" January 27, 2010 article" )). The complaint also excerpts the following passage from Goldberg's February 11, 2010 article, in which Goldberg commented on a separate story discussing an alleged relationship between a controversial Liberian figure, Charles Taylor, and Reverend Pat Robertson:

You should pardon the expression, but, Christ. Charles Taylor is an evil man, more evil than my own personal Liberian warlord, George Boley.[ [2]] I suppose I shouldn't be surprised by Pat Robertson, but this is fairly unbelievable.

Id. ¶ 21 (citing Jeffrey Goldberg, Pat Robertson, Friend of Warlords, The Atlantic

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(Feb. 11, 2010), http://www.theatlantic.com/international/archive/2010/02/pat-robertson-friend-of-warlords/35750/ (last visited June 11, 2013) (" February 11, 2010 article" )). Alleging that the foregoing statements were defamatory, Boley instituted this action on January 22, 2013, asserting common law claims against the defendants for defamation per se and defamation per quod. See id. ¶ ¶ 22-32.

The defendants have now filed a motion to dismiss under Rule 12(b)(6) and a special motion to dismiss under the Anti-SLAPP Act, which authorizes the preliminary dismissal of meritless defamation lawsuits challenging speech on matters of public concern. Because the Anti-SLAPP Act instructs courts to address special motions to dismiss on an expedited basis, see D.C. Code § 16-5502(d), the Court gives that motion priority and will address it first. [3]

II. Special Motion to Dismiss under the Anti-SLAPP Act

A. Applicability of the Anti-SLAPP Act in Federal Diversity Actions

As a threshold matter, Boley argues that the Anti-SLAPP Act's special motion to dismiss provisions do not apply in federal proceedings where, as here, the court's jurisdiction is based on diversity. Pl.'s Opp'n at 22; see Compl. ¶ 1 (invoking the Court's diversity jurisdiction). He relies exclusively on 3M Co. v. Boulter, in which another member of this Court held that the Anti-SLAPP Act " squarely attempts to answer the same question that [Federal Rules of Civil Procedure] 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity." 842 F.Supp.2d 85, 102 (D.D.C. 2012) (Wilkins, J.).

While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three federal circuit courts have deemed it necessary to enforce state anti-SLAPP laws in diversity actions, finding no conflict between those statutes' special motion to dismiss provisions and Federal Rules of Civil Procedure 12 and 56. See Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010); U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999); Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164, 169 (5th Cir. 2009) (summarily adopting Newsham's reasoning). Finding these cases persuasive, the Court adopts their reasoning and therefore will apply the Anti-SLAPP Act's special motion to dismiss provisions in this case. See Farah v. Esquire Magazine, Inc., 863 F.Supp.2d 29, 36 n.10 (D.D.C. 2012) (Collyer, J.) (reaching same conclusion).

B. The Anti-SLAPP Act

The subsection of the Anti-SLAPP Act governing special motions to dismiss provides in pertinent part:

(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest ...

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