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Jankovic v. International Crisis Group

United States District Court, D. Columbia.

November 4, 2014


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For MILAN JANKOVIC, also known as PHILIP ZEPTER, FIELDPOINT B.V., UNITED BUSINESS ACTIVITIES HOLDING A.G., Plaintiffs: Rodney A. Smolla, LEAD ATTORNEY, PRO HAC VICE, FURMAN UNIVERSITY, Greenville, SC; Caroline H. Mankey, CHRISTENSEN MILLER FINK JACOBS GLASER WEIL & SHAPIRO, LLP, Los Angeles, CA; Ivana Ognjanovic, Peter C. Sheridan, GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO, LLP, Los Angeles, CA; Joaquin Ezcurra, PRO HAC VICE, Malcolm I. Lewin, MORRISON COHEN LLP, New York, NY; John William Lomas, Jr., William T. O'Brien, MCKENNA LONG & ALDRIDGE LLP, Washington, DC; Lisa Norrett Himes, MCKENNA LONG & ALDRIDGE, LLP, Washington, DC.

For INTERNATIONAL CRISIS GROUP, A Non-profit Organization, Defendant: Michael Dennis Sullivan, Thomas Curley, LEAD ATTORNEYS, LEVINE SULLIVAN KOCH & SCHULZ, LLP, Washington, DC; Amy Lynn Neuhardt, BOIES, SCHILLER & FLEXNER, LLP, Washington, DC; Andrea Ernst, Anna Tevini, Jonathan Richard DeFosse, PRO HAC VICE, Jonathan L. Greenblatt, SHEARMAN & STERLING, LLP, Washington, DC; Neil H. Koslowe, SHEARMAN AND STERLING LLP, Washington, DC; Philip Urofsky, SHEARMAN & STERLING, Washington, DC.

For JAMES LYON, Individual, Defendant: Jonathan L. Greenblatt, SHEARMAN & STERLING, LLP, Washington, DC.

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REGGIE B. WALTON, United States District Judge.

The plaintiff, Milan Jankovic, also known as Philip Zepter, brings this action to recover damages for injuries allegedly caused by a defamatory publication circulated by the defendant, the International Crisis Group. There are several motions currently pending before the Court: (1) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming His Status as a Private Figure (" Pl.'s Private Figure Mot." ); (2) Plaintiff Philip Zepter's Motion for Partial Summary Judgment Affirming the Falsity of [International Crisis Group]'s Defamatory Statements (" Pl.'s Falsity Mot." ); (3) Motion for Summary Judgment of Defendant International Crisis Group (" Def.'s Summ. J. Mot." ); (4) Defendant International Crisis Group's Motion to Strike [the] Plaintiff's Hearsay Declarations (" Def.'s Strike Mot." ); and (5) Plaintiff Philip Zepter's Motion to Strike the 2003 Expense Receipts of James Lyon (" Pl.'s Strike Mot." ). Upon careful consideration of the parties' submissions,[1] the Court will deny the plaintiff's motion for partial summary judgment affirming his status as a private figure, deny the plaintiff's motion for partial summary judgment affirming the falsity of International Crisis Group's defamatory statements as moot, grant summary judgment for the defendant, grant the defendant's motion to strike the plaintiff's hearsay declarations, and deny the plaintiff's motion to strike the expense receipts as moot.

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A motion for summary judgment must be granted " if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law," based upon the depositions, affidavits, and other factual materials in the record. Fed.R.Civ.P. 56(a), (c). A fact is " material" if it " might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). And " a dispute over a material fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Arrington v. United States, 473 F.3d 329, 333, 374 U.S.App.D.C. 189 (D.C. Cir. 2006) (quoting Anderson, 477 U.S. at 247). The moving party bears the initial burden of showing the absence of a disputed material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). If this burden is satisfied by the moving party, the burden then shifts to the opposing party to " set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248. " Although summary judgment is not the occasion for the court to weigh credibility or evidence, summary judgment is appropriate 'if the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial.'" Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011) (citations omitted) (quoting Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006)). " [T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a [reasonable] jury to return a verdict for that party." Anderson, 477 U.S. at 249. In making this assessment, " [t]he evidence is to be viewed in the light most favorable to the nonmoving party and the court must draw all reasonable inferences in favor of the nonmoving party." Talavera, 638 F.3d at 308 (citing Anderson, 477 U.S. at 255). These inferences, however, must be " justifiable." Anderson, 477 U.S. at 255.


At the outset, the Court notes that the plaintiff has made it difficult to discern which purported material facts are in dispute.[2] See generally ECF No. 158-2, Plaintiff Philip Zepter's Statement of Genuine Issues of Material Facts in Opposition to Defendant [International Crisis Group]'s Motion for Summary Judgment (" Material Facts I" ) (disputing the defendant's proffered undisputed material facts). In response to many of the allegedly undisputed facts proffered by the defendant, the plaintiff raises a garden variety of objections that do not genuinely dispute the truth of the undisputed facts asserted by the defendant. For example, the plaintiff merely cites case law, therefore making only legal arguments in many of its responses to the defendant's undisputed facts. But legal arguments alone are insufficient to create a factual dispute to defeat a motion for summary judgment. See Glass v. Lahood, 786 F.Supp.2d 189, 199 (D.D.C. 2011) (" legal memoranda are not evidence and cannot themselves create a factual dispute sufficient to defeat a motion for summary judgment" ), aff'd, 2011 WL 6759550 (D.C. Cir. Dec. 8, 2011); see also Conservation Force v. Salazar, 715 F.Supp.2d 99, 106 n.9 (D.D.C. 2010)

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(" arguments of counsel . . . are not evidence" (internal quotations and citations omitted)).

The plaintiff also repeatedly uses qualifiers that do not genuinely dispute the truth of the allegedly undisputed facts set forth by the defendant. Thus, when the defendant cites Serbian press articles from the record as the evidentiary basis for its undisputed facts, the plaintiff merely disputes those facts " to the extent they rely on an article from the Serbian press which [the defendant] described as 'sensationalist bordering on libel' and 'notorious for spreading [rumors] and outright lies.'" E.g., ECF No. 158-2, Material Facts I ¶ 145 (quoting Pl.'s Private Figure Mot., ECF No. 145-4, Exhibit (" Ex." ) 12 (July 2003 International Crisis Group Report Entitled " Serbian Reform Stalls Again" (" Report 145" )) at 9-10). However, Report 145 does not reasonably suggest that these characterizations are attributable to all publications of the Serbian press in the relevant timeframe. See Pl.'s Private Figure Mot., ECF No. 145-4, Ex. 12 (Report 145) at 9-10. Indeed, the primary researcher and author of Report 145 recognized that the accuracy of the Serbian press articles had to be assessed on a " case-by-case basis." Def.'s Summ. J. Mot., ECF No. 150-1, Ex. 16 (Deposition of James Lyon, Ph.D. (" Lyon Dep." )) at 22:6-15. Thus, where the plaintiff does not specifically dispute the facts from a particular Serbian press article by citing to evidence from the record, these facts remain uncontroverted.[3] See Local Civ. R. 7(h); see also Jackson v. Finnegan, Henderson, Farabow, Garrett & Dunner, 101 F.3d 145, 153, 322 U.S.App.D.C. 35 (D.C. Cir. 1996) (placing " burden on the parties to focus the court's attention on the salient factual issues in what otherwise may amount to a mountain of exhibits and other materials" ).

Alternatively, when the defendant cites Serbian press articles as the evidentiary basis for its undisputed facts, the plaintiff sometimes merely disputes those facts " to the extent they rely on a news article which is hearsay." [4] E.g., ECF No. 158-2, Material Facts I ¶ 145. This objection is without merit under controlling precedent, as the defendant cites these articles for purposes other than the truth of the matter asserted. See Def.'s Summ. J. Reply, ECF No. 163-21, Response of Defendant [International Crisis Group] to Plaintiff Philip Zepter's Statement of Genuine Issues of Material Fact and His Response to [International Crisis Group]'s Statement of Undisputed Material Facts (" Resp. to Material Facts I" ) at 6-8. First, the articles assist the Court in identifying a public controversy, Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1297, 201 U.S.App.D.C. 301 (D.C. Cir. 1980) (" The court can see if the press was covering the debate, reporting what people were saying and uncovering facts and theories to help the public formulate some judgment. It should ask whether a reasonable person would have expected persons beyond the immediate participants in the dispute to feel the impact of its resolution. If the issue was

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being debated publicly and if it had foreseeable and substantial ramifications for nonparticipants, it was a public controversy." (internal footnotes omitted)). And second, they aid the Court in determining the plaintiff's role, if any, in that public controversy. Id. (" The plaintiff either must have been purposely trying to influence the outcome or could realistically have been expected, because of his position in the controversy, to have an impact on its resolution. In undertaking this analysis, a court can look to the plaintiff's past conduct, the extent of press coverage, and the public reaction to his conduct and statements." ).[5]

The plaintiff also objects to the defendant's proffered undisputed facts that rely on reports from the defendant's experts on hearsay grounds.[6] E.g., ECF No. 158-2, Material Facts I ¶ 24. But expert reports are an exception to the rule against hearsay in the summary judgment context. See Fed.R.Evid. 802 advisory committee's note (listing " Rule 56: affidavits in summary judgment proceedings" as an exception to prohibition against hearsay). The Court, therefore, can and will consider expert reports in resolving the parties' summary judgment motions, provided that the expert has " personal knowledge," " set[s] out facts that would be admissible in evidence," and " show[s] that [he or she] is competent to testify on the matters stated." [7] Fed.R.Civ.P. 56(c)(4)); see also Lohrenz v. Donnelly, 223 F.Supp.2d 25, 37 (D.D.C. 2002), aff'd, 350 F.3d 1272, 358 U.S.App.D.C. 425 (D.C. Cir. 2003) (considering expert report in defamation case on summary judgment).

Finally, in those instances where the plaintiff deems many of the defendant's purported undisputed facts as " immaterial," the Court will treat those facts as conceded, as this response does not raise a genuine issue of material fact.[8] See Herrion v. Children's Hosp. Nat'l Med. Ctr., 786 F.Supp.2d 359, 362 (D.D.C. 2011) (" irrelevant and immaterial" challenges are " patently insufficient to controvert the truth of the matters identified" ), aff'd, 448 F.App'x 71 (D.C. Cir. 2011). In sum, because the aforementioned challenges do not controvert the truth of the defendant's proffered undisputed facts, the Court will treat those undisputed facts as admitted. See Local Civ. R. 7(h) (" In determining a motion for summary judgment, the [C]ourt may assume that facts identified by the moving party in its statement of material facts are admitted, unless such a fact is controverted in the statement of genuine issues filed in opposition to the motion." ).

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Against this backdrop, the Court finds that the following facts are undisputed.

A. Factual Background

1. The Parties

The plaintiff " was born in a small Serbian town and grew up in Bosnia." ECF No. 157-1, Defendant International Crisis Group's Response to [the] Plaintiff's Statement of Undisputed Material Facts (" Material Facts II" ) ¶ 1. After college, he " established the Zepter Company, . . . a cookware company[.]" Id. ¶ 2. After the formation of his company, the plaintiff " achieved business success throughout Europe." Id. ¶ 4. The plaintiff's products can be found in more than forty countries. See id. ¶ 5.

The defendant " is a non-profit organization founded in 1995 to help anticipate, prevent, and resolve deadly conflicts around the world." ECF No. 158-2, Material Facts I ¶ 4. In the early-to-mid 2000s, it " focused significant efforts" on the Balkans. Id. ¶ 6. In that regard, the defendant regularly publishes analytical reports intended to influence policymakers around the world. Id. ¶ 9.

2. The Serbian Government During the Relevant Timeframe

In 1999, Serbia was marred by civil conflict as its President, Slobodan Milosevic, carried out violence in Kosovo--a province in Serbia. See id. ¶ 31. Milosevic's actions in Kosovo resulted in military intervention by the North Atlantic Treaty Organization (" NATO" ), as well as economic sanctions by the United States and European countries. See id. In 2000, Milosevic lost a democratic election to Vojislav Kostunica, see id. ¶ 32, and following Milosevic's ouster from power in Serbia, " there was a public discussion in Serbia about the direction and extent of political, economic, and social reforms," id. ¶ 161. " The topic was a mainstay of public debate and discussion in the media, on television, in diverse social and political circles, and on the streets of Serbia." Id. (internal quotations omitted); see also id. ¶ 37 (" When Milosevic fell at the end of 2000 for a number of years, there was a constant policy debate in the wider international community, and . . . within the [International] Crisis Group, about what was really going on in Serbia, [including whether Serbia] . . . was . . . really reforming [and] moving away from the Milosevic period" (internal quotations and alterations omitted)). Despite Kostunica's victory over Milosevic, " political power was vested in the newly elected Serbian parliament and its [P]rime [M]inister, Zoran Djindjic." Id. ¶ 33. Kostunica and Djindjic would eventually become political rivals, with Djindjic " taking charge of the crucial levers of government in Serbia." Id. ¶ 34; see also id. ¶ 164 (" The future of Serbian reforms was of international concern, and prominent news publications regularly covered the issue." ). " Djindjic was a reformist who favored sweeping change from the policies implemented by . . . Milosevic," but " Djindjic's political rivals, such as . . . Kostunica, advocated a policy of continuity." Id. ¶ 162. In 2001, Djindjic extradited Milosevic to The Hague, Netherlands, to stand trial for war crimes. Id. ¶ 35. Djindjic was assassinated in 2003. Id.

3. Press Coverage of Post-Milosevic Serbia[9]

a. Press Reports About Djindjic

After Milosevic was removed from power, " [t]here was intense interest in the

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international community and in the region as to whether Djindjic was committed to democratic reform and at what pace." Id. ¶ 34. Specifically, Western nations viewed Serbia as the " key to regional stability" in the Balkans. Id. The international community harbored some doubt as to whether Djindjic could reform Serbia and govern it differently than Milosevic. See Def.'s Summ. J. Mot., ECF No. 151-9, Ex. 31 (January 2001 Economist Article Entitled " Zoran Djindjic, Serbia's [O]ther [B]ig [M]an" (" January 2001 Economist Article" ) at 2 (" One of Serbia's leading columnists, by no means a fan of Mr[.] Milosevic, calls Mr[.] Djindjic 'Little Slobo[,'] implying that he has the same dictatorial tendencies." ); id. (" Years of sanctions and decades of communism have stunted the economy, and corruption is rife. If foreigners are to invest, the judiciary must be cleaned up, and the criminals who ran the show under Mr[.] Milosevic must be dealt with. Many well-wishers fear that Mr[.] Djindjic, who is far from monkish himself, may not be inclined to take them on." ); id. at 3 (" Moreover, skeptics in Belgrade think [Djindjic] has already been too cosy with Mr[.] Milosevic's old crime-connected security-service types. . . . Mr[.] Djindjic has to be tough and shrewd. He also needs conciliatory skills--and integrity. He has the first two qualities in abundance. Whether he has the other two is worryingly less certain." ).

For example, the Serbian press reported that the changes that Djindjic was " trying to introduce" in Serbia were " purely cosmetic and aimed at allowing the financial elite created during the Milosevic regime--representatives of whom are allegedly his close friends--to keep its positions and power . . . ." See Def.'s Summ. J. Mot., ECF No. 151-10, Ex. 32 (January 2001 Reporter Article Entitled " You Just Watch Him" (" January 2001 Reporter Article" )) at 2. In particular, Djindjic's association with " business people" drew skepticism from the public. Def.'s Summ. J. Mot., ECF No. 152-4, Ex. 41 (August 2001 Financial Times Article Entitled " The Belgrade Connection" (" August 2001 Financial Times Article" )) at 1 (" Today, Djindjic is Prime Minister -- an international star. He has long been considered in the [W]est to be a guarantor of democracy in the Balkans. But behind this facade lurks a different, scarcely perceived side: Contradictions in which the Serbian government head has entangled himself, as well as contacts with business[]people that are classed as part of organized crime, cast dark shadows over the purported shining light. . . . [T]his top politician has become involved with people who undermine his credibility." ); see also id. at 2-3 (calling into question Djindjic's association with a " cigarette smuggler" ). The public viewed Djindjic as a politician with " many complicated business interests . . . and many Serbs saw him as an elegant kingpin turned politician." Def.'s Summ. J. Mot., ECF No. 153-21, Ex. 89 (March 2003 Article Entitled " The World: Murder in Belgrade; Did Serbia's Leader Do the West's Bidding Too Well" (" March 2003 Article" ) at 1; see also Def.'s Summ. J. Mot., ECF No. 152-5, Ex. 42 (August 2001 Vreme Article Entitled " Murder, Corruption and Political Games" (" August 2001 Vreme Article" )) at 3 (" It is understandable that . . . Djindjic's government with a European and reformist reputation does not like its standing being called into question." ); id. at 6 (" Kostunica's mention of corruption in the media is usually interpreted as an attack of Djindjic . . . ." (internal quotations omitted)); Def.'s Summ. J. Mot., ECF No. 152-8, Ex. 45 (August 2001 Article Entitled " Europe [W]ill [N]ot [W]ait [F]or [U]s" (" August 2001 Article" )) at 1 (" President Kostunica accuses the reformers of Serbian chief executive

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Djindjic of being interlinked with organized crime." ); Def.'s Summ. J. Mot., ECF No. 153-13, Ex. 81 (Article From Entitled " Birth of the Serbian Godfather" (" Article" )) at 4 (" The Serbian Prime Minister does not hide his strong ties to the underground. Asked if it is true that he has ties to criminals, Prime Minister Djindjic in his interview for Sunday Telegraph . . . confirms that is correct that he comes from that milieu." ).

b. Press Reports About the Plaintiff

During the time period discussed above, the press also wrote articles about the plaintiff. See ECF No. 158-2, Material Facts I ¶ 77. His political views, as well as his political activities, were reported by the press. See Def.'s Summ. J. Mot., ECF No. 154-10, Ex. 113 (September 2003 Article Entitled " I am [B]eing [A]ttacked in Serbia for [H]elping Djindjic" (" September 2003 Article" )) at 1 (" Several sources in Belgrade confirmed for 'Nacional' that [the plaintiff] came under fire of . . . favorites of the past regime who cannot forgive him for helping the opposition in overthrowing Slobodan Milosevic . . . ." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (2001 Article Entitled " Bosnian Serb [P]arty [S]ays Serb [E]ntity [R]uled [B]y [P]rivate [B]usinessman" (" 2001 Businessman Article" )) at 1 (" The chairman of the executive committee of the Serbian Radical Party SRS in the Bosnian Serb Republic,[10] Mirko Blagojevic, said today that [the plaintiff] was 'at the helm of the Serb Republic' because 'he donated a large amount of money to Prime Minister Mladen Ivanic's election campaign, and in return asked that his aide, Milenko Vracar, be appointed finance minister[.']" ); Def.'s Summ. J. Mot., ECF No. 151-3, Ex. 25 (1998 Article Interviewing Zepter Entitled " The Time of Wisdom Has Come" (" 1998 Interview" )) at 2 (" [T]he Serbian Republic have a sincere friend in [the plaintiff] . . . . The time has come when this country must finally be led by wisdom rather than by feelings. It must act in a calculated manner, wisely, and with selected allies in every respect, i.e., political, national and economic. . . . I am convinced that the Serbian Republic is facing an economic transformation. I feel that the way of thinking which has become deeply rooted in most of the government is changing. To put it simply, you must get used to fostering the principles that have created civilization and its greatest achievement are democracy and the market economy. . . . In conclusion, politics is always responsible or should be for what happens to us." ); Def.'s Summ. J. Mot., ECF No. 151-5, Ex. 27 (Article Entitled " How Milan Jankovic Became Philip Zepter" (" How Jankovic Became Zepter" )) at 18 (recognizing that the plaintiff " became politically engaged" two years before article was published).

Through the press, the plaintiff publicly expressed his desire to " enter [the] political arena" in Serbia. Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December 2001 Glas Javnosti Article) at 4 (" I want to help Serbia. . . . When in a few years, I enter political arena, I will enter to win." ); see also Def.'s Summ. J. Mot., ECF No. 152-28, Ex. 65 (December Ekonomija 2001) at 1 (" According to his own words, [the plaintiff] is not a shadow ruler of Serbia[,] but a man who wishes to contribute to the victory of democracy, law, and action, over inaction and anarchy." ).

The plaintiff used the press to voice his approval of Djindjic's political agenda for the future of Serbia. E.g., Def.'s Summ. J. Mot., ECF No. 152-27, Ex. 64 (December

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2001 Glas Javnosti Article) at 2 (" I have helped, in many ways, . . . opposition activists and activities in Serbia. That is why I was not favored by the former regime (the fact for which I am, of course, proud) . . . .); id. at 3 (" The fact that at the time of Milosevic's reign of terror, Mr. Djindjic was the fiercest and most consistent defendant of the honor and dignity of the Serbian people in the Western media has been consistently hidden from our country's public eye . . . The people with good (political) taste should be impressed by this. . . . That is why, at the time of the darkest Milosevic's dictatorship, I publicly stated in an interview for the magazine 'Profil' that I am most impressed by Djindjic among all the politicians on the Serbian political scene, and I can repeat that today as well . . . . I will support, to the horror of my 'critics[,'] not only the current Prime Minister, but also all those for whom I believe that they can bring prosperity to my country and my people." ); Def.'s Summ. J. Mot., ECF No. 148-3, Ex. A (June 2001 Blic News Article Entitled " [Djindjic]'s Promotion in USA is Financed by Zepter" (" June 2001 Blic News Article" )) at 44 (quoting the ...

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