United States District Court, D. Columbia.
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For IFTIKHAR SAIYED, RENE ARTURO LOPEZ, 1:10-cv-00023-PLF, AQUILLA A.D. TURNER, 1:10-cv-00023-PLF, MOHAMMED BARAKATULLAH ABDUSSALAAM, 1:10-cv-00023-PLF, BAYENAH NUR, 1:10-cv-00023-PLF, Plaintiffs (1:10-cv-00022-PLF): David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center; Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, MI.
For COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., Defendant (1:10-cv-00022-PLF): David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center; Jenifer Wicks, LEAD ATTORNEY, LAW OFFICES OF JENIFER WICKS, Washington, DC; Reshad Staitieh, PRO HAC VICE, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, DC.
For RENE ARTURO LOPEZ, AQUILLA A.D. TURNER, MOHAMMED BARAKATULLAH ABDUSSALAAM, BAYENAH NUR, Plaintiffs (1:10-cv-00023-PLF): David Eliezer Yerushalmi, LEAD ATTORNEY, American Freedom Law Center; Robert Joseph Muise, AMERICAN FREEDOM LAW CENTER, Ann Arbor, MI.
For COUNCIL ON AMERICAN-ISLAMIC RELATIONS ACTION NETWORK, INC., Defendant (1:10-cv-00023-PLF): Jenifer Wicks, LEAD ATTORNEY, LAW OFFICES OF JENIFER WICKS, Washington, DC; Reshad Staitieh, PRO HAC VICE, COUNCIL ON AMERICAN-ISLAMIC RELATIONS, Washington, DC.
PAUL L. FRIEDMAN, United States District Judge.
These consolidated matters are before the Court on the motion for summary judgment brought by defendant Council on American-Islamic Relations Action Network, Inc. (" CAIR" ). The plaintiffs are several individuals who sought legal services from a CAIR chapter office operating in Virginia (" CAIR-VA" ), and who were connected with that chapter's " Resident Attorney," Morris Days. Four of the five plaintiffs paid fees directly to Mr. Days, but he failed to diligently pursue their legal claims, and it later emerged that he was not even an attorney. The plaintiffs claim that they have suffered damages as a result of Days' alleged fraud. Mr. Days is now dead and CAIR-VA has disbanded. The plaintiffs seek redress from CAIR-VA's parent organization, CAIR, asserting claims for fraud, breach of fiduciary duty, and intentional infliction of emotional distress under the common law of Virginia, in addition to a claim under the Virginia Consumer Protection Act.
Based on a careful consideration of the parties' papers, the relevant legal authorities, and pertinent portions of the record in this case, the Court will grant CAIR's motion for summary judgment. The Court also will deny the plaintiffs' request, made under Rule 56(f) of the Federal Rules of Civil Procedure, that the Court enter judgment in their favor on certain of their claims.
The Court previously issued two Opinions in these cases in which it described in some detail the underlying facts. See Lopez v. CAIR, 741 F.Supp.2d 222, 227-29 (D.D.C. 2010); Saiyed v. CAIR, 742 F.Supp.2d 84, 86 (D.D.C. 2010). Although these Opinions were issued upon CAIR's motions to dismiss the plaintiffs' complaints -- motions which the Court denied in large part -- the basic narratives set forth in the complaints are not disputed by the defendant. See Def.'s MSJ at 20-33. The Court therefore refers the reader to its earlier Opinions for a fuller exposition of the facts relating to each of the individual plaintiffs. The present discussion will be limited to the basics.
Defendant CAIR is a national organization committed to protecting the civil rights of Muslims living in the United States. CAIR's headquarters office is located in the District of Columbia, with affiliated chapter offices -- which exist as independent non-profit organizations -- located
throughout the country. Chapters come into being through a process involving a written application that is submitted to CAIR headquarters, which then either denies or approves the applicant's request to initiate a new chapter. Deposition of Khalid Iqbal (May 11, 2011) (" Iqbal 2011 Dep." ) at 28:18-29:15 (Pls.' Ex. 3) [Dkt. No. 81-3]. It was through this process that in 2002 a CAIR chapter was formed in Bethesda, Maryland, which later moved its operations to nearby Herndon, Virginia, where it was known by the name of CAIR-VA. In 2006, Morris Days, who had been volunteering his time to support CAIR-VA's civil rights work, was hired by CAIR-VA to continue these efforts. Id. at 69:18-72:1. Mr. Days later was advertised by the chapter as being its " Resident Attorney" and " Civil Rights Manager." See Pls.' Ex. 21 [Dkt. No. 74-23]. Unbeknownst to CAIR-VA and its clients, however, Mr. Days was not actually an attorney.
At various points during 2007, each of the plaintiffs approached Mr. Days at CAIR-VA in search of legal counsel. Three plaintiffs -- Mohammed Barakatullah Abdussalaam, Bayenah Nur, and Iftikhar Saiyed -- sought Days' assistance with their respective claims of workplace discrimination. Another plaintiff, Aquilla Turner, sought his help in initiating divorce proceedings, while plaintiff Rene Arturo Lopez desired legal counsel in relation to an immigration matter. Several of the plaintiffs paid money directly to Days for these services, and Turner and Lopez also performed chores at Days' home as a form of compensation. But Days neglected to fulfill his commitments to these five plaintiffs. As a result, some of them lost opportunities to file their claims within applicable limitations periods. In addition, one plaintiff, Ms. Nur, relied on Days' advice and rejected her employer's offer to transfer her to another division of the company. Ms. Nur was then placed on unpaid leave, and she and her family ultimately felt compelled to move to North Carolina in search of new job opportunities.
In 2008, each of the plaintiffs came to learn that Days had lied to them regarding his pursuit of their legal issues, and that Days was not even an attorney. All of the plaintiffs allege that as a consequence of Days' betrayal, they have suffered emotional distress, in addition to the loss of their out-of-pocket expenses and, for some, missed opportunities to pursue their legal claims.
The plaintiffs filed these two civil actions in 2010, following the dismissal of an earlier case arising from the same facts. In that previous action, the plaintiffs had alleged that CAIR and Days committed a conspiracy in violation of the Racketeer Influenced and Corrupt Organizations Act (" RICO" ), but Judge Urbina determined that their complaint failed to state a viable RICO claim. Lopez v. CAIR, 657 F.Supp.2d 104, 114-15 (D.D.C. 2009). Judge Urbina then declined to exercise supplemental jurisdiction over the plaintiffs' remaining state law claims for fraud, breach of fiduciary duty, intentional infliction of emotional distress, and violation of Virginia and District of Columbia consumer protection statutes. Id. at 115-16. In the two present actions, the plaintiffs have brought the same state law claims, invoking this Court's diversity jurisdiction.
CAIR filed motions to dismiss the two complaints in February 2010, which this Court granted in part and denied in part. The Court first rejected three jurisdictional challenges, namely that: the plaintiffs had failed to join required non-diverse parties; the plaintiffs' claims for damages did not satisfy the diversity statute's amount in controversy requirement; and the plaintiffs lacked Article III standing. Lopez v. CAIR, 741 F.Supp.2d at 231-34. Turning to the merits, the Court determined that Virginia law should apply; it therefore dismissed the claim brought under the District of Columbia's consumer protection statute. Id. at 234-35. The Court then concluded that the plaintiffs in their complaints had set forth allegations sufficient to state claims for each of their causes of action under Virginia law. Id. at 236-39. The Court also granted CAIR's motions to consolidate the two cases. Id. at 239; Saiyed v. CAIR, 742 F.Supp.2d at 89-90.
CAIR now moves for summary judgment. It renews its objection to this Court's jurisdiction, contending that now, after discovery, it is evident that the plaintiffs are unable to satisfy the amount in controversy requirement under 28 U.S.C. § 1332. On the merits, CAIR maintains that there are no grounds upon which to impute Days' purported liability to CAIR. In addition, CAIR argues that the plaintiffs' alleged emotional suffering is not sufficiently severe to support a claim for intentional infliction of emotional distress. The plaintiffs oppose CAIR's motion and, in addition, they ask that the Court enter judgment in their favor with respect to some of their claims. According to the plaintiffs, this request, brought under Rule 56(f) of the Federal Rules of Civil Procedure, amounts to a " de facto" cross-motion for partial summary judgment. See Pls.' Reply at 1 & n.2.
II. LEGAL STANDARD
Summary judgment is appropriate when " the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see Fed.R.Civ.P. 56(a), (c). In making that determination, the court must view the evidence in the light most favorable to the nonmoving party and draw all reasonable inferences in its favor. Tolan v. Cotton, 134 S.Ct. 1861, 1866, 188 L.Ed.2d 895 (2014) (per curiam); Anderson v. Liberty Lobby, Inc., 477 U.S. at 255; Talavera v. Shah, 638 F.3d 303, 308, 395 U.S.App.D.C. 7 (D.C. Cir. 2011). A disputed fact is " material" if it " might affect the outcome of the suit under the governing law." Talavera v. Shah, 638 F.3d at 308 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. at 248). A dispute over a material fact is " genuine" if it could lead a reasonable jury to return a verdict in favor of the nonmoving party. See Scott v. Harris, 550 U.S. 372, 380, 127 S.Ct. 1769, 167 L.Ed.2d 686 (2007); Paige v. DEA, 665 F.3d 1355, 1358, 398 U.S.App.D.C. 492 (D.C. Cir. 2012). " [T]he moving party is entitled to judgment as a matter of law 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.'" Holcomb v. Powell, 433 F.3d 889, 895, 369 U.S.App.D.C. 122 (D.C. Cir. 2006) (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986)). " Credibility determinations, the weighing of the evidence, and the drawing of legitimate inferences from the facts are jury functions, not those of a judge at summary judgment. Thus, [the court] do[es] not determine the truth of the matter, but instead decide[s] only whether there is a genuine issue for trial." Barnett v. PA Consulting Group, Inc., 715 F.3d 354, 358, 404 U.S.App.D.C. 439 (D.C. Cir. 2013) (quoting Pardo-Kronemann v. Donovan, 601 F.3d 599, 604, 390 U.S.App.D.C. 178 (D.C. Cir. 2010)); see also Tolan v. Cotton, 134 S.Ct. at 1866; Anderson v. Liberty Lobby, Inc., 477 U.S. at 255.
A. Plaintiffs' Procedural and Evidentiary Objections
As an initial matter, the plaintiffs contend that the Court should deny CAIR's summary judgment motion for three reasons: (1) the motion was not timely filed within 30 days after the close of discovery; (2) the motion and its accompanying exhibits were not properly served upon the plaintiffs; and (3) much of CAIR's evidence has been proffered without foundation or authentication, and this evidence therefore cannot support summary judgment in its favor. Pls.' Opp. at 1-5; Pls.' Reply Memo. at 1-6.
As to the first point, CAIR concedes that it did not file its motion -- which was submitted under seal in hard copy with the Clerk of the Court -- until one day following its due date, although CAIR did file its Notice of Filing Motion Under Seal on the motion's due date. Def.'s Reply at 2. CAIR contends, without citation to authority, that it is " standard practice in this jurisdiction" that the date of filing a notice of intent to file under seal is treated as the date of filing the motion itself. Id. As to the plaintiffs' second point, CAIR fails to address their argument regarding defective service of the motion and exhibits, which, according to the plaintiffs, were provided to them via e-mail and an online file-sharing service. But the Court does not observe any prejudice that has resulted from these two procedural defects, and it does not agree that automatic denial of CAIR's motion for summary judgment is a sanction warranted by these circumstances. See Nesbitt v. Holder, 966 F.Supp.2d 52, 55 (D.D.C. 2013) (" [T]he central purpose of the summary judgment device . . . is to weed out those cases insufficiently meritorious to warrant the expense of a jury trial." ) (quoting Greene v. Dalton, 164 F.3d 671, 675, 334 U.S.App.D.C. 92 (D.C. Cir. 1999)) (alterations in original).
As for the plaintiffs' objections to CAIR's proffered evidence, plaintiffs contend that " the vast majority" of these materials are " emails, letters, and similar documents" that have been submitted to the Court with no declaration or testimonial evidence made upon personal knowledge either to authenticate them or to provide foundation for their connection to this case. Pls.' Opp. at 5. In addition, both parties raise hearsay objections aimed at various items of evidence produced by the other side. The Court will touch on ...