United States District Court, District of Columbia
MEMORANDUM OPINION AND ORDER
COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE.
before the Court is Defendant's  Motion to Dismiss,
brought pursuant to Federal Rule of Civil Procedure 12(b)(6).
The following factual narrative is gleaned from the
allegations of the complaint, which are taken as true solely
for purposes of the pending motion: Plaintiff separated from
Defendant Judicial Watch in September 2003. Compl. ¶ 9.
As part of the separation, the parties executed a severance
agreement, which included a non-disparagement clause.
Id. Before his separation from Judicial Watch,
Plaintiff represented Jose Basulto (“Basulto”) in
suing the Republic of Cuba and its political leaders, and
obtained a sizable judgment (the “Cuba
Judgment”). Id. ¶¶ 7-8. Following
the separation, Defendant allegedly made no effort to enforce
the Cuba Judgment. Id. ¶ 11. On November 25,
2016, Plaintiff and Basulto entered an agreement retaining
Plaintiff's legal services to enforce the Cuba Judgment.
Id. ¶ 12. However, on or about November 30,
2016, Basulto informed Plaintiff that he would, instead, have
Defendant seek enforcement of the Cuba Judgment. Id.
¶ 14. In the course of that conversation, Basulto
allegedly provided Plaintiff with information showing that,
on or about November 30, 2016, Defendant had stated that
“Plaintiff did not have the resources or means to
legally seek to enforce the Cuba Judgment . . . .”
Id. Basulto allegedly switched representations on
the basis of this statement. Id.
is sought either on the basis that Defendant is immunized
from liability, or because the complaint fails to state a
plausible claim for relief. For the reasons discussed below,
it is premature to rule on Defendant's immunity defenses,
and the complaint alleges plausible claims for breach of
contract, defamation, and tortious interference with
prospective economic advantage. Accordingly, upon
consideration of the pleadings,  the relevant legal
authorities, and the record for purposes of the pending
motion, the Court shall DENY the  Motion
to Rule 12(b)(6), a party may move to dismiss a complaint on
the grounds that it “fail[s] to state a claim upon
which relief can be granted.” Fed.R.Civ.P. 12(b)(6).
“[A] complaint [does not] suffice if it tenders
‘naked assertion[s]' devoid of ‘further
factual enhancement.'” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 557 (2007)). Rather, a complaint
must contain sufficient factual allegations that, if accepted
as true, “state a claim to relief that is plausible on
its face.” Twombly, 550 U.S. at 570.
deciding a Rule 12(b)(6) motion, a court may consider
“the facts alleged in the complaint, documents attached
as exhibits or incorporated by reference in the complaint,
” or “documents upon which the plaintiff's
complaint necessarily relies even if the document is produced
not by the plaintiff in the complaint but by the defendant in
a motion to dismiss.” Ward v. District of Columbia
Dep't of Youth Rehab. Servs., 768 F.Supp.2d 117, 119
(D.D.C. 2011) (internal quotation marks omitted). Here, the
Court has limited its Rule 12(b)(6) analysis to the
allegations of the complaint, and the exhibits attached to
Court begins with Defendant's assertions of privilege,
before turning to assess whether Plaintiff has stated
plausible claims for relief.
contends that it is entitled to absolute immunity under the
judicial proceedings privilege for the alleged statement to
Basulto. The District of Columbia has adopted the judicial
proceedings privilege as articulated in section 586 of the
Restatement (Second) of Torts (1977):
An attorney at law is absolutely privileged to publish
defamatory matter concerning another in communications
preliminary to a proposed judicial proceeding, or in the
institution of, or during the course and as a part of, a
judicial proceeding in which he participates as counsel, if
it has some relation to the proceeding.
See Finkelstein, Thompson & Loughran v. Hemispherx
Biopharma, Inc., 774 A.2d 332, 338 (D.C. 2001);
Messina v. Krakower, 439 F.3d 755, 760 (D.C. Cir.
2006). Defendant contends that the privilege applies because
the statement to Basulto relates to “Judicial
Watch's representation of Basulto in the collection
effort as it advised regarding the best strategy for
achieving the client's goal of successfully collecting
the Cuba Judgment.” Def.'s Mem. at 5. The problem
with this contention, however, is that it assumes a fact not
alleged in the complaint. Rather, according to the
allegations-assumed to be true for purposes of the pending
motion-Defendant Judicial Watch had not sought enforcement of
the Cuba Judgment on behalf of Basulto after Plaintiff's
separation from the organization. This lack of activity is
what allegedly resulted in Basulto retaining Plaintiff in
November 2016. Consequently, while it may be true that the
statement at issue was made in the course of Defendant's
representation of Basulto, Defendant will need to adduce
evidence of this contention in later stages of this
proceeding. Until then, the Court cannot conclude that
Defendant was participating in the prospective litigation as
counsel at the time the statement was made.
similar reasons, dismissal is not appropriate on the basis of
the common interest privilege. “To come within the
protection of the ‘common interest' privilege, the
statement must have been (1) made in good faith, (2) on a
subject in which the party communicating has an interest, or
in reference to which he has, or honestly believes he has, a
duty to a person having a corresponding interest or duty, (3)
to a person who has such a corresponding interest.”
Moss v. Stockard, 580 A.2d 1011, 1024 (D.C. 1990).
Here, Defendant contends that the statement falls within the
common interest privilege because the “statement
represents that class of communications that attorneys make,
indeed, are obligated to make, to protect a client's
economic interest . . . .” Def.'s Mem. at 6. As
already discussed, the complaint does not allege that
Judicial Watch and Basulto were in an attorney-client
relationship at the time the statement was made, meaning
dismissal on the basis of this privilege is not appropriate
at this ...