United States District Court, District of Columbia
JOEY D. GONZALEZ RAMOS, Plaintiff,
ADR VANTAGE, INC., Defendant.
P. Mehta, United States District Judge
the court is Defendant ADR Vantage, Inc.'s Motion to
Dismiss all counts of Plaintiff Joey Ramos's Complaint.
See Def.'s Mot. to Dismiss, ECF No. 4
[hereinafter Def.'s Mot.]; Mem. of P&A in Support of
Def.'s Mot., ECF No. 4-1 [hereinafter Def.'s Mem.].
For the following reasons, the court denies Defendant's
Motion in its entirety.
offers a raft of disjointed arguments for why Plaintiff's
defamation claim must be dismissed. None are persuasive.
Defendant argues that the defamation claim is time-barred
under the District of Columbia's one-year limitations
period. See Def.'s Mem. at 3. But under District
of Columbia law, a defamation claim, as here, which does
not involve publication through the media, begins to
accrue when the plaintiff “first saw or became aware of
the contents of the [publication].” Maupin v.
Haylock, 931 A.2d 1039, 1043 (D.C. 2007). Here,
Plaintiff makes a plausible allegation that he did not learn
of at least some of the alleged false statements contained in
Defendant's report until February 10, 2018, within the
one-year limitations period. See Compl., ECF No. 1
[hereinafter Compl.], ¶ 34.
Defendant maintains that the report does not contain any
defamatory statements. But that is not correct. “[A]
statement is ‘defamatory' if it tends to injure the
plaintiff in his trade, profession or community standing, or
lower him in the estimation of the community.”
Jankovic v. Int'l Crisis Grp., 494 F.3d 1080,
1091 (D.C. Cir. 2007) (quoting Moss v. Stockard, 580
A.2d 1011, 1023 (D.C. 1990)). Here, Plaintiff has identified
multiple purportedly false statements that he claims have
injured his professional reputation. See Compl.
¶¶ 33-34, 36.
Defendant insists that the statements in question cannot be
defamatory because “[n]owhere in the report is the
plaintiff identified by name.” Def.'s Mem. at 4.
The absence of an express reference to Plaintiff by name is
not, however, fatal to his claim. This court recently
observed: “In [a prior case], the D.C. Circuit
explained that the first element of defamation-that the
defendant made a false and defamatory statement of and
concerning the plaintiff-can be satisfied without
specifically identifying the plaintiff by name. ‘[I]t
suffices that the statements at issue lead the listener to
conclude that the speaker is referring to the plaintiff by
description.'” Vasquez v. Whole Foods Mkt.,
Inc., 302 F.Supp.3d 36, 64 (D.D.C. 2018) (quoting
Croixland Properties Ltd. Partnership v. Corcoran,
174 F.3d 213, 216 (D.C. Cir. 1999)). In this case, the
alleged defamatory report refers to an “IT Specialist,
” “Union President, ” and “IT
Specialist/Union President.” Compl. ¶ 30.
According to Plaintiff, he was the only IT
Specialist at his place of employment and he was the union
president at relevant times. Id. ¶¶ 8, 10.
Thus, the alleged defamatory statements are plausibly
“of and concerning” Plaintiff.
Defendant asserts that, because the report was commissioned
to study the employment environment and make recommendations
to agency management, the statements contained therein were
privileged. See Def.'s Mem. at 4-5. Defendant is
correct that the statements at issue might be privileged.
See Wallace v. Skadden, Arps, Slate, Meagher &
Flom, 715 A.2d 873, 879 (D.C. 1998) (recognizing a
privilege “for anything ‘said or written by a
master in giving the character of a servant who has been in
his [or her] employment'”) (quoting White v.
Nicholls, 44 U.S. 266, 287 (1845)). But such privilege
is qualified, not absolute. See Id. It “can be
lost if the publication occurs outside the normal channels,
is otherwise excessive, or was made with malicious
intent.” District of Columbia v. Thompson, 570
A.2d 277, 292 (D.C. 1990). Here, Plaintiff has alleged facts
that make plausible the inapplicability of the privilege. The
allegation that Defendant published the report to the union,
see Compl. ¶ 39, may constitute
“excessive publication” that defeats the
privilege, see Thomas v. Howard, 168 A.2d 908, 910
(D.C. 1961) (“It was for the trier of fact to determine
whether the publication was designedly excessive and whether
the words were motivated by ill-will.”). Also,
Plaintiff claims that Defendant should have known that the
sources it relied on in the report were biased against him,
see Id. ¶ 48, thereby suggesting possible bad
faith. In short, whether the privilege applies will have to
await further factual development. See Armenian Assembly
of Am., Inc. v. Cafesjian, 597 F.Supp.2d 128, 138-39
(D.D.C. 2009) (rejecting application of qualified privilege
on motion to dismiss where there were “disputed
questions of fact”).
Defendant maintains that, because the statements at issue are
in the form of an opinion, they are not actionable.
See Def.'s Mem. at 5. Even if Defendant's
characterization of the statements as opinions was accurate,
there “is no wholesale exemption from liability in
defamation for statements of ‘opinion.' Instead,
statements of opinion can be actionable if they imply a
provably false fact, or rely upon stated facts that are
provably false.” Moldea v. New York Times Co.,
22 F.3d 310, 313 (D.C. Cir. 1994). The defense of a
“legitimate expression of opinion . . . cannot . . . be
made on the basis of the complaint, standing alone.”
Wallace, 715 A.2d at 878.
these reasons, Plaintiff's defamation claim may proceed
IV: False Light Invasion of Privacy
court next turns to Plaintiff's claim for false light
invasion of privacy. The torts of defamation and false light
are “often analyzed in the same manner, at least where
the plaintiff rests both his defamation and false light
claims on the same allegations.” Zimmerman v. Al
Jazeera Am., LLC, 246 F.Supp.3d 257, 273 (D.D.C. 2017)
(internal quotation marks omitted). Because Defendant's
arguments as to defamation and false light invasion of
privacy are one and the same, see Def.'s Mem. at
7, that claim likewise survives Defendant's Motion to
III: Intentional Infliction of Emotional Distress
is Plaintiff's claim for intentional infliction of
emotional distress. Defendant's sole argument is that
Plaintiff has not alleged “extreme or outrageous
conduct” in connection with the report's drafting.
Def.s Mem. at 6-7. But the report contains at least one
statement that is arguably libel per se in that it accuses
Plaintiff of possible criminal misconduct. See
Compl. ¶ 34 (alleging improper access to “data,
email and telephones”); see also Def.'s
Mem., Exs., ECF No. 4-2, at 47. “[S]tatements that are
defamatory per se by their very nature are likely to cause
mental and emotional distress . . . .” Carey v.
Piphus, 435 U.S. 247, 262 (1978); cf. Amobi v. D.C.
Dep't of Corr., 755 F.3d 980, 996 (D.C. Cir. 2014)