United States District Court, District of Columbia
DAN E. MOLDEA, Plaintiff,
MICHAEL OVITZ, Defendant.
CHRISTOPHER R. COOPER UNITED STATES DISTRICT JUDGE
case is the contractual companion to a classic film noir tale
of revenge, shifting alliances, and relationships gone bad.
The Court picks up the plot at the beginning: in 2002, Los
Angeles-based private investigator Anthony Pellicano
orchestrated an intimidation campaign against journalist
Anita Busch on behalf of clients who took offense at the
stories Busch was writing about them. Pellicano was arrested
and convicted. Compl. ¶¶ 8, 10. The plaintiff in
this case, investigative journalist Dan Moldea, partnered
with Busch in 2003 to publish a book about her ordeal,
id. ¶ 9, which included a hit-and-run attempt
and a dead fish left on her car windshield, id.
also filed a civil suit in California court in 2004, naming
Pellicano's then-unknown clients as defendants.
Id. ¶ 11. Moldea continued to work on the book
project until Busch allegedly put an end to it because the
book's contents threatened to undermine her lawsuit.
Id. ¶ 12. Moldea says that when he complained
about all the work he'd done for free, Busch turned the
tables and mounted a smear campaign against him. Id.
Unlike the book project, Busch's civil suit pressed on,
and she amended her complaint in 2008 to name Hollywood
talent agent Michael Ovitz (the defendant in this case) as
one of Pellicano's clients. Id. ¶ 13.
Ovitz, in turn, suspected Moldea might have helpful
information for his defense and subpoenaed him for a
deposition in August 2011. Id. ¶ 14.
realizing that the enemy of his enemy could be a friend,
Ovitz withdrew the subpoena and sent Moldea a transcript of
Busch's deposition in the California case, which Moldea
claims contained false and defamatory statements about him.
Id. ¶ 15. In September 2011, Ovitz dispatched
his attorney, Eric George, to meet with Moldea and his
attorney in the District of Columbia, where Moldea lives, to
negotiate a Common Interest Agreement, the contract at issue
in this case. Id. at ¶ 16. The parties executed
the Agreement on November 9, 2011, but George returned to
D.C. in October 2015 and again in January 2017 to discuss its
terms. Id.; see also Agreement, ECF No.
1-1, at 8.
to Moldea, the “parties' respective interests were
straightforward, and each are addressed in the Common
Interest Agreement, ” Compl. ¶ 19, which he
attaches to the complaint as Exhibit A. Under the terms of
the Agreement, which is governed by California law,
“Moldea, in lieu of sitting for a deposition . . . will
provide a declaration . . . that truthfully and accurately
describes certain aspects of his collaboration with Anita
Busch.” Agreement ¶¶ 1, 24. The information
in the declaration would help Ovitz defend against
Busch's lawsuit. In return, Ovitz agreed to
“reimburse Moldea for any travel-related or other
expenses incurred in connection with the preparation of the
Declaration.” Id. ¶ 2.
according to Moldea, his aims went beyond compensation: He
also “sought to end the malicious campaign waged by
Busch against him, along with indemnification against further
harm as a result of his cooperation with Ovitz.” Compl.
¶ 21. To that end, the Agreement provides that
“Ovitz intends to submit [Moldea's] Declaration to
counsel for Busch, together with a demand that Busch (a)
dismiss the Litigation against Ovitz and (b) issue a writing
to Moldea retracting, and apologizing for, Busch's
deposition statements” about Moldea. Agreement ¶
3. The Agreement continues: “Should Busch decline to
issue the foregoing apology, Ovitz's counsel agrees to
send a letter to Moldea that recites each of the deposition
statements set forth above, and offers Ovitz's
counsel's opinion that such statements are
inaccurate.” Id. ¶ 4. This letter was to
“be submitted by Ovitz to Moldea within a reasonable
time after Busch's refusal to issue the foregoing
apology.” Id. Finally, the Agreement includes
a damages provision: “The parties agree that Moldea
will suffer harm and prejudice in his personal life and
professional career, equal to at least $250, 000, if
Ovitz's counsel fails to provide the Letter pursuant to
paragraph 4.” Id. ¶ 6.
claims to have “spent hundreds of hours on
Ovitz-requested/related tasks, ” including drafting a
lengthy declaration, compiling related documents, and
traveling to California to testify at a hearing. Compl.
¶ 22. Ovitz's counsel attached the declaration to a
summary judgment motion filed in Busch's California case
on October 31, 2012. Id. ¶ 23. And eventually,
Ovitz and Busch entered into settlement negotiations in
January 2018. Id. ¶ 24. Sensing the end, Moldea
requested that Ovitz either demand a retraction and apology
from Busch or have his counsel issue the opinion letter.
Id. Ovitz, through counsel, refused. Id.
responded by filing this lawsuit in March 2018. He claims
that Ovitz breached the Common Interest Agreement in two
ways: “by failing to demand an apology/retraction from
Busch for false statements made about Moldea, as required in
paragraph 3 of the Agreement” and “by failing to
send a letter to Moldea that recites each of Busch's
false statements, as described in paragraph 3 of the
Agreement, and offering Ovitz's counsel's [opinion]
that such statements are inaccurate” as required in
paragraph 4. Id. ¶¶ 28-29.
has moved to dismiss the lawsuit on three grounds. First, he
contends that the Court lacks personal jurisdiction because
he resides in California and did not personally travel to
Washington, D.C. for any of the negotiations. Second, he
insists that Moldea's claim is time-barred because the
applicable four-year statute of limitations began to run when
Ovitz “submitted” the declaration in 2012 by
attaching it to the motion for summary judgment and Moldea
did not file suit until six years later. Finally, Ovitz
asserts that Moldea has failed to state a claim because the
Agreement does not explicitly require Ovitz to
either demand a retraction and apology, or issue an opinion
reasons explained below, the Court rejects all three
arguments and will deny Ovitz's motion to dismiss.
Federal Rule of Civil Procedure 12(b)(2), a defendant may
move to dismiss a suit for lack of personal jurisdiction. The
plaintiff bears the burden of establishing personal
jurisdiction. FC Inv. Grp. LC v. IFK Mkts., Ltd.,
529 F.3d 1087, 1091 (D.C. Cir. 2008). Any “factual
discrepancies appearing in the record must be resolved in
favor of the plaintiff.” Crane v. N.Y. Zoological
Soc'y, 894 F.2d 454, 456 (D.C. Cir. 1990).
defendant may move to dismiss a suit for failure to state a
claim under Federal Rule of Civil Procedure 12(b)(6). In
analyzing such a motion, the Court must determine whether the
complaint “contain[s] sufficient factual matter,
accepted as true, to ‘state a claim to relief that is
plausible on its face.'” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). This
requires “factual content that allows the court to draw
the reasonable inference that the defendant is liable for the
misconduct alleged.” Id. The Court “must
take all of the factual allegations in the complaint as
true.” Id. It also must “constru[e] the
complaint liberally in the plaintiff's favor with the
benefit of all reasonable inferences derived from the facts
alleged.” Stewart v. Nat'l Educ.
Ass'n, 471 F.3d 169, 173 (D.C. Cir. 2006). Finally,
the Court may only “consider the facts alleged in the
complaint, documents attached thereto or incorporated
therein, and matters of which it may take judicial
notice.” Id. This means the Court may consider
the Common Interest Agreement, which is attached to the
12(b)(6) is also “the vehicle for asserting the
affirmative defense of statutory time limitation.”
Peart v. Latham & Watkins LLP, 985 F.Supp.2d 72,
80 (D.D.C. 2013). “[B]ecause statute of limitations
issues often depend on contested questions of fact, dismissal
is appropriate only if the complaint on its face is