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Moldea v. Ovitz

United States District Court, District of Columbia

February 6, 2019

DAN E. MOLDEA, Plaintiff,



         This 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:[1] 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. ¶ 8.

         Busch 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.

         Perhaps 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.

         According 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.

         But 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.

         Moldea 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.

         Moldea 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.

         Ovitz 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 letter.[2]

         For the reasons explained below, the Court rejects all three arguments and will deny Ovitz's motion to dismiss.

         I. Legal Standards

         Under 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).

         A 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 complaint.

         Rule 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 ...

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