UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

) EUGENE NYAMBAL, ) ) Plaintiff, ) ) v. ) ) Civil Action No. 14-1904 (EGS) ALLIEDBARTON SECURITY ) SERVICES,LLC ) ) Defendant. ) )

MEMORANDUM OPINION

I. Introduction

On January 26, 2016, the Court dismissed plaintiff Eugene

Nyambal’s (“Mr. Nyambal”) suit against defendant AlliedBarton

Security Services, LLC (“AlliedBarton”) for damages related to

the company’s alleged role in facilitating his removal from the

International Monetary Fund’s (“IMF”) and the World Bank’s

Washington, D.C. locations. See Nyambal v. AlliedBarton Security

Servs., LLC,

(D.D.C. 2016). Shortly

thereafter, Mr. Nyambal filed a motion for reconsideration,

arguing that the Court clearly erred when it dismissed his

defamation claim. See Recons. Mot., ECF No. 17. Mr. Nyambal also

filed a motion for leave to file a supplemental memorandum in

light of newly discovered evidence in support of his motion for

reconsideration. See Mot. to Suppl., ECF No. 36. Having

considered both motions, the responses and replies thereto, and

1 the applicable law, the Court DENIES Mr. Nyambal’s motion to

file a supplemental memorandum in support of his motion for

reconsideration and GRANTS his motion for reconsideration. The

Court finds that Mr. Nyambal stated a defamation claim.

II. Background

The factual background of this case is thoroughly set out

in the Court’s prior Opinion and will not be repeated in full.

See Nyambal,

. To provide context,

however, the Court summarizes the case’s procedural history and

the facts relevant to Mr. Nyambal’s defamation claim.

A. Procedural History

Mr. Nyambal filed suit against AlliedBarton in the Superior

Court of the District of Columbia on October 9, 2014. Compl.,

ECF No. 1-3. AlliedBarton removed the case to the U.S. District

Court for the District of Columbia and filed a motion to

dismiss. Notice of Removal, ECF No. 1.; Am. Mot. to Dismiss, ECF

No. 7. On January 26, 2016, the Court dismissed Mr. Nyambal’s

complaint, finding that he failed to state a claim against

AlliedBarton for: (1) tortious interference with business

relationships; (2) defamation; (3) intentional infliction of

emotional distress; and (4) civil conspiracy. See Nyambal,

.

On February 23, 2016, Mr. Nyambal filed a motion for

reconsideration, arguing that the Court wrongly dismissed his

2 defamation claim. See Recons. Mot., ECF No. 17. On October 26,

2017, Mr. Nyambal filed a motion for leave to file a

supplemental memorandum in support of his motion for

reconsideration in light of newly discovered evidence. See Mot.

to Suppl., ECF No. 36. Both motions are opposed. 1

B. Relevant Facts

Defendant AlliedBarton provides security services to the

IMF and the World Bank, international organizations that promote

global economic development. Compl., ECF No. 1-3 ¶¶ 2-4.

Plaintiff Mr. Nyambal is a “distinguished economist,” who served

as a senior advisor at the IMF until he was fired in June 2009,

purportedly in retaliation for raising “serious concerns” about

the lack of transparency and potential corruption in a Cameroon

mining project. Id. ¶¶ 1, 6-7. In order to “silence and punish”

Mr. Nyambal for whistleblowing, the IMF and AlliedBarton

allegedly conspired to “blacklist [him] by posting his name and

picture on the World Bank’s ‘No Admit List.’” Id. ¶ 10. Based on

the information within an IMF “blacklisting memo,” AlliedBarton

“place[d] his name and picture on the World Bank’s ‘No Admit’

list, which . . . prevent[s] individuals deemed a security

1 Mr. Nyambal also filed a motion for leave to file an amended complaint and a motion to alter or amend judgment. See ECF Nos. 26, 28. The Court denied both motions, given Mr. Nyambal’s motion for reconsideration was fully briefed and pending resolution. See May 17, 2017 Minute Orders. 3 threat from entering the premises.” Id. ¶¶ 16, 20. As a result,

Mr. Nyambal was denied access to the World Bank in July 2013 2 and

October 2013. Id. ¶¶ 11, 13.

On October 9, 2013, Mr. Nyambal sought to enter the World

Bank with a colleague to attend the World Bank’s Annual Meeting

to “meet with government officials and secure contracts.” Id. ¶

13. Despite having a three-day pass, Mr. Nyambal was denied

access, which “publicly humiliated [him] in the presence of

former colleagues, professional acquaintances, and government

officials.” Id. At least one potential client was “advised” that

Mr. Nyambal was on the World Bank’s and the IMF’s Do Not Admit

lists. Id. ¶ 15. Mr. Nyambal’s contract negotiations “have come

to a halt” as a result of this alleged blacklisting. Id.

On June 5, 2014, Mr. Nyambal met with representatives from

the World Bank and AlliedBarton. Id. ¶ 17. The World Bank

“declined” any responsibility for Mr. Nyambal’s inclusion on the

Do Not Admit list. Id. ¶ 16. The World Bank also sent him a

redacted version of the IMF’s “blacklisting memo,” which

confirmed that his name was included on the Do Not Admit list.

Id. According to Mr. Nyambal, AlliedBarton allegedly

“acknowledged that Nyambal’s blacklisting [in October 2013] was

2 The Court found that Mr. Nyambal’s claims were subject to a one-year statute of limitations. Nyambal,

- 15. Therefore, it only considered the encounters that occurred in October 2013 and thereafter. 4 triggered by the information provided by the IMF to the World

Bank through AlliedBarton.” Id. ¶ 17.

III. Mr. Nyambal’s Motion for Leave to File a Supplemental Memorandum in Support of his Motion for Reconsideration

Mr. Nyambal moves to file a supplemental memorandum in

support of his motion for reconsideration “pursuant to Federal

Rule of Civil Procedure 15(a)(2) and 15(d). . . .” See Mot. to

Suppl., ECF No. 36-2 at 1. However, neither Rule 15(a) nor Rule

15(d) allow Mr. Nyambal to file a supplemental memorandum in

support of a motion. Rule 15(a)(2) provides that “a party may

amend its pleading only with the opposing party's written

consent or the court's leave.” Fed. R. Civ. P. 15(a)(emphasis

added). Rule 15(d) provides that “the court may, on just terms,

permit a party to serve a supplemental pleading setting out any

. . . event that happened after the date of the pleading to be

supplemented.” Fed. R. Civ. P. 15(d)(emphasis added). Plainly,

Rule 15 allows a party to amend or supplement pleadings;

however, motions are not considered pleadings. See Fed. R. Civ.

P. 7(a) (defining pleadings); Fed. R. Civ. P. 7(b)

(distinguishing a motion from a pleading); see also Sokos v.

Hilton Hotels Corp.,

, 54 n.7 (D.D.C. 2003)

(“Rule 15(a) applies to the amendment of ‘pleadings,’ which are

specifically defined by Federal Rule of Civil Procedure 7(a) and

5 this definition does not apply to . . . motions or oppositions

thereto.”).

Nonetheless, the Court has “the discretion to allow parties

to supplement the record of a case.” Marsh v. Johnson,

(D.D.C. 2003)(citations omitted). Mr. Nyambal

argues that leave to supplement is warranted because his

supplemental memorandum addresses “newly discovered evidence”

that “goes to the basis of why the Court dismissed his claim . .

. [because] it shows the level of knowledge and control the

Defendant has concerning security and blacklisting . . . .” Mot.

to Suppl., ECF No. 36 at 3. The evidence includes an IMF

administrative order outlining the procedural steps the

organization must take before imposing sanctions on employees,

see Exs. 1-3, ECF No. 36-2; the IMF’s public description of its

Security Services team, Ex. 4, ECF No. 36-2; and AlliedBarton’s

public job description of its IMF security officer position, Ex.

5, ECF No. 36-2. Mr. Nyambal argues that this evidence “probably

would have changed the outcome” of his defamation claim. Mot. to

Suppl., ECF No. 36-2 at 8.

The Court dismissed Mr. Nyambal’s defamation claim based on

his failure to state a claim, not because of insufficient

evidence. Nyambal,

. In so doing,

the Court evaluated the “legal sufficiency” of the complaint

itself, not the “truth of what is asserted” or “whether a

6 plaintiff has any evidence to back up what is in the complaint.”

Browning v. Clinton,

(D.C. Cir.

2002)(quotations and citations omitted). Therefore, even if

these exhibits had been included, the Court would not have

considered them. As discussed below, the Court grants Mr.

Nyambal’s motion for reconsideration based only on the

allegations within his complaint.

Accordingly, the Court DENIES Mr. Nyambal’s motion for

leave to file a supplemental memorandum.

IV. Mr. Nyambal’s Motion for Reconsideration

Mr. Nyambal moves for reconsideration pursuant to Federal

Rule of Civil Procedure 59(e), arguing that the Court clearly

erred when it dismissed his defamation claim. Recons. Mot., ECF

No. 17 at 2, 4-14. Mr. Nyambal argues that the Court should have

found that AlliedBarton plausibly published false and defamatory

statements about him when it included his name and picture on

the World Bank’s Do Not Admit list. See

A motion to alter or amend a judgment under Federal Rule of

Civil Procedure 59(e) “is discretionary and need not be granted

unless the district court finds that there is an intervening

change of controlling law, the availability of new evidence, or

the need to correct a clear error or prevent manifest

injustice.” Messina v. Krakower,

(D.C. Cir.

2006)(quotations and citations omitted). “In this Circuit, it is

7 well-established that motions for reconsideration cannot be used

as an opportunity to reargue facts and theories upon which a

court has already ruled, nor as a vehicle for presenting

theories or arguments that could have been advanced

earlier.” Estate of Gaither ex rel. Gaither v. District of

Columbia,

(D.D.C. 2011)(quotations and

citations omitted). A district court's denial of a request for

this extraordinary relief is reviewed only for abuse of

discretion. See Messina,

.

In dismissing Mr. Nyambal’s defamation claim, the Court

found that he had not pled the third element of defamation: that

AlliedBarton acted negligently. Instead, the Court determined

that Mr. Nyambal had insufficiently imputed liability through a

theory of civil conspiracy. Nyambal,

. The

Court pointed to the paragraphs of the complaint in which Mr.

Nyambal alleged that the defamatory information was “provided by

the IMF to the World Bank through AlliedBarton.”

(quoting

Compl., ECF No. 1-3 ¶¶ 17, 20)(emphasis in Opinion). On that

basis, the Court concluded that the IMF was the “only entity”

alleged to have the power to decide which names were included on

the Do Not Admit list.

. Therefore, the Court

determined that “AlliedBarton cannot be found negligent for

publishing Mr. Nyambal's name on the Do Not Admit List because

8 it is not alleged that AlliedBarton published his name on the

list.”

Mr. Nyambal argues that the Court misread his complaint and

conflated the “blacklisting memo” with the “Do Not Admit list”

when it concluded that the IMF was the only entity that

published his name on the Do Not Admit list. Recons. Mot., ECF

No. 17 at 6-7. Mr. Nyambal contends that a “closer read” of the

complaint shows that he “distinguished” the blacklisting memo

from the Do Not Admit list, attributing “the source of the

former to the IMF and the latter to the Defendant.” Id. at 7.

Therefore, the Court “should have decided that Plaintiff

sufficiently alleged multiple distinct writings [attributable to

AlliedBarton] which communicated defamatory statements (DNA

list) about him.” Id. To support this argument, he points to

several paragraphs in his complaint in which he “repeatedly

asserts that AlliedBarton was either independently or jointly

responsible for the publication of the defamatory Do Not Admit

list.” Id. at 9-12 (citing Compl., ECF No. 1-3 ¶¶ 10, 13, 16,

17, 20, 21). Mr. Nyambal alternatively argues that even if the

IMF was the only entity who published the Do Not Admit list,

AlliedBarton is still liable because it republished the list

when it sent it to the World Bank. Id. at 11-12 (citing Ingber

v. Ross,

, 1269 (D.C. 1984) for the proposition

9 that “each publication of a defamatory statement, including

republication, is a separate tort.”).

AlliedBarton opposes, arguing that Mr. Nyambal continues to

rely on a theory of civil conspiracy and did not plead that

AlliedBarton had the authority to publish any defamatory

statements. Opp’n Recons. Mot., ECF No. 18 at 4-6. Because Mr.

Nyambal makes “no effort” to explain how an “independent vendor

providing security” had any reason to know of Mr. Nyambal’s

whistleblowing activity, AlliedBarton contends that the “only

reasonable inference is that AlliedBarton did not act on its

own, and therefore, could not have acted negligently.” Id. at 5.

To state a defamation claim under District of Columbia law,

one must allege: (1) the defendant made a false and defamatory

statement about the plaintiff; (2) the defendant published the

statement without privilege to a third party; (3) the

defendant's fault in publishing the statement amounted to at

least negligence; and (4) the statement was actionable as a

matter of law. Solers, Inc. v. Doe,

(D.C.

2009). The Court found that Mr. Nyambal had not alleged the

third element: that AlliedBarton was negligent in publishing the

defamatory statement. See Nyambal,

.

To satisfy this third “fault” element, a plaintiff must

allege that the defendant was at least negligent in publishing

the alleged defamatory statement. Therefore, the plaintiff must

10 allege “a failure to observe an ordinary degree of care in

ascertaining the truth of an assertion before publishing it to

others, i.e., a failure to make a reasonable investigation as to

truth.” Kendrick v. Fox Tel.,

, 822 (D.C.

1995) (quoting Moss v. Stockard,

(D.C.

1990)). This determination is fact-intensive; “courts consider

the circumstances surrounding a defendant’s publication of an

allegedly defamatory statement.” Parnigoni v. St. Columbia’s

Nursery Sch.,

(D.D.C. 2010)(citing Mandel

v. Boston Phoenix, Inc.,

(1st Cir.

2006) (deferring to the jury's factual determination that a

reporter published a defamatory statement negligently by failing

to read “pertinent documents available to her,” failing to

contact several individuals who might have “opposing views,”

“incorrectly characterizing [a] report [and] misrepresenting its

findings and the identity of the party for whom it was

prepared,” and “guess[ing]” about the contents of a file)).

The Court originally concluded that AlliedBarton could not

have been negligent as a matter of law because the IMF was the

only entity alleged to have published Mr. Nyambal’s name on the

Do Not Admit list. Nyambal,

. However,

upon careful consideration, the Court agrees with Mr. Nyambal

that he did allege that AlliedBarton “place[d] his name and

picture on the World Bank’s ‘No Admit List’”. Compl., ECF No. 1-

11 3 ¶ 20. Mr. Nyambal also alleged that AlliedBarton sent the

IMF’s blacklisting memo to the World Bank. Id. ¶¶ 10, 17

(“Nyambal’s blacklisting . . . was triggered by the information

provided by the IMF to the World Bank through AlliedBarton”)

(emphasis added).

That notwithstanding, AlliedBarton argues that Mr. Nyambal

failed to allege that AlliedBarton had the authority to publish

the defamatory statements independent of its relationship with

the IMF. Opp’n Recons. Mot., ECF No. 18 at 3-4. However, at this

stage of the litigation, the Court cannot assess AlliedBarton’s

degree of authority, autonomy, or culpability. Accepting Mr.

Nyambal’s allegations as true, it is plausible that AlliedBarton

had some degree of authority and some degree of responsibility

over the information it conveyed to the World Bank. See Compl.,

ECF No. 1-3 ¶¶ 10, 17, 20. As the IMF’s “security services

company,” it is at least plausible that AlliedBarton made some

determination about whether Mr. Nyambal was a security threat,

warranting placement on a Do Not Admit list. Id. ¶ 2. Without

the benefit of discovery, the Court has no information regarding

the efforts, if any, that AlliedBarton took to ascertain whether

Mr. Nyambal actually warranted inclusion on the World Bank’s Do

Not Admit list. See Parnigoni,

(concluding, with the benefit of discovery, that a reasonable

jury could find that the defendant’s dissemination of defamatory

12 letters was negligent because there was no evidence to suggest

that the letters were warranted under the circumstances).

Having concluded that Mr. Nyambal did plead the third

element of defamation, the Court must now evaluate whether he

pled the other elements of defamation: (1) that AlliedBarton

made a false and defamatory statement about him; (2) that

AlliedBarton published the statement without privilege to a

third party; and (4) that the defamatory statement was

actionable as a matter of law. See Solers,

.

In its motion to dismiss, AlliedBarton argues that Mr.

Nyambal did not plead the first two elements of defamation. Am.

Mot. to Dismiss, ECF No. 7-1 at 9-11. First, it argues that Mr.

Nyambal's claim fails because he does not identify any statement

“made by AlliedBarton of which he was the subject,” let alone a

defamatory statement. Id. at 9-10. Additionally, AlliedBarton

argues that Mr. Nyambal fails to identify third parties who were

“exposed to his exclusion.” Id. at 10-11.

Mr. Nyambal contends that publishing his name and photo on

the Do Not Admit list constitutes a defamatory statement because

“anyone labeled a security threat by a leading international

organization . . . cannot plausibly continue a career in

international development.” Opp’n Mot. to Dismiss, ECF No. 9 at

6-7. Finally, he argues that the defamatory statements were

published to the public and his professional colleagues. Id.

13 In evaluating a defamation claim, a court must first

determine whether a statement is capable of defamatory meaning,

a question of law. Weyrich v. New Republic, Inc.,

(D.C. Cir. 2001). 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.” Moss

v. Stockard,

(D.C. 1990). The “allegedly

defamatory remark must be more than unpleasant or offensive; the

language must make the plaintiff appear ‘odious, infamous, or

ridiculous.’” Howard Univ. v. Best,

(D.C.

1984)(citations omitted). A court’s power to find that a

statement is not defamatory as a matter of law is limited; “[i]f

it appears that the statements are at least capable of a

defamatory meaning, [then] whether they were defamatory and

false are questions of fact to be resolved by the jury.” Moss,

(emphasis added). “It is only when the court

can say that the publication is not reasonably capable of any

defamatory meaning and cannot be reasonably understood in any

defamatory sense that it can rule as a matter of law, that it

was not [defamatory].” White v. Frat. Order of Police,

(D.C. Cir. 1990) (quoting Levy v. Am. Mut. Ins.

Co.,

(D.C. 1964)).

Mr. Nyambal’s inclusion on the Do Not Admit list may

reasonably be capable of a defamatory meaning because it calls

14 into question his professionalism and “tends to lower [him] in

the estimation of a substantial, respectable group”: the

international development community. Afro-Am. Publ’g Co. v.

Jaffe,

, 654 n.10 (D.C. Cir. 1966). In Houlahan v.

Freeman Wall Aiello, the plaintiff—an investigative journalist—

had alleged facts sufficient to infer that the defendant’s

statements were capable of defamatory meaning because the

statements “either explicitly or implicitly called into question

his professionalism as a journalist.”

(D.D.C. 2014). Here, including Mr. Nyambal on the Do Not Admit

list reasonably could imply that Mr. Nyambal was dangerous and

not respectable because the list is “ordinarily maintained for

people deemed to represent a security threat to the World Bank

and its staff members.” Compl., ECF No. 1-3 ¶ 10. Thus, Mr.

Nyambal’s inclusion could certainly lower his professional

reputation at the World Bank, a key organization for those in

the international economic development field. See id. ¶ 15.

Accordingly, at this stage of the proceedings, the Court cannot

conclude that labeling Mr. Nyambal as a security threat “cannot

be reasonably understood in any defamatory sense” as a matter of

law. White,

.

Mr. Nyambal also sufficiently pled that he was not a

security threat. “Falsity and defamatory meaning ‘are distinct

elements of ... defamation and are considered separately.’”

15 Carpenter v. King,

(D.D.C. 2011) (quoting

White,

). “The burden of proving falsity rests

squarely on the plaintiff . . . [who] must demonstrate either

that the statement is factual and untrue, or an opinion based

implicitly on facts that are untrue.” Lane v. Random House,

(D.D.C. 1995). Mr. Nyambal alleges that he

should not have been included as a security threat on the Do Not

Admit list and that his inclusion was in retaliation “for his

public denunciations of the IMF’s role in the Cameroon mining

project.” Compl., ECF No. 1-3 ¶¶ 10, 13.

The Court must also find that Mr. Nyambal pled the second

element of defamation: that AlliedBarton published the

defamatory statement to a third party. See Solers,

. “Publication requires making a statement to at least one

other person.” Westfahl v. District of Columbia,

(D.D.C. 2014) (citing Charlton v. Mond,

,

438 n.4 (D.C. 2010)); see also Restatement (Second) of Torts §

577(1) (1977)(“ Any act by which the defamatory matter is

intentionally or negligently communicated to a third person is a

publication . . . . it is necessary that the defamatory matter

be communicated to someone other than the person defamed.”). Mr.

Nyambal pled that AlliedBarton “place[ed] his name and picture

on the World Bank’s ‘No Admit’ list.” Compl., ECF No. 1-3 ¶ 20.

His blacklisting was allegedly “triggered by the information

16 provided by the IMF to the World Bank through AlliedBarton.” Id.

¶ 17 (emphasis added). It is therefore reasonable to conclude

that AlliedBarton plausibly published the defamatory statement

when it sent the list to the World Bank, a third party.

Finally, Mr. Nyambal pled the fourth element of defamation:

the defamatory statement is actionable irrespective of special

harm. “ One who publishes a slander that . . . would adversely

affect [a plaintiff’s] fitness for the proper conduct of his

lawful business, trade or profession . . . is subject to

liability without proof of special harm.” Ingber v. Ross,

(D.C. 1984)(citing Restatement (Second) Torts §

573 (1976)). As discussed above, including Mr. Nyambal’s name on

the Do Not Admit list tends to injure him in his profession. Mr.

Nyambal pled that his inclusion on the Do Not Admit List, and

subsequent exclusion from the World Bank, “seriously damaged”

his “employability in the development community and ability to

earn a living.” Compl., ECF No. 1-3 ¶ 14.

Therefore, because Mr. Nyambal stated a defamation claim,

the Court GRANTS his motion for reconsideration.

V. Conclusion

Upon careful consideration of Mr. Nyambal’s complaint and

the Court’s opinion in Nyambal v. AlliedBarton Security Servs.,

LLC,

(D.D.C. 2016), the Court agrees that it

erred in dismissing Mr. Nyambal’s defamation claim. Mr.

17 Nyambal’s motion for reconsideration is therefore GRANTED.

Because Mr. Nyambal stated a claim for defamation, he may seek

discovery only for this claim. The Court also DENIES Mr.

Nyambal’s motion for leave to file a supplemental memorandum.

The parties are further directed to meet and confer as

required by Federal Rule of Civil Procedure 26(f) and Local

Civil Rule 16.3. The parties shall file a meet and confer report

by no later than November 1, 2018.

A separate Order accompanies this Opinion.

SO ORDERED.

Signed: Emmet G. Sullivan United States District Judge October 17, 2018

18