UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA _________________________________________ ) JOEY D. GONZALEZ RAMOS, ) ) Plaintiff, ) ) v. ) Case No. 18-cv-01690 (APM) ) ADR VANTAGE, INC., ) ) Defendant. ) _________________________________________ )

ORDER

Before 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.

Count I: Defamation

Defendant offers a raft of disjointed arguments for why Plaintiff’s defamation claim must

be dismissed. None are persuasive.

First, 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,

(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.], ¶ 34.1

Second, 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.,

(D.C. Cir. 2007) (quoting Moss v. Stockard,

(D.C. 1990)). Here, Plaintiff has identified multiple purportedly false statements that he

claims have injured his professional reputation. See Compl. ¶¶ 33–34, 36.

Third, 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.,

(D.D.C. 2018) (quoting Croixland

Properties Ltd. Partnership v. Corcoran,

(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.

1 According to Plaintiff, he did receive redacted versions of the report through two separate FOIA requests more than one year before filing suit. See Compl. ¶¶ 33–34. Thus, it may be that some of the purportedly defamatory statements contained in the report are not actionable. The court cannot, however, draw a firm conclusion at this stage.

2 Fourth, 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,

(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,

(1845)). But such privilege is qualified, not absolute. See

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,

(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,

(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,

, 138–39

(D.D.C. 2009) (rejecting application of qualified privilege on motion to dismiss where there were

“disputed questions of fact”).

Finally, 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

3 imply a provably false fact, or rely upon stated facts that are provably false.” Moldea v. New York

Times Co.,

(D.C. Cir. 1994). The defense of a “legitimate expression of opinion

. . . cannot . . . be made on the basis of the complaint, standing alone.” Wallace,

.

For these reasons, Plaintiff’s defamation claim may proceed to discovery.

Count IV: False Light Invasion of Privacy

The 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,

(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 Dismiss.

Count III: Intentional Infliction of Emotional Distress

Next up 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,

(1978); cf. Amobi v. D.C. Dep’t

of Corr.,

(D.C. Cir. 2014) (holding that incident report “contain[ing] several

glaring omissions, and at least one false statement” could constitute “extreme and outrageous”

conduct). Plaintiff’s claim thus may proceed.

4 Count II: Civil Conspiracy

Finally, as to Plaintiff’s claim of civil conspiracy, Defendant argues that “[t]here [was] no

agreement to perform an unlawful act” and “Plaintiff’s complaint is deficient because it merely

alleges that there was some sort of conspiracy with some unknown person.” Def.’s Mem. at 6.

Defendant’s first contention fails because it is premised on an affidavit. See

(citing

“Exhibit 4,” which is the Affidavit of Diane Lipsey, see Def.’s Mot., Exs., at 52–53). The court

cannot consider an affidavit on a motion to dismiss without converting it to a motion for summary

judgment. See Fed. R. Civ. P. 12(d).

As to Defendant’s second assertion, to support a claim of civil conspiracy, the complaint

must contain “enough factual matter (taken as true) to suggest that an agreement was made.” Bell

Atlantic Corp. v. Twombly,

(2007). A mere conclusory allegation is not enough.

Courts in this circuit have recognized that “a plaintiff need not allege that an express or formal

agreement was entered into.” United States ex rel. Tran v. Comput. Scis. Corp.,

(D.D.C. 2014). In fact, “in most civil conspiracy cases,” courts are required to “infer an

agreement from indirect evidence.” Halberstam v. Welch,

(D.C. Cir. 1983). In

this case, the gist of Plaintiff’s claim is that his co-workers took the opportunity to spread lies and

falsehoods about him through Defendant’s workplace report and that Defendant agreed to use the

report for that malicious purpose. See Compl. ¶¶ 16–18, 48. Proof to support that theory seems

unlikely. But viewing the allegations in the light most favorable to Plaintiff, the court finds that

Plaintiff has made out a plausible claim of civil conspiracy. See Twombly,

(stating

that “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of

those facts is improbable”).

5 For the foregoing reasons, Defendant’s Motion to Dismiss is denied.

Dated: December 19, 2018 Amit P. Mehta United States District Judge

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