3M COMPANY, Plaintiff, v. BOULTER, et al., Defendants.
Civil Action No. 11-cv-1527 (RLW).
United States District Court, District of Columbia.
Feb. 2, 2012.
Christopher E. Duffy, Melissa B. Felder, Boies, Schiller & Flexner, LLP, Washington, DC, for Defendant Porton Capital, Inc.
MEMORANDUM OPINION
ROBERT L. WILKINS, District Judge.
Plaintiff 3M Company (“3M“) has sued Defendants Lanny J. Davis, Lanny J. Davis & Associates, PLLC, Davis-Block LLC (collectively the “Davis Defendants“), and Harvey Boulter, Porton Capital Technology Funds, Porton Capital, Inc. (collectively the “Porton Defendants“) for a number of claims, including commercial defamation, tortious interference with contract and prospective business relations, and civil conspiracy. See First Amended Complaint (“FAC“).
Before the Court are the following sets of preliminary motions: 1) Defendants’ Special Motions to Dismiss under the
FACTUAL SUMMARY
3M has brought claims against the Defendants for: Intimidation and Blackmail under United Kingdom (U.K.) law (Count I); Tortious Interference with Existing and Prospective Business Advantage (Count II); Tortious Interference with Contract (Count III); Commercial Defamation (Count IV); Injurious Falsehood and Business Disparagement (Count V); Breach of Fiduciary Duty (Count VI); Aiding and Abetting (Count VII); and Civil Conspiracy (Count VIII). 3M seeks compensatory and punitive damages from Defendants, as well as injunctive relief.
3M‘s factual allegations have been set forth fully in the First Amended Complaint, and have been repeated numerous times at length in the parties’ briefs. Accordingly, the Court will not restate all thе factual allegations here.
The Underlying Dispute: the BacLite Litigation in London
As part of its plan to expand into the global diagnostics market, 3M U.K. Holdings Limited (3M‘s wholly-owned subsidiary) acquired all of the outstanding shares of Acolyte Biomedica Limited (“Acolyte“), a company whose only commercially-available product at the time was BacLite. (FAC ¶ 42). BacLite is a test that screens for MRSA (Methicillin Resistant Staphylococcus aureus bacteria), commonly known as a “superbug.” (FAC ¶ 42). Because superbugs such as MRSA are resistant to conventional antibiotics, they are of “special concern to medical professionals.” (FAC ¶ 42).
Acolyte sold 3M on the potential that BacLite would fill a market void. (FAC ¶ 43). At the time, other screening tests for MRSA were either slower and cheaper ($2-3 per test with results in 48-72 hours) or much faster but more expensive (approximately $25 per test with results in 1-
3M entered into a Sales and Purchase Agreement (“SPA“) to purchase Acolyte. (FAC ¶ 45). Under the SPA, Acolyte‘s selling shareholders (the “vendors“) had the opportunity to receive conditional earn-out payments on net sales of BacLite through December 2009. (FAC ¶ 45). The vendors of Acolyte included the U.K. Ministry of Defense (“MoD“), which had been involved in the development of BacLite, and Defendant Porton Technology, an investment fund directed by Defendant Harvey Boulter.1 (FAC ¶¶ 28-29). Boulter is also the Chief Executive Officer of Porton Capital, the investment manager of Boulter‘s funds. (FAC ¶ 28). According to 3M, Boulter had “developed significant relationships” within the U.K. government through his businesses. (FAC ¶ 30).
Although 3M actively marketed BacLite in many countries and began to seek regulatory approval for the product, it became apparent to 3M that BacLite performed much poorer in clinical trials thаn Acolyte had initially represented. (FAC ¶¶ 45-48). 3M ultimately determined that BacLite was not commercially viable for several reasons, including: 1) that BacLite was not “robust” because it was incapable of meeting its claimed performance in a real world environment; 2) that BacLite was overly complicated to use, thus increasing the chances for error in clinical environments; and 3) that the middle-market niche that 3M had hoped to fill with BacLite had “unexpectedly narrowed.” (FAC ¶ 49).
Having determined that BacLite would not be commercially viable in the U.S., Canada or Australia, 3M sought the vendors’ consent (as required by the SPA) in July 2008 to stop marketing BacLite. (FAC ¶¶ 49-52). Under the SPA, the vendors could not unreasonably withhold such consent. (FAC ¶ 52). 3M offered the vendors $1.07 million, which was the amount that 3M had expected to receive from BacLite sales through December 2009. (FAC ¶ 52). The Boulter Defendants, however, were not satisfied and instead sought to “wring” tens of millions of dollars from 3M—an amount “much greater than that to which they were entitled.” (FAC ¶ 53). According to 3M, it was at approximately this time that Defendants began their “campaign of harassment and intimidation.” (FAC ¶ 53).
3M‘s Allegations of Intimidation, Coercion and Defamation
3M alleges that the Porton Defendants first sought to threaten 3M‘s CEO George Buckley (“Buckley“). (FAC ¶¶ 54-56). Boulter‘s friend informed Buckley via e-mail that he and Boulter had influence over several groups of 3M investors who owned material positions of 3M stock, that Boulter and his friend had informed the investors of 3M‘s position regarding Acolyte, and that the investors were threatening to sell their entire positions. (FAC ¶ 54). Through these e-mails, Boulter “threatened 3M with a crippling sell-off of 3M‘s stock, and commensurate damage to 3M‘s value” if 3M did not accede to his demands. (FAC ¶ 57). 3M does not allege that it or Buckley capitulated to those
In December 2008, certain vendors, including the Porton Defendants, ultimately sued 3M in the U.K. High Court in London for breach of the SPA (the “BacLite Litigation“). (FAC ¶ 59). Although 3M does not specify this in its Complaint, the Court takes judicial notice of thе fact that, besides the Porton Defendants, the other claimant in the BacLite Litigation was Ploughshare Innovations Limited, “an investment arm of the UK Ministry of Defence” and a subsequent shareholder in Acolyte. (Dkt. No. 28-1 at 18). Among other things, the claimants alleged that 3M breached the SPA because it failed to market BacLite actively and obtain regulatory approval in the United States. (FAC ¶ 59). Those claimants “repeatedly demanded” that 3M pay them nearly $66 million, the maximum potential amount of earn out payments under the SPA. (FAC ¶¶ 58-59).
3M alleges that, leading up to the U.K. trial in 2011, the Porton Defendants hired Washington, D.C. lawyer Lanny J. Davis and began a scheme to extract $30 million from 3M in two ways: 1) by launching “a comprehensive, international, and unrelenting bombardment of sensational and false accusations against 3M in the global media“; and 2) by attempting “to leverage access to the U.K. MoD.” (FAC ¶¶ 60-63). 3M claims that Davis became the “mastermind[][of] Defendants’ scheme against 3M” and was the “spider in the web” of Defendants’ alleged conspiracy.2 (FAC ¶¶ 17, 61-62).
First, Davis began a “defamatory media blitz” against 3M. (FAC ¶¶ 64-65). That campaign focused on 3M‘s decision to withdraw its efforts to market and obtain regulatory approval for BacLite. (FAC ¶¶ 66-79). Some of the alleged defamatory conduct included:
- Publishing press releases which claimed that 3M had dropped BacLite out of “bad faith” and had dealt dishonestly with the FDA. (FAC ¶¶ 66, 74).
- Filing a “sham‘s citizen‘s petition” which Davis submitted to the FDA on behalf of the Porton Defendants. (FAC ¶¶ 66, 78-79). In the petition, Defendants request that the FDA investigate 3M and hold an evidentiary hearing to determine, among other things, whether 3M intentionally botched the BacLite clinical trial in order to promote 3M‘s own MRSA detection product. (Id.).
- Making statements accusing 3M and Buckley of being responsible for the deaths of MRSA victims, including statements during an “international press conference” at which Davis claimed that “thousands and thousands and thousands of people who died [from MRSA] might be alive today had there been a BacLite....” (FAC ¶ 70).
- Davis’ coordination of “fake public demonstrations” attended by “pretend protestors” purportedly affected by 3M‘s decision not to market BacLite. (FAC ¶¶ 66, 76).
- Davis’ creation of a web site called www.MRSAINJUSTICE.com, in which Defendants republished false and defamatory allegations against 3M. (FAC ¶ 77).
3M alleges that Davis made such statements intentionally, maliciously, and with knowledge that the statements were false
Defendants’ Alleged Extortionate Threats
3M claims that Defendants then sought to interfere with 3M‘s existing business with the U.K. government, and did so by meeting with then-Minister of Defense Dr. Liam Fox. (FAC ¶¶ 80-83).
In June 2011, 3M‘s attorneys were engaged in settlement discussions with Davis regarding the BacLite Litigation. (FAC ¶ 84). Despite efforts to settle, 3M‘s counsel terminated the settlement discussions with Davis on June 9, 2011 because the parties were too far apart. (FAC ¶ 84). On June 16, 2011, Boulter met privately with Fox in Dubai. (FAC ¶ 83). 3M claims that, although much of what occurred at the meeting is subject to debate, there is no dispute that Boulter and Fox discussed the BacLite Litigation.3 (FAC ¶ 83). According to 3M, Defendants began to use that meeting to attempt to extort money from 3M. (FAC ¶ 93). 3M claims that:
- On June 17, 2011, Davis placed an unsolicited phone call to 3M‘s attorney and suggested that 3M speak directly with Boulter. Davis subsequently sent an email, on which Boulter was copied, granting 3M express authorization to speak directly with Boulter. (FAC ¶ 85). In that e-mail, Davis also acknowledged to Boulter that his meeting with Dr. Fox had “given [Boulter] even stronger reason not to come down very [sic] in $34m position.” (FAC ¶ 86). According to 3M, the purpose of Davis’ authorization was to allow Boulter to communicate “an illegal extortionate threat.” (FAC ¶ 86).
- Later that day, Boulter called 3M‘s attorney, informed him that he had met with Fox, and that Fox had told him that if 3M did not resolve the BacLite Litigation to his satisfaction, “there would be repercussions for 3M and Buckley.” (FAC ¶ 87).
- On June 18, 2011, Boulter e-mailed 3M‘s attorney and, among other things, stated that he had met with Dr. Fox regarding “our current favourite topic.” Boulter claimed that he had been given authority to settle the BacLite Litigation on behalf of the MoD, and again asked for $30mn. Boulter informed 3M‘s counsel that, if 3M did not settle, that might leave the U.K. Government “quietly seething, with ramifications for a while.” Boulter also referred to the fact that David Cameron‘s Cabinet would be shortly “discussing the rather embarrassing situation of [Buckley‘s] knighthood,” and that the topic was “discussed today.” (FAC ¶¶ 89, 91).
3M alleges that these communications “constituted an overt attempt by the Defendants, acting in concert, to blackmail, extort and intimidate 3M....” (FAC ¶ 93). Those threats were meant to communicate the message that, if 3M did not settle the BacLite litigation, Defendants would interfere with 3M‘s current and future business relationships with the U.K. Government and would interfere with Buckley‘s “planned investiture as a Knight Bachelor.” (FAC ¶¶ 90-91, 93). 3M does not allege that it capitulated to these threats or that Buckley, ultimately, was not knighted by the Queen of England. Instead, 3M claims that it responded by filing suit and “expos[ing]” Defendants. (FAC ¶ 94).
On November 7, 2011, the U.K. High Court issued its judgment. The High Court found that 3M had breached the SPA, but that the claimants were entitled only to damages of approximately $1.3 million. (FAC ¶¶ 60, 105; Dkt. No. 28-1 at ¶ 158). That amount, according to the court, reflected the amount of the conditional earn out payments to which claimants would have been entitled. (FAC ¶¶ 60, 105).
3M‘s Damages
3M alleges that, on account of Defendants’ actions, 3M has suffered harm to its reputation and goodwill, and to its existing and prospective business relations with the U.K. Government. (FAC ¶¶ 110-15). 3M alleges that Defendants acted on their threats to interfere with 3M‘s “longstanding relationships” with the MoD and the U.K. Government, and that, on account of such conduct, 3M‘s total direct and indirect sales to the MoD have decreased by 25 percent from 2010 to 2011. (FAC ¶ 113). 3M alleges that over the same period, its direct and indirect sales to the U.K. government have decreased by 54 percent. (FAC ¶ 113). Moreover, 3M alleges that bids it has submitted to the U.K. government have “gone nowhere.” (FAC ¶ 114).
PROCEDURAL HISTORY
3M filed its original Complaint on August 24, 2011, and its First Amended Complaint on December 9, 2011. (FAC ¶ 94). 3M later dismissed that complaint, amended it, and re-filed it in this Court. After receiving the original Complaint, and without any discovery having taken place, Defendants filed special motions to dismiss 3M‘s claims under
3M has filed a Motion to Strike Defendants’ special motions to dismiss, claiming that the Act is ultra vires and, in any event, does not apply in a federal court sitting in diversity. Defendants have also moved to dismiss the claims in the First Amended Complaint under
ANALYSIS
I. THE D.C. ANTI-SLAPP ACT OF 2010
Defendants have filed their “special motions to dismiss” pursuant to the
The Act allows a party to file a special motion to dismiss “any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.”4
The Act further requires that discovery be stayed until the motion is resolved. See
II. THE D.C. ANTI-SLAPP ACT‘S APPLICABILITY IN A FEDERAL COURT SITTING IN DIVERSITY
3M argues that, under the Erie doctrine, the cabined discovery provisions of
a. Relevant Standards
The
This case presents the question of whether a Federal Rule of Civil Procedure applies in the face of a conflicting state law. As the Supreme Court recently recognized, thе framework for deciding this question is “familiar.” Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., — U.S. —, 130 S.Ct. 1431, 1437 (2010).
If the federal rule answers or covers the question in dispute, the federal rule governs unless it is invalid. Shady Grove, 130 S.Ct. at 1437; Stewart, 487 U.S. at 27. The Court does not “wade into Erie‘s murky waters unless the federal rule is inapplicable or invalid.” Shady Grove, 130 S.Ct. at 1437 (citing Hanna v. Plumer, 380 U.S. 460, 469-71 (1965)).
b. The Supreme Court‘s Opinion in Shady Grove
The Supreme Court recently applied this test in considering whether a New York law governing class actions precluded a federal court sitting in diversity from entertaining a class action under
Both the district court and the United States Court of Appeals for the Second Circuit held that the state law applied in federal diversity actions. The Second Circuit found no conflict between the two rules because it concluded that
The Supreme Court disagreed and reversed. Justice Scalia delivered the opinion of the Court as to the first step of the
The Court first looked at the text and scope of
The Supreme Court‘s decision in Shady Grove, among others, provides clear guidance on how to analyze purported conflicts between the Federal Rules of Civil Procedure and state laws. The Court first looks at whether the federal rule, fairly construed, answers or covers the question in dispute. See Shady Grove, 130 S.Ct. at 1437; Burlington Northern, 480 U.S. at 4-5; Walker, 446 U.S. at 747-48. The Supreme Court instructs that the federal rule is not to be “narrowly construed in order to avoid a ‘direct collision’ with state law,” but that the federal rule is to be given its plain meaning. Walker, 446 U.S. at 748-50 & n. 9; see also Shady Grove, 130 S.Ct. at 1442 (when construing federal rule, “[w]e cannot contort its text, even to avert a collision with state law....“); 19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4508, 251 (2d ed. 1996) (hereinafter “Wright & Miller“) (stating that Supreme Court has rejected any suggestion that the Federal Rules of Civil Procedure should be “construed narrowly or distorted in order to avoid what otherwise would be a direct collision with state law.“).
c. Federal Rules of Civil Procedure 12 and 56
With the framework the Supreme Court has mandated, this Court turns to whether
(d) Result of Presenting Matters Outside the Pleadings. If, on a motion under
Rule 12(b)(6) or12(c) , matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment underRule 56 . All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion.
The language that currently appears in
This amendment to
A prevailing view emerged. Most courts to consider the issue held that matters outside the pleadings could be considered on a
[i]n so holding, we do not indicate that disputed questions of fact involved in the merits of claim or defense may necessarily be fought out as preliminary issues raised upon motions. The affidavits filed by the parties here raised no fact controversy, but a question of law. No problem arising out of a possible claim to jury trial is involved.
Thus, the purpose of the language added by the 1946 Amendment “was to resolve the split of authority concerning ‘speaking motions’ by providing a definite basis in the federal rules for the treatment of
Accordingly, the Advisory Committee Notes to the 1946 Amendment clearly explain that
Rule 12(b)(6) , permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. [Citations omitted.]It has also been suggested that this practice could be justified on the ground that the federal rules permit “speaking” motions. The Committee entertains the view that on motion under
Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated inRule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term “speaking motion” is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion.The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous
matter, may resolve questions of fact on conflicting proof would be left uncertain. * * * *
The addition at the end of subdivision (b) makes it clear that on a motion under
Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided inRule 56 . It will also be observed that if a motion underRule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the dispоsition of the motion.
In support of this explanation of the Rule, the Advisory Committee cited approvingly several circuit court opinions that had reversed dismissals on the merits based on consideration of matters outside of the pleadings where the district court did not follow the summary judgment standard. In several of those cases, defendants had sought dismissal not merely because the complaint failed a state a claim as a matter of law, but also based on the contention that the facts did not support the allegations in complaint. In one such case cited by the Advisory Committee, the court explained:
Counsel for defendant and the court below apparently misconceived the purpose and effect of defendant‘s motion to dismiss the amended complaint. They were seemingly concerned with the question whether the plaintiff had a meritorious claim upon which she was entitled ultimately to prevail, rather than with the sole question presented, which was whether the amended complaint, construed in the light most favorable to the plaintiff and with all doubts resolved in favor of its sufficiency, stated a claim upon which relief could be granted.
* * * *
In view of the means which the Rules of Civil Prоcedure afford a defendant to obtain a speedy disposition of a claim which is without foundation or substance, by either securing a more definite statement or a bill of particulars under
Rule 12(e) and thereafter applying for judgment on the pleadings underRule 12(h)(1) , or by moving for a sum-mary judgment under Rule 56 , we think there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim.
Leimer v. State Mut. Life Assurance Co., 108 F.2d 302, 304-06 (8th Cir. 1940). Recently, the Supreme Court explained Leimer as standing for “the unobjectionable proposition that, when a complaint adequately states a claim, it may not be dismissed based on a district court‘s assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8 (2007) (discussing
Thus, the Supreme Court has recently affirmed the intent and purpose of
d. The Law of This Circuit
The United States Court of Appeals for the District of Columbia Circuit agrees that
Normally,
Rule 12(b) requires that where ‘matters outside the pleading are presented to and not excluded by the court, the motion (to dismiss for failure to state a cause of action) shall be treated as one for summary judgment and disposed of as provided inRule 56 , and all parties shall be given reasonable opportunity to present all material made pertinent to (a summary judgment) motion byRule 56 .’Rule 12(b), Fed. R. Civ. P. ... Before the adoption of the quoted provision ofRule 12(b) in 1948, material extrinsic to the pleadings was often considered on motions to dismiss, by both trial and appellate courts. E.g., Farrall v. District of Columbia A.A.U., 153 F.2d 647; National War Labor Board v. Montgomery Ward & Co., 144 F.2d 528, certiorari denied 323 U.S. 774; Boro Hall Corp. v. General Motors Corp., 124 F.2d 822 (2d Cir. 1942); and see Advisory Committee‘s Note to 1948 amendment toRule 12(b) . This practice has continued since the 1948 amendment.
Callaway v. Hamilton Nat. Bank of Wash., 195 F.2d 556, 558-59 & n. 2 (D.C. Cir. 1952) (emphasis added). Thus, Callaway construed the 1946 amendments to
e. The “Special Motions to Dismiss” Procedure Under the D.C. Anti-SLAPP Act Attempts to Answer the Same Question as Rules 12 and 56
Having now interpreted the meaning and scope of
The special motion to dismiss procedure under the
(a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.
(b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demon-
strates that the claim is likely to succeed on the merits, in which case the motion shall be denied. (c)(1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of. (2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specialized discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery.
(d) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice.
Simply put, the Act allows a defendant on a preliminаry basis to deal a deathly blow to a plaintiff‘s claim on the merits based either on the pleadings or on matters outside the pleadings. There is no question that the special motion to dismiss under the Anti-SLAPP Act operates greatly to a defendant‘s benefit by altering the procedure otherwise set forth in
When considering a special motion to dismiss,
Defendants argue that
To the extent that Defendants and the District place any significance on the fact that the label “special motion to dismiss” is nowhere in the federal rules and, as such, a motion so labeled does not explicitly conflict with
Although the conversion provision in
Rule 12(b) expressly applies only to the defense described inRule 12(b)(6) , it is not necessary that the moving party actually label the motion as one under that provision in order for it to be converted into a motion for summary judgment. The element that triggers the conversion is a challenge to the sufficiency of the pleader‘s claim supported by extra-pleading material. As many cases recognize, it is not relevant how the defense actually is denominated in the motion.
5C Wright & Miller § 1366 at 148 (emphasis added).13 Moreover, this Circuit made
Finally, Defendants argue that “a number of federal statutes permit a party to file a motion that is not mentioned or authorized by the Federal Rules,” and therefore
f. The Special Motions to Dismiss Procedure Strips a Federal Court of Discretion Otherwise Granted in the Federal Rules of Civil Procedure
Another reason that the
in the literal language of the last sentence of
The Supreme Court‘s unanimous opinion in Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), on which the majority opinion in Shady Grove relies,16 is controlling here. In Burlington Northern, the Court considered whether, in diversity actions, a federal court must apply an Alabama state statute that imposed a fixed penаlty on appellants who obtained stays of judgment pending unsuccessful appeals. The Alabama statute provided for mandatory damages in the amount of 10 percent of the trial court judgment anytime an appellant had sought a stay of a monetary judgment pending appeal and the judgment was affirmed on appeal without substantial modification. Id. at 3-4, 107 S.Ct. 967. The purpose of the Alabama “mandatory affirmance penalty,” quite analogous to the purpose of the D.C. Anti-SLAPP Act, was to penalize frivolous appeals and appeals interposed for delay and to provide “additional damages” to appellees “for having to suffer the ordeal of defending the judgments on appeal.” Id. at 4, 107 S.Ct. 967.
The Supreme Court held that the Alabama state statute could not apply in a federal diversity case because it conflicted with
[
Rule 38‘s ] discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama‘s affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute‘s field of operation so as to preclude its application in federal diversity actions.
Id. at 7, 107 S.Ct. 967. Significantly, the Court rejected an argument similar to one made by the District in this case: that
ignores the significant possibility that a court of appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court‘s judgment.
Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court‘s exercise of discretion under Alabama‘sRule 38 , that Rule provides no authority for defining the scope of discretion allowed underFederal Rule 38 .
Thus, the Supreme Court in Burlington Northern explained that the Alabama rule conflicted with the federal rule even though the federal court might at times find grounds to impose the same penalties specified in the Alabama statute. The direct conflict was borne out of the fact that the state law deprives the federal court of discretion on a categorical basis. For this precise reason, the D.C. Anti-SLAPP statute conflicts with Federal Rules
Pursuant to the unanimous opinions in Burlington Northern and Walker, as well as the majority opinion in part II-A of Shady Grove and other Supreme Court cases, the first obligation of the Court is to construe the applicable federal rule according to its plain meaning and the relevant explanations provided in the Advisory Committee Notes. This Court holds that the text and structure of Rules
g. Opinions From Other Circuits
The District and Defendants rely heavily on the United States Court of Appeals for the First Circuit‘s decision in Godin v. Schencks, 629 F.3d 79 (1st Cir.2010). There, the First Circuit held that Maine‘s Anti-SLAPP statute applied in federal diversity cases because Federal Rules
Instead of first interpreting the scope and meaning of the federal rules, as was done in Shady Grove and other cases, the First Circuit appears to have found no conflict based on a side-by-side comparison of the federal rules and the Maine statute. Id. at 88-89. According to the court, the Maine statute did not seek to displace the Federal Rules or have the rules cease to function partly because the Maine statute “is only addressed to special procedures for state claims based on a defendant‘s petitioning activity.” Id. Moreover, the First Circuit found that the scope of Rules
Importantly, the First Circuit conceded that, under the Maine statute, a court would be required on a preliminary basis to evaluate material factual disputes that it would not otherwise evaluate on a
Inherent in
Rule 56 is that a fact-finder‘s evaluation of material factual disputes is not required. But Section 556 [the Maine statute] serves the entirely distinct function of protecting those specific defendants that have been targeted with litigation on the basis of their protected speech. When applicable, Section 556 requires a court to consider whether the defendant‘s conduct had a reasonable basis in fact or law, andwhether that conduct caused actual injury. Fed.R.Civ.P. 56 cannot be said to control those issues.
Id. at 89 (emphasis added). Citing this language from Godin, the District acknowledges that a court applying the D.C. Anti-SLAPP Act would, at times, also be required to resolve disputed facts, even where it would not otherwise do so under
The First Circuit also held that the Maine statute must apply in federal court because it creates substantive rights, such as substantive legal defenses for а defendant, shifting burdens to a plaintiff, and because it substantively alters the type of harm that is actionable by requiring “actual injury.” Id. at 89-90. As the First Circuit observed, it is “not the province of either
This Court need not conclusively decide whether the D.C. Anti-SLAPP Act creates any substantive rights. Because this Court finds that Rules
To provide a special motion for the quick and efficient dismissal of strategic lawsuits against public participation, to stay discovery proceedings until the special motion is considered, to provide a motion to quash attempts to seek personal identifying information and to award the costs of litigation to the moving party on a successful special motion.
58 D.C.Reg. 741 (Jan. 28, 2011) (emphasis added). The D.C. Council could have, but chose not to, simply granted a defendant an immunity that could be invoked via a
Likewise, the Court disagrees with the opinion of the United States Court of Appeals for the Ninth Circuit in United States v. Lockheed Missiles & Space Co., 190 F.3d 963, 972 (9th Cir.1999). There, the Ninth Circuit found no conflict between Federal Rules
This Court recognizes that other courts, in construing specific state Anti-SLAPP statutes, have come to various conclusions about the applicability of those statutes in a federal court sitting in diversity. To the extent that other courts have concluded that the specific state dismissal procedures operated essentially the same as Rules
Based on the Ninth Circuit‘s opinion in Metabolife, it appears that the ultimate view of the Ninth Circuit is that the California Anti-SLAPP Statute can only be applied as long as it is consistent with the standards of Rules
h. Rules Enabling Act
Having found that Rules
Accordingly, challenges to the Federal Rules can succeed “only if the Advisory Committee, [the Supreme] Court, and Congress erred in their prima facie judgment that the Rule in question transgresses neither the terms of the Enabling Act nor constitutional restrictions.” Bus. Guides, 498 U.S. at 552, 111 S.Ct. 922 (quoting Hanna, 380 U.S. at 471, 85 S.Ct. 1136). Notably, the Supreme Court has rejected every Rules Enabling Act challenge to a Federal Rule that has come before it. Shady Grove, 130 S.Ct. at 1442 (plurality); see also id. at 1457 (“the bar for finding an Enabling Act problem is a high one.“) (Stevens, J., concurring).
Similarly, this Court does not find that Rules
III. SPECIAL MOTIONS TO DISMISS
Under the D.C. Anti-SLAPP Act, the Davis Defendants have moved to dismiss 3M‘s claims for commercial defamation (count IV), injurious falsehood and business disparagement (count V), breach of fiduciary duty (count VI), aiding and abetting (count VII), and civil conspiracy (count VIII). (Dkt. No. 55).22 The Porton Defendants have moved to dismiss the same claims, except they do not move to dismiss the breach of fiduciary duty claim brought solely against the Davis Defendants. (Dkt. No. 57). Having found that the special motion to dismiss procedure under the Anti-SLAPP Act does not apply to a federal court sitting in diversity, the Court denies Defendants’ special motions to dismiss.
IV. 3M‘s MOTION TO STRIKE SPECIAL MOTIONS TO DISMISS
Given this Court‘s holding that
V. DEFENDANTS’ RULE 12 MOTIONS TO DISMISS
a. Porton Defendants’ Rule 12(b)(2) Motion to Dismiss for Lack of Personal Jurisdiction
When personal jurisdiction is challenged under
In analyzing the claims of personal jurisdiction over the Porton Defendants, it is important to note that 3M has not yet completed service over Harvey Boulter. Moreover, 3M does not request that this Court stay determination of the
It is undisputed that the Porton Defendants themselves were never physically present in the District of Columbia and that they never personally performed any of the alleged tortious acts here. As 3M alleges, the Porton Defendants are organized under the laws of the Cayman Islands and do business in the U.K., Dubai and other international jurisdictions. (FAC ¶¶ 10-11). 3M argues that D.C.‘s long-arm statute,
To establish conspiracy jurisdiction, the plaintiff must allege: 1) the existence of a civil conspiracy; 2) the defendant‘s participation in the conspiracy, and 3) an overt act by a coconspirator within the forum, subject to the long-arm statute, and in furtherance of the conspiracy. See FC Inv. Grp. v. IFX Markets, Ltd., 529 F.3d 1087, 1096 (D.C.Cir.2008). To allege a civil conspiracy, the plaintiff must plead with particularity: 1) an agreement between two or more persons; 2) to participate in an unlawful act, or to participate in a lawful act in an unlawful manner; 3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; 4) pursuant to, and in furtherance of, the common scheme. Exec. Sandwich Shoppe, Inc. v. Carr Realty Corp., 749 A.2d 724, 738 (D.C.2000). “Bald speculation or a conclusory statement that individuals are co-conspirators is insufficient to establish personal jurisdiction under a conspiracy theory.” Jungquist v. Sheikh Sultan Bin Khalifa Al Nahyan, 115 F.3d 1020, 1031 (D.C.Cir.1997) (internal quotation marks and citations omitted); see also Edmond v. United States Postal Service General Counsel, 949 F.2d 415, 428 (D.C.Cir.1991) (stating that “our cases clearly require unusually particularized pleading [of the elements of conspiracy jurisdiction].“).
3M has failed to meet its burden to plead a conspiracy between the Porton Defendants and the Davis Defendants with particularity. Beyond alleging that Davis, a lawyer, represented the Porton Defendants, there are no facts or fair inferences from facts to support the element of an agreement between the parties to participate in an unlawful act. 3M does not specify, moreover, how the Porton Defendants participated in that conspiracy for jurisdictional purposes. 3M‘s claims of conspiracy jurisdiction against the Porton Defendants are bald and conclusory statements insufficient to establish jurisdiction over them. For these reasons, the Court finds that 3M has failed to meet its burden to make a prima facie showing as to conspiracy jurisdiction.
3M next argues that this Court may exercise personal jurisdiction over the Porton defendants under the D.C. long arm statute because Davis “transacted business” in the District as the Porton Defendants’ agent and 3M‘s claims arose from that conduct. See
Setting aside the issue of whether the Porton Defendants were “transacting business” under the statute merely by hiring an attorney (Davis) to represent them, 3M has wholly failed to address the Porton Defendants’ substantial argument that an exercise of personal jurisdiction over them would offend traditional notions of fair рlay and substantial justice, would not comport with due process, and that 3M‘s allegations fall “far short” of the basic constitutional requirements for establishing jurisdiction. (Dkt. No. 31-3 at 17-23; Dkt. No. 51-2 at 4 n. 6).24 Although the statutory and constitutional jurisdictional questions “merge into a single inquiry” under
Despite exchanging numerous briefs with Defendants---including two rounds of briefing on the
b. Davis Defendants’ Rule 12(b)(6) Motions to Dismiss
“To survive a motion to dismiss under
A court considering a
In evaluating a
i. Count One: Intimidation Under English Law
3M claims that Defendants are liable for the tort of intimidation under English law, citing Boulter‘s allegedly extortionate communications to 3M‘s attorney regarding settling the London Litigation. No party appears to dispute that English law applies to this claim, and both parties have submitted declarations from lawyers in England to assist the Court with an understanding of English law.27
There is no dispute that the U.K. Court of Appeals recently stated that “the essential ingredients of the tort of intimidation” are: 1) a threat by the defendant to do something unlawful or illegitimate; 2) the threat must be intended to coerce the plaintiff to take or refrain from taking some action; 3) the threat must in fact coerce the plaintiff; and 4) the plaintiff must incur loss or damage as a result of the coercion. (Dkt. No. 30–2 at 19) (citing Berezovsky v. Abramovich, [2011] All ER (D) 253(Feb); [2011] EWCA Civ 153) (emphasis added).
3M fails to allege actual coercion/capitulation and resulting damages from the alleged intimidation, and, as such, its claim must be dismissed. It is undisputed that 3M did not in fact settle the BacLite litigation, despite Defendants’ urgings. 3M argues, however, that a “plaintiff may suffer harm for intimidation even if it does not capitulate to the blackmailer‘s demand; plaintiff incurs intimidation damages by taking steps to mitigate or forestall the effect of a blackmail threat.” (Dkt. No. 43 at 65). For that proposition, 3M cites only the declaration of Stephen Auld, 3M‘s expert witness on English law. Although Auld admits that the “very recent” Berezovsky case lists coercion in fact as an element, he claims based solely on his view and not on any cited case law, that English law should not require actual coercion or capitulation in these circumstances. See Auld Decl. ¶¶ 5.7.1–5.7.4 (stating that, although the Berezovsky case “gives, at the present, the clearest indication of the essential ingredients [of intimidation], it does not conclusively define them.“); see also id. ¶ 5.7.6 (“It is also likely in my view that, where the effect of the intimidation is not that the plaintiff submits to the illegitimate threat but, instead takes (costly) steps to mitigate the effect of the threat should it be carried out, the plaintiff should be able to recover the cost of those steps by way of damages. As far as I am aware, there is no case which has had to address this particular issue ...“) (emphasis added).
3M, therefore, asks this Court to ignore the language of the Berezovsky case, which Auld admits requires coercion in fact, and instead rely on the opinion of Auld regarding where he believes the case law will head in the future. Against the clear statement of elements in the Berezovsky case, and the lack of foundation for Auld‘s opinion on this specific issue, this Court holds that 3M was required to plead that it actually capitulated to Defendants’ alleged threats. Because it failed to do so, 3M‘s claim for intimidation against the Davis Defendants is dismissed.
ii. Counts Two and Three: Tortious Interference with Contract and Tortious Interference with Existing and Prospective Advantage
3M‘s claims for tortious interference with contract and with existing and prospective advantage will also be dismissed. 3M argues that D.C. law should apply to its claim for tortious interference with existing and prospective business advantage, while Defendants claim that U.K. law should apply. Assuming for 3M‘s benefit that D.C. law applies to this claim, 3M has still failed to state a claim.
To establish a claim for tortious interference, a plaintiff must prove: (1) the existence of a valid contractual or other business relationship; (2) the defendant‘s knowledge of the relationship; (3) intentional interference with that relationship by the defendant; and (4) resulting damages. See NCRIC, Inc. v. Columbia Hosp. for Women Med. Ctr., Inc., 957 A.2d 890, 900 (D.C.2008).
In support of this claim, 3M alleges that Defendants “have wrongfully, intentionally, maliciously and in bad faith taken actions to interfere with 3M‘s existing and prospective business relatiоnships with the U.K. Government through unlawful means.” (FAC ¶ 128). Although 3M claims in a conclusory fashion that it has “suffered identifiable losses to its prospective business relationships” with the MoD, it gives only two specific instances. (FAC ¶ 114). In one instance, 3M alleges that it submitted a contract to the MoD “which has not yet been acted upon, and may be re-bid.” (FAC ¶ 114). In another instance, 3M‘s efforts to obtain a contract with the MoD have “also gone nowhere.” (FAC ¶ 114).
3M has failed to allege any facts to support a conclusion or inference that the Davis Defendants intentionally interfered with 3M‘s existing and prospective business relationships or contracts with the U.K. government. For its proposition that it has “more than adequately pleaded” intentional interference for this claim, 3M relies on the allegations in its Amended Complaint at ¶¶ 6, 90, 80-104, 112-14, and 126-134. (Dkt. No. 58 at 16 n. 70). Upon a careful review of those allegations, however, none of those factual allegations support 3M‘s conclusion. 3M does not allege, for example, that the Davis Defendants had contact with the U.K. government professionals responsible for making those decisions or that Davis had any communications with the U.K. government at all. There are no circumstantial facts, moreover, that reflect that, on account of anything the Davis Defendants specifically did, 3M‘s bids went “nowhere.”
Moreover, to the extent that 3M attempts to impute to Davis the communications made by Boulter to Dr. Fox, the Court finds that those facts do not support the inference that Boulter interfered with or threatened to interfere with any of 3M‘s existing or prospective contractual relationships within the MoD. Boulter states in the e-mail that he was “authorized” to speak on behalf of the MoD—a co-plaintiff in the BacLite litigation. Boulter‘s statements that the MoD government may be upset with 3M for not settling the litigation on the MoD‘s terms, moreover, do not support the specific conclusion or fair inference that “Fox, or others within the U.K. Government, would take steps to interfere with 3M‘s current and future relationships with that government.” (FAC ¶ 90). Boulter was discussing how his co-plaintiff in the BacLite litigation may react if 3M did not settle the case. The allegations are too attenuated to establish that the Davis Defendants interfered with the prospective contracts identified by 3M. 3M argues that these are factual issues that must be resolved later on summary judgment or at trial. The Court disagrees. Although the Court must accept all the well-pleaded allegations as true and resolve all inferences in 3M‘s favor, the Court need not accept inferences that are not supported by the facts alleged. See Browning, 292 F.3d at 242.
In addition to failing to prove the “intentional interference” element, 3M‘s claim for tortious interference with contract (Count Three) must be dismissed for failure to allege an actual breach or failure of performance. This count is based on 3M‘s allegation that Defendants’ conduct interfered with an existing “enabling contract” that 3M had signed with the U.K. government in March 2011.28 (FAC ¶ 113). Pursuant to that contract, the U.K. government was to purchase an estimated “10,000” air filters, and a “minimum order quantity” of 1,920 units in “Year 1” of the contract. (FAC ¶ 113). Although 3M does not specify when “Year 1” begins or ends, 3M alleges that as of September 30, 2011, the U.K. government had only purchased 406 units. (FAC ¶ 113). 3M does not allege that the U.K. government actually breached the contract or that either party has of yet failed to perform under that contract.
3M implicitly admits that it has not pled an actual breach of the enabling contract because it argues that an actual breach is not an essential element of tortious interference with contract under D.C. law. See Dkt. No. 58 at 8 (“3M is not required to establish an actual breach, failure of performance is sufficient.“). The parties disagree over whether D.C. law requires 3M to plead an actual breach or merely failure of performance on the part of the third party. This Court need not resolve this issue, because, even assuming it were sufficient for 3M to plead a “failure of performance,” it has failed to do so. (FAC ¶ 113). Although 3M has alleged a reduction in business with the U.K. government, it has given no specific examples of actual contracts except for the March 2011 “enabling contract.” (FAC ¶ 113). Despite 3M‘s claims otherwise, it has not pled that the U.K. government has failed to perform under that contract. 3M has only pled that in “Year 1,” which 3M implicitly acknowledges is not yet over (see FAC ¶ 113), the U.K. government has not yet met its estimated minimum order quantity. This case does not fall in line with the cases 3M cites for the proposition that a plaintiff need only plead a failure to perform. See, e.g., Casco Marina Dev., LLC v. District of Columbia Redevelopment Land Agency, 834 A.2d 77, 83 (D.C.2003) (third party cancelled contract with plaintiff); Sorrells v. Garfinckel‘s, Brooks Bros., Miller & Rhoads, Inc., 565 A.2d 285, 289-90 (D.C.1989) (employer cancelled employment contract with employee). As such, the tortious interference with contract claim will be dismissed.
iii. Count Four: Commercial Defamation
The Davis Defendants’ motion to dismiss 3M‘s claim for commercial defamation is denied. To show defamation under District of Columbia law, a plaintiff must allege that: 1) the defendant made a false and defamatory statement concerning the plaintiff; 2) that the defendant published the statement without privilege to a third party; 3) that the defendant‘s fault in publishing the statement amounted to at least negligence; and 4) either that the statement was actionable as a matter of law irrespective of special harm or that its publication caused the plaintiff special harm. See Oparaugo v. Watts, 884 A.2d 63, 76 (D.C.2005). The Court finds that 3M has stated a claim for defamation against the Davis Defendants through the allegations of the Amended Complaint.
The Davis Defendants make numerous arguments why 3M‘s claim must be dismissed, and this Court need not address all of them at this time. The Court will note, however, a few points. First, the Davis Defendants claim that all of the allegedly defamatоry statements are statements of opinion or statements of non-verifiable facts and, as such, are protected from liability. The Court finds that 3M has made detailed allegations of defamatory statements, such as Davis’ statement that “thousands and thousands and thousands of people who died might be alive today had there been a BacLite” (FAC ¶ 70). See Moss v. Stockard, 580 A.2d 1011, 1023 (D.C.1990) (“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.“) (internal citations and quotation marks omitted). This statement, among others, are reasonably susceptible of defamatory meaning and are actionable. See Klayman v. Segal, 783 A.2d 607, 613 (D.C.2001) (“We will not dismiss a complaint under
Moreover, the Davis Defendants contend that their statements were all protected by the “fair comment” privilege and that 3M failed to overcome that privilege by pleading actual malice. (Dkt. No. opening memo at 17-19; Dkt. No. 50 at 18-19). The Court finds that 3M‘s allegations of Davis’ statements--particularly those in reference to 3M‘s responsibility for thousands of MRSA deaths or exposures (FAC ¶¶ 66-70)--reflect actual malice and/or bad faith on their face and cannot be dismissed at this stage. Whether 3M will be able to defeat any potential privileges or substantiate its claims are, of course, questions for another day. 3M‘s claim for defamation, therefore, is sufficient to withstand
iv. Count Five: Injurious Falsehood and Business Disparagement
Defendants seek to dismiss 3M‘s claim for Injurious Falsehood and Business Disparagement. Although Defendants claim that the District of Columbia does not recognize a separate tort of business disparagement, 3M does not appear to contest that point. 3M lists both torts in the same count, and does not conduct a separate analysis in its brief with respect to businеss disparagement. (Dkt. No. 58 at 10-12). 3M‘s claim is based on the same allegedly defamatory statements upon which its defamation claim is based.
To assert a claim for injurious falsehood, a plaintiff must allege that: 1) Defendants made an unprivileged publication of false statements concerning 3M‘s property or products; 2) Defendants’ publication was made with knowledge or reckless disregard of the falsity of the statements, and 3) special damages. Whetstone Candy Co. v. National Consumers League, 360 F.Supp.2d 77, 81 (D.D.C.2004). The special damages element is subject to a heightened pleading standard. Browning, 292 F.3d at 245. This heightened standard applies because “‘special damages,’ unlike general damages, are ‘not the necessary consequence of [the] defendant‘s conduct, [but] stem from the particular circumstances of the case.‘” Id. (quoting 5 Wright & Miller, § 1310 at 700 (2d ed.1990)). A plaintiff “can satisfy this pleading obligation by identifying either particular customers whose business has been lost or facts showing an established business and the amount of sales before and after the disparaging publication, along with evidence of causation.” Id.; see also
3M concedes that it must plead special damages to survive dismissal on this claim. (Dkt. No. 58 at 12). 3M argues, however, that it has met this heightened pleading standard because it has identified particular customers whose business has been lost, valid business expectancies, and “evidence of causation.” In support for the fact that it has pled causation, 3M directs this Court to the allegations in its Amended Complaint at ¶¶ 64-79, 153-160. (Dkt. No. 58 at 12 n. 53). A close examination of those allegations, however, reflect no facts supporting the conclusion that 3M‘s actual damages were the “natural and direct result” of Defendants’ conduct. See Browning, 292 F.3d at 245 (plaintiff must allege special damages “with particularity and specify facts showing that such special damages were the natural and direct result of the dеfendant‘s conduct.“). In fact, the allegations of causation upon which 3M relies for this claim are conclusory statements alleging that Defendants caused damage to 3M, with no specific facts reflecting that causation. See FAC ¶¶ 154; 160; 158 (“As a natural, direct, and proximate result of Defendants’ wrongful actions, 3M has suffered special damages, as identified herein, the full amount which will be proven at trial.“). As such, Defendants’ motion to dismiss this claim will be granted.
v. Count Six: Breach of Fiduciary Duty (only against Davis)
3M‘s claim against Davis for breach of fiduciary duty will be dismissed. 3M alleged that, in 2000 while Davis was an attorney at the law firm Patton Boggs LLP, 3M retained Davis to provide “crisis management” services in connection with “issues 3M was facing.” (FAC ¶ 62). 3M also alleges that, during that time, Davis had access to 3M‘s litigation strategy “playbook” and that Davis later used those strategies to exert pressure against 3M in 2011. (FAC ¶ 62). 3M does not allege specifically how Davis used the information from the “playbook” or how that act proximately caused 3M‘s injuries.
To state a claim for breach of fiduciary duty under D.C. law, a plaintiff
vi. Count Seven: Aiding and Abetting
3M‘s сlaim for aiding and abetting will be dismissed. According to the District of Columbia Court of Appeals, to which this Court looks on issues of District of Columbia law, the tort of aiding and abetting is not recognized under District law. In Flax v. Schertler, 935 A.2d 1091, 1108 n. 15 (D.C.2007), the District of Columbia Court of Appeals stated that: “[a]lthough the Halberstam court [the case upon which 3M relies] predicted that this court would recognize a tort of aiding and abetting tortious conduct, we have not done so to date, and we are not bound by that court‘s ruling.” Flax (citing M.A.P. v. Ryan, 285 A.2d 310, 312 (D.C.1971)). To the extent that 3M relies on this Circuit‘s 1983 opinion in Halberstam v. Welch, 705 F.2d 472 (D.C.Cir.1983) to support its proposition that such a tort does exist under D.C. law, it is the District of Columbia Court of Appeals’ holding—and not this Circuit‘s prediction—that must control in this case. See M.A.P., 285 A.2d at 312.
vii. Count Eight: Civil Conspiracy
As stated previously, to allege a conspiracy, a plaintiff must plead with particularity: 1) an agreement between two or more persons; 2) to participate in an unlawful act, or to participate in a lawful act in an unlawful manner; 3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; 4) pursuant to, and in furtherance of, the common scheme. Executive Sandwich, 749 A.2d at 738.
For the same reasons outlined in Part V(a) above, 3M fails to state a claim for civil conspiracy against the Davis Defendants. Despite 3M‘s colorful characterizations that Davis acted as the “spider in the web” and mastermind of Defendants’ alleged scheme and that his offices were the “nerve center” of Defendants’ conspiracy, 3M has failed to allege with particularity an agreement between Davis and the other Defendants to commit an unlawful act. 3M‘s allegations about Davis notwithstanding, the well-pleaded facts do not give rise to a “plausible” inference that a conspiracy existed.
CONCLUSION
For the foregoing reasons, Defendants’ Special Motions to Dismiss under the D.C. Anti-SLAPP Act are denied, 3M‘s Motion to Strike is denied as moot, 3M‘s Cross Motion for Discovery is denied as moot, the Porton Defendants’
Notes
Stewart, 487 U.S. at 26-27 n. 4 (internal citations omitted). Although the Court in Stewart analyzed a federal statute, as opposed to a Federal Rule of Civil Procedure, this Court sees no meaningful distinction (and neither did the Supreme Court) between the two for purposes of this step of the analysis.Our cases at times have referred to the question at this stage of the analysis as an inquiry into whether there is a “direct collision” between state and federal law. Logic indicates, however, and a careful reading of the relevant passages confirms, that this language is not meant to mandate that federal law and state law be perfectly coextensive and equally applicable to the issue at hand; rather the “direct collision” language, at least where the applicability of a federal statute is at issue, expresses the requirement that the federal statute be sufficiently broad to cover the point in dispute. It would make no sense fоr the supremacy of federal law to wane precisely because there is no state law directly on point.
Despite the fact that Part II-A was a majority opinion, the District argues that Justice Stevens’ analysis should govern the Court‘s determination of the first question in dispute in this case. The District claims [Dkt. No. 32 at 22, n. 12] that Justice Stevens’ concurring opinion can be considered the holding based on the rationale set forth in Marks v. United States, 430 U.S. 188, 193 (1977), that when “a fragmented Court decides a case and no single rationale explaining the result enjoys the assent of five Justices, the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.” Marks, 430 U.S. at 193 (quoting Gregg v. Georgia, 428 U.S. 153, 169 n. 15 (1976) (opinion of Stewart, Powell, and Stevens, JJ.)). This Court disagrees.
Although some other courts may rely on Justice Stevens’ concurrence in Shady Grove for determining the first question (i.e., whether the federal rules cover the dispute at issue or answer the same question as the state law), this Court believes that the analysis set forth in Part II-A of Shady Grove is the controlling test that district courts must apply. Part II-A was a majority opinion, and that majority opinion governs over a concurrence. Moreover, the Supreme Court‘s unanimous opinions in cases such as Walker and Burlington Northern set forth how a court should determine whether a federal rule “answers the question” or “covers the point” in dispute. The Supreme Court has not overruled those cases, and Justice Stevens’ concurrence in Shady Grove did not (and could not) overrule those cases. To the extent that other courts have relied upon Marks for the proposition that Justice Stevens’ concurrence governs over Part II-A of Shady Grove, Marks is inapposite. The language the District and other courts cite from Marks was in reference to whether there was any holding to come out of Memoirs v. Massachusetts, 383 U.S. 413 (1966). In Memoirs, unlike Shady Grove, there was no majority opinion as to any issue. In such an instance, the Supreme Court held, quite reasonably, that the narrowest concurring opinion in Memoirs would constitute the holding of the Court.
The Court does not believe that this reasoning from Marks can or should be stretched to apply to the situation in Shady Grove, where there was a majority opinion joined by five Justices as to Part II-A. The majority did not concur merely in the result as to Part II-A. The majority assented to the opinion and, thus, the analysis. As such, Part II-A of Shady Grove governs over any concurring opinion. See 21 C.J.S. Courts § 198 (2011).
In July 1999, the United States District Court for the Central District of California found a conflict between
In 2001, the Ninth Circuit also held that the California statute‘s discovery-limiting provisions directly collided with the discovery procedures of