Wednesday, March 1, 2023

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The United States District Court for the District of Columbia (Judge Timothy Kelly) granted judgment on the pleadings to a defendant attorney sued by his former client.

This case is an episode in a long-running row between Plaintiff and Defendant, Plaintiff’s former lawyer. Having repeatedly failed to vindicate his belief that Defendant owes him money under their representation agreement, Plaintiff now sues alleging torts arising mostly from their first legal clash. Because he has not stated claims, the Court will enter judgment on the pleadings for Defendant.

Defendant had represented Plaintiff in a D.C. Superior Court case

Plaintiff’s case settled in 2013 without the award of any damages, and the same day, Defendant charged Plaintiff’s credit card for his services. Compl. at 6. Defendant also announced that he would keep Plaintiff’s retainer. Compl. at 6–7. Plaintiff disputed those charges, and so requested arbitration before a D.C. lawyer-client arbitration board. See Compl. at 43. Defendant then sued Plaintiff in Virginia state court. See Compl. at 8

Plaintiff, though, believed Defendant was bound by D.C. attorney-ethics rules to arbitrate their dispute. See Compl. at 8. He told Defendant so, and suggested that the two proceed to arbitration instead. See ECF No. 15-1 at 4–5. Defendant refused, claiming that any arbitration would require his consent—and that he would not agree. Id. at 5. Plaintiff replied with more information, and Defendant conceded that he did not “know anything” about the D.C. arbitration program, “having never used it before.” Id. at 6. But Defendant claimed that was irrelevant because arbitration would require the state court to stay its proceedings, which he said would “not happen.” Id. Those opening salvos kicked off years of multi-forum litigation. See generally Compl. at 10–16.

Plaintiff responded partly by suing Defendant in D.C. Superior Court for legal malpractice. Compl. at 43. That court held that Defendant was bound to arbitrate the dispute being heard by the Virginia court, but that it lacked jurisdiction to order further relief while the Virginia suit was pending. See Compl. at 51. Eventually, the Virginia court agreed, and the dispute proceeded to arbitration. ECF No. 12 at 34 n.22. But the Virginia court ultimately dismissed Defendant’s claims with prejudice. Compl. at 39–40. Thus, the D.C. Court of Appeals concluded that the arbitration was moot. ECF No. 12 at 5 n.3.

Towards the end of those battles, Defendant’s law firm received an unfavorable internet review. A user named “Alan R.,” whose avatar resembled the notorious murderer Charles Manson, called Defendant “sleazy” and advised potential clients to “[r]un away!” Compl. at 111. The review suggested that Defendant was incompetent and malicious. Id. Defendant responded to the posting online by explaining that he had “never represented an Alan R. or Charles Manson.” Id. at 112. He charged that Plaintiff, whom he called an “obsessed former client,” had posted the review under a false name and image. Id. He said Plaintiff had “posted many negative reviews” about him and “sued him unsuccessfully 6–10 times.” Id. But he took no issue with the chosen avatar—he stated that “Charles Manson is a perfect capture of [Plaintiff’s] psyche.” Id.

In D.C. federal court

Plaintiff sued Defendant in this Court both for filing the Virginia state-court case and for attributing the bad review to him.

The claims

Plaintiff brings four claims. First, he says Defendant conspired with another lawyer to deprive Plaintiff of money and his right to arbitration when Defendant sued him in Virginia state court. Compl. at 21–23. Second, he argues Defendant abused the Virginia court process by filing and maintaining that suit because his purpose was to evade required arbitration. Compl. at 23–24. Third, he claims that suit constituted malicious prosecution. Compl. at 24–25. Fourth, he contends that Defendant’s response to the online review invaded his privacy by portraying him in a false light. Compl. at 25–26.

The court applied choice of law analysis to apply D.C. law to the first two claims and Virginia law to the remaining claims.

That proved fatal to the "false light" cause of action

Plaintiff’s final claim is that Defendant invaded his privacy by falsely accusing him of posting the review under the name “Alan R.” and comparing him to Charles Manson. Compl. at 25–27. That accusation, he says, created publicity about him in a way that would be “highly offensive to a reasonable person.” See ECF No. 28 at 49–55.

Those allegations do not state a claim because, as the Court has already explained, Virginia “simply do[es] not recognize such a common law cause of action.” Falwell v. Penthouse Int’l, 521 F. Supp. 1204, 1206 (W.D. Va. 1981). So the Court must dismiss that claim.

(Mike Frisch)

https://lawprofessors.typepad.com/legal_profession/2023/03/the-united-states-district-court-for-the-district-of-columbia-judge-timothy-kelly-granted-judgment-on-the-pleadings-to-a-de.html

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