Tuesday, September 26, 2023

Judicial Privilege

A lawyer against lawyer defamation suit has been dismissed by the United States District Court for the District of Columbia

This is a defamation action brought by one lawyer practicing before this Court, Timothy Parlatore, against another lawyer also practicing before this Court, Eric Montalvo. The case is only the most recent chapter in a dispute that has metastasized beyond recognition. What started as a whistleblower complaint alleging racial discrimination in a U.S. Navy fighter pilot training program; grew into an investigation of Lt. Steven Shaw, the Navy officer who assisted in filing that whistleblower complaint; then evolved into an investigation of the Navy officers who had investigated Lt. Shaw to determine whether they acted for retaliatory purposes and into a second investigation of Lt. Shaw; eventually led to a lawsuit that Lt. Shaw brought challenging the Navy’s actions against him, and a second lawsuit alleging that the Department of the Navy violated the Privacy Act and that the lawyer who represented the investigating officers, Timothy Parlatore, libeled Lt. Shaw; and finally led to the present dispute, which alleges that Lt. Shaw’s lawyer, Eric Montalvo, defamed Parlatore in an email exchange between lawyers involved in the Privacy Act/libel litigation.

The motion now before the Court seeks to close at least one chapter in this unfortunate saga. Defendant Eric Montalvo moves to dismiss Plaintiff Timothy Parlatore’s amended complaint for failure to state a claim and, in the alternative, moves to strike allegedly redundant, immaterial, impertinent, or scandalous material from that complaint. Dkt. 10; Fed. R. Civ. P. 12(b)(6), 12(f). For the reasons explained below, the Court will GRANT Defendant’s motion to dismiss and, accordingly, will not reach his motion to strike.

Judicial privilege

Parlatore’s sole response to this conclusion is unconvincing. He asserts, “[i]t is clear that Virginia’s judicial privilege only applies to statements ‘made in proceedings,’ not extra-judicial statements made in emails.” Dkt. 12 at 4. He, then, continues: “Although Defendant does acknowledge the Virginia standard, he makes no effort to explain how Virginia’s law should be extended to out-of-court statements, and certainly not to impertinent emails.” Id. Yet, if anyone, it is Parlatore who ignores the governing Virginia law. As the Virginia Supreme Court explained in Mansfield v. Bernabei, the “[a]bsolute judicial privilege clearly extends outside the courtroom,” and “‘we have extended the application of the absolute privilege well beyond the actual courtroom.’” 727 S.E.2d at 73 (quoting Lindeman v. Lesnick, 604 S.E.2d 55, 58–59 (Va. 2004). In short, Parlatore’s contention that the privilege does not apply to “out-of-court statements” is squarely foreclosed under controlling Virginia law.

(Mike Frisch)


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