D.C. Superior Court Opinions

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E.g., March 28, 2017
E.g., March 28, 2017
Format: XXX-DWLR-XXXX
  • Part 1 of this opinion can be found in the December 9, 2013 (141_DWLR-2637) edition of the DWLR.

  • TORT LAW

     

    Conspiracy Theory of Jurisdiction / Minimum Contacts / Jurisdictional Discovery / Tortious Interference with a Business Relationship / Principal-Agent Relationship / Defamation / Civil Conspiracy / Aiding and Abetting Tortious Acts / Conversion / Breach of Trust / Joinder / Statute of Limitations / Fraudulent Concealment Doctrine / Continuing Torts Doctrine

    Omnibus opinion regarding various counterclaims by parties UCI and Preston Moon arising from litigation over alleged misconduct in the leadership of the Unification Church and its subsidiaries are dismissed due to issue. Several are barred by issues of jurisdiction, failure to state a claim upon which relief can be granted, and improper joinder. Jurisdiction: Counterclaim Plaintiff UCI has not sufficiently pled to support a prima facieclaim for jurisdiction under the conspiracy theory of personal jurisdiction where it merely alleges the existence of an agreement without any supporting details or factual allegations. Court lacks personal jurisdiction over Counterclaim Defendants Sean, Tatiana, and Justin Moon since their sporadic and infrequent visits to D.C. are insufficient minimum contacts to constitute “transacting business” and the injuries alleged do not arise from those contacts. Jurisdictional discovery for these Counterclaim Defendants is inappropriate because it would at most reveal additional evidence of sporadic contact with D.C. insufficient to establish personal jurisdiction. Counterclaim against Sean, Tatiana, and Justin Moon is dismissed. Counterclaim Plaintiff UCI has sufficiently pled in personam jurisdiction over Counterclaim Defendants Mission Foundation and Tongil Foundation.Tortious Interference with a Business Relationship: Counterclaim Defendants cannot be liable for tortious interference due to alleged false statements where Counterclaim Plaintiff UCI has not adequately alleged a principal-agent relationship between them and the people who allegedly made the statements. Such relationship does exist between Holy Spirit Association (USA) and its executive vice president. Counter complaint has sufficiently pled that various Counterclaim Defendants were on notice that their actions constitute tortious interference where they were alleged to republish allegedly false and malicious statements on their website, caused an unlawful transfer of millions of dollars from Counterclaim Plaintiff UCI’s subsidiary to themselves, caused the cessation of millions of dollars of donations to UCI, and made false and malicious statements about UCI. Such liability cannot be imputed to Sean, Tatiana, and Justin Moon, whom UCI has alleged are personally liable for all acts or omissions by Unification adherents and affiliates solely due to their roles as purported leaders of the movement. UCI’s claim that Counterclaim Defendants interfered with prospective donations requires allegations of independently tortious acts, which have not been made. Claim that Counterclaim Defendants took actions that diminished dividends UCI would receive from subsidiaries is too speculative to satisfy the proximate cause requirement of tortious interference. Alleged statements leveling accusations of financial impropriety and filing intra-family lawsuits are sufficiently capable of defamatory meaning and provably false to be actionable in a tortious interference claim but statements calling someone a “Fallen Adam” who is being sued by someone called a “Fallen Lucifer” or “Satan” are not. Civil Conspiracy: UCI’s claim that Counterclaim Defendants engaged in a civil conspiracy fails as it has pled no facts establishing that an agreement was actually made and simply alleging parallel conduct is insufficient to demonstrate such agreement.Aiding and Abetting: The Court of Appeals has not recognized a tort for aiding and abetting the tortious acts of others so UCI’s claims fail to state a claim upon which relief can be granted. Conversion: UCI has met its burden in its conversion claim by alleging Justin Moon and the Tongil Foundation wrongfully exercised control over its tax returns and business information when using them in other litigation and in statements attacking UCI and Rev. Moon. Breach of Trust: UCI’s breach of trust claim fails as it cites no capacity other than as a trustee in which it could hold power of appointment over trust property and thus cannot be considered a beneficiary. Counterclaim Plaintiff Preston Moon’s allegations that Counterclaim Defendants Dr. Kim, Dr. Joo, and Dr. Pak failed to take reasonable care to prevent breaches by co-trustees state a claim upon which relief can be granted as those claims do not require allegations of knowledge of co-trustees alleged breaches. Joinder: Conversion count is improperly joined against Counterclaim Defendants Justin Moon and Tongil Foundation as they were not original plaintiffs and the claims against them did not rise out of the same nucleus of fact as claims against existing parties. Counterclaim Defendant Dr. Pak is properly joined as the claims against him arise from the same transaction as those against Dr. Kim and Dr. Joo and involve common questions of law and fact. Statute of Limitations: Counterclaims against Dr. Pak are not barred by statute of limitations as Counterclaim Plaintiffs allege they were unaware of the existence of the trust until the initial claim was filed and the issue of whether Counterclaim Plaintiffs should have been on notice regarding the alleged breaches is best addressed after discovery. The motion to dismiss stage is similarly too early to determine the application of the fraudulent concealment doctrine, the continuing torts doctrine, and the doctrine of laches.

  • Attorney’s Fees

    Windfall / Applicable Laffey Rate / Fees for Time Spent Defending Clear Error / Discretion to Cut Fees

     

    Request for plaintiff’s attorney’s fees arising from a successful employment discrimination case is granted in part. There is no rule of proportionality so a total fee award 73% of the amount of judgment is not inherently inappropriate and a supplemental fee for legal work an attorney actually performed is not a windfall. It is within the Court’s discretion to award fees consistent with Laffey rates current the year the motion was filed rather than the year most of the work was done as an adjustment for delay in payment and the work performed, legal research and drafting, is at the core of appellate advocacy and not unreasonable to assign to an attorney of counsel’s experience. While the Court will not deduct fees from time spent trying to
    enforce judgment, fees from times spent defending erroneous jury instructions will be deducted as they were clearly wrong and Plaintiff could have conceded error on appeal and limited argument to harmlessness. Court will not exercise discretion to cut fees in response to errors by Plaintiff’s counsel as such cuts would be duplicative and contrary to the Human Rights Act’s legislative instruction that prevailing parties are entitled
    to attorney’s fees.

  • Civil Procedure

    Subpoena / Speech or Debate Privilege


    Motion by non-party City Councilmember to quash Plaintiff’s subpoena and compel production of documents is granted as it runs afoul of the Speech or Debate statute D.C. Code § 1-301.42. While it is possible that materials relating to investigation, fact-finding, and oversight of the Plaintiff would include documents not covered by the Speech or Debate statute, Plaintiff must make a particularized request for them and explain why the Councilmember would be involved beyond his official capacity in connection with oversight and legislation. The burden is not on subpoenaed legislators to identify non-exempt documents.

  • Insurance Law

    Denial of Defense and Coverage / Types of Discrimination Covered by Policy


    Motion to dismiss denied. Plaintiff has set forth sufficient factual allegations that an insurance policy providing coverage for a suit alleging injury that is “caused by an offense of: ... discrimination, harassment or segregation based on a person’s protected human characteristics as established by law” could cover a suit alleging discrimination based on “sources of income.” The policy neither contains an applicable law provision nor defines “established by law,” rendering it unclear enough to survive a motion to dismiss.

  • Defamation

     D.C. Anti-SLAPP Act / Likely to Succeed on the Merits / Provably False Statements / Fair Comment Privilege / Actual Malice / Intentional Infliction of Emotional Distress / 12(b)(6) Motion to Dismiss


    Anti-SLAPP and 12(b)(6) motions to dismiss a defamation suit brought by a scientist against media organizations and writers over accusations of data fraud are denied. A Plaintiff seeking to show he is likely to succeed on the merits on a defamation claim in response to an anti-SLAPP motion must satisfy a standard comparable to that used for a motion for judgment as a matter of law. Assertions that Plaintiff’s research was “fraudulent,” “bogus,” “scientific misconduct,” and “data manipulation” are not mere opinion or hyperbole but statements based on provably false facts sufficient to demonstrate a prima facie case for libel. Fair Comment privilege is not available where challenged statements are misstatements of fact. Where Plaintiff’s work has been investigated and found accurate several times, continued accusations that Plaintiff’s work is “intellectually bogus” shows a reckless disregard for the truth sufficient to indicate that further discovery may uncover evidence of actual malice and possibly sustain a finding of intentional infliction of emotional distress. Defendants’ motion to dismiss pursuant to 12(b)(6) is denied for the same reasons.

  • Employment Law

     

    Retaliatory Discharge / Disparate Treatment Based on Disability / Hostile Work Environment / Intentional Infliction of Emotional Distress / Negligent Infliction of Emotional Distress

     

    Defendant’s Motion for Summary Judgment granted in a suit alleging termination and discrimination resulting from Plaintiff’s cooperation with a criminal investigation of Defendant employer. Plaintiff has not proffered evidence to prove prima facie case for wrongful retaliatory discharge where her own testimony conflicts with her claim she was discharged for refusing to violate the law. Plaintiff’s termination does not fall within the public policy exception to at-will employment where she has not cited a specific statute that was violated or alleged that Defendant asked her to not cooperate with the police, refrain from reporting problems, or colluding in a cover-up. There is no genuine issue of fact that Plaintiff was terminated due to her disability where the record shows Plaintiff was fully functional while medicated, Defendant was aware of Plaintiff’s mental disorder when it hired her, and Plaintiff had failed to comply with company policy. Plaintiff has not made a prima facie case for a hostile work environment where, since she is fully functional with medication, she is not a member of a protected class and the only specific insult she alleged receiving was “Sherlock Holmes,” which does not appear to be related to a mental disorder and is commonly thought of as a compliment as he is a “superior detective.” Plaintiff’s allegations of mere stress and anxiety do not rise to the level of the severe emotional distress necessary to succeed in a claim for intentional infliction of emotional distress. While the employer-employee relationship is a “special relationship” for the purposes of a negligent infliction of emotional distress finding, such a claim cannot succeed where the record does not show that Defendant was negligent or that said negligence caused Plaintiff emotional distress.

  • Family Law

    Notice of Hearing and Order Directing Appearance


    In a civil paternity action, the court is not permitted to issue a bench warrant for a respondent based solely upon his failure to appear or otherwise respond to a Notice of Hearing and Order Directing Appearance (“NOHODA”) served upon the respondent’s person when the NOHODA was issued by the court based upon a petition which merits sua sponte dismissal. NOHODA was promulgated in conflict with the legislature’s intention that adjudication of paternity issues be entirely civil in nature and the process lacks adequate procedural safeguards to protect against erroneous arrest. There is no specific statutory authorization for either the issuance or enforcement of a NOHODA. Civil contempt is not applicable as the basis for a bench warrant for failure to respond to a NOHODA since there has been no judgment issued and it would provide no direct benefit to the complainant. Criminal contempt is inapplicable as there is no showing that respondent’s failure to appear was willful and the NOHODA did not include notices concerning the duties and protections of the subpoenaed person.

  • Family Law

    Reinstatement of Child Support Case

     

    Motion to Reinstate Child Support Case denied where it is not timely filed, respondent was not properly served, and Petitioner has not shown good cause for reinstatement. Petitioner must provide a basis for the Court to exercise its discretion to vacate the dismissal. Merely providing reasons why it should proceed with an action for paternity and support is insufficient.

  • Civil Procedure

    Class Certification

     

    Motion for class certification denied in suit over elevated levels of lead in tap water. Plaintiffs’ proposed class definition of any child who, from 2000 to 2004, while six years old or younger and a resident of DC consumed water that was supplied by Defendant and that passed through a line containing lead and had amounts of lead considered to be a “level of concern” does not satisfy the requirements of (1) identifiability; (2) numerosity, (3) typicality, (4) adequacy of representation, (5) predominance, or (6) superiority. (1) Plaintiffs have not met their burden to show that class members are identifiable or ascertainable where there are no available current and comprehensive records showing the location of children with elevated lead levels or the homes connected to lead service lines and Plaintiffs have not proposed any manageable and cost-effective solutions. (2) Plaintiffs have not met numerosity requirement where proposed class includes a high percentage of members who have not suffered harm and face no realistic probability of harm caused by any act or omission of Defendant. (3) Typicality requirements are not met where Plaintiffs have not shown that their claims are typical of class members who have not suffered demonstrable harm from lead exposure in the decade since the class period ended or shown that their claims are typical of class members who resided in DC for particular periods of time. (4) Plaintiffs have not met requirement of adequate representation for the interests of the entire proposed class where they have not demonstrated they can adequately represent members whose strongest liability arguments relate to information that Defendant provided or failed to provide in different months than the months on which the named plaintiffs would focus or represent the interests of class members who have not exhibited any demonstrable harm in the decade or so since the class period ended. (5) Plaintiffs have not established that common issues predominate individual issues where there are many complex and individualized issues relating to damages and causation, requiring a further two years of hearings to resolve individualized claims even if class certification were granted. Rule 23(c)(4)(A) is a housekeeping rule that allows courts to sever common issues for a class trial, not a repeal of the predominance requirement. (6) Plaintiffs have not established that a class action would be superior to individual actions where: (a) the members of the class have an interest in individually controlling separate actions as their claims likely involve substantial damages; (b) there is pre-existing litigation on substantially similar claims; (c) it is desirable to concentrate the litigation; and (d) the case would be unmanageable as a class action for all of the previously-discussed reasons.

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