Opinion
Law No. 2009-17663
04-28-2011
James M. Mansfield v. Lynne Bernabei, et al.
Robert J. Hartsoe, Esquire HARTSOE, MANSFIELD AND MORGAN, PLLC Counsel for Plaintiff, James M, Mansfield Williain L. Mitchell, Esquire Michael P. Freije, Esquire ECCLESTON AND WOLF, PC Counsel for Defendants, Lynne Bernabei, Emily Brittain Read, and Bernabei & Wachtel, PLLC Alan R. Rabat, Esquire BERNABEI & WACHTEL, PLLC Counsel for Defendant, Michael Ford
DENNIS J. SMITH, CHIEF JUDGE
MARCUS P. WILLIAMS
JANE MARUM ROUSH
LESLIE M. ALDEN
JONATHAN C. THACHER
R. TERRENCE NEY
RANDY I. BELLOWS
CHARLES J. MAXFIELD
BRUCE D. WHITE
ROBERT J. SMITH
DAVID S. SCHELL
JAN L. BRODIE
LORRAINE NORDLUND
BRETT A. KASSABIAN
MICHAEL F. DEVINE
JUDGES BARNARD F. JENNINGS
THOMAS J. MIDDLETON
THOMAS A. FORTKCRT
RICHARD J. JAMBORSKY
JACK R. STEVENS
J. HOWE BROWN
F. BRUCE BACH
M. LANGHORNE KEITH
ARTHUR B. VIEREGG
KATHLEEN H. MACKAY
ROBERT W. WOOLDRIDGE, JR.
MICHAEL R. McWEENY
GAYLORD L. FINCH. JR.
STANLEY P. KLEIN
RETIRED JUDGES
April 28, 2011
Dear Counsel:
This matter came before the Court on February 11, 2011. After considering the pleadings, memoranda, and arguments of counsel, the Court took the matter under advisement. The following embodies the Court's ruling.
PROCEDURAL HISTORY
On December 11, 2008, Defendant, Michael Ford ("Ford"), sent an unfiled copy of a Complaint and Jury Demand ("Draft Complaint") to prospective defendants named in that Draft Complaint, including Plaintiff, James M. Mansfield ("Mansfield"). The Complaint ("Complaint") was filed in the U.S. District Court on December 19, 2008.
On December 10, 2009, Mansfield filed a Complaint in this court ("Mansfield Complaint") against Lynne Bernabei, Emily Brittain Read, Bernabei & Wachtel, PLLC ("Wachtel") and Michael A. Ford ("Ford") (collectively, 'Defendants").
There was no draft complaint for a judicial proceeding but merely an assertion that litigation might be "subsequently initiated."
The Mansfield Complaint asserted that: (1) Defendants published information with malice; (2) Defendants published information with knowledge that it was false or with a reckless disregard of whether such information was true or false; (3) Defendants published information for the purpose of discrediting Mansfield in his community and negatively affecting his reputation thereby; and (4) Defendants published information for the purpose of discrediting Mansfield in his profession and was per se slanderous and libelous.
"'[T]he maker of an absolutely privileged communication is accorded complete immunity from liability even though the communication is made maliciously and with knowledge that it is false.'"
In Isle of Wight - decided after Lindeman - though the specific point was not addressed, the privilege itself was viewed both broadly and absolute.
Mansfield requested that the court enter judgment against Defendants finding them jointly and severally liable.
On December 21, 2010, Defendants filed this Demurrer.
FACTS
Ford, a former building manager at Horizon House, a condominium in Arlington, filed a discrimination charge on April 10, 2006 with the U.S. Equal Employment Opportunity Commission ("EEOC") based on unlawful termination.
The Isle of Wight decision coupled with the guidance of the Restatement and underscored by the reasons for the existence of privilege, namely, resolution of disputes, males clear that the Draft Complaint here should be afforded absolute privilege.
On August 29, 2008, the EEOC issued a probable cause determination that Ford's employers discriminated against him on the basis of his race, violating Title VII of the Civil Rights Act of 1964.
On December 11, 2008, Ford, through his lawyer Wachtel, sent a Draft Complaint, solely "for settlement purposes," to the potential defendants named in the Draft Complaint, including Mansfield.
Bernabei and Read were employees, principals and/or agents of Bernabei & Wachtel, PLLC, at all times relevant hereto. Collectively, Bernabei, Read, and Bernabei & Wachtell, PLLC, were the attorneys at law and agents of Ford at all times relevant hereto.
The Draft Complaint included four counts:
(1) Race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., against Defendants Zalco, MDV Maintenance, and Horizon House; (2) Race discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 against Defendants Zalco, MDV Maintenance, and Horizon House; (3) Intentional interference with contract against Defendants Mansfield, Faison, Mucklow, Smith and John/Jane Does; and (4) Defamation (libel and slander) against Defendants Mansfield, Smith, and John/Jane Does.
Mansfield Compl. at ¶ 18.
On December 19, 2008, eight days after the distribution of the Draft Complaint, Ford filed a Complaint in the U.S. District Court for the Eastern District of Virginia. The Complaint brought Title VII claims against the corporate defendants and 42 U.S.C. § 1981 claims against the individual defendants, including Mansfield.
Mansfield thereafter filed his Complaint in this court, asserting that statements contained in Ford's Draft Complaint were defamatory. He alleges that he has suffered harm to his reputation as a result.
ANALYSIS
The issue presented is whether a complaint alleging defamation should be dismissed because of a plaintiff's asserted absolute privilege to publish statements to the prospective defendants in a draft complaint.
LEGAL STANDARD FOR DEMURRER
"A demurrer tests the legal sufficiency of a pleading and can be sustained if the pleading, considered in the Light more favorable to the plaintiff, fails to state a valid cause of action." The sole question to be decided by the court is whether the facts pleaded, implied, and fairly and justly inferred are legally sufficient to state a cause of action against the Defendant. On demurrer, the court must admit the truth of all material facts that are properly pleaded, facts which are impliedly alleged, and facts which may be fairly and justly inferred from the alleged facts. A demurrer does not admit the correctness of any conclusions of law.
Mansfield Compl. at ¶ 19.
Mansfield Compl. at ¶ 20.
Mansfield Compl. at ¶ 21. 6 He amended his charge on April 10, 2008.
Mansfield Compl. at ¶ 53.
DEFAMATION & ABSOLUTE PRIVILEGE
Whether the facts are legally sufficient to state a cause of action is dependent on whether the alleged defamatory statements were privileged or not. If so, no claim lies. If not, the claim may proceed.
In the law of defamation, there are two kinds of privileged communications: absolute and qualified.
Counts 3 and 4 were improperly labeled in the Draft Complaint. For the purposes of this Opinion Letter, they will be listed in chronological order. 9 Kitchen v. City of Newport News, 275 Va. 378, 385-86, 657 S.E.2d 132, 136 (2008) (citing Welding, Inc. v. Bland County Serv. Auth., 261 Va. 218, 226, 541 S.E.2d 909, 914 (2001)).
"An absolute[ly] privileged communication is one for which an action will not he, even though the words are published mahciously and with knowledge of their falsity, whereas a qualified privileged communication is one which is prima facie privileged only, and in which the privilege may be lost by proof of malice in the publication of the libel or slander."
Thompson v. Skate America, Inc., 261 Va. 121, 540 S.E.2d 123 (2001).
The maker of an absolutely privileged communication is accorded complete immunity from liability even though the communication is made mahciously and with knowledge that it is false. Absolute privilege, sometimes called judicial privilege, is broad in scope and applies to communications made in proceedings pending in a court or before a quasi-judicial body. If the communication is made in a judicial proceeding, it need only be relevant and pertinent to the case to be protected by the privilege.
Cox Cable Hampton Roads, Inc. v. City of Norfolk, 242 Va. 394, 410 S.E.2d 652 (1991).
Ward's Equip., Inc. v. New Holland North America, Inc., 254 Va. 379, 382, 493 S.E.2d 516, 518 (1997).
Isle of Wight County v. Nogeic, 281 Va. 140, 152, 704 S.E.2d 83, 88 (2011) (citing Penick v. Ratcliffe, 149 Va, 618, 619, 140 S.E. 664 (1927)). 14 Id. 15 Spencer v. Looney, 116 Va. 767, 774, 82 S.E. 745, 747 (1914). 16 Penick v. Ratcliffe, 149 Va. 618, 628, 140 S.E. 664, 667 (1927). 17 Donohoe Construction Co. v. Mount Vernon Assocs., 235 Va. 531, 539, 369 S.E.2d 857, 861 (1988). 18 Id. at 537, 369 S.E.2d at 860.
"The reason for the rule of absolute privilege in judicial proceedings is to encourage unrestricted speech in litigation." In addition, absolute privilege is extended to statements made in the course of judicial proceedings because of the safeguards that exist in such proceedings, including Habihty for perjury and the applicability of the rules of evidence.
Lockheed Information Management Systems Co. v. Maximus, Inc., 259 Va. 92, 101, 524 S.E.2d 420, 424-25 (2000).
Isle of Wight County, 281 Va. at 152, 704 S.E.2d at 88 (quoting Story v. Norfolk-Portsmouth Newspapers, Inc., 202 Va. 588, 590, 118 S.E.2d 668, 669 (1961)).
Absolute privilege applies to three classes of cases: "'[p]roceedings of legislative bodies, judicial proceedings, and communications by military and naval officers.'''
Titan America, LLC v. Riverton Inv. Corp., 264 Va. 292, 308, 569 S.E.2d 57, 66 (2002) (citing Donohoe Constr. Co. v. Mount Vernon Associates, 235 Va. 531, 537, 369 S.E.2d 857 (1988)).
Statements made during a judicial proceeding are absolutely privileged if they are "material and relevant to the proceeding." The Virginia Supreme Court has not yet extended the absolute privilege to "mere potential litigation." Nor has it refused to extend it.
Lindeman v. Lesnick, 268 Va. 532, 538, 604 S.E.2d 55, 58 (2004).
Restatement (Second) of the Law of Torts, § 586, at 247 (1977).
THE RESTATEMENT (SECOND) OF THE LAW OF TORTS
The Restatement (Second) of the Law of Torts provides that an absolute privilege extends to preliminary communications made for the purpose of proposed litigation.
Restatement (Second) of the Law of Torts, § 586, at 247 (1977).
§ 586. Attorneys at Law. An attorney at law is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of, a judicial proceeding in which he participates as counsel, if he has some relation to the proceeding. § 587. Parties to Judicial Proceedings. A party to a private litigation or a private prosecutor or defendant in a criminal prosecution is absolutely privileged to publish defamatory matter concerning another in communications preliminary to a proposed judicial proceeding, or in the institution of or during the course and as a part of, a judicial proceeding in which he participates, if the matter has some relation to the proceeding.The commentary to the Restatement explains the scope of absolute privilege:
As to communications preliminary to a proposed judicial proceeding the rule stated in this Section applies only when the communication has some relation to a proceeding that is contemplated in good faith and under serious consideration. The bare possibility that the proceeding might be instituted is not to be used as a cloak to provide
immunity for defamation when the possibility is not seriously considered.
Restatement (Second) of the Law of Torts, § 587, at 249 (1977).
Restatement (Second) of the Law of Torts, § 586 cmt. e, at 248; § 587 cmt. e, at 250 (1977).
Long v. Old Point Bank of Phoebus, 41 Va. Cir. 409 (Norfolk 1997).
Here, the Draft Complaint advised likely defendants of the potential action against them. The use of the language "for settlement purposes only" does not indicate that there was a lack of good faith or an inadequate degree of consideration. To the contrary, that language means that the particular document itself, namely, the Draft Complaint, may not be used in judicial proceedings. This, however, does not eliminate or diminish the likelihood of future proceedings. To the contrary, it suggests that there will be a lawsuit. The creation of the Draft Complaint was a preliminary communication leading to the official judicial action eight days later.
THE LONG TEST: APPLYING THE RESTATEMENT
In Long v. Old Point Bank of Phoebus, the defendants asserted that defamatory statements made in communications prior to the commencement of litigation were absolutely privileged. The Norfolk Circuit Court held that "an absolute privilege exists not only with respect to statements made in the course of a pending judicial proceeding but also with respect to communications relevant to proposed judicial proceeding."
Id. at 413 (citing Harris v. NCNB Nat'l Bank of North Carolina, 355 S.E.2d 838, 842 (N.C. App. 1987)).
Id. at 414 (quoting General Elec. Co. v. Sargent & Lundy, 916 F.2d 1119, 1127 (6
The court established a two-part test ("Long Test") based explicitly on Restatement § 586 cmt. e. and § 587 cmt. e. in determining whether the absolute privilege should apply to communications made prior to formal legal process:
First, the occasion of the communication must be examined to determine if the statement was made "preliminary to a proposed judicial proceeding, or in the institution of, or during the course and as a part of a judicial proceeding." Second, a court must evaluate the content of the statement to determine if it "has some relation to a proceeding that is contemplated in good faith and under serious consideration."
Cir. 1990)). 30 Id.
The first prong in that case was satisfied when two allegedly defamatory letters were sent two and three months prior to the initiation of legal process. The court held that "[i]t [was] clear that the letter was sent preliminarily to a proposed judicial proceeding that was contemplated in good faith and under serious consideration."
Id. at 415. 32 Draft Compl. at p. 18.
Draft Compl. at p. 20.
Here, the statements about Mansfield were published in the Draft Complaint on December 11, 2008, just eight days prior to the filing of Ford's Complaint. This is certainly within the two and three months time period afforded by the Long court, as well as "preliminary to a judicial proceeding" as provided in the Restatement.
COMPARISON: DRAFT COMPLAINT VS. COMPLAINT
The second prong of the Long Test is whether the content of the statements directly related to the contemplated judicial proceeding.
The Counts of the two Complaints contain the majority of any differences. I In the Draft Complaint the Counts were labeled:
Count I: Race discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e et seq., against Defendants Zalco, MDV Maintenance, and Horizon House. Count II: Race discrimination in violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 against Defendants Zalco, MDV Maintenance, and Horizon House. Count IV: Intentional interference with contract against Defendants Mansfield, Faison, Mucklow, Smith and John/Jane Does.
Count V: Defamation (libel and slander) against Defendants Mansfield, Smith, and John/Jane Does.The filed Complaint, though, labeled the Counts as follows:
Count I: Race Discrimination in Violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., Against Defendants Zalco, MDV Maintenance, and Horizon House. Count II: Race Discrimination in Violation of the Civil Rights Act of 1866, 42 U.S.C. § 1981 Against Defendants Zalco, MDV Maintenance, Horizon House, Mansfield, Mucklow, Faison and Smith.
The Counts were mislabeled in the Draft Complaint, jumping from Count II to Count IV.
Draft Compl. at p. 22.
Draft Compl. at p. 25.
Draft Compl. at p. 17.
Draft Compl. at p. 19.
See Long v. Old Point Bank of Pheobus, 41 (Norfolk 1997).
Mansfield Compl. at ¶ 14.
Notwithstanding the reduction in the number of Counts, the content of the two complaints remains substantially similar. Counts TV and V were altered primarily because Defendants John/Jane Does were eliminated between the time the Draft Complaint was circulated and the filing of the Complaint.
According to Long, it is appropriate to provide preliminary communication to those individuals with a legitimate interest in the matter. Although Defendants John/Jane Does were removed from the action prior to the Complaint being filed, it was appropriate to provide in the Draft Complaint references to John/Jane Does because at that time such "persons" possessed a legitimate interest in the matter.
Lindeman v. Lesnick, 268 Va. 532, 535, 604 S.E.2d 55, 56-57 (2004).
The restructuring and editing of the Draft Complaint prior to filing the official Complaint further contributed to the reduction of the overall counts. While Counts IV and V of the Draft Complaint were removed from the Complaint, the substance of those Counts remained within the filed Complaint.
Draft Complaint paragraphs 128-131, 135-140 - described specifically by Mansfield in his December 10, 2009 Complaint as "contain[ing] false or misleading information, namely, describing Mansfield as an unethical lawyer and racist" -are incorporated into paragraphs 53, 58, 59, 61, 62, 67, 118, and 119 of the filed Complaint.
Id. 43 Id.
In short, a substantially different document was not created by the editing of the Draft Complaint. Indeed, as to its substance, it was virtually identical.
THE LINDEMAN ANALYSIS & ITSIMPACT ON ATTORNEY-CLIENT RELATIONSHIPS
In Lindeman, defamatory remarks were made by a patient to his attorney regarding the patient's former physician. They were then repeated by the lawyer publicly, namely, to the doctor's insurance company. The fact that these statements were shared with and communicated by the patient's attorney was not enough to afford an absolute privilege.
Id. 45 Watt v. McKelvie, 219 Va. 645, 651, 248 S.E.2d 826, 829 (1978). The court gave a justification favoring the application of absolute privilege:
The reason for the absolute privilege accorded defamatory communications made in the course of judicial proceedings is one of public policy, the underlying rationale being that such a privilege is necessary to the proper administration of justice; if the judicial process is to function effectively, those who participate must be able to do so without being hampered by the fear of private suits for defamation. Furthermore, it has been said that the public interest in the freedom of expression by participants in judicial proceedings, uninhibited by risk from resultant suits for defamation, is so vital and necessary to the integrity of our judicial system that it must be made paramount to the right of the individual to a legal remedy where he or she has been wronged thereby. 50 AM. JUR. 2D, LIBEL AND SLANDER, 299, at 591 (1995).46 Isle of Wight County v. Nogeic, 281 Va. 140, 152, 704 S.E.2d 83, 88 (2011) (quoting Lindeman v, Lesnick, 268 Va. 532, 537 604 S.E.2d 55, 58 (2004)).
See Luideman v. Lesnick, 2SS Va. 532, 604 S.E.2d 55. 48 See Isle of Wight, 281Va. 140, 704 S.E.2d 83.
Based upon these facts, the Lindeman court declined to extend the absolute privilege to mere potential litigation. Such a result is understandable. The insurance company was not a named or potential defendant. It was the doctor's insurer. Statements made to it were surely without any protection.
Additionally, there was no "subsequent case" present in Lindeman. A threat of "might be" litigation to a non-potential defendant is far different than a draft complaint setting out the claim to an intended defendant.
Here a detailed Draft Complaint was written and distributed to the persons named and subsequently sued. The Complaint was filed within eight days of the distribution. The filed Complaint was substantially similar to the Draft Complaint.
'"The public interest is best served when individuals who participate in law suits are allowed to conduct the proceeding with freedom to speak fully on the issues relating to the controversy."
By disallowing the privilege, a client may fail to fully communicate important information to his or her lawyer, which reduces the lawyer's ability to properly advocate the client's case. As a result, a lawyer may not be able to fully communicate such information to the adverse party - information vital to the potential resolution of a claim.
Here, it was necessary that Ford be forthcoming with his lawyers in order for them to have a complete understanding of the situation. Sharing this information with the Defendants through a Draft Complaint should also enjoy such a protection, and with good reason. Everything in dispute is fully set out and a potential defendant can fairly judge the risks and rewards of a resolution without litigation. Without such protection, settlement discussions may be stifled at the outset. Courts encourage efficient and economical settlement of disputes. To not protect the settlement discussions would thwart this salutary goal.
The court in Lindeman did not directly address whether absolute privilege applies to preliminary communications made for the purpose of plainly proposed litigation.
CONCLUSION
The Court finds that the Draft Complaint is sufficiently similar to the Complaint filed. It was prepared in anticipation of litigation. It was published only to the potential defendants. Suit was filed eight days later. For these reasons, the content of the Draft Complaint should enjoy the protection of absolute privilege. Defendants' Demurrer is sustained.
An Order is enclosed.
Very truly yours, ________________
R. Terrence Ney
Enclosure
ORDER
This matter came before the Court on Defendants' Demurrer;
IT APPEARING TO THE COURT that the Demurrer should be sustained for the reasons stated in the April 28, 2011 Opinion Letter; it is hereby
ORDERED that the Demurrer is SUSTAINED,
ENTERED this 29 day of April. 2011. ________________
JUDGE R. TERRENCE NEY
_______________________________________________