Where a woman alleged a man sent false and defamatory emails to her employer after their relationship ended, including that she had used government property to harass him, her defamation claim survived his motion to dismiss.
When a relationship between the plaintiff and defendant deteriorated, the defendant allegedly began sending the plaintiff abusive text messages. She alleges that after she blocked his phone, the defendant sent the plaintiff’s employer — a D.C. government agency — emails saying that the plaintiff had been using her work phone to harass him, trespassed on his property and had made him and his daughter fear for their lives. The defendant also forwarded the plaintiff’s employer numerous private text messages she and the defendant had exchanged.
The plaintiff filed a complaint against the defendant for defamation and related claims, and for theft of her property. This case is before the court on a motion to dismiss the defamation and related claims.
Choice of law
Where a defamation claim is based on email or similar means of correspondence, the “place of the wrong” is the place of “publication,” which is “the location the email is opened and read.” The court concludes, based on the allegations in the complaint, that it is certainly plausible and indeed probable that defendant’s emails to plaintiff’s employer were opened in Washington, D.C.
Moreover, plaintiff has argued that D.C. law governs her defamation claims pursuant to these choice-of-law principles, and that defendant has not contested that D.C. law applies to plaintiff’s defamation claim. And because plaintiff’s false light and intrusion upon seclusion claims are based upon the same factual predicate as plaintiff’s defamation claim, and defendant has not attempted to argue why any other law would apply to these claims, the court will proceed to analyze the plausibility of plaintiff’s defamation, false light and intrusion upon seclusion claims under D.C. law.
First, defendant argues that the emails he sent to plaintiff’s employer did not include false statements, or, in any event, defendant believed them to be true — like his statement that plaintiff had been using her government cell phone to send harassing messages. However the court must accept the veracity of the allegations in the complaint that, contrary to defendant’s statements in his emails, plaintiff did not “harass” defendant or do so using a government cell phone, nor did she trespass on defendant’s property.
Defendant further contends that the allegations in the complaint and plaintiff’s admissions demonstrate that the messages he sent were “substantially true,” and that at best there were “[s]light inaccuracies” in his email. At this stage of the case and accepting the truth of plaintiff’s allegations in her complaint and drawing all reasonable inferences in her favor, defendant has not shown the “substantial truth” of his statements such as would defeat the defamation claim as a matter of law.
Defendant next argues that statements at issue in his emails were nothing more than “statement[s] of opinion.” However the alleged defamatory statement in context contained or implied provably false statements of fact, which added factual content to defendant’s allegation that plaintiff had “harassed” him—taking those statements out of the realm of an unactionable opinion.
Defendant further argues that the statements in his emails “do not rise to the level of defamatory words.” The court concludes that saying plaintiff misused government property (her phone) to send him “harassing messages” and conveying that she had “trespassed” on his property, were capable of a defamatory meaning.
False light and intrusion
Plaintiff alleges that defendant sent the allegedly tortious emails to her boss and asked that her boss forward them her own boss. That is insufficient circulation to constitute the publicity required to state a claim for false light.
Regarding plaintiff’s claim for intrusion upon seclusion, while plaintiff’s text messages with defendant were private and intended for him only, these were nonetheless communications she had voluntarily with defendant at the time. Defendant’s conduct is simply not akin to those types of conduct prohibited by this tort.
Defendant argues that the “insulting words statute only penalizes words used in a verbal attack made in a face-to-face confrontation that presents a clear and present danger of a violent physical response.” The statutory language doesn’t say anything about that. In fact, the Supreme Court of Virginia has explicitly acknowledged written statements may be actionable as insulting words.
Defendant’s motion to dismiss granted in part, denied in part.
Tika v. Jack, Case No. 3:21-cv-00030, July 26, 2022. WDVA at Charlottesville (Moon). VLW 022-3-314. 20 pp.