United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued December 6, 2005 Decided March 7, 2006
No. 04-7163
KARYNE MESSINA,
APPELLANT
v.
DANIEL S. KRAKOWER AND
SHULMAN, ROGERS, GANDAL, PORDY & ECKER, P.A.,
APPELLEES
Appeal from the United States District Court
for the District of Columbia
(No. 03cv00011)
Sol Z. Rosen argued the cause and filed the brief for
appellant.
Glenn C. Etelson argued the cause and filed the brief
for appellee,
Before: GARLAND, BROWN, and GRIFFITH, Circuit
Judges.
Opinion for the Court filed by Circuit Judge
GARLAND.
2
GARLAND, Circuit Judge: Plaintiff Karyne Messina
brought this diversity action charging attorney Daniel Krakower
and his law firm, Shulman, Rogers, Gandal, Pordy & Ecker,
P.A., with defamation. The district court concluded that the
defendants were protected from liability for defamation by the
judicial proceedings privilege and granted summary judgment
in their favor. We affirm.
I
Karyne Messina and Susan Fontana were equal owners and
co-presidents of a corporation called Totally Italian.com, Inc.
By December 2002, the two had become embroiled in disputes
regarding the management of the business. To assist her in
resolving those conflicts, Fontana retained the services of
Krakower and his law firm. Krakower drafted a letter to
Messina, outlining Fontana’s grievances and proposing a
process that would allow one owner to buy out the other. The
letter is the source of Messina’s defamation claim against
Krakower and the law firm.
In the letter, Krakower advised Messina that he understood
“that disputes have arisen between you and [Fontana],” that he
had “reviewed these circumstances with [Fontana],” and that he
had “serious concerns about the propriety and legality” of
Messina’s actions. J.A. 29. Krakower then enumerated a long
list of concerns, including Messina’s failure to share information
with Fontana and to return Fontana’s telephone calls, her lease
of the corporation’s headquarters and establishment of a
corporate bank account without Fontana’s consent, and her
exertion of unilateral control over the corporation’s internet
accounts. “It seems abundantly clear to me,” Krakower
concluded, “that you cannot continue in business together,” and
he therefore proposed a detailed process “designed to result in
one of you buying out the other at a fair price.” J.A. 31.
3
Krakower’s proposal, he wrote, would “result[] in a win/win
scenario, as compared to the inevitable lose/lose scenario that
would result if you are unable to resolve this matter and
[Fontana] was forced to commence legal proceedings and/or
dissolution of the Corporation.” J.A. 32. Krakower warned that
if Messina were not “willing to deal with [Fontana] reasonably
and fairly,” Fontana would have to “consider taking appropriate
legal action to protect her interest in the corporation.” Id. “If
we do not hear from you (or your attorney if you are represented
by one) by close of business on January 13, 2003,” he said, “we
will assume that you are not interested in resolving this matter
amicably, and will proceed accordingly.” Id. Krakower closed
by declaring that “[t]his letter is for settlement purposes
only”and “is inadmissible in any legal proceeding.” Id.
On December 27, 2002, before sending the letter to
Messina, Krakower emailed Fontana a draft for her review. He
also sent a copy of the email to a businessman named Chaim
Kalfon. Earlier that month, Fontana had sent Messina an email
“to introduce” Kalfon and to authorize him “to negotiate an
amicable settlement for our partnership.” J.A. 66. On
December 31, 2002, Krakower sent the letter to Messina by
Federal Express.
Messina never replied. Instead, she filed suit in the United
States District Court for the District of Columbia, charging
Krakower and his law firm with defamation. The complaint
alleged that Krakower’s letter constituted libel per se, because
it imputed “unfitness to perform and/or the lack of integrity of
performance of the duties of the job that [Messina] was
4
designated to perform for the business enterprise.” Compl. ¶ 5.1
On January 31, 2003, Krakower and the law firm filed a
motion to dismiss and/or for summary judgment. The
defendants contended, inter alia, that they were absolutely
protected by the judicial proceedings privilege. Messina
opposed the motion and submitted an affidavit, pursuant to
Federal Rule of Civil Procedure 56(f), requesting further
discovery.
On May 8, 2003, the district court concluded that the
defendants were protected from Messina’s defamation claim by
the judicial proceedings privilege and granted their motion for
summary judgment. Thereafter, Messina filed a motion to
vacate the judgment pursuant to Federal Rule of Civil Procedure
59(e), which the court denied on June 12, 2003. This appeal
followed.
II
“A Rule 59(e) motion is discretionary and need not be
granted unless the district court finds that there is an intervening
change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.”
Firestone v. Firestone, 76 F.3d 1205, 1208 (D.C. Cir. 1996)
1
Messina’s complaint also charged Fontana with defamation on
the basis of a December 27, 2002 email. The district court
subsequently dismissed the counts against Fontana for lack of personal
jurisdiction, see Messina v. Fontana, No. 03-0011, Mem. Op. at 7
(D.D.C. Aug. 12, 2004), and, at the request of Messina, transferred
them to the District of Maryland, see Messina v. Fontana, No.
03-0011, Order at 2 (D.D.C. Sept. 3, 2004). The present appeal
involves only the claims brought against Krakower and his law firm.
5
(internal quotation marks omitted). We review the denial of a
Rule 59(e) motion “only for abuse of discretion.” Ciralsky v.
CIA, 355 F.3d 661, 672 (D.C. Cir. 2004). As the district court
noted, Messina’s motion did nothing more than “rel[y] on the
same arguments that she originally made.” Messina v. Fontana,
No. 03-0011, Order at 2 (D.D.C. June 12, 2003). Messina cited
“no intervening change of law,” did “not present[] any new
evidence that was not previously available,” and “failed to
establish an error of law or fact” in the court’s original opinion.
Id. We agree with the district court and therefore find no abuse
of discretion in its decision to deny Messina’s motion to vacate
the judgment.2
According to the defendants, that should end this appeal.
They note that the notice of appeal that Messina filed in the
district court designated only the June 12, 2003 Order denying
the Rule 59(e) motion and did not mention the May 8, 2003
Order granting summary judgment. The defendants ignore,
however, the Rule 28(a)(1) statement that Messina filed with
this court, which specified her intention to appeal from both
orders and attached a copy of each. See D.C. CIR. R. 28(a)(1)(B)
(“Rulings Under Review”) (requiring that an appellant’s Rule
28(a)(1) statement make “[a]ppropriate references . . . to each
ruling at issue in this court, including the date . . . and any
official citation”); see also D.C. CIR. R. 15(c)(3) (requiring
appellants to attach provisional Rule 28(a)(1) statements to their
docketing statements).
This circuit adheres to the “rule that a mistake in
designating the specific judgment or order appealed from should
not result in loss of the appeal as long as the intent to appeal
from a specific judgment can be fairly inferred from the
2
Our conclusion that Messina failed to establish an error -- let
alone a clear error -- follows from the discussion in Part III below.
6
appellant’s notice (and subsequent filings) and the opposing
party is not misled by the mistake.” Foretich v. ABC, 198 F.3d
270, 274 n.4 (D.C. Cir. 1999). Messina’s Rule 28(a)(1) filing
removed any doubt regarding her intent to appeal from the May
8 as well as the June 12 Order, and likewise eliminated any
possibility that the defendants could have been misled in that
regard. Indeed, at oral argument, the defendants conceded that
the Rule 28(a)(1) statement clearly indicated Messina was
challenging both orders and that they were not misled. Oral
Arg. Tape at 20:39. Accordingly, Messina’s challenge to the
district court’s May 8 grant of summary judgment is properly
before us.3
III
We review the district court’s grant of summary judgment
de novo. Republican Nat'l Comm. v. Taylor, 299 F.3d 887, 890
(D.C. Cir. 2002). We will affirm if “there is no genuine issue as
to any material fact and the moving party is entitled to a
judgment as a matter of law.” FED. R. CIV. P. 56(c); see
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986).
3
See Schoenbohm v. FCC, 204 F.3d 243, 245, 246 (D.C. Cir.
2000) (holding that, although the appellant’s notice of appeal
characterized it “as being from the order denying the petition for
reconsideration,” his “intent to appeal from the underlying decision .
. . [was] fairly inferable from the concise statement of reasons” he
filed with the circuit, and thus the appellee could not “claim that any
notice defects surprised or misled it”) (internal quotation marks
omitted)); Foretich, 198 F.3d at 274 n.4 (holding that the circuit court
had jurisdiction over the plaintiff’s appeal from an order,
notwithstanding his failure to designate the order in his notice of
appeal, because he listed the order on the docketing statement filed
with the circuit).
7
The judicial proceedings privilege, upon which the district
court grounded its grant of summary judgment, is well-settled in
District of Columbia law. See Finkelstein, Thompson, &
Loughran v. Hemispherx Biopharama, Inc., 774 A.2d 332 (D.C.
2001); McBride v. Pizza Hut, Inc., 658 A.2d 205 (D.C. 1995);
Arneja v. Gildar, 541 A.2d 621 (D.C. 1988); see also Brown v.
Collins, 402 F.2d 209 (D.C. Cir. 1968).4 The District has
adopted the version of the privilege found in § 586 of the
Restatement of Torts, which states:
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 it has some relation to the
proceeding.
R ESTATEMENT (S ECOND ) OF T ORTS § 586 (1977)
(RESTATEMENT); see Finkelstein, 774 A.2d at 338; McBride,
658 A.2d at 207. Accordingly, for the privilege to apply, “two
requirements must be satisfied: (1) the statement must have been
made in the course of, or preliminary to a judicial proceeding;
and (2) the statement must be related in some way to the
underlying proceeding.” Arneja, 541 A.2d at 623. If the
privilege does apply, it “is absolute rather than qualified: it
4
In this diversity case, the district court applied the substantive
law of the District of Columbia “because Dr. Messina lives and works
in the District of Columbia and alleges that she was injured there.”
Messina v. Fontana, 260 F. Supp. 2d 173, 177 (D.D.C. 2003) (citing
Weyrich v. The New Republic, Inc., 235 F.3d 617, 623 (D.C. Cir.
2001) (noting that the District uses the governmental interest test in
considering choice of law issues for defamation)). Neither side
disputes the application of District law.
8
‘protects the attorney from liability in an action for defamation
irrespective of his purpose in publishing the defamatory matter,
his belief in its truth, or even his knowledge of its falsity.’”
Finkelstein, 774 A.2d at 338 (quoting RESTATEMENT § 586 cmt.
a). The privilege is “‘based upon a public policy of securing to
attorneys as officers of the court the utmost freedom in their
efforts to secure justice for their clients.’” Id.
Messina contends that neither of the privilege’s two
requirements are satisfied in this case. First, she insists that the
allegedly “defamatory communications . . . merely involve a
business dispute between two partners in a business that had
hardly ripened into litigation.” Appellant’s Br. 12. But,
“[d]espite its name, the judicial proceedings privilege does not
protect only statements that are made in the institution of a
lawsuit or in the course of litigation.” Finkelstein, 774 A.2d at
341. Rather, the “privilege extends to some statements that are
made prior to the commencement of litigation, for instance, ‘in
. . . communications preliminary to the proceeding.’” Id.
(quoting RESTATEMENT § 586 cmt. a). “An actual outbreak of
hostilities is not required, so long as litigation is truly under
serious consideration.” Finkelstein, 774 A.2d at 343. In
particular, the privilege applies to “written correspondence
between parties’ counsel concerning threatened lawsuit[s],” id.
at 341 (citing McBride, 658 A.2d at 207-08); “statements
relating to threat[s] of litigation,” including statements
“‘analogous to [those] that are often contained in demand
letters,’” id. (quoting Conservative Club of Washington v.
Finkelstein, 738 F. Supp. 6, 14 (D.D.C.1990)); and statements
made during “‘settlement discussions,’” id. (quoting Brown, 402
F.2d at 213).
Krakower’s letter plainly falls within these contours. The
letter explained that it was “for settlement purposes,” proposed
a “win/win scenario,” and warned of a “lose/lose scenario” if
9
settlement failed and Fontana were “forced to commence legal
proceedings and/or dissolution of the Corporation.” J.A. 32. It
described possible causes of action available to Fontana,
alleging that Messina’s actions “constitute[d] a violation of [her]
fiduciary duties” and were “in contravention [of] . . . Delaware
corporate law.” J.A. 30. Krakower then reiterated the threat of
litigation twice more. He warned that if Messina were not
“willing to deal with [Fontana] reasonably and fairly,” Fontana
would have to “consider taking appropriate legal action to
protect her interest in the corporation.” Id. at 32. And he
concluded with a more specific warning: “If we do not hear
back from you . . . by the close of business on January 13, 2003,
we will assume that you are not interested in resolving this
matter amicably, and will proceed accordingly.” J.A. 32. As the
district court determined, it is plain on the face of the letter that
it was “‘preliminary to a judicial proceeding’ in that it was sent
for the very purpose of attempting settlement prior to litigation.”
Messina v. Fontana, 260 F. Supp. 2d 173, 178 (D.D.C. 2003)
(quoting RESTATEMENT § 586).5
Messina also disputes that the second element of the judicial
proceedings privilege -- that the allegedly defamatory statement
have “some relation to the proceeding” -- is satisfied in this case.
This element requires that the defamatory matter have “‘some
reference to the subject matter of the proposed . . . litigation,
although it need not be strictly relevant to any issue involved in
it.’” Finkelstein, 774 A.2d at 341-42 (quoting RESTATEMENT §
586 cmt. c). The “‘communication need not be relevant in the
legal sense; the term is very liberally construed.’” Arneja, 541
5
See McBride, 658 A.2d at 206, 207 (holding that a letter
declaring that the recipient’s failure to retract charges would leave the
sender with “‘no alternative but to pursue relief for defamation’” was
“a clear, unequivocal threat of a lawsuit,” and hence was a
“communication[] preliminary to a proposed judicial proceeding”).
10
A.2d at 624 (quoting Mohler v. Houston, 356 A.2d 646, 647
(D.C. 1976)).
Messina contends that Krakower’s letter fails to satisfy this
requirement because it unnecessarily outlined a “whole
panoply” of charges that were injurious to Messina’s reputation.
Oral Arg. Tape at 5:45. But the fact that the letter was
defamatory (if it was) cannot determine the applicability of the
privilege, since the very purpose of the privilege is to protect
against liability for defamation. Nor is the privilege
inapplicable because Krakower set forth his charges in great
detail. District of Columbia law does not require that a
communication merely allude to the nature of the sender’s
dissatisfaction; the privilege is intended to facilitate candid
discussion, not to obscure it. See Finkelstein, 774 A.2d at 338;
Conservative Club of Washington, 738 F. Supp. at 14. Because
the statements in the letter defined the nature of the dispute
between the parties and suggested the claims that Fontana would
bring if Messina did not settle the matter, they were plainly
related to the referenced litigation. As the district court
concluded, “the Krakower Letter is a straightforward, although
strong and direct, letter from counsel alerting the recipient of a
potential legal claim and seeking to resolve the claim short of
litigation.” Messina, 260 F. Supp. 2d at 179. As such, it falls
well within the category of “settlement” or “demand” letters that
the privilege is intended to protect. Finkelstein, 774 A.2d at
341.
Messina correctly notes that, as a corollary of the
relatedness requirement, the privilege has been “held to be
inapplicable” when it is “published to persons not having an
interest [in] or connection to the litigation.” Finkelstein, 774
A.2d at 342 (internal quotation marks omitted). She contends
that Chaim Kalfon, to whom Krakower sent an email copy of his
letter, was such an uninterested person. But there is no genuine
11
issue regarding Kalfon’s interest in or connection to the
prospective proceeding. Fontana introduced Kalfon to Messina
as the person authorized “to negotiate an amicable settlement for
our partnership,” J.A. 66, and -- as the district court observed --
Messina herself identified Kalfon as “‘Fontana’s proposed
mediator for Totally Italian.com, Inc. business matters.’”
Messina, 260 F. Supp. 2d at 175 (quoting Messina Opp’n at List
of Ex.). Because communications to commence settlement
discussions are covered by the privilege, Kalfon’s acknowledged
role in such discussions gave him the requisite interest in or
connection to the litigation that was contemplated if the
discussions were to fail.
Although Messina disputes the district court’s legal
conclusion that application of the privilege was appropriate, she
does not suggest that there are genuine issues of material fact
upon which that conclusion turns. To the contrary, she
acknowledges that “[t]he facts of the case are elucidated in the
opinion of the [district] court,” Appellant’s Br. 6, and declares
that this “court is invited to review the materials submitted and
based upon the case law, can decide if they are absolutely
privileged,” Appellant’s Br. 11. Having accepted the plaintiff’s
invitation and decided that the letter is absolutely privileged, we
conclude that summary judgment in favor of the defendants was
appropriate.
IV
Finally, we consider Messina’s contention that the district
court erred by not granting her request for further discovery
under Federal Rule of Civil Procedure 56(f). Rule 56(f)
provides that a court “may refuse the application for [summary]
judgment or may order a continuance to permit affidavits to be
obtained or depositions to be taken or discovery to be had,” if it
“appears from the affidavits of a party opposing the motion that
12
the party cannot for reasons stated present by affidavit facts
essential to justify the party’s opposition.” FED. R. CIV. P.
56(f). We review a district court’s refusal to grant a Rule 56(f)
request under an abuse of discretion standard. See Novecon Ltd.
v. Bulgarian-American Enter. Fund, 190 F.3d 556, 570 (D.C.
Cir. 1999). A party making a Rule 56(f) request must “state[]
concretely” why additional discovery is needed to oppose a
motion for summary judgment. Strang v. United States Arms
Control & Disarmament Agency, 864 F.2d 859, 861 (D.C. Cir.
1989). We will not find an abuse of discretion where the
requesting party has offered only a “conclusory assertion
without any supporting facts” to justify the proposition that the
discovery sought will produce the evidence required. Byrd v.
EPA, 174 F.3d 239, 248 n.8 (D.C. Cir. 1999); see Carpenter v.
Federal Nat. Mortgage Ass’n, 174 F.3d 231, 237 (D.C. Cir.
1999).
Messina’s Rule 56(f) affidavit requested an opportunity to
depose “the individual defendants and the members of the law
firm to ascertain the scope and extent of the dissemination of the
defamatory materials.” J.A. 43. But the affidavit presented no
reason to believe that Krakower’s letter was disseminated to any
third person other than Kalfon, and at oral argument Messina
conceded that she still had no reason to believe there was any
such dissemination. Oral Arg. Tape at 2:30-3:25. Under these
circumstances, we cannot say that it was an abuse of discretion
for the district court to grant the defendants’ motion for
summary judgment without first permitting Messina to pursue
further discovery. See Byrd, 174 F.3d at 248 n.8 (finding no
abuse where the Rule 56(f) declaration “merely alleged ‘there
may well be knowledge on the part of EPA employees or
undisclosed documents identifying additional contacts between
EPA and the peer panel members,’” but provided no facts to
support the assertion); see also Exxon Corp. v. FTC, 663 F.2d
120, 126 (D.C. Cir. 1980) (finding no abuse in the district
13
court’s denial of the plaintiff’s “request for limited discovery on
the theory that the [defendant] waived the work product
privilege” by an ex parte disclosure, because “the facts
supporting the allegation” that there was a disclosure were
“insufficient”).6
V
We conclude that the judicial proceedings privilege protects
the defendants from suit for defamation based on Krakower’s
letter to Messina. We further conclude that the district court did
not abuse its discretion in granting summary judgment without
allowing additional discovery pursuant to Rule 56(f).
Accordingly, the court’s grant of summary judgment in favor of
the defendants is
Affirmed.
6
Messina’s brief in this court contains an expanded list of
additional evidence that she now asserts she hoped to ascertain by
discovery. Appellant’s Br. 13. Her failure to include those items in
her original Rule 56(f) affidavit, however, deprived the district court
of the opportunity to consider them and bars Messina from relying
upon them here. See Ned Chartering & Trading, Inc. v. Republic of
Pakistan, 294 F.3d 148, 154 (D.C. Cir. 2002). In any event, Messina’s
brief suffers from the same flaw as her affidavit: it contains no
support for the proposition that discovery would have produced the
evidence she anticipated.