Parsi v. Hassan

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

TRITA PARSI and NATIONAL
IRANIAN AMERICAN COUNCIL,

Plaintiffs,
v. Civil Action No. 08-705 (JDB)
SEID HASSAN DAIOLESLAM,1

Defendant.

MEMORANDUM OPINION

This is a defamation case filed by Trita Parsi and the National Iranian American Council

(collectively, "plaintiffs"). Plaintiffs allege that Seid Hassan Daioleslam ("defendant") published

numerous false and defamatory statements that characterize plaintiffs as agents of the Iranian

government. Now before the Court is defendant's motion for summary judgment.2 For the

reasons discussed below, further discovery is needed to develop certain aspects of plaintiffs'

claim. Hence, defendant's summary judgment motion is denied.

BACKGROUND

Dr. Parsi, a resident of Washington, D.C., is the president of the National Iranian

American Council ("NIAC"), a Washington, D.C.-based non-profit group. Compl. ¶¶ 9-10. The

1
Plaintiffs' complaint names "Daioleslam Seid Hassan" as the defendant in this case.
Defendant's memorandum in support of his motion clarifies that defendant's proper name is Seid
Hassan Daioleslam.
2
Defendant styles his motion as a motion to dismiss, or in the alternative, for summary
judgment. Because the Court has considered the materials the parties have appended to their
pleadings, "the motion must be treated as one for summary judgment under Rule 56." See Fed.
R. Civ. P. 12(d).
NIAC portrays itself as "dedicated to promoting Iranian American involvement in American

civic life and relying on the public for financial and human resource support." Id. ¶ 10. Plaintiffs

filed a three-count complaint against defendant, an Arizona resident, on April 25, 2008, seeking

damages and injunctive relief for common law defamation and portrayal in a false light. Id. ¶ 11.

The thrust of plaintiffs' complaint is that defendant "has published false and defamatory

statements indicating that [plaintiffs are] member[s] of a subversive and illegal Iranian lobby

colluding with the Islamic Republic of Iran . . . ." Id. ¶ 13. Plaintiffs highlight a series of

defendant's allegedly defamatory statements in their complaint. See id. ¶¶ 17-18, 36. For

example, plaintiffs take issue with defendant's statement that "NIAC is one of the Iranian

regime's Lobby arms in the US." Id. ¶ 36(B). In another statement, defendant wrote that "Trita

Parsi was the regime's trusted man within the new network." Id. ¶ 17(D). Plaintiffs also append

six articles authored by the defendant, all of which allegedly contain defamatory statements.

Plaintiffs argue that these statements injured their reputations in the community, thereby

hampering NIAC's effectiveness as an advocacy group and damaging its ability to raise funds.

Id. ¶¶ 23, 42-43.

Defendant filed this summary judgment motion on July 8, 2008. He claims that his

statements are protected by the First Amendment because plaintiffs are public figures and

because he did not publish the statements with actual malice. Defendant also argues that the

First Amendment protects his statements because they are reasonably read as expressions of

opinion, not declarations of facts. Finally, he argues that plaintiffs' claim must fail as a matter of

law because the challenged statements are neither false nor defamatory.

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 STANDARD

Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is appropriate

"if the pleadings . . . and any affidavits show that there is no genuine issue as to any material fact

and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). Material

facts are those that "might affect the outcome of the suit under the governing law." Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The movant bears the initial burden of

demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986). The party opposing a motion for summary judgment, however, "may not rely

merely on allegations or denials in its own pleading; rather, its response must -- by affidavits or

as otherwise provided in this rule -- set out specific facts showing a genuine issue for trial." Fed.

R. Civ. P. 56(e)(2). The nonmoving party must do more than simply "show that there is some

metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio

Corp., 475 U.S. 574, 586 (1986). Any factual assertions in the movant's affidavits will be

accepted as being true unless the opposing party submits his own affidavits or other documentary

evidence contradicting the assertion. Neal v. Kelly, 963 F.2d 453, 456 (D.C. Cir. 1992).

ANALYSIS

Defamation cases that, like this one, involve public figures fall at the intersection of

common law and the First Amendment. The district court, sitting in diversity, must apply the

state common law of defamation to the facts before it. Those laws seek to protect the individual's

interest in his reputation. Waldbaum v. Fairchild Publ'ns, Inc., 627 F.2d 1287, 1291 (D.C. Cir.

1980) ("From its earliest days, the law of defamation made the individual's interest in his

reputation supreme."). But at the same time, the Court must determine whether otherwise

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defamatory speech is protected by the First Amendment. The First Amendment reflects the

"national commitment to the principle that debate on public issues should be uninhibited, robust,

and wide-open . . . ." New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964). The Supreme

Court has reconciled these interests by concluding that the First Amendment requires some

"breathing space" when public figures are involved. Id. at 272; see also Gertz v. Robert Welch,

Inc., 418 U.S. 323, 342 (1974) (extending New York Times from public officials to public

figures). To create that space, the Supreme Court has decreed that a public figure can only

prevail in a defamation case upon a showing, by clear and convincing evidence, that an otherwise

defamatory statement was made with "actual malice" -- that is, with "knowledge that it was false

or with reckless disregard of whether it was false or not." Masson v. New York, 501 U.S. 496,

509 (1991).

Here, the Court, sitting in diversity in the District of Columbia, applies the District's

defamation law.

To state a cause of action for defamation, a plaintiff must allege four
elements: (1) that the defendant made a false and defamatory statement
concerning the plaintiff; (2) that the defendant published the statement
without privilege to a third party; (3) that the defendant's fault in
publishing the statement amounted to at least negligence; and (4) either
that the statement was actionable as a matter of law irrespective of special
harm or that its publication caused the plaintiff special harm.

Blodgett v. University Club, 930 A.2d 210, 222 (D.C. 2007) (quoting Oparaugo v. Watts, 884

A.2d 63, 76 (D.C.2005)). However, defendant argues that plaintiffs are public figures. If the

Court agrees -- and, as discussed below, it does -- then the First Amendment requires a greater

showing of fault than is normally required by the third element listed above. Mere negligence

will not suffice. Instead, plaintiffs must demonstrate that defendant published the statement with

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"actual malice." Masson, 501 U.S. at 509; Gertz, 418 U.S. at 342.

I. Public Figure

"Public figures" fall into one of two categories. "General public figures" are household

names and well-known celebrities. See Waldbaum, 627 F.2d at 1294. Neither Dr. Parsi nor the

NIAC has the kind of "general fame or notoriety" to be labeled a general public figure. See id.

The closer question in this case is whether plaintiffs qualify for the second category of "limited

public figures." Defendant, of course, argues that they do. See Memorandum in Support of

Defendant's Motion ("Def. Mem.") at 5-7. And plaintiffs appear to take no issue with the

application of that label to them -- their opposition memorandum makes no effort to rebut

defendant's "public figure" argument. Based on the facts now in the record, the Court agrees that

plaintiffs are limited public figures.

A three-part inquiry guides courts in determining whether a plaintiff is a limited public

figure. The court should first identify a "public controversy." Waldbaum, 627 F.2d at 1297-98.

Next, the court should examine the plaintiffs' role in that controversy. Id. at 1297. Finally, the

court should determine whether the "alleged defamation [was] germane to the plaintiff's

participation in the controversy." Id. at 1298.

Courts must carefully identify the public controversy. "[A] public controversy is a

dispute that in fact has received public attention because its ramifications will be felt by persons

who are not direct participants." Id. at 1296. But a "general concern or interest will not suffice."

Id. at 1297. Nor is newsworthiness alone enough, because courts must ensure that they do not

become "censors of 'what information is relevant to self-government.'" Id. (quoting Gertz, 418

U.S. at 346). Here, however, a public controversy is readily identified. The relationship between

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the United States and Iran has been debated at length and for years. Indeed, the controversy was

a significant area of contention between then-Senator Obama and Senator McCain in the 2008

presidential election campaign. The controversy is specific enough that it is not a general

concern, but it is not so specific as to affect only the direct participants. Indeed, the controversy

is similar in scope to those found adequate in other cases. See, e.g., Tavoulareas v. Piro, 817

F.2d 762, 773 (D.C. Cir. 1987) (identifying the relevant public controversy as "whether the

management and structure of the United States' private oil industry was in need of alteration or

reform . . . [based on] the oil shortages of the 1970's"); OAO Alfa Bank v. Ctr. for Public

Integrity, 387 F. Supp. 2d 20, 43 (D.D.C. 2005) (identifying the relevant public controversy as

"[t]he rise of the oligarchs and the decline of the Russian economy into . . . a 'criminal-syndicalist

state'").

Plaintiffs' role in the public controversy can be determined by reference to the NIAC

website, portions of which are attached as exhibits to defendant's brief. NIAC "advances the

interests of the Iranian American Community on civic, cultural and political issues."3 See Def.

Mem. Ex. 1. The website also lists Dr. Parsi's involvement in the controversy. He has authored

a book on the subject of U.S.-Iran relations, as well as articles that have been published in the

Financial Times, Jane's Intelligence Review, and other reputable publications. Id. Ex. 3. He is "a

frequent commentator on US-Iranian relations and Middle Eastern affairs, and has appeared on

BBC World News, PBS NewsHour with Jim Lehrer, CNN, Al Jazeera, C-Span, NPR, ABC, and

MSNBC." Id. Hence, plaintiffs have clearly assumed "special prominence" in this controversy.

3
The "public figure" analysis is not limited to natural persons. See OAO Alfa Bank, 387
F. Supp. 2d at 47-48. Therefore, the actual malice standard may apply to both NIAC and Mr.
Parsi.

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Waldbaum, 627 F.2d at 1297.

Finally, the alleged defamation was "germane" to plaintiffs' participation in the

controversy. Id. at 1298. The statements complained of concern plaintiffs' relationship with the

government of Iran. See Compl. ¶¶ 17-18. Because the relationship between the United States

and Iran is the relevant public controversy, the statements are germane to plaintiffs' participation

in that controversy.

The Court, then, is satisfied that plaintiffs qualify as limited public figures, thereby

triggering the actual malice standard. In short, defendant's unchallenged assertion that plaintiffs

are public figures is fully supported by the Court's independent inquiry.

II. Actual Malice

Having determined that plaintiffs are limited public figures, the next question is whether

plaintiffs are incapable of proving actual malice -- by clear and convincing evidence -- as a

matter of law. "The standard of actual malice is a daunting one." McFarlane v. Esquire

Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996). Plaintiffs must show that "the defendant in fact

entertained serious doubts as to the truth of his publication." St. Amant v. Thompson, 390 U.S.

727, 731 (1968). Purposeful avoidance of truth can constitute actual malice, see Harte-Hanks

Commc'ns v. Connaughton, 491 U.S. 657, 692 (1989), but failure to investigate cannot, see St.

Amant, 390 U.S. at 731. To make matters even more difficult for plaintiffs, the "clear and

convincing evidence" requirement is "significantly more onerous than the usual preponderance of

the evidence standard." Tavoulareas, 817 F.2d at 776. Unsurprisingly, "[f]ew public figures

have been able clearly and convincingly to prove that the scurrilous things said about them were

published by someone with 'serious doubts as to the truth of [the] publication.'" McFarlane v.

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Sheridan Square Press, Inc., 91 F.3d 1501, 1515 (D.C. Cir. 1996) (quoting St. Amant, 390 U.S. at

731).

Whether a defendant published a statement with actual malice is normally a question of

fact for the jury. Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 598 (D.C. Cir. 1988). A defendant

cannot "automatically insure a favorable verdict by testifying that he published with a belief that

the statements were true." St. Amant, 390 U.S. at 732. But if the plaintiff has not made a

showing that a defendant could have published a defamatory statement with actual malice, then

the defendant may prevail as a matter of law. Rees, 852 F.2d at 598.

Defendant argues that he could not have made the challenged statements with actual

malice because of the so-called "wire services defense." Although this circuit has not squarely

recognized this defense, defendant urges the Court to adopt it here and to find that he faithfully

quoted or re-published articles in authoring the allegedly defamatory statements. Def. Mem. at

19-27. Under defendant's proposed defense, if "an allegedly defamatory statement was taken

without substantial change from a reputable news-gathering agency," then the defendant cannot

be held liable for defamation unless he "actually knew that the wire service report was false or

there is something unusual in the wire service report that should have put the publisher on notice

that the report was probably false." Id. at 24.4

Even if the Court were to recognize defendant's proposed "wire services defense," two

problems would defeat its application here. As a legal matter, the second prong of defendant's

test begs the question of whether he acted with actual malice. If defendant did have actual

4
Citing Brown v. Courier Herald Publ'g Co., 700 F. Supp. 534 (S.D. Ga. 1988); Nelson
v. Associated Press, Inc., 667 F. Supp. 1468 (S.D. Fla. 1987); Howe v. Detroit Free Press, Inc.,
555 N.W.2d 738 (Mich. Ct. App. 1996).

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knowledge of falsity, then his proposed wire services defense fails and he has acted with actual

malice. That is because the second prong of defendant's proposed test is basically the same as the

test for actual malice. Compare Def. Mem. at 24 (defendant not liable unless he "actually knew

that the wire service report was false or there is something unusual in the wire service report that

should have put the publisher on notice that the report was probably false"), with Sheridan

Square Press, 91 F.3d at 1508 ("A publisher acts with 'actual malice' if it either knows that what

it is about to publish is false or it publishes the information with 'reckless disregard' for its truth

or falsity.").

Defendant's argument fails as a factual matter as well. Defendant points to ten sources he

cited in one of his allegedly defamatory articles to demonstrate that the sources were quoted

without substantial change. Def. Mem. at 25. But seven of those ten articles are in Arabic,

provided without translation,5 and hence are unhelpful. Without knowing what they say, the

Court cannot determine if "defendant in fact entertained serious doubts as to the truth of his

publication." St. Amant, 390 U.S. at 731. None of the remaining three exhibits -- the

"frequently asked questions" website page from an organization that Dr. Parsi previously directed

(Ex. 13), a paper co-authored by Dr. Parsi entitled "Iran-Americans: The bridge between two

nations" (Ex. 14), and a page from the NIAC website describing the organization's efforts to

involve Iranian-American youths in politics (Ex. 16) -- describe an official relationship between

plaintiffs and the Iranian government. Therefore, if any of the cited articles do report on facts

that would establish an agency relationship between plaintiffs and the Iranian government, then it

5
Defendant's affidavit provides brief descriptions of some of these articles. See Affidavit
of Seid Hassan Daioleslam ¶¶ 6-7. But these brief descriptions are not adequate substitutes for
verbatim translations of those articles.

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must be those articles that defendant has provided in Arabic without translation. Hence, at this

stage the Court cannot conclude that defendant drew from other news sources "without

substantial change" in authoring the offending statements.

Plaintiffs, on the other hand, have pointed out that the record could support a finding of

actual malice. See Plaintiffs' Memorandum in Opposition to Defendant's Motion ("Pls.' Opp.") at

7. For example, in an article entitled "Ayatollah's Lobby in Washington Offering Human Rights

as a Negotiating Item," defendant wrote that when "Ahmadinejad [the president of Iran] held the

Holocaust conference and declared that 'Israel should be wiped off the map,' Trita Parsi and his

cohorts did not only not condemn this anti-Iranian and anti-humanity act, but launched a

campaign . . . to blame the fault on the 'neocon' media . . . ." See id. Ex. A. But, as plaintiffs

point out, Dr. Parsi has frequently criticized the Iranian government's stance on human rights in

general and on the Holocaust in particular. See Affidavit of Trita Parsi ¶ 15. At this stage of the

proceedings, the Court cannot determine the source of, much less resolve, this discrepancy.6 A

failure to investigate adequately could not alone amount to actual malice, see St. Amant, 390

U.S. at 731, but purposeful avoidance of the truth could, see Harte-Hanks, 491 U.S. at 692.

Discovery is needed, then, to determine what defendant knew at the time he made the contested

statements.7

6
The Court offers no opinion on whether defendant in fact mischaracterized plaintiffs'
stance on human rights, and instead finds only that based on the current record, defendant may
have mischaracterized plaintiffs' stance. Of course, if discovery reveals that defendant's
characterization was accurate, then this statement is not actionable.
7
The parties should bear in mind that the Court's resolution of this motion does not mean
that a trial is necessary to determine whether defendant published his statements with actual
malice. Discovery may provide a clear answer. Each party will have an opportunity to file a
summary judgment motion, based on a complete record, explaining why the actual malice

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III. False and Defamatory Statement

A. False Statements

"[T]ruth is a complete defense to defamation." Moldea v. New York Times Co., 15 F.3d

1137, 1142 (D.C. Cir. 1994). A statement that is not completely error-free can still be "true" for

purposes of defamation law. See Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1296

(D.C. Cir. 1988) (holding that a "substantially true" statement does not give rise to a defamation

action); see also Restatement (Second) of Torts § 581A, comment f (1977) ("It is not necessary to

establish the literal truth of the precise statement made. Slight inaccuracies of expression are

immaterial provided that the defamatory charge is true in substance."). The D.C. Circuit has

employed a rough test to determine whether a defendant's defense of truth will dispatch a

plaintiff's defamation suit: is the "sting of the charge" "substantially true"? See Dow Jones &

Co., 838 F.2d at 1296; Moldea, 15 F.3d at 1150. If so, then a defamation suit must fail.

Here, defendant argues that his allegedly defamatory statements are indeed substantially

true. He claims that plaintiffs are "lobbyists" under the plain meaning of the term. Def. Mem. at

9-10. Defendant also argues that plaintiffs' goals align with the Iranian government's goals, and

that some Iranian government-owned publications and Iranian officials have suggested support of

plaintiffs. Id. at 10-12. Finally, defendant points out that Dr. Parsi previously was the president

of an organization known as Iranians for International Cooperation ("IIC"), which "identified

itself as 'an Iranian lobby' and indicated that its 'main objective [was] to safeguard Iran and Iran's

interests.'" Id. at 12 (brackets and emphasis in original) (quoting Def. Mem. Ex. 13).

But defendant parses his statements too finely. The "sting of the charge" is not, as

standard is (or is not) satisfied by clear and convincing evidence.

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defendant would have it, that plaintiffs are lobbyists. Nor does the assertion that plaintiffs' goals

align with the Iranian government's goals carry real bite. Truthful or not, those statements do not

form the core of plaintiffs' defamation claim. Rather, the sting of the charge is that plaintiffs are

agents of the Iranian government. Plaintiffs take issue with statements like: "Officially founded

in 2002, NIAC is one of the Iranian regime's Lobby arms in the US." Compl. ¶ 36(B). In another

article, defendant wrote: "Trita Parsi was the regime's trusted man within the new network." Id. ¶

17(D).

To be sure, defendant points to Dr. Parsi's tenure as president of the IIC as proof that he

was, in fact, the head of a self-described "Iranian lobby." But examination of the IIC website, see

Def. Mem. Ex. 13, reveals that the "Iranian lobby" label is not as straightforward as defendant

would have it. The Court has reviewed Exhibit 13 -- the sole page from the IIC website that is

now part of the record in this case -- and cannot find a single mention of support by the Iranian

government. Unless "a trial court can find as a matter of law that a challenged publication is

substantially true . . . it is the jury's province to determine whether the publication was

sufficiently false so as to have defamed the plaintiff." Moldea, 15 F.3d at 1150. Based on the

record now before the Court, reasonable jurors could differ in their conclusions as to whether

defendant's statements were substantially true. Hence, defendant's defense of truth, at this stage

of the proceedings, must fail.

B. Defamatory Statements

Defendant also contends that his statements were not defamatory. See Def. Mem. at 13-

15. Courts must determine whether a statement is "capable of conveying a defamatory meaning"

as a matter of law. S. Air Transp. v. Am. Broad. Cos., Inc., 877 F.2d 1010, 1013-14 (D.C. Cir.

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1989). For this inquiry, the Court, sitting in diversity, applies the District's defamation law. "'It

is only when the court can say that the publication is not reasonably capable of any defamatory

meaning and cannot be reasonably understood in any defamatory sense that it can rule as a matter

of law, that it was not libelous.'" White v. Fraternal Order of Police, 909 F.2d 512, 518 (D.C.

Cir. 1990) (quoting Levy v. Am. Mutual Ins. Co., 196 A.2d 475, 476 (D.C. 1964)). A statement

can be understood in a defamatory sense if it "tends to lower plaintiff in the estimation of a

substantial, respectable group, though they are a minority of the total community or plaintiff's

associates." Afro-American Publ'g Co. v. Jaffe, 366 F.2d 649, 664 n.10 (D.C. Cir. 1966).

The Court concludes that defendant's statements are capable of conveying a defamatory

meaning. Plaintiffs point out that the Iranian-American community "overwhelmingly

disapproves of the government of the Islamic Republic of Iran." Parsi Aff. ¶ 8; see also id. ¶¶ 9-

14 (describing how defendant's statements have allegedly damaged plaintiffs' reputation). If,

based on defendant's statements, the Iranian-American community believes that plaintiffs are

employed by the Iranian government, then defendant's statements may have "lower[ed]

plaintiff[s] in the estimation of a substantial, respectable group." See Afro-American Publ'g Co.,

366 F.2d at 664 n.10. Hence, the Court cannot find that defendant's statements are incapable of

conveying a defamatory meaning as a matter of law.

IV. Fact-Opinion Distinction

Defendant also characterizes his statements as opinions, not facts. See Def. Mem. at 15-

19. The First Amendment protects statements of opinions -- "[h]owever pernicious an opinion

may seem, we depend for its correction not on the conscience of judges and juries but on the

competition of other ideas." Gertz, 418 U.S. at 340. To assist courts in distinguishing between

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facts and opinions, this circuit has set out a four-factor test: (1) the common usage or meaning of

the specific language used in the statement; (2) the statement's verifiability; (3) the full context of

the statement; and (4) the broader context in which the statement appears. See Ollman v. Evans,

750 F.2d 970, 979 (D.C. Cir. 1984).

The thrust of plaintiffs' claim addresses statements of fact, not statements of opinion.

Defendant insists that certain words in his challenged statements suggest the opposite conclusion.

Words like "unwary" and "smokescreen," defendant maintains, demonstrate that he was

expressing his point of view and nothing else. But the full context of the challenged statements,

not isolated words, determines whether statements are ones of fact or opinion. See id. And, as

discussed above, the "sting of the charge" is that plaintiffs are agents of the Iranian government.

This is a statement of fact. It can be verified -- plaintiffs either are or are not agents of the

Iranian government. See id. Moreover, defendant's statements are not intangible or imprecise

words with widely divergent definitions. See id. at 980-81 (explaining that political terms like

"fascist" lack a "correct" definition and that terms like "sloppy and irresponsible" are too

imprecise to support a defamation action). Take, for example, defendant's statement that "Trita

Parsi was the regime's trusted man within the new network." Compl. ¶ 17(D). Even shorn of

adjectives, the statement contains a statement of fact: that Dr. Parsi is an agent of the Iranian

government. Therefore, again based on the current record, the Court rejects defendant's

argument that his challenged statements are opinions, not facts, warranting dismissal of plaintiffs'

defamation action.

V. Paragraph 18(C) of Complaint

Finally, defendant requests that the Court strike paragraph 18(C) from the complaint.

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Paragraph 18 lists a number of allegedly defamatory statements made by defendant, including the

following statement set out at paragraph 18(C) (brackets in original):

Obviously, the Swiss ambassador [Parsi] did not intend to put at risk
such a historical event by turning to Bob Ney's group. He was surely
instructed by his Iranian contacts to do so.

Defendant made that statement in an article entitled "Iran's 2003 Grand Bargain Offer: Secrets,

Lies, and Manipulation." See Compl. Ex. 2. But, as defendant points out, his article never

referred to Dr. Parsi as the Swiss ambassador, but instead clearly identifies Tom Guldimann as

the Swiss ambassador. See Def. Mem. at 28-29. To be sure, plaintiffs may have accidentally

misplaced the bracketed portion or made some other typographical error. Yet plaintiffs are silent

on defendant's request that the Court strike paragraph 18(C). Because, as written, paragraph

18(C) misconstrues defendant's actual statement, the Court will strike paragraph 18(C) from the

complaint.

CONCLUSION

For these reasons, defendant's summary judgment motion is denied. A separate order has

been issued today.

SO ORDERED.

/s/
JOHN D. BATES
United States District Judge

Dated: February 4, 2009

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