United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued February 23, 1999 Decided April 13, 1999
No. 98-7097
Croixland Properties Limited Partnership,
A Wisconsin Limited Partnership,
Appellant
v.
Thomas J. Corcoran, et al.,
Appellees
Appeal from the United States District Court
for the District of Columbia
(No. 97cv02120)
Robert H. Friebert argued the cause for appellant. With
him on the briefs were Robert P. Trout and John Thorpe
Richards, Jr.
Robert M. Adler argued the cause for appellees. With him
on the brief was Gary C. Adler.
Before: Williams, Randolph and Rogers, Circuit Judges.
Opinion for the Court filed by Circuit Judge Rogers.
Rogers, Circuit Judge: In 1993, Croixland, the owner of a
greyhound dog racing facility in Hudson, Wisconsin, entered
into an agreement with three Indian tribes to sell the track
and thereafter to manage jointly casino operations that the
tribes would own. A precondition to the agreement was the
purchase of the facility land in trust by the Department of
Interior under the Indian Regulatory Act, see 25 U.S.C. s 465
(1994), and approval of gaming activities on that land under
the Indian Gaming Regulatory Act, see 25 U.S.C.
s 2719(b)(1)(A)(1994). The Minnesota Area Director of the
Department recommended approval of the tribes' application
in the fall of 1994, but on July 14, 1995, the Deputy Assistant
Secretary of Indian Affairs denied the application. After
learning in the course of other litigation about actions in
Washington, D.C. taken by lobbyists for Indian tribes oppos-
ing the sale, Croixland sued the lobbyists for defamation and
conspiracy to defame.1 The district court dismissed the
complaint for failure to state a cause of action. We reverse.
I.
This court reviews the dismissal of a complaint under
Federal Rules of Civil Procedure 12(b)(6) de novo. See
Chandler v. District of Columbia Dep't of Corrections, 145
F.3d 1355, 1360 (D.C. Cir. 1998). We must accept the allega-
tions of the complaint as true, drawing all inferences in the
plaintiff's favor, and will affirm "only if it is clear that no
relief could be granted under any set of facts that could be
proved consistent with the allegations." Hishon v. King &
Spalding, 467 U.S. 69, 73 (1984); see also Harris v. Ladner,
127 F.3d 1121, 1123 (D.C. Cir. 1997).
To succeed on a defamation claim, the plaintiff must show:
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1 For ease of reference we refer to appellees as "the lobbyists."
Croixland sued Thomas J. Corcoran, Patrick E. O'Donnell, and
Larry Kitto as defendants, but in their complaint refer to conduct
by defendants and "other persons known and unknown." See
Comp. p 20.
(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) ei-
ther that the statement was actionable as a matter of law
irrespective of special harm or that its publication caused
the plaintiff special harm.
Crowley v. North Am. Telecomm. Ass'n, 691 A.2d 1169, 1172
n.2 (D.C. 1997) (quotations omitted); see also Restatement
(Second) of Torts s 558 (1976).2
Croixland's complaint alleged that the lobbyists had con-
spired to convince decisionmakers in Washington, D.C. re-
viewing the tribes' application that Croixland had connections
to organized crime. See Compl. p 20. Insofar as is relevant
to this appeal, the complaint alleged that the lobbyists, "by
publishing the defamatory statement that plaintiff [i.e., Croix-
land] was connected to organized crime, intended to injure
plaintiff in its business reputation and to cause the Depart-
ment of Interior to deny approval of the proposed Hudson
casino." Id. p 29. To this end, the lobbyists falsely stated,
according to the complaint, that "a company named Delaware
North was the owner of the Hudson greyhound facility, that
Delaware North was connected to organized crime, and that
approval of the Hudson casino would allow organized crime to
be directly involved in Indian gaming." Id. at p 20. To
support their false statements that Croixland was connected
to organized crime, the lobbyists agreed to distribute an
article appearing in the November 17, 1994, edition of the
Wall Street Journal purporting to describe Delaware North's
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2 The lobbyists cite Caudle v. Thomason, 942 F. Supp. 635,
638-39 (D.D.C. 1996), for the proposition that heightened pleading
requirements apply in defamation cases. In fact, as with any
pleading, Croixland's complaint must allege the elements of the
cause of action; the Federal Rules of Civil Procedure impose no
special pleading requirements for defamation as they do for a
specified list of other matters. See, e.g., Fed. R. Civ. P. 9.
ties to organized crime.3 Id. One of the lobbyists--Scott
Dacey, not one of the defendants--met with and gave the
article to the Deputy Assistant Secretary of Indian Affairs.
Id. p 22. The complaint referred as well to a strategy by the
lobbyists to get a story in the Washington Post about Dela-
ware North's relationship with tracks in Wisconsin. Id. p 21.
The complaint also alleged that a defamatory statement
was made to Senator John McCain during a meeting in June
1995, where the lobbyists stated that "the owners of the
Hudson greyhound facility are connected to organized
crime."4 Id. p 26; see also id. p 23. Senator McCain alleged-
ly told the lobbyists that he intended to ask the Justice
Department to look into the Hudson casino application. Id.
p 26. After the tribes' application was denied, the lobbyists
sent Senator McCain a letter, reminding him of their meeting
"regarding the proposed conversion of a dog track in Hudson,
Wisconsin, to an Indian gaming casino which would bail out
the dog track owner, Delaware North of Buffalo, New York,"
and thanking him for his "help with the Department of
Justice." Id. The letter stated that "[w]ithout your assis-
tance, we do not believe the BIA [Bureau of Indian Affairs]
headquarters would have overturned its Minneapolis area
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3 The November 17, 1994 Wall Street Journal article by John
R. Emshwiller, entitled "Sins of the Father? Concession King's
Son Fights Mob Stigma As He Builds Empire; Delaware North's
Businesses Appear Gangster-Free, But Regulators Wonder; Host-
ing You at Yosemite," describes Delaware North as having "more
than 200 operating units in 39 states and six countries." The article
reported that in 1972 the company (then known as Emprise Corpo-
ration) was convicted of conspiracy "to hide its ownership interest
and the interests of two reputed mob figures in the Frontier Casino
in Las Vegas." Since then no such ties had been uncovered, due in
part to the current owner's efforts, including hiring "former top
federal law enforcement officials" to rid the company of any such
ties. The newspaper article noted, however, that state and federal
regulators remained skeptical.
4 At the time of the meeting, Senator McCain was chairman of
the Senate Committee on Indian Affairs. See Congressional Staff
Directory (1995).
office on this matter." Id. In addition, the complaint alleged
that the lobbyists repeated the defamatory statement that the
owner of the Hudson facility was connected to organized
crime. Id. p 38.
In dismissing the complaint, the district court focused on
whether the alleged defamatory statements were "of and
concerning" Croixland. Croixland had alleged that it was
defamed when the lobbyists reported to Department officials
and others that the owner of the Hudson track had connec-
tions to organized crime, either directly or through Delaware
North's ownership. The lobbyists responded that they only
made statements about Delaware North, and consequently no
reasonable listener would think they were referring to Croix-
land. The district court agreed with the lobbyists and ruled
that because during the meeting with Senator McCain, in the
subsequent letter to him, and in the newspaper article, there
was no mention of Croixland by name and no indication that
any listener understood that the references were to Croix-
land, the complaint failed to allege defamatory statements "of
and concerning" Croixland.
To satisfy the "of and concerning" element, it suffices that
the statements at issue lead the listener to conclude that the
speaker is referring to the plaintiff by description, even if the
plaintiff is never named or is misnamed. See, e.g., Peck v.
Tribune Co., 214 U.S. 185, 188-90 (1909); Washington Post
Co. v. Kelly, 38 F.2d 151 (D.C. Cir. 1930); Harmon v. Liss,
116 A.2d 693, 695 (D.C. 1955); see also Service Parking Corp.
v. Washington Times Co., 92 F.2d 502, 504-05 (D.C. Cir.
1937); Caudle, 942 F. Supp. at 638; W. Page Keeton et al.,
Prosser and Keeton on the Law of Torts s 111, at 783 (5th ed.
1984); Restatement (Second) of Torts s 564 (1977). The
complaint refers to statements that were not just about
Delaware North as Delaware North but rather were about
Delaware North in its alleged capacity as the owner the
Hudson facility. Insofar as Croixland was the true owner,
even if never named, it could be defamed in its status as the
owner.
Grisanzio v. Rockford Newspapers, Inc., 477 N.E.2d 805
(Ill. App. Ct. 1985), on which the lobbyists rely, is not to the
contrary. Grisanzio operated a restaurant in a building that
was owned by Zammuto, who was reputed to be part of the
mob. After a newspaper reported Zammuto's mob connec-
tions, Grisanzio sued. The court dismissed his complaint
because he was never mentioned by name and a reader of the
article would reasonably perceive the distinction between the
operator of a restaurant and the owner of the building. Id. at
809-10. By contrast, in the instant case, the alleged refer-
ences to "the owner of the Hudson track" afford no such
distinction for the listener.5 So too, Carlucci v. Poughkeepsie
Newspapers, Inc., 442 N.E.2d 442 (N.Y. 1982), is of no
assistance to the lobbyists. In that case the court rejected
the notion that a reader learning that the 38-year-old owner
of a grocery store had been arrested on gambling charges
would perceive that statement to be "of and concerning" the
corporation that in fact owned store, especially since a corpo-
ration cannot be arrested. By contrast, given the conduct at
issue and context of the statements in the instant case, the
substitution of the name of one corporation, Delaware North,
for another, Croixland, as "the owner of the Hudson facility,"
presents the possibility that a listener could perceive that the
true owner is connected to organized crime.
Consequently, there are two ways that Croixland's com-
plaint sufficiently pled the "of and concerning" element.
First, the complaint alleged that the lobbyists linked Croix-
land to Delaware North and Delaware North to organized
crime. Even if the lobbyists misidentified the owner of the
facility, it did not remove the taint to the true owner. This is
due in part to the fact that Delaware North managed and
operated gambling enterprises in a number of states, see
supra n.3, and assertions of its ownership did not rule out
that it had a management agreement or affiliate relationship
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5 Furthermore, Illinois employs the rule of innocent construc-
tion, see Grisanzio, at 809, and the District of Columbia does not,
see Ollman v. Evans, 750 F.2d 970, 980 n.18 (D.C. Cir. 1984) (in
banc).
with Croixland that was consistent with Croixland's owner-
ship of the Hudson facility. In any event, the assertion that
"the owner" had mob connections sufficed to place in jeopar-
dy Croixland's opportunity with the tribes inasmuch as mob
connections would doom the tribes' application pending in the
Interior Department.
Second, the complaint alleged that Croixland was defamed
because statements were made about "the owner of the
track" having connections to organized crime without refer-
ence to Delaware North. It is undisputed, for purposes of
the motion to dismiss, that Croixland is the owner of the
Hudson track. Compl. p 7. Viewing the inferences most
favorably to Croixland, a reference to "the owner of the
track" could reasonably be understood to mean Croixland
even if the listener did not know Croixland by name. See
Harmon v. Liss, 116 A.2d 693, 695 (D.C. 1955). The defama-
tion would arise from the inference that the owner of the
track is connected to organized crime where there is no
ambiguity that a particular entity owns the track. Drawing
favorable inferences for the non-moving party, see Chandler,
145 F.3d at 1360, and viewing the alleged remarks from the
perspective of the listeners, see Kelly, 38 F.2d at 151, Caudle,
942 F. Supp. at 638, it follows that, in the context of discus-
sions about a pending tribal application at the Interior De-
partment for the sale of Croixland's track, the lobbyists'
defamatory statements could lead listeners such as Depart-
ment officials or the Chairman of the Senate Committee on
Indian Affairs to believe that Croixland was connected in
some manner to Delaware North or at least that whoever
owned the Hudson track was connected to organized crime.
Furthermore, even assuming that references to Delaware
North as the owner of the Hudson track were not "of or
concerning" Croixland, the complaint still was not properly
dismissed. Under Federal Rule of Civil Procedure 8(e), a
complaint may contain alternative theories, and if one of the
theories can survive a Rule 12(b)(6) motion, the district court
cannot dismiss the complaint.6 Croixland's complaint includ-
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6 "A party may set forth two or more statements of a claim....
[and] [w]hen two or more statements are made in the alternative
ed an alternative theory, namely that defamatory statements
were made directly about Croixland without reference to
Delaware North. This appears in paragraph 26 of the com-
plaint, referencing the meeting with Senator McCain, para-
graph 29, regarding the lobbyists' intent to injure Croixland's
business reputation and cause the Department to deny ap-
proval of the proposed Hudson casino, and paragraph 38,
concerning conspiracy, in which Croixland alleges numerous
publications of the defamatory statement by the lobbyists
that the owner of the Hudson facility had connections to
organized crime.
Accordingly, we reverse the order dismissing the complaint
and remand the case for further proceedings.
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and one of them if made independently would be sufficient, the
pleading is not made insufficient by the insufficiency of one or more
of the alternative statements." Fed. R. Civ. P. 8(e).