Messina, Karyn v. Krakower, Daniel

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.