Parnigoni v. St. Columba's Nursery School ( 2010 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
__________________________________________
FIONA PARNIGONI, DAVID PARNIGONI, )
AND ANDREW PARNIGONI, )
)
Plaintiffs, )
) 1:08-cv-00613 (RBW)
v. )
)
ST. COLUMBA’S NURSERY SCHOOL, )
ST. COLUMBA’S EPISCOPAL CHURCH, )
VESTRY OF ST. COLUMBA’S PARISH, )
REV. JANET VINCENT, )
AND JULIA H. BERRY )
)
Defendants. )
__________________________________________)
MEMORANDUM OPINION
The plaintiffs in this civil lawsuit assert claims against St. Columba’s Nursery School;
St. Columba’s Episcopal Church; Vestry of St. Columba’s Parish, the administrative committee
of the church; Reverend Janet Vincent, Rector of the Church; and Julia H. Berry, Director of the
School (collectively “the defendants”), Amended Complaint (“Am. Compl.”) ¶¶ 4-8, for
defamation (Count I), Am. Compl. ¶¶ 47-59; invasion of privacy–false light (Count II), Am.
Compl. ¶¶ 61-67; invasion of privacy–public disclosure of private facts (Count III), Am. Compl.
¶¶ 68-74; intentional infliction of emotional distress (Count IV), Am. Compl. ¶¶ 75-80;
promissory estoppel (Count V), Am. Compl. ¶¶ 81-86; loss of consortium (Counts VI-VIII), Am.
Compl. ¶¶ 87-104; intentional interference with prospective economic advantage (Count IX),
Am. Compl. ¶¶ 105-11; and negligent misrepresentation (Count X), Am. Compl. ¶¶ 112-17.
Currently before this Court is the Defendants’ Motion to Dismiss Amended Complaint Pursuant
to Federal Rule of Civil Procedure 12(b)(6) and the Defendants’ Statement of Points and
Authorities in Support of Motion to Dismiss Amended Complaint Pursuant to Federal Rule of
Civil Procedure 12(b)(6) (“Defs.’ Mem.”). The motion is opposed by the plaintiffs, Plaintiffs’
Opposition to Defendants’ Motion to Dismiss Amended Complaint (“Pls.’ Opp’n”), to which the
defendants filed their Reply in Support of Motion to Dismiss Amended Complaint Pursuant to
Rule of Civil Procedure 12(b)(6) (“Defs.’ Reply”). Upon consideration of the submissions filed
by the parties, the Court concludes that the defendants’ motion must be granted in part and
denied in part.
I. Background
The plaintiffs in this civil lawsuit are Fiona Parnigoni, David Parnigoni, and Andrew
Parnigoni (“the plaintiffs”), who are residents of Arlington, Virginia. Am. Compl. ¶ 1. Plaintiff
Fiona Parnigoni is the wife of co-plaintiff David Parnigoni, and co-plaintiff Andrew Parnigoni is
their three-year-old son. Id. The dispute between the parties occurred during Fiona Parnigoni’s
employment as a teacher from 2001 to 2008 at St. Columba’s Nursery School (the “Nursery
School” or “School”) located in the District of Columbia. See generally Am. Compl. Viewed in
the light most favorable to the plaintiffs, the facts underlying this action are the following.
In 2004, while she was employed by the School, id. at ¶ 15, Mrs. Parnigoni’s fiancé at
that time, David Parnigoni, was charged with and ultimately convicted of indecently exposing
himself to a minor, id. ¶¶ 13, 15. Mrs. Parnigoni had no involvement in that incident, id. ¶ 13,
but while the case was still pending resolution, Mrs. Parnigoni informed the Director of the
School of the situation regarding her fiancé, and the Director in turn informed the Board of
Governors of the Church (the “Board”) and the Rector, Reverend James Donald, of David
Parnigoni’s situation, id. ¶ 15. The defendants took no action at that time and Mrs. Parnigoni
continued to work at the School without any further discussions about the matter. Id. ¶¶ 16-17.
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Sometime thereafter, David and Fiona Parnigoni married, and at no time did anyone associated
with the School or Church Parish indicate that Mrs. Parnigoni’s subsequent marriage to Mr.
Parnigoni was or would be cause for concern or place her job in jeopardy. Id. ¶ 17.
Three years after Mr. Parnigoni’s conviction, in 2007, the Parnigonis decided to enroll
their son at the School as a student, and they were notified of his acceptance in March 2007. Id.
¶ 19. Neither before nor at the time of the son’s acceptance was there any indication that the
defendants would publicly disclose information regarding Mr. Parnigoni’s conviction as a sex
offender as a result of the child’s enrollment in the school. Id. However, in August of 2007,
Julia Berry, who was named Director of the School in 2006, met with Mrs. Parnigoni and
requested information from her regarding the details concerning Mr. Parnigoni’s 2004
conviction. Id. ¶ 18. The Director stated that Mrs. Parnigoni was required to disclose the
details of her husband’s conviction so that the Director would be able to explain the
circumstances to any parent who might inquire about the situation. Id. Mrs. Parnigoni provided
the Director with the requested information and offered the Director the opportunity to speak
with her husband’s lawyers, id., however, the record is unclear as to whether the Director
accepted or declined the offer.
On “the first day of the 2007-2008 term for teachers, the Director informed Mrs.
Parnigoni that the Board was ‘nervous’ about [Mr. Parnigoni’s] 2004 conviction.” Id. ¶ 20. The
Board’s apprehension apparently stemmed from the fact that “Mr. Parnigoni might [now] have
reason to be on the School property to pick [] up [his son].” Id. “Mrs. Parnigoni informed the
Director that she [planned to] walk [her son] off school grounds a block away on the single day
per week when her husband was required to pick [their son] up from school,” which was in
accordance “with the unwritten agreement that was in place” between Mrs. Parnigoni and the
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School “since Mr. Parnigoni’s conviction.” Id. ¶ 21. The Board was allegedly “relieved” to
learn of the Parnigonis’ arrangements to take their son off campus when Mr. Parnigoni needed to
pick him up from school, id.; however, the Director still requested Mr. Parnigoni’s “lawyer’s
contact information so that St. Columba’s counsel could make a ‘courtesy call,’” id. ¶ 22. The
Church’s attorney then contacted Mr. Parnigoni’s lawyer and informed him that the Church was
satisfied with the arrangement of walking Andrew away from the school to meet Mr. Parnigoni
and assured the lawyer that “everything is fine” and that the Parnigonis “would not hear from the
Church again on this issue.” Id. Andrew Parnigioni’s first day as a student at the School was
September 17, 2007. Id. ¶ 23.
On October 1, 2007, the Director of the School told Mrs. Parnigoni that the Rector of the
Church, Janet Vincent, wished to “meet with her.” Id. ¶ 24. The “meeting was held two days
later on October 3, 2007,” id., and those in attendance included the Rector of the Church, the
Director of the School, the Church’s attorney, the Chairman of the Church’s Board of Governors,
Mrs. Parnigoni, and her attorney, id. ¶ 25. During the meeting, the Rector announced “her
decision to make a full public disclosure” of Mr. Parnigoni’s 2004 conviction “to all parents of
students [attending] the Nursery School and the entire Parish.” Id. It was also indicated that the
Church planned to announce “the fact that Mrs. Parnigoni, a teacher at the school, was married
to a convicted sex offender.” Id.
As noted earlier, the Church had not mentioned previously any concerns regarding Mrs.
Parnigoni’s marriage to Mr. Parnigoni; therefore, Mr. and Mrs Parnigoni surmised that the new
concern was related “to her son’s enrollment in the [S]chool.” Id. ¶ 26. Accordingly, Mrs.
Parnigoni offered to withdraw Andrew from the School to avoid any “embarrassment to her and
her family,” and the Church’s attorney allegedly informed Mrs. Parnigoni that removing her son
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from the School would “certainly ‘help’” the situation, and the attorney “encouraged” her to do
so. Id. Mrs. Parnigoni therefore removed her son from the School in early October 2007, id. ¶
27, and she also “offered to resign her position” as a teacher “in order to avert public disclosure”
of her husband’s conviction, but the School “rejected” her offer, id. ¶ 28.
On October 12, 2007, the Director of the School “met with Mrs. Parnigoni’s co-teacher
and two other colleagues” to discuss the impending disclosures about Mr. Parnigoni. Id. ¶ 29.
“[T]he Director stated that while she was sorry that this had happened to Mrs. Parnigoni, she put
the blame for the entire situation on Mrs. Parnigoni, and declared that if Mrs. Parnigoni had not
married [her husband], she ‘would not be in this position.’” Id. That same day, the Director
emailed Mrs. Parnigoni asking her to remain at home on October 15, 2007, so that the Rector
could inform the staff about the “‘disclosure’ without her being present.” Id. ¶ 30. When the
Rector spoke to the School staff during the meeting, she apparently “made it clear” that the sole
reason for the disclosure was due to Mrs. Parnigoni’s “‘poor judgment in marrying David’” and
denied that the disclosures were based on their son’s “enrollment in the School.” Id. ¶ 31. The
Rector further stated that she would have made “the disclosure . . . even if [Mrs. Parnigoni]
resigned.” Id.
“On or about October 18, 2007, [the Rector] sent a letter (the “October 18[th] letter”) to
the parents of the students of the School and to all members of the Church’s parish,” which, inter
alia, informed them of Mr. Parnigoni’s registration “with the Virginia Sex Offenders and Crimes
Against Minors Registry as a result of [his] July 3, 2004 conviction for indecent exposure to a
minor.” Id. ¶ 32. The letter identified David as Fiona’s husband and indicated that “[u]ntil
recently their son had attended the Nursery School.” Id. The letter went on to state that it had
been issued to “enable [parents] to make informed decisions as to whom [they should] entrust the
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care and supervision of [their children].” Id. It further stated that because the defendants lacked
the ability “to anticipate every possible future scenario [they] believe[d their] best course of
action [was] to give [the] parents the information they need[ed] to protect their children.” Id.
Moreover, the letter stated that the “disclosures [were] necessary for the sake of our children”
because the parents were “entitled to information that may impact the safety of [their children].”
Id. The Church sent the letter to “[o]ver 3,500 households in the D.C. metropolitan area,”
although the number of people who actually “read the letter” is unknown. Id. ¶ 33. “On the
same day that the [October 18th letter] was sent to the parents and the entire parish,” the Director
sought suggestions and recommendations from other nursery school directors in “an email to the
DC Directors’ Exchange list-serve, a group consisting of approximately 37 nursery school
directors in the Washington, D.C. area.” Id. ¶ 34. The email included all of the details regarding
the Parnigoni’s situation and their relationship with the School without identifying them by
name. Id.
On October 31, 2007, the Parnigonis “received a letter from a parent” expressing the
view that the School’s “approach [was] totally unjustified,” resulting in the Parnigoni “family’s
name and reputation [being] tarnished, [and their] personal affairs publicized, and [their] son []
taken out of the school.” Id. ¶ 39. On that same day, the Parnigonis received a copy of another
letter sent to the Rector from a parent of one of the children attending the school that expressed
disappointment with the school’s decision to embarrass Mrs. Parnigonis and her family. Id. ¶ 40.
As had been announced in the October 18th letter, “on November 1, 2007[,] a meeting, open to
the public, was held to address any questions or concerns that the [October 18th letter] might
have raised.” Id. ¶ 38. Some who attended “the meeting indicated that they believed the
Rector’s letter unfairly cast Mrs. Parnigoni as a threat to children.” Id.
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“On or about November 9, 2007, [the Director] sent another letter (the “November 9[th]
letter”) to the parents of students who attended the nursery school and[, it is believed by the
plaintiffs], the entire parish as well. Id. ¶ 41. Among other things, the letter stated “that the
world can be a less-than safe place for our children.” Id. According to the plaintiffs, the letter
“reinforced” the notion that “Mrs. Parnigoni was a potential threat to the School’s children[,]”
id., despite there having been no previous incidents suggesting “that Mrs. Parnigoni, because of
her marriage to Mr. Parnigoni[,] or for any other reason, endangered or posed a threat to any
student of the School or member of St. Columba’s parish,” id. ¶¶ 41, 42.
Although the Director informed Mrs. Parnigoni “that the Board would renew her contract
for the next [school] year and that her teaching position with the school was safe and that she
need not worry as the ‘storm would soon pass’” at a meeting held shortly after the October 18th
letter was sent, id. ¶ 37, Mrs. Parnigoni’s contract was not renewed for the 2008-2009 school
year despite her unblemished employment record, id. ¶¶ 42-43. The plaintiffs assert that the
Director told a parent that Mrs. Parnigoni’s contract was not renewed “because of the disclosures
contained in the [October 18th letter] and because current parents allegedly wanted to withdraw
[their children] from Mrs. Parnigoni’s class and prospective students did not want to be in her
class [the following] year.” Id. ¶ 43.
In addition to teaching at the School, Mrs. Parnigoni had operated a summer camp since
2000 named the Teddy Bear Camp, for three- to six-year-old children “on the grounds of another
[area] church.” Id. ¶ 44. According to the plaintiffs, some of the students who attended the
nursery School also attended Mrs. Parnigoni’s Teddy Bear Camp during the summer and the
defendants were allegedly “displeased that Mrs. Parnigoni ran [the] summer camp and that
students from their School attended the camp.” Id. ¶ 45. Accordingly, “[o]n or about February
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28, 2008,” [the Director] issued Mrs. Parnigoni a “letter of reprimand because Mrs. Parnigoni
sent parents a flyer about the Teddy Bear Camp,” although she had done this in the past with the
Director’s knowledge and had not previously been chastised for doing so. Id.
As a result of the actions allegedly taken by the defendants, the plaintiffs seek
compensatory and punitive damages, the costs of pursuing this action, and attorney’s fees. Id. at
26. The defendants now seek dismissal of this action under Rule 12(b)(6) for failure to state any
claims upon which relief may be granted. Defs.’ Mem. at 1.
II. Standard of Review
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests whether the
plaintiffs have properly stated a claim upon which relief may be granted. Woodruff v. DiMario,
197 F.R.D. 191, 193 (D.D.C. 2000). For a complaint to survive a Rule 12(b)(6) motion, it need
only provide “a short and plain statement of the claim showing that the pleader is entitled to
relief,” Fed. R. Civ. P. 8(a)(2), which accomplishes the due objective of “giv[ing] the defendant
fair notice of what the claim is and the grounds upon which it rests,” Bell Atl. Corp. v. Twombly,
550 U.S. 544, 555 (2007) (citation and internal quotation marks omitted). “Although detailed
factual allegations are not necessary to withstand a Rule 12(b)(6) motion to dismiss, to provide
the grounds of entitlement to relief, a plaintiff must furnish more than labels and conclusions or a
formulaic recitation of the elements of a cause of action.” Hinson ex rel N.H. v. Merritt Educ.
Ctr., 521 F. Supp. 2d 22, 27 (D.D.C. 2007) (internal quotation marks and alteration in original
omitted) (quoting Twombly, 550 U.S. at 555). Or, as the Supreme Court more recently stated,
“[t]o survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as
true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, ___ U.S. ___, 129
S. Ct. 1937, 1949 (2009) (quoting Twombly, 550 U.S. at 570). Furthermore, a claim is facially
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plausible “when the plaintiff[s] plead[] factual content that allows the court to draw a reasonable
inference that the defendant[s] [are] liable for the misconduct alleged.” Ashcroft, 129. S. Ct. at
1949 (quoting Twombly, 550 U.S. at 556). Moreover, under Rule 12(b)(6), the Court “must treat
the complaint’s factual allegations as true and must grant [the] plaintiff[s] the benefit of all
reasonable inferences [that can be derived] from the facts alleged.” Trudeau v. FTC, 456 F.3d
178, 193 (D.C. Cir. 2006) (internal quotation marks and alteration in original omitted). Finally,
factual challenges are not permitted under Rule 12(b)(6); instead, the Court may only consider
the factual allegations set forth in the complaint, any documents attached as exhibits thereto (or
incorporated therein), and matters subject to judicial notice in weighing the merits of the motion.
EEOC v. St. Francis Xavier Parochial Sch., 117 F.3d 621, 624-25 (D.C. Cir. 1997). The Court’s
focus is therefore restricted to the facts as alleged by the plaintiffs, which must be sufficient “to
raise a right to relief above the speculative level.” Twombly, 550 U.S. at 555.
III. Legal Analysis
The defendants challenge the sufficiency of each claim asserted in the plaintiffs
complaint. The Court will address each challenge separately after first assessing whether the
claims are controlled by the law of the District of Columbia or Virginia.
A. Choice of Law
All of the plaintiffs’ claims arise from common law principles of tort liability, and are
being pursued in this Court “based on the diversity of the citizenship of the parties pursuant to 28
U.S.C. § 1332(a)(1) (2006).” Am. Compl. ¶ 9. The plaintiffs are citizens of Virginia, defendants
Vincent and Berry are citizens of Maryland, and the principle places of business for the
remaining defendants appear to be in the District of Columbia. Id. ¶¶ 1-8. As an initial matter,
the Court must assess which law of these three jurisdictions apply to the several claims asserted
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by the plaintiffs. “When deciding state-law claims under diversity or supplemental jurisdiction,
federal courts apply the choice-of-law rules of the jurisdiction in which they sit.” Mastro v.
Potomac Elec. Power Co., 447 F.3d 843, 857 (D.C. Cir. 2006) (internal quotation marks
omitted). Employing the choice-of-law rules of the District of Columbia, “the [C]ourt must first
determine if there is a conflict between the laws of the relevant jurisdictions.” Y.W.C.A. of the
Nat’l Capital Area, Inc. v. Allstate Ins. Co. of Canada, 275 F.3d 1145, 1150 (D.C. Cir. 2002). If
a conflict exists, then courts in the District of Columbia must determine which jurisdiction has
the most significant relationship to the claims being pursued by the plaintiffs. The relevant
factors to consider in conducting this analysis are: “(a) the place where the injury occurred; (b)
the place where the conduct causing the injury occurred; (c) the domicile, residence, nationality,
place of incorporation and place of business of the parties; and (d) the place where the
relationship is centered.” District of Columbia v. Coleman, 667 A.2d 811, 816 (D.C. 1995)
(citing Restatement (Second) of Conflict of Laws § 145(2) (1971)); Pearce v. E.F. Hutton Group
Inc., 664 F. Supp. 1490, 1498 (D.D.C. 1987). Furthermore, the District of Columbia courts
apply a governmental interest analysis when examining claims under this jurisdiction’s choice of
law principles. See Adolph Coors Co. v. Truck Ins. Exch., 960 A.2d 617, 620 (D.C. 2008)
(applying a governmental interest analysis to case); Linnell v. Sloan, 636 F.2d 65, 66-67 (4th
Cir. 1980) (stating that the District of Columbia applies a governmental interest analysis when
there is a conflict of laws).
The plaintiff has alleged claims for defamation (Count I), invasion of privacy–false light
(Count II), invasion of privacy–public disclosure of private facts (Count III), intentional
infliction of emotional distress (Count IV), promissory estoppel (Count V), loss of consortium
(Counts VI-VIII), intentional interference with prospective economic advantage (Count IX), and
10
negligent misrepresentation (Count X). The Court finds, and the parties have not disputed the
contention, that it need not determine whether Virginia, Maryland, or District of Columbia law is
controlling in regards to Counts I, IV, V, and IX, as the laws of those jurisdictions are not in
conflict with respect to the prerequisites for the establishment of these claims. There is,
however, a conflict as to Counts II, III, VI, VII, VIII. The parties make no argument as to which
jurisdictions’ law applies to Count X, however, for the same reasons that follow, the Court
concludes that it is the law of the District of Columbia that governs this claim.
The defendants assert that the Court should dismiss Counts II and III (the two invasion of
privacy claims) because “the[] claims are not recognized under Virginia law.” Defs.’ Mem. at
18. The defendants make the same argument with respect to the plaintiffs’ loss of consortium
claims, Counts VI-VIII. Defs.’ Mem. at 29-30. The plaintiffs counter that as to Counts II and
III, the District of Columbia has the most significant relationship to those claims because it is the
place where the injury and the conduct that caused the injury occurred. Pls.’ Opp’n at 26. The
plaintiffs make the same assertion as to their loss of consortium claims. Pls.’ Opp’n at 38.
Concerning Counts II and III, the Court agrees with the plaintiffs that the District of
Columbia has the greatest interest regarding these claims as all of the factors that must be
considered—the place where the injury occurred, the place where the relationship is centered,
the place where the conduct causing the injury occurred, and the place of business of the
parties—weigh in favor of this conclusion. The Court reaches the same conclusion as to Count
X. The injury to the plaintiffs occurred in the District of Columbia, as this is where the alleged
invasion of the plaintiffs’ privacy and the purported negligent misrepresentation occurred; this is
where the alleged damage was inflicted, as this is where the information about the plaintiffs was
disseminated, and this is where the dissemination of the information seems to have had its
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greatest impact on the plaintiffs, i.e., this is where Mrs. Parnigoni was employed and operated
her business, where the school from which Andrew had to be withdrawn is located, and the
location where the relationship between the parties was centered.
In regards to Counts VI-VIII, the plaintiffs’ consortium claims, a different result is
demanded. Jurisdictions that employ the governmental interest choice of law principle typically
rule that the law governing a loss of consortium action is the law where the marriage is
domiciled, not where the injury occurred. See, e.g., Felch v. Air Fla., 562 F. Supp. 383, 386
(D.D.C. 1983). Thus, under this jurisdiction’s choice of law analysis, the law governing the
plaintiffs’ loss of consortium claims is Virginia law, which is where Mr. and Mrs. Parnigoni and
their son are domiciled. See Felch v. Air Fla., 562 F. Supp. at 386 (stating that the jurisdiction
where the marital parties are domiciled has a greater interest than the place where the injury
occurred).
B. The Plaintiffs’ Defamation Claim
Count I of the amended complaint asserts that Fiona and Andrew Parnigoni were
defamed when the defendants disseminated the October 18, 2007 and November 9, 2007 letters.
Am. Compl. ¶¶ 47-59. The defendants move to dismiss this claim on the ground that the two
letters are not defamatory as a matter of law. Defs.’ Mem. at 9. The defendants maintain that
their challenged statements are true and that although the disclosures in the letters identifying
Fiona and Andrew as David Parnigoni’s wife and son may have been embarrassing, these
revelations did not make them appear “‘odious, infamous, or ridiculous.’” Id. at 10-11. The
defendants further contend that it was clear that the disclosures were about David Parnigoni and
not “‘of and concerning’” Fiona and Andrew Parnigoni. Id. at 11. Accordingly, the defendants
do not believe the letters contained anything that could demonstrate that they intended to convey
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that Fiona and Andrew Parnigoni, as opposed to David Parnigoni, posed a risk to the students’
safety. Id. at 12-13. Additionally, they argue that the letters, when considered in context, would
not lead a reasonable person (in this case the parents of children attending the School or who are
considering enrolling a child in the School) to believe that either Andrew or Fiona Parnigoni
posed a threat to their children. Id. at 13-14. Instead, the defendants contend that the October
18, 2007 letter served merely as an advisory to parents concerning David Parnigoni’s
background and a warning that they should not assume that “he could be entrusted around their
children simply because he is married to someone the Church did consider worthy of that trust.”
Id. at 14 (emphasis in original). Moreover, the defendants assert that even if a defamatory
inference could be derived from the Church’s statement regarding the parents’ right to know
about Mr. Parnigoni’s conviction, the statement is the Church’s “opinion based on disclosed
facts” and is therefore constitutionally protected. Id. at 16-18.
The plaintiffs, on the other hand, insist that they have sufficiently pled a claim for
defamation “by implication” because the issuance of a false statement is not a necessary
component of a defamation by implication claim under District of Columbia law. Pls.’ Opp’n at
14. They argue that the “defamatory inference” arose from the defendants’ “juxtaposition of
factual statements regarding Fiona Parnigoni’s status as David Parnigoni’s wife, with other non-
factual statements regarding” the Church’s reasoning for why disclosure was necessary. Id. at
14-15. The plaintiffs believe that a reasonable person could have construed the letters as
conveying the impression that Mrs. Parnigoni was also believed to pose a threat to children. Id.
at 14-16. The plaintiffs also advance a similar theory of liability on behalf of Andrew Parnigoni,
questioning why the defendants had to reveal that Andrew was no longer a student in the School
if, as the defendants claim, they did not intend to convey that Andrew posed no threat to the
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other students. Id. at 16. The plaintiffs also disagree with the defendants’ position that the
October 18 letter was not capable of a defamatory meaning, id. at 17, and have presented letters
from other parents to demonstrate that there were, in fact, members of the public who thought
the letter was defamatory.1 Id. at 17-19. Moreover, the plaintiffs point to what they characterize
as the November 9, 2007 letter’s “thinly veiled reference to pedophilia” as proof of the
defendants’ intent to convey a defamatory inference concerning Mrs. Parnigoni. Id. at 17-19.
The plaintiffs also believe that the circumstances under which the disclosures were made
demonstrate that the defendants acted with defamatory intent. Specifically, they note the
defendants’ refusal to forgo disclosing the information about Mr. Parnigoni despite their offer to
(1) have Mr. Parnigoni pick Andrew up from the school several blocks away so Mr. Parnigoni
would not have to be on school property as an adequate means of addressing the defendants’
concerns, (2) withdraw Andrew from the School, and (3) Mrs. Parnigoni’s offer to resign and
instead reveal highly embarrassing information to over 3,500 households, which the Parnigonis
assert collectively illustrates the defendants’ desire to criticize Mrs. Parnigoni for her decision to
marry Mr. Parnigoni. Id. at 20-21; Am. Compl. ¶¶ 56-57. They further contend that this intent is
reflected by the decision not to renew Mrs. Parnigoni’s contract. Pls.’ Opp’n at 21.
In order for the plaintiffs’ defamation claim to survive the defendants’ Rule 12(b)(6)
motion, they must show “(1) that the defendant[s] made a false and defamatory statement
concerning the plaintiff[s]; (2) that the defendant[s] published the statement without privilege to
a third party; (3) that the defendant[s’] fault in publishing the statement amounted to at least
1
As noted earlier, the plaintiffs state that they received a letter from a concerned parent who felt that the disclosures
“tarnished” Mrs. Parnigoni and her family’s “name and reputation.” Am. Compl. ¶ 39. The plaintiffs have also
included a letter from another parent who found the defendants’ handling of the disclosure to be offensive and
“damag[ing] to Mrs. Parnigoni [and] her family.” Id. ¶ 40. The plaintiffs rely on these letters to demonstrate that
others perceived the defendants’ statements as defamatory.
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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[s] special harm.” Jankovic v. Int’l Crisis
Group, 494 F.3d 1080, 1088 (D.C. Cir. 2007) (quoting Croixland Props. L.P. v. Corcoran, 174
F.3d 213, 215 (D.C. Cir. 1999)). For the following reasons, the Court concludes that these
requirements have been satisfied so far as Mrs. Parnigoni is concerned; however, the claim as to
Andrew Parnigoni is found to be deficient.
1. False and Defamatory Statement of and Concerning the Plaintiffs
The first task for the Court is to determine whether the defendants made a false and
defamatory statement concerning the plaintiffs. A published statement is defamatory “if it tends
to injure [a] plaintiff in his trade, profession, or community standing, or lower him in the
estimation of the community.” Benz v. Washington Newspaper Publ’g Co., No. 05-1760 (EGS),
2006 WL 2844896, at *3 (D.D.C. Sept., 29, 2006). And “[a] statement can be either facially
defamatory or defamatory by implication, that is, a statement from which a reasonable person
could draw a defamatory inference.” Raymen v. United Senior Ass’n, 409 F. Supp. 2d 15, 21
(D.D.C. 2006) (internal citation and quotation marks omitted). In other words, defamation by
implication evolves from what a statement reasonably implies. White v. Fraternal Order of
Police, 909 F.2d 512, 518 (D.C. Cir. 1990) (internal quotation marks and citations omitted). The
statement, however, must be more than unpleasant or offensive. Benz, 2006 WL 2844896, at *3
(quoting Klayman v. Segal, 783 A.2d 607, 613 (D.C. 2001)). Rather, it must be “odious,
infamous or ridiculous.” Benz, 2006 WL 2844896, at *3 (internal quotations and citations
omitted). Courts must therefore be careful not to imply defamatory meaning from statements
that are not capable of such meaning. Id. “But if [a] communication, by the particular manner or
language in which true facts are conveyed, supplies additional, affirmative evidence suggesting
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that the defendant intends or endorses the defamatory inference, the communication will be
deemed capable of bearing that meaning.” White, 909 F2d at 520 (emphasis in original); see
also McBride v. Merrell Dow & Pharm., Inc., 717 F.2d 1460 (D.C. Cir. 1983) (finding that the
juxtaposition of information led to a defamatory meaning); see also White, 909 F.2d at 523(finding defamatory meaning in letters where the communication did not directly express the
assertions but the meaning was derived by implication). Finally, a plaintiff satisfies the “of and
concerning element” of a defamation claim if a defendant’s statements could reasonably “lead
the [reader] to conclude that the [author] is referring to the plaintiff by description, even if the
plaintiff is never named or is misnamed.” Jankovic, 494 F.3d at 1088-89 (internal quotation
marks and citations omitted).
Having thoroughly reviewed the letters and the circumstances surrounding their
dissemination, this Court agrees that although the revelation that Fiona Parnigoni was David
Parnigoni’s wife was true, the information published by the defendants falls squarely within the
standard discussed above, because it reasonably implied that Fiona Parnigoni posed a danger to
children as a result of her decision to marry Mr. Parnigoni. And this is illustrated by the
disclosures during the meeting held on October 12, 2007, which questioned Mrs. Parnigoni’s
decision to marry her husband, and thus conveyed the impression that Mrs. Parnigoni lacked
sound judgment and implied that parents should have concerns about entrusting the care of their
children to her. This implication injured her professional reputation as a teacher and proprietor
of a child care summer camp, as evidenced by the termination of Mrs. Parnigoni’s teaching
position prior to the 2008-2009 school year due to “the disclosures contained in the October 18,
2007 letter and because current parents allegedly wanted to withdraw [their children] from Mrs.
Parnigoni’s class and prospective students did not want to be in her class [the following] year”.
16
Am. Compl. ¶ 43. Furthermore, the implication can reasonably be construed as “ridiculous,”
Klayman, 783 A.2d at 613, as it was inconsistent with Mrs. Parnigoni’s reputation and conduct
prior to the disclosures. Therefore, accepting the plaintiffs’ factual allegations as true, the Court
concludes that the information disseminated by the defendants was defamatory as a matter of law
in regards to Ms. Parnigoni. See Raymen, 409 F. Supp. 2d at 21 (stating that a statement can be
defamatory by implication, if a reasonable person could draw a defamatory inference). This
conclusion is confirmed by letters Mrs. Parnigoni and the Rector of the Church received from
concerned parents expressing their view that the disclosures “tarnished” Mrs. Parnigoni’s image
and “damag[ed] [] Mrs. Parnigoni [and] her family.” Am. Compl. ¶¶ 39-40. Thus, the plaintiffs
have demonstrated that reasonable people could and did in fact interpret the letters as creating a
defamatory inference about Fiona Parnigoni, and this showing is sufficient to plead a claim of
defamation by implication.
However, unlike Mrs. Parnigoni, as to Andrew Parnigoni the plaintiffs have failed to
satisfy this first element necessary to prove a claim of defamation. Andrew, a child himself,
was not responsible for caring for the other student at the school, and was no longer a student
when the disclosures by the defendants were made. Moreover, neither the October 18th letter,
nor the November 9th letter, explicitly state or imply that Andrew was a threat to his fellow
students. Thus, the plaintiffs have not pled facts sufficient to support Andrew’s defamation
claim.
2. Publication to a Third Party Without the Plaintiffs’ Consent
Accepting the facts in the complaint as true, it is evident that the defendants published
statements about the plaintiffs to third parties, including the parents of the children who attended
the School and all members of the Church, without the plaintiffs’ consent. Mrs. Parnigoni’s
17
offer to withdraw Andrew from the school and resign from her position as a teacher to prevent
the release of the information contained in the letters demonstrates her level of opposition to the
disclosures. Nonetheless, despite Mrs. Parnigoni’s objection, the defendants released the
information. The circumstances clearly satisfy this element of a defamation claim.
3. The Degree of Fault in Making the Publications
A defamation claim also requires the Court to examine whether the defendants’ conduct
in publishing the defamatory letters amounted to negligence. Jankovic, 494 F.3d at 1088. In
making this determination, courts consider the circumstances surrounding a defendant’s
publication of an allegedly defamatory statement. See Mandel v. Boston Phoenix, Inc., 456 F.3d
198, 209 (1st Cir. 2006) (according deference to the jury’s factual determination that a reporter
acted negligently in assessing a defamation claim by failing to read “pertinent documents
available to her,” failing to contact several individuals who might have “opposing views,”
“incorrectly characterizing [a] report [and] misrepresenting its findings and the identity of the
party for whom it was prepared,” and “guess[ing]” about the contents of a file). The
Restatement (Second) of Torts § 580B, cmt. h (1977) proposes several factors that courts should
examine in assessing the fault element of a defamation claim. One factor it proposes “is the
nature of the interests that the defendant was seeking to promote by publishing the
communication,” id. (“[I]nforming the public as to a matter of public concern is an important
interest in a democracy; spreading of mere gossip is of less importance[.]”), and several
questions are proposed in making this assessment, id. (“How necessary was this communication
to these recipients in order to protect the interest involved? If there was no substantial interest to
protect in publishing the communication to these recipients, then a reasonable person would be
hesitant to publish the communication unless he had good reason to believe that it was
18
accurate.”). Another factor suggested by the Restatement is the “extent of the damage to the
plaintiff’s reputation . . . that would be produced if the communication proves to be false.” Id.
The significance of this factor is impacted by whether the “communication was defamatory on
its face” as compared to whether “its defamatory connotation [would] be known only by a
few,”and also the extent to which the defendant disseminated the defamatory information. Id.
Here, the plaintiffs suggest that the defendants published the letters without regard to the
adverse impact dissemination of the information would have on Mrs. Parnigoni as a teacher at
the School and operator of the summer camp. Am. Compl. ¶¶ 52, 56, 106-09. Assuming for the
sake of argument that the defendants acted solely for the purpose of protecting the children at the
School and the summer camp, the defendants should have sent the letters only to the parents of
the School’s children and the summer camp. However, the defendants did not limit the scope of
their dissemination to that audience, but also sent the letters to all members of the School’s
parish, which constituted more than 3,500 households. The dissemination was therefore much
more extensive than necessary. And the fact that the defendants delayed the disclosure of the
information for approximately three years after Mrs. Parnigoni advised them of her husband’s
conviction, coupled with the decision to make the disclosure only after she married Mr.
Parnigoni, undermines the defendants’ stated reason for making the disclosure and supports the
plaintiffs’ position that the disclosure was made to chastise Mrs. Parnigoni for exercising what
the defendants consider to be her poor judgment in marrying Mr. Parnigoni.2 Moreover, during
that three-year period before the dissemination the defendant does not allege that Mrs.
2
According to the plaintiffs, “the Director stated that while she was sorry that this had happened to Mrs. Parnigoni,
she put the blame for the entire situation on Mrs. Parnigoni, and declared that if Mrs. Parnigoni had not married [her
husband], she ‘would not be in this position.’” Am. Compl. ¶ 29. The plaintiffs also allege that the Rector stated that
the “public disclosure” was being made “based solely on what she termed as Mrs. Parnigoni’s ‘poor judgment in
marrying David.’” Id. ¶ 31.
19
Parnigoni’s relationship with Mr. Parnigoni resulted in any incidents that could be construed as
compromising the safety of the children at the School. In addition, the defendants also ignored
Mrs. Parnigoni’s several attempts to avoid the release of this information, including removal of
her child from the school and her offer to resign as an alternative to the disclosures. The
defendants’ actions, coupled with their disapproval of Mrs. Parnigoni’s marriage—as evidenced
by the statement of the Director of the School and the Rector of the Church—support the
plaintiffs’ contentions that it was the defendants’ desire to condemn Mrs. Parnigoni for her
marital decision, thus rendering their publication of the information not only negligent, but
malicious. Therefore, in considering the magnitude of the injury to Mrs. Parnigoni’s reputation,
the defendants’ deliberate choice not to accept alternative solutions to resolve the defendants’
purported concern, and the lack of any evidence showing that Mrs. Parnigoni posed a danger to
the children at the School, the Court concludes that a reasonable jury could find that the
defendants’ dissemination of the letters and the statements was at least negligent.
4. Harm to the Plaintiffs as a Result of Publication
Mrs. Parnigoni’s employment as a teacher at the School was terminated prior to the
beginning of the 2008-2009 school year and defendant Berry claimed that the October 18, 2007
disclosures and pressure from parents led to her termination. Am. Compl. ¶ 43. According to
the plaintiffs, the emotional impact caused by the defendants’ publication of the information
about the plaintiffs to the Parish community and the statement made by the Director and the
Rector regarding Mrs. Parnigoni’s decision to marry her husband have significantly impaired the
ability of the Parnigonis to interact with each other and to function as a healthy family. Am.
Compl ¶¶ 89, 95, and 101. The resultant harm, the plaintiffs contend, has caused them to suffer
mental anguish, distress, humiliation, and economic loss causing them harm. See generally Am.
20
Compl. These allegations sufficiently assert that Mrs. Parnigoni was harmed by the defendants’
actions.
5. The Defendants’ Constitutional Defense
The defendants argue that even if their three disclosures are construed by the Court as
defamatory, the disclosures are nonetheless “constitutionally protected expression[s] of opinion
based on disclosed facts and cannot form the basis for a defamation claim.” Defs.’ Mem. at 16.
Specifically, the defendants contend that their statements qualify as opinions that are protected
by the First Amendment. Id. at 17-18. This Court does not agree.
An opinion which “assert[s] provably false and defamatory facts” is not deserving of the
protections of the Constitution. Guilford Transp. Indus. v. Wilner, 760 A.2d 580, 583 (D.C.
2000) (citing Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990). For the reasons stated earlier,
supra at 15, the Court has already concluded, assuming the plaintiffs’ allegations are true, as the
Court must at this stage of the proceedings, that the plaintiff can prove that the defendants’
actions created a false and defamatory implication that parents had reason to be concerned that
Mrs. Parnigoni presented a danger to children. The defendants’ are therefore not entitled to the
First Amendment protections they seek to invoke. Accordingly, the defendants’ motion to
dismiss Mrs. Parnigoni’s defamation claim on this ground must be denied.
C. The Plaintiffs’ Invasion of Privacy Claims–False Light and Public Disclosure of
Private Facts Claim
The defendants assert that the plaintiffs’ claims for invasion of privacy-false light (Count
II) and public disclosure of private facts (Count III) simply “relabel” the plaintiffs’ defamation
claim. Defs.’ Mem. at 18. They challenge the plaintiffs’ claim that the letters authored by
Reverend Vincent and Ms. Berry placed them in a false light or revealed private facts about
21
them. Id. The defendants also assert that these claims fail because they are not recognized under
Virginia law, and that even if District of Columbia law applies, they fail “because the facts
revealed in Rev. Vincent’s letter were matters of public record.” Id. The plaintiffs, on the other
hand, contend that the defendants’ conduct invaded their privacy by placing them in a false light
and publicly revealed information about private family matters. Am. Compl. ¶¶ 69-71. They
also insist that they have pled each claim sufficiently and that District of Columbia law applies to
their invasion of privacy claims. Pls.’ Opp’n at 27-28. As already concluded, the Court agrees
that District of Columbia law governs these claims. Supra at 11.
1. Invasion of Privacy–False Light
The defendants contend that the plaintiffs’ invasion of privacy–false light claim fails
because their communications were constitutionally protected. Defs.’ Mem. at 21. They also
argue that none of the statements were false nor could the statements be understood by a
reasonable person to imply that Andrew and Fiona Parnigoni presented threats to the safety of
other children. Id. Specifically, defendants maintain that the statements made by Reverend
Vincent about parents ensuring that their children not fall prey to sexual abusers were merely
general reminders and in no way were meant to imply that Andrew Parnigoni, a three year old, or
Fiona Parnigoni, a teacher employed by the school, were “threat[s] to [the] safety and well-
being” of children. Id. (citation and internal quotation marks omitted). The defendants also
assert that an invasion of privacy–false light claim is only actionable for statements that are false
and cannot be based on opinions that do not convey a false inference. Id. at 22.
The plaintiffs, on the other hand, argue that they have pled the elements of a false light
claim with sufficient “specificity” in their Amended Complaint. Pls.’ Opp’n at 27. They
contend that the two letters (1) constitute publicity; (2) contained statements that falsely
22
represented or imputed that Fiona and Andrew Parnigoni “were dangerous to children, a threat to
their safety and well being, and that parents should take action to ensure that the children did not
become victims of sexual abuse;” (3) included statements that “were directed to and concerned
Fiona and Andrew Parnigoni;” and (4) “improperly atribut[ed] to [Fiona and Andrew Parnigoni]
conduct and characteristics that were false [and] highly offensive to a reasonable person as
demonstrated, in part, by the letter responses from the recipients of the letters at issue.” Id. at
27-28. The plaintiffs respond that rather than focusing on whether the elements of the claim
have been adequately pled, the defendants have instead tried to argue the merits of their claim,
which is improper in making a Rule 12(b)(6) challenge. Id. at 28. They also contend that the
defendants “misunderstand or misconstrue the entire basis for [the plaintiffs’] false light claim”
in arguing “that the ‘expressed view that parents were entitled to know about David Parnigoni . .
. [is] constitutionally protected opinion.’” Id. (quoting Defs.’ Mem. at 22).
For the plaintiffs’ claim for invasion of privacy-false light to defeat a Rule 12(b)(6)
motion, their complaint must allege that the defendants’ actions created “(1) publicity (2) about a
false statement, representation or imputation (3) understood to be of and concerning the
plaintiff[s], and (4) which places the plaintiff[s] in a false light that would be offensive to a
reasonable person.” Washburn v. Lavoie, 437 F.3d 84, 88 n.3 (D.C. Cir. 2005) (quoting Kitt v.
Capital Concerts, Inc., 742 A.2d 856, 859 (D.C. 1999)) (internal citations and quotations
omitted). Because this tort is “so similar” to the tort of defamation, “[a] plaintiff may only
recover on one of the two theories based on single publication, but is free to plead them in the
alternative.” Weyrich v. New Republic, Inc., 235 F.3d 617, 628 (D.C. Cir. 2001) (quoting
Moldea v. New York, 15 F.3d 1137, 1151 (D.C. Cir. 1994)).
23
The plaintiffs’ assertion that the defendants distributed the letters to over 3,500
households satisfies the publicity prong of the tort. The defendants’ release of information about
Mr. Parnigoni’s conviction as a sex offender and statements about whom parents should trust
with the care of their children reasonably created the false impression that Mrs. Parnigoni was a
threat to the students simply because of her association with Mr. Parnigoni. Therefore, the
second and third components of the tort have been sufficiently pled. However, even if the Court
had found that the statements against Mrs. Parnigoni were incapable of a defamatory meaning,
the Court would still be required to consider whether the statements or their imputations place
the plaintiffs in a “highly offensive” light. See Weyrich, 235 F.3d at 628. Because the
statements in the letters, which implied that Mrs. Parnigoni posed a risk of harm to the children
at the school, were highly offensive, the plaintiffs have satisfied the third element of the tort.
See Benz v. Washington Publ’g Co., No. 05-1760 (EGS), 2006 WL 2844896, at *6 (D.D.C.
Sept. 29, 2006) (finding that false statements that sexually linked the plaintiff to a known “porn
king” would be highly offensive to a reasonable person). In fact, Mrs. Parnigoni and the
defendants received letters expressing outrage at the defendants’ actions and their implication
that she presented a risk to the safety of the students at the School. Am. Compl. ¶¶ 40-41.
Therefore, the allegations in the complaint concerning Ms. Parnigoni are more than adequate to
defeat the defendants’ Rule 12(b)(6) motion to dismiss.
However, the plaintiffs have not pled facts sufficient to support a claim of invasion of
privacy–false light with respect to Andrew Parnigoni. The only statement the complaint asserts
the defendants made in any of the communications about Andrew was that he no longer attended
the School, which was obvious from his absence from the classroom. This in no way suggested
anything negative about Andrew and therefore Andrew’s invasion of privacy–false light claim
24
cannot survive the defendants’ Rule 12(b)(6) motion. The motion is therefore granted as to
Andrew Parnigoni.
2. Invasion of Privacy–Publication of Private Facts
The defendants opine that the plaintiffs appreciate that their invasion of
privacy–publication of private facts claim can not be based on the information disclosed in
Reverend Vincent’s letter,3 because although embarrassing, this information was already a
matter of public knowledge, it having been disclosed already in a published judicial opinion in
the Atlantic Reporter the week prior to the circulation of the Church’s letter. Defs.’ Mem. at 22
(citing Parnigoni v. District of Columbia, 933 A.2d 823 (D.C. 2007). Therefore, the defendants
note that this count of the complaint is based solely “on the allegation that Reverend Vincent
disclosed [the p]laintiffs’ ‘personal and private decision to withdraw their son from the School in
an effort to avert the disclosure,’ and [the] alleg[ation] that this disclosure (as opposed to the
publicity given to Mr. Parnigoni’s sex offender status) caused them ‘nine million dollars[’]’
harm.” Id. at 22-23 (quoting Am. Compl. ¶¶ 69, 73) (emphasis in original). The defendants
argue that this claim should be dismissed for other reasons. First, while the October 18, 2007
letter stated that Andrew was no longer a student at the school, the defendants maintain that the
letter does not suggest that the Parnigonis “withdrew [their son] to avert the disclosure” about
Mr. Parnigoni, or for that matter, why he was withdrawn from the school. Id. at 23. Second, the
defendants posit that Andrew’s withdrawal from the School is not a private fact, because it
would have been “readily apparent from his absence from the classroom[, and] there is no
liability for giving further publicity to what the plaintiff himself leaves open to the public eye.”
3
Because this count of the Complaint is based solely on Reverend Vincent’s letter that was sent to the parish
membership, the defendants argue that this claim as to Ms. Berry must be dismissed. Defs.’ Mem. at 22 n.15.
25
Id. at 24 (internal citation and quotation marks omitted). Third, the defendants assert that the
disclosure concerning “Mrs. Parnigoni’s offer to withdraw Andrew from the School . . . conveys
that Mrs. Parnigoni tried to take steps that, in her mind, were accommodating and reasonable to
protect her family,” which was not “highly offensive” but rather “reflects positively upon her.”
Id. Finally, the defendants argue that Andrew’s withdrawal from the school was of legitimate
interest to the parish membership because it informed them that the Church’s leadership had
handled this “sensitive situation” in a “pruden[t] and competen[t]” manner and provided
“reassurance that [the defendants] ‘did not ask the Parnigonis to remove their son from the
school . . . .’” Id.
The plaintiffs’ response to the defendants’ challenge to their publication of private facts
claim is that their disclosure “improperly publicized the fact that Andrew Parnigoni was
withdrawn because of [the defendants’] concerns regarding the potential threat his presence at
the school posed to other children.” Pls.’ Opp’n at 29. They also posit that the disclosure that
Andrew had not been withdrawn from the School at the defendants’ request cannot “be viewed
in a vacuum,” but must be considered in conjunction with the disclosures about “his father’s
criminal conviction” and the “assertion by the Church that ‘steps [had] been taken to prevent Mr.
Parnigoni from’” having any “reason to be on school grounds,” one step being Andrew
Parnigoni’s withdrawal from the School. Id. at 29-30. Responding to the defendants’ second
challenge to this claim, the plaintiffs contend that Andrew’s “readily apparent . . . absence from
the classroom . . . is irrelevant because whether a fact is private depends on whether the reader or
recipient of the private fact had prior knowledge of the fact.” Id. at 30. They also contend that
Andrew’s apparent absence must be considered along with the disclosure about why he was no
longer a student at the School and the fact that the disclosures were made to members of the
26
church who would have had no opportunity to observe that Andrew had been withdrawn from
the School. Id. As to the defendants’ third challenge to this count of the Complaint, the
plaintiffs respond that “the [d]efendants’ subjective determination why they believe the
disclosure is not highly offensive is irrelevant” because “[t]his question belongs exclusively
within the purview of the jury.” Id. at 31. Finally, the plaintiffs argue that the defendants’
position that their disclosures concerned a matter of “‘legitimate interest to the parish,’ . . .
strains credibility” by overlooking the plaintiffs allegations that the disclosures were made for
the purpose of condemning Mrs. Parnigoni for marrying Mr. Parnigoni. Id. (citing Defs.’ Mem.
at 24).
In the District of Columbia, the tort of invasion of privacy resulting from the disclosure to
the public of private facts has five elements: “(1) publicity, (2) absent any waiver or privilege, (3)
given to private facts (4) in which the public has no legitimate concern (5) and which would be
highly offensive to a reasonable person of ordinary sensibilities.” Grunseth v. Marriott Corp., No.
95-7021, 1996 WL 104397, at *2 (D.C. Cir. Feb. 9, 1996) (quoting Wolf v. Regardie, 553 A.2d
1213, 1220 (D.C. 1989)). As stated above, the defendants’ distribution of the letters to the
School’s parents and the other Church parishioners satisfies the publicity element. However, the
October 18, 2007 letter sent by the School did not state the private reasons that Andrew had been
withdrawn from school—that his parents wanted to avert the disclosure of information regarding
Mr. Parnigoni—it simply stated that Andrew no longer attended the school and that school
officials had not asked the Parnigonis to withdraw their son.4 The fact that their son no longer
attended the School was not a private fact, as that would have been evident to at least a segment of
4
Specifically, the October 18th letter stated: “Until recently their son attended the Nursery School. I want to assure
you that steps have been taken to prevent Mr. Parnigoni from entering St. Columba’s Nursery School events.”
Defs.’ Mem., Ex. A.
27
the Church community from his persistent absence from the classroom. See Harrison v.
Washington Post Co., 391 A.2d 781, 784 (D.C. 1978) (stating that “there is no protected privacy
interest in preventing the further publicity of what [plaintiffs themselves] left open to the public
eye,” and therefore, “it is well settled law that an invasion of privacy action does not lie as to
events which take place in public view.”) (emphasis added).
Moreover, the defendants’ disclosure that the son was no longer attending the School was
of public concern, as the subject of the letter was providing information to at least some who had a
right to know—parents who had children attending the School—that a sex offenders would not
have a legitimate reason to be at or near the School.
It is a defense to a claim of invasion of privacy that the matter publicized is of general
public interest. . . . Moreover, this defense of privilege is not limited to dissemination
of news about current events or public affairs, but also protects information
concerning . . . all issues about which information is needed or appropriate so that
individuals may cope with the exigencies of their period.
Vassiliades v. Garfinckel’s, Brooks Bros., 492 A.2d 580, 589 (D.C. 1985) (citation and internal
quotation marks omitted). Moreover, the information that David was a convicted sex offender was
already available in the public domain; thus, the fact of his conviction also was not a private
matter. See Harrison, 391 A.2d at 784 (stating that “there is no protected privacy interest in
preventing the further publicity of what . . . [is] left open to the public eye.”) (emphasis added).
Therefore, because the plaintiffs fail to show how Andrew’s withdrawal from the School or Mr.
Parnigoni’s conviction were private facts about which the public had no knowledge or legitimate
concern, the Court must grant the defendants’ motion to dismiss their invasion of privacy–public
disclosure of private facts claim.5
5
The Court notes that because this claim is being dismissed in its entirety, the separate issue of whether or not Ms.
Berry should be dismissed individually is now moot.
28
D. The Plaintiffs’ Intentional Infliction of Emotional Distress Claim
The defendants believe that the plaintiffs’ intentional infliction of emotional distress
claim should be dismissed because they fail to allege the “rudiments” necessary to assert a claim
for the tort rather than just “recit[ing] the elements in [a] formulaic fashion,” as they contend the
plaintiffs have done. Defs.’ Mem. at 26. Specifically, the defendants believe that the plaintiffs’
allegations do not meet the “outrageousness” or “severity” requirements of the claim because
from their perspective the letters “lack all the earmarks of ‘outrageous’ conduct.” Id. at 27.
Moreover they assert that “courts [have] routinely [held] that revealing someone’s status as a sex
offender, even where the accusations are false or misleading, is legally insufficient to meet the
‘outrage’ requirement.” Id. (internal citations and quotation marks omitted).
The plaintiffs argue that the element of “outrageousness” of an intentional infliction of
emotional distress claim is a question for a jury. Pls.’ Opp’n at 33. At the same time, they assert
that the dissemination of the October 18 and November 9, 2007 letters to over 3,500 households
amounts to outrageousness because Mrs. Parnigoni attempted in several respects to allay the
defendants’ concerns, even proposing to tender her resignation, which were rejected by the
Nursery School. Id. They further contend that outrageousness has been adequately pled through
their assertion that the real motivation for disseminating the information about Mr. Parnigoni
was to demonstrate Mrs. Parnigoni’s “poor choice in marrying [Mr. Parnigoni]” and not “purely
for the sake of the children” as the defendants allege. Id. at 33-34 (quoting the Am. Compl. ¶
78). The plaintiffs insist that the Court should only concern itself with “whether reasonable
people could differ on whether the conduct [alleged] is extreme and outrageous.” Id. at 34.
For a plaintiff to survive a Rule 12(b)(6) motion to dismiss for failure to state a claim of
intentional infliction of emotional distress under District of Columbia law, the plaintiff must
29
allege “(1) extreme and outrageous conduct on the part of the defendant which (2) intentionally
or recklessly (3) causes the plaintiff severe emotional distress.” Khan v. Parsons Global Servs.
Ltd., 521 F.3d 421, 428 (D.C. Cir. 2008) (citing Darrow v. Dillingham & Murphy, LLP, 902
A.2d 135, 139 (D.C. 2006)). The conduct alleged must be so outrageous that it goes “beyond all
bounds of decency” and is “regarded as atrocious, and utterly intolerable in a civilized
community.” Lyles v. Micenko, 404 F. Supp. 2d 182, 187 (D.D.C. 2005) (quoting Homan v.
Goyal, 711 A.2d 812, 818 (D.C. 1998) (internal citation and quotation marks omitted)); see
Browning v. Clinton, 292 F.3d 235, 248 (D.C. Cir. 2002) (holding that the tort of intentional
infliction of emotional distress is “reserved for truly outrageous behavior”). The alleged conduct
must also constitute more than “mere insults, indignities, . . . annoyances, petty oppressions, or
other trivialities.” Lyles, 404 F. Supp. 2d at 187.
In this case, the plaintiffs allege that the “outrageousness” of the disclosures evolves from
the defendants’ rejection of Mrs. Parnigoni’s efforts to stave off the revelations, the
extensiveness of their dissemination and motive for making the disclosure. The District of
Columbia Circuit in Khan found that a plaintiff had sufficiently pled “‘extreme and outrageous’
conduct” by asserting an employer’s “successful efforts to prevent [one of the plaintiffs] from
privately paying [a] ransom [demand to her husband’s kidnappers], despite threats of torture and
mutilation,” which “may have exposed [the wife] to the guilt of knowing that she could have
prevented [her husband’s] suffering and disfigurement if she had been able to convince [the
employer] to provide the ransom details that they withheld from her” for the purpose of
minimizing future corporate kidnappings. 521 F.3d at 423, 429. In another case, the District of
Columbia Court of Appeals found the defendant had acted outrageously when he gave the
plaintiff’s address and phone number to a person whom the defendant reasonably should have
30
expected would threaten the plaintiff’s life in light of the fact that the person had already
threatened the defendant’s life. Homan, 711 A.2d at 818-19.
However, in Williams v. Fed. Nat’l Mortgage Ass’n, No. 05-1483(JDB), 2006 WL
1774252, at *9 (D.D.C. June 26, 2006), the Court held that the complaint failed to state a claim
for intentional infliction of emotional distress, where the plaintiff alleged that the defendants had
“active[ly], conspiratorial[ly], malicious[ly], and secretive[ly] attempt[ed] to curtail or terminate
[the plaintiff’s] prospective and ongoing business relationships.” 2006 WL 1774252, at *10. The
complaint also stated that the defendants intended through their actions to damage “[the
plaintiff’s] personal and business reputation,” by having “refused to contract with her because of
her race and engaged in a campaign to prevent others from doing business with her.” Id.Despite these allegations, the court found that the defendants’ conduct failed to rise to the level
required to satisfy a claim for intentional infliction of emotional distress. Id.Similar to the holding in Williams, this Court finds that a reasonable jury could not find
that the defendants’ behavior here went beyond all possible bounds of decency, and certainly
cannot be regarded as atrocious. While Mrs. Parnigoni’s attempts to prevent the disclosures in
the letters were considerable, the plaintiffs’ have failed to show that the defendants’ behavior
was extreme or outrageous aside from disseminating the information to over 3,500 households,
which is seemingly broader than necessary, but certainly was not outrageous. See Minch v.
District of Columbia, 952 A.2d 929, 940-41 (D.C. 1998) (agreeing with trial court’s grant of
summary judgment for the defendant despite its release of an incorrect press release concerning
the plaintiff’s arrest and detention for a murder it was later determined he did not commit, even
though the information contained in the press release was publicized in an article in the
Washington Post; the District of Columbia Court of Appeals concluded that “publication of [the
31
plaintiff’s] arrest as a suspect in [the murder case did] not, as a matter of law, make out a claim
of intentional infliction of emotional distress because [the defendant’s] actions—though
mistaken—were not extreme and outrageous under the circumstances”).
Here, the defendants assert that they believed that “Mr. Parnigoni’s circumstances were
relevant to parents” of children who attended their School, Defs.’ Mem. at 18, “because [they]
believed that [the] parents [were] ‘entitled to information that may impact the safety of [their]
children,” id. at 16. The Court cannot conclude, as a matter of law, that the defendants’ position
was unfounded and that their decision to release the information despite Mrs. Parnigoni’s ardent
opposition, even when considered in conjunction with the defendants’ decision to reveal the
information due to their negative attitude concerning her marriage and their excessive
distribution of the letters, rises to the level of “extreme” or “outrageous” conduct. This being a
necessary element of a claim for intentional infliction of emotional distress, the plaintiffs have
failed to meet their burden of proving the claim, and accordingly, the Court must grant the
defendants’ motion to dismiss this claim.6
E. Fiona Parnigoni’s Promissory Estoppel Claim
Mrs. Parnigoni also seeks recovery under the doctrine of promissory estoppel. In
challenging her promissory estoppel claim, the defendants argue that Mrs. Parnigoni’s reliance on
the School Director’s statement that the controversy would soon pass and would not affect her
employment as a basis for the claim fails because promissory estoppel is an equitable doctrine
6
The Court having resolved the challenge to this claim on other grounds, it need not address the defendants’
constitutional challenge as “[i]t is well-settled that courts should avoid unnecessarily deciding constitutional
questions.” See Nat’l Ass’n of Waterfront Employers v. Solis, 2009 WL 3436913, at *6, ___F. Supp. 2d___
(D.D.C. 2009); see also United Seniors Ass'n v. Shalala, 182 F.3d 965, 969-70 (D.C.Cir.1999) (because the case was
resolved on other grounds, there was no need to reach the constitutional issues raised in the complaint).
32
that “may not [be] assert[ed] . . . where there is an enforceable contract.”7 Defs.’ Mem. at 28-29
(internal citations and quotation marks omitted). And the defendants contend that Mrs. Parnigoni
had a contractual relationship with the School at the time the alleged oral promise was made,
which “govern[ed] her retention.” Id. at 29. They therefore assert that Mrs. Parnigoni’s status as
a contractual employee precludes her from pursuing an equitable estoppel claim. Defs.’ Reply at
19. Moreover, the defendants argue that Mrs. Parnigoni’s “alleged reliance [on the purported oral
promise] was not reasonable as a matter of law and could not have been detrimental.” Defs.’
Mem. at 29. They assert this position because the alleged oral promise was made at the beginning
of the school year while Mrs. Parnigoni was still under written contract and prior to the year when
it was decided that her contract would not be renewed. Defs.’ Reply at 20-21. It is therefore the
defendants’ position that the promissory estoppel claim must be viewed in the context of District
of Columbia law, which provides that all “employment relationships, absent an express agreement
to the contrary, are ‘at will’ and can be terminated by the employer without cause.” Defs.’ Reply
at 20 (internal citations and quotation marks omitted). Applying this standard, the defendants
posit that it was not reasonable as a matter of law for Mrs. Parnigoni to rely on a promise of
future employment when “(1) her current term was governed by a written contract, (2) extensions
of her employment term were, and had been in the past, handled by written agreement, and (3)
she would become an at-will employee until such a written agreement for the following year was
in place.” Id.
7
The defendants assert that while the plaintiffs make this claim against all the defendants, Ms. Berry was the only
person alleged to have made any promise. Defs.’ Mem. at 28-29 n.25. Therefore, they argue, because the plaintiffs
have not asserted that the other defendants were acting with Ms. Berry in this regard, the promissory estoppel claim
against the other defendants should be dismissed. Id. Mrs. Parnigoni challenges the defendants’ assertion and
argues that because Ms. Berry was acting in accordance with the directions of the Board all the defendants are
subject to this Count. Pls.’ Opp’n at 37. The Court agrees with the plaintiffs. Because the statements in the
Amended Complaint must be accepted as true when assessing a Rule 12(b)(6) motion, defendant Berry, Vincent, and
the School are all subject to the promissory estoppel claim.
33
On the other hand, Mrs. Parnigoni identifies several reasons why the promissory estoppel
claim should be allowed to proceed. She contends that the defendants’ refusal to accept her
resignation, coupled with the promise of a renewed contract for the 2008-2009, prevented her
from securing a new position before the disclosures were made and prior to the commencement of
the 2008-2009 school year. Pls.’ Opp’n at 35-36. Furthermore, Mrs. Parnigoni counters the
defendants’ argument against the use of promissory estoppel asserting that the contractual
relationship in place during the 2007-2008 school year between her and the School did not cover
the 2008-2009 school year, and therefore, even if the defendants’ legal analysis is correct, which
they do not concede, it would not be applicable to this situation. Id. at 36. Thus, she contends,
her promissory estoppel claim is proper. Id. Mrs. Parnigoni also claims that an issue of material
fact exists regarding the reasonableness of her reliance on Ms. Berry’s oral statement. Id. at 37.
To survive a Rule 12(b)(6) motion to dismiss for failure to state a claim of
promissory estoppel, the plaintiff must establish “(1) the existence of a promise, (2) that the
promise reasonably induced reliance on it, and (3) that the promisee relied on the promise
to his [or her] detriment.” Osseiran v. Int’l Fin. Corp., 498 F. Supp. 2d 139, 147 (D.D.C.
2007) (citing Daisley v. Riggs Bank, 372 F. Supp. 2d 61, 71 (D.D.C. 2005)); see also
Granfield v. Catholic Univ. of America, 530 F.2d 1035, 1042 (D.C. Cir. 1976) (citing
Restatement (Second) of Contracts, § 90 (1981), which provides that “[a] promise which
the promisor should reasonably expect to induce action or forbearance of a definite and
substantial character on the part of the promisee and which does induce such action or
forbearance is binding if injustice can be avoided only by enforcement of the promise.”);
Willoughby v. Potomac Elec. Power Co., No. 94-1313, 1995 WL 761308, at *5 (D.D.C.
Dec. 14, 1995). And, “[p]romissory estoppel is recognized in the law of the District of
34
Columbia as a theory allowing recovery in contract when there may have been a failure of
proof of certain elements necessary to the formation of an express contract . . . if a refusal
to enforce a promise admittedly made would in the circumstances (usually reliance) result
in injustice.” Fed. Ins. Co. v. Thomas W. Perry, Inc., 634 F. Supp. 349, 352-53 (D.D.C.
1986) (emphasis added). Furthermore, in Osseiran, the Court noted that District of
Columbia law “presupposes” the absence of a written agreement when the doctrine of
promissory estoppel is deemed applicable. 498 F. Supp. 2d at 147. The Osseiran Court also
stated that while “reliance on an indefinite promise is unreasonable,” “the promisor
[s]hould expect the promisee to rely” on a promise which contains “definite terms.” Id.“However, that promise need not contain language as specific and definite as that of an
enforceable contract.” Id.The current dispute hinges on whether the contract in place during the 2007-2008
school year forecloses Mrs. Parnigoni’s promissory estoppel claim. District of Columbia
law is clear that promissory estoppel applies to arrangements only where no written
agreements exist. Osseiran, 498 F. Supp. 2d at 147. In failing to allow a promissory
estoppel claim where there is an express agreement, courts are primarily concerned about
preventing plaintiffs to have “a second bite at the apple” in the event they are unable to
maintain a breach of contract claim. Daisley, 372 F. Supp. 2d at 71. Here, Mrs. Parnigoni
contracted with the School on an annual basis and her contract had been renewed each year
by the School from 2001 through the 2007-2008 school year. However, because she had
not yet entered into a written contract for the 2008-2009 school year when Ms. Berry
purportedly made the oral promise of employment for that term, Mrs. Parnigoni can
therefore avail herself to the relief provided by the promissory estoppel doctrine.
35
Moreover, Ms. Berry’s purported promise was not too indefinite for Mrs.
Parnigoni to have reasonably relied upon it, as her contract had been renewed annually on
six prior occasions, she had an unblemished employment record, and the Director assured
her that the controversy would not affect her employment. See Ficken v. AMR Corp., 578
F. Supp. 2d 134, 145 (D.D.C. 2008) (holding that the defendant’s promise to automatically
convert the plaintiff’s frequent flyer mileage if he agreed to take no action by a specific
date was sufficiently definite for the plaintiff to have reasonably relied upon it; thus, the
plaintiff’s claim survived the motion to dismiss); see also Osseiran, 498 F. Supp. 2d at 148(finding promises referring to sale of specific stock and signing of a specific draft
agreement were sufficiently definite for the plaintiff to reasonably rely upon them).
Furthermore, Mrs. Parnigoni did not seek alternative employment for the following school
year, relying to her detriment on the promise of employment Ms. Barry allegedly made to
her for the following year. The Court therefore concludes that Mrs. Parnigoni has
adequately pled the elements of a promissory estoppel claim and the defendants’ Rule
12(b)(6) motion to dismiss this claim must be denied.
F. The Plaintiffs’ Loss of Consortium Claims
Each of the plaintiffs’ claims assert a loss of consortium claim against the defendants;
plaintiff David Parnigoni for loss of consortium with his wife, Am. Compl. ¶¶ 87-92; plaintiff
Andrew Parnigoni for loss of consortium with his mother, id. ¶¶ 93-97; and plaintiffs David and
Fiona Parnigoni for loss of consortium with their son, id. ¶¶ 99-104. The defendants argue that
the loss of consortium claims should be dismissed because the plaintiffs’ state of residence
(Virginia) does not recognize the tort for loss of consortium. Defs.’ Mem. at 30. Likewise, the
defendants maintain their disagreement with the plaintiffs’ positions that District of Columbia law
36
governs these claims and that the District of Columbia courts have remained open to the question
of whether the tort of loss of parent-child consortium is recognized in this jurisdiction. Defs.’
Reply at 22.
The plaintiffs characterize the defendants’ assertion that Virginia law should apply to their
loss of consortium claims as forum shopping, and opine that District of Columbia law should
apply. Pls.’ Opp’n at 38. Although the plaintiffs’ acknowledge that their state of residence is a
factor in determining the choice of law question, they maintain that their residency is “not
dispositive” and that the defendants should not be permitted to “forum shop” and choose Virginia
as the jurisdiction whose laws govern their loss of consortium claims because the tort is not
recognized there. Id. (internal citations and quotation marks omitted).
Jurisdictions like the District of Columbia that employ the governmental interest choice
of law doctrine have typically concluded that the law governing a loss of consortium action is the
law where the marriage is domiciled not where the injury occurred. Felch v. Air Fla., 562 F.
Supp. 383, 386 (D.D.C. 1983). This is because the marital domicile is thought to have the
greatest interest in claims related to marital union. See Linnell v. Sloan, 636 F.2d 65, 66-67 (4th
Cir. 1980). Therefore, Virginia law governs the loss of consortium claims, as Mr. and Mrs.
Parnigoni’s marriage is domiciled in that state.
The state of Virginia does not recognize a tort claim for loss of consortium, see Va. Code
Ann. § 55-36; see also Bolen v. Bolen, 409 F. Supp. 1374 (W.D. Va. 1976) (stating that Virginia
Code § 55-36 bars a husband from bringing an action for loss of consortium), and this
proscription equally applies to the claim of a parent asserting loss of consortium with a child. See
Cocoli v. Children’s World Learning Ctrs., Inc., 41 Va. Cir. 589, 594 (Cir. Ct. 1994). Therefore,
37
the plaintiffs have failed to state a claim upon which they are entitled to relief as to all of their
consortium claims and the defendants’ motion to dismiss these claims must be granted.
G. Fiona Parnigoni’s Intentional Interference with Prospective Economic Advantage
Claim
This claim is based on Mrs. Parnigoni’s operation of a preschool summer camp attended
by students who also attended the defendant School and other preschool students who reside in
the District of Columbia area, Am. Compl. ¶ 106, and her allegations that the “[d]efendants’
conduct in disseminating the defamatory communications was purposefully and intentionally
designed to interfere with [the operation of her summer camp],” id. ¶ 108. The defendants argue
that the claim should be dismissed because the conduct alleged by Mrs. Parnigoni was not
wrongful as a matter of law, Defs.’ Mem. at 30, and because the interference complained of must
be improper, which the defendants contend has not been alleged, id. at 31. Specifically, the
defendants contend that the issuance of their letters was not improper because they “were not
defamatory and did not constitute an invasion of [Mrs. Parnigoni’s] privacy,” id. at 31, and that
the disclosure about Mr. Parnigoni was truthful, id.; Defs.’ Reply at 23.
Mrs. Parnigoni counters the defendants’ challenge to this claim, noting the allegations
pled in paragraphs 106-09 of the plaintiffs’ Amended Complaint, which she asserts satisfy the
four elements of the claims. Pls.’ Opp’n at 39. And because she believes the challenge as
presented “make[s] no real effort to test the sufficiency of the Amended Complaint,” Mrs.
Parnigoni opines that given that all of the allegations in the complaint must be accepted as true,
she has adequately pled her intentional interference with prospective economic advantage claim.
Id.
For this claim to survive the defendants’ Rule 12(b)(6) motion to dismiss, the complaint
38
must allege “(1) the existence of a valid business relationship or expectancy, (2) knowledge of the
relationship or expectancy on the part of the interferer, (3) intentional interference inducing or
causing a breach or termination of the relationship or expectancy, and (4) resultant damage.”
Bennett Enters., Inc. v. Domino’s Pizza, Inc., 45 F.3d 493, 499 (D.C. Cir. 1995); see also Riggs v.
Home Builders Inst., 203 F. Supp. 2d 1, 23 (D.D.C. 2002) (internal citations omitted). The Court
will assess whether the plaintiffs have met these pleading requirements.
1. Existence of a Valid Business Relationship or Expectancy
A legally recognizable business expectancy may include “the opportunity of obtaining
customers,” Carr v. Brown, 395 A.2d 79, 84 (D.C. 1978), that is “commercially reasonable to
anticipate,” Whelan v. Abell, 953 F.2d 663, 673 (D.C. Cir. 1992) (citation and internal quotation
marks omitted); see also Nat’l R.R. Passenger Corp. v. Veolia Transp. Servs., 592 F. Supp. 2d 86,
98 (D.D.C. 2009). Here, Fiona Parnigoni alleges that she had a legitimate expectation of being
able to solicit campers for her Teddy Bear Camp from amongst her current Nursery School
students because she had done so successfully in the past. Pls.’ Opp’n at 39.
Mrs. Parnigoni had a reasonable expectation of recruiting students from the School to
attend her summer camp because the defendants had permitted her to solicit campers from the
School in prior years. Am. Compl. ¶¶ 45, 107. Thus, there existed a “background of business
experience on the basis of which it is possible to estimate with some fair amount of success both
the value of what has been lost and the likelihood that the plaintiff would have received it if the
defendant had not interfered.” Carr, 395 A.2d at 84. And because Mrs. Parnigoni had
successfully solicited campers for her Teddy Bear Camp from the Nursery School with the
defendants’ knowledge in previous years, she could make a reasonable estimate of how many
children from the School would participate in the Teddy Bear Camp in future years.
39
The conclusion reached by the District of Columbia Circuit in Browning v. Clinton, 292
F.3d 235 (D.C. Cir. 2002), supports Mrs. Parnigoni’s position as to this element of the claim.
There, the court found that the plaintiff had demonstrated a valid business expectancy where the
plaintiff’s complaint alleged not only that she had a reasonable expectation of selling her novel to
a publisher, but also that she had been encouraged to continue working on the book by a book
company editor. In addition, her book had received favorable press coverage in two magazine
articles, one describing her book as having the potential to replace the media coverage a popular
book had been receiving. Id. at 242-43. In this case, Mrs. Parnigoni had an even stronger
business expectancy than the plaintiff in Browning because she reasonably expected that some of
her campers would be children from the School based on her success in recruiting her students in
the past. Pls.’ Opp’n at 39. Thus, Mrs. Parnigoni has adequately pled the first requirement of this
claim.
2. The Interferer’s Knowledge of the Relationship or Expectancy
A plaintiff must show that the interferer was aware of the business expectancy. Veolia,
592 F. Supp. 2d at 98 (internal citations omitted). In Veolia, this Court found that a putative
interferer’s knowledge of a plaintiff’s relationship or expectancy may be demonstrated by the
putative interferer’s conduct. Id. Mrs. Parnigoni has alleged that the defendants knew of the
relationship she had with the children who attended both their school and also her camp, in
addition to her expectancy that her students would attend her camp in the future because Ms.
Berry (the School’s Director) knew she had circulated flyers advertising her summer camp to
parents of students who attended the School prior to the disclosure about her husband. Am.
Compl. ¶¶ 45, 107. Accordingly, Mrs. Parnigoni has alleged that the defendants knew of her
business expectancy of successfully soliciting campers from the ranks of her students for her
40
Teddy Bear Camp. Mrs. Parnigoni has therefore asserted facts sufficient to show that the
defendants knew of Mrs. Parnigoni’s business expectancy.
3. Intentional Interference Inducing or Causing a Breach or Termination of the
Relationship or Expectancy
The third element of this tort requires “a strong showing of intent to disrupt ongoing
business relationships” on the part of the alleged interferer. Bennett, 45 F.3d at 499 (internal
quotation marks omitted). This element includes “conduct that prevents the plaintiff from
acquiring or continuing the prospective relationship in addition to conduct that induces or
otherwise causes a third person not to enter into or continue the prospective relation.” Browning,
292 F.3d at 244 (D.C. Cir. 2002) (citation, internal quotation marks, and alterations in original
omitted). Finally, the actor’s “interference must be improper.” Veolia, 592 F. Supp. 2d at 99(quoting Furash & Co. v. McClave, 130 F. Supp. 2d 48, 56 (D.D.C. 2001).
Here, Mrs. Parnigoni alleges that the defendants improperly published defamatory
information about her that substantially interfered with her ability to attract children to her Teddy
Bear Camp, Am. Compl. ¶ 108, knowing that she had successfully recruited campers from the
School in previous years, id. ¶¶ 44, 107. The Court agrees. By communicating the information in
the letters about Mr. Parnigoni’s conviction in a manner that called into question Mrs. Parnigoni’s
character and distributing the letters beyond the circle of individuals who would need to know
about Mr. Parnigoni’s past, the defendants substantially interfered with Mrs. Parnigoni’s ability to
recruit campers from the School’s student body. As was the case in Browning, where the plaintiff
claimed that the defendants’ threats prevented her from forming any business relationships when
she embarked upon doing so, 292 F.3d at 243-44, Mrs. Parnigoni asserted that the defendants’
defamatory conduct prevented her from successfully soliciting students despite expending
41
reasonable efforts to attract children to her camp as she had done in past years through the
distribution of flyers advertising the camp. Additionally, Mrs. Parnigoni contends that the outright
prohibition of the distribution of her flyers by the defendants demonstrates their intentional
interference with her attempt to recruit students to her summer camp. As illustrated by Kimmel v.
Gallaudet Univ., 639 F. Supp. 2d 34, 45 (D.D.C. 2009), even Mrs. Parnigoni’s bare allegations that
the defendants’ communications with parents and nursery school directors caused her to lose her
prospective business relationships are sufficient to establish the intent prong of this tort. See id.(finding that the plaintiff’s allegation that the defendants “spread[] false and defamatory lies”
about her to the Washington Post and that “at least three potential sources of prospective
employment [] disappeared” as a result of the defendant’s actions was sufficient to demonstrate the
defendant’s intentional interference with the plaintiff’s expectancy of continuing her teaching
career) (internal brackets omitted); see also Williams v. Fed. Nat’l Mortgage Ass’n, No. 05-1483
(JDB), 2006 WL 1774252, at *9 (D.D.C. June 26, 2006) (finding that the plaintiff’s allegation that
the defendants communicated “defamatory information” about her to other companies associated
with the plaintiff was sufficient to support this third element). Therefore, Mrs. Parnigoni has pled
facts sufficient to satisfy the third element required to prove an intentional interference with the
plaintiff’s prospective economic advantage claim.
4. Resultant Damage
Generally, “resultant damages reasonably flow from the intentional interference of a
business relationship or expectancy.” Veolia, 592 F. Supp. 2d, at 100. Here, Mrs. Parnigoni
contends that the defendants prevented her from distributing flyers about the Teddy Bear Camp to
the parents of the children attending the School, even though there had been a history of children
who attended the School also attending her summer day camp. See Am. Compl. at ¶106. And,
42
Mrs. Parnigoni’s alleges that her inability to distribute her flyers advertising the summer camp
decreased her opportunity to enroll students, resulting in the loss of income. Pls.’ Opp’n at 39.
Furthermore, she asserts that “[t]he dissemination of the defamatory letters induced or caused a
breach or termination of students’ enrollment in the Teddy Bear Camp.” Id.In Gross v. Akin, Gump, Strauss, Hauer, and Feld, LLP, the court denied a former
employee’s motion to dismiss concluding that a reasonable jury could find that the employee
tortiously interfered with the law firm’s prospective client relationship where the employee sent
harmful emails to a prospective client which resulted in the client failing to sign a retainer with the
firm. 599 F. Supp. 2d 23, 32 (D.D.C. 2009). In this case, Mrs. Parnigoni makes similar
allegations, asserting that the defendants’ communications with the parents of students that
attended the School, other nursery school directors in the area, and the defendants’ restrictions on
Mrs. Parnigoni’s ability to distribute her flyers for the purpose of attracting children to the camp
harmed her efforts to secure camp participants. Thus, construing the facts of this case in a light
most favorable to Mrs. Parnigoni, she has sufficiently alleged that she suffered damages as a result
of the defendants’ intentional interference with her future business expectancy.
Having adequately pled all elements of a claim for intentional interference with prospective
economic advantage, the defendants’ Rule 12(b)(6) motion to dismiss this claim must be denied.
H. The Plaintiffs’ Negligent Misrepresentation Claim
The plaintiffs’ negligent misrepresentation claim is based on the defendants’ admission of
Andrew as a student at the School without advising Mr. and Mrs. Parnigoni that if Andrew
enrolled in the School the disclosure about Mr. Parnigoni’s conviction would be made. Am.
Compl. ¶ 113. The defendants seek the dismissal of this claim arguing that it has not been
properly pled because the Complaint does not allege: (1) that the defendants made a false
43
statement or omission of fact; (2) that the defendants made a statement in violation of a duty to
exercise reasonable care; and (3) that the plaintiffs relied to their detriment on false information.
Defs.’ Mem. at 31-32. In support of these arguments, the defendants state that the claim is
deficient “because the alleged omission—‘that the disclosures [regarding David Parnigoni] would
be made’—was not one of then existing ‘fact’ but of future intention,” thus, the defendants claim
that there was no misrepresentation because the School had no intention to make any disclosure
regarding Mr. Parnigoni’s criminal conviction at the time it requested the information from Mrs.
Parnigoni in August of 2007. Id. at 33. Therefore, they argue that they had no duty to tell the
Parnigonis that a disclosure could or would be made as it was an unforeseeable future event at that
time. Id. Moreover, the defendants argue that educational institutions have no “legal fiduciary
duty to its employees or the parents of prospective students,” and in any event, the determination
of a fiduciary duty is a question of law for the Court to decide, not a jury. Defs.’ Reply at 24.
The plaintiffs address the defendants’ lack of duty position by arguing that “the tort of
negligent misrepresentation imposes a duty in favor of all those third parties who the defendant
knows and should reasonably foresee will rely on the information in question.” Pls.’ Opp’n at 41.
And, the plaintiffs further contend that Andrew Parnigoni, as one of the school’s students, and
Fiona Parnigoni, as one of its employees, falls within the scope of that obligation. Id.For the plaintiffs’ claim of negligent misrepresentation to survive a Rule 12(b)(6) motion to
dismiss, they must successfully plead that “(1) the defendants made a false statement or omission
of a fact; (2) the statement was a violation of a duty to exercise reasonable care; (3) the false
statement or omission involved a material issue; (4) the plaintiffs reasonably relied to their
detriment on the false information; and (5) the defendants' challenged conduct proximately caused
injury to the plaintiffs.” Burman v. Phoenix Worldwide Indus., 384 F. Supp. 2d 316, 336 n.17
44
(D.D.C. 2005) (citing Burlington Ins. Co v. Okie Dokie Inc., 329 F. Supp. 2d 45, 48 (D.D.C.
2004)). Here, the defendants challenge only the sufficiency of the plaintiffs’ allegations as to the
first, second, and fourth element of the claim. However, a sufficiently pled negligent
misrepresentation claim requires satisfaction of all five elements, see Bell v. Rotwein, 535 F.
Supp. 2d 137, 144-45 (D.D.C. 2008) (finding plaintiff’s claim deficient because he failed to allege
an injury caused by the defendant’s actions); In re U.S. Office Products Co. Securities Litigation,
251 F. Supp. 2d 58, 74 (D.D.C. 2003) (“[N]egligent misrepresentation claims must adequately
allege all of the required elements”). Therefore, because the plaintiffs fail to adequately plead two
of the elements necessary to establish a claim of negligent representation, the defendant’s motion
to dismiss this claim is granted.8
Where misrepresentations are made about future acts, they cannot serve as the basis for a
negligent misrepresentation claim. See Isaac v. Mnemonic Sys. Inc., No. CIV. A. 97-0988 (JHG),
1998 WL 151286, at *7 (D.D.C. Mar. 25, 1998) (“As a general rule, the misrepresentation
underlying a . . . negligent misrepresentation claim must be a misrepresentation as to past or
present fact.”).9 In 2004, when Mrs. Parnigoni disclosed to the School the information concerning
her husband’s conviction, the School made no further inquiry about the situation. In fact, the
School did not solicit any additional information from her with respect to Mr. Parnigoni’s
8
In addition to the arguments listed above, the defendants’ also advance a waiver argument regarding the plaintiffs’
negligent misrepresentation claim. Specifically, the defendants’ argue that the plaintiffs waived their negligent
misrepresentation claim when the Director of the School informed Mrs. Parnigoni in August 2007, before Andrew
was actually enrolled in the School, “that she intended to tell any parent who inquired about Mr. Parnigoni’s
conviction.” Defs.’ Mem. at 32. And they contend that, as a matter of law, their waiver position is not compromised
by their decision, “after further consultation (including consultation with counsel),” to make the disclosure in a letter
and not in one-on-one conversations between the Director a parent. Id. However, because the Court has resolved
this claim on other grounds, it need not address the defendants’ waiver argument.
9
“However, exceptions to this rule are numerous and include situations where a relationship of trust and confidence
exists between the parties.” See Isaac v. Mnemonic Sys. Inc., No. CIV. A. 97-0988 (JHG), 1998 WL 151286, at *7
(D.D.C. Mar. 25, 1998).
45
conviction until 2007 after Ms. Berry had become the Director of the School. Am. Compl. ¶ 18.
Earlier in 2007, the Parnigonis applied to enroll their son in the School without being told that
their son’s admission to the School would result in the disclosure of Mr. Parnigoni’s conviction.
Id. ¶ 19. However, because the Parnigonis enrolled their son in the School, the new leaders
reevaluated Mr. Parnigoni’s arrest and his subsequent conviction. Id. ¶ 19. Importantly, as the
defendants observe, the plaintiffs do not allege that at that point—“presumably March, 2007, when
Andrew was admitted, or August 2007, when he enrolled”—the defendants had plans to “issue a
letter about Mr. Parnigoni[’s]” conviction to the parents and the church’s parishioners. Defs.’
Mem. at 33. Rather, the decision to disclose the information was made only after Andrew’s
admission and the defendants then consulted with their legal counsel. Defs.’ Mem. at 5. Support
for this conclusion is found in the October 18th letter, which stated: “[o]ver the past several
months three situations, or renewed concern about situations, have led us to review our Standards,
Policies and Procedures with legal counsel . . . [and after] consulting with attorneys” they made the
decision to inform the parishioners and School. Id. Therefore, the alleged omission about which
the plaintiffs complain was not pre-existing or present at the time of Andrew’s admission. In fact,
nothing in the plaintiffs’ Amended Complaint suggests that when the School received the
application to admit Andrew, the School’s admission’s committee had any information as to
whether or not the School would disclose Mr. Parnigoni’s conviction. Furthermore, the Court
notes that despite the plaintiffs’ assertion that the defendants failed to disclose to them that
information regarding Mr. Parnigoni’s conviction would be disclosed if Andrew was enrolled in
the School, the new Director of the School (Ms. Berry) told Mrs. Parnigoni “around th[e] time”
she enrolled her son in the School that Mrs. Parnigoni “was required to disclose the details of her
husband’s conviction so that the Director could explain it to any parent who might ask a question
46
regarding it” and Mrs. Parnigoni provided the information requested. Am. Compl. ¶¶ 18-19.
Subsequently, at a meeting between Ms. Parnigoni and the leadership of the Church, the School
and their attorney, Ms. Parnigoni was informed that information about Mr. Parnigoni’s conviction
would be made public. Id. ¶¶ 24-25. Therefore, the plaintiffs have not sufficiently alleged that
there was a false representation or omission of a material fact on the part of the defendants when
the Parnigonis applied for Andrew’s admission nor when Andrew enrolled in the School. See Day
v. Avery, 548 F.2d 1018, 1025-26 (D.C. Cir. 1976) (stating that the misrepresentation being
asserted generally must be a conscious misrepresentation of fact as to a past or present act;
misrepresentations concerning a future act will not ordinarily qualify); Isaac, 1998 WL 151286, at
*7; accord Lampman v. Dewolff Boberg & Associates, Inc., No. 07-2072, 2009 WL 757368, at *5
(4th Cir. Mar. 23, 2009). Thus, for this reason alone the defendants’ motion to dismiss the
plaintiffs’ negligent misrepresentation claim must be granted.10
However, even if the Court could find that the plaintiffs satisfied the first element of this
claim—that the defendants made a false statement or omission of a fact—the plaintiffs’ claim for
negligent misrepresentation would still be unsuccessful as they cannot show that they reasonably
relied on the omission.
In Redmond v. State Farm Ins. Co., 728 A.2d 1202, 1208 (D.C. 1999), the plaintiff brought
an action alleging, inter alia, negligent misrepresentation. There, Mr. Redmond purchased an
apartment building for which he acquired insurance coverage from State Farm. Id. at 1203. Prior
10
Furthermore, this result is warranted even in light of the plaintiffs’ argument that they fall into an exception
because as an employee and prospective student, the defendants had a duty to disclose that upon Andrew’s
enrollment, information pertaining to Mr. Parnigoni’s conviction would be released, Pls.’ Opp’n at 41. Although
there may be support for the plaintiffs’ argument (see Isaac, 1998 WL 151286, at *7 (stating that “a relationship of
trust and confidence exist[ing] between the parties” constitutes an exception to the general rule that the
misrepresentation must be in regards to pre-existing or present act)), the plaintiffs would still be unable to satisfy the
fourth element—reasonable reliance—necessary to satisfy their claims for negligent misrepresentation. See infra.
47
to purchasing the insurance, Mr. Redmond met with a State Farm agent. Id. During the
discussions between the two, neither Mr. Redmond nor the agent addressed whether the policy
included coverage against lead paint claims despite the plaintiff’s knowledge that insurance
policies contain provisions excluding certain risks. Id. at 1204. Several years later, two of Mr.
Redmond’s tenants sued him for having negligently exposed their children to lead paint, and State
Farm refused to defend or indemnify him based on its policy’s exclusion clause. Id. Mr. Redmond
in turn sued State Farm arguing that he had a reasonable expectation that the policy covered his
tenants’ claims because the agent described it as an “all risk” policy, and the exclusion was never
discussed. Id. at 1203. The trial court found that even though the defendant’s agent failed to
disclose to Mr. Redmond the policy’s lead paint exclusion, id. at 1207, “[t]here [was] [] no
evidence whatsoever that [States Farms agent’s] error of omission was intended to or, indeed, did
lull [Mr.] Redmond into thinking he had lead paint coverage.” Id. at 1208. On appeal, the District
of Columbia Court of Appeals agreed, holding that State Farm had no obligation to defend or
indemnify Mr. Redmond because he had not shown that the agent “led him to believe that he had
lead paint coverage and therefore induced him not to read the policy.” Id.
Similarly, in this case the plaintiffs do not have a basis for claiming that the defendants led
them to believe that information pertaining to Mr. Parnigoni’s conviction would not be disclosed if
they enrolled their son as a student at the School. Indeed, nothing to that effect was even said or
suggested to them before they submitted their application for their son’s admission, or at any time
before he was actually enrolled. Nor were they in any way made to believe that if their son was
admitted into the school that there would be no disclosure of Mr. Parnigoni’s conviction. Thus, the
plaintiffs have also failed to adequately plead the fourth element of their negligent
misrepresentation claim.
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IV. Conclusion
The plaintiffs have pled facts sufficient to support their claims of defamation and invasion
of privacy–false light as to Mrs. Parnigoni and to support their claims for promissory estoppel and
intentional interference with prospective economic advantage; therefore, the Court must DENY
the defendants’ Rule 12 (b)(6) motion to dismiss these claims for failure to state claims upon
which relief may be granted. The plaintiffs, however, have failed to plead facts sufficient to
support their claims of defamation and invasion of privacy–false light as to Andrew Parnigoni and
they have also failed to adequately plead their claims of invasion of privacy–public disclosure of
private facts, intentional infliction of emotional distress, loss of consortium, and negligent
misrepresentation. Therefore, the Court must GRANT the defendants’ Rule 12(b)(6) motion to
dismiss these claims for failure to state claims upon which relief may be granted.
SO ORDERED this 29 day of January, 2010.11
REGGIE B. WALTON
United States District Judge
11
This Memorandum Opinion accompanies the Order issued on March 27, 2009.
49