Wilson v. Prudential Financial

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Wilson v. Prudential Financial

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Wilson v. Prudential Financial
Not Reported in F.Supp.2d, 2004 WL 2451412
October 18, 2004

******* To overcome this qualified immunity, the plaintiff must therefore show that CARCO furnished information with malice or willful intent to injure. See, e.g., Thornton v. Equifax, Inc., 619 F.2d 700, 703 (8th Cir.1980). The plaintiff has not claimed malice or willful intent to injure the plaintiff in his complaint, cf. Compl. ¶ 34 (stating that CARCO “either knew or should have known that the false and defamatory statement it punished to Prudential was not true”), and there is no provision in sections 1681n and 1681o that would allow his defamation claim to proceed without these elements. Accordingly, CARCO is protected by the qualified immunity conferred by the FCRA, and the court dismisses the plaintiff's claim of defamation for failure to state a claim.FN4

FN4. Even if the FCRA did not preempt the plaintiff's claim, the applicable statute of limitations under state law would bar recovery. When, as the parties in this case argue, a conflict of law exists, the court must use the choice of law rules for the state in which it sits. Klaxon Co. v. Stentor Electric Manufacturing Co., Inc., 313 U.S. 487 (1941); A.I. Trade Finance v. Petra Intern. Banking Corp, 62 F.3d 1454, 1458 (D.C.Cir.1995). The choice of law rules for the District of Columbia treat statutes of limitation as procedural, and therefore compel the court to apply the statute of limitation for the District of Columbia. A.I. Trade Finance, 62 F.3d at 1459.

In the District of Columbia, the statute of limitations for defamation claims is one year from the date of first publication. D .C.Code § 12-301(4); Mullin v. Washington Free Weekly, Inc., 785 A.2d 296, 298 n. 2 (D.C.2001). District of Columbia courts adhere strictly to the one year limitation, Mullin, 785 A.2d at 298, and follow the “single publication” rule, under which publication of defamatory matter “gives rise to but one cause of action for libel, which accrues at the time of the original publication[.]” Ogden v. Ass'n of the United States Army, 177 F.Supp. 498, 502 (D.D.C.1959). Because the statute of limitations runs from the date of the original publication, any subsequent sale or delivery of a copy of the publication does not create a new cause of action. Id.

Viewing the facts of this case in the light most favorable to the plaintiff, the alleged defamation occurred on September 3, 2002. Compl. ¶ 19 (referring to CARCO's “September 3, 2002, background verification report”). As indicated above, the plaintiff first brought suit on November 1, 2002, and the court dismissed his complaint without prejudice on March 23, 2003. Opp'n at 1-2. The plaintiff then brought the present suit on November 7, 2003. See generally Compl. Accordingly, applying the District of Columbia's statute of limitations as a matter of procedure, and considering that courts narrowly construe the District of Columbia's statute to bar any claim that fails to toll the statute within the time allotted, the plaintiff's suit for defamation would be barred because it was filed over a year after the alleged defamatory publication.

The plaintiff's November 1, 2002, suit did not toll the statute. “[I]f a plaintiff mistakes his remedy, in the absence of any statutory provisions saving his rights, or where from any cause ··· the action abates or is dismissed, and, during the pendency of the action, the limitation runs, the remedy is barred.” Carter v. Washington Metropolitan Area Transit Authority, 764 F .2d 854, 856 (D.C.Cir.1985) (citing Willard v. Wood, 164 U.S. 502, 523 (1896)). This premise holds true whether the pending action was voluntarily or involuntarily dismissed. See Dupree v. Jefferson, 666 F.2d 606, 611 (D.C.Cir.1981) (addressing the pendency of voluntarily dismissed actions); York & York Construction Co. v. Alexander, 296 A.2d 710, 712 (D.C.1972) (addressing the pendency of involuntarily dismissed actions).

Furthermore, the plaintiff has not identified any reason to equitably toll the statute. Cf. Carter, 764 F.2d at 858 (noting that “[e]xceptions to the general rule of strict application are seen as justifiable only when the court perceives that an extraordinarily inequitable outcome would otherwise obtain”). Accordingly, even if the FCRA did not impose a statute of limitations, the plaintiff's defamation claim would fall outside the one-year period that the District of Columbia statute of limitations prescribes. See Smith v. Brown & Wiliamson Tobacco Corp., 3 F.Supp.2d 1473, 1475 (D.D.C.1998).


For the foregoing reasons the court denies CARCO's motion to dismiss the plaintiff's negligence count; denies CARCO's motion for summary judgment on the plaintiff's negligence count; and grants CARCO's motion to dismiss the plaintiff's defamation count. An order consistent with this Memorandum Opinion is separately and contemporaneously issued on this 18th day of October, 2004.
David A. Szwak
Bodenheimer, Jones & Szwak, LLC
416 Travis Street, Suite 1404, Mid South Tower
Shreveport, Louisiana 71101
318-424-1400 / Fax 221-6555
President, Bossier Little League
Chairman, Consumer Protection Section, Louisiana State Bar Association

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