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KIRK LYONS, et al.



Civil Action No.
00-2411 (GK)

Memorandum Opinion

This matter is before the Court on the Motion to Dismiss, or in the Alternative, for Summary Judgment, of Defendants Legion for the Survival of Freedom (LSF), Kirk Lyons and Mark Weber. Upon consideration of the motion, opposition, reply, and the entire record herein, for the reasons stated below, the Court grants Defendants' Motion to Dismiss.

I. Background [1]

Plaintiff Liberty Lobby, Inc. (Liberty Lobby), a non-profit political organization based in the District of Columbia, brings this civil action under the Lanham Act, 15 U.S.C. Section 1125, and state common law against Defendants, LSF, a non-profit California-based political organization, Mark Weber, an employee of LSF, and Kirk Lyons, an attorney with Defendants, for what it alleges was a defamatory letter published by Defendants.

This action is part of a lengthy history of litigation between the parties. In 1996, the Superior Court in California entered a judgment for $2,650,000 against Liberty Lobby in favor of its creditor, LSF. Thereafter, LSF sought collection of the judgment in a series of enforcement actions. In 1998, Liberty Lobby filed suit in this District, alleging a panoply of federal and state claims challenging LSF’s attempts to collect on its judgment. That action was eventually dismissed sua sponte pursuant to Fed. R. Civ. P. 8(a)(2) on the grounds that the Complaint was a meandering, disorganized, prolix narrative and Plaintiff was attempting to use this court to relitigate issues in merely recycled form … needlessly wast[ing] time and effort. See Liberty Lobby, Inc. v. Legion for the Survival of Freedom, et al., Civ. No. 98-0236 (HHK), April 13, 1999 Memorandum Opinion and Order (internal citations and quotations omitted) (Attached as Ex. 3 to Def.’s Mot.).

During the pendency of that case, Liberty Lobby filed for bankruptcy, under Chapter 11, in the United States Bankruptcy Court for the District of Columbia. On July 29, 1999, United States Bankruptcy Judge, S. Martin Teel, approved a Forbearance and Settlement Agreement and Mutual General Release (Settlement Agreement or Agreement). Among other things, the Agreement settled all pending litigation between the parties, and provided that Plaintiff would pay $1,200,000 to Defendant LSF. See Comp. paragraphs 12-14.

Liberty Lobby alleges that on June 7, 1999 (before the execution of the Settlement Agreement, and during the pendency of the bankruptcy proceeding), Defendants prepared and sent a fraudulent two-page letter to members and supporters of Liberty Lobby which:

  1. purported to be from an organization called Committee of Concerned Americans (CCA);
  2. contained typeface of similar font and format used by Liberty Lobby in its correspondence;
  3. expressed support for Liberty Lobby as an institution but asserted that the leadership and staff were mismanaging funds; and
  4. urged recipients of the letter to send money to the CCA in order to facilitate the appointment of an impartial Trustee by the Bankruptcy Court and thereby save Liberty Lobby.

Liberty Lobby alleges four causes of action based on the June 7, 1999 letter:

  1. Defendants misleadingly induced members and supporters of Liberty Lobby to believe that the signatory of the letter, Defendant Kirk Lyons, is associated with Liberty Lobby, in violation of the Lanham Act, 15 U.S.C. Section 1125 (Claim One);
  2. Defendants tortiously interfered with Liberty Lobby’s contracts and business relations by publishing defamatory remarks (Claim Two);
  3. Defendants committed the business tort of injurious falsehood and defamation by publishing defamatory remarks (Claim Three); and
  4. Defendants perpetrated a common law fraud by intentionally making false representations that the CCA was supportive of Liberty Lobby and seeking, on the basis of the false representations, to solicit donated funds for themselves which otherwise would have been donated to Liberty Lobby (Claim Four).

Plaintiff seeks $14,000,000 in compensatory and punitive damages.

II. Standard of Review

Defendants have styled their motion as a Motion to Dismiss or, in the Alternative, for Summary Judgment. In support of their Motion, Defendants submitted and relied upon several documents outside the pleadings. The Federal Rules of Civil Procedure require that if, on a motion to dismiss for failure to state a claim, the movants submit matters outside the pleadings which are not excluded by the court, the motion must be treated as one for summary judgment and disposed of in accordance with Rule 56. Fed. R. Civ. P. 12(b). Defendants' Motion requires consideration of matters outside the pleadings and will thus be treated as a Motion for Summary Judgment. [emphasis added]

Summary judgment will be granted when the pleadings, depositions, answers to interrogatories and admissions on file, together with any affidavits or declarations, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c).

III. Analysis

A. Plaintiff’s Claims Are Time-Barred

For the reasons discussed below, the Court finds that Plaintiff’s claims of tortious interference with contract and business affairs (Claim Two) and defamation (Claim Three) are time-barred.

1. Statute of Limitations Runs from June 7, 1999

A one-year statute of limitations applies to a number of intentional torts, including defamation. D.C. Code Section 12-301(4). Defendants mailed the alleged defamatory letter to Plaintiff’s supporters on June 7, 1999. This case was filed sixteen months later, on October 10, 2000.

Plaintiff argues that its defamation claim is nevertheless timely because the limitations period runs from the date of the most recent republication of the letter, not from the date of original publication. Plaintiff alleges that the letter was republished on a website by an organization known as Nizkor as recently as September 22, 2000. See Comp. paragraphs 69-70; see Pl.’s Opp'n at 3. Plaintiff maintains that the one-year statute of limitations therefore runs from September 22, 2000, not June 7, 1999.

While it is true that, [i]n some circumstances, [a] publisher may be responsible for … republication by another, see Caudle v. Thomason, 942 F. Supp 635, 641 (D.D.C. 1966) (quoting Ingber v. Ross, 479 A.2d 1256, 1269 (D.C. 1984)), a party will be liable only if such republication is the natural and probable consequence of his act, or if he presumptively or actually authorized or directed its republication. […]

Consequently, courts have specifically found that unless a party played some ruole in the republication of a dematory statement, the statute of limitations on a defamation claim runs from the date of original publication, not republication. […]

Liberty Lobby has utterly failed to allege that LSF had any involvement in or knowledge of, or in any way contributed to, the republication of its letter on the Nizkor website. For example, Plaintiff does not allege that LSF presumptively or actually authorized or directed Nizkor to republish its letter. In fact, Plaintiff does not allege any contacts, correspondence, or relationship of any kind between Nizkor and Defendants. […]

Furthermore, to adopt Plaintiff’s theory that the statute of limitations should run from the most recent date on which a letter appears on the Internet would simply lead to an untenable result. It would render the statute of limitations meaningless, as the limitations period would begin anew each day as long as a website continued to display Plaintiff’s [sic] letter.

Accordingly, for the foregoing reasons, the Court concludes that the statute of limitations for Plaintiff’s claims runs from June 7, 1999, not from the date of the most recent appearance of the letter on Nizkor’s website.

2. Statute of Limitations Applies to Tortious Interference Claim

Plaintiff also argues that even if the one-year statute of limitations applies, it applies only to the defamation claim (Claim Three) and not to the claim of tortious interference with contract and business affairs (Claim Two). Plaintiff reasons that D.C. Code Section 12-301(4) does not sepecifically include a tortious interference claim among the enumerated claims subject to a one-year statute of limitations. Plaintiff asserts that the catch-all three-year statute of limitations set forth in D.C. Code Sections 12-301(8) should therefore apply to Claim Two.

Normally, if no statute of limitations is prescribed for a claim, a three-year limitations period attaches. See D.C. Code Section 12-301(8). However, where, as here, two claims are intertwined, and where the same set of facts support both claims, only one of which has a prescribed limitations period, the prescribed limitations period applies to both claims. […]

The case for applying the one-year limitations period to Claim Two is strengthened by the particular facts of this case. Plaintiff’s tortious interference claim derives solely from the defamatory letter. Specifically, Plaintiff alleges that Liberty Lobby’s relationship with its subscribers and advertisers was damaged because of the letter. Therefore, not only is the tortious interference claim intertwined with the defamation claim, but in fact, it is fully predicated upon it.

Accordingly, the one-year statute of limitations set forth in Section 12-301(4) applies to the defamation and the tortious interference claims alike. Because the letter was publilshed on June 7, 1999, and because this action was filed on October 10, 2000, both claims are time-barred.

B. Plaintiff’s Claims Are Barred By the Settlement Agreement

It is undisputed that the parties signed the Forbearance and Settlement Agreement and Mutual General Release on July 29, 1999. The Court finds for the following reasons that this Agreement bars Plaintiff’s remaining claims.

First, the Court notes that the letter was written and circulated on June 7, 1999. The letter concerned Liberty Lobby’s financial situation, the ongoing bankruptcy proceeding and LSF’s efforts to have a trustee appointed in that proceeding. [2] On July 2, 1999, Plaintiff’s counsel sent a letter of complaint about the June 7, 1999 letter directly to Defendants. On July 29, 1999, nearly two months after the June 7, 1999 letter was circulated and one month after Liberty Lobby formally complained about its contents, the parties signed and executed their Settlement Agreement. Any claims concerning the letter could have, and indeed, should have been raised with the Bankruptcy Court prior to entering into the Settlement Agreement.

Second, the express terms of the Argreement make clear that this suit is barred. The Agreement resolved all litigation pending at that time, including the bankruptcy case. [3] It also contains a Mutual General Release, which is a general waiver of all rights and future claims arising from the facts underlying all pending litigation, including facts pertaining to the bankruptcy proceeding. [4] The Mutual General Release, which is extremely broad in its coverage, states that: this Mutual General Release extends to all claims of every nature and kind whatsoever arising from the aforementioned actions and facts, unless expressly excluded. See Def.’s Mot., Ex. 4. The terms of the Agreement therefore make clear that Plaintiff waived its right to sue upon any actions or facts pre-dating the Settlement Agreement relating to, inter alia, the bankruptcy dispute. The Letter, which concerns the underlying bankruptcy dispute and LSF’s efforts to have a Trustee appointed, constitutes an action[] or fact[] for purposes of this release. Consequently, any claims pertaining thereto have been waived.

Finally, the California Superior Court has already found that Plaintiff’s filing of this lawsuit violates the Settlement Agreement. [5] Specifically, that court concluded that this action challenging the letter violates the general release and forbearance provision of the Settlement Agreement. See Def.’s Mot., Ex. 8 (Judgment of Order of Judge Maino, December 15, 2000, Superior Court of California, San Diego). As noted above, that provision covers all claims of every nature and kind whatsoever arising from the aforementioned actions and facts, unless expressly excluded. The Court found that Defendants' letter constituted an action within the meaning of this provision, and that therefore any claim based upon the letter had been expressly waived under this provision.

Therefore, because the letter was written, circulated and known to Plaintiff before the Settlement Agreement was signed by the parties and before it was approved by the Bankruptcy Court; because the letter pertains to the parties' underlying bankruptcy proceeding; because the Agreement bars claims arising from any actions or facts pertaining to any prior disputes between the parties, including the underlying bankruptcy proceeding; and because the California Superior Court has alreadyruled that Plaintiff violated the Settlement Agreement by filing this suit, the Court concludes that the Settlement Agreement bars the instant action.

IV. Conclusion

For the foregoing reasons, the Court grants Defendants' Motion to Dismiss the Complaint, or in the Alternative, for Summary Judgment. This action is dismissed. An Order will issue with this Memorandum Opinion.

United States District Judge
Sept. 26, 2001


1. For purposes of ruling on a motion to dismiss, the factual allegations of the complaint must be presumed to be true and liberally construed in favor of the plaintiff. Shear v. National Rifle Ass'n of Am., 606 F.2d 1251, 1253 (D.C. Cir. 1979). Therefore, the facts set forth herein are taken from Plaintiff’s Complaint.
2. The letter provides in relevant part: Fortunately, a unique opportunity has recently arisen to save Liberty Lobby from ruin. The federal bankruptcy court in Washington, D.C., has the authority to appoint an impartial trustee who can 'clean house' … [T]his special trustee will have sweeping authority to end mismanagement, corruption and waste … I am writing to ask for your help to save Liberty Lobby from ruin … Like everything else in life, the problem is money — in this case funding for the specialized legal counsel, research and services we need to get the bankruptcy court to appoint an impartial Trustee. See Def.’s Mot. Ex. 5 at 2.
3. The Agreement provides that the parties agree to dismiss all Subject Lawsuits (including the bankruptcy proceeding) and that such settlement is intended as a full and complete release and discharge of any and all claims that the parties, or any of them, may or might have or had against each other by reason of the happening of such incidents. Def.’s Mot. Ex. 4 at 3.
4. The Agreement provides in relevant part:

Covenant Not to Sue

The parties hereto agree forever to refrain andforbear from commencing, instituting or participating, either as a named or unnamed party, in any lawsuit, action or other proceeding against each other, whether brought by a party hereto, or by others on their behalf, based on or arising out of the above matters.

Waiver of California Civil Code 1542

The parties hereto understand and agree that this Mutual General Release extends to all claims of every nature and kind whatsoever arising from the aforementioned actions and facts, unless expressly excluded …[.] (emphasis added).

Def.’s Mot., Ex. 4 at 4.

5. The Agreement provides that California courts and law govern the interpretation and enforcement of the Settlement Agreement.