Civil Action No. 1125-86

WILLIAM THOMAS, et al.,

Plaintiffs,

v.

WASHINGTON TIMES, INC.,
Defendant.

Pursuant to Rules 12(b)(5) and 12(b)(6) of the Rules of the Superior Court of the District of Columbia, the Defendant hereby moves to dismiss the action against it in its entirety. Service of process was not effected in accordance with Rule 4 of the Rules of Civil Procedure. In addition, although Plaintiff purports to sue the "Washington Times, Inc.," no such entity exists. Finally, the Complaint fails to state a claim upon which relief can be granted. The grounds for this Motion are more fully set forth in the Memorandum submitted in support hereof.

WHEREFORE, Defendant respectfully requests this Court to quash service of process and dismiss the Complaint in its entirety and enter such other and further relief as the Court deems just and proper.

Respectfully submitted,

/s/Lucinda J. Bach ALLEN V. FARBER, Bar No. 912865
LUCINDA J. BACH, Bar No. 375366
Schwalb, Donnenfeld, Bray & Silbert
A Professional Corporation Suite 300 East
1025 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 965-7910 COUNSEL FOR DEFENDANT

Civil Action No. 1125-86

WILLIAM THOMAS, et al.,
Plaintiffs,

v.

WASHINGTON TIMES, INC.,
Defendant.

Defendant hereby moves to dismiss this action pursuant to Rules 12(b)(5) and 12(b)(6) of the Rules of the Superior Court of the District of Columbia based upon insufficiency of service of process and failure to state a claim upon which relief can be granted. First, the named Defendant in this action is "Washington Times, Inc. " No such corporation exists. The Washington Times is published by a New York corporation, News World Communications, Inc. News World has appointed a registered agent to accept service of process in the District of Columbia.

Plaintiff apparently made no effort to discover the proper name of the corporate entity which publishes the Washington Times or to learn the identity of the proper registered agent for service of process. Instead, Plaintiff simply named a nonexistent corporate entity as the Defendant in this action and purported to mail, by regular mail, a copy of the Complaint to Arnaud de Borchgrave and Col. Bo Hi Pak at the Washington Times offices in Washington, D.C. Although Plaintiff identifies Mr. Pak and Mr. de Borchgrave as registered agents of the corporation, that is not the case. Moreover, the only person who received a copy of the Complaint was Arnaud de Borchgrave, who is not authorized to receive service of process. Thus, service of process should be quashed.

In addition to the procedural insufficiencies set forth above, Plaintiff's Complaint utterly fails to state a claim upon which relief can be granted. Although Plaintiff purports to state claims for civil conspiracy and intentional infliction of extreme emotional distress, the Complaint fails to allege the necessary elements of either cause of action. Accordingly, as explained in more detail below, Plaintiff's Complaint should be dismissed in its entirety.

A. INSUFFICIENCY OF SERVICE OF PROCESS

Rule 4 of the Superior Court Rules of Civil Procedure provides that service upon a corporation may be effected by

mailing a copy of the Summons and Complaint (by first-class mail, postage prepaid) to the person to be served, together with two copies of a notice and acknowledge conforming substantially to Form 1-A and a return envelope, postage prepaid, addressed to the sender.

Rule 4 further identifies the person to be served to effect service upon a corporation as, "an officer, a managing agent, or any other agent authorized by appointment or by law to receive service and process. " Rule 4(d)(3).

Plaintiff failed to comply with the requirements of Rule 4 in that: (1) he failed to mail the Summons and Complaint to an officer, a managing agent, or any other agent authorized to receive service and process; and (2) he failed to include with the Summons and Complaint the notice and acknowledgment required under Rule 4(c)(C)(i). Plaintiff simply mailed a copy of the Complaint and Summons to Arnaud de Borchgrave. Mr. de Borchgrave is not an officer, a managing agent, or otherwise authorize to receive service of process on behalf of News World Communications Inc. Plaintiff also purported to mail a copy of the Summons and Complaint to Bo Hi Pak. However, Mr. Pak never received the Summons and Complaint.

Because Plaintiff failed to comply with the requirements of Rule 4, service of process should be quashed. See Rosen and Associates, Inc. v. Hurwitz, 465 A.2d 1114 (D.C.App. 1983) (a receptionist, even if authorized to sign for and and open all of the mail, is not necessarily authorized to accept service of process); Morfessis v. Marvin's Credit, Inc., 77 A.2d 178, 180 (D.C. 1950) (status as secretary and sole office employee did not establish agency to receive service of process for employer).

Although Plaintiff's Complaint purports to state a claim for intentional infliction of extreme emotional distress, the Complaint utterly fails to allege the necessary elements of that tort. To state a claim for intentional infliction of extreme emotional distress, a Complaint must allege: (1) "extreme and outrageous" conduct on the part of the Defendant which (2) intentionally or recklessly (3) causes the Plaintiff "severe emotional distress. " Sere v. Group Hospitalization, Inc., 443 A.2d 33, 37 (1982); Restatement (2nd) of Torts, § 46 (1965). Both the Restatement of Torts and District of Columbia cases make clear that liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, end utterly intolerable in a civilized community.

The Restatement of Torts explains that liability for intentional infliction of emotional distress "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Restatement (2d) of Torts, § 46 (1965).

In Waldon v. Covinqton, 415 A.2d 1070 (1982), the Court analyzed cases allowing recovery for intentional infliction of emotional distress. The Court concluded that "the outragousness of the defendant's conduct is self-evident in each instance." Id., at 1077. See e.g., Bielitski v. Obadiak, 15 Sask. 153, 65 D.L.R. 627 (1922) (defendant's false story that plaintiff's son had hung himself was spread around and got back to plaintiff as the truth); Great Atlantic & Pacific Tea Co. v. Roch, 160 Md. 189, 153 A. 22 (1931) (defendant's employee delivered a dead rat wrapped up as a loaf of bread to plaintiff).

Plaintiff's allegations fall far short of alleging the sort of outrageous conduct necessary to state a claim for intentional infliction of extreme emotional distress. Rather, the Complaint alleges only that Defendant's alleged agent, reporter Steve Masty, participated in a "raid" on Plaintiff and their property in Lafayette Park in the pre-dawn hours of July 4, 1985. Plaintiff further alleged that the Washington Times "cooked up" a story by sending their reporter to report on the "raid." Plaintiff made no effort to describe the actions which they claim constituted a "raid." Nor does Plaintiff take issue with the accuracy of the description of those activities contained in the duly 4, 1985 Washington Times article referenced in the Complaint and attached hereto as Exhibit A. It is clear from reviewing that article that the events complained of do not go "beyond all possible bounds of decency and" cannot be "regarded as atrocious and utterly intolerable in a civilized community." Restatement (2d) of Torts, § 46.

Moreover, applying a balance test, as did the Court in Waldon v. Covington, this Court should conclude that "the advantage to society of preventing such harm as defendant is here alleged to have inflicted on plaintiffs is minimal when compared with the chilling effect of imposing liability in this kind of situation." 415 A.2d at 1078. Thus, Plaintiff's claim for intentional infliction of emotional distress should be dismissed.

C. FAILURE TO STATE A CLAIM FOR CIVIL CONSPIRACY

Plaintiff's Complaint also purports to state a claim for civil conspiracy. Again, the Complaint utterly fails to allege the necessary elements of such a cause of action. Under District of Columbia law, the essential elements of civil conspiracy are, "an agreement to take part in an unlawful action or a lawful action in an unlawful manner, and an overt tortious act in furtherance of the agreement that causes injury." Halberstam v. Welch, 705 F.2d 472, 479 (D.C.App. 1983). As the Court explained in that case, "there is no recognized independent tort action for civil conspiracy in the District of Columbia." Rather, liability for civil conspiracy depends on performance of some underlying tortious act.

In this case, Plaintiff utterly failed to allege any underlying tort. The only purported tort claim set forth in the Complaint is for intentional infliction of emotional distress. As set forth above, the allegations are insufficient to support such a claim. Thus, the Complaint for civil conspiracy also must be dismissed.

For the reasons set forth above, Defendant respectfully requests this Court to quash service and process and dismiss the action in its entirety.

Respectfully submitted,

/s/Lucinda J. Bach
AL EN V. FARBER, Bar No. 912865
LUCINDA J. BACH, Bar No. 375366
Schwalb, Donnenfeld, Bray & Silbert
A Professional Corporation Suite 300 East
1025 Thomas Jefferson St., N.W.
Washington, D.C. 20007
(202) 965-7910

THE WASHINGTON TIMES
CAPITAL SKETCH
Poster war rocks Lafayette Square
By S.J. Masty

It's Independence Day, 4 a.m. and Lafayette Square is almost quiet Among the barricade of posters, signs and billboards that seem a permanents fixture across from the White House, a few people are stirring.

Over in the bushes, a hairy, shirtless fellow seems to be having a conversation with a tree. He gesticulates wildly, waving a Jack Daniels bottle for rhetorical emphasis. A few more snore softly, sacked out under rough lean-tos protesting everything from imminent nuclear war to the law of gravity.

Generally, the authors never use 10 words when 100 will do, but a hand-lettered placard, with the picture of a single red rose, somberly states: "In memory of Norman Mayer, Dec 8, 1982." Nearby, another says "Norman Mayer-Be like him-Dare to struggle, dare to win." Mr. Mayer, in case you forgot, was the public-spirited citizen who parked a truck-bomb beside the Washington Monument until he was given early retirement by a police marksman.

This home for the screwball left is, frankly, a weird place. Momentarily it's going to get a lot weirder.

A White van and a few cars screech to a halt at curbside, disgorging two dozen people, one wearing a blue blazer and tie. They begin dismantling posters, stacking them in the van. If anything seems stranger than yippies and winos, it's the guy with the jacket and tie in Lafayette Park at 4 a. m.

The signs go into the van and are replaced with a large posterboard bearing the uncomplicated slogan, "God Bless America."

This is the work of the Lafayette Liberation League (LLL), says its director, a whimsical young man in red, white and blue T-shirt who goes by the name of Jay Young. His colleagues, however, call him Commander Zero.

"We're basically an ecology group," says Mr. Young, who works days as National Vice Chairman of the Young Americans for Freedom.

"Taking these signs away is our contribution to improving the ecology of Washington. Our sign is made of 100 percent biodegradable materials. It might take 100 years, but it will biodegrade."

"Yeah," says his chum dryly, "we like environment." Everyone ought to have some."

"For too long," Commander Zero continues, "the left clogged up the park with anti-American protest signs, literally across the street from the president's house. But we're not just removing the posters, we're also removing other trash, like beer bottles."

He explains that the LLL has permission from the Park Service to clear away the signs. Anything unattended, from picket signs to Kleenex, say the rangers, counts as trash. Clearly, these umpteen dozen components of the eyesore are unguarded, he explains.

Suddenly, a shot rings out. Well, actually, it's not a shot, but an emaciated and ginger- breaded guy with a pony-tail emerging from a bush, screaming at the top of his lungs.

"Police! Police!" he hollers. From under a lean-to creeps a 4-foot-tall woman with a 2-foot beehive hair-do wrapped in rags. Wearing an ankle-length overcoat in the stifling humidity, she takes up the cry in an Eastern European accent. For emphasis, she throws fistfuls of something at the Liberation League. It looks like Kitty Litter.

A few more combatants wander in from their bedrooms, on the steps of a nearby bank, also screaming for the police.

"It's our property," shouts a guy in front of a sign that reads "Property is Theft."

From the opposite lane on Pennsylvania Avenue, a like model Thunderbird screeches into a 180 degree turn, blocking off the White van, a la Clint Eastwood playing Dirty Harry. A middle-age suburban woman jumps out, shrieking for the police, as the dwarf with the beehive tries to bend the windshield wiper off the van. She isn't tall enough.

Finally a Park Police motorcycle pulls up on the sidewalk as a confused officer tries to figure out what's going on. The looney tunes weren't supposed to start until the Beach Boys concert.

Immediately, he's deluged with bearded, shirtless men demanding that everybody be arrested.

She refuses to give her name because "my mother would kill herself." She also asks that I not mention her T-shirt. "It's a whole-food store. It's not involved," she explains sensibly. There was no whole-food store anywhere in sight. It was probably innocent.

"Death to America yells a small fellow in a dirty shirt. Nobody says anything, but he gets his picture taken. Another tries to explain why Idaho is a fascist state.

A few more policemen turn up and begin taking names. "I'm with the Confederate Memorial Association, says a lanky kid. "No," he adds, "I don't know the phone number, but it's downtown. You can't …"

'This is terrible," says the Virginia housewife, wringing her hands. "It's un-American." She explains that she often stops here to read the signs. "They're an eyesore, though." she adds. miss it "The policeman nods laconically.

The crowd waits for a legal interpretation from Park Police Mission Control. By now, the yippies and yuppies are chatting in small groups. A yuppie asks a yippie the direction of the men's room. The street person points to a shrub. A cute girl in a Catholic University sweatshirt argues against liberation theology with Charlie Manson's long-lost brother.

"Reagan, man," says Mr. Manson, "I mean, like, he creates his own reality. Like, all over the world. Like for everybody."

The beehive lady yells "Noooooo! America means liberty for all. Not for you!" She throws another handful of Kitty Litter on the back of someone's T-shirt.

"Don't go near her," says the socially-concerned housewife. "She's not all right in the head."

"Really?" I ask incredulously. "You mean most people don't sleep in parks, wear ankle-length raincoats in July and throw Kitty Litter?" The housewife doesn't understand.

Finally, Mission Control has a legal opinion. Yes, unattended posters are abandoned property, but no, they don't know what constitutes abandonment. Maybe that means one protester per poster, maybe it means one protester guarding the whole square. The courts haven't decided on that yet.

In the meantime, everybody's posters go back up, including the one saying "God Bless America" The police pack up, leaving everyone disappointed—no goo-goo signs removed, no Neo-Franco Reaganites in the Peoples' Slammer.

The housewife takes a slug from a bottle of Mountain Valley Water. She's heading for the hard stuff; next it will be Woolite.

"Can I have a drink," asks the ginger-beard.

The liberated housewife looks at him in disgust. "I'm not one of the street people," she says. "I don't drink from the same bottle as street people." Even social concern has its limits. She asks him if he has a glass. Glass? We're lucky he has pants.

Slowly, the street folk retire to their concrete sitting rooms and posterboard condominiums. Slowly, the Lafayette Liberation League lines up along the pavement," unfurling a sign: "Young Americans for Freedom for Reagan.

"We're staying here until President Reagan gets up," says a college kid. "We want to sing him a happy Independence Day."

_________________________________________________________________________

WILLIAM THOMAS, et al., )

Plaintiffs, )

v. ) Civil Action No. 1125-86

WASHINGTON TIMES, INC., )

Defendant. )