Appeal No. 86 - 0678







Appellees hereby oppose the Motion of Appellants, Williams Thomas, et al., for summary reversal of the Superior Court's Order dismissing Mr. Thomas' Complaint. As grounds for this opposition, Appellees state:



The Motion is improper because Appellant has not filed a Notice of Appeal with the Clerk of the Superior Court. Instead, Appellant simply filed the Motion for Summary Reversal with this Court. This Court has previously held that a notice of appeal is "mandatory and jurisdictional." In re C.I.T., 369 A.2d 171 (D.C.App. 1977 Because no proper appeal has been taken from the Superior Court's judgment, this Court lacks jurisdiction to consider Appellants' Motion.

In addition to the fact that Appellant has not perfected an appeal in accordance with the Rules of the District of Columbia Court of Appeals, the Motion for Summary Reversal is premature because it was filed before the case was docketed. Rule 27(g permits a motion for summary disposition only "after a case has been docketed."


Aside from the jurisdictional and other procedural defects, Appellants' Motion should be denied because the Superior Court acted properly in dismissing the Complaint. First, Appellant named as a defendant a non-existent corporation. Moreover, the Complaint fails to state a cause of action for any of the numerous torts purportedly alleged by Appellant and, in addition, violates Rule 8 of the Rules of the Superior Court of the District or Columbia which requires that a complaint contain a "short and plain statement of the claim" and that each averment of a pleading be "simple, concise, and direct." This Court has previously held that failure to comply with Rule 8 is ground for dismissal. Peebles v. Rudolph, 121 A.2d 264 (Mun.Ct.App. D.C. 1956; Avin v. Verta, 106 A.2d145 (Mun.Ct.App. D.C. 1956. As the Court in Peebles stated,

Viewed in its most favorable light the complaint is a confusing recital of evidentiary matter making uncertain whether appellant's claim, if he has one, sounds in tort or contract. ... [o]ne who has a legal grievance should state it clearly, simply and directly, and failure to do so warrants a dismissal. 121 A.2d at 265.

Although the Complaint purports to state a claim for intentional infliction of extreme emotional distress, it 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 cert. denied, 459 U.S. 915 (1982); Restatement (2d 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, in so extreme a degree, as to go beyond all possible bounds of decency, end to be regarded as atrocious, and utterly intolerable in a civilized community. Restatement (2d of Torts, 46 (1965).

The Restatement of Torts further explains that liability for intentional infliction of emotional distress, "clearly does not extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities." Id.

In Walden v. Covington, 415 A.2d 1070 (D.C. App. 1980, this Court concluded that in cases allowing recovery for intentional infliction of emotional distress, "the outrageousness of the defendant's conduct is self-evident in each instance." Id., at 1077. See, e.g., Bielitski v. Obadaik, 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. Roach, 160 Md. 189, 153 A. 22 (1931 (defendant's employee delivered a dead rat wrapped up as a loaf of bread to plaintiff.

Plaintiffs' 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. Plaintiffs further allege that The Washington Times "cooked up" a story by sending their reporter to report on the "raid." However, Plaintiffs made no effort to describe the actions which they claim constituted a "raid;" nor does the Complaint allege that the description of those activities contained in the July 4, 1985, Washington Times article is false or otherwise defamatory. It is clear from reviewing the 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."

The Complaint also purports to state a claim for civil conspiracy. Again, the allegations are wholly insufficient to state 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. Cir. 1983. As the Court explained in that case, "there is no recognized independent tort action for civil conspiracy in the District of Columbia." Id. Rather, liability for civil conspiracy depends on performance of some underlying tortious act.

In this case, the Complaint did not allege any underlying tort. The only purported tort claim set forth in the Complaint is for intentional infliction of extreme emotional distress. As set forth above, the allegations are insufficient to support such a claim. Thus, the Superior Court acted properly in dismissing the Complaint.


For the reasons set forth above, Appellees respectfully request this Court to deny Appellants Motion for Summary Reversal.

Respectfully submitted,

/s/Lucida 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



The undersigned hereby certifies that on the 20TH day of May, 1986, she served a true and correct copy of the foregoing by U. S. Mail with postage prepaid, as follows:

Mr. William Thomas
Apartment 410
1440 " Street, N.W.
Washington, D.C. 20005

/s/Lucinda J. Bach


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