                              UNITED STATES DISTRICT COURT
                              FOR THE DISTRICT OF COLUMBIA




      ROGER B. HARGRAVE,

                             Plaintiff,

                             v.
                                                               Civil Action 09-0357 (HHK)
      WASHINGTON POST,

                             Defendant.




                                   MEMORANDUM OPINION

           In this civil action brought pro se, plaintiff sues The Washington Post for “libel and

   slander” stemming from a newspaper article published on April 27, 2006, about his criminal

   trial.1 Compl. at 1. Presently before the Court is defendant’s motion to dismiss pursuant to

   Rule 12(b)(6) of the Federal Rules of Civil Procedure. Having considered the parties’

   submissions and the entire record, the Court will grant defendant’s motion to dismiss based

   on the fair report privilege.

           Plaintiff was convicted by a Prince George’s County, Maryland, jury and is serving a

   life sentence for a crime that received nationwide attention--setting his ex-wife Yvette Cade

   on fire. See Compl. at 2-3. Plaintiff takes issue with defendant’s publishing of Cade’s




       1
          Because slander arises from oral expression, the Court considers the claim based on
written expression to be one for libel. See Black’s Law Dictionary (8th Ed. 2004), libel ("Libel is
written or visual defamation; slander is oral or aural defamation.") (quoting Robert D. Sack &
Sandra S. Baron, Libel, Slander, and Related Problems § 2.3, at 67 (2d ed. 1994)).
   testimony at his criminal trial that “Hargrave ‘said he wanted to fry me like Crisco grease.’”

   Def.’s Mot., Ex. 1 at 2.2

           Defendant initially sought dismissal on the sole basis that the complaint is barred by

   the District of Columbia’s statute of limitations but subsequently recognized that tolling may

   apply if plaintiff has remained incarcerated since the alleged harm; it then raised the fair

   report privilege as an alternative basis for dismissal. See Reply in Support of Defendant

   Washington Post’s Motion to Dismiss at 1-2 & n.1. As a general rule, “the issue of privilege

   antecedes the question whether a communication is capable of defamatory meaning.” White

   v. Fraternal Order of Police, 909 F.2d 512, 527 (D.C. Cir. 1990). “The fair and accurate

   reporting privilege is a recognized exception to the common law rule that the republisher of a

   defamation is deemed to have adopted the underlying defamatory statements as its own.” Id.

   (citation omitted). The privilege extends to reports of court proceedings. Shipkovitz v. The

   Washington Post Co., 571 F. Supp.2d 178, 183 (D.D.C. 2008) (citing cases). Because the

   underlying purpose of the privilege is to “encourag[e] the dissemination of fair and accurate

   reports,” the privilege does not extend to reports that are so “garbled or fragmentary [that] a

   false imputaton is made about the plaintiff . . . or [that] are otherwise unfair or inaccurate.”

   Dameron v. Washington Magazine, Inc., 779 F.2d 736, 739 (D.C. Cir. 1985) (citation and

   internal quotation marks omitted).




       2
          Although plaintiff alleges that defendant “printed several misleading articles,” Compl.
at 1, he has not identified the other articles and therefore has failed to provide defendant with
adequate notice of a claim based on such articles. See Fed. R. Civ. P. 8.; Brown v. Califano, 75
F.R.D. 497, 498 (D.D.C. 1977) (“purpose of [Rule 8] is to give fair notice of the claim being
asserted so as to permit the adverse party the opportunity to file a responsive answer [and]
prepare an adequate defense”).

                                                   2
       Plaintiff has not questioned the accuracy of defendant’s reporting of the court

proceeding. Rather, he asserts that had defendant “carefully sought what was available to

them, they would have discovered that [Cade’s] testimony was in fact false and misleading.”

Compl. at 1. This argument neither advances the libel claim nor defeats the privilege.

       For the foregoing reasons, the Court finds that the newspaper article is protected by

the fair report privilege and, thus, grants defendant’s motion to dismiss. A separate Order

accompanies this Memorandum Opinion.



                                             ________s/s____________
                                             Henry H. Kennedy, Jr.
Date: May 12, 2009                           United States District Judge




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