                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

 DANIEL PARISI, et al.,

                         Plaintiffs,

                  v.                                Civil Case No. 10-897 (RJL)

 LAWRENCE W. SINCLAIR A/KiA
 "LARRY SINCLAIR," et al.,




                                  (February

       Plaintiffs Daniel Parisi, White House Communications Inc., Whitehouse. com Inc.,

and Whitehouse Network LLC (collectively, "plaintiffs") filed a complaint against

several defendants, including Larry Sinclair ("Sinclair"), for conduct stemming from the

pUblication of a book written by Sinclair entitled Barack Obama & Larry Sinclair:

Cocaine, Sex, Lies & Murder? ("the Sinclair book"). Plaintiffs assert five counts against

all defendants, including libel, false light invasion/misappropriation of privacy, business

disparagement, tortious interference with economic advantage, and civil conspiracy.

Defendant Sinclair has moved to dismiss plaintiffs' complaint. After due consideration

of the law and the pleadings, defendant's Motion to Dismiss is GRANTED.

                                       BACKGROUND

      In January 2008, Sinclair publicly alleged that he had used drugs and had engaged

in sexual activity with then-presidential candidate Senator Barack Obama. Complaint

("Compl.")   ~   21, May 28, 2010. In or about February 2008, Parisi, the owner and


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operator of the website Whitehouse.com, challenged Sinclair to take a polygraph

regarding these allegations. Id.     ~   23. Parisi offered to pay Sinclair $10,000 to take the

polygraph and $100,000 if the polygraph showed that Sinclair was telling the truth. Id.

Sinclair ultimately accepted the challenge, and the polygraphs were administered by

certified polygraph examiner Edward Gelb. Id.          ~   24. In tum, as part of a modified

agreement, Whitehouse.com Inc. paid Sinclair $20,000 by check. Id.                 ~   23. The resulting

examiner's report indicated deception by Sinclair, and the findings were corroborated by

two other examiners. Id.   ~   26.

       Also in 2008, the Whitehouse. com website was shut down, despite the website's

hope to sell the website to political and news entities. CompI.        ~   48.

       In June 2009, Sinclair published a book about his allegations and subsequent

interactions with Parisi and Gelb entitled Barack Obama & Larry Sinclair: Cocaine, Sex,

Lies & Murder? CompI.      ~~   31-32. Plaintiffs contend the Sinclair book contains false

and defamatory statements regarding Parisi and his website. Id.            ~~    32,44.

       On May 28, 2010, plaintiffs filed this lawsuit against all defendants. On January

26, 2011, defendant Sinclair filed a Motion to Dismiss all claims against him for failure

to state a claim upon which relief can be granted pursuant to Rule 12(b)(6). For the

following reasons, defendant's motion is GRANTED.

                                 STANDARD OF REVIEW

      A court may dismiss a complaint or any portion of it for failure to state a claim

upon which relief may be granted. Fed. R. Civ. P. 12(b)(6). In considering a motion to

dismiss, however, the Court may only consider "the facts alleged in the complaint, any

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documents either attached to or incorporated in the complaint and matters of which [the

court] may take judicial notice." E.E.o.c. v. St. Francis Xavier Parochial Sch., 117 F.3d

621, 624 (D.C. Cir. 1997). To survive a motion to dismiss, a complainant must "plead [ ]

factual content that allows the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged." Ashcroftv. Iqbal, ---U.S.---, 129 S. Ct. 1937, 1949

(2009). In evaluating a Rule 12(b)(6) motion, the Court construes the complaint "in favor

of the plaintiff, who must be granted the benefit of all inferences that can be derived from

the facts alleged." Schuler v. United States, 617 F.2d 605, 608 (D.C. Cir. 1979) (internal

quotation marks omitted). However, factual allegations, even though assumed to be true,

must still "be enough to raise a right to relief above the speCUlative level." Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 555 (2007). Moreover, the Court "need not accept inferences

drawn by plaintiff[] if such inferences are unsupported by the facts set out in the

complaint. Nor must the court accept legal conclusions cast in the form of factual

allegations." Kowalv. MCICommc'ns Corp., 16 F.3d 1271,1276 (D.C. Cir. 1994).

                                        ANALYSIS

   I.      Actual Malice

        Plaintiffs contend that in June 2009, Sinclair published various defamatory

statements relating to Parisi in the Sinclair book.! See Compl. ~~ 32,45, 55.




! In addition to libel, plaintiffs also make a claim of false light invasion/misappropriation
of privacy. When a false light claim is based upon the same factual allegations as a
defamation claim, the two are analyzed identically. Blodgett v. Univ. Club, 930 A.2d
210, 223 (D.C. 2007) ("In fact, where the plaintiff rests both his defamation and false
light claims on the same allegations, ... the claims will be analyzed in the same
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Specifically, the relevant alleged defamatory statements are: "the polygraph was rigged

and was arranged by Dan Parisi and Obama Campaign advisor David Axelrod";

'" Axelrod and the Obama campaign had agreed to pay Dan Parisi of Whitehouse.com,

$750,000 to arrange a rigged polygraph"; and "the polygraph exam was announced by

the internet pornography fraud Dan Parisi." Id.   ~   32; see Pis.' Opp'n to Sinclair's Mot. to

Dismiss or for Summ. J. ("PIs.' Opp'n") at 17, Feb. 11,2011.

       To state a cause of action for defamation, a plaintiff must allege the following:

       (1) that the defendant made a false and defamatory statement concerning
       the plaintiff; (2) that the defendant published the statement without
       privilege to a third party; (3) that the defendant's fault in publishing the
       statement amounted to at least negligence; and (4) either that the statement
       was actionable as a matter of law irrespective of special harm or that its
       publication caused the plaintiff special harm.

Blodgett, 930 A.2d at 222. However, when the victim of the alleged defamation is a

public figure, as is the case here, the defendant's fault in publishing the statement must

amount to more than mere negligence; the defendant must have acted with actual malice,

i.e., "with knowledge that it was false or with reckless disregard of whether it was false

or not.,,2 N. Y. Times Co. v. Sullivan, 376 U.S. 254, 279-80 (1964). Specifically, the

plaintiffs must show, by clear and convincing evidence, that when the defendant

published the alleged defamatory statements, they were subjectively aware that it was

highly probable that the story was "(1) fabricated; (2) so inherently improbable that only

a reckless person would have put [it] in circulation; or (3) based wholly on an unverified

manner."); Harrison v. Wash. Post Co., 391 A.2d 781, 784 n.8 (D.C. 1978). Therefore,
the libel claim will not be addressed separately.
2 Plaintiffs concede for the purpose of this motion that plaintiffs are limited public figures
and subject to the actual malice standard. See PIs.' Opp'n at 23.
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anonymous telephone call or some other source that [plaintiff] has obvious reasons to

doubt." Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C. Cir. 2003) (internal quotation

marks omitted).

       In their complaint, plaintiffs merely allege in a conclusory fashion that the

"defamatory statements were made and published by defendants with knowledge of their

falsity or with reckless disregard for their truth." CompI. ~~ 45, 58. The complaint

contains no factual allegations, other than the plaintiffs' own assertions that the

statements were false, see id.   ~   44, suggesting that Sinclair either fabricated the story, that

the story was so improbable that only a reckless person would have circulated the story,

or that he acted wholly on an unverified anonymous telephone call. See Lohrenz, 350

F.3d at 1283. Indeed, the complaint cites to passages in Sinclair's book that show just the

opposite. See CompI.   ~   32. Although Sinclair allegedly received the information

regarding the rigged polygraph and the $750,000 payment from an anonymous telephone

call, the cited passages of the book state that he took steps to verify the statements made

in the phone call and relied on more than just the call itself. Id. Specifically, Sinclair

contacted Parisi asking him to confirm or deny the allegations, to which he received no

response. 3 ld. Further, Sinclair forwarded the information to a Chicago Tribune reporter,

John Crewdson, and asked him to look into the identity of the anonymous tipster. Id.

According to the cited passages, Crewdson spoke to the tipster, who repeated the same

3 Rather than respond, Parisi posted a statement on Whitehouse.com claiming that
Sinclair's supporters had threatened him, removed all posts and comments about
Sinclair's story from the website, changed the format of the website to require individuals
to register with the website before being able to comment, and issued a stop payment of
the $20,000 check Parisi previously gave to Sinclair. Compl. ~ 32.
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statements he made to Sinclair. Id. Because plaintiffs have failed to make factual

allegations sufficient to "raise a right to relief above the speculative level," defendant's

Motion to Dismiss is GRANTED. Twombly, 550 U.S. at 555.

    II.      Damages

          Finally, plaintiffs allege that they have suffered actual and special damages in the

amount of at least $30,000,000 as a direct result of Sinclair's alleged defamatory

statements. Compi.       ~~   48, 63, 69, 75, 81, 86. Specifically, plaintiffs allege that as "a

direct and proximate result of the defamatory statements of the defendants, the

Whitehouse.com website was shut down in 2008," and that "Whitehouse.com had hoped

to sell the site to political/news entities, particularly during the historic 2008 presidential

election year, but was unable to do so in light of the taint of Sinclair's defamation." Id.        ~


48. Thus, the complaint alleges that the harm suffered by plaintiffs occurred in 2008. Id.

Curiously, however, Sinclair did not publish the alleged defamatory statements until June

2009. Id.    ~   31 Because the alleged illegal conduct did not occur until after the alleged

harm was suffered, plaintiffs have failed to state claims upon which relief may be

granted. 4 Therefore, defendant's Motion to Dismiss is GRANTED.




4 Plaintiffs' allegations as to damages pertain to all counts-Counts I-V. Compi. ~~ 54-
86. In addition, any other subsequent damages alleged by the plaintiffs for the first time
in their opposition to Sinclair's Motion to Dismiss, will not be considered by this Court
as they were not alleged in the complaint. See Pis.' Opp'n at 27-31. Further, such
allegations are entirely speculative and unsupported by any factual allegations in the
complaint. See Def.'s Reply in Support ofDef.'s Mot. to Dismiss or in the Alternative
Mot. for Summ. J. at 8-9, Feb. 17,2011.
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                                   CONCLUSION

      Thus, for all of the foregoing reasons, defendant's Motion to Dismiss, ECF No.

94, is GRANTED due to a failure to state a claim upon which relief can be granted. An

appropriate order will accompany this memorandum opinion.




                                              RICHARD          ON
                                              United States District Judge




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