UNITED STATES COURT OF APPEALS FOR THE D.C. CIRCUIT


CROIXLAND PROP LTD

v.

CORCORAN, THOMAS J.


98-7097a

D.C. Cir. 1999


*	*	*


Rogers, Circuit Judge: In 1993, Croixland, the owner of a  greyhound
dog racing facility in Hudson, Wisconsin, entered  into an agreement
with three Indian tribes to sell the track  and thereafter to manage
jointly casino operations that the  tribes would own. A precondition
to the agreement was the  purchase of the facility land in trust by
the Department of  Interior under the Indian Regulatory Act, see 25
U.S.C. s 465  (1994), and approval of gaming activities on that land
under  the Indian Gaming Regulatory Act, see 25 U.S.C.  s
2719(b)(1)(A)(1994). The Minnesota Area Director of the  Department
recommended approval of the tribes' application  in the fall of 1994,
but on July 14, 1995, the Deputy Assistant  Secretary of Indian
Affairs denied the application. After  learning in the course of other
litigation about actions in  Washington, D.C. taken by lobbyists for
Indian tribes oppos- ing the sale, Croixland sued the lobbyists for
defamation and  conspiracy to defame.1 The district court dismissed
the  complaint for failure to state a cause of action. We reverse.


I.


This court reviews the dismissal of a complaint under  Federal Rules of
Civil Procedure 12(b)(6) de novo. See  Chandler v. District of
Columbia Dep't of Corrections, 145  F.3d 1355, 1360 (D.C. Cir. 1998).
We must accept the allega- tions of the complaint as true, drawing all
inferences in the  plaintiff's favor, and will affirm "only if it is
clear that no  relief could be granted under any set of facts that
could be  proved consistent with the allegations." Hishon v. King & 
Spalding, 467 U.S. 69, 73 (1984); see also Harris v. Ladner,  127 F.3d
1121, 1123 (D.C. Cir. 1997).


To succeed on a defamation claim, the plaintiff must show: 


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n 1 For ease of reference we refer to appellees as "the lobbyists." 
Croixland sued Thomas J. Corcoran, Patrick E. O'Donnell, and  Larry
Kitto as defendants, but in their complaint refer to conduct  by
defendants and "other persons known and unknown." See  Comp. p 20.


(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) ei- ther that the statement was actionable as a
matter of law  irrespective of special harm or that its publication
caused  the plaintiff special harm.


Crowley v. North Am. Telecomm. Ass'n, 691 A.2d 1169, 1172  n.2 (D.C.
1997) (quotations omitted); see also Restatement  (Second) of Torts s
558 (1976).2


Croixland's complaint alleged that the lobbyists had con- spired to
convince decisionmakers in Washington, D.C. re- viewing the tribes'
application that Croixland had connections  to organized crime. See
Compl. p 20. Insofar as is relevant  to this appeal, the complaint
alleged that the lobbyists, "by  publishing the defamatory statement
that plaintiff [i.e., Croix- land] was connected to organized crime,
intended to injure  plaintiff in its business reputation and to cause
the Depart- ment of Interior to deny approval of the proposed Hudson 
casino." Id. p 29. To this end, the lobbyists falsely stated, 
according to the complaint, that "a company named Delaware  North was
the owner of the Hudson greyhound facility, that  Delaware North was
connected to organized crime, and that  approval of the Hudson casino
would allow organized crime to  be directly involved in Indian
gaming." Id. at p 20. To  support their false statements that
Croixland was connected  to organized crime, the lobbyists agreed to
distribute an  article appearing in the November 17, 1994, edition of
the  Wall Street Journal purporting to describe Delaware North's 




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n 2 The lobbyists cite Caudle v. Thomason, 942 F. Supp. 635,  638-39
(D.D.C. 1996), for the proposition that heightened pleading 
requirements apply in defamation cases. In fact, as with any 
pleading, Croixland's complaint must allege the elements of the  cause
of action; the Federal Rules of Civil Procedure impose no  special
pleading requirements for defamation as they do for a  specified list
of other matters. See, e.g., Fed. R. Civ. P. 9.


ties to organized crime.3 Id. One of the lobbyists--Scott  Dacey, not
one of the defendants--met with and gave the  article to the Deputy
Assistant Secretary of Indian Affairs.  Id. p 22. The complaint
referred as well to a strategy by the  lobbyists to get a story in the
Washington Post about Dela- ware North's relationship with tracks in
Wisconsin. Id. p 21.


The complaint also alleged that a defamatory statement  was made to
Senator John McCain during a meeting in June  1995, where the
lobbyists stated that "the owners of the  Hudson greyhound facility
are connected to organized  crime."4 Id. p 26; see also id. p 23.
Senator McCain alleged- ly told the lobbyists that he intended to ask
the Justice  Department to look into the Hudson casino application.
Id.  p 26. After the tribes' application was denied, the lobbyists 
sent Senator McCain a letter, reminding him of their meeting 
"regarding the proposed conversion of a dog track in Hudson, 
Wisconsin, to an Indian gaming casino which would bail out  the dog
track owner, Delaware North of Buffalo, New York,"  and thanking him
for his "help with the Department of  Justice." Id. The letter stated
that "[w]ithout your assis- tance, we do not believe the BIA [Bureau
of Indian Affairs]  headquarters would have overturned its Minneapolis




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n 3 The November 17, 1994 Wall Street Journal article by John  R.
Emshwiller, entitled "Sins of the Father? Concession King's  Son
Fights Mob Stigma As He Builds Empire; Delaware North's  Businesses
Appear Gangster-Free, But Regulators Wonder; Host- ing You at
Yosemite," describes Delaware North as having "more  than 200
operating units in 39 states and six countries." The article  reported
that in 1972 the company (then known as Emprise Corpo- ration) was
convicted of conspiracy "to hide its ownership interest  and the
interests of two reputed mob figures in the Frontier Casino  in Las
Vegas." Since then no such ties had been uncovered, due in  part to
the current owner's efforts, including hiring "former top  federal law
enforcement officials" to rid the company of any such  ties. The
newspaper article noted, however, that state and federal  regulators


4 At the time of the meeting, Senator McCain was chairman of  the
Senate Committee on Indian Affairs. See Congressional Staff  Directory
(1995).


office on this matter." Id. In addition, the complaint alleged  that
the lobbyists repeated the defamatory statement that the  owner of the
Hudson facility was connected to organized  crime. Id. p 38.


In dismissing the complaint, the district court focused on  whether the
alleged defamatory statements were "of and  concerning" Croixland.
Croixland had alleged that it was  defamed when the lobbyists reported
to Department officials  and others that the owner of the Hudson track
had connec- tions to organized crime, either directly or through
Delaware  North's ownership. The lobbyists responded that they only 
made statements about Delaware North, and consequently no  reasonable
listener would think they were referring to Croix- land. The district
court agreed with the lobbyists and ruled  that because during the
meeting with Senator McCain, in the  subsequent letter to him, and in
the newspaper article, there  was no mention of Croixland by name and
no indication that  any listener understood that the references were
to Croix- land, the complaint failed to allege defamatory statements
"of  and concerning" Croixland.


To satisfy the "of and concerning" element, it suffices that  the
statements at issue lead the listener to conclude that the  speaker is
referring to the plaintiff by description, even if the  plaintiff is
never named or is misnamed. See, e.g., Peck v.  Tribune Co., 214 U.S.
185, 188-90 (1909); Washington Post  Co. v. Kelly, 38 F.2d 151 (D.C.
Cir. 1930); Harmon v. Liss,  116 A.2d 693, 695 (D.C. 1955); see also
Service Parking Corp.  v. Washington Times Co., 92 F.2d 502, 504-05
(D.C. Cir.  1937); Caudle, 942 F. Supp. at 638; W. Page Keeton et al.,
 Prosser and Keeton on the Law of Torts s 111, at 783 (5th ed.  1984);
Restatement (Second) of Torts s 564 (1977). The  complaint refers to
statements that were not just about  Delaware North as Delaware North
but rather were about  Delaware North in its alleged capacity as the
owner the  Hudson facility. Insofar as Croixland was the true owner, 
even if never named, it could be defamed in its status as the 


Grisanzio v. Rockford Newspapers, Inc., 477 N.E.2d 805  (Ill. App. Ct.
1985), on which the lobbyists rely, is not to the  contrary. Grisanzio
operated a restaurant in a building that  was owned by Zammuto, who
was reputed to be part of the  mob. After a newspaper reported
Zammuto's mob connec- tions, Grisanzio sued. The court dismissed his
complaint  because he was never mentioned by name and a reader of the 
article would reasonably perceive the distinction between the 
operator of a restaurant and the owner of the building. Id. at 
809-10. By contrast, in the instant case, the alleged refer- ences to
"the owner of the Hudson track" afford no such  distinction for the
listener.5 So too, Carlucci v. Poughkeepsie  Newspapers, Inc., 442
N.E.2d 442 (N.Y. 1982), is of no  assistance to the lobbyists. In that
case the court rejected  the notion that a reader learning that the
38-year-old owner  of a grocery store had been arrested on gambling
charges  would perceive that statement to be "of and concerning" the 
corporation that in fact owned store, especially since a corpo- ration
cannot be arrested. By contrast, given the conduct at  issue and
context of the statements in the instant case, the  substitution of
the name of one corporation, Delaware North,  for another, Croixland,
as "the owner of the Hudson facility,"  presents the possibility that
a listener could perceive that the  true owner is connected to


Consequently, there are two ways that Croixland's com- plaint
sufficiently pled the "of and concerning" element.  First, the
complaint alleged that the lobbyists linked Croix- land to Delaware
North and Delaware North to organized  crime. Even if the lobbyists
misidentified the owner of the  facility, it did not remove the taint
to the true owner. This is  due in part to the fact that Delaware
North managed and  operated gambling enterprises in a number of
states, see  supra n.3, and assertions of its ownership did not rule
out  that it had a management agreement or affiliate relationship 




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n 5 Furthermore, Illinois employs the rule of innocent construc- tion,
see Grisanzio, at 809, and the District of Columbia does not,  see
Ollman v. Evans, 750 F.2d 970, 980 n.18 (D.C. Cir. 1984) (in  banc).


with Croixland that was consistent with Croixland's owner- ship of the
Hudson facility. In any event, the assertion that  "the owner" had mob
connections sufficed to place in jeopar- dy Croixland's opportunity
with the tribes inasmuch as mob  connections would doom the tribes'
application pending in the  Interior Department.


Second, the complaint alleged that Croixland was defamed  because
statements were made about "the owner of the  track" having
connections to organized crime without refer- ence to Delaware North.
It is undisputed, for purposes of  the motion to dismiss, that
Croixland is the owner of the  Hudson track. Compl. p 7. Viewing the
inferences most  favorably to Croixland, a reference to "the owner of
the  track" could reasonably be understood to mean Croixland  even if
the listener did not know Croixland by name. See  Harmon v. Liss, 116
A.2d 693, 695 (D.C. 1955). The defama- tion would arise from the
inference that the owner of the  track is connected to organized crime
where there is no  ambiguity that a particular entity owns the track.
Drawing  favorable inferences for the non-moving party, see Chandler, 
145 F.3d at 1360, and viewing the alleged remarks from the 
perspective of the listeners, see Kelly, 38 F.2d at 151, Caudle,  942
F. Supp. at 638, it follows that, in the context of discus- sions
about a pending tribal application at the Interior De- partment for
the sale of Croixland's track, the lobbyists'  defamatory statements
could lead listeners such as Depart- ment officials or the Chairman of
the Senate Committee on  Indian Affairs to believe that Croixland was
connected in  some manner to Delaware North or at least that whoever 
owned the Hudson track was connected to organized crime.


Furthermore, even assuming that references to Delaware  North as the
owner of the Hudson track were not "of or  concerning" Croixland, the
complaint still was not properly  dismissed. Under Federal Rule of
Civil Procedure 8(e), a  complaint may contain alternative theories,
and if one of the  theories can survive a Rule 12(b)(6) motion, the
district court  cannot dismiss the complaint.6 Croixland's complaint




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n 6 "A party may set forth two or more statements of a claim....  [and]
[w]hen two or more statements are made in the alternative 


ed an alternative theory, namely that defamatory statements  were made
directly about Croixland without reference to  Delaware North. This
appears in paragraph 26 of the com- plaint, referencing the meeting
with Senator McCain, para- graph 29, regarding the lobbyists' intent
to injure Croixland's  business reputation and cause the Department to
deny ap- proval of the proposed Hudson casino, and paragraph 38, 
concerning conspiracy, in which Croixland alleges numerous 
publications of the defamatory statement by the lobbyists  that the
owner of the Hudson facility had connections to  organized crime.


Accordingly, we reverse the order dismissing the complaint  and remand
the case for further proceedings.




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n and one of them if made independently would be sufficient, the 
pleading is not made insufficient by the insufficiency of one or more 
of the alternative statements." Fed. R. Civ. P. 8(e).