In Hatfill v. NY Times, the Fourth Circuit in an opinion by Judge Shedd, joined by Chief Judge Wilkins with Judge Niemeyer dissenting, held that the district court erred in dismissing for failure to state a claim the complaint of Dr. Steven J. Hatfill against the NYT and columnist Nicholas Kristof for what was published about him in connection with the anthrax investigation by the FBI. Kristof was dismissed from the case prior to the appeal for lack of personal jurisdiction.
Judge Shedd explained, first of all: "To the extent that the district court applied a stricter standard to Hatfill’s complaint than the ordinary standards under Rule 12(b)(6), that was error." Judge Shedd concluded the pleading was sufficient as to both defamation and intentional infliction of emotional distress under Virginia law and federal pleading standards. Judge Shedd also concluded that the whole of the refiled claim was timely, even though the defendant argued and the district court concluded that the refiled claim was broader than the original claim that was non-suited, as to which there was tolling of the limitations period under 8.01-229E3.
Judge Niemeyer in dissent concluded that the columns did not impute any criminality to the plaintiff, and that the defendants conduct was not that outrageous.
Interestingly, I think that on these two torts, defamation and intentional infliction of emotional distress, there is a very wide gap in the pleading standards under state and federal law - the state law is much more demanding on what is necessary to plead either claim, and much more than notice pleading is required in state court.