416 F.3d 320; 2005 U.S. App. LEXIS 15471; 33 Media L. Rep. 2057 STEVEN J. HATFILL, Plaintiff-Appellant, v. THE NEW YORK TIMES COMPANY, Defendant-Appellee, and NICHOLAS KRISTOF, Defendant. No. 04-2561 UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT May 24, 2005, Argued July 28, 2005, Decided SUBSEQUENT HISTORY: Rehearing denied by, Rehearing, en banc, denied by: Hatfill v. New York Times Co., 427 F.3d 253, 2005 U.S. App. LEXIS 22397 (4th Cir., Oct. 18, 2005) PRIOR HISTORY: [*1] Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. (CA-04-807-A). Claude M. Hilton, Chief District Judge. Hatfill v. N.Y. Times Co., 2004 U.S. Dist. LEXIS 27530 (E.D. Va., Nov. 24, 2004) COUNSEL: Christopher J. Wright, HARRIS, WILTSHIRE & GRANNIS, L.L.P., Washington, D.C., for Appellant. JUDGES: Before WILKINS, Chief Judge, and NIEMEYER and SHEDD, Circuit Judges. Judge Shedd wrote the majority opinion, in which Chief Judge Wilkins joined. Judge Niemeyer wrote a dissenting opinion. OPINION BY: SHEDD OPINION: SHEDD, Circuit Judge: Dr. Steven J. Hatfill sued The New York Times Company ("The Times") and columnist Nicholas Kristof, alleging claims under Virginia law for defamation and intentional infliction of emotional distress. Hatfills claims arise from The Timess publication of a series of Kristofs columns concerning the federal
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investigation into the mailing of letters laced with anthrax in the fall of 2001. The district court dismissed Hatfills complaint under Fed. R. Civ. P. 12(b)(6), and Hatfill now appeals. We conclude that Hatfill has adequately pled the elements of his claims under Virginia law, and we reverse the ruling of the district court. I. In the fall of 2001, shortly after the terrorist attacks on the World Trade Center and the Pentagon, someone mailed letters laced with anthrax to several news organizations and members of Congress. n1 At least five people died as a result of contact with these letters, and the federal government launched an investigation to identify and capture the responsible party or parties. By May 2002, the Federal Bureau of Investigation ("FBI") had not made any arrests. n1 Because we are reviewing an order granting dismissal under Rule 12(b)(6), we accept as true the allegations in Hatfills complaint. See Papasan v. Allain, 478 U.S. 265, 283, 92 L. Ed. 2d 209, 106 S. Ct. 2932 (1986). [*3] Kristof writes a regular column for the editorial page of The Times. During the spring and summer of 2002, Kristof wrote several columns criticizing the FBIs investigation. From May through July 2002, Kristof focused his attention on the FBIs handling of information related to a man he called Mr. Z. According to Kristof, circumstantial evidence pointed to Mr. Z, who was widely suspected by other scientists of involvement in the anthrax mailings. In Kristofs opinion, the FBI had not moved aggressively enough against Mr. Z. In August 2002, Kristof identified Mr. Z as Dr. Steven J. Hatfill, a research scientist employed by the Department of Defense. A. Kristofs columns expressed opinions about the progress of the FBIs investigation based on factual assertions concerning Hatfill. In a column published on May 24, 2002, Kristof urged his readers to light a fire under the FBI in its investigation of the anthrax mailings since experts in the bioterror field are already buzzing about a handful of individuals who had the ability, access and motive to send the anthrax. According to Kristof, these experts suspected one middle-aged American who has worked for the United States military [*4] biodefense program and had access to the labs at Fort Detrick, Md. His anthrax vaccinations are up to date, he unquestionably had the ability to make first-rate anthrax, and he was upset at the United States government in the period preceding the anthrax attack. According to Kristof, the FBI had been painstakingly slow in its investigation of this person and unnamed others. J.A. 22. Kristof repeated this theme in a column published on July 2, 2002, writing that the bureaus lackadaisical ineptitude in pursuing the anthrax killer continues to threaten Americas national security by permitting him to strike again or, more likely, to flee to Iran or North Korea. As to the identity of this killer, Kristof offered the following: Some in the biodefense community think they know a likely culprit, whom I'll call Mr. Z. Although the bureau has polygraphed Mr. Z, searched his home twice and interviewed him four times, it has not placed him under surveillance or asked its outside handwriting expert to compare his writing to that on the anthrax letters. People in the biodefense field first gave Mr. Zs name to the bureau as a suspect in October, and I wrote about him elliptically [*5] in a column on May 24. He denies any wrongdoing, and his friends are heartsick at suspicions directed against a man they regard as a patriot. Some of his polygraphs show evasion, I hear, although that may be because of his temperament. If Mr. Z were an Arab national, he would have been imprisoned long ago. But he is a true-blue American with close ties to the U.S. Defense Department, the C.I.A. and the American biodefense program. On the other hand, he was once caught with a girlfriend in a biohazard hot suite at Fort Detrick, surrounded only by blushing germs. Kristof argued that the FBIs handling of this information reflected a casual approach to the investigation. With many experts buzzing about Mr. Z behind his back, its time for the F.B.I. to make a move: either it should go after him more aggressively, sifting thoroughly through his past and picking up loose threads, or it should seek to exculpate him and remove this cloud of suspicion. J.A. 23. Having called the FBI to account for the slow pace of its investigation, Kristof put a series of rhetorical questions to the FBI concerning Mr. Z particularly: Do you know how many identities and passports Mr. Z [*6] has and are you monitoring his international travel? I have found at least one alias for him, and he has continued to travel abroad on government assignments, even to Central Asia.J.A. 23. In his July 12, 2002 column, Kristof suggested that Mr. Z might have been involved in a previous attack against B'nai B'rith offices in April 1997: When someone expert in bio[]warfare mailed anthrax last fall, it may not have been the first time he had struck.J.A. 24-25. The next week Kristof wrote that Mr. Z had been interviewed by the FBI four times and that his home had been searched twice during the course of the investigation. Kristof noted that the Army had hired Mr. Z in 1997 to work with Ebola and Marburg viruses, even though he had previously worked with the armed forces of Rhodesia and apartheid South Africa. J.A. 27. Finally, on August 13, 2002, Kristof identified his Mr. Z as Dr. Steven J. Hatfill: Its time for me to come clean on Mr. Z.J.A. 28-29. As this column illustrates, Kristofs argument about the progress of the FBIs investigation of the anthrax mailings had much to do with specific allegations concerning Hatfill. B. On June 18, 2003, Hatfill filed suit against Kristof and The Times in Virginia state court. The complaint in that case alleged that Defendantss false and reckless public identification of Dr. Hatfill as the likely anthrax mailer imputed homicidal activity to Dr. Hatfill and impugned his good name as a physician and bio[]medical [*14] researcher, and thereby constituted, separately, defamation, defamation per se, and defamation by false light. In addition, the complaint alleged that Kristofs intentional public denunciation of Dr. Hatfill as the likely anthrax murderer regardless of whether Dr. Hatfill was guilty or innocent constituted intentional infliction of emotional distress. Hatfill sought at least $ 1 million in compensatory damages, the same amount in punitive damages, and costs. Hatfill never served this complaint on the defendants and instead took a voluntary nonsuit on March 9, 2004. Hatfill filed this lawsuit on July 13, 2004, asserting claims for defamation and intentional infliction of emotional distress. Count One alleges that Defendantss false and reckless public identification of Dr. Hatfill with the anthrax mailings, both directly and by implication from the manner in which his personal and professional background were presented in the Mr. ZƠ columns, constituted a false factual allegation of terrorist and homicidal activity and impugned Dr. Hatfills good name as a citizen, a physician and a bio[]medical researcher to a reasonable reader. Count Two alleges that each of eleven discrete [*15] factual statements in Kristofs columns constituted defamation per se that, in the mind of the reasonable reader, would tend to incriminate Dr. Hatfill in the anthrax mailings. Count Three alleges that Kristofs suggestion that Hatfill was responsible for the anthrax attacks of 2001 constituted intentional infliction of emotional distress. Hatfill seeks an unspecified amount of compensatory and punitive damages. Hatfill voluntarily dismissed Kristof as a defendant in this case when it became clear that the district court lacked personal jurisdiction over him. The district court later dismissed Hatfills complaint against The Times under Rule 12(b)(6). According to the district court, Count One failed as a matter of law because Kristofs columns, when read in their entirety and in context, could not reasonably be read as accusing Hatfill of being responsible for the anthrax attacks. The columns merely reported on an ongoing investigation that targeted Hatfill, and Kristof was careful to disavow any conclusion of Hatfills guilt. Count Two failed because the claims concerning discrete statements in Kristofs columns were not preserved in the state-court complaint and thus are time-barred. [*16] Even if they were timely, the district court ruled that none of these discrete factual allegations is sufficient to constitute defamation. Finally, the district court dismissed Count three of the complaint on the grounds that publication of commentary on a matter of public concern is not outrageous conduct and Hatfill had failed to allege sufficiently severe emotional distress. This appeal followed. II. We review de novo the district courts dismissal of Hatfills complaint. A complaint should not be dismissed under Rule 12(b)(6) unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). We must accept as true all well-pleaded allegations and view the complaint in the light most favorable to Hatfill. See Papasan, 478 U.S. at 283. The district court stated that this standard is to be applied with particular care in reviewing defamation claims. To the extent that the district court applied a stricter standard to Hatfills complaint than the ordinary standards under Rule 12(b)(6), that was error. A defamation [*17] complaint, like any other civil complaint in federal court, must provide a short and plain statement of the claim showing that the pleader is entitled to relief, Fed. R. Civ. P. 8(a)(2), sufficient to give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests, Conley, 355 U.S. at 47. While the Federal Rules of Civil Procedure require more specific pleading in certain cases, defamation cases are not among them. See Fed. R. Civ. P. 9(b). Thus, the usual standards of notice pleading apply in defamation cases such as this one. See Swierkiewicz v. Sorema N. A., 534 U.S. 506, 510-14, 152 L. Ed. 2d 1, 122 S. Ct. 992 (2002) (rejecting the argument that a heightened pleading standard should apply in employment discrimination cases); Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993) (rejecting the argument that a heightened pleading standard should apply in § 1983 actions against municipalities). n2 We review the allegations of Hatfills complaint to determine whether [*18] they state claims upon which relief may be granted under Virginia law. n3 n2 The leading commentators have recognized that the notion that a federal court can use a stricter pleading standard on a motion to dismiss a disfavored action has been cast in serious doubt indeed, it may well have been rendered invalid by the Supreme Courts 1993 decision in [Leatherman] and its 2002 decision in [Swierkiewicz] In both cases the Court makes it clear that Rule 8 announces a pleading standard that is applicable to all cases except those governed by Rule 9(b or a heightened pleading requirement in a federal statute. 5B Charles A. Wright & Arthur R. Miller, Federal Prac. & Proc.: Civil 3d § 1357, at 732 (3d ed. 2004). Count [*19] One alleges that The Timess publication of Kristofs columns defamed Hatfill by implying that Hatfill was involved in the anthrax mailings. Under Virginia law, a plaintiff seeking to recover for defamation per se must allege a publication of false information concerning the plaintiff that tends to defame the plaintiffs reputation. See Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1092 (4th Cir. 1993) (citing The Gazette, Inc. v. Harris, 229 Va. 1, 325 S.E. 2d 713 (Va. 1985)). The district court dismissed Count One because the columns are not reasonably capable of being understood to convey either an accusation that plaintiff is the anthrax mailer, or an intention by the author to make such an accusation. n4 n4 We take as true Hatfills allegations that both the implication of involvement in the anthrax mailings and the particular factual assertions (identified in Count Two) from which that implication arises are false. See Chapin, 993 F.2d at 1092 ("On a motion to dismiss a libel suit because of no actionable statement, the court must of course credit the plaintiffs allegation of the factual falsity of a statement."). Moreover, we note that all of the columns at issue concern Hatfill, even though only one of the columns actually identifies him by name. See The Gazette, Inc., 325 S.E. 2d at 738 (stating that a plaintiff alleging defamation need not show that he was mentioned by name in the publication and that it is sufficient to show that the publication was in its description or identification such as to lead those who knew or knew of the plaintiff to believe that the article was intended to refer to him"); see also WJLA-TV v. Levin, 264 Va. 140, 564 S.E. 2d 383, 390 (Va. 2002) (noting that a plaintiff may rely upon statements made before his actual identification, so long as such statements were made by the same defendant concerning the same subject or event over a short period of time). [*20]
The question whether a statement is capable of having a defamatory meaning is a question of law to be decided by the court. Yeagle v. Collegiate Times, 255 Va. 293, 497 S.E. 2d 136, 138 (Va. 1998). Under Virginia law, the following kinds of statements are actionable as defamation per se: (1) statements that impute to a person the commission of some criminal offense involving moral turpitude, for which the party, if the charge is true, may be indicted and punished, (2) statements that impute that a person is infected with some contagious disease, where if the charge is true, it would exclude the party from society, (3) statements that impute to a person unfitness to perform the duties of an office or employment of profit, or want of integrity in the discharge of duties of such an office or employment, and (4) statements that prejudice such person in his or her profession or trade. Carwile v. Richmond Newspapers, Inc., 196 Va. 1, 82 S.E. 2d 588, 591 (Va. 1954). it is a reasonable implication of this language, read in connection with the whole article, that the plaintiff is guilty of unethical and unprofessional [*24] conduct for his charges made against the Police Department; for which conduct the defendant suggests in a veiled but pointed way that the plaintiff could and should be subjected to disbarment proceedings .While the defamatory language does not in express terms charge the plaintiff with a breach of his professional honor, yet, when aided by the innuendo, operating within the scope of its legitimate functions, it does impute conduct tending to injure him in his profession. Id. looked directly down at a desk of a secretary named Maxine Wells, and her telephone. They had a telescopic lens camera pointed at that. And that is where the wiretap was subsequently found by the Democrats on that phone. Some members of the DNC were using the call girl ring as an asset to entertain visiting firemen. And to that end that they had a manila envelope that you could open or close by wrapping a string around a wafer. And in that envelope were twelve photographs of an assortment of these girls and then one group photograph of them. And what you see is what you get. It was kept in that desk of Ida Maxine Wells. Thus, the camera and all the rest of it. And what they were doing is as these people would be looking at the brochure, if you want to call it that, and making the telephone call to arrange the assignation[,] that was being wiretapped, recorded and photographed. Id. at 523. We concluded that these words were capable of defamatory meaning, namely, that Wells was a participant in a scheme to procure prostitutes. Id. Liddy had not explicitly accused Wells of complicity in the alleged call-girl operation,
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but he implied as much by asserting that the manila envelope was kept in her desk. n5 At this stage of the litigation, there is no evidence to show whether or to what extent Kristofs columns were, as the district court stated, accurate reports of [an] ongoing investigation. A court considering whether a statement is capable of defamatory meaning must confine itself to the allegedly defamatory statement and the fair inferences and innuendoes derived from it. See Schnupp, 457 S.E. 2d at 46; Carwile, 82 S.E. 2d at 591-92. In this case, the columns themselves show that Kristofs thesis was not that the official investigation targeted Hatfill; rather, it was that the official investigation should be targeting Hatfill more vigorously, if not exclusively, because the available evidence pointed to him. In describing all this evidence, Kristofs columns did not merely report otherss suspicions of Hatfill; they actually generated suspicion by asserting facts that tend to implicate him in the anthrax murders. Notwithstanding Kristofs attribution of certain allegations to unnamed sources, or his caution that readers should entertain a presumption of Hatfills innocence, or even his statement that the FBI should end this unseemly limbo by either exculpating Dr. Hatfill or arresting him, the unmistakable theme of Kristofs columns is that the FBI should investigate Hatfill more vigorously because all the evidence (known to Kristof) pointed to him. Just as a defendant cannot escape liability for making a false assertion of fact by prefacing that assertion with the words in my opinion, Milkovich v. Lorain Journal Co., 497 U.S. 1, 18-19, 111 L. Ed. 2d 1, 110 S. Ct. 2695 (1990), n6 neither can it escape liability simply by pairing a charge of wrongdoing with a statement that the subject must, of course, be presumed innocent, see Carwile, 82 S.E. 2d at 592 (stating that it matters not how artful or disguised the modes in which the meaning is concealed it if is in fact defamatory"). n6 The Court in Milkovich made clear that a statement may be defamatory even if it seems merely to state an opinion:If a speaker says, In my opinion John is a liar, he implies a knowledge of facts which lead to the conclusion that Jones told an untruth. Even if the speaker states the facts upon which he bases his opinion, if those facts are either incorrect or incomplete, or if his assessment of them is erroneous, the statement may still imply a false assertion of fact. Simply couching such statements in terms of opinion does not dispel these implications; and the statement, In my opinion Jones is a liar, can cause as much damage to reputation as the statement, Jones is a liar. [*30] For purposes of Rule 12(b)(6), the question is simply whether Kristofs columns are capable of defamatory meaning under Virginia law, i.e., whether they imputed to Hatfill the commission of a crime involving moral turpitude. They did, and much more forcefully than the statements at issue in Carwile and Wells. Because Kristofs columns, taken together, are capable of defamatory meaning under Virginia law, the district court erred in dismissing Count One. n7 n7 Contrary to the district courts assertion, it is immaterial whether Kristof actually intended to defame Hatfill. We stated in Chapin that a libel-by-implication plaintiff must make an especially rigorous showing where the expressed facts are literally true. The language must not only be reasonably read to impart the false innuendo, but it must also affirmatively suggest that the author intends or endorses the inference. 993 F.2d at 1092-93 (emphasis added). In this case, Hatfill alleges both that the inference that he was responsible for the anthrax mailings is false and that the factual assertions from which that inference arises are false. Since the district court was required to accept Hatfills assertion that the facts upon which Kristof based his defamatory charge were false, id. at 1092, Chapin is inapposite. [*31] Count Two alleges that each of eleven discrete factual assertions contained in Kristofs columns separately defamed Hatfill by incriminating him in the anthrax mailings. The district court dismissed this count on the grounds that (1) the statute of limitations barred any claims other than the claim asserted in Count One and (2) none of the eleven statements is independently capable of defamatory meaning. Hatfills defamation claims are subject to a one-year statute of limitations. See Va. Code Ann. § 8.01-247.1. Hatfills claims accrued when Kristofs columns were published between May and August 2002. See Jordan v. Shands, 255 Va. 492, 500 S.E. 2d 215, 218 (Va. 1998). Thus, Hatfill had until August 2003 (at the latest) to assert his defamation claims. Yet he did not file this complaint until July 2004. Under Virginia law, however, a plaintiff who voluntarily withdraws a state-court action and recommences it in federal court within six months may toll the statute of limitations as of the date he filed the initial state-court action. Va. Code Ann. § 8.01-229(E)(3). n8 Hatfill filed a lawsuit [*32] in state court on June 18, 2003; took a nonsuit on March 9, 2004; and commenced this action in federal court on July 13, 2004. Thus, the one-year statute of limitations was tolled as of June 18, 2003. n8 Section 8.01-229(E)(3) provides as follows: If a plaintiff suffers a voluntary nonsuit as prescribed in § 8.01-380, the statute of limitations with respect to such actions shall be tolled by the commencement of the nonsuited action, and the plaintiff may recommence his action within six months from the date of the order entered by the court, or within the original period of limitation, or within the limitation period as provided by subdivision (B)(1), whichever period is longer. This tolling provision shall apply irrespective of whether the action is originally filed in a federal or state court and recommenced in any other court, and shall apply to all actions irrespective of whether they arise under common law or statute. The district court ruled, however, that this tolling provision saved only the claim
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relating to the overall implication of Kristofs columns and not the claim relating to discrete false statements. According to the district court, since the initial complaint asserted only a single cause of action for defamation alleging that defendantss false and reckless public identification of Dr. Hatfill as the likely anthrax mailer imputed homicidal activity to Dr. Hatfill and impugned his good name, only that claim was saved by the tolling provision. n9 The Virginia Supreme Court distinguishes causes of action from rights of action: A right of action is a remedial right to presently enforce a cause of action. There can be no right of action until there is a cause of action. Stone v. Ethan Allen, Inc., 232 Va. 365, 350 S.E. 2d 629, 631, 3 Va. Law Rep. 1342 (Va. 1986) (internal citations omitted). Unless otherwise provided by statute, traditional statutes of limitations begin to run, not when a wrongful act is done, but when injury or damage results from it and the cause of action has thus ripened into a right of action. Roller, 384 S.E. 2d at 327-28. [*34] When Hatfill took a voluntary nonsuit in his original state-court action, he did so with respect to the set of operative facts underlying his complaint, namely, the defendantss publication of Kristofs columns. When he filed this lawsuit in federal court, the tolling provision saved all rights of action arising from that cause of action, including the right of action alleged in Count Two. See Odeneal v. Thompson, 63 Va. Cir. 71, 2003 WL 22518523, at *2 (Va. Cir. Ct. 2003). Thus, the district court erred in ruling that the statute of limitations barred Count Two of Hatfills complaint. The district court further erred in ruling that none of the eleven statements identified by Hatfill is independently capable of defamatory meaning. Broadly grouped, Hatfill complains about five sets of factual assertions in Kristofs columns. First, Hatfill complains about Kristofs assertion that he had the ability, access, and motive to make and send the anthrax. Second, Hatfill complains about Kristofs statement that he had access to an isolated residence where he gave Cipro to visitors. Third, Hatfill complains about the allegation that he had up-to-date anthrax vaccinations himself. [*35] Fourth, Hatfill complains about Kristofs charge that he failed three polygraph examinations in 2002. Finally, Hatfill complains about the allegation that he was once caught with a girlfriend in a biohazard hot suiteƠ at Fort Detrick surrounded only by blushing germs. Taken in the context of the columns in which they appear, and considered in light of Carwile, Schnupp, and Wells, all of these statements but one are capable of incriminating Hatfill in the anthrax mailings. With the exception of the final statement that Hatfill had been caught with a girlfriend in a biohazard hot suite at Fort Detrick these statements link Hatfill to anthrax generally and the investigation specifically and give rise to an inference that he was involved in the anthrax mailings. By contrast, the statement describing Hatfills activities with his girlfriend does not connect Hatfill to anthrax in any way. Although this statement might be capable of some other defamatory meaning, it does not incriminate Hatfill in the anthrax mailings and so is not actionable under this complaint. Count Three alleges that the publication of Kristofs columns constituted intentional infliction of emotional
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distress. The district court dismissed this count on two grounds: first, that publication of defamatory charges is not sufficiently outrageous conduct, and second, that Hatfill failed to allege severe emotional distress. Virginia law limits the kinds of conduct that will support a claim for intentional infliction of emotional distress. The Supreme Court of Virginia has stated
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that a defendant may be liable for intentional infliction of emotional distress only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community. Russo, 400 S.E. 2d at 162. It is not enough that the defendant acted with tortious or even criminal intent. Id. Nor does liability extend to mere insults, indignities, threats, annoyances, petty oppressions, or other trivialities. Gaiters v. Lynn, 831 F.2d 51, 53 (4th Cir. 1987) (applying Virginia law) (internal quotations omitted). The question whether the defendants conduct is so extreme and outrageous as to permit recovery is a question of law for the court. Womack, 210 S.E. 2d at 148. The Times also contends that Hatfill failed to allege severe emotional distress sufficient to permit recovery under Virginia law. Under Virginia law, liability arises only when the emotional distress is extreme, and only where the distress inflicted is so severe that no reasonable person could be expected to endure it. Russo, 400 S.E. 2d at 162. A plaintiff in Virginia state court must plead with the requisite degree of specificity the facts giving rise to his claim of severe emotional distress. Jordan, 500 S.E. 2d at 219. In Russo, for example, the Supreme Court of Virginia held that the plaintiffs allegations that she was nervous, could not sleep, experienced [*40] stress and its physical symptoms, withdrew from activities, and was unable to concentrate at work were insufficient to avoid a demurrer on her claim for intentional infliction of emotional distress. 400 S.E. 2d at 163. It was important to the court that the plaintiff had not alleged that she had any physical injury caused by the stress, that she sought medical attention, that she was confined at home or in a hospital, or that she lost income. Id. Hatfill did not allege his emotional distress in such specific terms, but Rule 8 applicable in this diversity case did not require him to do so. See Swierkiewicz, 534 U.S. at 513. The complaint alleges that as a result of defendantss defamation here at issue, Dr. Hatfill has suffered severe and ongoing loss of reputation and professional standing, loss of employment, past and ongoing financial injury, severe emotional distress and other injury. The complaint further alleges that publication of Kristofs columns inflicted grievous emotional distress upon Hatfill. These allegations are sufficient under Rule 8 to give The Times fair notice of what [Hatfill's] claim is and the grounds upon which [*41] it rests, id. at 512 (citing Conley, 355 U.S. at 47), and they are adequate to state the final necessary element of a claim for intentional infliction of emotional distress. Hatfills complaint adequately alleges claims for defamation and intentional infliction of emotional distress based on The Timess publication of columns implicating Hatfill in the anthrax mailings of 2001. Accordingly, we reverse the district courts order granting dismissal and remand this case for further proceedings consistent with this opinion. REVERSED AND REMANDED DISSENT BY: NIEMEYER
DISSENT: NIEMEYER, Circuit Judge, dissenting: (1) that the FBIs investigation of the anthrax murders was lackadaisical and unimaginative; These points were amplified by examples of suspicious circumstances, but nowhere does any column accuse Dr. Hatfill of committing the murders. The columns#&146; purpose was to put into operation prosecutorial machinery that would determine whether Dr. Hatfill committed the crimes and end this unseemly limbo by either exculpating Dr. Hatfill or arresting him. Id. |