563 F.Supp.3d 1048
S.D. Cal.2021Background
- Plaintiff Edward R. Gallagher, a former Navy SEAL, was court‑martialed on multiple wartime criminal charges arising from a 2017 Iraq deployment; he was largely acquitted and later retired.
- NYT reporter David Philipps published numerous articles, a podcast appearance, and an FX documentary between April–December 2019 based on leaked Navy investigative materials; Gallagher alleges many items were false or misleading and defamatory.
- Gallagher sued Philipps (and a separate federal defendant) asserting defamation (California and Florida law pleaded) and an intentional infliction of emotional distress (IIED) claim; Philipps moved to strike under California’s anti‑SLAPP statute or, alternatively, to dismiss under Rule 12(b)(6), and sought judicial notice of articles and the charge sheet.
- The district court granted Philipps’ request for judicial notice of 31 NYT articles, the government charge sheet, and 15 other news articles (but did not judicially notice a voluminous court‑martial transcript submitted without pinpointed reliance).
- Applying California law and the anti‑SLAPP framework (with the Rule 12(b)(6) standard for legal challenges), the court found Philipps’ publications were protected petition/free‑speech activity but adjudicated which specific challenged statements could survive because they were not privileged, were pleaded sufficiently, or raised factual disputes for the jury.
- The court: (a) dismissed with prejudice claims based on statements it found privileged (fair and true report/substantial truth/opinion/of‑and‑concerning failures), (b) struck certain paragraphs for inadequate identification and granted leave to amend those parts, (c) denied dismissal as to several statements where factual disputes remained, and (d) dismissed the IIED claim as duplicative of defamation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Judicial notice / incorporation by reference of articles and charge sheet | Articles and charge sheet form the basis of the claims; court may consider them. | RJN appropriate; public records/articles are judicially noticeable for their content existence, not truth. | Court GRANTED RJN for 31 NYT articles, the charge sheet, and 15 other articles; refused sua sponte notice of voluminous transcript absent specific reliance. |
| Choice of law: application of California vs. Florida law | Florida law should apply to statements after Gallagher moved to Florida. | California law applies because plaintiff failed to show a material conflict; forum choice rules apply. | Court APPLIED California law to all claims. |
| Applicability of California anti‑SLAPP statute in federal court and whether speech is protected | Gallagher argued anti‑SLAPP should not defeat meritorious claims here. | Philipps argued publications are in public forum re: public issue and thus protected. | Court HELD anti‑SLAPP applies in federal court; Philipps made prima facie showing (protected speech on a public issue), so plaintiff must show probability of prevailing. |
| Sufficiency of pleading: identification of statements and §48a retraction demand/special damages | Gallagher contends he identified statements and demanded corrections; alleged specific damages. | Philipps contends many allegations are vague, lacking §48a written correction demands, and fail to plead special damages. | Court STRUCK/ dismissed portions where Gallagher failed to identify specific statements or allege §48a compliance; allowed other damage allegations (e.g., counseling costs) to proceed. Leave to amend on identification. |
| Defamation defenses: fair and true report privilege, substantial truth, opinion, and "of and concerning" requirement | Gallagher contends articles were presented as factual and contained false/misleading implications not protected as opinion or fair report. | Philipps contends many challenged statements accurately captured the gist of proceedings (substantial truth), were fair reports of official proceedings, or were nonactionable opinion/not of and concerning Gallagher. | Court GRANTED dismissal/privilege for numerous challenged statements as either protected fair/true reports, substantially true, opinion, or not of and concerning Gallagher; DENIED as to several statements where factual disputes remain (e.g., assertions not clearly supported by charge sheet or investigative documents). |
| IIED claim duplicative of defamation | IIED pleaded additional outrageous conduct continuing after notice of falsity. | Philipps: IIED duplicates defamation and fails to allege extreme outrageousness or severe distress. | Court DISMISSED IIED claim as duplicative/superfluous (dismissal granted). |
Key Cases Cited
- Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988 (9th Cir. 2018) (limits on considering extrinsic materials on Rule 12(b)(6) via incorporation-by-reference and judicial notice)
- Lee v. City of Los Angeles, 250 F.3d 668 (9th Cir. 2001) (courts may judicially notice public records without converting 12(b)(6) motion)
- Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828 (9th Cir. 2018) (anti‑SLAPP motions in federal court: use Rule 12(b)(6) standard for legal challenges)
- Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590 (9th Cir. 2010) (anti‑SLAPP statute construed broadly)
- Ashcroft v. Iqbal, 556 U.S. 662 (U.S. 2009) (plausibility pleading standard under Rule 8/12(b)(6))
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (U.S. 2007) (pleading must state plausible claim)
- Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (U.S. 1991) (substantial truth doctrine in defamation)
- Blatty v. N.Y. Times Co., 42 Cal.3d 1033 (Cal. 1986) ("of and concerning" requirement limits defamation actions)
- Carver v. Bonds, 135 Cal. App. 4th 328 (Cal. Ct. App. 2005) (fair and true reporting privilege and allowance for slight inaccuracies)