520 F.Supp.3d 549
S.D.N.Y.2021Background:
- Devin Nunes, a California congressman and Ranking Member of the House Intelligence Committee, sued CNN for defamation and conspiracy after a Nov. 22, 2019 CNN article (Vicky Ward) and a Cuomo Prime Time segment reporting a lawyer’s statement that an associate of Rudy Giuliani (Lev Parnas) would say Nunes met a Ukrainian official to "dig up dirt" on Joe Biden.
- Nunes filed in the Eastern District of Virginia; the case was transferred to the Southern District of New York and the court applied Virginia choice‑of‑law rules to predict which state’s substantive law governs.
- Applying lex loci delicti principles as interpreted in multistate Internet/publication cases, the court concluded the place of greatest injury is the plaintiff’s domicile and therefore California law governs the claims.
- Nunes did not serve a written retraction demand on CNN within California’s 20‑day statutory period (Cal. Civ. Code § 48a), so under that statute he is limited to recovering only special (economic) damages unless a timely demand was made.
- The Amended Complaint alleged a global damages figure and referenced “special damages” but failed to itemize or specify special damages as required by Fed. R. Civ. P. 9(g); the complaint also failed to plead facts supporting a conspiracy independent of the dismissed defamation claim.
- The court granted CNN’s motion to dismiss the Amended Complaint in its entirety and directed entry of judgment dismissing the action.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Choice of law — which state’s law governs? | Nunes: New York, Virginia, or D.C. govern because publication occurred there and injuries concentrated there. | CNN: Virginia choice‑of‑law rules point to plaintiff’s domicile (California) as place of greatest injury. | Court: California law governs (place of greatest injury = plaintiff’s domicile; no countervailing facts). |
| Applicability of CA retraction statute (Cal. Civ. Code § 48a) | Nunes: Statute doesn’t apply to CNN’s electronic publication/broadcast or to defamation per se; alternatively it’s procedural so Virginia law should apply; or it violates Virginia public policy. | CNN: § 48a applies to electronic daily news publications and limits recovery absent a timely written retraction demand. | Court: § 48a applies to electronic daily publications and to defamation per se; it is substantive (not procedural) and does not offend comity/public policy. |
| Sufficiency of pleading special damages under § 48a and Rule 9(g) | Nunes: Amended Complaint alleges "special damages," out‑of‑pocket expenses, and a $435,000,000 damages figure. | CNN: Plaintiff failed to plead the specific economic items or computations required by Rule 9(g); general round numbers are inadequate. | Court: Dismissed defamation claim for failure to plead special damages with the specificity required by Rule 9(g). |
| Civil conspiracy to defame — viable apart from defamation claim? | Nunes: Paragraphs identify timing, participants and scheme to defame. | CNN: Conspiracy claim depends on viable underlying tort; plaintiff failed to state a defamation claim and allegations are conclusory. | Court: Dismissed conspiracy claim — no underlying tort and complaint contains only conclusory allegations of agreement. |
Key Cases Cited
- Ashcroft v. Iqbal, 556 U.S. 662 (2009) (pleading must state a plausible claim; courts accept facts but not legal conclusions)
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) (parallel conduct and conclusory allegations insufficient to plead agreement)
- Dreher v. Budget Rent‑A‑Car Sys., Inc., 634 S.E.2d 324 (Va. 2006) (lex loci delicti governs tort choice of law)
- Gilmore v. Jones, 370 F. Supp. 3d 630 (W.D. Va. 2019) (in multistate internet publication cases place of wrong is where plaintiff is primarily injured)
- Hatfill v. Foster, 415 F. Supp. 2d 353 (S.D.N.Y. 2006) (lex loci jurisdictions usually apply law of plaintiff’s domicile absent strong countervailing circumstances)
- Kalpoe v. Superior Court, 166 Cal. Rptr. 3d 80 (Cal. Ct. App. 2013) (California retraction statute limits recoverable damages in media defamation cases when no timely retraction demand)
- Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454 (Cal. 1994) (conspiracy requires an underlying tort; bare agreement without tortious acts is insufficient)
- Fellows v. Nat’l Enquirer, Inc., 721 P.2d 97 (Cal. 1986) (plaintiffs cannot evade statutory limits on defamation recovery by pleading alternative theories)