318 F. Supp. 3d 983
S.D. Tex.2018Background
- Plaintiff Tu Nguyen (Texas resident) alleges numerous Viet Tan members, Radio Free Asia (RFA), and individuals published statements online and at press conferences accusing him of acting for or benefiting the Vietnamese Communist Party, harming his reputation and causing death threats.
- Core incidents: publications/posts in 2015–2016 (blogs, Facebook, press releases) and a May 1, 2018 Viet Tan press release referring to Tu using a Vietnamese term for a criminal "defendant."
- Tu sued for defamation, civil conspiracy, intentional infliction of emotional distress (IIED), and related claims (filed July 6, 2017); many defendants moved to dismiss under Rule 12(b)(6) and the Texas Citizens Participation Act (TCPA); several moved for lack of personal jurisdiction.
- After briefing and a hearing, individual defendants consented to jurisdiction; the court evaluated TCPA burden-shifting (defendants first show protected exercise; plaintiff must then produce clear and specific evidence of a prima facie case).
- Court dismissed most defendants under the TCPA (claims dismissed with prejudice) but denied dismissal as to Viet Tan for one specific May 2018 press release (plausibly defamatory per se for imputing criminality).
- The court overruled evidentiary objections, denied a pre-appeal bond request, and granted defendants’ requests for reasonable attorneys’ fees (amount to be briefed).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Personal jurisdiction (individuals) | Tu did not contest; opposed dismissal for other reasons | Several individual defendants moved to dismiss for lack of jurisdiction | Moot — all individual defendants consented to jurisdiction; §12(b)(2) motions denied as moot |
| TCPA applicability (free speech/association) | TCPA should not apply because statements are defamatory and not protected | Defendants: statements concerned matters of public concern (Vietnamese government/community) and association (Viet Tan) so TCPA applies | TCPA applies to defendants’ communications (RFA, individual groups, Viet Tan) as the statements related to public concern/right of association |
| Defamation prima facie under TCPA (truth, falsity, verifiability, opinion vs. fact) | Tu: publications implied he was a communist or sympathizer; offers affidavits and translations | Defendants: many statements are non-actionable opinions or unprovable implication; some statements outside limitations period; some republications by third parties | Most defamation claims dismissed under TCPA: RFA and individual defendants’ claims dismissed (opinions, non-verifiable or time-barred). Exception: Viet Tan’s May 2018 press release plausibly imputed criminality; claim against Viet Tan on that release survives |
| Statute of limitations / discovery rule & Defamation Mitigation Act (DMA) | Tu: discovery rule tolled accrual until he searched internet after death threats; DMA shouldn’t bar claims | Defendants: internet postings are discoverable when posted; DMA penalties apply | Court: discovery rule did not save many internet/Facebook postings (published >1 year before suit); DMA does not mandate dismissal (only limits exemplary damages) |
| Civil conspiracy (meeting of the minds) | Tu: circumstantial evidence, close relationships, coordinated timing show conspiracy | Defendants: no clear evidence of prior agreement; intracorporate rule; timing/association insufficient | Conspiracy claims dismissed—court finds plaintiff’s evidence insufficiently clear and specific to show meeting of the minds; intracorporate rule inapplicable to unincorporated Viet Tan but lack of proof fatal |
| Intentional infliction of emotional distress (IIED) | Tu: publications and threats caused severe emotional distress | Defendants: IIED is a gap-filler tort and cannot supplant defamation remedies | IIED claims dismissed — (1) they arise from allegedly defamatory statements (other remedies exist); (2) plaintiff failed to show the requisite extreme/outrageous conduct by clear and specific evidence |
| Bond request and sanctions | Tu opposed bond; argued no basis for sanctions | RFA requested $50,000 bond pending resolution and threats of sanctions under TCPA/Rule 11 | Motion for bond denied; court declined to impose sanctions but awarded defendants reasonable attorneys’ fees under TCPA upon dismissal |
Key Cases Cited
- Bell Atl. Corp. v. Twombly, 550 U.S. 544 (plausibility standard for Rule 12(b)(6) pleadings)
- Kaiser Aluminum & Chemical Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045 (5th Cir. 1982) (accept factual allegations as true on 12(b)(6))
- In re Lipsky, 460 S.W.3d 579 (Tex. 2015) (TCPA burden-shifting; clear and specific evidence standard)
- Brady v. Klentzman, 515 S.W.3d 878 (Tex. 2017) (defining "matter of public concern" under TCPA)
- WFAA-TV, Inc. v. McLemore, 978 S.W.2d 568 (Tex. 1998) (elements of defamation under Texas law)
- Milkovich v. Lorain Journal Co., 497 U.S. 1 (opinion vs. verifiable false statement in defamation law)
- McIlvain v. Jacobs, 794 S.W.2d 14 (Tex. 1990) (substantial truth defense)
- International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex. 1963) (proof of conspiracy may be circumstantial but cannot rest on speculation)