DEVIN G. NUNES v. CABLE NEWS NETWORK, INC.
No. 20 CV 03976-LTS-OTW
February 19, 2021
LAURA TAYLOR SWAIN
VERSION FEBRUARY 19, 2021
Plaintiff Devin G. Nunes (“Plaintiff” or “Nunes“) commenced this action in the Eastern District of Virginia against Cable News Network, Inc. (“Defendant” or “CNN“), asserting claims for defamation per se and conspiracy to defame. Plaintiff alleges that CNN (1) intentionally published and disseminated a demonstrably false news article and related reporting about him, and (2) engaged in a conspiracy to defame him and to damage his personal and professional reputation. (See Amended Complaint, docket entry no. 18 (the “AC“)).1 CNN moved to dismiss the AC for failure to state a claim upon which relief may be granted pursuant to
This case was transferred to the Southern District of New York pursuant to
The Court has jurisdiction of this action pursuant to
BACKGROUND
The following recitation of facts is drawn from the AC, and from documents relied upon by, integral to, or incorporated by reference into the AC.
Plaintiff Nunes, a member of the United States House of Representatives, is a citizen of California. He was born and raised in Tulare County, graduated from “Cal Poly San Luis Obispo,” and has represented California for over twenty years in different positions of public office. Nunes has served in the House of Representatives since 2003 and currently represents California‘s 22nd Congressional District. (AC ¶ 7.) Nunes is the Ranking Member of the House Intelligence Committee, which oversees matters pertaining to national security. (Id. ¶¶ 7, 51(f), (h), (k)). In his capacity as the Ranking Member of that committee, Nunes played a leading role during the House of Representatives’ first impeachment inquiry into U.S. President Donald J. Trump, which was announced on September 24, 2019. (Id. ¶¶ 20, 51(k).)
CNN operates a digital media network that publishes and disseminates news through a variety of platforms. CNN‘s network includes television broadcasts, the publication of articles online, and the operation of multiple social media accounts. Through these multimedia outlets, CNN
On November 22, 2019, CNN published an article written by reporter Vicky Ward. (Id. ¶ 34.) The article reported that Joseph Bondy, a lawyer for Lev Parnas, an indicted former associate of Rudy Giuliani, had stated that Parnas was willing to testify to Congress that Nunes had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin. (Motion at Ex. A, the “Ward Article“.) According to the article, Parnas was willing to testify that Nunes’ meetings were to discuss “digging up dirt” on former Vice President Joe Biden. (Id.)
At the same time that the article was published on CNN‘s digital network, Ward appeared as a guest on a CNN news program, Cuomo Prime Time, hosted by news anchor Chris Cuomo. (AC ¶ 37.) Ward and Cuomo discussed the article and allegedly “published further defamatory statements” about Nunes’ involvement in “looking for dirt on the Bidens.” (Id.) Ward‘s article was also disseminated broadly through both CNN organizational social media accounts, such as the accounts for CNN International and CNN Politics, and the individual accounts of CNN employees. (Id. ¶ 38.)
DISCUSSION
Defendant moves to dismiss the AC, arguing that Plaintiff has failed to state a claim because, by reason of his non-compliance with the retraction demand requirements of a California statute, he is limited to seeking special damages, and he has failed to plead such damages sufficiently. A complaint must be dismissed if it fails to state a claim upon which relief can be granted.
Applicable Law
Defendant argues that California law governs his defamation and conspiracy causes of action, and that Plaintiff‘s failure to comply with statutory notice and retraction demand requirements codified under
The parties do not dispute that, because Nunes initiated this lawsuit in Virginia, Virginia‘s choice of law rules govern the Court‘s determination as to the substantive state law that applies in this case.2 In determining the applicable law in tort actions generally, Virginia courts follow the doctrine of lex loci delicti. Under the
In cases that involve the instantaneous, multistate publication and broadcasting that the Internet, social media, and other forms of mass communication facilitate, determining the “place of the wrong” raises complex questions as to where publication occurs. The Virginia Supreme Court has not addressed how to determine the “place of the wrong” in such multistate defamation cases. Accordingly, the Court must predict how the Virginia Supreme Court would rule on this issue. See Gilmore, 370 F. Supp. 3d at 664 (citing Horace Mann Ins. Co. v. Gen. Star Nat. Ins. Co., 514 F.3d 327, 329 (4th Cir. 2008)).
In Gilmore, a district court in the Western District of Virginia, applying Virginia choice of law principles, considered the issue of the place of the wrong in the context of a claim arising from multi-state internet publication of allegedly defamatory material and predicted that, in such a case, the Virginia Supreme Court would define the place of publication as the state where the plaintiff is most injured as a result of the allegedly defamatory statements. Gilmore, 370 F. Supp. 3d at 665-66. The Gilmore court explained that Virginia applies the doctrine of lex loci delicti in determining the law applicable to tort actions such as ones for defamation. The court recognized that the “settled rule” is that the law of the place of the wrong governs in a multistate tort action and that, “in actions involving allegedly tortious publications, Virginia courts define the place of the wrongful act as the state where the content at issue was published.” Id. at 664. “Publication,” in this context, generally “occurs when the allegedly tortious content is ‘communicated to a third party’ so as to be ‘heard and understood by such person.‘” Id. Recognizing that the Supreme Court of Virginia had not yet addressed the determination of the place of the wrong in circumstances, such as internet publication or information dissemination, in which the allegedly defamatory information is “published” in multiple jurisdictions, the Gilmore court looked to the principles animating Virginia‘s traditional interpretation of lex loci delicti and practical considerations in predicting how Virginia‘s Supreme Court would apply the principle in a multistate Internet tort case. First, it stated that the “underlying rationale for Virginia‘s traditional interpretation of lex loci delicti as the place of the tortious action is that approach‘s ‘uniformity, predictability, and ease of application.‘” Id. at 665. In cases involving Internet publications, an approach that could apply the law of all of the places where third parties may be been exposed to the information, or the place of upload, or other locations connected with the dissemination of the information, disserves all three of these considerations. See id. (“If ‘publication’ is defined as the place where content is communicated
In this district, the court in Hatfill v. Foster applied Virginia choice of law principles to multistate libel claims against a publisher and republisher of an allegedly false article. 415 F. Supp. 2d 353, 364-65 (S.D.N.Y. 2006) (McMahon, J.). The Hatfill court observed that, although the Virginia Supreme Court had not specifically addressed where the “place of the wrong” would be in the context of multistate publications, “in practice, lex loci jurisdictions have shown remarkable consistency in how to resolve the question,” looking to “the law of the jurisdiction where the plaintiff suffered the greatest injury.” Id. at 364. Usually, that district is the one in which the plaintiff was domiciled, and the court held that the Virginia Supreme Court would “follow the lead” of such jurisdictions and define the place of injury as the district of the plaintiff‘s domicile, absent “strong countervailing circumstances.” Id. at 365.
Here, the Defendant argues that Nunes was primarily injured in California because it is the state of his domicile. Nunes is a citizen of California and was born, raised, and educated there. He has represented California citizens as an elected Member of Congress since 2003. Accordingly, the Defendant contends, any damage to Nunes’ personal and professional reputation would primarily occur in California, thus bringing into play California‘s retraction demand requirement and the ramifications of failure to comply with it.
Nunes makes two arguments against the application of California law, and in support of the application of either New York or Virginia law. In his supplemental briefing, Plaintiff argues that New York law should apply because CNN has a substantial presence there and Ward and Cuomo, who are generally located in New York, were present there when the statements were made. (See docket entry no. 43 at 5-6.) As a result, Plaintiff argues, the allegedly defamatory statements should be deemed to have been published exclusively in New York. As explained above, however, Virginia‘s choice of law rules govern and, in Virginia and other lex loci jurisdictions, the place of publication is normally the location where statements are heard and understood. See Katz, 332 F. Supp. 2d at 915. In a multistate, mass media defamation case, it is impractical to determine that specific location; lex loci jurisdictions typically look in multistate circumstances to the place where the plaintiff suffers the most harm, which is usually held to be the state in which the plaintiff is domiciled, presumably based on an assumption that
In his opposition brief, Plaintiff argues that Virginia law should apply to Plaintiff‘s claims because the statements at issue were “published” in Virginia. As support, Plaintiff cites, but does not discuss in detail, a recent federal district court case predicting that the Virginia Supreme Court would define the “place of the wrong” as “the place where the act of publication to the Internet occurred.” (Opp. at 9-10 (citing Cockrum v. Donald J. Trump for President, Inc., 365 F. Supp. 3d 652 (E.D. Va. 2019), case dismissed, No. 19-1398, 2019 WL 5152518 (4th Cir. July 5, 2019).)) The Cockrum court, in a case involving the unauthorized revelation of private information through WikiLeaks, rejected a focus on the plaintiff‘s domicile as resembling a “most significant relationship” analysis, and instead held that the Supreme Court of Virginia would likely hold that the location from which the information was posted to WikiLeaks was the place of publication. Because that place of publication could not be determined, the Cockrum court defaulted to the substantive law of the forum - Virginia. Id. at 669-70. Cockrum‘s holding appears to be in tension with the “vast majority” of lex loci delicti jurisdictions, which “look to the law of the jurisdiction where the plaintiff suffered the greatest injury.” Hatfill, 415 F. Supp. 2d at 364-65. Moreover, Plaintiff‘s Cockrum-based argument assumes that there would be one place of publication notwithstanding the multiple platforms at issue here, and thus disregards the “cumbersome application of a patchwork of state law” that would be implicated were the place of wrong to be defined as the place where the publication occurred, whether publication is defined as internet upload or receipt of the information by third parties, in a “multi-state Internet tort case[,]” particularly one that involves allegedly defamatory statements “published simultaneously in multiple state jurisdictions” by way of an evening news program and a variety of digital and social media platforms. Gilmore, 370 F. Supp. 3d at 665. The Court concludes that looking to a plaintiff‘s domicile in determining the governing law is consistent with the sound approach followed by most lex loci jurisdictions, as well as with the goals of “uniformity, predictability, and ease of application” that underpin the doctrine. Id.
Plaintiff further argues that, if the Court were to look to the place where he suffered the greatest injury, the laws of either Virginia or the District of Columbia should apply because that is where he performs his role overseeing the activities of the Intelligence Community. (See Opp. at 10 n.5.) Nunes does not proffer any additional facts that support his conclusory statement that he suffered substantial injury in either Virginia or District of Columbia, much less a greater injury there than in the home state that sends him to Congress as the representative of his district. His Amended Complaint alleges that he is a citizen of California and details his long family ties with, and extensive political service in and for, the state of California and its citizens. (See AC ¶ 7.)
Having considered persuasive authority and the legal and practical considerations underpinning Virginia‘s application of the lex loci doctrine, the Court concludes that the Virginia Supreme Court would likely “follow the lead of other lex loci jurisdictions and pinpoint the place of greatest harm in this multistate libel case in the district where the plaintiff was domiciled, absent strong countervailing circumstances.” Hatfill v. Foster, 415 F. Supp. 2d at 365. Plaintiff has not alleged any facts or “strong countervailing circumstances” that militate against finding that Nunes was injured primarily in California, the state of his domicile, and where he stands for election. He has proffered no facts from which the Court could find that there are extraordinary circumstances indicating that he suffered greater harm, i.e., that the allegedly defamatory material garnered greater third-party attention in a single jurisdiction other than his home state. Accordingly, the Court finds that California law governs Plaintiff‘s claims.
Plaintiff‘s Compliance with California Law
The California Civil Code limits a defamation plaintiff‘s recovery to special damages unless the plaintiff makes a specific written demand for a retraction within a short period of time. Specifically, the relevant California statute provides that, “[i]n any action for damages for the publication of a libel in a daily or weekly news publication, or of a slander by radio broadcast, plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast, as provided in this section.”
The AC, which was filed over two months after the original release of the Ward Article and the Cuomo Prime Time interview, does not allege that any written request was served upon CNN, much less a request that identified the statements that Nunes may have considered defamatory. Nor is there any allegation or proffer that such a demand was served at any time within the twenty-day period after Plaintiff became aware of the article and television program. Accordingly, Defendant argues, Plaintiff is limited in this case to a potential recovery of special damages.
Plaintiff advances four arguments against the application of the retraction statute to his defamation claims. First, he contends that the retraction statute does not apply to the article and television news program at issue because the statute on its face is limited to “daily or weekly news publications [and] radio broadcasts.” (Opp. at 6.) This argument is contrary to the plain language of the retraction statute, which specifically defines “‘[d]aily or weekly news publication’ [to] mean[] a publication, either in print or electronic form, that contains news on matters of public concern and that publishes at least once a week.”
Next, Plaintiff argues that the retraction statute does not apply to claims of defamation per se. Under common law, statements that constitute defamation per se include: 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
The retraction statute expressly applies to “any action for damages for the publication of a libel in a daily or weekly news publication,” providing that “plaintiff shall only recover special damages unless a correction is demanded and is not published or broadcast,” and does not distinguish or exempt claims of defamation per se.
Plaintiff further argues that the California retraction statute is a matter of procedure and that, therefore, the law of the transferor forum, Virginia, should apply instead. See Gasperini v. Center for Humanities, Inc., 518 U.S. 415, 427 (1996) (“[F]ederal courts sitting in diversity apply state substantive law and federal procedural law.“). In his opposition to CNN‘s motion to dismiss, Plaintiff relies on a handful of dictionary definitions to support this argument, asserting that the retraction statute
Finally, Plaintiff argues that the retraction statute is inapplicable because it violates Virginia‘s public policy by “impos[ing] an added statutory requirement in defamation cases that has never been adopted by the Virginia General Assembly.” (Opp. at 8.) Plaintiff offers nothing more to support this assertion, and does not even specify the public policy that he believes would be violated by the application of California law. A mere difference between the respective defamation laws of Virginia and California “does not, ipso facto, justify refusal to adhere to comity principles.” Chesapeake Supply & Equip. Co. v. J.I. Case Co., 700 F. Supp. 1415, 1421 (E.D. Va. 1988). The Virginia Supreme Court held many decades ago that “[t]here must be something immoral, shocking to one‘s sense of right, in order that comity be denied.” Tate v. Hain, 25 S.E.2d 321, 325 (Va. 1943). There is nothing “immoral” or “shocking” about the California retraction statute; the Court therefore finds no comity-based reason to decline to apply the California to Plaintiff‘s defamation claims.
For these reasons, the Court finds that
Pleading Special Damages
Defendant argues that the AC fails to state a claim upon which relief may be granted and must be dismissed because it does not sufficiently plead special damages, as required under California‘s retraction statute.
Plaintiff‘s AC fails to meet the minimum pleading requirements for special damages established by
While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff‘s defamation claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).
Plaintiff‘s defamation claim thus fails to meet the requirements of
Conspiracy Claims
Finally, the Defendant argues that Plaintiff‘s conspiracy claims must also be dismissed because the AC fails to plead facts sufficient to allege plausibly that CNN engaged in a conspiracy to defame and injure Nunes. Under California law, conspiracy “[s]tanding alone [] does no harm and engenders no tort liability.” Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 869 P.2d 454, 457 (Cal. 1994). A conspiracy “must be activated by the commission of an actual tort,” and a “bare agreement among two or more persons to harm a third person cannot injure the latter unless and until acts are actually performed pursuant to the agreement.” Id. (internal quotation marks omitted). Specifically, in defamation cases, “plaintiffs have not been allowed to circumvent the statutory limitation[s],” such as those imposed by the retraction statute, by “proceeding on a theory other than defamation.” Fellows v. Nat‘l Enquirer, Inc., 721 P.2d 97, 101 (Cal. 1986). In light of Plaintiff‘s failure to plead a viable defamation claim, there is no underlying tort to support a viable claim for conspiracy here.6
CONCLUSION
For the foregoing reasons, CNN‘s motion to dismiss the Amended Complaint is granted in its entirety.
This Memorandum Opinion and Order resolves docket entry no. 21. The Clerk of Court is respectfully directed to enter judgment dismissing the Amended Complaint and to close this case.
SO ORDERED.
Dated: New York, New York
February 19, 2021
/s/ Laura Taylor Swain
LAURA TAYLOR SWAIN
United States District Judge