This matter comes before the Court on five motions: (1) Defendant Patricia A. Negron's Motion to Dismiss for Failure to State a Claim ("Negron's Motion to Dismiss"),
The matters are ripe for disposition. The Court dispenses with oral argument because the materials before it adequately present the facts and legal contentions, and argument would not aid the decisional process. The Court exercises jurisdiction pursuant to
I. Procedural and Factual Background
A. Procedural Background
On September 1, 2017, Plaintiffs filed their original Complaint (the "Original Complaint") against Jason Goodman, Patricia A. Negron, and "Queen Tut, a woman believed to be known as Carla A. Howell." (Original Compl. 1, ECF No. 1.) Goodman, proceeding pro se , filed an Answer (the "Original Answer"),
On January 23, 2018, Plaintiffs requested entry of default as to "Queen Tut a/k/a Susan A. Lutzke." (ECF No. 30.) Because the Original Complaint did not name as a defendant "Susan A. Lutzke," the Court denied Plaintiffs' request for entry of default. (See Mar. 9, 2018 Order, ECF No. 35.) On March 25, 2018, Plaintiffs moved to amend their Original Complaint, (ECF No. 36), and on April 11, 2018, the Court granted the motion, (ECF No. 38).
On April 13, 2018, Plaintiffs filed the Amended Complaint. (ECF No. 39.) The Amended Complaint names three defendants: Jason Goodman, Patricia A. Negron, and "Susan A. Lutzke a/k/a/ 'Queen Tut' " (collectively, "Defendants"). (Am. Compl. 1, ECF No. 39.) Plaintiffs state eight counts against each defendant as follows:
Count I: Defamation per se (the defamation claim);
Count II: Insulting words, in violation of Virginia Code § 8.01-459 (the insulting words claim);
Count III: Business conspiracy, in violation of Virginia Code § 18.2-49910 andVirginia Code § 18.2-500 11 (the statutory conspiracy claim);
Count VI: Intentional Infliction of Emotional Distress;
Count VII: Personal trespass by computer in violation of Virginia Code § 18.2-152.712 and computer harassment in violation of Virginia Code § 18.2-152.7:113 (the computer claim);
Count VIII: Unauthorized use of name and picture in violation of Virginia Code § 8.01-4014 (the unauthorized use claim); and,
Count IX: Permanent injunction.
Plaintiffs seek $ 6,000,000 in compensatory damages; $ 18,000,000 as "[t]hree-fold [d]amages in accordance with § 18.2-500" of the Virginia Code; $ 350,000 in punitive damages; prejudgment and postjudgment interest; and attorney's fees and costs. (Am. Compl. 96.)
In response to the Amended Complaint, Goodman filed Goodman's Motion to Dismiss and the Motion to Sever. On the same day, Goodman filed an Answer.
On September 3, 2018, Plaintiffs requested entry of default as to Lutzke. (ECF No. 65.) On September 6, 2018, the Clerk entered default as to Lutzke. (ECF No. 66.)
Various non-parties have also submitted documents in this matter. George D. Sweigert, a non-party proceeding pro se ,
Additionally, on March 15, 2019, non-party Jacqulyn Weaver
B. Summary of Allegations in the Complaint
This actiоn arises out of a series of allegedly defamatory statements that Defendants made against Plaintiffs beginning on June 15, 2017. (Am. Compl. 20.) The Court first provides context about the relevant parties to the action, followed by a summary of Defendants' actions and statements.
1. Plaintiffs: Steele and the Earth Intelligence Network
Steele describes a long list of professional accomplishments, presenting himself as a former Central Intelligence Agency ("CIA") operations officer, a former civil servant, and the holder of various advanced degrees. (Am. Compl. 6.) Steele works to "redirect[ ] the craft of intelligence away from spies and secrecy enabling war and waste towards open sources and methods favorable to peace and prosperity." (Id. 8.) In support of this work, Steele formed and operated a company
a legitimate full-time effort to unrig the system, "to restore integrity and truth to governance, with the informed will and wisdom of We the People at its heart", and "to enjoy a transparent government by 2022, that operates with honesty, respecting our planet and the human spirit, so that we may create a healthy, prosperous America rooted in truth with peace as our shared condition[.]"
(Id. 87-88 (quotations in original without attribution).) In support of this mission, Plaintiffs "acquired and professionally wrapped an RV, and began a national tour of the [c]ountry in furtherance of the 'Summer of Peace' campaign."
Public donations fund the #UNRIG campaign, and EIN "is fully transparent and accountable to its donors." (Id. 9.) Plaintiffs aver they "account[ ] for every penny spent in a budget that was posted online." (Id. 86 (providing a weblink).) Using the donations, Plaintiffs "actively promote[ ] the mission of #UNRIG and communicate[ ] with all donors." (Id. )
2. Defendants: Goodman, Negron, and Lutzke
According to Plaintiffs, Goodman operates "various social media properties" under the name "Crowdsource The Truth" or "CSTT."
According to Plaintiffs, Lutzke adopted the pseudonym "Queen Tut" as her online persona, using an image of an Egyptian bust
3. Defendants' Actions Through September 1, 2017
Steele planned on appearing in a CSTT live-stream broadcast on June 15, 2017, in which Goodman and Negron would interview Steele. (Am. Compl. 18.) The day before the scheduled interview, on June 14, 2017, Goodman and Negron published a video that reported, seemingly falsely, that a dirty bomb was present on a ship.
As part of this "smear campaign," Goodman, Negron, and Lutzke produced and published at least a dozen videos between June 15, 2017 and September 1, 2017. On June 16, 2017, Goodman and Negron produced and appeared in a video in which Goodman states he "made a big mistake" with Steele. (Id. 21 (quoting Goodman).) In a second video produced and published on the same day, in which both Goodman and Negron appear, Goodman makes disparaging remarks about Steele. Plaintiffs describe the video as "scripted ahead of time," after Goodman and Negron "discussed
On June 26, 2017, Lutzke appeared in a CSTT video as Queen Tut to accuse Steele of fraud. The June 26, 2017 video description provides that "Confidential Crowdsource contact Queen Tut believes [Steele] has perpetrated a deliberate fraud and details her position in this phone call." (Id. 24 (purporting to quote Goodman).) The Amended Complaint includes a screenshot of the video, showing a stillshot of a man on the left (Goodman) and a photo of an Egyptian bust meant to represent Lutzke. In this video, Goodman states, "I question if he,[sic] if any of his credentials are authentic. I think he's just a cheap con man." (Id. 25 (quoting the June 26, 2017 video).) In the same video, Goodman states that Steele "knows it's a useless campaign[;] he's just trying to suck $ 250,000 out of people." (Id. (quoting the June 26, 2017 video).) Lutzke agrees, stating, "He's really conning people and he's trying to manipulate me." (Id. (quoting the June 26, 2017 video).) Goodman accuses Steele of being "involved in a pretty serious financial scam" and of "defrauding people across state lines," stating that "a Rico
Between June 15, 2017 and September 1, 2017, Goodman, Negron, and Lutzke published dozens of similar videos. The Amended Complaint provides great detail, including links, screenshots, and direct quotations excerpted from these videos. Goodman appears in all of the videos and is the primary speaker. Plaintiffs allege that Negron co-produced most of the videos, also appearing in many of them, thereby contributing to the insults against Steele and #UNRIG. Lutzke makes a guest appearance on many videos, insulting Steele directly. Lutzke also published derogatory information about Steele on her Twitter account.
Defendants' exact invectives vary over the course of the videos, sometimes focusing on personal insults against Steele
In addition to these videos, the Amended Complaint describes several other online platforms through which Defendants publish disparaging comments regarding Plaintiffs, including Twitter and email. On August 11, 2017, for example, Goodman emailed Dr. Cynthia Ann McKinney,
Although some inconsistencies exist,
4. Defendants' Actions After September 1, 2017
Plaintiffs allege that a shift occurred after the filing of this action. While Goodman and Lutzke intensified their attacks against Plaintiffs, Negron ceased to participate in any subsequent video productions or appearances (with one exception). Although Plaintiffs concede Negron ceased her conspiring activities regarding video production with Goodman, Plaintiffs maintain that Negron and Lutzke continued to conspire to defame Plaintiffs through Twitter publications. Negron also limited her role to republishing some of Lutzke's statements.
Between September 1, 2017 and December 2017,
Defendants also acknowledge and discuss the ongoing litigation in their videos. In a September 23, 2017 video, Goodman and Lutzke "accuse [Steele] of engaging in a 'conspiracy to suppress free speech.' " (Id. 55.) Lutzke states that "we were the ones who revealed his basic fraud that he's been perpetuating for a number of years using this electoral reform act." (Id. (quoting a September 23, 2017 video).) In the same video, Goodman suggests that Steele "is trying to raise money so he can buy RVs so he can crash them and buy soft drinks and give gifts." (Id. 56 (quoting a September 23, 2017 video).) Lutzke states, "Steele is in a conspiracy to take down Crowdsource the Truth." (Id. 57 (quoting a September 23, 2017 video).) In a different video featuring Goodman and Lutzke, Goodman states "we have very solid evidence of fraud." (Id. 60 (quoting a September 30, 2017 video).) Goodman describes himself as "happy" about the lawsuit "go[ing] forward" because the lawsuit will expose "charity fraud and tax fraud." (Id. 62 (quoting an October 7, 2017 video).)
Knowledge of the lawsuit does not appear to deter Goodman or Lutzke from attacking Plaintiffs.
if someone tries to take a tax deduction on their donation to the Earth Intelligence Network, they themselves could be in legal jeopardy - you should consult your accountant and an attorney before you try to take a tax deduction on any donation made to this fraudulent 501c3. This is a public service announcement to members of the crowdsource community who have been victims of fraud - fraud executed by Robert David Steele.
(Id. ) On November 27, 2017, Goodman published a video containing an image of Steele's face superimposed onto a farm animal's rear end. (Id. 65 (containing a screenshot from the video).) CSTT viewers can purchase t-shirts and coffee mugs featuring this image. (Id. 66.)
In a December 27, 2017 video featuring Goodman, Negron,
Plaintiffs contend that some of the videos incite violence against Steele. In one video featuring Goodman and Lutzke, Lutzke directly addresses Steele: "you're a person who needs to be put down." (Id. 57 (quoting a September 23, 2017 video).) According to Plaintiffs, Goodman interjects to say "legally speaking," and Lutzke then says: "legally speaking[,] absolutely legally speaking[,] that you need to be put in a place where you can no longer affect human beings." (Id. (quoting a September 23, 2017 video).) Goodman and Lutzke published a different video that includes an image of an RV exploding. (Id. 59 (containing a screenshot of a September 30, 2017 video).) The side of the flaming RV displays a picture of Steele and McKinney. This image also includes a cartoon figure holding a rifle, with an image of Steele's face superimposed onto the cartoon, standing in the foreground. Plaintiffs further aver that Goodman and Lutzke "disclosed [Steele's] home address to their viewers and subscribers, and used Google Maps to show a photo of [Steele]'s home." (Id. )
Since December 2017, Goodman, acting alone, has cоntinued to make allegedly defamatory statements against Plaintiffs. For example, he published at least four videos between February 2018 and April 13, 2018, the date of the filing of this Amended Complaint. (Id. 70- 73.) Goodman repeats similar accusations of fraud present in earlier videos. (Id. 73.)
Lutzke, similarly, has published, through Twitter and videos, negative commentary about Plaintiffs since December 2017. In one Twitter post, Lutzke calls Steele "the greatest plagiarizer and liar on the internet." (Id. 78.) And according to Plaintiffs, Lutzke "has now escalated the falsehoods to and [sic] include accusations that [Steele] protects pedophiles, defends child traffickers, wants JIHAD in the United States, has committed 'espionage' and 'treason', and [sic] etc." (Id. 75.)
Negron has neither produced nor appeared in any more videos since December 2017. Though not creating content, Plaintiffs aver that Negron continued to conspire with Lutzke to defame Plaintiffs, and that Negron republished some of Lutzke's Twitter publications as part of this conspiracy. (Id. 13.)
II. Analysis: The Motions to Dismiss
A. Standard of Review: Rule 12(b)(6) Motion to Dismiss
"A motion to dismiss under Rule 12(b)(6) tests the sufficiency of a complaint; importantly, it does not resolve contests surrounding the facts, the merits of a claim, or the applicability of defenses." Republican Party of N.C. v. Martin ,
A complaint achieves facial plausibility when the facts contained therein support a reasonable inference that the defendant is liable for the misconduct alleged. Twombly ,
B. The Court Will Grant in Part and Deny in Part Negron's Motion to Dismiss
Negron's Motion to Dismiss challenges all nine counts of the Amended Complaint. According to Negron, "the Amended Complaint cites only five actual statements in total made by" her, none of which can form the basis of a claim against her. (Mem. Supp. Negron Mot. Dismiss 2, ECF No. 48.) Negron attempts to distinguish her conduct from that of her co-defendants, arguing she cannot be liable for their actions in this case. The Court concludes that Plaintiffs allege sufficient facts for five counts to survive against Negron's Motion to Dismiss: the defamation claim; the statutory conspiracy claim; the common law conspiracy claim; the tortious interference claim; and the intentional infliction of emotional distress claim. The Court will grant Negron's Motion to Dismiss as to the four other claims raised against her: the insulting words claim; the computer claim; the unauthorized use claim; and the request for a permanent injunction.
1. The Defamation Claim Survives Negron's Rule 12(b)(6) Challenge
a. Legal Standard: Defamation per se
In Virginia,
A statement is defamatory per se if, among other circumstances not pertinent here, it "imputes an unfitness to perform the duties of a job or a lack of integrity in the performance of the duties" or "prejudices the party in [his or] her profession or trade." Yeagle v. Collegiate Times ,
"Pure expressions of opinion, not amounting to 'fighting words,' cannot form the basis of an action for defamation." Chaves v. Johnson ,
Nonetheless, "[d]efendants can be held liable for defamation 'when a negative characterization of a person is couрled with a clear but false implication that the [speaker] is privy to facts about the person that are unknown to the general [listener]." Baylor v. Comprehensive Pain Mgmt. Ctrs., Inc. , No. 7:09cv00472,
Although the Supreme Court of the United States has not provided a categorical protection for all expressions of opinion,
The requisite intent a plaintiff must prove in a defamation action depends upon the plaintiff's status as a public or private figure and the damages sought. Suarez ,
b. Plaintiffs' Defamation Claim Survives Challenge
Negron challenges the defamation claim, stating that her statements "were made in the spirit of perceived legitimate criticism, were mere opinion, and are not defamatory." (Mem. Supp. Negron Mot. Dismiss 9.) Specifically, Negron argues that Plaintiffs' allegations fail to meet two prongs of Virginia's defamation test because these
First, Negron argues that the statements attributed to her constitute non-actionable opinions.
Negron referred to Steele as "a serious con man" and called the UNRIG project "a serious fraud. I mean that it is a fraud. No question." (Am. Compl. 46 (quoting an August 26, 2017 video).) Negron claims these constitute opinion statements which cannot be proven true or false. The Court disagrees.
In Choi v. Kyu Chul Lee , the Fourth Circuit considered whether the words "gangster" or "thug" could form the basis of a defamation suit.
Similarly, the context here drives the Court's conclusion that Negron's statements constitute actionable statements. References to Steele as a "con man" and to UNRIG as a "fraud" do not exist in a vacuum or only as part of a litany of generic insults. Instead, the context in which Negron made the statements unmistakably indicates that Negron joined in and adopted as her own Goodman and Lutzke's accusations that Plaintiffs used EIN donations to personally benefit Steele, thus defrauding CSTT viewers who donated to EIN (through UNRIG). Because Plaintiffs contend that they accounted for "every penny" donated to EIN, (Am. Compl. 86), Negron's statements can be proven true or false, rendering them actionable. See Harrell ,
Because Steele is a publiс figure, to prevail in their defamation claim, Plaintiffs must ultimately prove that Negron made the statements with " 'actual malice'-that is, with knowledge that it was false or with reckless disregard of whether it was false or not." N.Y. Times Co. ,
According to Negron, Plaintiffs do not plead facts "to establish anything other than that Ms. Negron believed the truth of her statements." (Mem. Supp. Negron Mot. Dismiss 8.) But Plaintiffs plead just enough facts, at this deferential stage, to support the conclusion that Negron acted with reckless disregard for the truth of her statements. Plaintiffs contend that "Defendants' own videos...demonstrate that they actively reviewed Plaintiffs' websites and learned all about the #UNRIG campaign." (Am. Compl. 87.) Plaintiffs contend that the #UNRIG campaign "accounted for every penny spent in a budget that was posted online." (Id. 86 (providing a link).) These minimal allegations suffice-at least at this stage-to plausibly show that that Negron made these statements with actual malice. Jordan ,
2. The Court Will Dismiss the Insulting Words Claim
In Virginia, "[a]ll words shall be actionable which from their usual construction and common acceptance are construed as insults and tend to violence and breach of the peace." VA. CODE ANN. § 8.01-45. Even drawing all reasonable inferences in
3. The Statutory Conspiracy Claim Survives
Virginia law provides a civil cause of action for "[a]ny two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of...willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever...." VA. CODE ANN. §§ 18.2-499(A) ; 18.2-500 (providing damages and fees). To prevail on this claim, Plaintiffs must ultimately prove, by clear and convincing evidence, that (1) Negron "attempted to conspire with one or more of the other defendants to harm [Plaintiffs]; (2) [Negron] acted with legal malice towards [Plaintiffs]; and (3) the conspiratorial actions of [Negron] and one or more of the other defendants caused [Plaintiffs] to suffer damages."
In challenging this claim, Negron states that "Virginia law mandates that 'there can be no conspiracy to do an act the law allows.' " (Mem. Supp. Negron Mot. Dismiss 17-18 (quoting Hechler Chevrolet v. Gen. Motors Corp. ,
Negron also states that the Amended Complaint "provides no substantive allegations regarding a conspiracy between Co-Defendants and Ms. Negron outside оf her appearance on Goodman's video[s]." (Id. 18.) But Plaintiffs allege that "Goodman, Negron and Lutzke intentionally set out to destroy Plaintiffs' reputation with falsehoods." (Am. Compl. 86.) To this end, Goodman and Negron co-produced a number of videos containing defamatory statements about Plaintiffs. Goodman and Negron "scripted" the videos ahead of time. (Id. 22.) According to Plaintiffs, Goodman and Negron "discussed the subject matter and content via email, telephone and/or text message. They agreed upon the thesis, theme and tone. Goodman and Negron [spoke] with one voice."
4. The Common Law Conspiracy Claim Survives
To allege common law conspiracy, a plaintiff "must show 1) an agreement between two or more persons; 2) to participate in an unlawful act[...]; 3) an injury caused by an unlawful overt act performed by one of the parties to the agreement; and 4) that the overt act was done pursuant to and in furtherance of the common scheme." Skillstorm ,
Negron argues generally, without challenging specific elements, that the Amended Complaint fails to satisfy the test for common law conspiracy. As described above, Plaintiffs adequately plead (1) the existence of an agreement between Negron and Goodman (2) to defame Plaintiffs, resulting in the production and publication of allegedly defamatory videos that (3) caused Plaintiffs damages. Negron's participation in the production and publication of the videos constitutes an overt act to satisfy the fourth and final prong of the common law conspiracy claim. Because Plaintiffs plead sufficient facts to establish each element of the test, the common law conspiracy claim survives Negron's Rule 12(b)(6) challenge.
5. The Tortious Interference Claim Survives
To prevail on a claim for tortious interference with a contractual relation in Virginia, a plaintiff must prove four elements: "(1) the existence of a valid contractual relationship[...]; (2) knowledge of the relationship[...] on the part of the interferor; (3) intentional interference inducing or causing a breach or termination of the relationship[...]; and (4) resultant damage to the party whose relationship...has been disrupted." Commerce Funding Corp. v. Worldwide Sec. Servs. Corp. ,
Negron argues that Plaintiffs cannot base their claim "on a general, unspecified loss of customers or viewers." (Mem. Supp. Negron Mot. Dismiss 19.) Focusing on the general "harm to nondescript donors or subscribers," Negron argues that this claim must fail due to a lack of specificity. (Id. ) Negron's analysis misapplies the applicable standard to the facts.
Plaintiffs allege that Defendants, including Negron, interfered with a contract that existed between Plaintiffs and donors. Specifically, donors provided funds to EIN in exchange for EIN carrying out its mission. For the purpose of Negron's Motion to Dismiss, this plausibly alleges the existence of a contractual relationship.
6. The Intentional Infliction of Emotional Distress Count Survives
Under Virginia law, a plaintiff can only recover for intentional infliction of emotional distress "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." Daniczek v. Spencer ,
Negron's Motion to Dismiss argues that "Steele fails to state actionable conduct against Ms. Negron [based on Negron's arguments against the defamation claim], and accordingly[,] his piggyback emotional distress claim cannot succeed." (Mem. Supp. Negron Mot. Dismiss 23.) Having found that the defamation claim may proceed, this argument cannot prevail.
Negron argues that Steele failed to adequately plead facts in support of his claim for emotional distrеss because he does not speak to the severity of his distress. (Mem. Supp. Mot. Dismiss 23.) The Court finds otherwise. Though minimal, the Amended Complaint contains sufficient allegations for purposes of the instant motion. Plaintiffs contend that, as a result of Defendants' actions, Steele experienced "pain and suffering, physical injury,
At this early stage, the Court cannot conclude that Plaintiffs could not prevail on this claim. Plaintiffs sufficiently plead facts in support of their claim for intentional infliction of emotional distress. The Court will deny Negron's Motion to Dismiss with regard to this claim.
7. The Court Will Dismiss the Computer Claims, the Unauthorized Use Claims, and the Permanent Injunction as to Negron
Negron challenged Count VII (the computer claim), Count VIII (the unauthorized use claim), and Count IX (seeking a permanent injunction) as failing to state a claim. In response, Plaintiffs do not oppose dismissing these claims agаinst Negron. Plaintiffs concede that "[t]hese Counts are more properly directed to Goodman and Lutzke." (Resp. Negron Mot. Dismiss 29, ECF No. 53.) Based on the parties' agreement, and finding it proper to do so, the Court will dismiss these three counts against Negron.
C. The Court Will Deny Goodman's Motion to Dismiss
Goodman, proceeding pro se , also challenges the Amended Complaint. Unlike Negron's Motion to Dismiss, Goodman does not challenge all nine counts pled against him. Even liberally construing Goodman's Motion to Dismiss, as the Court must when evaluating a pro se party's motion, Goodman raises three arguments challenging the Amended Complaint. See Deabreu v. Novastar Home Mortg., Inc. ,
As to his first challenge under the Immunity Provision, Goodman cannot avail himself of its protection on this record. By its terms, the Immunity Provision "shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false." VA. CODE ANN. § 8.01-223.2.
But the Amended Complaint is replete with assertions that Goodman made the multitude of statements with actual knowledge of their falsity. Plaintiffs allege that, "[d]espite their actual knowledge to the contrary, [Defendants] published false and defamatory statements that #UNRIG was a 'scam' and that Plaintiffs were defrauding and stealing from donors." (Am. Compl. 88.) Defendants, including Goodman, "intentionally ignored online evidence...that proved their statements about [Steele] were false." (Id. )
Specifically, Plaintiffs contend that "Defendants' own videos...demonstrate that they actively reviewed Plaintiffs' websites and learned all about the #UNRIG campaign." (Am. Compl. 87.) Plaintiffs contend that the #UNRIG campaign "accounted for every penny spent in a budget that was posted online." (Id. 86 (providing a link).) These allegations plausibly support a conclusion that Goodman made the statements with knowledge of their falsity or with a reckless disregard as to their veracity. See Iqbal ,
Second, Goodman argues that he lacked actual malice. To show actual malice, Plaintiffs, as public figures, must ultimately prove that Goodman made the statement "with knowledge that it was false or with reckless disregard of whether it was false or not." New York Times Co. ,
But at this early juncture, the allegations against Goodman support a finding that Plaintiffs adequately allege malice on behalf of Defendants, including Goodman. Goodman argues that "[f]ederal courts also routinely grant anti-SLAPP motions in cases involving the media where, as here, the reporter's newsgathering plainly demonstrates a lack of actual malice." (Goodman Mot. Dismiss 4, ECF No. 45.) But taking Plaintiffs' well-pleaded allegations as true, the Court concludes that Plaintiffs allege facts sufficient to support their claim that Goodman made his statements with actual malice.
Plaintiffs aver that Goodman undertook this "smear campaign" as "retaliation" for Steele distancing himself from Goodman. (Am. Compl. 20.) Immediately after Steele cancelled an interview appearance on Goodman's CSTT production, Goodman produced and published dozens of videos insulting Steele and EIN and accusing them of fraud. According to Plaintiffs, Steele enjoyed a pristine reputation before these videos. This plausibly supports Plaintiffs' claim that Goodman acted in retaliation after Steele canceled a scheduled interview.
Plaintiffs contend that, despite familiarity with Plaintiffs' websites and access to Plaintiffs' publicly-available online financial records, Defendants used these videos to claim- without evidence-that Plaintiffs defrauded donors. Goodman encouraged CSTT viewers to ask Plaintiffs for refunds for donations made, informing these donors that they may face "legal jeopardy" for their contributions to EIN and its #UNRIG campaign. (Id. 61.)
Finally, Goodman argues in his Reply to Plaintiffs' Response opposing Goodman's Motion to Dismiss, that "the statements are true. They are based on fact, supported by evidence." (Reply Goodman Mot.
At this stage, Plaintiffs plead sufficient facts to show that Goodman cannot avail himself of the protections of the Immunity Provision and to establish malice for purposes of Goodman's Motion to Dismiss.
D. Summary of Claims Surviving Rule 12(b)(6) Scrutiny
As to Negron, the Court will deny in part and grant in part Negron's Motion to Dismiss. Five of the nine claims will proceed against Negron: the defamation claim; the statutory conspiracy claim; the common law conspiracy claim; the tortious interference claim; and the intentional infliction of emotional distress claim. However, the Court will dismiss the following four counts against Negron: the insulting words claim; the computer claims; the unauthorized use claim; and the request for a permanent injunction.
As to Goodman, the Court will deny Goodman's Motion to Dismiss. All nine claims against Goodman will proceed.
III. Analysis: Motion to Sever
In addition to Goodman's Motion to Dismiss, Goodman filed a Motion to Sever, asking to "sever his trial from that of his [c]odefendants" Negron and Lutzke. (Mot. Sever 1, ECF No. 46.) The Federal Rules of Civil Prоcedure govern severance. Goodman invokes two rules in his Motion to Sever: Rule 21, which does not apply,
In support of his Motion to Sever, Goodman claims that Plaintiff Steele and Defendant Lutzke have conspired against him to bring this action. He raises numerous allegations related to Steele's motivations in bringing this lawsuit. Goodman also accuses Lutzke of filing false paperwork with the Court. Goodman does not cite to any case law in support of his Motion to Sever.
The Court, considering the record before it, cannot conclude that separate trials would increase convenience, avoid prejudice, or expedite and economize judicial resolution to this matter. The Court will deny the Motion to Sever.
IV. Conclusion
The Court considered five motions: Negron's Motion to Dismiss; Goodman's Motion to Dismiss; Goodman's Motion to Sever; Goodman's Ghost Writing Motion; and Sweigert's Motion to Intervene.
The Court will grant in part and deny in part Negron's Motion to Dismiss. As to
Count I: Defamation per se (the defamation claim);
Count III: Business conspiracy, in violation of Virginia Code § 18.2-499 and Va Code § 18.2-500 (the statutory conspiracy claim);
Count IV: Common law conspiracy;
Count V: Tortious interference; and,
Count VI: Intentional Infliction of Emotional Distress.
However, the Court will dismiss the following four counts against Negron:
Count II: Insulting words, in violation of Virginia Code § 8.01-45 (the insulting words claim);
Count VII: Personal trespass by computer in violation of Virginia Code § 18.2-152.7 and computer harassment in violation of Virginia Code § 18.2-152.7:1 (the computer claim);
Count VIII: Unauthorized use of name and picture in violation of Virginia Code § 8.01-40 (the unauthorized use claim); and,
Count IX: Permanent injunction.
The Court will deny Goodman's Motion to Dismiss. All nine claims against Goodman will proceed.
The Court will also deny Goodman's Motion to Sever. The Court will grant Goodman's Ghost Writing Motion, and will deem the February 13, 2019 Ghost Writing Form filed. As to Sweigert's Motion to Intervene, the Court will strike several non-party filings from the record.
An appropriate Order shall issue.
Notes
Plaintiffs Earth Intelligence Network ("EIN") and Robert D. Steele (collectively with EIN, "Plaintiffs") responded in opposition to Negron's Motion to Dismiss, (ECF No. 53), and Negron replied, (ECF No. 57).
Plaintiffs responded in opposition to Goodman's Motion to Dismiss, (ECF No. 49), and Goodman replied, (ECF No. 52).
Plaintiffs also responded in opposition to the Motion to Sever, (ECF No. 50). Goodman did not file a reply, and the time to do so has expired.
No party opposed the Ghost Writing Motion.
Goodman opposed the Motion to Intervene, (ECF No. 78), but neither Plaintiffs nor Negron filed a response. In the interest of judicial efficiency, the Court will order the parties to brief their position on the Motion to Intervene.
The third and final named defendant, Susan A. Lutzke, has not made an appearance or responded to the Amended Complaint. On September 3, 2018, Plaintiffs requested entry of default as to Lutzke. (ECF No. 65.) On September 6, 2018, the Clerk entered default as to Lutzke. (ECF No. 66.)
"The district courts shall have original jurisdiction of all civil actions where the matter in controversy exceeds the sum or value of $ 75,000, exclusive of interest and costs, and is between...citizens of different States."
Goodman did not include a Ghost Writing Form as required under Rule 83.1(M) of the Local Rules for the United States District Court for the Eastern District of Virginia. On January 31, 2019, the Court ordered Goodman to submit the appropriate Ghost Writing Forms for each filing. (ECF No. 69.) On February 8, 2019, Goodman timely submitted the Ghost Writing Forms.
On February 13, 2019, Goodman filed the Ghost Writing Motion, which seeks to supplant one of the February 8, 2019 Ghost Writing Forms with an updated Ghost Writing Form. The proffered Ghost Writing Form states that an attorney "prepared or assisted [Goodman] in preparation of" the Original Answer. (Ghost Writing Mot. 5, ECF No. 71.) No party opposed the Ghost Writing Motion.
Given the lack of opposition, the Court will grant the Ghost Writing Motion and deem the February 13, 2019 Ghost Writing Form filed. Because the Amended Complaint and subsequent filings rendered moot the Original Answer, the Court need not address the effect of Goodman receiving legal assistance in filing the Original Answer.
"All words shall be actionable which from their usual construction and common acceptance arе construed as insults and tend to violence and breach of the peace."
This section provides, in relevant part:
Any two or more persons who combine, associate, agree, mutually undertake or concert together for the purpose of...willfully and maliciously injuring another in his reputation, trade, business or profession by any means whatever...shall be jointly and severally guilty of a Class 1 misdemeanor. Such punishment shall be in addition to any civil relief recoverable under § 18.2-500.
This section provides, in relevant part:
Any person who shall be injured in his reputation, trade, business or profession by reason of a violation of § 18.2-499, may sue therefor and recover three-fold the damages by him sustained, and the costs of suit, including a reasonable fee to plaintiff's counsel, and without limiting the generality of the term, "damages" shall include loss of profits.
"A person is guilty of the crime of personal trespass by computer when he uses a computer or computer network to cause physical injury to an individual."
This section provides:
If any person, with the intent to coerce, intimidate, or harass any person, shall use a computer or computer network to communicate obscene, vulgar, profane, lewd, lascivious, or indecent language, or make any suggestion or proposal of an obscene nature, or threaten any illegal or immoral act, he shall be guilty of a Class 1 misdemeanor.
This section provides, in relevant part:
Any person whose name, portrait, or picture is used without having first obtained the written consent of such person...for advertising purposes or for the purposes of trade, such persons may maintain a suit in equity against the person, firm, or corporation so using such person's name, portrait, or picture to prevent and restrain the use thereof; and may also sue and recover damages for any injuries sustained by reason of such use.
Plaintiffs argue that the Court must disregard Goodman's Motion to Dismiss because Goodman filed the Answer first, waiving his ability to file a Rule 12(b)(6) motion. Fed. R. Civ. P. 12(b) ("A motion asserting any of these defenses must be made before pleading if a responsive pleading is allowed."). Goodman filed the Answer and Motion to Dismiss on the same day. Although Plaintiffs correctly note that the Answer preceded the Motion to Dismiss on the docket (as entry numbers 44 and 45, respectively), the Court considers these filed simultaneously. Although a defendant need not file an Answer while a pretrial motion, such as a Rule 12(b)(6) motion to dismiss, pends, the Federal Rules of Civil Procedure do not prevent a defendant from filing an Answer pending resolution of the pretrial motion. Even a cursory review of Goodman's Answer shows that no inconsistencies exist between Goodman's position in his filings. Accordingly, the Court will consider Goodman's Motion to Dismiss.
Plaintiffs returned the summons as to Lutzke as executed. (ECF No. 62.)
The Amended Complaint does not make any allegations about Sweigert, but it references him twice: first, one quotation by Plaintiffs incidentally refеrs to Sweigart as part of a longer quotation; and, second, a related footnote describes Sweigert's identity to the reader for added context.
These declarations have no bearing on the current analysis.
Sweigert, proceeding pro se , did not include a Ghost Writing Form as required under Local Rule 83.1(M). See E.D. Va. Loc. Civ. R. 83.1 (M). The Court will direct the Clerk to provide Sweigert with the Ghost Writing Form and will order Sweigert to fill out the form.
The Court will grant Sweigert leave to file an Amended Motion to Intervene by close of business Friday, April 12, 2019. If Sweigert files an Amended Motion to Intervene, all parties must respond to it by no later than close of business Tuesday, April 23, 2019.
Should Sweigert fail to timely file an Amended Motion to Intervene, the Court will consider only the current Motion to Intervene and will not accept an amended motion after the deadline. If Sweigert does not file an Amended Motion to Intervene by the April 12, 2019 deadline, then Plaintiffs, Negron, and Lutzke must respond to the Motion to Intervene, (ECF No. 73), presently before this Court by no later than close of business Tuesday, April 23, 2019.
The Amended Complaint makes no reference to Jacquelyn Weaver. (See Am. Compl.)
Weaver cites to no rule or legal authority for her filing. Weaver "has not sought to intervene under [Federal Rule of Civil Procedure] 24, nor has [s]he received permission to file as an amicus curiae." Kimberlin v. Nat'l Bloggers Club ,
The Amended Complaint makes no reference to Dean Fougere. (See Am. Compl.)
Fougere cites to no rule or legal authority for his filing. Similar to Weaver, Fougere does not seek to intervene in the case, nor has he sought permission from the Court to file this document. See Kimberlin ,
The Amended Complaint makes no reference to Steven Outtrim. (See Am. Compl.)
Like Weaver and Fougere, Outtrim does not seek intervention, nor did he seek permission from the Court to file his declaration. Outtrim appears to deny and dispute allegations that Goodman makes in other filings. The Court will strike the filing from the record, and will not consider future filings from non-parties. See Kimberlin ,
The Amended Complaint makes no reference to Kevin Marsden. (See Am. Compl.)
Like the other non-party filers, Marsden appears to deny and dispute allegations that Goodman makes in other filings. The Court will strike the filing from the record and will not consider future filings from non-parties. See Kimberlin ,
For the purpose of the Rule 12(b)(6) Motion to Dismiss, the Court will accept the well-pleaded factual allegations in the Complaint as true, and draw all reasonable inferences in favor of Plaintiffs. Kensington Volunteer Fire Dep't, Inc. v. Montgomery Cty., Md. ,
In 1993, Steele formed Open Source Solutions, Inc., which Steele describes as "a pioneering open source intelligence ("OSINT") firm. OSINT is a term used to refer to data collected from publicly available sources to be used in an intelligence context." (Am. Compl. 7.)
This publication "discusses the fundamentals of OSINT support to both the all-source intelligence process, and to the unclassified intelligence requirements of operators, logisticians, and civilian organizations participating in joint and coalition operations." (Am. Compl. 8.)
The "Summer of Peace" campaign sought to "nurture a national conversation about #UNRIG." (Am. Compl. 10.)
The Amended Complaint appears to identify links to CSTT's YouTube channel, a Facebook page, a Twitter account, a Patreon.com account, and a GooglePlus account. (Am. Compl. 11.)
The Amended Complaint states:
As of September 1, 2017, 14,526 people subscribed to Goodman's YouTube channel, 1,925 people followed Goodman on Facebook, and Goodman had 8,886 followers on Twitter. As of March 23, 2018, 53,447 people subscribed to Goodman's YouTube channel, 4,189 people followed Goodman on Facebook, and Goodman had 21,700 followers on Twitter.
(Am. Compl. 11.)
Although Plaintiffs do not expressly state that Steele appeared as a guest on CSTT videos prior to this action, they do so indirectly. For example, Steele quotes Goodman as saying, "Robert David Steele came on our show and he was trying to raise two hundred and fifty thousand dollars for his UNRIG campaign...." (Am. Compl. 64.) Elsewhere in the Amended Complaint, Plaintiffs quote an anonymous CSTT guest as accusing Steele оf coming onto Goodman's show and subsequently deceiving viewers. (Am. Compl. 29.)
The Court provides this information only to add context, given that whether Steele previously appeared on CSTT has no bearing on the current analysis.
Plaintiffs note that the image that Lutzke uses "is actually that of Queen Nefertiti." (Am. Compl. 4 n.1.)
Plaintiffs previously identified "Queent Tut" as "Susan Holmes." (See Original Compl., ECF No. 1.) Plaintiffs later amended their Original Complaint, naming "Susan Lutzke" as a defendant. Plaintiffs returned the Summons as to Lutzke as executed, (ECF No. 62), and nothing properly before the Court suggests that Plaintiffs misidentify Lutzke as a proper defendant in this action. Having failed to respond or make an appearance in this Court, the Clerk of Court entered default against Lutzke on September 6, 2018. (ECF No. 66.)
Plaintiffs filed the Original Complaint on September 1, 2017. The Amended Complaint, filed on April 18, 2018, adds new factual allegations about Defendants' alleged actions after learning of this suit. The Court discusses allegations related to Defendants' post-filing actions below.
In the video, Goodman and Negron claimed a ship at the Port of Charleston, South Carolina, possessed a "dirty bomb." (Am. Compl. 19.) Goodman and Negron encouraged viewers to alert the United States Coast Guard about the threat, which caused a terminal at the port to shut down. (Id. ) The Federal Bureau of Investigation (the "FBI") opened an investigation into the "false report of a dirty bomb aboard the" vessel. (Id. )
This apрears to be a reference to the Racketeer Influenced and Corrupt Organizations Act ("RICO"). See
In one video, Goodman states that he "find[s] it really difficult to believe that he was ever in the CIA because he just seems so f---ing stupid." (Am. Compl. 36 (quoting an August 7, 2017 video).) Negron describes Steele as "predatory in nature." (Id. 40 (quoting an August 13, 2017 video).) Goodman refers to EIN as "Steele's highly unintelligent business organization." (Id. 56 (quoting a September 23, 2017 video).)
The allegations in the Amended Complaint do not directly reference or explain the "Electoral Reform Act," which the Amended Complaint also refers to as the "Election Reform Act." Various excerpted video quotations provide some context, though the Court does not credit these as-yet unverified statements. These statements suggest that Steele raised money to draft a bill for United States Senator Rand Paul, which would become the Election Reform Act. (Am. Compl. 35, 61.) Defendants, in their videos, accuse Steele of misrepresenting these efforts, claiming that Steele used the money raised for the "Election Reform Act" for his own purposes. (Id. )
The Amended Complaint describes McKinney as one of two "core team members" of EIN. (Am. Compl. 10.) Plaintiffs describe McKinney as a former United States Congresswoman from Georgia and an "internationally-recognized...humanitarian and anti-war activist." (Id. )
For instance, at one point, Goodman suggests Steele never worked for the CIA. (Am. Compl. 35-36.) Later, Goodman suggests Steele remains active in the CIA. (Id. 72 (quoting a February 23, 2018 video).)
In one video, Lutzke states that Steele "is soliciting donations in [McKinney's] name to pay off her student loans, taxes, and to provide some type of compensation." (Am. Comp. 41 (quoting Lutzke in an August 13, 2017 video).)
Around this date, according to Plaintiffs, Goodman and Lutzke had some kind of falling out and did not produce any more videos together. (Am. Compl. 67, 74-75, 83.) Plaintiffs allege that Goodman and Lutzke, acting individually, continued their defamatory actions. (Id. 70-73, 78.)
As with videos predating the action, Goodman and Lutzke insult Steele personally. For example, Goodman refers to Steele as an "idiot, such a dummy, such a loser, and you know what, losers lose, that's what they do." (Am. Compl. 65-66 (quoting a March 23, 2018 video).) Elsewhere, Lutzke calls Steele a "buffoon" and claims he "is … not playing with a full deck." (Id. 71 (quoting a February 23, 2018 video).)
This seems to be Negron's only appearance in a video after the September 1, 2017 filing of this action.
In the February 23, 2018 video, Lutzke alleges she sent her birth certificate to the Court. (Am. Compl. 72 (quoting a February 23, 2018 video).) The Court received two anonymous letters on February 21, 2018 and March 1, 2018, one of which included copies of someone's birth certificate. (ECF Nos. 31, 33.) The Court, noting that it would "not accept documents sent anonymously and in violation of the Federal and Local Rules of Civil Procedure," restricted the letters, "so that they remain on the record, but are not accessible to the public." (Mar. 9, 2018 Order 1, ECF No. 35.)
A court еxercising diversity jurisdiction applies the substantive law of the forum state. Erie R.R. Co. v. Tompkins ,
Defendants, appropriately, do not dispute the publication of the allegedly defamatory statements. "Publication occurs when an actionable statement is transmitted to some third person so as to be heard and understood by such person." Suarez v. Loomis Armored US, LLC , No. 3:10cv690,
To be actionable in the profession or trade context, "a statement must be 'necessarily hurtful in its effect upon plaintiff's business and must affect [her or] him in [her or] his particular trade or occupation,' and there must be 'a nexus between the content of the defamatory statement and the skills or character required to carry out the particular occupation of the plaintiff.' " Marroquin v. Exxon Mobil Corp. , No. 08-391,
"Causes of action for defamation have their basis in state common law but are subject to principles of freedom of speech arising under the First Amendment to the United States Constitution and Article I, Section 12 of the Constitution of Virginia." Yeagle ,
Negron posits that "Steele has made or at least been attributed with numerous more eccentric claims through appearances on conspiracy programs.... Plaintiffs should experience no surprise when some individuals disagree with their beliefs." (Mem. Supp. Negron Mot. Dismiss 3.) For example, "on a widely known conspiracy show, Plaintiff Steele appears to stаte that there is a colony on Mars populated by children kidnapped by NASA." (Id. 3 n.2.)
This information about Steele, even if accurate, does not pertain to the instant action and falls well beyond the scope of this analysis. Plaintiffs' Amended Complaint alleges that Plaintiffs operate a non-profit engaged in some kind of electoral reform and peace-seeking mission-none of which appears to have anything to do with the "eccentric" claims Negron attributes to Steele.
"Defamation must be pled with particularity under Virginia law....However, when a state claim is brought in federal court, a plaintiff need not satisfy the state's heightened pleading requirements to survive a Rule 12(b)(6) motion; the Federal Rules of Civil Procedure govern this pleading." Skillstorm, Inc. v. Electronic Data Sys., LLC ,
Steele identified himself as the co-founder and a leader of EIN and the #UNRIG project, which aimed to "communicate to all citizens the possibility of an ethical, legal, non-violent restoration of integrity to the United States Government." (Am. Compl. 9.) In this role, Steele represented the #UNRIG project in a "national tour of the [c]ountry." (Id. 86.) Steele made himself answerable to donors, and "communicated with all" of them. (Id. 86.) Nothing in the current record indicates that Steele acted as a private figure during these events.
Although some of Negron's statements constitute actionable defamation, several do not. The Amended Complaint сontains allegations that Negron described Steele's body language as "deeply disturbing" and "suggest[ing]...ulterior motives." (Am. Compl. 40 (quoting an August 13, 2017 video).) Similarly, Negron describes Steele as "predatory in nature." (Id. ) Negron's Motion to Dismiss challenges these statements as non-actionable opinions. Expressions of opinion include "[s]tatements that are relative in nature and depend largely upon the speaker's viewpoint." Jordan ,
Although the Virginia insulting words cause of action has been interpreted as "virtually coextensive with the common law action for defamation," Goulmamine v. CVS Pharmacy, Inc. ,
Plaintiffs allege that "[m]any of the Goodman/Lutzke video productions promoted and encouraged violence against Plaintiffs." (Am. Compl. 59.) Although Plaintiffs purport to bring this insulting words claim against all three defendants, Plaintiffs make no allegations against Negron specifically, and they do not rebut her challenge in their Response to Negron's Motion to Dismiss.
Negron does not challenge the damages element of the test. Plaintiffs allege that, as a result of Defendants' action, EIN suffered a sharp decrease in donations and donors asked for refunds.
Negron claims that Plaintiffs "attribute[e] to her actions she never took." (Mem. Supp. Negron Mot. Dismiss 15.) At this procedural stage, the Court must take Plaintiffs well-pleaded factual allegations as true. Kensington ,
Plaintiffs delineate Negron's alleged participation in the production and planning of these videos, meeting their plausibility standard. See Iqbal ,
Negron does not challenge Plaintiffs' description of this relationship as contractual.
These allegations sufficiently plead the second prong of the analysis, "knowledge of the [contractual] relationship" by Negron. Worldwide ,
Negron argues that "the loss of donations to [UNRIG] was publicly attributed to other sources by Plaintiff Steele himself." (Mem. Supp. Negron Mot. Dismiss 22.) Negron claims that Plaintiffs' website states that UNRIG's "funding collapsed based on (1) partner Cynthia McKinney not being able to leave her job in Bangladesh, and (2) a major Deep State/Zionist-led attack, with no mention of Ms. Negron's conduct." (Id. (providing a link).)
Although this information may ultimately affect Plaintiffs' ability to recover under this claim, the Court cannot consider it when evaluating the instant motion. At this procedural stage, the Court must take Plaintiffs well-pleaded allegations as true. Kensington ,
Plaintiffs do not elaborate as to the physical injury Steele suffered, and nothing in the Amended Complaint appears to support this particular allegation. Although the Court disregards that allegation as cоnclusory, this finding does not affect the outcome on the motions at bar.
The complaint in Hatfill alleged that "[a]s a result of defendants' 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."
This provision states:
A person shall be immune from civil liability for a violation of § 18.2-499, a claim of tortious interference with an existing contract or a business or contractual expectancy, or a claim of defamation based solely on statements...regarding matters of public concern that would be protected under the First Amendment to the United States Constitution made by that person that are communicated to a third party....The immunity provided by this section shall not apply to any statements made with actual or constructive knowledge that they are false or with reckless disregard for whether they are false.
Goodman does not challenge Count II (the insulting words claim), Count IV (the common law conspiracy claim), Count VI (the intentional infliction of emotional distress claim), Count VII (the computer claims), Count VIII (the unauthorized use claim), or Count IX (seeking a permanent injunction). These claims will proceed.
This finding does not preclude Goodman from raising the same defense on a more developed record.
Rule 21 governs the misjoinder and nonjoinder of parties. Fed. R. Civ. P. 21. Goodman does not claim that any party constitutes a misjoined or nonjoined party, so Rule 21 does not apply.