7.22 Litigation: Initial Pleadings and Summary Dispositions

7.22 LITIGATION: INITIAL PLEADINGS AND SUMMARY DISPOSITIONS

7.2201 In General.

As with preliminary litigation issues, the unique nature of defamatory claims raises several issues involving litigation pleading and practice.

7.2202 Initial Pleading: Identifying the Exact Defamatory Statement.

A. In General.

A number of special common law and statutory pleading rules apply to defamation cases.

B. State Courts.

1. General Rule.

Under a long-standing Virginia rule, plaintiffs in a defamation or insulting words action must plead the allegedly defamatory statement with particularity. ⁴⁸⁶⁶ A plaintiff's initial pleading must specify the exact words spoken by each of the defendants. ⁴⁸⁶⁷ Virginia courts often dismiss claims lacking this specificity, although most courts give plaintiffs another chance to replead the exact words. ⁴⁸⁶⁸

2. Statute of Limitations Ramifications.

In some situations a defamation defendant argues that the plaintiff's amended claim identifying the exact words actually states a new cause of action that is time-barred under Virginia's one-year statute of limitations. Given Virginia law's insistence that a defamation plaintiff plead the exact words, this argument certainly makes sense in many situations. For instance, a plaintiff filing a defamation action based on the defendant's alleged statement that "the plaintiff robbed a bank" should not be permitted to amend her claim 18 months later to claim for the first time that the defendant also said "the plaintiff killed her neighbor."

Not surprisingly, most situations confronting Virginia courts are more subtle. For instance, one court found that the statute of limitations did not bar a plaintiff's amended claim based on media reports about the defendant's alleged defamation spoken to a reporter. The court explained, "Plaintiff could not have known the exact words spoken to the reporters until Plaintiff had taken their depositions." ⁴⁸⁶⁹

On the other hand, the Virginia Supreme Court has held that a plaintiff's eventual recitation of the exact words about which he complained were not time-barred because those words were "consistent" and "essentially the same" as the words the plaintiff had included in his motion for judgment and in his bill of particulars. ⁴⁸⁷⁰ If taken too far, a liberal approach to a plaintiff's allegation makes it nearly impossible for a defendant to defend himself or herself because the exact words about which plaintiff complains would be a "moving target."

C. Federal Courts.

Federal courts formerly took differing positions on whether the Virginia-based specificity requirement trumped the much more liberal federal court notice pleading principles. Until 2000, some federal district courts followed the Virginia approach, ⁴⁸⁷¹ whereas others used the federal rule notice approach. ⁴⁸⁷²

The Fourth Circuit apparently ended the debate in favor of the latter approach, indicating that federal courts must follow federal pleading requirements rather than the Virginia rule requiring specificity. ⁴⁸⁷³ In Wuchenich v. Shenandoah Memorial Hospital, ⁴⁸⁷⁴ the court held that, because Federal Rule of Civil Procedure 8 does not contain any special directions to state a claim for defamation, the more liberal federal pleading requirement of a short and plain statement showing that the plaintiff is entitled to relief applies. Some cases have followed this approach. ⁴⁸⁷⁵ Other federal cases seem more demanding. ⁴⁸⁷⁶

7.2203 Initial Pleading: Other Specificity Requirements.

A. In General.

In addition to the long-standing Virginia requirement that plaintiffs allege the specific defamatory words, parties may also have to address several other areas in which courts have debated the need for specificity.

B. Details of Facts and Circumstances.

Virginia courts have discussed the level of specificity required in the plaintiff's allegations about the facts and circumstances of the alleged defamation. Does the plaintiff have to specifically plead background facts, such as when and where the defendant communicated the defamation and who heard it? A number of circuit court decisions had required that specificity, even dismissing a motion for judgment deemed too general. ⁴⁸⁷⁷ Other Virginia circuit courts had not required that specificity. ⁴⁸⁷⁸

In 2003, the Virginia Supreme Court rejected a defendant's argument that the plaintiff's motion for judgment should have included those facts. In a case involving a doctors' group representative's allegedly defamatory statements about two doctors who left the group, the court held that "details such as the time and place of the alleged communication, the name of a defendant's agent, and the names of the individuals to whom the defamatory statement was purportedly communicated can be provided in a bill of particulars if not included in a plaintiff's pleading." ⁴⁸⁷⁹ Since 2003, circuit courts have followed this approach. ⁴⁸⁸⁰

In 2012, the Western District of Virginia dismissed a defamation claim, because the plaintiff had not provided any "supporting facts or contentions." ⁴⁸⁸¹ Other federal courts have taken the same approach. ⁴⁸⁸²

C. Facts Supporting Malice Allegations.

Virginia courts have addressed whether defamation plaintiffs can state claims simply by alleging that defendants acted with "malice" without including any factual predicate for that allegation. Several courts have held that plaintiffs must provide some factual basis for a conclusory allegation of constitutional or common law malice. ⁴⁸⁸³ Other courts have been more demanding. ⁴⁸⁸⁴ On the other hand, some courts take a more liberal approach to pleading malice. ⁴⁸⁸⁵ Eastern District of Virginia decisions have found that a plaintiff must do more than simply plead "conclusory allegations" of malice to overcome a qualified privilege ⁴⁸⁸⁶ or to avoid dismissal of a claim requiring constitutional malice. ⁴⁸⁸⁷ Other federal court decisions have been less demanding. ⁴⁸⁸⁸

Given the high burden a plaintiff faces in having to establish with clear and convincing evidence that the defendant acted with constitutional malice, it makes sense to require at least some initial factual support for a constitutional malice claim. Defending a defamation lawsuit can itself be a chilling experience for media and other defendants. Just as in the case of a federal court fraud claim, plaintiffs should have some threshold burden of reciting the factual basis for a constitutional malice claim.

D. Plaintiff's Identity.

Absent "special circumstances," plaintiffs in Virginia must identify themselves and may not remain anonymous, as plaintiffs may in some states. ⁴⁸⁸⁹

E. Defendant's Identity.

One court explained that Virginia law seems to permit claims against "John Doe" defendants, although in that case the plaintiff had not made specific factual allegations against those defendants. ⁴⁸⁹⁰ As explained below, Virginia law provides a statutory mechanism for discovering the identity of an anonymous online defamer.

F. Other Requirements.

Plaintiffs must plead falsity to survive a dismissal of their claim. ⁴⁸⁹¹

Plaintiffs must also plead defamatory meaning such that the purportedly defamatory statements made the plaintiff "appear odious, infamous, or ridiculous." ⁴⁸⁹²

7.2204 Statutory Provisions.

⁴⁸⁹³ Virginia has two peculiar statutory provisions relating to defamation pleadings.

Under section 8.01-48 of the Virginia Code, a print media defendant may introduce certain mitigating factors in seeking to avoid compensatory or punitive damages, but only if the grounds of defense or answer sets forth those mitigating facts. Perhaps this law was seen to help media defendants at a time when they normally faced strict liability. However, as the constitutional and common law has shifted in favor of defendants, the law could be seen as hindering media defendants who may now be required to lay out their factual defense very early in the litigation.

A similar statute, section 8.01-46, requires defendants to provide notice that they intend to mitigate their damages by proving that they apologized or offered to apologize. As with section 8.01-48, this statute may have made sense under a strict liability standard but now could simply burden defendants.

7.2205 Court as Gatekeeper.

Virginia law requires trial courts handling defamation cases to decide several key (often outcome determinative) threshold issues. In essence, the court acts as a "gatekeeper." The court must deal as a matter of law with issues such as:

· Whether the statement at issue is fact or opinion;

· Whether the statement at issue is capable of a defamatory meaning;

· Whether the statement amounts to defamation per se;

· Whether the statement is capable of meeting the insulting words statutory standard;

· Whether the action is barred by the statute of limitations (if the facts are undisputed);

· Whether the statement is absolutely privileged;

· Whether the statement is protected by a qualified privilege;

· Whether the plaintiff has established sufficient evidence of the defendant's abuse of a qualified privilege to justify the jury's consideration of the abuse;

· Whether there is sufficient evidence of constitutional malice to allow the jury to consider that issue (in public figure cases and private figure cases in which the statement does not make substantial danger to reputation apparent);

· Whether the statement makes "substantial danger" to reputation apparent (in which case a private plaintiff can recover for negligence); and

· Whether the statement at issue involves a matter of "public concern" (in which case a private plaintiff must establish that the defendant acted with constitutional malice