Bongino v. Daily Beast Co.

477 F.Supp.3d 1310

Dan BONGINO, Plaintiff,

v.The DAILY BEAST COMPANY, LLC, Defendant.

Case Number: 19-14472-CV-MARTINEZ-MAYNARD

United States District Court, S.D. Florida, Fort Pierce Division.

Signed August 6, 2020

Robert Craig Buschel, Buschel Gibbons, P.A., Fort Lauderdale, FL, for Plaintiff.

Adam Lazier, Pro Hac Vice, Katherine M. Bolger, Pro Hac Vice, Davis Wright Tremaine, LLP, New York, NY, Jared M. Lopez, Black Srebnick Kornspan & Stumpf, Miami, FL, for Defendant.

ORDER GRANTING DEFENDANT'S MOTION TO DISMISS

JOSE E. MARTINEZ, UNITED STATES DISTRICT JUDGE

THIS CAUSE is before the Court upon Defendant The Daily Beast Company LLC's Motion to Dismiss. (ECF No. 16). The Court has reviewed the Motion, Plaintiff's Response in Opposition thereto, (ECF No. 19), the pertinent portions of the record, and is otherwise fully advised in the premises. For the following reasons, the Court GRANTS Defendant's Motion.

I. BACKGROUND

Plaintiff Dan Bongino is a public figure. (Sched. Report ¶ 7, ECF No. 12). A former Secret Service member, Mr. Bongino describes himself as "an outspoken supporter of President Donald Trump." (Compl. ¶ 5, ECF No. 1). He hosts a podcast, appears on Fox News, writes books, and has more than 1,500,000 followers on social media. Id. Until 2018, he hosted a show on NRATV, the National Rifle Association's online video channel. Id.

Upon learning that Bongino's show would no longer air, Defendant's reporter texted him and asked, "Heard you didn't renew with NRA TV?" Id. ¶ 4. Bongino did not respond. Id. Four days later, the reporter texted again, "Just circling back on this. Probably publishing something today." Id. Still, no response. Id. Defendant then published an article titled, "Dan Bongino out at NRATV—BONGI-NO-MORE." (ECF No. 16-1, Lachlan Markay, Dan Bongino Out at NRATV , The Daily Beast, https://www-thedailybeast-com.ezproxy.lib.ntust.edu.tw/sources-dan-bongino-out-at-nratv (last updated Dec. 11, 2018 2:11 PM)). The article's subheading reads, "Trump loves the guy. But the gun rights group is downsizing its media operation and his show appears to be a casualty of those plans." Id. The first sentence continues, "The National Rifle Association's media arm has dropped pro-Trump firebrand Dan Bongino...." Id. The article also notes that neither Bongino nor the NRA responded to Defendant's requests for comments at first. Id.

After publication, however, Bongino and NRATV responded to the article publicly. Id. The next day, Defendant revised the article to include their reactions. Id. The article now reads, "[Bongino] suggested that the decision not to renew the show was his, not the network's" and "NRATV released a statement saying the network ‘made every attempt to retain [Bongino] in 2019’ but did not elaborate on the negotiations." Id.

That article is the basis for this suit. Bongino charges Defendant with defamation, commercial disparagement, and violating Florida's Deceptive and Unfair Trade Practices Act (FDUTPA). (Compl. ¶¶ 22–39, ECF No. 1). Bongino claims the article conveys that NRATV fired him for cause; in truth he decided not to renew his contract, he says. Id. ¶ 4; see also (Pl.'s Resp. at 8, ECF No. 19). On that basis, he argues the article "imputes" to him an "unfitness to perform the duties" of his job, and therefore constitutes libel. Id. ¶ 25.

II. LEGAL STANDARD

To survive a motion to dismiss under Rule 12(b)(6), a complaint must allege sufficient facts to state a facially plausible claim for relief. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. Dismissal is therefore proper "when, on the basis of a dispositive issue of law, no construction of the factual allegations will support the cause of action." Allen v. USAA Cas. Ins. Co. , 790 F.3d 1274, 1278 (11th Cir. 2015). In making this determination, a court construes the complaint's allegations in the light most favorable to the plaintiff. Id.

III. DISCUSSION

Defendant now moves to dismiss the Complaint under Federal Rule of Civil Procedure 12(b)(6). (Def.'s Mot. Dismiss 1, ECF No. 16). As for the defamation claim, Defendant's argument is twofold. First, Defendant asserts that Plaintiff skirted a Florida law that requires defamation plaintiffs to provide media defendants with written notice at least five days before filing a complaint. Id. Second, the article is not defamatory as a matter of law. Id. Defendant also contends that Plaintiff's ancillary claims arise from the same article that prompts his defamation claim; therefore, Florida's "single action" doctrine bars such claims. Id. Finally, Defendant seeks to recover attorneys' fees and costs under Florida's anti-SLAPP statute, id. at 2, which the Florida legislature enacted to prohibit lawsuits that "are inconsistent with the right of persons to exercise ... free speech in connection with public issues." See Fla. Stat. § 768.295(1). The Court addresses these arguments in turn.¹

A. Count I - Defamation

As a public figure, Plaintiff must satisfy the following elements to state a claim for defamation under Florida law: (1) publication; (2) falsity; (3) actual malice; (4) actual damages; and (5) the statement was defamatory. See Jews For Jesus, Inc. v. Rapp , 997 So. 2d 1098, 1106 (Fla. 2008). Florida statute also requires that defamation plaintiffs serve media defendants with written notice, specifying the alleged defamatory statements "at least five days" before filing a complaint. Ross v. Gore , 48 So. 2d 412, 413, 415 (Fla. 1950) (discussing Fla. Stat. § 770.01 ).

1. Plaintiff failed to comply with Florida's pre-suit notice provision.

As a condition precedent to a defamation suit, Section 770.01 requires a plaintiff to serve a media defendant with written notice, specifying the alleged false or defamatory article and statements. Id. A plaintiff must serve that written notice "at least five days" before filing a complaint. Id. The purpose of this notice provision is to provide newspapers an "opportunity in every case to make a full and fair retraction," thus mitigating potential damages and protecting the all-important "interest in the free dissemination of news." Ross , 48 So. 2d at 415.

Plaintiff alleges he served Defendant with the written notice on December 5, 2019 and filed this suit on December 10, 2019. (Compl. ¶ 20, ECF No. 1). In response, Defendant proffers the notice letter's postmark, revealing that Plaintiff did not mail the document until December 9, 2019—only one day prior to the commencement of this action. (Def's Mot. Dismiss, Ex. 2, ECF No. 16-2).

Although Plaintiff does not dispute or respond to the timestamped document, he argues the Court should consider it only upon a summary judgment motion. (Pl.'s Resp. at 5–6, ECF No. 19). The Court may, however, consider a document attached to a motion to dismiss without converting the motion into one for summary judgment "only if the attached document is: (1) central to the plaintiff's claim; and (2) undisputed." Horsley v. Feldt , 304 F.3d 1125, 1134 (11th Cir. 2002) ; but see Ruthledge v. NCL (Bah.) Ltd. , 356 F. App'x 357, 358 (11th Cir. 2009) (finding district court converted motion to dismiss to summary judgment motion when it relied on defendant's affidavit, which contradicted allegations in complaint). Undisputed in this context means that the parties do not challenge the document's authenticity. Horsley , 304 F.3d at 1134.

Plaintiff does not dispute the postmark's authenticity, and because the postmark is vital to the condition precedent issue, the Court finds that it may consider that document without converting the motion into one for summary judgment. Nonetheless, in an abundance of caution, and taking Plaintiff's allegations as true as required at this procedural juncture, the Court still finds that even if Plaintiff mailed the required written notice on December 5, 2019—as stated in the Complaint—Plaintiff may have still failed to satisfy the condition precedent. Florida courts have held that Florida Statute § 770.01 requires five business days' pre-suit notice. See Canonico v. Callaway , 26 So. 3d 53, 55–56 (Fla. 2d DCA 2010) (emphasis added). As such, according to Florida law, Plaintiff's notice should be considered insufficient.²

Nevertheless, the foregoing notice analysis does not determine the outcome of this decision. The Court need not decide whether Plaintiff's notice was in fact sufficient, or whether any notice deficiencies should result in dismissal with or without prejudice. Plaintiff's claims fail on the merits.

2. The article is not defamatory.

Plaintiff emphasizes that the "gist" of Defendant's article implies to a reasonable reader that Plaintiff was fired for cause. (Pl.'s Resp. at 7 n.3, ECF No. 19). Specifically, Plaintiff objects to the article's statement that, "[t]he National Rifle Association's media arm has dropped ... Dan Bongino from its lineup of conservative commentators," because he, not NRATV, decided to end the employment relationship. (Compl. ¶¶ 3, 4, 19, ECF No. 1). Plaintiff claims this misrepresentation imputes to him an "unfitness to perform the duties" of his job as a political commentator and radio host. Id. ¶ 25. For those reasons, he charges Defendant with defamation and defamation by implication. Id. at 4; see also (Compl. ¶ 25, ECF No. 1). The Court addresses each claim in turn.

a) Defamation

Under Florida law, defamation is generally defined as "the unprivileged publication of false statements which naturally and proximately result in injury to another." Wolfson v. Kirk , 273 So. 2d 774, 776 (Fla. 4th DCA 1973). To state a claim for defamation, a plaintiff must plausibly allege the following five elements: (1) publication; (2) falsity; (3) the defendant acted...