Tu Nguyen v. Duy Tu Hoang

318 F.Supp.3d 983

TU NGUYEN, Plaintiff,

v.DUY TU HOANG, et al., Defendants.

CIVIL ACTION H–17–2060

United States District Court, S.D. Texas, Houston Division.

Signed June 28, 2018

Courtney Culver Baker, Maulik Prakash Shah, Christopher Alfred Stevenson, Adair Myers Graves Stevenson, PLLC, Gordon G. Waggett, Gordon G. Waggett PC, Houston, TX, for Plaintiff.

Allison Lynn Bowers, Shannon Harpold Hutcheson, Hutcheson Bowers LLLP, Austin, TX, Frank M. Radoslovich, Omid Shabani, Radoslovich Shapiro PC, Sacramento, CA, Maria Wyckoff Boyce, Hogan Lovells US LLP, Houston, TX, for Defendants.

MEMORANDUM OPINION AND ORDER

Gray H. Miller, United States District Judge

Pending before the court are (1) a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) and the Texas Citizens Participation Act ("TCPA") filed by defendants Radio Free Asia ("RFA"), Libby Liu, and Khanh Van Nguyen (Dkt. 18); (2) a motion to dismiss under Rule 12(b)(6) and the TCPA filed by defendant Viet Tan, as an unincorporated association also known as Viet Nam Reform Party ("Viet Tan") (Dkt. 52); (3) a motion to dismiss under Rule 12(b)(6) and for lack of personal jurisdiction filed by defendants Chan Vu Dang, Xuyen Dong Matsuda, and Trinity Hong Thuan (collectively, "Individual Defendants Group One") (Dkt. 25); (4) a motion to dismiss under Rule 12(b)(6) and for lack of personal jurisdiction filed by defendants Duy Tu Hoang, a/k/a Dan Hoang, Angelina Trang Hunyh, Dinh Co Hoang, and Doan Bui, a/k/a Ly Thai Hung (collectively, "Individual Defendants Group Two") (Dkt. 46); (5) a motion to dismiss under Rule 12(b)(6), for lack of personal jurisdiction, and under the TCPA filed by defendant Diem Hoang Do¹ (Dkt. 51); (6) a motion to dismiss under the TCPA filed by the Individual Defendant Group One (Dkt. 26); (7) a motion to dismiss under the TCPA filed by the Individual Defendants Group Two (Dkt. 47); (8) a motion to require the plaintiff to post a bond filed by RFA, Libby Liu, and Khanh Van Nguyen (Dkt. 30); and (9) objections to evidence filed by Viet Tan and Diem Hoang Do (Dkt. 76). The court held a hearing on these motions on May 23, 2018. The Individual Defendants all consented to jurisdiction after the hearing. Dkts. 79, 80. After considering the motions, responses, replies, arguments at the hearing, related filings, and the applicable law, the court is of the opinion that the motions to dismiss for lack of personal jurisdiction (partially, Dkts. 25, 46, 51) should be DENIED, the motions to dismiss under the TCPA (Dkts. 26, 47, and, partially, Dkts. 18, 51, 52) should be either GRANTED (Dkts. 18, 26, 47, 51) or GRANTED IN PART DENIED IN PART (Dkt. 52), and the motions to dismiss under Rule 12(b)(6) (partially, Dkts. 18, 25, 46, 51, 52) should be either DENIED AS MOOT (Dkts. 18, 25, 46, 51, 52) or GRANTED IN PART AND DENIED IN PART (Dkt. 52). Additionally, the motion for bond (Dkt. 30) should be DENIED, and the evidentiary objections (Dkt. 76) should be OVERRULED.

I. BACKGROUND

This case is about issues that are particularly significant to the Vietnamese American community. Plaintiff Tu Nguyen's father, Dam Phong Nguyen, was a prominent journalist in Vietnam who wrote under the name Dam Phong. Dkt. 63 at 4. Dam Phong Nguyen, his wife, and ten children (including Tu) escaped the communist government in Vietnam in 1975. Id. ; Dkt. 72–2 at 5 ("My family and I previously lived in Vietnam and like many other individuals, had to escape the communist government in Vietnam at great risk to my life."). By 1981, the family had settled in Houston, Texas, and Dam Phong Nguyen had founded a Vietnamese language newspaper. Dkt. 63 at 4–5. In 1982, he published some investigative reports about a group known as "The Front." Id. at 5. Tu Nguyen contends that The Front wanted Dam Phong Nguyen to discontinue publishing the investigative reports, falsely accused Dam Phong Nguyen of being a communist and supporting the Vietnamese government, and threatened Dam Phong Nguyen's life. Dkt. 72–2. On August 24, 1982, when Tu Nguyen was 19 years old, Dam Phong Nguyen was murdered in front of his home. Id. No arrests were ever made. Id. Tu Nguyen has strong suspicion that agents of The Front were involved in his father's murder. Id. He also believes that The Front is linked to the political party Viet Tan. Id.

After his father's murder, Tu Nguyen was concerned for his safety and the safety of his family. Id. He consequently refrained from participation in Vietnamese community activities for many years. Id. However, he began investing a possible link between The Front and Viet Tan in 2014. Id.

On or around November 3, 2015, Tu Nguyen was featured in a PBS Frontline documentary, Terror in Little Saigon . Dkt. 72–2; Dkt. 73–3. According to the translated transcript of a press conference given by defendant Diem Hoang Do on November 14, 2016, who was the Viet Tan party Chairman at the time, the film can be summarized "as alleging that the National United Front for Liberation of Vietnam [ (the Front) ] was behind the deaths of a few Vietnamese journalists in the 1980's. To give the impression that The Front was guilty, they painted the Vietnamese refugees community as radical, bent on using violence, and intending to resume a war to reclaim privileges and social positions they lost." Dkt. 73–3 at 3. Diem Hoang Do characterized the film's contents as "offensive to the Vietnamese refugees community's struggle." Id.

Tu Nguyen continued his investigation. In the summer of 2016, he learned that Viet Tan was not an officially incorporated entity. Dkt. 72–2. An acquaintance of Tu Nguyen's incorporated an entity in California named VT Corp (Viet Tan—Vietnam Reform Party). Id. Tu Nguyen was originally an officer in this corporation, but he has since resigned. Id. Registration of the name led to a lawsuit in California. See Dkt. 46, Ex. 6 (Complaint, Vietnam Reform Party v. Viet Tan—Vietnam Reform Party , No. 5:17–cv–00291–NC (Jan. 20 2017) ). In this lawsuit, Viet Tan alleged that Tu Nguyen is a resident of Texas and the owner and incorporator of Viet Tan—Vietnam Reform Party. Id. Viet Tan contended that it was formed on September 19, 2004, as an association of members whose aim is "to establish democracy and reform Vietnam through peaceful and political means." Id. It asserted that since that time it has continually used its marks throughout California and the United States. Id. Viet Tan alleged that the Viet Tan corporation "was organized for the sole, improper purpose of interfering with [Viet Tan's] ongoing business and political activities and attempting to usurp control of [Viet Tan's] Marks." Id. Viet Tan additionally alleged that Tu Nguyen contacted various individuals and organizations and advised that the Viet Tan corporation, as opposed to the original Viet Tan party, had exclusive rights to the Marks. Id. Tu Nguyen and Viet Tan eventually settled the case. Dkt. 63.

Unfortunately, in the midst of this kerfuffle, Tu Nguyen contends that he started to receive death threats about his involvement with the creation of the Viet Tan corporation. Dkt. 68–1. He consequently started performing Internet searches of the names of various leaders of the RFA and Viet Tan, and he discovered numerous statements on the Internet about or relating to him that he contends are defamatory. Id. The statements, for the most part, indicate that Tu Nguyen's work to discredit Viet Tan is at least peripherally aiding the communist party in Vietnam. Dkt. 63.

Tu Nguyen contends that he has vivid memories of his father's murder and that the current death threats have made him fearful of leaving his home. Dkt. 72–2 at 7. He is afraid he "may ultimately face the same fate as [his] father" because of the statements made by the defendants in this lawsuit. Id. He believes that the defendants in this lawsuit have falsely labeled him as a communist or communist sympathizer and asserts that "being labeled as a communist or communist sympathizer can shatter a person's reputation in the [Vietnamese American] community." Id. at 6. He explains that in the "Vietnamese community in the United States, it is considered taboo and traitorous to show any support to the communist government in Vietnam." Id. at 3. Tu Nguyen states that he has never supported the communist government in Vietnam and is ideologically opposed to that government. Id. at 6. In fact, he contends that he agrees with Viet Tan's stance against communism in Vietnam. Id.

Tu Nguyen initiated this lawsuit on July 6, 2017. Dkt. 1. He originally sued (1) the Broadcasting Board of Governors Directors Leon Aron, Ryan Crocker, Michael W. Kempner, Jefferey Shell, and Matthew Armstrong, in their official capacities; (2) RFA as a corporation; (3) Libby Liu, John Lansing, Bernadette M. Burns, Susan Lavery, Alan Tanenbaum, Norman Thompson, and Khanh Van Nguyen, who all appear to be affiliated in some way with RFA; (4) Viet Tan/Viet Nam Reform Party as an unincorporated association; (5) Duy Tu Hoang (Dan Hoang), Diem Hoang Do, Dinh Co Hoang, Chan Vu Dang, Xuyen Dong Matsuda, Doan Bui "Ly Thai Hung," and Angelina Trang Huynh, who all appear to be affiliated with Viet Tan; (5) Nguoi Viet Daily News, Inc.; (6) Giao Thein Phu Pham; and (7) John Do # 1 through Doe # 10. Id.

On January 3, 2018, summonses were issued relating to Doan Bui, Chan Vu Dang, Dim Hoang Do, Dan Hoang, Dinh Co Hoang, Angelina Trang Huynh, Libby Liu, Xuyen Dong Matsuda, Khanh Van Nguyen, RFA, Trinity Hong Thuan, and Viet Tan. See Dkt. (Jan. 3, 2018). According to the record, each of these individuals except Trinity Hong Thuan was served at some point between February and March 2018. Dkts. 11–15, 19–24. Tu Nguyen did not serve the other originally named defendants. Tu Nguyen subsequently filed an amended complaint in which he only names the following individuals as defendants: Viet Tan/Viet Nam Reform Party, Duy Tu Hoang a/k/a Dan Hoang, Diem Hoang Do, Dinh Co Hoang, Chan Vu Dang, Xuyen Dong Matsuda, Trinity...