Nunes v. Cable News Network, Inc.

520 F.Supp.3d 549

Devin G. NUNES, Plaintiff,

v.CABLE NEWS NETWORK, INC., Defendant.

No. 20 CV 03976-LTS-OTW

United States District Court, S.D. New York.

Signed February 19, 2021

Steven S. Biss, Law Office of Steven S. Biss, Charlottesville, VA, Jeremy Zenilman, New York, NY, Steven Scott Biss, Law Office of Steven S. Biss, Richmond, VA, for Plaintiff.

Dane Hal Butswinkas, Kevin Taylor Baine, Stephen Joseph Fuzesi, Williams & Connolly LLP, Washington, DC, for Defendant.

MEMORANDUM OPINION AND ORDER

LAURA TAYLOR SWAIN, United States District Judge 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 Federal Rule of Civil Procedure 12(b)(6). (See docket entry no. 22, the "Motion".) CNN also moved to transfer the venue of this case to this District. The latter motion was granted (see docket entry no. 27), and the Motion remained pending when the case was transferred. The Court has reviewed all of the submissions in connection with the Motion, including the opposition and reply papers (respectively, docket entry no. 25, the "Opp."; docket entry no. 26).

This case was transferred to the Southern District of New York pursuant to 28 U.S.C. section 1404. (See docket entry nos. 27-28). Thereafter, the parties appeared before Magistrate Judge Ona Wang for an initial case management conference and were ordered to submit supplemental Motion briefing to address the question of choice of law. (See docket entry no. 40).

The Court has jurisdiction of this action pursuant to 28 U.S.C. section 1332. The Court has considered all of the parties’ submissions and, for the reasons stated below, Defendant's motion to dismiss the AC is granted.

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 delivers news every hour of every day to millions of readers and viewers worldwide. (Id. ¶ 8.)

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. Fed R. Civ. P. 12(b)(6). To survive a motion to dismiss under Rule 12(b)(6), the complaint must plead " ‘enough facts to state a claim to relief that is plausible on its face.’ " 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 has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678, 129 S.Ct. 1937. A court must "accept[ ] all factual allegations as true," but gives "no effect to legal conclusions couched as factual allegations." Stadnick v. Vivint Solar, Inc., 861 F.3d 31, 35 (2d Cir. 2017) (internal quotation marks omitted).

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 Cal. Civ. Code § 48a(a) constrains his ability to pursue the monetary claims that he has asserted here. Nunes, on the other hand, contends that the laws of New York, Virginia or the District of Columbia govern the underlying causes of action because the publication was made in those jurisdictions and his injuries were concentrated in one or more of them.

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 lex loci doctrine, "the law of the place of the wrong governs all matters related to the basis of the right of action." Dreher v. Budget Rent-A-Car Sys., Inc., 272 Va. 390, 634 S.E.2d 324, 326 (2006). In defamation cases, that place is typically defined as "the state where the content at issue was published." Gilmore v. Jones, 370 F. Supp. 3d 630, 664 (W.D. Va. 2019). The place of publication, in the defamation context, is where the statements at issue are "communicated to a third party" and thus "seen or heard by non-parties," as opposed to where the statements may have been written. See Katz v. Odin, Feldman & Pittleman, P.C., 332 F. Supp. 2d 909, 915 (E.D. Va. 2004) (holding that defamatory communication is published when first read and understood by a third party, thus triggering the statute of limitations); Meadows v. Northrop Grumman Innovation Sys., Inc., 436 F. Supp. 3d 879, 887 (W.D. Va. 2020) (finding that "defamation that is sent via email is published at the location the email is opened and read").

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...