Nunes v. WP Co.

513 F.Supp.3d 1

Devin G. NUNES, Plaintiff,

v.WP COMPANY LLC, d/b/a the Washington Post, and Shane Harris, Defendants.

Case No. 20-cv-01403 (APM)

United States District Court, District of Columbia.

Signed December 24, 2020

Richard Stephen Basile, The Law Offices of Robert E. Ammons, Greenbelt, MD, Steven S. Biss, Law Office of Steven S. Biss, Charlottesville, VA, for Plaintiff.

Kevin Taylor Baine, Nicholas G. Gamse, Thomas Goodman Hentoff, Pro Hac Vice, Williams & Connolly LLP, Washington, DC, for Defendants.

MEMORANDUM OPINION

Amit P. Mehta, United States District Court Judge

I. INTRODUCTION

This case arises from an article published in The Washington Post concerning a purported conversation that Plaintiff Representative Devin G. Nunes had with President Donald J. Trump about a classified intelligence briefing. Plaintiff filed this suit against Defendants WP Company LLC (d/b/a The Washington Post) ("the Post") and Shane Harris, one of the article's authors, alleging defamation and civil conspiracy. Plaintiff has yet to serve Defendant Harris. The Post now moves to dismiss the Complaint for failure to state a claim.

For the reasons outlined below, the court grants the Post's Motion to Dismiss and denies Plaintiff's Motion for Leave to File an Amended Complaint for futility.

II. BACKGROUND

A. Factual Background

Plaintiff has served in the U.S. House of Representatives since 2003. Compl., ECF No. 1 [hereinafter Compl.], ¶ 8. He represents California's 22nd Congressional District, which is in the San Joaquin Valley and includes portions of Tulare and Fresno Counties, and he currently serves as the Ranking Member of the House Permanent Select Committee on Intelligence (the "House Intelligence Committee"). Id.

On February 21, 2020, the Post published an article titled "Senior intelligence official told lawmakers that Russia wants to see Trump reelected." Id. ¶ 3; Def.’s Mem. of Law in Supp. of Mot. to Dismiss, ECF No. 9 [hereinafter Def.’s Mem.], Ex. A, ECF No. 9-1 [hereinafter Article]. The Article reported that Shelby Pierson, a senior U.S. intelligence official, told members of the House Intelligence Committee, including Plaintiff, that Russia had "developed a preference" for President Trump and wanted to see him reelected. Id. According to an unnamed committee official, the briefing was open to all Committee members and covered "election security and foreign interference in the run-up to the 2020 election." Id. The Article did not specify the date of the briefing. See id.

The Article went on to report that President Trump "learned about Pierson's remarks from Rep. Devin Nunes (Calif.), the committee's ranking Republican and staunch Trump ally." Id. The Article continued: "Trump grew angry at his acting director of national intelligence, Joseph Maguire, in the Oval Office, seeing Maguire and his staff as disloyal for speaking to Congress about Russia's perceived preference." Id. Citing "people familiar with the matter," the Article noted that "Trump erroneously believed that Pierson had given the assessment exclusively to Rep. Adam B. Schiff (D-Calif.), the chairman of the House Intelligence Committee." Id. The Article did not specify the source or basis for the President's erroneous belief. See id. President Trump reportedly said that "Maguire should not have let the Capitol Hill briefing happen—particularly before he received the briefing—and that he should not have learned about it from a congressman," an apparent reference to Plaintiff. Id. The Article reported that "[Pierson's] analysis and Trump's furious response ruined Maguire's chances of becoming the permanent intelligence chief." Id. Maguire had been considered "a leading candidate to be nominated to the post of [Director of National Intelligence], ... [b]ut Trump's opinion shifted ... when he heard from [Nunes] about the official's remarks." Id. The Article noted that, on Wednesday, February 19, 2020, President Trump announced on Twitter that he was replacing Maguire with Richard Grenell, the then–U.S. ambassador to Germany and "a vocal loyalist." Id.

B. Procedural Background

On March 2, 2020, Plaintiff originally filed this action against Defendants in the Eastern District of Virginia, alleging one count of defamation per se and one count of common law conspiracy. Id. ¶¶ 16–29. In his Complaint, Plaintiff contends that statements in the Article, "republished millions upon millions of times," id. ¶ 15, "accuse and impute to [him] criminal misconduct" and "prejudice [him] in his profession and employment as a United States Congressman," id. ¶ 18. Specifically, he identifies two statements as false and defamatory: (1) that Plaintiff told President Trump that Pierson had given her assessment of Russia's preference for President Trump "exclusively to Rep. Adam Schiff" and (2) that the President's "opinion of Maguire shifted" after hearing from Plaintiff about Pierson's remarks. Id. ¶ 4. The Complaint seeks at least $250,000,000 in compensatory damages and at least $350,000 in punitive damages. Id. at 23.

On March 26, 2020, the Post moved to dismiss the Complaint for failure to state a claim and also moved to transfer the case to the District Court for the District of Columbia. See Def.’s Mot. to Dismiss Compl., ECF No. 8; Def.’s Mot. to Transfer, ECF No. 10. In moving to dismiss, the Post argued that the Complaint failed to sufficiently allege a false and defamatory statement and actual malice, and that the civil conspiracy claim failed for the same reasons. See Def.’s Mem. at 8–17, 26–28. In addition, asserting that California law applies to Plaintiff's claims, the Post maintained that Plaintiff's claims are procedurally barred in part because he failed to provide notice of them under California's Retraction Statute, Cal. Civ. Code § 48a. See id. at 17–24. Due to that failure, according to the Post, all that is available as a remedy to Plaintiff under California law is special damages, which he did not plead. See id. at 24–26.

On May 27, 2020, the case was transferred to this court, ECF No. 21, where the Post renewed its motion to dismiss, see Def.’s Supp. Br., ECF No. 24. Nearly four months later, with the motion to dismiss still pending, Plaintiff asked for leave to file an amended complaint. See Pl.’s Mot. for Leave to File Amended Compl., ECF No. 30 [hereinafter Pl.’s Mot. for Leave]. The proposed amendments do not alter Plaintiff's substantive allegations but rather add a new false light invasion of privacy claim, respond to the Post's procedural defense under California's Retraction Statute, and shore up Plaintiff's pleading on special damages. See Pl.’s Mot. for Leave, First Am. Compl., ECF No. 30-1 [hereinafter Am. Compl.]

III. LEGAL STANDARD

A motion to dismiss under Rule 12(b)(6) tests the legal sufficiency of a complaint. Sickle v. Torres Advanced Enter. Sols., LLC , 884 F.3d 338, 344 (D.C. Cir. 2018). "To survive a motion to dismiss, a complaint must contain sufficient factual matter ... to state a claim to relief that is plausible on its face." Id. at 344–45 (alteration in original) (quoting Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ). A claim is plausible on its face "when the plaintiff pleads factual content that 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.

When evaluating a motion under Rule 12(b)(6), the court must "accept the plaintiff's factual allegations as true," Sickle , 884 F.3d at 345, and "construe the complaint in favor of the plaintiff, who must be granted the benefit of all inferences that can be derived from the facts alleged," Hettinga v. United States , 677 F.3d 471, 476 (D.C. Cir. 2012) (internal quotation marks omitted). The court need not accept as true, however, "a legal conclusion couched as a factual allegation." Iqbal , 556 U.S. at 678, 129 S.Ct. 1937 (quoting Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ). Accordingly, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Id.

In determining whether a complaint fails to state a claim under Rule 12(b)(6), a court "may consider only the facts alleged in the complaint, any documents either attached to or incorporated in the complaint and matters of which [the court] may take judicial notice." Trudeau v. FTC , 456 F.3d 178, 183 (D.C. Cir. 2006) (quoting EEOC v. St. Francis Xavier Parochial Sch. , 117 F.3d 621, 624–25 (D.C. Cir. 1997) ). As relevant here, "[a] district court may consider documents attached to a motion to dismiss, without converting the motion into a motion for summary judgment, if those documents’ authenticity is not disputed, they were referenced in the complaint, and they are ‘integral’ to one or more of the plaintiff's claims." See Scott v. J.P. Morgan Chase & Co. , 296 F. Supp. 3d 98, 105 (D.D.C. 2017) (citing Banneker Ventures, LLC v. Graham , 798 F.3d 1119, 1133 (D.C. Cir. 2015) and Kaempe v. Myers , 367 F.3d 958, 965 (D.C. Cir. 2004) ).

IV. DISCUSSION

The Complaint contains two related counts: The first claims that Defendants defamed Plaintiff; the second claims that Defendants conspired with House Democrats to defame him. Compl. ¶¶ 16–29. The Post argues that both counts should be dismissed for failure to state a claim. See Def.’s Mem. As explained below, the court agrees.¹ And because Plaintiff's proposed amendments fail to cure the Complaint's fundamental defects, the court also denies Plaintiff's Motion for Leave to File an Amended Complaint.

A. Count I: Defamation

1. Defamation by Implication

Although Plaintiff styles the first count as "defamation per se," Compl. at 15, his claims are more appropriately considered defamatory implication claims. "[D]efamation by implication stems not from what is literally stated, but from what is implied." White v. Fraternal Order of Police , 909 F.2d 512, 518 (D.C. Cir. 1990)....