Prince v. Intercept

634 F.Supp.3d 114

Erik PRINCE, Plaintiff, v. The INTERCEPT, et al., Defendants.

21-CV-10075 (LAP)

United States District Court, S.D. New York

Signed October 6, 2022

Lauren Goldman, Sabina Mariella, Matthew Lane Schwartz, Boies Schiller Flexner LLP, New York, NY, for Plaintiff.

Jay Ward Brown, Mara Gassmann, Ballard Spahr LLP, Washington, DC, for Defendants First Look Media Works, Inc., Matthew Cole, Alex Emmons.

OPINION & ORDER

LORETTA A. PRESKA, Senior United States District Judge:

Before the Court are (1) Defendants First Look Media Works, Inc. n/k/a First Look Institute, Inc.'s ("First Look") and Matthew Cole's (together, the "First Look Defendants") motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6) and New York's "anti-strategic litigation against public participation" ("anti-SLAPP") statute, New York Civil Rights Law § 76-a,¹ and (2) Defendant Alex Emmons's motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and (b)(6) and New York's anti-SLAPP statute.² Plaintiff Erik Prince opposes the motions.³ For the reasons stated below, Defendants' motions to dismiss are GRANTED.

I. Background⁴

a. Factual Background

i. The Parties

Plaintiff Erik Prince is an American businessman and former U.S. Navy SEAL officer who gained notoriety for founding the private military company Blackwater, which secured U.S. government contracts including, "providing support for government agencies in the aftermath of the bombing of the U.S.S. Cole in Yemen, assisting in the hunt for Osama Bin Laden following the September 11, 2001 attacks, providing support and training in Iraq and Afghanistan, and protecting domestic government facilities following Hurricane Katrina." (Compl. ¶¶ 21-22.) After Plaintiff sold his interest in Blackwater in 2010, Plaintiff founded the private equity firm Frontier Resources Group, "which invests in various companies in the natural resources, logistics, and transport spaces." (Id. ¶ 22.) He also served until April 2021 as an Executive Director and Vice Chairman of Frontier Services Group, which provides "integrated security, logistics, insurance, and infrastructure services for clients operating in frontier markets." (Id.)

Plaintiff is also well-known for his involvement in politics, particularly in the Trump administration. He is the brother of former U.S. Secretary of Education Betsy DeVos, (see id. ¶ 56), a public advocate and donor of President Trump, (see id. ¶ 32; dkt. no. 17 ("Brown Decl."), Ex. 1 at 4), and a former unofficial advisor to President Trump on military and foreign policy issues. (See Brown Decl., Ex. 1 at 4.)

Defendant First Look is a media company—founded by Pierre Omidyar (founder of eBay)—that owns and operates the online nonprofit news publication The Intercept since 2013. (Compl. ¶¶ 13, 23.) The Intercept is funded by Mr. Omidyar and reader donations. (Id. ¶¶ 25, 26.) Defendants Matthew Cole and Alex Emmons were national security reporters for The Intercept at the time the disputed article was published. (Id. ¶¶ 14, 15.)

ii. The Alleged Defamation

Plaintiff claims that an August 13, 2020 article (the "Article") written by Mr. Cole and Mr. Emmons and published by The Intercept defamed Plaintiff by portraying him as meeting "with a top official of Russia's Wagner Group⁵ and offer[ing] his mercenary forces to support the firm's operations in Libya and Mozambique." (Id. ¶ 4.) Specifically, Plaintiff alleges that Defendants published seven defamatory statements in the Article. (Id. ¶ 41.)

Plaintiff denies that he (1) met an "official from or representative of the Wagner Group," (2) "offered his services to support the Wagner Group's operations in Libya and Mozambique," or (3) "sent the Wagner Group a proposal to offer his services in Libya and Mozambique." (Id. ¶ 5.) Plaintiff also denies "caus[ing] any third party to meet with or submit a proposal to the Wagner Group on his behalf." (Id.) Because counsel for Plaintiff conveyed to Mr. Cole Plaintiff's denial that he met representatives of the Wagner Group prior to the Article's publication, Plaintiff contends that Defendants published the statements with knowledge of their falsity. (Id. ¶ 45.) Defendants included this denial in the published Article. (See Brown Decl., Ex. 1 at 2.) Rather than engage with Plaintiff about the details of their allegations, Plaintiff alleges that Defendants published each of the disputed statements based on anonymous sources. (Id. ¶ 42.)

Plaintiff contends that the Article accuses him of being "a criminal and disloyal to his nation" by claiming that he "engaged in illegal conduct and violated U.S. and U.N. sanctions and U.S. arms trafficking regulations by allegedly soliciting business from Wagner Group." (Id. ¶ 74.) These allegations have allegedly caused substantial harm and special damages to Plaintiff in the form of, among other things, monetary loss, injury to reputation and good will, and loss of profits. (Id. ¶ 75.)

The Article was subsequently republished by news outlets including, but not limited to, the Daily Beast, The Intellectualist, and The Moscow Times. (Id. ¶¶ 55-60.)

b. Procedural Background

Plaintiff filed suit against Defendants in this District on November 24, 2021, asserting claims for defamation per se and defamation per quod. (See Compl.) The First Look Defendants moved to dismiss the complaint (the "Complaint") for failure to state a claim on February 11, 2022. (See First Look Br.) Defendant Alex Emmons separately filed his motion to dismiss the claims against him in the Complaint for lack of personal jurisdiction and joined the First Look Defendants' motion to dismiss the Complaint for failure to state a claim on March 22, 2022. (See Emmons Br.) Plaintiff filed his opposition submission on March 21, 2022, (see Pl. Br.), and the First Look Defendants and Mr. Emmons filed separate reply submissions on March 28, 2022. (See First Look Reply, Emmons Reply.)

II. Legal Standards

a. Fed. R. Civ. P. 12(b)(2)

On a motion to dismiss for lack of personal jurisdiction pursuant to Rule 12(b)(2) of the Federal Rules of Civil Procedure, "[a] plaintiff bears the burden of demonstrating personal jurisdiction over a person or entity against whom it seeks to bring suit." Troma Entm't, Inc. v. Centennial Pictures Inc., 729 F.3d 215, 217 (2d Cir. 2013) (quoting Penguin Grp. (USA) Inc. v. Am. Buddha, 609 F.3d 30, 34 (2d Cir. 2010)). "In order to survive a motion to dismiss for lack of personal jurisdiction, a plaintiff must make a prima facie showing that jurisdiction exists." Eades v. Kennedy, PC Law Offices, 799 F.3d 161, 167-68 (2d Cir. 2015). "Th[at] prima facie showing must include an averment of facts that, if credited by the ultimate trier of fact, would suffice to establish jurisdiction over the defendant." O'Neill v. Asat Tr. Reg. (In re Terrorist Attacks on Sept. 11, 2001), 714 F.3d 659, 673 (2d Cir. 2013) (quotation marks omitted).

"In evaluating whether the requisite showing has been made," the Court must "construe the pleadings and any supporting materials in the light most favorable to the plaintiffs."⁶ The Court will not, however, "draw argumentative inferences in the plaintiff's favor." O'Neill, 714 F.3d at 673.

b. Fed. R. Civ. P. 12(b)(6)

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.' " In re Actos End-Payor Antitrust Litig., 848 F.3d 89, 97 (2d Cir. 2017) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009)). "A claim has facial plausibility 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. That "standard is not akin to a 'probability requirement,' but it asks for more than a sheer possibility that a defendant has acted unlawfully." Palin v. N.Y. Times Co., 940 F.3d 804, 810 (2d Cir. 2019). Evaluating "whether a complaint states a plausible claim for relief" is "a context-specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 556 U.S. at 679, 129 S.Ct. 1937.

When considering a motion to dismiss, the Court "accept[s] as true all factual allegations and draw[s] from them all reasonable inferences" in the plaintiff's favor. Dane v. UnitedHealthcare Ins. Co., 974 F.3d 183, 188 (2d Cir. 2020). The Court is not required, however, "to credit conclusory allegations or legal conclusions couched as factual allegations." Id. (ellipsis omitted). "Accordingly, threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice." Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014) (cleaned up).

In determining the sufficiency of a claim under Rule 12(b)(6), the court may review only the complaint, documents attached to the complaint or incorporated into it by reference, and documents "integral" to the plaintiff's allegations, even if not explicitly incorporated by reference. Biro v. Conde Nast (Biro I), 883 F. Supp. 2d 441, 455 (S.D.N.Y. 2012); see id. (noting that in a defamation action these documents typically include "the documents containing the allegedly defamatory statements").

The court may also review documents subject to judicial notice. The Court of Appeals has explained, "[a] court may take judicial notice of a document filed in another court not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related filings." Glob. Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 157 (2d Cir. 2006) (quoting Int'l Star Class Yacht Racing Ass'n v. Tommy Hilfiger U.S.A., Inc., 146 F.3d 66, 70 (2d Cir. 1998)).

III. Discussion

a. Personal Jurisdiction Over Defendant Alex Emmons

i. Judicial Estoppel

Plaintiff argues that Mr. Emmons is judicially estopped from challenging the Court's jurisdiction over him because in...