Nunes v. Cable News Network, Inc.

Background

Devin G. Nunes sued Cable News Network, Inc. (CNN), asserting defamation per se and conspiracy to defame. Nunes alleged that CNN published a false article and related television and social-media reporting stating that Joseph Bondy, a lawyer for Lev Parnas, said Parnas was willing to testify that Nunes had traveled to Vienna and met with former Ukrainian Prosecutor General Victor Shokin to discuss “digging up dirt” on former Vice President Joe Biden.

CNN moved to dismiss the amended complaint under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not state a legally sufficient claim. CNN argued that California law applied and that Nunes’s failure to make a timely retraction demand limited him to special damages, meaning specific economic losses. CNN also argued that Nunes had not pleaded those damages adequately and had not alleged enough facts to support a conspiracy claim.

The case was originally filed in the Eastern District of Virginia and was transferred to the Southern District of New York under 28 U.S.C. § 1404. The court stated that Virginia choice-of-law rules governed because the case had been filed in Virginia.

Choice of Law

The court concluded that California law governed the claims. Applying Virginia’s place-of-the-wrong rule, the court predicted that the Virginia Supreme Court would identify the primary place of injury in a multistate Internet defamation case as the state where the plaintiff suffered the greatest harm, ordinarily the plaintiff’s domicile absent strong countervailing circumstances.

The court found that Nunes was primarily injured in California. It relied on the complaint’s allegations that he was a California citizen, was born and raised there, had longstanding ties to California, and had represented California citizens in elected office since 2003. The court rejected Nunes’s arguments for applying New York, Virginia, or District of Columbia law based on CNN’s presence, the locations of CNN personnel, or Nunes’s work in Virginia and the District of Columbia.

California Retraction Statute

California Civil Code § 48a(a) limits a defamation plaintiff’s recovery to special damages unless the plaintiff makes a written demand identifying the allegedly libelous statements and requesting a correction within 20 days after learning of the publication. The court held that the statute applied to CNN’s electronic news article and television reporting and did not exempt defamation-per-se claims.

The amended complaint did not allege that Nunes sent CNN a written retraction demand, much less one sent within the statutory 20-day period. The court therefore held that Nunes could seek only special damages. It also held that the statute was substantive, rather than merely procedural, and therefore applied in this diversity case. The court rejected Nunes’s argument that applying the statute would violate Virginia public policy.

Pleading of Special Damages

Federal Rule of Civil Procedure 9(g) requires special damages to be stated specifically. The court found that the amended complaint did not satisfy that requirement. Although it referred to “special damages,” “out of pocket expenses,” and a total demand of $435,000,000, it did not identify the economic losses, their amounts, or how they were calculated.

The court held that these general allegations did not provide adequate notice of the claimed special damages. It therefore dismissed the defamation claim under Rule 12(b)(6) for failure to state a claim.

Conspiracy Claim

Under California law, a civil-conspiracy claim requires an underlying tort. Because Nunes had not adequately pleaded a viable defamation claim, the court held that there was no underlying tort to support the conspiracy claim. The court also found that Nunes had not pleaded sufficient facts showing that CNN agreed with Joseph Bondy, Lev Parnas, or others to defame and injure him. The allegations that CNN acted in concert with them were conclusory and did not plausibly establish an unlawful agreement.

Disposition

Judge Laura Taylor Swain granted CNN’s motion to dismiss the amended complaint in its entirety. The court directed the Clerk to enter judgment dismissing the amended complaint and to close the case. The opinion does not specify whether the dismissal was with or without prejudice.