Judge Tells Devin Nunes' Dad (And Lawyer Stephen Biss) To Put Up Or Shut Up In Defamation Lawsuit Over Esquire Article

from the the-article-they-don't-want-you-to-read dept

Remember, Rep. Devin Nunes really doesn't want you to read this Esquire article entitled, Devin Nunes’s Family Farm Is Hiding a Politically Explosive Secret. He'd be super duper upset if you read it. The article is about how Nunes, who frequently refers to his prior job as a "dairy farmer" in Tulare, California, probably doesn't want the world to know that his family up and left California to take their farm to Iowa. The article is a worthwhile read, detailing how the information about the location of the Nunes' family farm seems to stay hidden -- including how an article that reveals the Nunes' family presence in Iowa, published in the publication Dairy Star in 2009, suddenly disappeared from Dairy Star's website when Lizza showed up in Iowa asking questions. The article also discusses how many farms in the area employ undocumented workers, but that's almost a side plot.

Either way, last fall, we wrote about how Nunes sued over the article in Iowa which, notably, has no anti-SLAPP law. As we pointed out at the time, this seemed like a case that was ripe for Hearst (the publisher of the article) and Lizza to try to make use of California's anti-SLAPP law, even though the case was filed in Iowa, because any reputational harm to Nunes would have to come in California, not Iowa. And, indeed, Hearst's smart lawyers took my advice (just kidding, they knew it without me suggesting it) and have asked the court to use California's anti-SLAPP law:

Iowa choice of law rules dictate that California law supplies the rule of decision in this case. Congressman Nunes pleads that he is “a citizen of California.”... Purported harm to his reputation would be most severely felt in the 22nd Congressional District of California, where Congressman Nunes was, at the time of publication, running for re-election.... In fact, Congressman Nunes expressly alleges that the Article was published for the purpose of “influenc[ing] the 2018 Congressional election.”... And the Amended Complaint rejects the notion that Congressman Nunes has any ties to Iowa, or to the family farm in Sibley. (“Plaintiff does not own an interest in his family’s dairy farm in Iowa, never has, and is not involved in any way in its operations.”).

For what it's worth, the filing also makes standard 12(b)(6) arguments for why the case should be dismissed even absent the California anti-SLAPP motion to strike (which would force Nunes to pay Hearst's considerable legal fees), pointing out that none of the contested statements are actually defamatory, and the complaint comes nowhere near pleading the "actual malice" standard. The judge is still considering that request, but should be ruling shortly.

What I had missed, however, was that earlier this year (perhaps realizing the California exposure of the Devin Nunes' suit), Nunes' lawyer Steven Biss filed a separate lawsuit on behalf of Nunes' family (his father and his brother) and their Iowa farm, Nustar Farms. The complaint is also against Hearst and reporter Ryan Lizza over the same article and makes the same basic defamation claims. This one demanded $25 million (Devin's lawsuit demanded $77.5 million). The court, recognizing the connection between the cases, has consolidated the two cases late last month. At least the second lawsuit has less of an argument for why California's anti-SLAPP should apply, since the plaintiffs are actually in Iowa.

So, Hearst's motion to dismiss in this case merely points out that none of the statements labelled as defamatory in the complaint are... defamatory.

Plaintiffs’ Complaint follows the same cadence as that of Congressman Nunes: It is filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while summarily alleging that 16 statements in the Article are false. But Plaintiffs’ Complaint does not explain why or how any of the 16 challenged statements are actionable, beyond simply quoting them and declaring them “false and defamatory.” The Complaint does not provide any factual information as to what aspects of the statements—some of which are an entire paragraph in length—are false, and why that is so. Plaintiffs have therefore failed to carry their burden of pleading falsity with sufficient factual detail to make the allegation plausible, as required by Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a more definite statement, with details explaining precisely how and why they maintain that the challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject Defendants to burdensome discovery that chills their and others’ First Amendment rights without specifying facts that would support their conclusory claims of falsity.

Notwithstanding Plaintiffs’ failure to satisfy Rule 8, every challenged statement is on its face not actionable for one or more reasons. Most are not statements “of and concerning” Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of Plaintiffs’ reputations in the community. Several are actually or substantially true, as admitted in the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism format of the Article and the overall context, and moreover such opinions are predicated on facts disclosed in the Article, and are therefore fair comment protected by the First Amendment....

In response Biss filed what strikes me as one of the weakest opposition motions I've seen. It's hand-wavey and misleading, but this post is long enough and I don't even need to dig into why, because, as first noted by Newsweek, Judge CJ Williams has already sided with Hearst, at least in following their "at a minimum" request that the judge make Biss and the Nunes family actually detail how the statements are false.

As you can see, Judge Williams is not convinced by Biss's hand-waving:

Defendants argue that plaintiffs’ complaint fails to identify “what aspect(s) of each statement is supposedly false and defamatory, and . . . what Plaintiffs allege the truth of the matter to be.”... Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery.... As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false.... It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

The Court then points out that all the performative hyperbole so common in Biss defamation complaints isn't going to cut it:

The remainder of plaintiffs’ complaint is bereft of any factual allegations pertaining to the truth or falsity of the challenged statements. Rather, the remainder of plaintiffs’ complaint is conclusory in nature. Paragraph 15 includes the conclusory allegation that the article contains a “defamatory gist and false implication[s].” Paragraphs 16 through 18 allege defendants republished the article. Paragraph 19 asserts that the article was “knowingly and intentionally flawed,” that “Lizza came to Sibley with a preconceived storyline,” and that he “fabricated a ‘secret’ where none existed,” citing as authority the Federalist’s website that makes a personal attack on Lizza. Under the heading Count I – Defamation, paragraphs 21 through 29 make assertions of defamation, republication and damages, but do not contain any factual allegations pertaining to the truth or falsity of the statements.

As for the actual statements in the article that Biss did call out, the court points out that there's not nearly enough there for a defamation claim. I won't go through each and every one, but the judge's analysis of the very first alleged defamatory statement should give you the gist of all the rest:

1. “So why did [Devin Nunes’] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy”.

The first two sentences in this bullet point are questions. Arguably, the first question asserts facts: Devin Nunes’ parents and brother covered their tracks and moved their farm to Iowa. The word “quietly” is an adjective arguably reflecting an opinion. The words “covered their tracks” could be an opinion, but implies facts, that is that the Nunes performed some act to conceal the move. The third sentence appears generally to assert an opinion: Esquire searched for the truth and discovered a lot of paranoia and hypocrisy. Whether Esquire searched for the truth seems a matter of opinion, as is whether Esquire discovered facts that led it or anyone else to conclude that there was some or a lot of something considered to be paranoia or hypocrisy. Plaintiffs’ complaint does not make it clear what it is in this bullet point they allege is false. In theory, plaintiffs could allege facts that would prove the first sentence to be false. That is, plaintiffs could allege that they did not move their farm to Iowa. Plaintiffs’ complaint does not make it clear at all which of these statements plaintiffs are alleging are false. Plaintiffs could be asserting that it is false that the Nunes concealed any move, or they could be asserting that Esquire did not discover paranoia or hypocrisy. Nor does the complaint allege facts showing that any of the statements are false or why they are false. How defendants’ answer the complaint or the defense they assert to the defamation claim turns on what it is that plaintiffs allege is false in this bullet point.

In other words, this is a classic SLAPP suit in which just quoting statements you dislike and declaring them defamatory is not nearly enough to plead a defamation claim. And each of the sixteen different statements laid out in the complaint gets similar treatment, leading to the following summary:

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs’ complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint. The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false.

However, rather than dismiss the complaint outright for a failure to state a claim, the Judge is willing to give Biss one more chance, though you can sense the doubt that anything will come of it:

Plaintiffs are granted 14 days to file an amended complaint specifically identifying the facts in the contested article they allege are false, and to allege facts which, if proven, would show those facts to be false. If plaintiffs do not file an amended complaint, the Court may dismiss this matter without further action by defendants.

It seems likely that Biss will file such an amended complaint. It seems unlikely that it will succeed in pleading defamation to a level that won't then be dismissed for failure to state a claim. But, of course, if the intention is just to SLAPP, then the goal is to just drag this out as long as possible anyway.

Once again, this is why Iowa needs an anti-SLAPP law, and we need a federal anti-SLAPP law as well.

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Filed Under: anthony nunes, anti-slapp, california, defamation, devin nunes, iowa, ryan lizza, slapp, statements of fact, steven biss
Companies: hearst, nustar farms