Nunes Defamation Case Against CNN Dismissed On Procedural Challenge

 

The $435 million defamation lawsuit brought against CNN by Devin Nunes (R., CA), has been dismissed but not on a determination of truth or the merits. The decision was based on a technical or procedural omission by Nunes, but the jurisdictional question was an impressive combination of standards in three different jurisdictions. United States District Judge Laura Taylor Swain issued a ruling in New York to apply Virginia’s choice of law standard that in turn applied California’s defamation laws. It was a cascading deconstruction of the lawsuit.  Nunes ultimately lost due to a failure to demand a retraction with 20 days and then a failure to properly plead special damages in light of that jurisdictional finding.

The lawsuit was prompted by CNN airing what Nunes alleged as a clearly false story that he was involved in efforts to get “dirt” on then-Democratic presidential candidate Joe Biden and his son, Hunter Biden. The source was Lev Parnas, a dubious character and long-time associate of Rudy Giuliani. He is facing criminal charges in New York.

Nunes wanted to prove that the story was false but CNN sought dismissal for the procedural failure. In my torts class, I teach defamation and often discuss the California retraction law.

The law is one of the most restrictive in the county.  Under the California Civil Code, a party is limited to special damages “unless a correction is demanded and is not published or broadcast, as provided in this section.” Cal. Civ. Code § 48a(a). “The notice and demand must be served within 20 days after knowledge of the publication or broadcast of the statements claimed to be libelous.”  Nunes did not ask for such a correction under California law because he filed in Virginia.  However, CNN insisted that his injury was inextricably tied to the fact that he represented and lives in a district in California.

California’s law is designed to hinder such lawsuits. It does not give much time to an aggrieved party to act, particularly when they are seeking the advice of counsel. It is very likely that brief period ran before Nunes resolved to sue and then secured the necessary counsel. This is even more difficult for average citizens who are unaware of the requirement.

In fairness to Nunes’ legal team, there was a good-faith argument that New York or Virginia law should apply rather than California’s law.  Both parties agreed that Virginia law would govern on choice of law since Nunes initiated this lawsuit in Virginia. That triggered Virginia’s application of the doctrine of lex loci delicti where “the law of the place of the wrong governs all matters related to the basis of the right of action.” Dreher v. Budget RentA-Car Sys., Inc., 634 S.E.2d 324, 326 (Va. 2006). However, with this type of broadcast or mass distribution publication, it is difficult to determine “the state where the content at issue was published.” Gilmore v. Jones, 370 F. Supp. 3d 630, 664 (W.D. Va. 2019). Accordingly, the federal court in New York had to decide where how Virginia courts would likely rule on the “place of the wrong” in this multistate defamation case. It ruled that the Virginia courts would likely apply the California law.

The jurisdictional question was a poison pill finding for the litigation.  As a result of the jurisdictional decision, the sufficiency of the amended complaint turned on whether it had properly alleged special damages. The Court found that Nunes had not:

“While the AC uses the phrase “special damages,” refers to “out of pocket expenses,” and includes a dollar amount that encompasses the entire array of damages claims, it provides no further indication of the basis or quantum of any special, or economic, element of his damages claim. A general “monetary demand stated in round numbers is generally not considered to reflect the specific damages required of special damages.” Marino v. Jonke, No. 11 CV 430 VB, 2012 WL 1871623, at *10 (S.D.N.Y. Mar. 30, 2012). Nor do such general allegations explain what the damages comprise or how they are calculated, denying both Defendant and the Court information as to the substance of the complaint. See Barrett v. U.S. Banknote Corp., No. 91 CIV. 7420 (RPP), 1992 WL 232055, at *8 (S.D.N.Y. Sept. 2, 1992) (holding that special damages allegation that proffered neither a specific damages figure nor a method of computing the damages was insufficient). In short, “[d]amage claims of this generality do not constitute adequate pleading of special damages[,]” id., and “without an allegation of special damages, the [AC] does not allege a legally sufficient cause of action [for defamation] under California law.” King v. Am. Broad. Companies, Inc., No. 97 CIV. 4963 (TPG), 1998 WL 665141, at *4 (S.D.N.Y. Sept. 28, 1998) (dismissing Plaintiff’s defamation Case 1:20-cv-03976-LTS-OTW Document 48 Filed 02/19/21 Page 16 of 18 NUNES – MTD VERSION FEBRUARY 19, 2021 17 claims where he failed to both comply with the California retraction statute and allege special damages in the complaint).”

As a result, Nunes will not be able to reach the merits of the case (absent an appeal). Of course, those merits were always a challenge since he is a public official. The standard for defamation for public figures and officials in the United States is the product of a decision decades ago in New York Times v. Sullivan. This is precisely the environment in which the opinion was written and he is precisely the type of plaintiff that the opinion was meant to deter. The Supreme Court ruled that tort law could not be used to overcome First Amendment protections for free speech or the free press. The Court sought to create “breathing space” for the media by articulating that standard that now applies to both public officials and public figures. In order to prevail, Weaver must show either actual knowledge of its falsity or a reckless disregard of the truth.

Here is the opinion: Nunes v. CNN

 

 

34 thoughts on “Nunes Defamation Case Against CNN Dismissed On Procedural Challenge”

  1. Just think what all the Leftists and Propaganda tools of the Neo Marxists in America must now be thinking…
    Maybe Conservatives should learn a thing or two and accuse Biden of being a member of the Biden Crime family, or Harris of being responsible for riots and promoting violent behavior which she
    backed up by paying the bail of those jailed…

    Oh wait…. These accusations were TRUE and look where that gets you… LOL!!!

    Or Justice system is a mockery and those participating in the farce are the clowns that continue to foster the decent of the Judiciary to that of the CNN.

    An albatross that is to journalist as Heinrich Himmler was to the truth…

  2. The “justice” system in this country has merely become a way for lawyers and judges to twist the law to fit their own ends. If you’re Devin Nunes suing CNN, you already knew what the outcome was going to be in this trial as did every conservative in the country. Really appalling.

    1. Absolutely nothing prevented Nunes from asking CNN to retract the claim within the required time period. Nothing. Nada.

      Don’t blame the justice system for Nunes’ failure.

  3. WHEN WRONG IS RIGHT

    Clearly the corrupt judicial branch acted as judge, jury and executioner in this case, as it did in the 2020 election, wherein no evidence of manifest violations of state election law, election fraud and vote tampering was given a hearing, allowed in or, otherwise, exposed in the light of day. The bias and defamation are manifest herein.

    The insidious introduction of obfuscatory complexity and convolution is a communist (liberal, progressive, socialist, democrat, RINO) tactic based on the philosophy, not of ethical conduct but on the ends justifying the means, as due process is designed to inexorably achieve a predetermined outcome. The law on the law is obscure beyond comprehension, necessity or requisite. No judicial pronouncement should be longer than the law itself.

    The scales of justice do not enjoy 20/20 vision. Justice is devised to be blind. America became a lawless society of laws long ago. At some point, men are left with no recourse.
    __________________________________________________________________________________________________________________________________________

    “But when a long train of abuses and usurpations, pursuing invariably the same Object evinces a design to reduce them under absolute Despotism, it is their right, it is their duty, to throw off such Government, and to provide new Guards for their future security.”

    – Declaration of Independence

  4. So yet again….the evidence and issues do not get examined for “procedural reasons”…..sounds familiar doesn’t it?

    Remember Nunes was accused of having gone to Ukraine for that imaginary meeting….when he had ironclad proof he was elsewhere at the time of the alleged meeting.

    He was falsely accused because the “alligator” either knowingly lied or did not do its due diligence.

    What does it take now….refile the Suit in California and have CNN argue the case should be held in New York……or re-file it in New York and have New York apply the California Law?

    Am I missing something here?

    1. You’re missing something. NY determined that CA law takes precedence, and CA law required Nunes to request a retraction within 20 days. He didn’t. There is no case.

  5. An unfortunate turn of events for Nunes. Professors of Civil Procedure will have interesting discussions with their students over this case. Sometimes procedure is everything.

    1. Cassidy– “Sometimes procedure is everything.”

      ***

      Lately with election fraud ‘procedure’ has been everything.

  6. “Accordingly, the federal court in New York had to decide where how Virginia courts would likely rule on the “place of the wrong” in this multistate defamation case. It ruled that the Virginia courts would likely apply the California law.”
    *************************************
    The case was lost on the venue transfer hearing when it got off our EDVA rocket docket and was sent to the hinterlands of NY. However, I think the NY Federal judge predicted the Virginia legal sentiment incorrectly. Virginia would not enforce a law completely denying relief on procedural grounds as against its manifest public policy that wrongs need to be righted where possible. Too bad the NY feds didn’t certify the case to the VASC for a decision by them.

    1. Too bad the NY feds didn’t certify the case to the VASC for a decision by them.
      ****
      Maybe they didn’t really want that answer.

  7. Turley: “However, with this type of broadcast or mass distribution publication, it is difficult to determine “the state where the content at issue was published.”
    ***
    Overthinking it can make it difficult. Why not place jurisdiction at the point of origin, where the studio is located? Why ignore the fact that there are identified places and people without whom the defamation would not have occured?

    I revere Anglo/American law. It is the work of 1,000 years of experience and more. But it is being destroyed by judges for whom politics offer more compelling precedents than actual law. The people are noticing and that destroys trust in the entire system.

    1. The suit is based on an article published on CNN’s website plus a broadcast appearance by the reporter on Cuomo Prime Time. The studio for that is in NY, not VA.

      Wikipedia –
      “On May 22, 2020, U.S. District Judge Robert E. Payne granted CNN’s request to transfer the suit to the Southern District of New York, finding “no logical connection” between the lawsuit and the Virginia court where it was filed, and citing “significant concerns” that the lawsuit had been filed in Virginia for the purpose of forum shopping.” Wikipedia citation for that content: https://www.law.com/newyorklawjournal/2020/05/22/devin-nunes-defamation-case-against-cnn-transferred-to-manhattan-federal-court/ (paywalled)
      This suggests that mespo727272 is wrong that the NY should have certified the case to the VASC for a decision by them.

      Related, a MD judge also tossed a defamation suit Against CNN by a Nunes’ aide this week, again related to CNN’s reporting that Nunes met with former Ukrainian prosecutor Victor Shokin “to discuss digging up dirt of Joe Biden,” based on statements by Lev Parnas.
      https://lawandcrime.com/first-amendment/federal-judge-dismisses-devin-nunes-aides-lawsuit-against-cnn/

      1. An: “This suggests that mespo727272 is wrong that the NY should have certified the case to the VASC for a decision by them.:

        ***

        Not if the court was basing its decision on a mistaken understanding of VA law.

        Mespo is usually, maybe always, right.

        1. mespo727272 very clearly isn’t always right. We can see him being corrected about all sorts of things in the discussions here.

          Payne is a US District Judge for the Eastern District of Virginia. You think he has “a mistaken understanding of VA law”? Based on what?

          1. Anon: “You think he has “a mistaken understanding of VA law”? Based on what?”
            ***

            On being wrong.

          2. Anon: “mespo727272 very clearly isn’t always right. We can see him being corrected about all sorts of things in the discussions here.”

            ***

            I see people, usually, like you, with no names, who don’t understand what he is saying when they ‘correct’ him.

              1. Aninny:

                It looks 20/20. I’m wrong occasionally (and I try to point that out) but the difference between the two of us is that I use my own material and I am not intentionally wrong with the purpose of misleading folks.

      2. Aninny:
        “On May 22, 2020, U.S. District Judge Robert E. Payne granted CNN’s request to transfer the suit to the Southern District of New York, finding “no logical connection” between the lawsuit and the Virginia court where it was filed, and citing “significant concerns” that the lawsuit had been filed in Virginia for the purpose of forum shopping.” Wikipedia citation for that content: https://www.law.com/newyorklawjournal/2020/05/22/devin-nunes-defamation-case-against-cnn-transferred-to-manhattan-federal-court/ (paywalled)
        This suggests that mespo727272 is wrong that the NY should have certified the case to the VASC for a decision by them.”
        ********************************
        Like Young said, you don’t know what you’re reading. I clearly said the case was “lost” at the venue hearing but I didn’t say Judge Robert Payne (who I’ve known for 25 years or so and is a fine jurist and was an even better college athlete) was wrong on the issue. I was talking specifically about the choice of law question where the NEW YORK federal judge predicted what Virginia STATE law would hold in the case of the choice of laws w/r/t California’s procedural bar in defamation cases unless a retraction was sought. Judge Payne did NOT rule on that question of Virginia law. He ruled on the venue question that only which only encompasses FEDERAL law. He was likely correct in the ruling based on FEDERAL law but that doesn’t mean it wasn’t a death knell to the defamation case.

        Young has it right. You know a little but think you know it all. In this case, you missed the boat, the dingy and the canoe.

  8. Doing one of the debates Trump accused Hunter Biden of taking a $3.5 million dollar bribe from Russia. If that isn’t true why isn’t Hunter Biden suing for defamation?

    Everyone should sue Trump.

    The people of America should file a class action lawsuit for damages caused by a lack of leadership.

    1. Benji , hate to break it to you but crackhead hunter is guilty of that and way more. Hence the criminal won’t sue. It would open even more cans of worms in his senile daddy’s take from CHYNA…you know the place that manufactured the Wuhan Flu…yeah that place…CHYNA !.

    2. Hey Ben. You ask a good question. Why isn’t Hunter suing Trump? Maybe it’s because his daddy has given him strict orders to keep a low profile. Daddy is smart enough not to reopen the can of worms that he never denied. Thanks Ben for reminding us. You have performed an act of civil service.

  9. Full moon. On Nunes.
    And his wife and family.
    After serving in Congress overseas.
    And the time that he serv d…
    Had shattered all his verbs.
    And left a little syphilis in his knees.

    And his life had lost its fun.
    There is nothing to be done.
    But trade his name for a fart on freedoms hill.
    With a flag drapped casket on a local zeros bill.

    There’s a hole in Nunes arm…
    We here all the money goes.
    Jesus Christ tried for nuttin…
    I suppose.

  10. Couldn’t get to the nub: “Was the dismissal justified or a move by the court to get rid of an unwelcome suit?”.

    I have lost a lot of respect for American justice over the past few years.

    Justice appears to be capricious (witness qualified immunity, the many times judges punt, the painfully slow process, the incredible costs, and the many dubious lawyers).

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