Twitter And Liz Mair Explain Why Devin Nunes' Lawsuit Doesn't Belong In Virginia

from the because-it-is dept

As you'll recall, Rep. Devin Nunes (R-Snowflake) has sued some online critics and Twitter. While most of the attention has been focused on the satirical "Devin Nunes Cow" Twitter account named in the first lawsuit, he also sued political consultant Liz Mair. The fact that he sued Mair in two separate lawsuits suggested a bit part of his intent with these lawsuits was to stifle her free speech.

Last month, both Mair and Twitter filed to have the lawsuit dismissed (it's not clear if the Cow has filed anything, and because it's in a state court, it's a pain in the ass to get those records). Both filings are worth reading, though both focus on pretty basic procedural arguments for why the case should be tossed. As we noted when the cases were first filed, it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than California (where he's from and where Twitter is based) to avoid California's strong anti-SLAPP law that would likely leave him on the hook for the defendants' legal fees. Virginia, in contrast, has a terrible anti-SLAPP law, which is missing nearly all of the important procedural elements of a good anti-SLAPP law to protect defendants from being bled dry through legal process.

Mair's filing argues that the case clearly belongs in California, and basically says that the court should toss it and if Nunes really wants to sue, he should be forced to refile in California (which he is unlikely to do):

Under well-settled principles of forum non conveniens, this case belongs in California, not Virginia. The Plaintiff, Devin Nunes, represents a congressional district in California and has no particular connection to Virginia. He lodges most of his claims, and levels most of his factual allegations, against Twitter, a California-based company. The evidence and witnesses necessary to evaluate these allegations are located almost entirely in California, far beyond the scope of this Court's power of compulsory process. Under Virginia choice of law rules, California will govern many or all of Mr. Nunes's claims. Further, the primary injury of which he complains--a more challenging re-election campaign in 2019 for his congressional seat in California--occurred entirely in California and evokes distinctly Californian interests.

While Mair does live in Virginia, the filing notes that it appears she was included in part just to have a thin veneer of an excuse to file the case in Virginia, pointing out that filing in Virginia state court seems to be little more than forum shopping. The filing also directly calls out the anti-SLAPP issue:

We can only assume that Mr. Nunes filed this case in Virginia because of his (mistaken) belief that if he filed in Virginia, its statute limiting strategic lawsuits against public participation (a.k.a. its anti-SLAPP statute)... would apply and the Virginia statute offers less protection to defendants in defamation suits than does the analogous anti-SLAPP statute in California.

Twitter's filing similarly questions the venue choice, making some of the same arguments, but with the added legal heft of Twitter's terms of service requiring any such lawsuit be brought in California.

This lawsuit does not belong in a Virginia court. The sole Plaintiff is Congressman Devin Nunes, a California resident and the representative for California's 22nd Congressional District. He filed this lawsuit over allegedly defamatory Tweets from several Twitter users--including two farcically posing as his "Cow" and his "Mom"--that he says cost him votes in his last election in California and interfered with his official work in Washington, D.C. He asserts claims against Twitter, Inc., a company headquartered in California and incorporated in Delaware, based on actions Twitter allegedly took or failed to take in California or elsewhere but that did not occur in or target Virginia at all. And he has asserted those claims in a Virginia court despite having agreed, as a Twitter user himself, to file any such claims solely in state or federal court in California.

Neither filing at this stage gets to the merits (or total lack thereof) because it's not necessary at this stage of the lawsuit. One hopes that the court makes quick work of this and dismisses the case. Nunes, who has since admitted that he's filed this case to go fishing for journalists' sources, seems unlikely to actually file suit in California and all the case has served to do is elevate the status of the Devin Nunes' Cow account, and demonstrate to the world what incredibly thin skin Devin Nunes has, and his willingness to abuse the legal process to go after people who make fun of him. For someone who once co-sponsored the Discouraging Frivolous Lawsuits Act, it's a pretty bad look.

Filed Under: anti-slapp, defamation, devin nunes, devin nunes cow', jurisdiction, liz mair, slapp, virginia
Companies: twitter


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  • icon
    Mason Wheeler (profile), 3 Jun 2019 @ 1:02pm

    the fact that he also sued a political consultant, Liz Mair, in two separate lawsuits was clearly to stifle her free speech.

    it seemed fairly obvious that Nunes chose to file them in Virginia state court, rather than Califonria

    This article needs a bit of proofreading...

    reply to this | link to this | view in chronology ]

  • identicon
    Bobvious, 3 Jun 2019 @ 2:23pm

    Sorry Mike. This suit absolutely belongs in Virginia,

    because that is where the 🐮 is being agisted, on one of Ms. Streisand's farms. In fact the 🐮 is there for specialist treatment for a rare extro-introversion disorder called the Streisand defect.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 4 Jun 2019 @ 1:38am

      Re: Sorry Mike. This suit absolutely belongs in Virginia,

      What a load of bull!

      reply to this | link to this | view in chronology ]

      • identicon
        Bobvious, 4 Jun 2019 @ 6:21am

        Re: Re: Sorry Mike. This suit absolutely belongs in Virginia,

        And suing someone called Mair is just horsing around. Perhaps that's why Rep. Nunes is sulky and saddle the time. Instead of suing in Cali, he tried somewhere farrier way. Perhaps filly next time? Dam me for being a foal if you like, but I'll colt as I see it.

        According to someone who has seen these cases strung out beef fore, Nunes was told "you'll wish steward never started this". He may have tractor down, but she'll be stallion his thunder.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2019 @ 2:35pm

    So ... the lawsuit's defendant lives in Virginia ... and the lawsuit's plaintiff, though technically a legal resident of California, presumably has a house either in Virginia or a stone's throw from the state line, where he (hopefully) spends his time most of the year. Maybe I'm missing something, but it would seem that Virginia would probably be the easiest and most convenient place to file a lawsuit based on those facts alone, as well as being less likely to burn a pile of money fighting a change of venue motion.

    That's not to suggest that this lawsuit even has any merit, and it's quite possible that people are giving Devin Nunes far more credit as a calculating evil genius than he deserves.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 3 Jun 2019 @ 6:47pm

      Re:

      and the lawsuit's plaintiff, though technically a legal resident of California, presumably has a house either in Virginia or a stone's throw from the state line, where he (hopefully) spends his time most of the year.

      If he's spending the majority of his time outside DC in Virginia then I'd say he's got some explaining to do, given what office he's in.

      The Plaintiff, Devin Nunes, represents a congressional district in California and has no particular connection to Virginia.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 3 Jun 2019 @ 7:16pm

        Re: Re:

        Perhaps not everyone is aware that the metropolitan area of Washington, D.C. (which borders Maryland and Virginia) extends well into Virginia, and many federal offices and agencies are located in northern Virginia, as was the baseball field where a crazed Bernie Sanders volunteer decided to go on a mass shooting spree against Republican lawmakers. (The people who originally carved out the District of Columbia apparently never imagined that the federal government would ever be so big and need so much space)

        https://en.wikipedia.org/wiki/List_of_federal_agencies_in_Northern_Virginia

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 3 Jun 2019 @ 8:44pm

          Re: Re: Re:

          Which could explain why he might be in the state a decent amount of time, but wouldn't change that he lives in california, was elected to (theoretically) represent the people who live there, Twitter is based in california, and as far as I can tell the only person involved who lives in virginia is Mair, who's actions appear to have been little more than re-tweeting and highlighting statements and/or claims made by a newspaper in california.

          One person actually living in the state does not(or should not) outweigh everyone else being from another state entirely.

          reply to this | link to this | view in chronology ]

          • identicon
            Anonymous Coward, 4 Jun 2019 @ 2:30pm

            Re: Re: Re: Re:

            Most residents of a state can be sued in that state. The court could split the case I suppose.

            How about using multi-jurisdiction legislation?

            reply to this | link to this | view in chronology ]

        • identicon
          ryuugami, 4 Jun 2019 @ 3:29am

          Re: Re: Re:

          as was the baseball field where a crazed Bernie Sanders volunteer decided to go on a mass shooting spree against Republican lawmakers

          Slipping that bit of trivia in was subtle as a jackhammer.

          reply to this | link to this | view in chronology ]

          • icon
            That One Guy (profile), 4 Jun 2019 @ 3:56am

            Who doesn't slip in random bits of trivia though?

            Slipping that bit of trivia in was subtle as a ten foot tall, rocket-propelled jackhammer, covered in neon, loaded with speakers loud enough to shatter ear-drums.

            reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 3 Jun 2019 @ 2:57pm

    What will happen to this dumb lawsuit?

    reply to this | link to this | view in chronology ]

  • icon
    Mason Wheeler (profile), 3 Jun 2019 @ 3:16pm

    Twitter's filing similarly questions the venue choice, making some of the same arguments, but with the added legal heft of Twitter's terms of service requiring any such lawsuit be brought in California.

    Without getting into the broader issue of the lawsuit's viability, can we please not legitimize this nonsense? The ability to use leonine contracts to effectively invent unaccountable private law is one of the worst things to ever come out of the Internet Age, and the sooner it's struck down, the better.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 3 Jun 2019 @ 5:36pm

      Re:

      Contracts specifying a particular state for legal matters have existed long before the Internet. Wall Street blazed that trail.

      reply to this | link to this | view in chronology ]

      • icon
        Mason Wheeler (profile), 4 Jun 2019 @ 6:30am

        Re: Re:

        Sure, but fake click-wrap "contracts" that cannot be negotiated (EULAs, website Terms of Service, etc) didn't. Plenty of places in the world don't recognize their legitimacy, and with good reason. Unfortunately, the USA is not one of those places. It needs to become one.

        reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 3 Jun 2019 @ 5:51pm

    out_of_the_blue is going to have a hell of a cow...

    reply to this | link to this | view in chronology ]

  • icon
    TasMot (profile), 4 Jun 2019 @ 6:19am

    Skin Depth

    Is Nunes somehow related to the thin-skinned line of Turkish ancestors that also spawned Recep Tayyip Erdoğan?

    reply to this | link to this | view in chronology ]

  • icon
    Ed (profile), 4 Jun 2019 @ 8:43am

    But in what state does Nunes get his prostitutes and cocaine?

    reply to this | link to this | view in chronology ]

  • icon
    Zof (profile), 4 Jun 2019 @ 1:29pm

    If some folks could just grow up

    You have grown adults acting like children and calling people names. I love it when these idiots get sued. I hope it becomes a trend.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 4 Jun 2019 @ 2:29pm

    Even Delaware no longer gives jurisdiction in lawsuits against "Delaware corporations." I kid you not.

    The long-arm test is usually two-pronged: the first is "minimum contact" with the forum state, and the second is the constitutionality of haling someone into court from a distance. Both prongs must be met.

    reply to this | link to this | view in chronology ]


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