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.

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


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  1. 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.


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