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.

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


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  • icon
    Bt Garner (profile), 14 May 2020 @ 11:03am

    ...facts in the contested article they allege are false...

    "facts in the contested article they allege are false"

    Well, if they are truly false, then they aren't really facts, are they? Looks the judge basically just give them the same treatment as the original lawsuit.

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

    • icon
      Thad (profile), 14 May 2020 @ 2:13pm

      Re: ...facts in the contested article they allege are false...

      Well, if they are truly false, then they aren't really facts, are they?

      "False facts" in this context means false statements that are presented as facts. As opposed to statements of opinion.

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

  • icon
    That One Guy (profile), 14 May 2020 @ 11:06am

    Popehat, if you would...

    “Vagueness in legal threats is the hallmark of meritless thuggery.”

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

  • identicon
    Anonymous Coward, 14 May 2020 @ 11:25am

    As an aside, i always love how courts give plaintiffs time like 14 days to come up with something they should have had in the first place, and which any competent high school student would ve able to accomplish as an evening's homework.

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

    • identicon
      David, 14 May 2020 @ 1:08pm

      Re:

      Justice cannot be reserved just to competent high school students (though arguably an actual lawyer repeatedly failing to meet that bar should be incentivised to change profession). At any rate, it is not in the interest of the court to cut the opportunity of a plaintiff to provide evidence short: that gives an angle for appeal, and appeal has a likelihood of getting egg on the face of the judge and a whole lot more work than giving the plaintiff more rope to hang themselves would.

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

      • icon
        Stephen T. Stone (profile), 14 May 2020 @ 3:25pm

        In this specific case, the court gave the plaintiff more than enough time to provide evidence of defamation. The plaintiff provided none. While I appreciate the attempt at ass-covering by the court, that extra fortnight won’t bring any more evidence than the plaintiff has already provided.

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

        • icon
          Tanner Andrews (profile), 16 May 2020 @ 1:32pm

          Re:

          that extra fortnight won’t bring any more evidence than the plaintiff has already provided.

          Actually, no evidence is required at this stage. We are just looking at pleadings. All the plaintiffs need to do is allege some facts making the published statements false.

          For instance, the plaintiffs could allege, to supplement bullet point 1, that the Nunes family did not move its farming operations to Iowa, and that such a statement tended to injure them in the eyes of their California neighbors who had prior to the publication thought them respected dairymen in that state.

          There were several bullet points constituting the alleged tortious statements, and the judge laboriously went through them all. As the article above notes, the result was pretty much the same for all of the claimed defamatory statements.

          But that is all the plaintiffs have to do. No evidence needed at this stage. All they have to provide is some clear statements of facts entitling the pleader to relief.

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

          • icon
            Stephen T. Stone (profile), 18 May 2020 @ 2:02pm

            All they have to provide is some clear statements of facts entitling the pleader to relief.

            That they have not yet done so leaves me (and obviously the judge in this case) to believe they will not do so after the two-week extension runs out.

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

  • identicon
    Pixelation, 14 May 2020 @ 11:39am

    I suppose an audit of the farms workers will settle the issue. Right?

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

  • icon
    bhull242 (profile), 14 May 2020 @ 11:47am

    Did anyone else notice that they repeatedly refer to “Midwestern diaries” employing undocumented workers?

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

  • identicon
    Anonymous Coward, 14 May 2020 @ 12:22pm

    The law is on the books but not any more enforceable than the other laws they can't enforce.

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

  • identicon
    Anonymous Coward, 14 May 2020 @ 12:27pm

    Nunes owning a farm or having farm workers in IA isn't contrversial unless he is a specific group of organizations the US sanctioned.

    I also barely work on a farm lol.

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

  • identicon
    Anonymous Coward, 14 May 2020 @ 12:28pm

    Thank you for continuing to link this article to these stories. I finally clicked through to the Esquire article. Wow. It's really a great article.

    The Nunes family really can't see past their collective nose on this one. The article is barely about them by the end of the story. It's just using them as a particularly noteworthy example of a system that is super broken. And for that the feel like they have the need to sue.

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

    • identicon
      OGquaker, 16 May 2020 @ 1:02pm

      Re: America is a Socialist country

      ".....If dairies had to use legal labor, they would likely have to raise that to eighteen or twenty dollars, and many dairies wouldn’t survive. People are going to go broke, the farmer said. The story was similar in the poultry, meatpacking, and other agricultural industries..." The "System" is to create 3ed class Americans that we don't have to pay a real wage or offer medical or Workmans Comp; those cost's are picked up by the taxpayer, a backhanded subsidy: socialism for our Corporate oligarchy. The System is working just fine. Thank you.

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

  • icon
    Code Monkey (profile), 14 May 2020 @ 12:31pm

    Sounds like....

    ....Nunes is suffering from the Streisand Effect.....

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

    • icon
      Thad (profile), 14 May 2020 @ 2:17pm

      Re: Sounds like....

      No, this is different.

      The Streisand Effect is when someone tries to cover up something they don't want people to know and calls more attention to it in the process.

      That's not what Nunes is trying to do. This is once of a series of performative lawsuits designed with a couple of purposes in mind:

      1. Feed a victim narrative during an election year -- "look at how these evil liberals have targeted me; please donate to my reelection campaign."
      2. Intimidate his critics. Even though these lawsuits are meritless, they're going to be expensive and bothersome to the defendants, and will make other small press outlets think twice before they criticize him.

      He's not actually trying to suppress these stories. He's only pretending to.

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

  • icon
    DB (profile), 14 May 2020 @ 1:10pm

    Can anyone knowledgeable comment on how consolidating the cases in Iowa affects the choice-of-law aspect where the California SLAPP statute might apply?

    The consolidation might be a clever way to avoid paying legal fees. The Nunes family in Iowa and Biss in Virginia can claim to have minimal connection to California and thus assert that it would be unjust for the California law to apply to the consolidated case.

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

  • icon
    That Anonymous Coward (profile), 14 May 2020 @ 3:08pm

    If you have the facts on your side, pound the facts.
    If you have the law on your side, pound the law.
    If you have neither on your side, get Stephen Bliss to pound the table.

    That useful internet phrase goes here...
    Christ what an asshole.

    The truly shocking thing is that a Nunes is so detached from reality he thought these cases stood a chance & that his imagined victory would keep the news from asking the hard questions like why haven't you had a town hall in 10 yrs, why do you fundraise no where near your district, did the cow really really hurt your feels?

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

    • icon
      That One Guy (profile), 14 May 2020 @ 4:07pm

      Re:

      Pretty sure Thad has it right above, he didn't think the cases stood a chance legally, but as that's not their purpose it doesn't really matter.

      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, 14 May 2020 @ 5:52pm

    Dear out_of_the_blue,

    Suck it.

    Signed,
    27 Bangladeshis

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

  • identicon
    Anonymous Coward, 15 May 2020 @ 3:50am

    Mike, you don't explain who "Lizza" is in this article. Yeah, sure, we could click through to the article Devin Nunes doesn't want us to read and discover that, but failing to explain who he is doesn't half garble up the opening to this column .

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

  • identicon
    Anonymous Coward, 15 May 2020 @ 10:09am

    At long last, we discover the secret of why Devin Nunes' cow has been so salty for so long - someone up and dragged it from California to Iowa.

    You'd be salty too if it happened to you.

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

  • This comment has been flagged by the community. Click here to show it
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