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Wednesday, August 04, 2021

Defamation procedure I

Yesterday saw developments in two stupid defamation lawsuits brought by two stupid people, but with some procedural fun thrown in.

First, Devin Nunes filed another defamation suit (how many is this?), this one against NBC Universal in the Eastern District of Texas over packages Nunes received from a Russian agent. This has the usual problems for a Nunes defamation suit--some of the challenged statements are opinion and rhetoric and there are no allegations showing actual malice. But as always, I am here for the procedure:

    • What the hell is the case doing in Texas? Nunes is from California and works in D.C; NBC Universal is a Delaware LLC with its PPB in New York. There is no connection between these statements and Texas, other than that they were heard in Texas along with every other place in the United States where MSNBC telecasts and Maddow tweets can be heard. The statements are not "about" Texas, Texas people, or Texas activities. Weird forum choice has been a common feature of Nunes' lawsuits; the first suit (against Twitter, Liz Mair, and Devin Nunes' Cow) went into state court in a remote spot of Virginia. But Virginia made some sense, since Mair lives there and it is close to D.C. Texas just seems random. Keeton v. Hustler is still out there (and the complaint, which for reasons of bad lawyering shifts into making legal arguments, cites it). But the recent jurisdictional trend in defamation cases is that there must be more of a connection between the statements and the forum, even for nationally distributed publications.

    • ¶ 10 states "MSNBC is at home in Texas and is subject to general personal jurisdiction in Texas," a statement which does not reflect the law as it has been for at least seven years and should be sanctionable. If that is the hook Nunes' lawyer plans to use, this should be over quickly.

    • Even if jurisdiction (and therefore venue) is proper, this case again seems ripe for transfer. No one and nothing central to this case occurred or is located in Texas. NBC has a good argument that its witnesses and evidence are located in New York, where it engaged in its reporting and broadcasting activities.

Posted by Howard Wasserman on August 4, 2021 at 01:46 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman, Judicial Process | Permalink


Ohhh, comments not disabled, what a lucky find!

I agree the choice of TX venue is a bit of a headscratcher. Especially because the only judge in the Sherman Division, where Nunes filed, is Mazzant, an Obama appointee. Granted, Mazzant's reputation is not as a bleeding heart, and he ruled against the Obama admin in at least one major case.

Anyhow, you got me curious as to a possible explanation, so I did a little digging. I do note that one of Nunes' counsel, Steven Biss, who isn't in TX himself, seems to like the Sherman Division. Back in 2018, he was co-counsel on a defamation case filed by Ed Butowsky in that division against NPR et al. based on fallout from the Seth Rich brouhaha. Granted, Butowsky and his investment company are both located in EDTX, so that's an important difference. But NPR et al. had zero connection, just like NBCU here. I will say the jurisdiction allegations for NPR et al. were not as threadbare as compared to these. Interestingly, NPR and the main reporter at issue denied the allegations, but didn't actually move to dismiss, while other, less central, defendants did so move.

Moreover, Biss and the other counsel repping Nunes here filed a defamation case in Sherman against CNN and Anderson Cooper on behalf of a TX doctor. Of course, again, you have a TX plaintiff, unlike Nunes. But the jurisdictional allegations are exactly the same barebones ones as ¶ 10 in Nunes' complaint. And obviously CNN and Cooper lack any particular connection to TX.

I don't know where I'm going with all this, aside from pointing out that Nunes' counsel seems to be fond of EDTX/Sherman. You could even say they feel "at home" there. Maybe that's why they keep coming back to it. If there are other reasons at work, they aren't readily apparent to me.


[PS, when comments are disabled, is there a way to indicate that from the main page, instead of just displaying "Comments (0)" only to find them disabled when clicking through to a posting?]

Posted by: kotodama | Aug 4, 2021 8:15:44 PM

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