Blankenship v. Napolitano

Decision Date31 March 2020
Docket NumberCivil Action No. 2:19-cv-00236
Parties Don BLANKENSHIP, Plaintiff, v. Andrew NAPOLITANO et al., Defendants.
CourtU.S. District Court — Southern District of West Virginia

Eric P. Early, Pro Hac Vice, Jeremy Gray, Pro Hac Vice, Kevin S. Sinclair, Pro Hac Vice, Lisa Marie Zepeda, Pro Hac Vice, Thomas Lee, Pro Hac Vice, Zachary Austin Gidding, Pro Hac Vice, Early Sullivan Wright Gizer & McRae, Los Angeles, CA, Jeffrey S. Simpkins, Simpkins Law Office, Williamson, WV, for Plaintiff.

David Parker, Pro Hac Vice, Kevin S. Elliker, Pro Hac Vice, Hunton Andrews Kurth, Elbert Lin, Hunton & Williams, Richmond, VA, Jonathan Zak Ritchie, Ryan McCune Donovan, Hissam Forman Donovan Ritchie, Charleston, WV, for Defendant Fox News Network, LLC.

Brian A. Glasser, Raymond S. Franks, II, Bailey & Glasser, Charleston, WV, Gloria K. Maier, Pro Hac Vice, Kevin T. Baine, Pro Hac Vice, Stephen Joseph Fuzesi, Pro Hac Vice, Sarah Anne Goldman, Pro Hac Vice, Williams & Connolly, Washington, DC, for Defendants Cable News Network, Inc., WP Company LLC.

Elise Nicole McQuain, Jared M. Tully, Frost Brown Todd, Charleston, WV, Kevin T. Shook, Pro Hac Vice, Frost Brown Todd, Columbus, OH, Monica L. Dias, Pro Hac Vice, Frost Brown Todd, Cincinnati, OH, for Defendant MSNBC Cable LLC.

Anthony J. Dick, Pro Hac Vice, Michael A. Carvin, Pro Hac Vice, Stephen J. Kenny, Pro Hac Vice, Jones Day, Washington, DC, Melissa Foster Bird, Nathan R. Hamons, Christopher D. Smith, Nelson Mullins Riley & Scarborough, Huntington, WV, for Defendant National Republican Senatorial Committee.

Zachary Michael Wallen, Chalmers & Adams, Pittsburgh, PA, Michael John Pattwell, Clark Hill, Lansing, MI, for Defendant 35th Inc.

Amanda J. Taylor, Stephen P. New, The Law Office of Stephen P. New, Beckley, WV, for Defendants Watauga Watch, J. W. Williamson.

Andrew Eisbrouch, Pro Hac Vice, New York, NY, Sean P. McGinley, DiTrapano Barrett & DiPiero, Charleston, WV, for Defendants Mediaite, LLC, Tamar Auber.

Allen M. Gardner, Pro Hac Vice, Sarah Gragert, Pro Hac Vice, Latham & Watkins, Washington, DC, John J. Polak, Atkinson & Polak, Charleston, WV, for Defendants FiscalNote, Inc., Griffin Connolly.

Chris Vlahos, Pro Hac Vice, Jenna L. Harris, Pro Hac Vice, Ritholz Levy Fields, Nashville, TN, William David Wilmoth, Steptoe & Johnson, Wheeling, WV, for Defendant News and Guts, LLC.

Sean P. McGinley, DiTrapano Barrett & DiPiero, Charleston, WV, for Defendant the Charleston Gazette-Mail.

Alison Schary, Pro Hac Vice, Eric J. Feder, Pro Hac Vice, Davis Wright Tremaine, Washington, DC, Kelli L. Sager, Pro Hac Vice, Davis Wright Tremaine, Los Angeles, CA, Sean P. McGinley, DiTrapano Barrett & DiPiero, Charleston, WV, for Defendant American Broadcasting Companies, Inc.

Harry S. Johnson, Pro Hac Vice, Whiteford Taylor & Preston, Baltmore, MD, Jennifer S. Jackman, Pro Hac Vice, Whiteford Taylor & Preston, Washington, DC, Joseph Christof, S.D., II, Melvin F. O'Brien, BreiAnne R. Varner, Dickie McCamey & Chilcote, Wheeling, WV, for Defendant Eli Leher.


John T. Copenhaver, Jr., Senior United States District Judge

Pending are nineteen (19) motions to dismiss the First Amended Complaint in this action pursuant to Rule 12(b)(2) for lack of personal jurisdiction and/or Rule 12(b)(6) for failure to state a claim.

I. Background

The plaintiff, Don Blankenship, initiated this action on March 14, 2019 in the Circuit Court of Mingo County, West Virginia, alleging claims of defamation and false light invasion of privacy against several media organizations and reporters.1 See ECF No. 1. The action was removed to this court pursuant to 28 U.S.C. § 1441 based on the original jurisdiction of this court under 28 U.S.C. § 1332 (diversity of citizenship jurisdiction).2 Id.

Following an explosion in a West Virginia mine on April 5, 2010 that resulted in the death of twenty-nine (29) miners, the United States government initiated an investigation into the cause of the explosion. See First Am. Compl., ECF No. 14 ("Compl.") ¶¶ 136-41. While the plaintiff was not charged with the death of the miners, the government later charged the plaintiff with three felonies, including conspiracy to defraud the federal Mine Safety and Health Administration, and one misdemeanor for conspiracy to violate federal mine safety laws.3 See id. ¶ 141. On December 3, 2015, a federal jury found the plaintiff innocent of the felony charges but convicted him of the misdemeanor offense. Id. ¶ 143. The plaintiff was sentenced to one year in prison, which he served and from which he was released in the spring of 2017. Id. ¶¶ 144-45.

In January 2018, the plaintiff announced his campaign to run as a Republican for a United States Senate seat in West Virginia. Id. ¶ 146. The plaintiff lost his bid for the Republican party nomination in the primary election on May 8, 2018. Id. ¶ 190. The plaintiff alleges that media coverage was responsible for his loss due to allegedly defamatory statements about the plaintiff that referred to him as a "felon" or a "convicted felon,"4 despite the fact that he was cleared of the felony charges and was only convicted of the misdemeanor offense. See id. ¶¶ 152-190. The plaintiff further alleges that there was an organized effort to defeat his campaign, in part through the allegedly defamatory media coverage, See id. ¶¶ 150-90, and that the alleged defamatory media coverage continued after the primary election, See id. ¶¶ 191-221.

The plaintiff alleges that these defamatory statements injured his reputation, prevented him from pursuing other businesses and opportunities, and were a material cause of his loss in the primary election. Id. ¶¶ 24, 190. In addition, the plaintiff alleges that many of these statements were made in conjunction with reference to the mine disaster and therefore had the additional effect, through inference, implication, innuendo and/or insinuation, of falsely attributing to him responsibility for murder. Id. ¶¶ 23, 228, 242. The plaintiff filed this suit alleging four causes of action: (1) defamation, (2) conspiracy to defame the plaintiff, (3) false light invasion of privacy, and (4) conspiracy to commit false light invasion of privacy. See id. ¶¶ 222-50. Nineteen (19) motions to dismiss have been filed by defendants under Rule 12(b)(2) for lack of personal jurisdiction, under Rule 12(b)(4) and (5) for insufficient service of process, and/or under Rule 12(b)(6) for failure to state a claim upon which relief can be granted.5

II. Legal Standard
A. Rule 12(b)(2) Motion to Dismiss

Rule 12(b)(2) permits a defendant to challenge a complaint for "lack of personal jurisdiction." Fed. R. Civ. P. 12(b)(2). When a district court considers a Rule 12(b)(2) motion based on the contents of the complaint and supporting affidavits without an evidentiary hearing, the party asserting jurisdiction bears the burden of establishing a prima facie case of jurisdiction. Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935 F.3d 211, 226 (4th Cir. 2019) ; Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th Cir. 2014). The standard or review is by a preponderance of the evidence. Mylan Labs., Inc. v. Akzo, N.V., 2 F.3d 56, 60 (4th Cir. 1993). The court may consider affidavits submitted by both parties, but it must resolve factual disputes and draw all reasonable inferences in favor of the party asserting jurisdiction. Universal Leather, 773 F.3d at 560 ; Combs v. Bakker, 886 F.2d 673, 676 (4th Cir. 1989) ("[T]he court must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction."). The court must then determine whether the facts proffered by the party asserting jurisdiction make out a case of personal jurisdiction over the party challenging jurisdiction. Sneha Media & Entm't, LLC v. Associated Broad. Co. P Ltd., 911 F.3d 192, 196–97 (4th Cir. 2018).

B. Rule 12(b)(6) Motion to Dismiss

Federal Rule of Civil Procedure 8(a)(2) requires that a pleader provide "a short and plain statement of the claim showing ... entitle[ment] to relief." Fed. R. Civ. P. 8(a)(2) ; Erickson v. Pardus, 551 U.S. 89, 127 S. Ct. 2197, 2200, 167 L.Ed.2d 1081 (2007). The required "short and plain statement" must provide " ‘fair notice of what the ... claim is and the grounds upon which it rests.’ " Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 545, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957), overruled on other grounds, Twombly, 550 U.S. at 563, 127 S.Ct. 1955 ).

Rule 12(b)(6) correspondingly permits a defendant to challenge a complaint that "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). In order to survive a motion to dismiss, "a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’ "6 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (quoting Twombly, 550 U.S. at 570, 127 S.Ct. 1955 ). The "[f]actual allegations [in the complaint] must be enough to raise a right to relief above the speculative level" such that relief is "plausible." Twombly, 550 U.S. at 555-56, 127 S.Ct. 1955. A "formulaic recitation of the elements of a cause of action will not do." Id. at 555, 127 S.Ct. 1955.

"A motion to dismiss tests the sufficiency of a complaint." Occupy Columbia v. Haley, 738 F.3d 107, 116 (4th Cir. 2013). The court's evaluation is therefore "generally limited to a review of the allegations of the complaint itself. However, [the court] also consider[s] documents that are explicitly incorporated into the complaint by reference...."

Goines v. Valley Cmty. Servs. Bd., 822 F.3d 159, 165–66 (4th Cir. 2016) (citing Tellabs, Inc. v. Makor Issues & Rights, Ltd., 551 U.S. 308, 322, 127 S.Ct. 2499, 168 L.Ed.2d 179 (2007) ). Application of the Rule 12(b)(6) standard requires that ...

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