Gallagher v. Philipps

Citation563 F.Supp.3d 1048
Decision Date27 September 2021
Docket NumberCase No.: 20-CV-993 JLS (BLM)
Parties Edward R. GALLAGHER, Plaintiff, v. David PHILIPPS and Kenneth John Braithwaite II, in his capacity as Secretary of the Navy, Defendants.
CourtU.S. District Court — Southern District of California

563 F.Supp.3d 1048

Edward R. GALLAGHER, Plaintiff,
David PHILIPPS and Kenneth John Braithwaite II, in his capacity as Secretary of the Navy, Defendants.

Case No.: 20-CV-993 JLS (BLM)

United States District Court, S.D. California.

Signed September 27, 2021

563 F.Supp.3d 1063

Maryam Hadden, Pro Hac Vice, Timothy Parlatore, Pro Hac Vice, Parlatore Law Group LLP, New York, NY, Molly Meurer Shirer, Parlatore Law Group LLP, San Diego, CA, for Plaintiff.

Caesar D. Kalinowski, Pro Hac Vice, Davis Wright Tremaine LLP, Seattle, WA, Cydney Swofford Freeman, Andrew G. Row, Davis Wright Tremaine LLP, Los Angeles, CA, Thomas Rohlfs Burke, Davis Wright Tremaine LLP, San Francisco, CA, for Defendant David Philipps.

U.S. Attorney CV, U.S. Attorneys Office, Civil Division, San Diego, CA, Alexandra Rachel Saslaw, Danielle Wolfson Young, Justin M. Sandberg, United States Department of Justice, Washington, DC, for Defendant Thomas W. Harker.


(ECF No. 26)

Janis L. Sammartino, United States District Judge

563 F.Supp.3d 1064

Presently before the Court are Defendant David Philipps's ("Defendant") Special Motion to Strike Plaintiff's Second Through Eighth Causes of Action, or Alternatively, to Dismiss Plaintiff's First Amended Complaint ("Mot.," ECF No. 26) and Request for Judicial Notice ("RJN," ECF No. 26-50), as well as Plaintiff Edward R. Gallagher's ("Plaintiff") Opposition thereto ("Opp'n," ECF No. 44) and Defendant's Reply in support thereof ("Reply," ECF No. 48). Having carefully considered Plaintiff's Amended Complaint ("Am. Compl.," ECF No. 20), the Parties’ arguments, and the law, the Court GRANTS Defendant's Request for Judicial Notice and GRANTS IN PART AND DENIES IN PART Defendant's Motion as follows.


Plaintiff, now retired, "was a Chief Petty Officer and Navy SEAL in the United States Navy." Am. Compl. ¶ 13. "[Plaintiff] was arrested on September 11, 2018 on charges related to his 2017 deployment to Iraq with SEAL Team 7, Alpha Platoon ("ST7-A")." Id. ¶ 19. Plaintiff pleaded not guilty but was placed in pretrial confinement. See id. Plaintiff pleads on information and belief that, "because [he] did not quickly plead guilty, members of the [Region Legal Services Office ("]RLSO[")], [Naval Criminal Investigative Service ("]NCIS[")] and/or [Naval Special Warfare Command ("]WARCOM[")] began illegally leaking documents to various news reporters, expecting that negative publicity would help to pressure [him] into taking a plea, as well as to influence any potential jury pool." Id. ¶ 23.

"On March 30, 2019, at the urging of several members of Congress, President Trump, in his capacity as Commander-in-Chief, issued an order that [Plaintiff] should be released from the brig and moved to less restrictive conditions." Id. ¶ 26. Plaintiff alleges on information and belief that "Navy officials chose Defendant ... to be their chief mouthpiece after [Plaintiff]’s release." Id. ¶ 27. Defendant has been writing news articles about soldiers returning from Iraq and Afghanistan since at least 2010. See id. ¶¶ 30–31. Defendant writes for the New York Times, although he is presently on a leave of absence to write a book about Plaintiff. See id. ¶¶ 12, 32. Defendant received approximately 500 pages of confidential, leaked documents from the Navy's investigation. See id. ¶ 24.

Defendant began publishing articles containing "false and misleading information" about Plaintiff starting on April 23, 2019. Id. ¶ 36. Plaintiff acknowledges that this first article, and others, fall outside the statute of limitations for his various defamation claims. See id. ¶ 36 n.5. The first article Plaintiff claims contains actionable

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false statements is a June 3, 2019 article titled "Judge Removes Prosecutor in Navy SEAL's War Crimes Court-Martial." See id. ¶¶ 50, 94, 105. Plaintiff alleges the following statements were false or misleading: "Hoping to track down the source of the leaks, Commander Czaplak, working with Naval Criminal Investigative Service agents, sent emails to defense lawyers in May that had hidden monitoring software embedded in them, allowing prosecutors to track who forwarded and who received the emails, court documents show"; and "Leaked investigative documents in the Gallagher case include detailed descriptions from SEALs in the chief's platoon of their leader indiscriminately spraying civilian neighborhoods in Iraq with rockets and heavy machine gun fire." Id.

"Defendant ... attended court every day of the trial and personally observed the entire proceedings." Id. ¶ 51. Unlike other news outlets, Defendant did not file daily articles about the proceedings. See id. ¶ 53. Instead, Defendant filed only three articles during the pendency of the trial. See id. ¶ 69. On the first day of the trial, he published an article titled "Navy SEAL Edward Gallagher Goes on Trial for War Crimes." See id. ¶ 52. Plaintiff alleges the article contained the following false or misleading statements: "They said he ... ordered SEALs to fire rockets and machine guns at neighborhoods with no clear targets"; "Snipers told investigators that they saw Chief Gallagher shoot a school-age girl in a flower-print hijab who was walking with other girls on a riverbank"; "However, at least one SEAL who initially told investigators he saw the stabbing has apparently recanted"; and "The Gallagher case was rocked in May by revelations that the Navy's lead prosecutor, Cmdr. Christopher Czaplak, and agents of the Naval Criminal Investigative Service had tried to identify the source of leaks by sending emails embedded with hidden tracking software to defense attorneys and a journalist for Navy Times." Id. ; see also id. ¶¶ 94, 105.

On June 20, 2019, Defendant published an article titled "Navy SEAL War Crimes Witness Says He Was the Killer." Id. ¶ 56. That article allegedly contained the following false or misleading statements: " ‘You can stand up there, and you can lie about how you killed the ISIS prisoner so Chief Gallagher does not have to go to jail,’ a Navy prosecutor, Lt. Brian John, told him. Special Operator Scott then looked over from the witness stand toward Chief Gallagher, whose wife and two of his children were in the courtroom. ‘He's got a wife and family,’ Special Operator Scott said. ‘I don't think he should spend the rest of his life in prison’ "; "In the military court in San Diego this week, several SEALs said that since reporting their chief's actions, they had received online death threats, and at least one had begun carrying a concealed weapon"; and "Chief Gallagher then left the battle area to drive to a command post about two miles away." Id. ; see also id. ¶¶ 94, 105.

On June 26, 2019, Defendant published an article titled "Navy SEAL Whose Testimony Roiled War-Crimes Trial May Face Perjury Charge." Id. ¶ 57. According to Plaintiff's allegations, that article contained the following false or misleading statements: "Special Operator Scott, who made eye contact with Chief Gallagher and with Timothy Parlatore, the chief's defense lawyer, several times during his testimony, seemed unshaken by the accusation"; "When a prosecutor asked Special Operator Scott in court last week why he had waited until he was on the stand to assert that he had killed the captive, the medic replied that Chief Gallagher had a wife and family, and said, ‘I don't think he should spend the rest of his life in prison’ "; "Navy investigative documents obtained by The New York Times show that investigators had asked Special Operator Scott a number of times, in the presence of other agents and lawyers, to detail the cause of the captive's death"; "The Navy

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official said that Naval Criminal Investigative Service agents and Navy prosecutors would be able to testify in a perjury trial that the medic had repeatedly given them a very different account of the captive's death: that he saw Chief Gallagher stab the captive two or three times, not once; that he saw blood rushing from the stab wounds; that the wounds were fatal; and that Special Operator Scott had watched the captive stop breathing and die from those wounds"; "In court, some of the SEALs said they had received threats and had begun carrying 6 weapons for self-defense"; and "[Dalton Tolbert] told the court that he believes that he will probably be cut from SEAL Team 6 because of his part in the trial and the public attention it has drawn." Id. ; see also id. ¶¶ 94, 105.

A verdict was reached on July 2, 2019. See id. ¶ 59. Plaintiff was convicted on a single count, see id. ¶ 75 n.11, and otherwise acquitted, see id. ¶ 58. That same day, Defendant published an article titled "Navy SEAL Chief Accused of War Crimes is Found Not Guilty of Murder." Id. ¶ 59. Plaintiff alleges the article contained the following false or misleading statements: "Some of the platoon members who spoke out were called traitors in a closed Facebook group and were...

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