Harvey v. Cable News Network, Inc.

• Decision Date: 17 February 2021
• Docket Number: Civil Action No. RDB-20-3068
• Court: U.S. District Court — District of Maryland
• Parties: Derek J. HARVEY, Plaintiff, v. CABLE NEWS NETWORK, INC., Lev Parnas, and Joseph A. Bondy, Defendants.

520 F.Supp.3d 693

Derek J. HARVEY, Plaintiff,

v.CABLE NEWS NETWORK, INC., Lev Parnas, and Joseph A. Bondy, Defendants.

Civil Action No. RDB-20-3068

United States District Court, D. Maryland.

Signed February 17, 2021

Joseph Lee Meadows, Bean, Kinney & Korman, PC, Arlington, VA, Steven Scott Biss, Pro Hac Vice, Charlottesville, VA, for Plaintiff.

Stephen Joseph Fuzesi, Thomas G. Hentoff, Nicholas G. Gamse, Pro Hac Vice, Williams & Connolly LLP, Washington, DC, for Defendant Cable News Network, Inc.

David Clifford Holland, Law Offices of David Clifford Holland PC, New York, NY, Rodney Smolla, Pro Hac Vice, Wilmington, DE, for Defendant Lev Parnas.

Charles D. Tobin, Chad Russell Bowman, Maxwell S. Mishkin, Ballard Spahr LLP, Washington, DC, for Defendant Joseph A. Bondy.

MEMORANDUM OPINION

Richard D. Bennett, United States District Judge

This case arises from the continued litigation¹ of Congressman Devin G. Nunes of California with respect to media coverage of his political efforts in support of former President Donald J. Trump. In this case, the Plaintiff Derek J. Harvey ("Harvey" or "Plaintiff"), a resident of Maryland and Senior Advisor to Congressman Nunes, alleges that he personally has been falsely accused of "participating in an effort to aid and abet the commission of criminal, unethical, and dishonest conduct." (ECF No. 1 ¶ 1.) He has sued Cable News Network, Inc. ("CNN"), Lev Parnas ("Parnas"), a Florida businessman, and Joseph A. Bondy ("Bondy"), a New York attorney, alleging defamation and false light invasion of privacy against all three Defendants.²

Presently pending are the Motions of CNN, Parnas, and Bondy to Dismiss this action. (ECF Nos. 18, 19, and 23.) With respect to the individual Defendants Parnas and Bondy, this Court lacks personal jurisdiction over these non-resident defendants. The exercise of jurisdiction over both of them is not authorized under Maryland's "long-arm" statute. Furthermore, even if they fell within the ambit of this statute, the exercise of personal jurisdiction would not comport with the due process requirements of the Fourteenth Amendment to the U.S. Constitution. With respect to the Defendant CNN, the Complaint fails to plausibly plead the threshold requirements of defamation, and accordingly, by extension, also fails to plausibly plead the requirements of a false light claim.

In the fall of 2019, CNN began reporting on the first impeachment of President Donald J. Trump. As a part of its news coverage, CNN repeated statements made by the lawyer Bondy on behalf of his client Parnas. Bondy reported to CNN that Parnas would testify before Congress, as a part of the first impeachment proceedings against President Trump, that Congressman Devin Nunes had met with a former Ukrainian prosecutor to discuss former Vice President and now President Joseph R. Biden, Jr. In December 2019, Nunes brought a lawsuit in which he asserts that CNN's coverage related to Bondy's statements was defamatory, alleging claims for defamation and conspiracy against the network. See Nunes v. Cable News Network, Inc. , No. REP-19-889, 2020 WL 2616704, at *6 (E.D. Va. May 22, 2020). His case was transferred to the United States District Court of the Southern District of New York where it remains pending. See Nunes v. Cable News Network, Inc. , No. 20-CV-3976.

The parties’ submissions have been reviewed and no hearing is necessary. See Local Rule 105.6 (D. Md. 2018). For the reasons that follow, the Defendants’ Motions (ECF Nos. 18, 19, and 23) are GRANTED. Specifically, the Plaintiff's Complaint is DISMISSED pursuant to 12(b)(2) of the Federal Rules of Civil Procedure for lack of personal jurisdiction as to the individual Defendants Parnas and Bondy. This dismissal for lack of personal jurisdiction is not on the merits and is WITHOUT PREJUDICE to the Plaintiff Harvey seeking relief in other forums. Furthermore, the Plaintiff's Complaint is DISMISSED pursuant to Fed. R. Civ. Proc. 12(b)(6) with respect to the Defendant CNN for failure to state a claim upon which relief can be granted. This dismissal is WITHOUT PREJUDICE to the filing of an Amended Complaint within a specified time period.

BACKGROUND

In ruling on a motion to dismiss, this Court "accept[s] as true all well-pleaded facts in a complaint and construe[s] them in the light most favorable to the plaintiff." Wikimedia Found. v. Nat'l Sec. Agency , 857 F.3d 193, 208 (4th Cir. 2017) (citing SD3, LLC v. Black & Decker (U.S.) Inc. , 801 F.3d 412, 422 (4th Cir. 2015) ). Plaintiff Harvey, a Maryland citizen, is a senior advisor to Congressman Devin G. Nunes ("Nunes"), a member of the House Permanent Select Committee on Intelligence. (ECF No. 1 ¶ 1.) In this case, Harvey alleges that all three Defendants falsely accused him of participating in an effort to aid and abet the commission of criminal, unethical, and dishonest conduct. (Id. ) His claims stem from statements made by Defendant Parnas and Defendant Bondy, Parnas’ attorney, published by Defendant CNN and other news outlets in their coverage of the 2019 impeachment trial of former President Trump and related allegations of wrongdoing by Trump and other individuals such as Parnas and Congressman Nunes. Nunes himself has filed several libel suits in four different federal courts, both for statements made related to the impeachment as well as other matters.

Early in the investigation of President Trump, it was widely reported that a key point of focus in the impeachment investigation was the effort of his personal attorney, Rudy Giuliani, to press the Ukrainian government to investigate former Vice President Biden, ultimately Mr. Trump's opponent in the 2020 U.S. Presidential Election. It was also widely reported that Giuliani had been working with Defendant Parnas, a businessman and citizen of Florida, and Igor Fruman on these efforts. (See ECF No. 1 ¶ 19 (citing Two business associates of Trump's personal attorney Giuliani have been arrested on campaign finance charges³ ).) In October of 2019, Parnas was indicted by a federal grand jury sitting in the United States District Court for the Southern District of New York and was accused of funneling foreign money to U.S. politicians while trying to influence U.S.-Ukraine relations. (Id. ¶ 19.) Parnas hired Defendant Bondy, a New York-based criminal defense attorney to represent him in that criminal case. (Id. ¶ 9; Bondy Decl., ECF No. 19-2 ¶ 3; Notice of Appearance, U.S. v. Parnas , No. 19-cr-725 (S.D.N.Y. Oct. 22, 2019)). Soon after his indictment, Parnas also received a Congressional subpoena to provide documents and testimony as a part of the impeachment investigation. (See ECF No. 1 ¶ 19 (citing Barrett et al., supra note 1).)

On November 22, 2019, Defendant CNN, a Delaware corporation headquartered in Georgia, published an online report, Exclusive: Giuliani associate willing to tell Congress Nunes met with ex-Ukrainian official to get dirt on Biden.⁴ (ECF No. 1 ¶ 31; Ex. A, ECF No. 23-2.) The report was authored by senior reporter Vicky Ward and reported that Bondy told CNN that Parnas was "willing to comply with a Congressional subpoena for documents and testimony as a part of the impeachment inquiry in a manner that would allow him to protect his Fifth Amendment rights against self-incrimination." (ECF No. 23-2.) It was reported that Bondy further stated that Parnas was prepared to testify that Nunes met "with a former Ukrainian prosecutor to discuss digging up dirt on Joe Biden" and that "Mr. Parnas learned from former Ukrainian Prosecutor General Victor Shokin that Nunes had met with Shokin in Vienna" in December 2018. (Id. )

The CNN article cited government travel records reporting that Nunes had traveled to Europe with several aides from November 30 to December 3, 2018, when he was said to be meeting with Mr. Shokin. (Id. ) CNN reported that "Nunes’ entourage included retired colonel Derek Harvey." (Ex. A, ECF No. 23-2.) The article also linked to a Daily Beast article, Lev Parnas Helped Rep. Devin Nunes’ Investigations ,⁵ which reported that Parnas had "helped arrange meetings and calls in Europe for Rep. Devin Nunes in 2018," and explained that Congressman Eric Swalwell had discussed the same Daily Beast story in the impeachment hearing on November 21, 2019. (Id. ) The article further discussed meetings held at the Trump International Hotel "that concerned Ukraine" involving Giuliani, Parnas, conservative journalist John Solomon and others—and at which "Harvey would occasionally be present" as "Nunes’ proxy." (Id. )

Following publication, Ward appeared on CNN's evening television program "Cuomo Prime Time," where she and anchor Chris Cuomo discussed the story. (ECF No. 1 ¶ 33.) Ward again reported that Parnas had been subpoenaed in the impeachment inquiry, and that Bondy was hoping to negotiate terms that would allow Parnas to testify freely. (Exs. B & C, ECF Nos. 23-3, 23-4.) Ward described CNN's efforts to seek comment from Nunes, which were unsuccessful. (Id. )

In January 2020, Democrats on the House Intelligence Committee publicly released documents that Parnas had produced pursuant to his Congressional subpoena. They included a twenty-page collection of WhatsApp instant messages between Parnas and Harvey, which were posted on the House website on January 17, 2020. (ECF No. 1 ¶ 15.) The messages included communications in which Harvey and Parnas coordinated interviews with current and former Ukrainian prosecutors as well as meetings at the Trump International Hotel. (Id. ¶¶ 15-16; Ex. D, ECF No. 23-5.) Following the release of these messages, CNN published a second report, New impeachment documents show more texts about possible surveillance of former US ambassador to Ukraine ,⁶ which Harvey quotes in his Complaint. (ECF No. 1 ¶ 2, Statement 16; Ex. E, ECF No. 23-6.) In this second article co-authored by CNN journalists Jeremy Herb and Manu Raju, CNN reported on the messages between Harvey and Parnas, attaching a link to the source...