Lokhova v. Halper

Decision Date15 April 2021
Docket Number No. 20-1437,No. 20-1368,20-1368
Citation995 F.3d 134
Parties Svetlana LOKHOVA, Plaintiff - Appellant, v. Stefan A. HALPER; Dow Jones & Company, Incorporated, d/b/a The Wall Street Journal; The New York Times Company; WP Company LLC, d/b/a The Washington Post; NBCUniversal Media, LLC, d/b/a MSNBC, Defendants - Appellees, 29 Media Organizations; Reporters Committee for Freedom of the Press, Amici Supporting Appellee. Svetlana Lokhova, Plaintiff - Appellee, v. Stefan A. Halper, Defendant - Appellant, and Dow Jones & Company, Incorporated, d/b/a The Wall Street Journal; The New York Times Company; WP Company LLC, d/b/a The Washington Post; NBCUniversal Media, LLC, d/b/a MSNBC, Defendants, 29 Media Organizations; Reporters Committee for Freedom of the Press, Amici Supporting Appellee.
CourtU.S. Court of Appeals — Fourth Circuit

ARGUED: Steven Scott Biss, LAW OFFICE OF STEVEN S. BISS, Charlottesville, Virginia, for Appellant/Cross-Appellee. Seth Daniel Berlin, BALLARD SPAHR, LLP, Washington, D.C.; Laura Rose Handman, DAVIS WRIGHT TREMAINE, LLP, Washington, D.C.; Terrance Gilroy Reed, LANKFORD & REED, PLLC, Alexandria, Virginia, for Appellees/Cross-Appellants. ON BRIEF: Robert D. Luskin, PAUL HASTINGS LLP, Washington, D.C.; Robert K. Moir, LANKFORD & REED, PLLC, Alexandria, Virginia, for Appellee/Cross-Appellant Stefan A. Halper. Matthew E. Kelley, BALLARD SPAHR LLP, Washington, D.C., for Appellee/Cross-Appellant Dow Jones & Company, Inc. and The New York Times Company. Dana R. Green, Legal Department, THE NEW YORK TIMES COMPANY, New York, New York, for Appellee/Cross-Appellant The New York Times Company. Eric J. Feder, Patrick J. Curran Jr., DAVIS WRIGHT TREMAINE LLP, Washington, D.C., for Appellees/Cross-Appellants WP Company, LLC and NBCUniversal Media, LLC. Bruce D. Brown, Katie Townsend, Caitlin Vogus, Lyndsey Wajert, REPORTERS COMMITTEE FOR FREEDOM OF THE PRESS, Washington, D.C., for Amici Curiae.

Before WYNN, THACKER, and QUATTLEBAUM, Circuit Judges.

Affirmed by published opinion. Judge Thacker wrote the opinion, in which Judge Wynn joined. Judged Quattlebaum wrote an opinion concurring in part and dissenting in part.

THACKER, Circuit Judge:

Svetlana Lokhova ("Appellant") sued Stefan Halper ("Appellee Halper") and various news organizations ("Media Appellees"), alleging defamation, civil conspiracy, and tortious interference with contract. The district court dismissed all of Appellant's claims, holding the majority of Appellant's defamation claims were barred by the one year statute of limitations. The district court held the remaining defamation claims failed because the statements were not defamatory as a matter of law and because Appellant failed to plead sufficient facts to support vicarious liability. Because Appellant's defamation claims failed, the district court dismissed her civil conspiracy and tortious interference with contract claims, as each hinged on the validity of the defamation claims. The district court also denied without prejudice Appellee Halper's motion for sanctions against Appellant and her attorney, Steven S. Biss, for their alleged abusive litigation conduct.

Appellant appeals the dismissal of her tort claims and Appellee Halper cross appeals the denial of his motion for sanctions. For the reasons set forth herein, we affirm the district court on all issues.

I.

Appellant is a Russian born academic who alleges that Appellees defamed her by falsely stating that she was a Russian spy involved in the alleged collusion between Russia and the campaign of former President Donald Trump. The recurring theme throughout Appellant's amended complaint is that Appellees’ publications defamed Appellant by falsely stating she had an affair with General Michael Flynn on the orders of Russian intelligence, thereby compromising him. And, specifically, Appellant alleges that Appellee Halper is a veteran political operative who was the source of the allegedly defamatory statements published by the Media Appellees.

The parties agree that the statute of limitations for defamation actions is one year. This lawsuit was initially filed on May 23, 2019. Thus, statements published prior to May 23, 2018 are time barred. Nonetheless, the amended complaint alleges Appellees are liable for various statements published both before and after May 23, 2018.

A.Statements Published Prior to May 23, 2018

Appellant alleges that statements published prior to May 23, 2018, can serve as a basis for liability despite the one year statute of limitations because the statements were republished within the statute of limitations by hyperlink, in the case of one New York Times article, and by third party tweets for the rest of the publications. The district court rejected this argument. For the reasons detailed below, we agree with the district court. Therefore, the content of the allegedly defamatory statements published prior to May 23, 2018, need not be discussed in detail. Suffice it to say Appellant generally relies on statements published prior to May 23, 2018, to allege Appellees manufactured a "web of lies" falsely accusing her of being a "Russian spy" who "had an affair with General Flynn on the orders of Russian intelligence" and in doing so, "compromised" him. J.A. 19–20.1

B.Statements Published After May 23, 2018

The amended complaint identifies two allegedly defamatory publications occurring after May 23, 2018. The first is a Washington Post article published June 5, 2018 (the "Post Article"). The second is a series of tweets issued by Malcolm Nance ("Nance").

1.The Post Article

The amended complaint asserts that the Post Article is defamatory to Appellant because it includes the following statement:

During a dinner [General] Flynn attended, [Appellee] Halper and [Richard] Dearlove[2 ] were disconcerted by the attention the then-DIA[3 ] chief showed to a Russian-born graduate student who regularly attended the seminars, according to people familiar with the episode.

J.A. 75. The amended complaint alleges two defamatory falsehoods in the quoted statement: (1) that Appellee "Halper ‘attended’ ... the February 2014 dinner"; and (2) that "[Appellee] Halper and Dearlove were disconcerted by the attention the then-DIA chief showed to a Russian-born graduate student." Id. The district court held the Post Article not defamatory as a matter of law, and we agree.

2.Tweets Authored by Nance

First, of note, Appellant failed to serve Nance as a defendant. Instead, Appellant alleges that Appellee NBCUniversal/MSNBC is liable for Nance's tweets pursuant to the respondeat superior doctrine. The amended complaint describes Nance as the chief terrorism analyst for MSNBC, but it does not allege that Nance is employed by MSNBC. The complaint asserts, "Nance maintains and operates an official Twitter account on which he conducts the business of ‘NBC/MSNBC.’ " J.A. 76. "NBC/MSNBC" appears in Nance's Twitter bio at the end of a list of other credentials that are personal to Nance. Id. The complaint further asserts, "At all times relevant to this action, NBCUniversal/MSNBC acted by and though [sic] its authorized agents, including Malco[l]m W. Nance." Id. at 75.

On July 16, 2018, Nance tweeted, "The technical name for sexy women Agents is a ‘Svetlana.’ " J.A. 79. Then, on July 19, 2018, another Twitter user responded to one of Nance's tweets which described Appellant as a "[h]oneypot."4 Id. at 80. The user asked: "Flynn and Lokhova?" Id. To which Nance responded, "Very likely." Id. The amended complaint characterizes this response by Nance as "stat[ing] that [Appellant] was a ‘Honeypot.’ " Id. at 79.

The district court held the amended complaint failed to adequately plead that NBCUniversal may be held vicariously liable for Nance's tweets. Again, we agree.

C.Appellee Halper's Motion for Sanctions

In addition to his motion to dismiss, Appellee Halper filed a motion to sanction Appellant and attorney Biss. The motion for sanctions argued that Appellant and attorney Biss used this litigation "to make, publicize and disseminate vulgar and degrading accusations" against Appellee Halper. J.A. 330–31. The amended complaint calls Appellee Halper a "ratf***er" and the Media Appellees "stooges." Id. at 17, 27. The motion for sanctions further asserted that Appellant's claims are "meritless" and "based on obviously untimely allegedly defamatory statements." Id. at 331.

Focusing on attorney Biss, the district court found, "The record is clear that Biss filed an excessively long complaint and amended complaint on [Appellant]’s behalf directing unprofessional ad hominem attacks at Halper and others." J.A. 331. However, the district court declined to impose sanctions and dismissed the motion for sanctions without prejudice. In so doing, the district court warned, "[S]hould Biss file further inappropriate pleadings or pursue frivolous post-judgment litigation ... sanctions might well be justified." Id. at 332.

II.

We review de novo the district court's grant of a Rule 12(b)(6) motion to dismiss. See Va. Citizens Def. League v. Couric , 910 F.3d 780, 783 (4th Cir. 2018). "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." Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) (internal quotation marks omitted). "Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we ‘are not bound to accept as true a legal conclusion couched as a factual allegation.’ " Id. (quoting Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) ).

We review a district court's sanctions decisions for abuse of discretion. See Six v. Generations Fed. Credit Union , 891 F.3d 508, 518–19 (4th Cir. 2018).

III.

Appellant contends the district court erred by dismissing her defamation, civil conspiracy, and tortious interference with contract claims.

A....

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