Nunes v. Fusion GPS, Civil Action No. 1:19-cv-1148 (RDA/TCB)

• Court: United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
• Writing for the Court: Rossie D. Alston, Jr., United States District Judge
• Citation: 531 F.Supp.3d 993
• Parties: Devin G. NUNES, Plaintiff, v. FUSION GPS a/k/a Bean LLC and Glenn Simpson, Defendants.
• Docket Number: Civil Action No. 1:19-cv-1148 (RDA/TCB)
• Decision Date: 31 March 2021

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Devin G. NUNES, Plaintiff,
v.
FUSION GPS a/k/a Bean LLC and Glenn Simpson, Defendants.

Civil Action No. 1:19-cv-1148 (RDA/TCB)

United States District Court, E.D. Virginia, Alexandria Division.

Signed March 31, 2021

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Steven Scott Biss, Law Office of Steven S. Biss, Richmond, VA, for Plaintiff.

Kerry Brainard Verdi, Verdi & Ogletree PLLC, Washington, DC, for Defendants.

MEMORANDUM OPINION AND ORDER

Rossie D. Alston, Jr., United States District Judge

This matter comes before the Court on Defendants Fusion GPS's and Defendant

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Glenn Simpson's (collectively, "Defendants") Motion to Dismiss the Second Amended Complaint ("Motion"). Dkt. 36. The Court dispenses with oral argument as it would not aid in the decisional process. Fed. R. Civ. P. 78(b) ; Loc. Civ. R. 7(J). The Motion to Dismiss is now fully briefed and ripe for disposition. Considering the Second Amended Complaint, Dkt. 35, the Motion and Defendant Simpson's Declaration, Dkt. 36, Defendants’ Memorandum in Support, Dkt. 37, Plaintiff Devin G. Nunes's ("Plaintiff") Opposition to the Motion, Dkt. 40, and Defendants’ Reply, Dkt. 41, it is hereby ORDERED that the Motion is GRANTED for the reasons that follow.

I. BACKGROUND

Plaintiff is a Member of the United States House of Representatives and formerly served as Chairman of the House Permanent Select Committee on Intelligence ("House Intelligence Committee" or "the Committee."). Dkt. 35 ¶ 2. Defendant Fusion GPS, also known as Bean LLC, is a Delaware corporation headquartered in Washington, D.C. Id. ¶ 7. Defendant Glenn Smith manages Fusion GPS as one of its principals and is domiciled in Washington, D.C. Id. ¶ 8; Dkt. 37-1. As it must at the motion to dismiss stage, the Court accepts all facts alleged within the Second Amended Complaint as true. Ashcroft v. Iqbal , 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009) ; Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007).

This lawsuit responds to the events surrounding very serious ethics complaints filed against Plaintiff in 2018 as well as media coverage of those ethics complaints. On January 25, 2018, the Office of Congressional Ethics received a complaint from Campaign for Accountability, Inc. against Plaintiff. Dkt. 35 ¶ 54. Plaintiff alleges that Campaign for Accountability, Inc. was "acting in concert with Fusion GPS" in filing the complaint.¹ Id. According to Plaintiff, the ethics complaint was filed to threaten and intimidate him, and, among other aims, interfere with the congressional investigation into Fusion GPS and the so-called "Steele Dossier" Defendants produced during the 2016 election cycle. Id. ¶¶ 1, 55. This dossier was a "compendium of fake ‘intelligence’ reports" containing false, defamatory statements and was provided to the Federal Bureau of Investigation and the Department of Justice. Id. ¶ 8.

The relevant congressional investigation began on March 1, 2017 when the House Intelligence Committee began investigating claims of attempted Russian influence in the 2016 United States Presidential Election. Id. ¶ 6. According to Plaintiff's Second Amended Complaint that was filed in this Court, Defendant Simpson testified "behind closed doors before the House Intelligence Committee" on November 24, 2017. Id. ¶ 47. Two months later, the Committee released a transcript of his testimony, which Plaintiff claims made it "immediately obvious" that Defendant Simpson had "lied in his testimony." Id. ¶¶ 48-49. Fearing criminal prosecution, the Complaint sets forth that Defendants Simpson and Fusion GPS "retaliated against Plaintiff" by engaging in a campaign to "smear the opposition." Id. ¶ 52.

On March 1, 2018, Campaign for Accountability filed a second ethics complaint against Plaintiff with the Office of Congressional Ethics. Id. ¶ 57. The group then filed a third complaint against Plaintiff on July 11, 2018. Id. ¶ 64. Although the Complaint does not allege Defendants worked "in concert" with Campaign for

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Accountability to file either of these ethics complaints, the third ethics complaint was allegedly the product of a "joint effort" between multiple groups that waged a smear campaign against Plaintiff—including Defendant Fusion GPS. Id. ¶ 65.

The Second Amended Complaint also describes a May 23, 2018 news article published by the news company McClatchy in the Fresno Bee. Id. ¶ 61. After a winery in which Plaintiff was a minor shareowner was sued by an employee, Defendants allegedly "collaborated with McClatchy to publish a scandalous Fusion GPS ‘dossier’ " as a news article that "made it appear as if Plaintiff was involved with cocaine and underage prostitutes." Id. ¶ 60. The article—entitled "A yacht, cocaine, prostitutes: Winery partly owned by Nunes sued after fundraiser event"—was published in print, online, and on social media. Id. ¶¶ 60-61.

Plaintiff filed this lawsuit on September 4, 2019 against Fusion GPS, Glenn Simpson, and Campaign for Accountability, Inc. Dkt. 1. On November 22, 2019, Defendants moved to dismiss the case, but Plaintiff then filed an Amended Complaint on December 13, 2019. Dkt. 12. After Defendants moved to dismiss the Amended Complaint under Federal Rules of Civil Procedure 12(b)(2) and (6), on February 21, 2020 the Court ordered that the case would be dismissed without prejudice.² Although the Court noted Defendants had raised "significant questions" and presented "meritorious arguments" as to the Court's jurisdiction and the sufficiency of the factual pleadings in the Amended Complaint, the Court ultimately determined that Plaintiff's pleadings contained so "many rote statements of law and conclusory allegations" that it was "insufficient to support a substantive ruling" on the issues Defendants raised in their motion. Dkt. 34. Consequently, the Court granted Plaintiff an opportunity to file another amended complaint "if he [could] do so pursuant to Rule 11." Id.

In response to the Court's Order, Plaintiff then filed a Second Amended Complaint on April 6, 2020. Dkt. 35. On April 27, 2020, Defendants filed a Motion to Dismiss for lack of jurisdiction and failure to state a claim under Federal Rules of Civil Procedure 12(b)(2) and (6). Plaintiff filed his Opposition on May 11, 2020, Dkt. 40, to which Defendants replied on May 18, 2020. Dkt 41.

II. STANDARD OF REVIEW

A. Rule 12(b)(2) Standard

Federal Rule of Civil Procedure 12(b)(2) provides that a court may dismiss a case for lack of personal jurisdiction. Fed. R. Civ. P. 12(b)(2). When resolving a Rule 12(b)(2) motion, the Court undertakes a two-step analysis. First, it looks to whether personal jurisdiction is authorized by state law. Mitrano v. Hawes , 377 F.3d 402, 406 (4th Cir. 2004). Second, the court must find that the exercise of personal jurisdiction comports with the constitutional requirements of due process. Id. Virginia's long-arm statute extends personal jurisdiction to the constitutionally permissible limits of the Due Process Clause of the Fifth Amendment. ePlus Tech., Inc. v. Aboud , 313 F.3d 166, 176 (4th Cir. 2002). Accordingly, "[b]ecause Virginia's long-arm statute is intended to extend personal jurisdiction to the extent permissible under the due process clause, the statutory inquiry merges with the constitutional inquiry." Consulting Eng'rs Corp. v. Geometric Ltd. , 561 F.3d 273, 277 (4th Cir. 2009).

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Ordinarily, a plaintiff bears the burden of proving that personal jurisdiction exists by a preponderance of the evidence. Combs v. Bakker , 886 F.2d 673, 676 (4th Cir. 1989). But when federal law recognizes personal jurisdiction by authorizing nationwide service of process, the burden is on the defendant to show that the "substantial weight" afforded to a Congressional policy choice should be set aside. ESAB Grp., Inc. v. Centricut, Inc. , 126 F.3d 617, 627 (4th Cir. 1997) (citations omitted). When a court rules on personal jurisdiction without an evidentiary hearing, the plaintiff must make a prima facie showing of a sufficient jurisdictional basis to survive the challenge. Id. In reviewing a motion to dismiss under Rule 12(b)(2), a court views all relevant allegations in the light most favorable to the plaintiff and draws all reasonable inferences in favor of jurisdiction. Combs , 886 F.2d at 676 ; see also Mylan Labs. v. Akzo, N.V. , 2 F.3d 56, 59-60 (4th Cir. 1993).

B. Rule 12(b)(6) Standard

A Rule 12(b)(6) motion tests the sufficiency of a complaint. Brockington v. Boykins , 637 F.3d 503, 506 (4th Cir. 2011). "[T]he reviewing court must determine whether the complaint alleges sufficient facts ‘to raise a right to relief above the speculative level[,]’ " and dismissal is appropriate only if the well-pleaded facts in the complaint fail to "state a claim that is plausible on its face.’ " Goldfarb v. Mayor & City Council of Baltimore , 791 F.3d 500, 508 (4th Cir. 2015) (quoting Twombly , 550 U.S. at 555, 570, 127 S.Ct. 1955 ). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal , 556 U.S. at 678, 129...