Nunes v. Lizza, No. 19-CV-4064-CJW-MAR

CourtUnited States District Courts. 8th Circuit. Northern District of Iowa
Writing for the CourtC.J. Williams, United States District Judge
Citation476 F.Supp.3d 824
Parties Devin G. NUNES, Plaintiff, v. Ryan LIZZA; and Hearst Magazine Media, Inc., Defendants.
Decision Date05 August 2020
Docket NumberNo. 19-CV-4064-CJW-MAR

476 F.Supp.3d 824

Devin G. NUNES, Plaintiff,
v.
Ryan LIZZA; and Hearst Magazine Media, Inc., Defendants.

No. 19-CV-4064-CJW-MAR

United States District Court, N.D. Iowa, Western Division.

Signed August 5, 2020


476 F.Supp.3d 834

Steven Scott Biss, Pro Hac Vice, Law Office of Steven S. Biss, Charlottesville, VA, Joseph M. Feller, Koopman Kennedy Feller, Sibley, IA, for Plaintiff.

Jonathan R. Donnellan, Pro Hac Vice, Nathaniel S. Boyer, Pro Hac Vice, Ravi V. Sitwala, Pro Hac Vice, Hearst, New York, NY, Michael A. Giudicessi, Nicholas A. Klinefeldt, Susan Patricia Elgin, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, for Defendant Ryan Lizza.

Jonathan R. Donnellan, Pro Hac Vice, Nathaniel S. Boyer, Pro Hac Vice, Ravi V. Sitwala, Pro Hac Vice, Hearst, New York, NY, Michael A. Giudicessi, Pro Hac Vice, Nicholas A. Klinefeldt, Susan Patricia Elgin, Faegre Drinker Biddle & Reath LLP, Des Moines, IA, for Defendants Hearst Magazines, Inc., Hearst Magazine Media, Inc.

MEMORANDUM OPINION AND ORDER

C.J. Williams, United States District Judge

476 F.Supp.3d 835

TABLE OF CONTENTS

I. FACTUAL BACKGROUND...835

II. PROCEDURAL HISTORY...837

III. APPLICABLE LAW...837

A. Standard Under FED. R. CIV. P. 12(b)(6)...837

B. Standard Under FED. R. CIV. P. 12(f)...838

C. Substantive Law and Choice of Law...838

1. Defamation Law Generally...838

2. Actual Malice...841

3. Defamation by Implication...841

4. Anti-SLAPP...844

IV. ANALYSIS...846

A. Count I - Defamation...847

1. Individual Statements...847

2. Defamation by Implication...854

a. Defamatory Inference...854

b. Subjective Intent...856

3. Actual Malice...857

B. Count II - Conspiracy...861

C. Rule 12(f) Motion to Strike...861

V. CONCLUSION...862

This matter is before the Court on defendants’ Pre-Answer Motion to Dismiss, to Strike the Amended Complaint Pursuant to CAL. CIV. PROC. CODE § 425.16, and to Strike Pursuant to FED. R. CIV. P. 12(f) ("motion to dismiss"). (Doc. 34). Plaintiff filed a timely resistance. (Doc. 38). Defendants moved for leave to file an overlength reply brief, and plaintiff consented in part. (Doc. 40). The Court granted defendants’ motion in part and gave defendants additional time to file their reply. (Doc. 41). Defendants timely replied to plaintiff's resistance. (Doc. 43). The Court held oral argument on defendants’ motion to dismiss. (Doc. 46). The Court considers this matter fully submitted. For the following reasons, defendants’ motion is granted in part, denied in part, denied as moot in part , and this case is dismissed with prejudice .

I. FACTUAL BACKGROUND

Plaintiff is a citizen of California and has represented California's 22nd District in the United States House of Representatives since 2003. (Doc. 23, at 3). Notably, plaintiff was the Chairman of the House Intelligence Committee during the investigation into Russian interference in the

476 F.Supp.3d 836

2016 Presidential election. (Id. , at 7). Plaintiff grew up working on his family's dairy farm in Tulare County, California. (Id. , at 4). Plaintiff's family members include his father, Anthony Nunes Jr. ("Anthony Jr."), his mother, Toni Dian, his brother, Anthony Nunes III ("Anthony III"), and his sister-in-law, Lori Nunes. (Doc. 34-2, at 5-6). In 2006, plaintiff, Anthony Jr., Toni Dian, and Anthony III sold their farmland in Tulare County, California. (Id. , at 5). Anthony Jr. and Toni Dian later bought farmland in Sibley, Iowa and moved the family's dairy operation to Sibley. (Id. , at 5-6; Doc. 23, at 4). Anthony III and Lori Nunes also live in Sibley. (Docs. 34-2, at 5-6; Doc. 23, at 4). The dairy operation is called NuStar Farms, LLC ("NuStar"). (Doc. 34-2, at 10). Anthony Jr., Anthony III, Toni Dian, and Lori Nunes all operate NuStar. (Doc. 23, at 4). Plaintiff has no financial interest in NuStar and is not involved in its operations. (Id. , at 7; Doc. 34-2, at 7, 17).

Defendant Ryan Lizza ("Lizza") is a political journalist who at all relevant times worked for Esquire magazine. (Doc. 23, at 2). Hearst Magazine Media, Inc. ("HMMI")1 publishes Esquire. (Id. , at 5). On August 27, 2018, Lizza traveled to Sibley, Iowa, to investigate NuStar's dairy operation. (Docs. 23, at 2; 34-2, at 7). As part of his reporting, Lizza interviewed multiple sources about undocumented immigrant labor use on Iowa dairy farms generally and NuStar's use of undocumented labor specifically. (Doc. 34-2, at 11-12, 18). Lizza also spoke to Jerry Nelson ("Nelson") a reporter for Dairy Star who previously wrote an article about NuStar. (Id. , at 7).

Lizza wrote an article (the "Article") which HMMI published both in print and online. (Docs. 34-2; 34-3).2 The Court will discuss the relevant portions of the Article in detail in its analysis of the claims, but a brief overview is useful here. The headline of the online version of the Article states "Devin Nunes's Family Farm is Hiding a Politically Explosive Secret." (Doc. 34-2, at 2). The print version is entitled "Milking the System" and the text under the title asks "So why did [plaintiff's] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive?" (Doc. 34-3, at 4). In the seventh paragraph the Article states "So here's the secret: The Nunes Family dairy of political lore—the one where [plaintiff's] brother and parents work—isn't in California. It's in Iowa." (Doc. 34-2, at 5). The Article further explains the secret by discussing how plaintiff's family's move to Iowa was not publicized and was apparently obscured. (Id. , at 6-7). Lizza also recounts his experience in Sibley investigating NuStar farms, including encounters with various members of plaintiff's family. (Id. , at 10, 13, 15-16). The Article also discusses the use of undocumented labor by midwestern dairies and NuStar.

Plaintiff challenges eleven statements in the Article and alleges the Article implies plaintiff conspired with his family and others to cover up NuStar's use of undocumented

476 F.Supp.3d 837

labor, and thus, defamed him. (Doc. 23, at 7-10). Plaintiff also claims that Lizza conspired with others to promote the Article and further defame plaintiff. (Id. , at 25-26). Plaintiff demanded defendants retract the Article. (Id. , at 25). Defendants refused, and plaintiff filed this suit.

II. PROCEDURAL HISTORY

Plaintiff filed his original complaint on September 30, 2019, alleging claims for defamation and common law conspiracy. (Doc. 1). On January 21, 2020, defendants moved to dismiss the original complaint. (Doc. 15). Defendants raised largely the same arguments as they do in this motion, including that plaintiff failed to plausibly allege defendants published the Article with actual malice. (Doc. 19). On February 3, 2020, plaintiff filed his amended complaint. (Doc. 23). The Court denied defendants’ first motion to dismiss as moot with leave to refile Rule 12 motions attacking the amended complaint. (Doc. 24). Defendants moved to dismiss the amended complaint. (Doc. 34). The Court held oral argument on defendants’ motion to dismiss on April 24, 2020. (Doc. 46).

III. APPLICABLE LAW

A. Standard Under FED. R. CIV. P. 12(b)(6)

A complaint must contain "a short and plain statement of the grounds for the court's jurisdiction ... a short and plain statement of the claim showing that the pleader is entitled to relief ... and a demand for the relief sought." FED. R. CIV. P. 8(a). Rule 12(b)(6) provides that a party may assert the defense of failure to state a claim upon which relief can be granted by motion and that "[a] motion asserting [this] defense[ ] must be made before pleading if a responsive pleading is allowed." "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (internal citations and quotation marks omitted). "Factual allegations must be enough to raise a right to relief above the speculative level," but "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that recovery is very remote and unlikely." Id. , at 555-56, 127 S.Ct. 1955. Indeed, a theory asserted need only be plausible, which requires "enough fact to raise a reasonable expectation that discovery will reveal evidence of [the conduct alleged]." Id.

"[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged —but has not shown —that the pleader is entitled to relief." Ashcroft v. Iqbal , 556 U.S. 662, 679, ...

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3 practice notes
  • Harvey v. Cable News Network, Inc., Civil Action No. RDB-20-3068
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 17, 2021
    ...story, and relied on unreliable or biased sources in researching" the challenged publications, fail to plausibly assert actual malice. 476 F.Supp.3d 824, 858. The Complaint's conclusory allegations also fail to plausibly allege actual malice.520 F.Supp.3d 723 In his Response in Opposition t......
  • Hooks v. Saltgrass Ark., Inc., 4:21-cv-00841-KGB
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • July 7, 2022
    ...to the controversy or prejudice the objecting party. Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). Nunes v. Lizza, 476 F.Supp.3d 824, 838 (N.D. Iowa 2020), aff'd in part, rev'd in part and remanded, 12 F.4th 890 (8th Cir. 2021). Material also may be scandalous if it “states any......
  • Lokhova v. Halper, 1:20-cv-1603 (LMB/MSN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 9, 2021
    ...and scandalous," with "no bearing on this case," and "prejudicial to [defendant]" with "criminal overtones," Nunes v. Lizza, 476 F. Supp. 3d 824, 861-62 (N.D. Iowa 2020); and by a district judge in the Southern District of Florida who imposed sanctions on Biss under the Florida anti-SLAPP s......
3 cases
  • Harvey v. Cable News Network, Inc., Civil Action No. RDB-20-3068
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Maryland)
    • February 17, 2021
    ...story, and relied on unreliable or biased sources in researching" the challenged publications, fail to plausibly assert actual malice. 476 F.Supp.3d 824, 858. The Complaint's conclusory allegations also fail to plausibly allege actual malice.520 F.Supp.3d 723 In his Response in Opposition t......
  • Hooks v. Saltgrass Ark., Inc., 4:21-cv-00841-KGB
    • United States
    • United States District Courts. 8th Circuit. United States State District Court of Eastern District of Arkansas
    • July 7, 2022
    ...to the controversy or prejudice the objecting party. Wilkerson v. Butler, 229 F.R.D. 166, 170 (E.D. Cal. 2005). Nunes v. Lizza, 476 F.Supp.3d 824, 838 (N.D. Iowa 2020), aff'd in part, rev'd in part and remanded, 12 F.4th 890 (8th Cir. 2021). Material also may be scandalous if it “states any......
  • Lokhova v. Halper, 1:20-cv-1603 (LMB/MSN)
    • United States
    • United States District Courts. 4th Circuit. United States District Court (Eastern District of Virginia)
    • July 9, 2021
    ...and scandalous," with "no bearing on this case," and "prejudicial to [defendant]" with "criminal overtones," Nunes v. Lizza, 476 F. Supp. 3d 824, 861-62 (N.D. Iowa 2020); and by a district judge in the Southern District of Florida who imposed sanctions on Biss under the Florida anti-SLAPP s......

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