Nunes v. Nbcuniversal Media, LLC

• Decision Date: 28 January 2022
• Docket Number: Civil Action No. 4:21-CV-00608
• Citation: 582 F.Supp.3d 387
• Parties: Devin G. NUNES, Plaintiff, v. NBCUNIVERSAL MEDIA, LLC, Defendant.
• Court: U.S. District Court — Eastern District of Texas

582 F.Supp.3d 387

Devin G. NUNES, Plaintiff,

v.NBCUNIVERSAL MEDIA, LLC, Defendant.

Civil Action No. 4:21-CV-00608

United States District Court, E.D. Texas, Sherman Division.

Signed January 28, 2022

Madhu Suseela Sekharan, Madhu Sekaran, J.D., M.B.A., Attorney at Law, Cypress, TX, for Plaintiff.

Laura Lee Prather, Michael Joseph Lambert, Haynes & Boone, LLP, Austin, TX, for Defendant.

MEMORANDUM OPINION AND ORDER

AMOS L. MAZZANT, UNITED STATES DISTRICT JUDGE

Pending before the Court are Defendant's Motion to Dismiss for Lack of Personal Jurisdiction and Improper Venue Under Federal Rules of Civil Procedure 12(b)(2), 12(b)(3) and 28 U.S.C. § 1406(a), or, in the Alternative, Motion to Transfer Venue to the U.S. District Court for the Eastern District of California Under 28 U.S.C. § 1404(a) or § 1406(a) (Dkt. #5), and Plaintiff's Motion to Permit Jurisdictional Discovery and to Adjust Deadlines (Dkt. #8). Having considered the motions and the relevant pleadings, the Court finds that Defendant's motion (Dkt. #5) should be GRANTED in part and DENIED in part , and that Plaintiff's motion (Dkt. #8) should be DENIED .

BACKGROUND

This case arises from a news segment published by Defendant NBCUniversal Media, LLC, ("NBCU") concerning Plaintiff Devin G. Nunes’ ("Nunes") purported involvement with Russian operatives. Nunes is a California resident who served as the U.S. Representative for California's 22nd Congressional District from 2003 to 2021. From 2015 to 2019, he acted as the Charmain of the House Permanent Select Committee on Intelligence, and became the Ranking Member on the Committee in 2019. Nunes announced his resignation from Congress on December 6, 2021.

MSNBC is an American news-based television network owned by NBCU. From its headquarters in New York City, MSNBC broadcasts to millions of households worldwide through its television programs, website, and social media. As part of its weeknight programming, MSNBC airs The Rachel Maddow Show in which television host Rachel Maddow ("Maddow") provides news coverage as well as her own reporting and political commentary on current events.

On March 18, 2021, the Office of the Director of National Intelligence released a document about Russia's interference in the 2020 presidential election. Later that day, during a segment of The Rachel Maddow Show entitled "More Than the Usual Mess," Maddow discussed the government's findings, stating:

In the report from the Director of National Intelligence, about Russia interfering in the election in 2020, one of the named agents in that report described by the Director of National Intelligence as having carried out the Kremlins’ attack on our election this year is a man named Andriy Derkach. The report names him. It says he was under the purview of Russian President Vladimir Putin for the purpose of this operation; targeting the election to try to hurt Biden and help Trump....

... last summer, Democrats on the Intelligence Committee in the House learned that that same guy, Derkach, had mailed a stack of unknown materials to a Republican Congressman named Devin Nunes, who's the top Republican on the Intelligence Committee to this day.

... Congressman Nunes accepted a package from him. What was in it? Congressman Nunes has refused to answer questions about what he received from Andriy Derkach.

He has refused to show the contents of the package to other members of the Intelligence Committee; he has refused to hand it over to the FBI, which is what you should do if you get something from somebody who is sanctioned by the US Government as a Russian agent. Still, the Republicans have kept Mr. Nunes on as the top Republican on the Intelligence Committee. How does that stand? How does that stay a thing?

(Dkt. #5, Exhibit C at pp. 2–3) (cleaned up) (the "Report"). The Report was originally broadcast on MSNBC's cable network, and subsequently published online to both MSNBC's YouTube channel and Maddow's Twitter account (Dkt. #1 ¶ 4).

On August 3, 2021, Nunes filed suit in the undersigned Court, alleging that several of the statements made during the Report were false and defamatory (Dkt. #1). Specifically, Nunes contends the Report substantially harmed his reputation with his "significant following and support in Texas" composed of "contributors, 100,000+/- subscribers to direct communications, and social media followers in excess of 200,000" (Dkt. #1 ¶ 7). On October 28, 2021, NBCU filed its Motion to Dismiss (Dkt. #5). On November 12, 2021, Nunes filed a response (Dkt. #9). On November 22, 2021, NBCU filed a reply (Dkt. #14). On November 28, 2021, Nunes filed a sur-reply (Dkt. #16).

On November 3, 2021, Nunes filed a Motion to Permit Jurisdictional Discovery (Dkt. #8) on the personal jurisdiction and venue issues raised in NBCU's Motion to Dismiss (Dkt. #5). On November 17, 2021, NBCU filed a response (Dkt. #11).

LEGAL STANDARD

When considering a motion to dismiss, "[a]llegations in [a] plaintiff's complaint are taken as true except to the extent that they are contradicted by defendant's affidavits." Int'l Truck & Engine Corp. v. Quintana , 259 F. Supp. 2d 553, 557 (N.D. Tex. 2003) (citing Wyatt v. Kaplan , 686 F.2d 276, 282–83 n.13 (5th Cir. 1982) ); accord Black v. Acme Mkts., Inc. , 564 F.2d 681, 683 n.3 (5th Cir. 1977). Further, "[a]ny genuine, material conflicts between the facts established by the parties’ affidavits and other evidence are resolved in favor of plaintiff for the purposes of determining whether a prima facie case exists." Id. (citing Jones v. Petty-Ray Geophysical Geosource, Inc. , 954 F.2d 1061, 1067 (5th Cir. 1992) ).

ANALYSIS

I. Personal Jurisdiction

NBCU asks this Court to dismiss Nunes’ claims under Federal Rule of Civil Procedure 12(b)(2). This rule requires a court to dismiss a claim if the court does not have personal jurisdiction over the defendant. FED. R. CIV. P. 12(b)(2). After a non-resident defendant files a motion to dismiss for lack of personal jurisdiction, it is the plaintiff's burden to establish that in personam jurisdiction exists. Bullion v. Gillespie , 895 F.2d 213, 217 (5th Cir. 1990) (citing WNS, Inc. v. Farrow , 884 F.2d 200, 202 (5th Cir. 1989) ). To satisfy that burden, the party seeking to invoke the court's jurisdiction must "present sufficient facts as to make out only a prima facie case supporting jurisdiction," if a court rules on a motion without an evidentiary hearing. Alpine View Co. v. Atlas Copco AB , 205 F.3d 208, 215 (5th Cir. 2000).

A court conducts a two-step inquiry when a defendant challenges personal jurisdiction. Ham v. La Cienega Music Co. , 4 F.3d 413, 415 (5th Cir. 1993). First, absent a controlling federal statute regarding service of process, the court must determine whether the forum state's long-arm statute confers personal jurisdiction over the defendant. Id. And second, the court must establish whether the exercise of jurisdiction is consistent with due process under the United States Constitution. Id.

It is undisputed that the Texas long-arm statute confers jurisdiction to the limits of due process under the Constitution. Command-Aire Corp. v. Ont. Mech. Sales and Serv. Inc. , 963 F.2d 90, 93 (5th Cir. 1992). Therefore, the sole inquiry that remains is whether personal jurisdiction offends or comports with federal constitutional guarantees.

Bullion , 895 F.2d at 216. The Due Process Clause permits the exercise of personal jurisdiction over a non-resident defendant when the defendant has established minimum contacts with the forum state "such that maintenance of the suit does not offend traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington , 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). Minimum contacts with a forum state can be satisfied by contacts that give rise to either general jurisdiction or specific jurisdiction. Wilson v. Belin , 20 F.3d 644, 647 (5th Cir. 1994).

Nunes contends that NBCU has established sufficient minimum contacts in Texas because NBCU "owns property" and "maintains corporate and retail offices and agents throughout Texas" and "[t]he Statements were intentionally broadcast and republished throughout Texas" (Dkt. #1 ¶¶ 8, 11). Accordingly, Nunes alleges this Court has both general and specific jurisdiction over NBCU. NBCU argues that this Court has neither general nor specific jurisdiction for two reasons: (1) NBCU's contacts with Texas do not make it "at home" here, and (2) "Texas is not the focus of the Report or the alleged harm suffered" (Dkt. #5 at pp. 19, 20). Nunes responds in opposition to each of NBCU's points (see Dkt. #9). The Court will begin by examining whether it has general jurisdiction over NBCU.

A. General Jurisdiction

General jurisdiction exists only when the defendant's contacts with the forum state are so " ‘continuous and systematic’ as to render them essentially at home in the forum State." Daimler AG v. Bauman , 571 U.S. 117, 127, 134 S.Ct. 746, 187 L.Ed.2d 624 (2014) (quoting Goodyear Dunlop Tires Operations, S.A. v. Brown , 564 U.S. 915, 919, 131 S.Ct. 2846, 180 L.Ed.2d 796 (2011) ); see Cent. Freight Lines v. APA Transp. Corp. , 322 F.3d 376, 381 (5th Cir. 2003) (citing Helicopteros Nacionales de Colum., S.A. v. Hall , 466 U.S. 408, 414 n.8, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984) ). Except in "exceptional cases," a corporation is "at home" only in its state of incorporation and in the state of its principal place of business. Daimler , 571 U.S. at 137, 134 S.Ct. 746. Because a corporation that operates in many states or countries can scarcely be deemed at home in all of them, "when a corporation is neither incorporated nor maintains its principal place of business in a state, mere contacts, no matter how systematic and continuous, are extraordinarily unlikely to add up to an exceptional case." Brown v. Lockheed Martin Corp. , 814 F.3d 619, 629 (2d Cir. 2016) (citing Daimler , 571 U.S. at 139 n. 20, 134 S.Ct. 746 ).

Here, NBCU is a limited liability company organized under Delaware law...