Straka v. NBC Universal MEDIA, LLC

• Court: U.S. District Court — District of Nebraska
• Writing for the Court: Joseph F. Bataillon, Senior United States District Judge
• Docket Number: 8:22CV434
• Decision Date: 08 August 2023
• Parties: BRANDON STRAKA, Plaintiff, v. NBC Universal MEDIA, LLC, Defendant.[1]

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BRANDON STRAKA, Plaintiff, v. NBC Universal MEDIA, LLC, Defendant.^[1]

No. 8:22CV434

United States District Court, D. Nebraska

August 8, 2023

MEMORANDUM AND ORDER

Joseph F. Bataillon, Senior United States District Judge

This matter is before the Court on defendant NBC Universal Media LLC's (“NBC Universal”) motion to dismiss Filing No. 16. This is an action for defamation and false light invasion of privacy. Jurisdiction is based on diversity of citizenship under 28 U.S.C. § 1332. Defendant NBC Universal moves to dismiss for failure to state a claim under Fed.R.Civ.P. 12(b)(6), or for improper venue under Fed.R.Civ.P. 12(b)(2). Alternatively, it moves to transfer venue to the Southern District of New York.

I. BACKGROUND

In his complaint, the plaintiff, Brandon Straka, alleges that NBC Universal published statements on primetime cable television that singled out Straka and falsely accused him of criminal conduct in connection with events that occurred on January 6, 2021, at the Capitol in Washington, D.C.^[2] Straka alleges that he suffered harm to his reputation as a result of those statements. In its motion to dismiss, defendant NBC Universal argues that, as a matter of law, the plaintiff cannot meet his burden of proving the material falsity of any of the challenged statements. It argues the action is barred by the binding judicial admissions Straka made in his criminal case involving his conduct on January 6, 2021.

In support of its motion, defendant submits certain public records that are part incorporated into the plaintiff's complaint by reference and otherwise subject to judicial notice. Filing No. 17, Index of Evid., Filing No. 17-1, Ex. 1, Declaration of Natalie J. Spears (“Spears Decl.”), Filing Nos. 17-2-14, Exs. 1(A) to 1(M). Those exhibits include information about Brandon Straka's website and activities involving the WalkAway campaign (Filing Nos. 17-2-6, Exs. (A) to 1(E)); the New York State Court Amended Complaint in an action against the Lesbian, Gay, Bisexual and Transgender Community Center and others (Filing No. 17-1, Ex. 1(F)); the cable segments referenced in the plaintiff's complaint in this case (Filing Nos. 17-8 and 17-9, Exs. 1(G) and 1(H)); the Criminal Complaint & FBI Affidavit, the Plea Agreement, the Statement of Offense, and Sentencing Memorandum Excerpts in United States v. Brandon Straka, No. 1:21-cr-00579 (D.D.C.) (Filing Nos. 17-10-13, Exs. 1(I) to 1(L)); and excerpts of Brandon Straka's deposition testimony to the January 6th Select Committee (Filing No. 17-14 Ex. 1(M)). As relevant to the present motion, the Court considers and relies on the criminal case filings.

Those documents show that the plaintiff entered a plea of guilty to count one of an information charging him with Engaging in Disorderly and Disruptive Conduct in the Capitol Building or Grounds, in violation of 40 U.S.C. § 5104(e)(2)(D). Filing No. 17-11 at 1, Ex. 1(J), plea agreement. In the plea agreement, he acknowledged that the attached Statement of Offense fairly and accurately described his actions and involvement in the offense. Id. at 2. He agreed and stipulated to the factual basis for his guilty plea and agreed that if the case were to proceed to trial, the United States could prove the agreed-to facts beyond a reasonable doubt. Filing No. 17-12 at 1, Ex. 1(K), Statement of Offense. ^[3] The Statement of Offense provides that Straka “knowingly entered the restricted area at the U.S. Capitol Grounds.” Id. at 4. It further provides:

While in the restricted area, knowing he was not authorized to be there, Straka observed the crowd yelling and U.S. Capitol Police trying to prevent people from going into the U.S. Capitol and to manage the unruly crowd. Amongst other things, he engaged in disruptive conduct by participating, along with others, in yelling "go, go, go" to encourage others to enter the U.S. Capitol while the U.S. Capitol Police were making their best efforts to prevent people from doing so. Straka also observed others yelling to take a U.S. Capitol Police Officer's shield. He recorded a video of what was happening, and in the video, he chimed in with the crowd, saying ''take it, take it." He did this between 2:30 and 2:45 p.m. on January 6 while outside the entrance to the U.S. Capitol in the restricted area on the Capitol Grounds. Straka left the U.S. Capitol Grounds at approximately 3:00 p.m.

Id. Also, Straka agreed that he “knew at the time he entered the U.S. Capitol Grounds that that he did not have permission to enter the Grounds, and the [he] did so with the intent to impede, disrupt, or disturb the orderly conduct of a session of Congress.” Id.

II. LAW

Under the Federal Rules of Civil Procedure, a complaint must contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Fed.R.Civ.P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007); Braden v. Wal-Mart Stores Inc., 588 F.3d 585, 594 (8th Cir. 2009). “Specific facts are not necessary; the statement need only ‘give the defendant fair notice of what the . . . claim is and the grounds [on] which it rests.'” Erickson v. Pardus, 551 U.S. 89, 93 (2007) (quoting Twombly, 550 U.S. at 555)).

In deciding a motion to dismiss under Rule 12(b)(6), the Court must accept the allegations contained in the complaint as true and draw reasonable inferences in favor of the nonmoving party. Cole v. Homier Distrib. Co., 599 F.3d 856, 851 (8th Cir. 2010).

In order to survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the factual allegations in plaintiff's complaint “must be enough to raise a right to relief above the speculative level,” to one that is “plausible on its face,” rather than merely “conceivable.” Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 677 (2009). Determining whether a complaint states a plausible claim for relief is “a context-specific task” that requires the Court “to draw on its judicial experience and common sense.” Id. at 679.

Dismissal under Rule 12(b)(6) is appropriate only if it is clear that no relief can be granted under any set of facts that could be proven consistent with the allegations. O'Neal v. State Farm Fire & Cas. Co., 630 F.3d 1075, 1077 (8th Cir. 2011). Although the Federal Rules of Civil Procedure require more specific pleading in certain cases, “defamation cases are not among them.” Hatfill v. New York Times Co., 416 F.3d 320, 329 (4th Cir. 2005).

Under Nebraska law, a claim of defamation requires: “(1) a false and defamatory statement concerning the plaintiff; (2) an unprivileged publication to a third party; 3) fault amounting to at least negligence on the part of the publisher; and (4) either actionability of the statement irrespective of special harm or the existence of special harm caused by the publication.” Norris v. Hathaway, 561 N.W.2d 583, 585 (Neb.App. 1997) (citations omitted). ^[4] Falsity is an element of a plaintiff's defamation claim and is his burden under the First Amendment. Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986) (in cases involving speech of public concern, the Constitution requires “that the plaintiff bear the burden of showing falsity”). ^[5]

The standard is one of substantial truth or material falsity: “Minor inaccuracies do not amount to falsity so long as ‘the substance, the gist, the sting, of the libelous charge be justified.'” Masson v. New Yorker Mag., Inc., 501 U.S. 496, 517 (1991) (quoting Heuer v. Kee, 59 P.2d 1063, 1064 (Cal.App. 1936)). A statement is not false unless “it would have a different effect on the mind of the reader from that which the pleaded truth would have produced.” Id.

If a statement, though not precisely true, is substantially true, that is enough to end the litigation as a matter of law. Bustos v. A & E Television Networks, 646 F.3d 762, 762 (10th Cir. 2011) (emphasis in original) (affirming dismissal of a claim for damages in a defamation suit “for being called a member of the Aryan Brotherhood prison gang on cable television when, as it happens, you have merely conspired with the Brotherhood in a criminal enterprise”) (Gorsuch, J.); see also Lundell Mfg. Co. v. Am. Broad. Companies, Inc., 98 F.3d 351, 357 (8th Cir. 1996) (“if no reasonable jury could conclude that the statement was a false statement of material fact, the libel defendant is protected from a defamation suit”). To satisfy his burden of proving material falsity, a plaintiff must prove that the “gist or sting” of the alleged defamation would have a different effect on the mind of the audience than the literal truth; “[w]hen the truth is so near to the facts as published that fine and shaded distinctions must be drawn and words pressed out of their ordinary usage to sustain a charge of libel, no legal harm has been done.” Tannerite Sports, LLC, 864 F.3d at 242-43 (citation omitted); see Air Wisconsin Airlines Corp. v. Hoeper, 571 U.S. 237, 247 (2014) (finding no “material difference” between “a statement that [plaintiff] had just ‘blown up' in a professional setting” and allegedly defamatory statement that “he was ‘[u]nstable'”). In evaluating a statement's substantial truth, courts should not engage in “fine splitting of semantic hairs” that “might leave room to argue about its literal truth.” Wesbrook v. Ulrich, 840 F.3d 388, 395 (7th Cir. 2016).

Generally the court may not consider matters outside the pleadings when deciding a motion to dismiss for failure to state a claim. Fed.R.Civ.P. 12(d). “Though matters outside the pleading may not be considered in deciding a Fed.R.Civ.P. 12 motion to dismiss, documents...