US Dominion, Inc. v. Powell

• Citation: 554 F.Supp.3d 42
• Decision Date: 11 August 2021
• Docket Number: Civil Action No. 1:21-cv-00040 (CJN), Civil Action No. 1:21-cv-00213 (CJN), Civil Action No. 1:21-cv-00445 (CJN)
• Parties: US DOMINION, INC., et al., Plaintiffs, v. Sidney POWELL, et al., Defendants. US Dominion, Inc., et al., Plaintiffs, v. Rudolph W. Giuliani, Defendant. US Dominion, Inc., et al., Plaintiffs, v. My Pillow, Inc., et al., Defendants.
• Court: U.S. District Court — District of Columbia

554 F.Supp.3d 42

US DOMINION, INC., et al., Plaintiffs,

v.Sidney POWELL, et al., Defendants.

US Dominion, Inc., et al., Plaintiffs,

v.Rudolph W. Giuliani, Defendant.

US Dominion, Inc., et al., Plaintiffs,

v.My Pillow, Inc., et al., Defendants.

Civil Action No. 1:21-cv-00040 (CJN)

Civil Action No. 1:21-cv-00213 (CJN)

Civil Action No. 1:21-cv-00445 (CJN)

United States District Court, District of Columbia.

Signed August 11, 2021

Dustin Andrew Pusch, Megan Lambart Meier, Thomas A. Clare, Clare Locke LLP, Alexandria, VA, Elisha Barron, Pro Hac Vice, Stephen Shackelford, Jr., Pro Hac Vice, Susman Godfrey L.L.P., New York, NY, Brittany Fowler, Pro Hac Vice, Davida Brook, Pro Hac Vice, Susman Godfrey LLP, Los Angeles, CA, Justin A. Nelson, Susman Godfrey LLP, Houston, TX, for Plaintiffs US Dominion, Inc. in 1:21-cv-00040 (CJN), 1:21-cv-00213 (CJN), Dominion Voting Systems, Inc. in 1:21-cv-00040 (CJN), 1:21-cv-00213 (CJN), Dominion Voting Systems Corporation in 1:21-cv-00040 (CJN), 1:21-cv-00213 (CJN).

Jesse R. Binnall, Binnall Law Group, Alexandria, VA, Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, for Plaintiff Defending the Republic, Inc. in 1:21-cv-00040 (CJN).

Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, Howard Kleinhendler, New York, NY, for Plaintiffs Sidney Powell in 1:21-cv-00040 (CJN), Sidney Powell, P.C. in 1:21-cv-00040 (CJN).

Dustin Andrew Pusch, Megan Lambart Meier, Thomas A. Clare, Clare Locke LLP, Alexandria, VA, Elisha Barron, Pro Hac Vice, Stephen Shackelford, Jr., Pro Hac Vice, Susman Godfrey L.L.P., New York, NY, Florence Chen, Laranda Walker, Justin A. Nelson, Susman Godfrey L.L.P., Houston, TX, Brittany Fowler, Pro Hac Vice, Davida Brook, Pro Hac Vice, Susman Godfrey LLP, Los Angeles, CA, for Plaintiffs US Dominion, Inc. in 1:21-cv-00445 (CJN), Dominion Voting Systems, Inc. in 1:21-cv-00445 (CJN), Dominion Voting Systems Corporation in 1:21-cv-00445 (CJN).

Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, Howard Kleinhendler, Pro Hac Vice, New York, NY, for Defendants Sidney Powell in 1:21-cv-00040 (CJN), Sidney Powell, P.C. in 1:21-cv-00040 (CJN).

Jesse R. Binnall, Binnall Law Group, Alexandria, VA, Lawrence J. Joseph, Law Office of Lawrence J. Joseph, Washington, DC, for Defendant Defending the Republic, Inc. in 1:21-cv-00040 (CJN)

Joseph D. Sibley, IV, Camara & Sibley LLP, Austin, TX, for Defendant Rudolph W. Giuliani in 1:21-cv-00213 (CJN).

Andrew D. Parker, Pro Hac Vice, Abraham S. Kaplan, Pro Hac Vice, Elizabeth S. Wright, Pro Hac Vice, Ryan Malone, Pro Hac Vice, Joseph Alan Pull, Parker Daniels Kibort LLC, Gregory Arenson, Pro Hac Vice, Pearson Simon Warshaw LLP, Minneapolis, MN, Nathan Lewin, Lewin & Lewin, LLP, Washington, DC, for Defendant My Pillow, Inc. in 1:21-cv-00445 (CJN).

Douglas A. Daniels, Heath Novosad, Daniels & Tredennick PLLC, Houston, TX, Earl N. Mayfield, III, Juris Day, PLLC, Fairfax, VA, for Defendant Michael J. Lindell in 1:21-cv-00445 (CJN).

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge US Dominion, Inc., and other related corporate entities sued three sets of Defendants—Sidney Powell, her law firm, and a related entity; Rudy Giuliani; and Mike Lindell and his company, My Pillow, Inc.—alleging that they each defamed Dominion in connection with the 2020 presidential election. Although the three lawsuits have not been consolidated, they were designated as related pursuant to Local Rule 40.5(b)(2) and assigned to this Court. The Defendants have since moved to dismiss all of Dominion's claims. For the following reasons, the Court denies their Motions in full.

I. Factual Background

The most recent presidential election occurred on November 3, 2020.¹ While many Americans cast their votes that day, others did not; some voted in-person before November 3, and others sent their ballots by mail. States employed a myriad of procedures to handle early and mail-in votes: some started counting in the days or weeks leading up to the election, while others waited until Election Day itself. See, e.g. , 25 Pa. Stat. § 3146.8 (2020) (dictating that Pennsylvania mail-in ballots may be counted no earlier than seven o'clock a.m. on election day); N.C. Gen. Stat. § 163-234 (2020) (directing that North Carolina may start counting two weeks before election day).

Even twenty-four hours after the polls closed, no clear winner had emerged—several news outlets projected 253 electoral votes for now-President Biden and 213 for then-President Trump, but the outcome of the election depended on six states (Georgia, Pennsylvania, Nevada, North Carolina, Alaska, and Arizona) whose results were not finalized until much later.²

On November 7, various news outlets declared Joe Biden the winner.³ But public controversy surrounding the election was far from over: election results in various states were challenged, audited, and eventually certified over the course of the next several weeks.

A. The Parties

US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation (together, "Dominion") are related corporate entities involved in the sale of electronic voting machines and software in the United States. Powell Compl., ECF No. 1 at ¶ 2 n.1. Dominion contracts with state and local governments to supply voting systems and services in elections across the country. Id. ¶ 33. At the time of the 2020 presidential election, Dominion had contracts to supply those services in twenty-eight states and Puerto Rico. Id.

These three corporate entities are now organized as US Dominion, Inc., a Delaware corporation based in Denver, Colorado, id. ¶ 30, and its two wholly-owned subsidiaries, Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation, id. ¶¶ 12–14, 32. The companies’ origins lie in the founding in 2002 of Dominion Voting Systems Corporation (also now a subsidiary) in Toronto, Ontario. Id. ¶ 29.

Defendant Sidney Powell is an attorney, formal federal prosecutor, and media figure. Id. ¶ 15. She is a director of Defending the Republic, Inc. ("DTR"), a Texas corporation that runs the website defendingtherepublic.org, id. ¶¶ 17, 21, and the president of Powell, P.C., a Texas law firm and sole proprietorship from which she conducts her private practice, id. ¶ 16. Among other recent representations, between 2018 and 2020, Powell and her law firm represented Michael Flynn in the criminal case against him in this district. Id. ¶¶ 24, 25, 80. Powell also appeared as counsel of record in election-related lawsuits in Georgia, Michigan, Wisconsin, and Arizona filed by various parties. Id. ¶ 75. During the period relevant to this suit, Powell made numerous media appearances in which she discussed the election and Dominion.

Defendant Rudolph Giuliani once served as the mayor of New York City, Associate Attorney General of the United States, and United States Attorney for the Southern District of New York. Giuliani Compl., ECF No. 1 at ¶ 8. He hosts a radio show and YouTube podcast and is the personal attorney for President Trump. Id. Giuliani has also represented the Trump campaign, including in its lawsuit challenging mail-in ballots and the conduct of election officials in Pennsylvania. Id. ¶ 25. Like Powell, Giuliani made numerous media appearances in which he discussed the election and Dominion.

Defendant Michael Lindell is the founder and CEO of My Pillow, Inc. ("MyPillow"), Lindell Compl., ECF No. 1 at ¶ 10, a Minnesota corporation that sells (among other things) pillows and bedding, id. ¶ 9. In July 2017, then-President Trump endorsed MyPillow at a White House event. Id. ¶ 22. MyPillow sponsored several rallies in support of President Trump and has offered discounts on its products using discount codes such as "FightforTrump," "45," and "PROOF." Id. ¶ 1. Like Powell and Giuliani, Lindell has made numerous media appearances in which he discussed the election and Dominion.

Dominion alleges that each Defendant made defamatory statements about its role in the 2020 election. Those statements are too numerous to summarize in their entirety; the Court limits its discussion to the allegations necessary to decide the pending Motions.

B. Examples of Allegedly Defamatory Statements

On the day of the presidential election, Powell appeared on One America News Network and declared that Democrats were trying to "steal the vote" from President Trump and that "they ha[d] developed a computer system to alter votes electronically." Powell Compl. ¶ 52. Shortly thereafter, she and Giuliani visited Trump campaign headquarters, where they both urged the campaign's attorneys to cast doubt on election results by focusing suspicion on Dominion. Id. ¶ 54; Giuliani Compl. ¶ 15. The campaign declined to pursue those claims after Powell was unable to provide it with supporting evidence. Powell Compl. ¶ 55.

Between November 3 and December 23, both Powell and Giuliani appeared on various television shows in which they stated that Dominion was connected to Venezuela. Powell Compl. ¶¶ 52, 181(ee). In particular, on November 12, Giuliani appeared on Fox Business's Lou Dobbs Tonight and stated that Dominion is owned by a company called Smartmatic, which Giuliani claimed was formed "by three Venezuelans" "in order to fix elections." Giuliani Compl. ¶ 178(b). Powell was a guest on the show the next day; she stated that she could "hardly wait to put forth all the evidence we've collected on Dominion, starting with the fact it was created to produce altered voting results in Venezuela for Hugo Chávez and then shipped internationally to manipulate votes for purchase in other countries[,] including this one." Powell Compl. ¶ 181(e).

On November 15, Powell appeared on Fox News's Sunday Morning Futures. Id. ¶ 181(g). She stated that Dominion was involved in "massive election fraud" and that she had "evidence ... of substantial sums of money being given to family members of state officials who bought [Dominion] software." Id. Two days later, she appeared on...