US Dominion, Inc. v. Byrne

Decision Date20 April 2022
Docket NumberCivil Action No. 1:21-cv-02131 (CJN)
Citation600 F.Supp.3d 24
Parties US DOMINION, INC., et al., Plaintiffs, v. Patrick BYRNE, Defendant.
CourtU.S. District Court — District of Columbia

Dustin Andrew Pusch, Thomas A. Clare, Megan Lambart Meier, Clare Locke LLP, Alexandria, VA, Jordan Mikhail Rux, I, Davida Brook, Susman Godfrey LLP, Los Angeles, CA, Justin A. Nelson, Susman Godfrey LLP, Houston, TX, Stephen Shackelford, Jr., Susman Godfrey L.L.P., New York, NY, for Plaintiffs.

Robert Neil Driscoll, Alfred Dumetz Carry, McGlinchey Stafford PLLC, Washington, DC, Daniel T. Plunkett, Pro Hac Vice, McGlinchey Stafford, PLLC, New Orleans, LA, for Defendant.

MEMORANDUM OPINION

CARL J. NICHOLS, United States District Judge

US Dominion, Inc. and other related corporate entities allege that Patrick Byrne defamed them in connection with the 2020 election. See generally Compl. ("Compl."), ECF No. 1. Byrne has moved to dismiss the Complaint, arguing among other things that Dominion has failed to plead that he made provably false statements about the Plaintiffs; that Dominion has failed to plead that he made his statements with actual malice; and that some of his statements are protected by the fair report privilege and the Communications Decency Act. See generally Def.’s Mot. to Dismiss ("Def.’s Mot."), ECF No. 25. For the following reasons, the Court denies the Motion.

I. The Parties

US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems Corporation are related corporate entities involved in the sale of electronic voting machines and software in the United States. See Compl. ¶¶ 13–16; see also id. ¶ 29 ("Today, Dominion's business is organized as US Dominion, Inc., and its two wholly owned subsidiaries, Dominion Voting Systems, Inc. and Dominion Voting Systems Corporation."). John Poulos founded Dominion "out of his basement in Toronto," Canada. See id. ¶ 25. Dominion has grown over the years, and it now contracts with state and local governments throughout the United States to supply voting systems and services in elections. Id. ¶¶ 25–30. Local election officials use Dominion's voting machines to tabulate votes and count paper ballots. Id. ¶ 31.

Patrick Byrne is a resident of Utah. In 1999, Byrne became the Chief Executive Officer of Overstock. Id.1 Starting in 2014, Byrne directed Overstock's investments in several blockchain-based companies, including some that focused on using blockchain technology in elections. Id. ¶¶ 36–37. Byrne resigned from the role of CEO in 2019 after Overstock's insurance carrier issued an ultimatum: "it would not renew its policy as long as Byrne was in charge."

Id. ¶ 34. Since then, Byrne has focused his attention on election integrity. Id. ¶ 41. Leading up to, during, and after the 2020 election, Byrne made numerous statements and media appearances in which he discussed Dominion's voting systems and election fraud. See generally id.

II. Factual & Procedural Background2

This case centers around the American election held on November 3, 2020, as well as the voting systems in place to count votes. See generally Compl. States employed a myriad of procedures to handle early, same-day, and mail-in votes throughout the election cycle. The different procedures resulted in no clear winner emerging from the presidential election on Tuesday, November 3, 2020. Days later, several news outlets declared Joseph Biden victorious. Those declarations did not end matters. Private citizens and public officials challenged, and local officials audited, election results throughout the country.

In August 2021, Dominion filed this lawsuit against Byrne, claiming that he made numerous statements actionable as defamation per se. See id. ¶ 161. The heart of Dominion's Complaint involves eighteen allegedly defamatory statements. See Compl. ¶ 153(a)(r). The statements vary in length, scope, and content. See id. Byrne made some of the statements during interviews, while others appeared in print. See id. All involve allegedly false and defamatory statements about Dominion and the company's role in the 2020 election and elections more broadly. See id.

For example, Dominion alleges that on November 17, 2020, Byrne stated while on a television show that the "election was hacked;" that he had "the data, the electronics, everything" to prove it; and that "Dominion ran" the election. Id. ¶ 153(a). As another example (the second in the Complaint), Dominion alleges that on November 18, 2020, Byrne claimed that the State of Texas hired "Dominion Voting Systems" to study the "Dallas election in 2018," which gave the company "two years to deconstruct and reverse engineer how to hack an election." Id. ¶ 153(b). On November 24, 2020, Byrne claimed that the "election machinery, especially Dominion's, is a joke," and that "the functionality built into these systems, especially Dominion's, by now everyone knows the story, that it was Hugo Chavez that wanted some election software built that he could goon." Id. ¶ 153(d). The sixth allegedly defamatory statement occurred on November 24, 2020, when Byrne stated that Smartmatic's software, which became Dominion's software "after a series of corporate mergers and acquisitions," "was developed in Venezuela, by Hugo Chavez for him to rig his elections." Id. ¶ 153(f). And on February 5, 2021, Byrne published a blogpost claiming that "Dominion" "paid for" a "shredding truck" to shred "3,000 pounds of ballots." Id. ¶ 153(p). Based on these and other allegedly false and defamatory statements, Dominion seeks compensatory damages, lost profits, lost goodwill, security expenses, incurred expenses, punitive damages, and pre- and post-judgment interest. See id. Prayer for Relief.

Byrne has moved to dismiss. See generally Def.’s Mot. From Byrne's perspective, the allegations concern statements that, among other things, either: "(1) reflect fair and accurate reporting of official government and judicial proceedings; (2) contain Byrne's protected commentary or opinions; ... (3) are not actionable under applicable law; ... or (4) relate to minor details or do not even concern Dominion but rather other people or entities." Id. at 25. In particular, Byrne argues that his statements are not actionable because some of them are not false, some constitute protected opinion, he did not make them with actual malice, and his alleged defamatory statements receive protection under the fair report privilege and the Communications Decency Act. Id. at 26, 29, 36, 37, 45.

III. Legal Standard

Federal Rule of Civil Procedure 12(b)(6) requires dismissal of a complaint if it "fail[s] to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). To survive a motion to dismiss filed under Rule 12(b)(6), a plaintiff must plead "facts to state a claim of relief that is plausible on its face." Bell Atl. Corp. v. Twombly , 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). A court treats the "complaint's factual allegations as true and afford[s] the plaintiff the benefit of all inferences that can be derived from the facts alleged." Atlas Brew Works, LLC v. Barr , 391 F. Supp. 3d 6, 11 (D.D.C. 2019) (quotation omitted). Although the court accepts all well-pleaded facts in the complaint as true, "[f]actual allegations must be enough to raise a right to relief above the speculative level." Twombly , 550 U.S. at 555, 127 S.Ct. 1955. The claim to relief must be "plausible on its face," id. , meaning that the plaintiff must have pleaded "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, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868 (2009).

IV. Defamation

State law establishes the elements of a defamation claim. See Devin G. Nunes v. WP Company LLC , No. 20-7121, 2022 WL 997826, at *3 (D.C. Cir. Apr. 1, 2022). To state a claim for defamation under District law, a plaintiff must "show that (1) the defendant made a false and defamatory statement concerning the plaintiff; (2) the defendant published the statement without privilege to a third party; (3) the defendant's fault in publishing the statement [met the requisite standard]; and (4) publication of the statement caused the plaintiff special harm or the statement was actionable as a matter of law irrespective of special harm." Robertson v. D.C. , 269 A.3d 1022, 1031 (D.C. 2022).3 To state a claim for defamation per se, the plaintiff must show that the defendant has falsely accused the plaintiff of particularly bad conduct, such as committing an unlawful act, acquiring a repugnant disease, partaking in gross sexual misconduct, or engaging in conduct "so likely to cause degrading injury to the subject's reputation that proof of that harm is not required to recover compensation." Franklin v. Pepco Holdings, Inc. (PHI) , 875 F. Supp. 2d 66, 75 (D.D.C. 2012) ; Couch v. Verizon Commc'ns, Inc. , No. 20-2151 (RJL), 2021 WL 4476698, at *5 (D.D.C. Sept. 30, 2021) (quotation omitted) (noting that not only do the same elements apply to defamation claims and defamation per se claims, but also that the First Amendment overlay applies to both).

To facilitate debate over matters of public concern, the Supreme Court has "held that the First Amendment protects, among other things, discussion about public officials and public figures."

Kahl v. Bureau of Nat'l Affs., Inc. , 856 F.3d 106, 113 (D.C. Cir. 2017) (Kavanaugh, J.); see Berisha v. Lawson , ––– U.S. ––––, 141 S. Ct. 2424, 210 L.Ed.2d 991 (2021) (Thomas, J., dissenting from the denial of certiorari) (questioning the actual malice standard). To prevail on a defamation claim, a public-official or public-figure plaintiff must therefore also demonstrate that the defendant acted with "actual malice." New York Times Co. v. Sullivan , 376 U.S. 254, 267, 84 S.Ct. 710, 11 L.Ed.2d 686 (1964) ; see also Curtis Publishing Co. v. Butts , 388 U.S. 130, 87 S.Ct. 1975, 18 L.Ed.2d 1094 (1967) (extending the actual...

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