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home << Policy << auto judge sends devin nunes slapp suits against cnn and washington post off to their proper venues

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Wed, 27 May 2020

Judge Sends Devin Nunes' SLAPP Suits Against CNN And Washington Post Off To Their Proper Venues

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It appears that at least one judge handling Devin Nunes' various SLAPP suits in Virginia has caught on to at least some of what's going on here. Judge Robert E. Payne has now transferred two of his lawsuits -- the ridiculous defamation filing against CNN and the even sillier SLAPP suit against the Washington Post -- to better venues. In both cases, the judge seems pretty fed up with Nunes' lawyer, Stephen Biss, opening both by quoting what was said to Biss in yet another one of his silly SLAPP suits:

It is with chagrin that [the] Court must begin to address this motion by observing that . . . Plaitiff[] engages in ad hominin attacks against [CNN and others in the Amended Complaint,] which the Court cannot tolerate. . . . The Court reminds Counsel for Plaintiff[] that, as an officer of the Court, he may be sanctioned for engaging in conduct unbefitting of this Court.
There's another version of this in the Washington Post transfer, but with the defendants there rather than CNN.For the CNN case, here's the order shipping the case off to the Southern District of New York instead of Virginia.The court went through various tests that all seemed to raise the question: why is Nunes filing this case in this court?
It is undisputed that the Eastern District of Virginia is notNunes's home forum. (ECF No. 20 at 7 (Nunes stating that he "isa citizen of California").) That Nunes "works at the Capitolwithin a few minutes' drive of Virginia," (id.), and "participatesin oversight of the U.S. national security apparatus, includingthe intelligence-related activities of seventeen agencies,departments, and other elements of the United States Government,most of which is located in Virginia,"... does notalter this fact. Additionally,... theoffending act at issue--the publication of the Article--did not occurin Virginia. The Article was researched, written, and publishedin New York and, to some extent, Washington, D.C. Its subjectmatter has nothing to do with Virginia, and the Eastern Districtof Virginia is thus not the nucleus of operative facts.
The court brushes off the fact that the article could be read in Virginia, noting that if that were the deciding factor, cases could be brought anywhere. It also laughs off the idea that the venue might be appropriate because that's where Steven Biss resides, relegating that silly argument to a footnote: "convenience to counsel is not an appropriate consideration in resolving a motion to transfer venue."The court then notes that NY is much more convenient for most material witnesses, and again brushes off Biss/Nunes' attempts to throw some "local to Virginia" witnesses into the stew to muddy things up:
CNN argues that the witness convenience factor "squarelysupports transfer" because Ward, Cuomo, and Bondy all reside inNew York.... That all three key witnesses reside in New York favors transfer.The only witness Nunes has identified as residing in Virginia is Parnas's former attorney, Edward MacMahon, who was mentioned only once in the Article and who has not been shown to be a material witness.... Additionally, Nunes contends that Jake Tapper..., who resides in Washington, D.C., and Parnas and Igor Fruman--Parnas's business partner and co-defendant,... who reside in Florida, are "material witnesses." ... It is clear that Tapper is not a material witness.... With respect to Parnas and Fruman, even assuming that they are material witnesses, both of these witnesses would need to travel from Florida, and New York is likely to be more accessible than Richmond, Virginia. Additionally, as CNN notes, both Parnas and Fruman are under indictment in the SDNY.
One other interesting point: the court points out that the parties are debating whether or not California's or New York's laws should apply to the case, and that supports a transfer to SDNY, which obviously understands NY law. And, the court says, even if it turns out that California's laws will apply (in which case, California's anti-SLAPP could be applied...), the court says that the SDNY is readily familiar with California law.Separately, though, it's pretty clear that the judge is not at all happy about how Biss handled the case, and his frustration is evident. He calls out the problem of forum shopping, and suggests that the court has previously warned Biss to knock it off:
... the Court has significant concerns about forum shopping. As the Court has explained to Plaintiff's on numerous occassions, the "Court cannot stand as a willing repository for cases which have no real nexus to this district. The 'rocket docket' certainly attracts plaintiff[s], but the Court must ensure that this attraction does not dull the ability of the Court to continue to act in an expeditions manner."...
The order to transfer the Washington Post case to DC is pretty similar:
The District of Columbia is also a proper venue for this action. Venue is proper... because a "substantial part of the events or omissions giving rise to the claims occurred" in Washington, D.C. Venue is also proper... because the Post "resides" in Washington, D.C., given that the Post is subject to personal jurisdiction there, and "all defendants are residents of the State in which the district is located." Consequently, because jurisdiction and venue would both be proper in the District of Columbia, Nunes could have brought this case there...
Also, there's the fact that Nunes' lives and works in DC:
That Nunes "works at the Capitol within a few minutes' drive of Virginia" and "oversees the intelligence community, including ODNI which is located in Virginia" does not alter this fact... Indeed, Nunes's assertion that he "works at the Capitol," which is located in Washington, D.C., acts to support transferring this action to the District of Columbia.
The fact that the Washington Post prints its print edition in Virginia is... not enough to make it the proper venue:
Moreover, the Eastern District of Virginia is not the nucleus of operative facts. The offending act at issue--the publication of the Article online--occurred in Washington, D.C. ... Additionally, the Article was researched, written, and edited in Washington, D.C. with assistance from a journalist located in Moscow, Russia, not Virginia... The only connection between this action and Virginia, besides the location of Plaintiff's counsel, is that the Article was printed in Springfield, Virginia. That tenuous connection is insufficient to give significant weight to Nunes' choice of forum.
As the judge later notes: "There is no logical connection between the events in this case and this district."It seems clear that Judge Payne sees what Biss is trying to do here, and given that, Biss may actually be at least mildly relieved to have these cases out of this judge's courtroom.Of course, in the CNN case, NY has a very weak anti-SLAPP law as well, so that part won't necessarily help CNN. However, if CNN can convince the court that California's anti-SLAPP law applies (which it might...), then Nunes could be on the hook for CNN's extensive legal costs. As for the Washington Post case, DC does have a good anti-SLAPP law, but it's been held not to be available in federal court there, meaning that might be limited too. Still, I really do wonder how much guidance Biss has given Nunes about the liability that he, himself, may end up facing in all of these lawsuits if California's anti-SLAPP law is applied?

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posted at: 12:00am on 27-May-2020
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