Court in Devin Nunes Libel Lawsuit: "The Tedious and Laborious Exercise …

of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs’ complaint."

From Judge C.J. Williams' decision yesterday in NuStar Farms, LLC v. Lizza (N.D. Iowa):

On January 16, 2020, plaintiffs filed a complaint in this Court alleging a single count of defamation. Paragraph 14 of the complaint alleges that the article "makes the following false and defamatory statements about Plaintiffs" and then lists 16 bullet points constituting the statements plaintiffs allege are false and defamatory ("the statements"):

• "So why did [Devin Nunes'] parents and brother cover their tracks after quietly moving the farm to Iowa? Are they hiding something politically explosive? On the ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia and hypocrisy". [Other bullet points included later in this post. -EV]

… Under Federal Rule of Civil Procedure 12(e), "[a] party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably prepare a response." "A motion under Rule 12(e) is designed to strike at unintelligibility in a pleading rather than want of detail." …

Defendants argue that plaintiffs' complaint fails to identify "what aspect(s) of each statement is supposedly false and defamatory, and … what Plaintiffs allege the truth of the matter to be." Plaintiffs contend that it is enough for the complaint to simply allege that the statements are false, and defendants can seek the factual details they want through discovery. As a preliminary matter, the Court finds that plaintiffs must allege facts that, if proven, would show the statements to be false. It is not enough for plaintiffs to list a number of statements and generally declare them to be false without alleging facts which, if proven, would show them to be false.

To determine if plaintiffs' complaint has met the minimal pleading requirement such that defendants can answer the complaint and defend against the claim, the Court must carefully examine the allegedly false statements in the article. [Long and detailed discussion omitted.—ed.] …

The tedious and laborious exercise of dissecting each of the sixteen bullet points illustrates the deficiency of plaintiffs' complaint. The complaint is not at all clear as to which facts asserted in these bullet points plaintiffs allege are actually false. Knowing which assertions plaintiffs allege are false is necessary for defendants to be able to answer the complaint and assert a defense. As the Court pointed out as it addressed each bullet point, some of the alleged facts may be defended as opinions or conclusions, others may be defended as not concerning plaintiffs, and still others may be defended as being true. Without knowing which of the facts plaintiffs allege are actually false, defendants are left not knowing how to answer the complaint.

The exercise also shows that the complaint fails to allege facts which, if proven, would show that any of the alleged facts are false. In short, the Court finds this is one of the rare instances when a more definite statement is required under Rule 12(e). Although defendants have urged the Court to dismiss the complaint outright under Rule 12(b)(6), to do so here would require the Court to guess as to what exactly plaintiffs are claiming are the false statements. Even if the Court granted such a motion at this stage, it would be a dismissal without prejudice allowing plaintiffs leave to file an amended complaint to allege facts that would state a claim. Without knowing precisely what plaintiffs are claiming, the Court cannot say that plaintiffs are incapable of alleging facts which, if proven, would state a defamation claim against defendants.

The Court fully understands that in determining whether a publication is defamatory, the Court must view the publication as a whole. The Court also understands that plaintiffs are proceeding at least in part on a theory of implied defamation by juxtaposition. Yet, for defendants to be able to answer the complaint, or for this Court to analyze whether the complaint is subject to dismissal under Rule 12(b)(6) because it fails to state a claim, it is first necessary that the complaint itself be intelligible.

The complaint needs to state whether it is alleging specific facts are false, and if so, which ones and why. If plaintiffs' entire theory of recovery is that the article as a whole is defamatory by implication, then the complaint needs to allege which facts or omissions are juxtaposed with other facts or omissions so as to lead to a false assertion of fact, and allege facts which, if proven, would show the implied assertion of fact to be false….

Here are Nunes' other bullet points:

• "Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian, sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also been the treasurer of every one of Devin's campaigns since 2001, used their cash from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town in northwest Iowa where they—as well as Anthony III, Devin's only sibling, and his wife, Lori—have lived since 2007 [W]hat is strange is that the family has apparently tried to conceal the move from the public—for more than a decade".
• "Why would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the fact that the congressman's family sold its farm and moved to Iowa?"
• "As he walked to his truck, [Tony] looked back and warned me: 'If I see you again, I'm gonna get upset.' Apparently Sibley's First Amendment training hadn't filtered down to all its residents".
• "Other dairy farmers in the area helped me understand why the Nunes family might be so secretive about the farm: Midwestern diaries tend to run on undocumented labor".
• "In the heart of Steve King's district … the economy is powered by workers that King and Trump have threatened to deport. I checked Anthony Nunes 's campaign donor history. The only federal candidate he has ever donated to, besides his son, is King ($250 in 2012). He also gives to the local Republican party of Osceola County, which, records show, transfers money into King's congressional campaigns".
• "The absurdity of this situation – funding and voting for politicians whose core promise is to implement immigration policies that would destroy their livelihoods – has led some of the Republican-supporting dairymen to rethink their political priorities".
• "'They are immigrants and Devin is a strong supporter of Mr. Trump, and Mr. Trump wants to shut down all of the immigration, and here is his family benefiting from immigrant labor', documented or not".
• "I had a particularly sensitive interview that afternoon with a source who I knew would be taking a risk by talking to me about immigration and labor at NuStar. When I arrived, we talked for a few minutes before the source's cell phone suddenly The conversation seemed strained. "Sí, aquí está," the source said. I learned that on the other end of the phone was a man named Flavio, who worked at NuStar. Somehow Flavio knew exactly where I was and whom I was talking to. He warned my source to end the conversation. Not only was I being followed, but I was also being watched, and my sources were being contacted by NuStar".
• "I left and drove to the local grocery store, where I parked in the open, hoping to draw out whoever was tailing I suddenly noticed a man in jeans, a work shirt, and a baseball cap pulled down low. He was talking on his cell phone and walking suspiciously. Was he watching me? I held up a camera to take pictures and he darted away. I followed. His car was parked haphazardly on the side of the road half a block away. He got in and took off while I followed. It was a dark Chevrolet Colorado pickup truck—with California license plates …. The guy in the pickup truck with California plates was, of course, … Anthony Jr".
• Devin Nunes "and his parents seemed to have concealed basic facts about the family's move to Iowa. It was suspicious".
• "There was no doubt about why I was being According to two sources with firsthand knowledge, NuStar did indeed rely, at least in part, on undocumented labor. One source, who was deeply connected in the local Hispanic community, had personally sent undocumented workers to Anthony Nunes Jr.'s farm for jobs … asserting that the farm was aware of their status".
• "I laid out the facts I had uncovered in Sibley, including the intimidation of sources …, and asked him for 'I'd tell that story,' he said. He paused and added, 'We're a sanctuary church, if you need a place to stay. You're safe here!'"
• "I learned that Anthony Jr. was seemingly starting to panic. The next day, the 2009 Dairy Star article about NuStar, the one that made me think the Nuneses were hiding something and that had led me to Sibley in the first place, was removed from the Dairy Star's website".
• "Is it possible the Nuneses have nothing to be seriously concerned about? Of course, but I never got the chance to ask because Anthony … did not respond to numerous requests for interviews".
• "The relationship between the Iowa dairy farmers and their undocumented employees is indeed fraught".