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Can Devin Nunes sue California publisher in Virginia? Judge wants to know more from McClatchy
Sacramento-based newspaper publisher McClatchy must provide information about business dealings it might have in Virginia before a judge there will issue a decision on whether California Republican Rep. Devin Nunes can pursue a defamation lawsuit against the media company there.
Judge Cheryl Higgins of Virginia’s Albemarle County Circuit Court on Wednesday declined to make a final ruling on McClatchy’s motion to dismiss the lawsuit Nunes filed against the company last year.
She wrote that she might require testimony in court this spring to establish whether the California publisher has a financial interest in Virginia, as Nunes of Tulare has alleged.
The lawsuit is one of six that Nunes filed last year against media companies, journalists, Twitter, a research firm that worked for Hillary Clinton’s presidential campaign and anonymous people who criticize him on social media.
In the McClatchy case, Nunes alleges he was defamed by a news story in The Fresno Bee that described an employee’s lawsuit against Alpha Omega Winery, a business in which Nunes holds a limited partnership. The employee claimed she was asked to work at a charity function on a yacht that became uncomfortable when guests appeared to use drugs and hire prostitutes.
Nunes in the lawsuit also sued Republican political strategist Liz Mair, alleging she was part of a plot to defame him in the 2018 election.
Ted Boutrous, McClatchy’s attorney, said in a written statement he believes Higgins would dismiss the case after McClatchy provides the additional information.
“We appreciate the court’s careful attention to these issues and are confident that McClatchy’s responses to the limited discovery the Court has ordered will confirm that the Commonwealth of Virginia is not the place for this baseless suit by a California congressman against a California-based company about an article in a California newspaper describing a California lawsuit,” Boutrous said.
Steven Biss, Nunes’ attorney, did not respond to a request for comment.
McClatchy has argued in court that Nunes’ lawsuit did not belong in Virginia. McClatchy publishes 30 newspapers in 29 cities, none of which circulate in Virginia.
Boutrous argued if the case moves forward it should proceed in California, where Nunes is a congressman and there are stricter laws discouraging frivolous lawsuits.
Biss argued that McClatchy was connected to Virginia because he had seen copies of McClatchy-owned newspapers at a Virginia Barnes and Noble bookstore and because McClatchy had a stake in a Charlottesville-based technology company called Moonlighting.
Biss alleged in Nunes’ complaint against McClatchy that the company publishes hundreds of articles every year on “matters of unique concern to Virginia,” and that the company earns revenue in the state.
McClatchy has denied that it has a significant financial interests in Virginia. Biss argued that McClatchy could not submit sworn statements denying these issues — they needed to prove it by responding to his requests for discovery.
Judge Higgins sided with Biss on the latter point — ordering McClatchy to respond to certain discovery requests made by Biss before she would decide whether to dismiss the case.
“This Court is not aware of any Virginia case law that permits it to determine this issue based on sworn declarations,” Higgins wrote. “For this reason, the Court is going to permit the parties to do limited discovery on personal jurisdiction after Court approval subject to a protective order.”
The discovery requests Higgins said McClatchy must answer before she rules on dismissal are: identifying anyone McClatchy does business with who lives in Virginia and what that business includes; the number of times McClatchy employees have been physically present in Virginia; any McClatchy advertising purchased by businesses located in Virginia and all of McClatchy’s property located in Virginia, both tangible and intangible.
Higgins wrote that those requests would have to show McClatchy had significant connections to Virginia in order for the case to continue moving forward in her court.
“McClatchy is a Delaware corporation that is headquartered in California,” Higgins wrote. “To exercise general jurisdiction over a non-resident defendant, the plaintiff must prove the defendant has fairly extensive, continuous, and systematic contacts with Virginia.”
Higgins said a hearing would be scheduled between April 15 and May 15 to hear any necessary additional information or for a ruling by the court on dismissal.
Five of Nunes’ lawsuits are still active, with four of them in Virginia and one in Iowa.
He filed his first defamation lawsuit in March 2019, claiming that Twitter diminished the reach of his social media posts and negligently allowed anonymous critics to defame. In that lawsuit, the congressman is also suing Mair and the anonymous authors of Twitter accounts known as Devin Nunes’ Cow and Devin Nunes’ Mom and Mair.
He is also suing CNN; journalist Ryan Lizza and media company Hearst; and investigative research firm Fusion GPS and progressive watchdog group Campaign for Accountability. Those three lawsuits have dismissal motions pending as well, but judges have not ruled in those cases yet.
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