Moreira-Brown v. Las Vegas Review Journal Inc.

1 UNITED STATES DISTRICT COURT 2 DISTRICT OF NEVADA 3 Herbert Moreira-Brown, Case No.: 2:16-cv-02002-JAD-VCF 4 Plaintiff Order Granting the Media Defendants’ 5 v. Motion to Dismiss and Denying MoreiraBrown’s Motions for Reconsideration 6 Las Vegas Review Journal, Inc., et al., and to Extend Time 7 Defendants [ECF Nos. 99, 101, 104] 8 Journalist Carri Geer Thevenot and the Las Vegas Review-Journal move to dismiss New 9 York attorney Herbert Moreira-Brown’s sole-remaining claim that they published a defamatory 10 article about him. The article focused on a lawsuit brought by Maryland attorney April 11 Ademiluyi against another lawyer, David Lee Phillips, alleging that he and Moreira-Brown 12 sexually assaulted her. I dismissed the defamation claim against these media defendants under a 13 provision of Nevada’s anti-SLAPP statute that covers statements related to judicial proceedings, 14 but the Ninth Circuit vacated that judgment when the Supreme Court of Nevada in Patin v. Ton 15 Vinh Lee adopted a new rule for applying that statutory provision. 16 On remand, I find that the article no longer qualifies for protection under the judicial17 proceedings provision after Patin, so I vacate my prior dismissal in that regard. But Moreira18 Brown’s claim still must be dismissed under the public-interest prong of the anti-SLAPP statute 19 or because the statements he complains about are not false. So I grant the motion to dismiss the 20 defamation claim and again close this case. [23] 1 Backstory 2 In 2014, Ademiluyi sued Phillips in Maryland, alleging that he and Moreira-Brown 3 drugged and sexually assaulted her and an unnamed colleague at a conference in Florida.1 She 4 alleged that Phillips and Moreira-Brown “administered a date[-]rape drug into the beverages of 5 . . . Ademiluyi and [an unnamed colleague] without their knowledge and consent and . . . 6 Moreira[-]Brown engaged in sexual intercourse with [the unnamed colleague].”2 Though the 7 complaint does not name Moreira-Brown as a defendant, it references him several other times as 8 a participant in the alleged assault.3 9 After Ademiluyi’s case was transferred to Nevada, Thevenot reported on the allegations 10 in the Review-Journal.4 The article, headlined “Lawyer faces charges from Nevada’s State Bar, 11 rape allegation,” reported on the state bar’s investigation of grievances against Phillips and 12 Ademiluyi’s complaint against him.5 Although the focus of the article is Phillips, there are 13 several statements about Moreira-Brown, including statements reporting on the allegations of his 14 involvement in the sexual assault in the complaint; quotes and information that Moreira-Brown 15 gave the defendants in interviews; and a reference to prior sexual-assault allegations having 16 “derailed” his 1998 run for Congress in New York.6 [19] 20 1 ECF No. 7-4 at ¶ 2 (Ademiluyi’s complaint). 21 2 Id. 3 Id. at ¶¶ 12, 19, 24, 25, 27, 31, 32. [22] 4 ECF No. 7-1 (the article). 23 5 Id. at 2–3. 6 Id. at 3–4. 1 In response to Ademiluyi’s complaint and the article, Moreira-Brown brought this suit 2 with several claims, including one for defamation against the media defendants.7 In a 2017 3 order, I dismissed all of those claims.8 I held that the defamation claim was barred by Nevada’s 4 anti-SLAPP statute,9 which limits lawsuits “brought against a person based upon a good[-]faith 5 communication in furtherance of the right . . . to free speech in direct connection with an issue of 6 public concern.”10 I found that the article fell within the anti-SLAPP statute’s protection for 7 “statements made in direct connection with an issue under consideration by a . . . judicial body” 8 under NRS 41.637(3).11 The media defendants argued12—and I additionally held—that they 9 established that the statements in the article were truthful or not made with knowledge of their 10 falsehood,13 that the article’s report on the allegations in Ademiluyi’s complaint is immunized 11 from defamation liability by the fair-reporting privilege,14 and that the remainder of the article is 12 not actionable because Moreira-Brown does not allege that its contents are false.15 13 Moreira-Brown appealed that 2017 order to the Ninth Circuit, which affirmed the 14 dismissal of all but the defamation claim against the media defendants because the Supreme 15 Court of Nevada adopted a new rule for applying NRS 41.637(3)’s judicial-proceedings 16 protection in Patin v. Lee after that dismissal, so the panel remanded that claim for this court to [17] 7 ECF No. 1 at ¶¶ 17–40. [18] 8 ECF No. 75 at 20 (2017 dismissal order). 19 9 Id. [10] Nev. Rev. Stat. § 41.660 . [20] 11 ECF No. 75. The claims against Ademiluyi were dismissed for want of personal jurisdiction. [21] Id. at 8 . That dismissal was affirmed on appeal. ECF No. 91 at 2 (Ninth Circuit memorandum). 12 ECF No. 7 (media defendants’ original motion to dismiss). [13] Id. at 13–15. 23 14 Id. at 16–18. [15] Id. at 18 . 1 “consider Patin in the first instance.”16 With the case back on remand, I entered a minute order 2 allowing the media defendants to file a renewed motion to dismiss to address the impact of Patin 3 on Moreira-Brown’s defamation claim.17 They complied and now move to dismiss the 4 remaining claim, arguing primarily that Patin’s changes to NRS 41.637(3)’s judicial-proceedings 5 shield are irrelevant because the article remains protected under NRS 41.637(4)’s public-interest 6 prong.18 Moreira-Brown opposes that motion and asks me to reconsider my decision to allow 7 rebriefing in this format in the first place.19 [8] Discussion [9] I. Moreira-Brown has not established a basis for reconsideration of the 10 remand briefing format. 11 Moreira-Brown moves for reconsideration of the minute order permitting the defendants 12 to file a renewed motion to dismiss that addresses the impact of the Patin decision on his 13 defamation claim.20 A district court “possesses the inherent procedural power to reconsider, 14 rescind, or modify an interlocutory order for cause seen by it to be sufficient[,]” so long as it has 15 jurisdiction.21 A motion to reconsider must set forth “some valid reason why the court should 16 reconsider its prior decision” by presenting “facts or law of a strongly convincing nature.”22 [18] 16 ECF No. 91 at 3; see Patin v. Ton Vinh Lee, 429 P.3d 1248 (Nev. 2018). 19 17 ECF No. 98 (minute order directing briefing on remand). 20 18 ECF No. 101 (media defendants’ motion to dismiss on remand). 19 ECF No. 99 (motion for reconsideration). [20] Id. 22 21 City of Los Angeles, Harbor Div. v. Santa Monica Baykeeper, 254 F.3d 882, 885 (9th Cir. 2001) (quotation and emphasis omitted); see also Smith v. Clark Cnty. Sch. Dist., 727 F.3d 950 , 23 955 (9th Cir. 2013); LR 59-1. 22 Frasure v. United States, 256 F. Supp. 2d 1180, 1183 (D. Nev. 2003). 1 Reconsideration is appropriate if “(1) [the court] is presented with newly discovered evidence, 2 (2) [the court] committed clear error or the initial decision was manifestly unjust, or (3) if there is 3 an intervening change in controlling law.”23 4 Moreira-Brown fails to satisfy this standard. He argues that the minute order exceeds the 5 Ninth Circuit’s mandate, which “did not direct the [c]ourt to permit the filing of a new [a]nti6 SLAPP motion.”24 The proper course, he contends, would have been for the “parties to brief the 7 effect of Patin . . . on the [original] motion” and then for the “[c]ourt to decide whether the 8 original motion [should] be reinstated, denied, or modified accordingly.”25 He further argues 9 that a defendant may bring only one anti-SLAPP motion or motion to dismiss.26 In pressing 10 these arguments, Moreira-Brown points to no intervening change in the law or newly discovered 11 evidence. Nor does he point to any clear error: Though the Ninth Circuit remanded the 12 defamation claim for the court to “consider Patin in the first instance[,]” it did not set the 13 procedure for doing so.27 Permitting new motion practice, rather than re-litigating the initial 14 motion, thus does not contravene the Ninth Circuit’s mandate. Moreira-Brown cites no authority 15 limiting defendants to one anti-SLAPP motion or motion to dismiss. Even if there are such 16 limits, the remand of the prior dismissal order for the specific purpose of reconsidering it in light [20] 21 23 Sch. Dist. No. 1J v. ACandS, Inc., 5 F.3d 1255 , 1263 (9th Cir. 1993). 24 ECF No. 100 at 3. [22] 25 Id. at 2–3. 23 26 Id. at 4. 27 ECF No. 91 at 3. 1 of new authority puts this case on different footing, and the filing of renewed motions to dismiss 2 on remand appears to be common practice in this circuit.28 3 Permitting a renewed motion is also not manifestly unjust in these circumstances. Even 4 if the media defendants were required to raise all their arguments in a single anti-SLAPP motion, 5 their renewed motion has given them no second bite at the apple. The arguments in their 6 renewed motion either stay within the bounds of their initial motion’s briefing or directly address 7 Patin’s effect on this case. Also, Moreira-Brown suffers no prejudice here as his response to the 8 renewed motion addresses the media defendants’ arguments. Regardless of the vehicle for these 9 arguments, the net result is that I am tasked with reevaluating the prior dismissal order in light of 10 Patin, and the parties have had a full and fair opportunity to address any points relevant to that 11 question. So I deny Moreira-Brown’s motion for reconsideration. [12] II. The entirety of Moreira-Brown’s defamation claim either is barred by Nevada’s 13 anti-SLAPP statute or fails to state a claim for relief.29 14 As I editorialized in the 2017 order, “SLAPP lawsuits abuse the judicial process by 15 chilling, intimidating, and punishing individuals for their involvement in public affairs.”30 To [17] 28 See, e.g., Lang Van, Inc. v. VNG Corp., 40 F.4th 1034, 1037 (9th Cir. 2022) (noting that a 18 party “filed a renewed motion to dismiss” on remand); Howe v. Washoe Cnty. Sheriff’s Off., 2020 WL 6262965 , at *1 (D. Nev. Oct. 23, 2020) (same). 19 29 Two days before Moreira-Brown’s response to the defendants’ motion was due, he moved for an extension of time. ECF No. 104. Because he submitted a timely response, I deny that motion 20 as moot. Even if I considered it on the merits, I would deny it because Moreira-Brown failed to show good cause for an extension. See LR 26-3 (“A motion or stipulation to extend any date set 21 by the discovery plan, scheduling order, or other order must . . . be supported by a showing of good cause for the extension.”). I also deny his separate request for “leave to amend or 22 supplement” his briefing because he has not shown good cause for such relief. ECF No. 106 at 14. [23] 30 John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276, 1281 (Nev. 2009), superseded by statute on other grounds as stated in Shapiro v. Welt, 389 P.3d 262 , 266 (Nev. 2017). 1 curb these abusive lawsuits, Nevada’s legislature has adopted anti-SLAPP laws that immunize 2 protected speakers from suit by permitting a defendant to bring a special motion to dismiss an 3 action “brought against a person based upon a good[-]faith communication in furtherance of the 4 right . . . to free speech in direct connection with an issue of public concern.”31 This procedural 5 mechanism “filters unmeritorious claims in an effort to protect citizens from costly retaliatory 6 lawsuits arising from their right to free speech under both the Nevada and [f]ederal 7 [c]onstitutions.”32 8 Motions brought under Nevada’s anti-SLAPP statute follow a two-step, burden-shifting 9 framework. At the first step, courts “evaluate ‘whether the moving party has established, by a 10 preponderance of the evidence,’ that he or she made the protected communication in good 11 faith.”33 A party makes that showing if the communication falls into one of the four categories 12 in NRS 41.637 and was truthful or made without knowledge of its falsity.34 Relevant here, NRS 13 41.637(3) covers “statement[s] made in direct connection with an issue under consideration by a 14 . . . judicial body,”35 and NRS 41.637(4) covers “[c]ommunication[s] made in direct connection 15 with an issue of public interest in a place open to the public or in a public forum [that are] 16 truthful or [are] made without knowledge of [their] falsehood.”36 If the movant prevails at the [31] Nev. Rev. Stat. § 41.660 (1)(a). [20] 32 John, 219 P.3d at 1282 . 21 33 Rosen v. Tarkanian, 453 P.3d 1220, 1223 (Nev. 2019) (quoting Nev. Rev. Stat. § 41.660 (3)(a)). [22] 34 Delucchi v. Songer, 396 P.3d 826 , 833 (Nev. 2017). 23 35 Nev. Rev. Stat. § 41.637 (3). [36] Nev. Rev. Stat. § 41.637 (4). 1 first step, the burden then shifts to the plaintiff to “demonstrate[] with prima facie evidence a 2 probability of prevailing on the claim.”37 [3] A. NRS 41.637(3) no longer shields the article after Patin. [4] 1. Patin requires that the statement be made to people with an interest in 5 the litigation. 6 In Patin, the Supreme Court of Nevada considered whether NRS 41.637(3) protected 7 Patin’s law firm’s website post summarizing its jury-trial win in a malpractice case against a 8 dental office and two dentists, Drs. Lee and Traivai.38 In that underlying malpractice case, the 9 jury found that the dental office and Traivai acted negligently but determined that Lee did not.39 10 The trial court vacated the jury’s verdict, and Traivai and the office appealed.40 Lee sued Patin 11 for defamation, claiming that the post’s subtitle—“PLAINTIFF’S VERDICT $3.4M, 2014 12 Description: Singletary v. Ton Vinh Lee, DDS, et al.”—falsely implied that Lee was negligent.41 13 Patin responded with an anti-SLAPP motion, arguing that the post was a “statement made in 14 direct connection with an issue under consideration by a . . . judicial body” under NRS 15 41.637(3).42 The district court denied Patin’s motion, reasoning that the post fell outside of NRS 16 41.637(3)’s protection because it did not reference the pending appeal.43 [19] 37 Rosen, 453 P.3d at 1223 (quoting Nev. Rev. Stat. § 41.660 (3)(b)). 20 38 Patin, 429 P.3d at 1249 . 21 39 Id. [40] Id. [41] Id. 23 42 Id. [43] Id. at 1249–50. 1 The Court affirmed.44 In doing so, it framed the question as “whether Patin’s statement 2 regarding the jury verdict in the dental malpractice case [wa]s ‘a statement made in direct 3 connection with an issue under consideration by a . . . judicial body’ under NRS 41.637(3).”45 4 Lacking Nevada precedent to answer that question, the Court first looked to California’s 5 analogous anti-SLAPP law and cases interpreting it, relying heavily on the California appellate 6 court’s opinion in Neville v. Chudacoff to discern the meaning of “in connection with.”46 In 7 Neville, the court surveyed three cases on the meaning of that phrase. One held that “anti8 SLAPP protection” does not extend to “any act having any connection, however remote” or 9 “statements ‘bearing no relationship’ to ‘the claims under consideration’” and so did not extend 10 to an attorney’s statements about a security broker’s personal life that the attorney made in 11 investigating the broker for a prior securities-related arbitration.47 The second case held that 12 such protection did extend to a homeowners’ association’s letter informing its residents of its 13 lawsuit against a rule-flouting resident “because the letter was sent in connection with 14 litigation.”48 And the third held that such protection extended to a company email informing 15 customers who had previously sat for depositions that its litigation adversary paid the company’s 16 former employees to lie, reasoning that the email was a “litigation update” to “individuals ‘[with] 17 some involvement’ in the litigation.”49 The Neville court also considered cases on the litigation 18 privilege—a separate bar against claims based on litigation-related conduct—because that [19] 20 44 Id. at 1252 . 21 45 Id. at 1250 . 46 Id.; see Neville v. Chudacoff, 160 Cal. App. 4th 1255, 1264 (2008). [22] 47 Neville, 160 Cal. App. 4th at 1264 (citing Paul v. Friedman, 95 Cal. App. 4th 853 (2002)). 23 48 Id. (citing Healy v. Tuscany Hills Landscape & Recreation Corp., 137 Cal. App. 4th 1 (2006)). [49] Id. (citing Contemp. Servs. Corp. v. Staff Pro Inc., 152 Cal. App. 4th 1043 (2007)). 1 privilege and the judicial-proceedings anti-SLAPP provision both “protect the right of litigants to 2 the utmost freedom of access to the courts without the fear of being harassed . . . by derivative 3 tort actions.”50 4 The Neville court synthesized these cases into the rule that statements are made “in 5 connection with an issue under consideration . . . by a judicial body” only if they “(1) relate to 6 the substantive issues in the litigation and (2) [are] directed to persons having some interest in 7 the litigation.”51 Applying that rule to the facts in Neville—in which a company sent a letter 8 warning its customers not to do business with a former employee who stole the company’s 9 customer list and solicited them for a competing business—the court held that the letter qualified 10 for protection because it “related directly to the company’s forthcoming claims against the fired 11 employee and was directed to the company’s customers, who the company reasonably believed 12 would have an interest in th[at] . . . litigation.”52 13 Finding this analysis persuasive, the Supreme Court of Nevada in Patin adopted Neville’s 14 two-prong rule for NRS 41.637(3),53 applied it to Patin’s post, and concluded that it was not 15 protected by the judicial-proceedings section of this anti-SLAPP statute because it met neither 16 prong of the new rule.54 As to the first prong, the Court held that, “even if the statement had 17 mentioned the pending appeal, it did not relate to any substantive issues in the appeal or the 18 district court proceedings.”55 In doing so, it rejected Patin’s argument that simply referencing [19] 20 50 Patin, 429 P.3d at 1251 (citing Neville, 160 Cal. App. 4th at 1265 ). 21 51 Id. (citing Neville, 160 Cal. App. 4th at 1265 ). [52] Id. (citing Neville, 160 Cal. App. 4th at 1267 ). [53] Id. at 1251–52. 23 54 Id. at 1252. 55 Id. 1 the jury verdict put the post within NRS 41.637(3)’s purview.56 The Court reasoned that to 2 accept that argument “would essentially [provide] anti-SLAPP protection to ‘any act having any 3 connection, however remote, with a judicial proceeding’” and that “[d]oing so would not further 4 the . . . statute’s purpose of ‘protecting the rights of litigants to the utmost freedom of access to 5 the courts without fear of being harassed subsequently by derivative tort actions.’”57 On the 6 second prong, the Court held that the website post “was not ‘in direct connection with an issue 7 under consideration by a . . . judicial body’ for purposes” of NRS 41.637(3) because it found that 8 “the statement was not directed to any specific person or group, let alone to someone with an 9 interest in the litigation.”58 So, after Patin, a report’s loose connection with a lawsuit is not 10 enough to garner the protection of NRS 41.637(3); it must be about substantive issues in a case 11 and directed to persons with an interest in that case. [12] 2. The article was not communicated to a specific group of people with an 13 interest in Ademiluyi’s lawsuit. 14 Though I held in the prior dismissal that the article’s statements were “in direct 15 connection with” Ademiluyi’s complaint,59 whether they relate to “substantive issues in the 16 litigation” and thus satisfy Patin’s new first prong is a closer question. Even if they do, however, 17 they cannot meet Patin’s second prong because this article was directed well beyond anyone 18 with a true interest in the case. Defendants argue that the article is “directed to the general 19 public, [which has] an interest in attorney conduct and in scrutinizing judicial proceedings.”60 [20] 21 56 Id. at 1251. 57 Id. at 1251–52 (quoting Paul, 95 Cal. App. 4th at 866 ). [22] 58 Id. at 1252. 23 59 ECF No. 75 at 11–13. 60 ECF No. 107 at 5 n.3. . 1 But the Patin court held that the website post—presumably also directed at the general public— 2 was not covered by NRS 41.637(3) because it “was not directed to any specific person or 3 group.”61 Indeed, the “general public” is the opposite of a “specific person or group.” And as 4 with the website post in Patin, placing this article under NRS 41.637(3)’s protection would not 5 promote the anti-SLAPP statute’s purpose of “protect[ing] the rights of litigants to the utmost 6 freedom of access to the courts.”62 The media defendants were not parties to the lawsuit, and 7 their statements were not directed to individuals with a direct role in the litigation—facts that 8 distinguish these defendants from the parties in the cases discussed in Patin or the cases that 9 have followed it.63 10 The defendants’ attempts to distinguish Patin are unavailing. They argue that, unlike the 11 dentist in Patin, they “had no self-serving motive” and “accurately reported the allegations.”64 12 Though the media defendants’ motive may be pure, neither Patin’s rule nor rationale was based 13 on the defendants’ motivation. And whether the article is accurate is irrelevant to Patin’s two14 prong test. So I find that the article no longer qualifies for protection under NRS 41.637(3) as 15 reimagined in Patin. [18] 19 61 Patin, 429 P.3d at 1252 . [62] Id. at 1251 (quoting Neville, 160 Cal. App. 4th at 1263 ). 63 See, e.g., Paul, 95 Cal.App.4th at 853 (noting that the attorney disclosed details in connection 21 with arbitration); Healy, 137 Cal.App.4th at 1 (noting that the homeowners’ association sent the letter in connection with litigation); Contemporary Services Corporation 152 Cal.App.4th at 22 1055 (noting that the email was sent to individuals “who had some involvement in the parties’ litigation”); Smith v. Craig, 2020 WL 1065715 , at *1 (D. Nev. Mar. 4, 2020) (noting that the 23 allegations “stem from [the party’s] service as a witness in litigation”). 64 ECF No. 107 at 6. 1 B. The article’s reporting on Ademiluyi’s lawsuit is protected by the publicinterest provision of Nevada’s anti-SLAPP statute. [2] 1. Reports on the allegations in Ademiluyi’s complaint are matters of 3 public interest. 4 The conclusion that the article no longer qualifies under the anti-SLAPP statute’s 5 litigation provision after Patin perhaps buries the lede as the bulk of the article is nevertheless 6 shielded by subsection 4 of the law, which covers a “[c]ommunication made in direct connection 7 with an issue of public interest in a place open to the public or in a public forum[ that] is truthful 8 or is made without knowledge of its falsehood.”65 To fall under this public-interest protection, a 9 statement must meet three criteria: it must be an issue of public interest, made in public, and true 10 or made without knowledge of its falsehood.66 As to the first criterion, the Supreme Court of 11 Nevada has held that “public interest is ‘broadly’ defined”67 and has adopted five “guiding 12 principles” to determine whether a public interest exists: (1) “public interest does not equate with 13 mere curiosity”; (2) “a matter of public interest should be something of concern to a substantial 14 number of people; a matter of concern to a speaker and a relatively small specific audience is not 15 a matter of public interest”; (3) “there should be some degree of closeness between the 16 challenged statements and the asserted public interest—the assertion of a broad and amorphous 17 public interest is not sufficient”; (4) “the focus of the speaker’s conduct should be the public 18 interest rather than a mere effort to gather ammunition for another round of private controversy”; [65] Nev. Rev. Stat. § 41.637 . 66 Shapiro, 389 P.3d at 268. [23] 67 Abrams, 458 P.3d 1062 , 1066 (Nev. 2020) (quoting Coker v. Sassone, 432 P.3d 746, 751 (Nev. 2019)). 1 and (5) “a person cannot turn otherwise private information into a matter of public interest 2 simply by communicating it to a large number of people.”68 3 Considering these principles, I find that the statements reporting on the allegations in 4 Ademiluyi’s complaint concern the public’s interest in court proceedings. The public has an 5 interest in news reports about such proceedings because, as the Supreme Court of Nevada has 6 recognized, “[a]lthough the courts are open to the public, not everyone can attend hearings,” and 7 “[t]he news media acts as an agent of the people to inform the public [of] what transpires in the 8 courtroom.”69 The same is true of legal pleadings like Ademiluyi’s complaint: even though they 9 are generally publicly available, not everyone can or knows how to access them, and the media 10 helps to bridge that gap. The Supreme Court of Nevada, in an unpublished opinion, recently 11 held that a statement about a defamation suit qualified as “a communication concerning matters 12 of public concern because the statement relates entirely to judicial proceedings about which the 13 public clearly has a right to know.”70 The Court reasoned that “Nevada citizens have a right to 14 know what transpires in public and official legal proceedings” and that “[t]o conclude otherwise 15 would unduly risk undermining a policy that favors the dissemination of information to the 16 public about their judicial system.”71 17 The article largely reported on the allegations in Ademiluyi’s complaint and made that 18 clear by peppering the article with phrases like “[t]he lawsuit said,” “in court papers,” and “the 19 lawsuit alleges.”72 Also, the article does not “turn otherwise private information” public because [20] 21 68 Shapiro, 389 P.3d at 268. 69 Sahara Gaming Corp. v. Culinary Workers Union Loc. 226, 984 P.2d 164, 166 (Nev. 1999). [22] 70 Veterans in Pol. Int’l, Inc. v. Willick, 457 P.3d 970 , *5 (Nev. 2020) (unpublished). 23 71 Id. 72 ECF No. 7-1 at 4. 1 the allegations are not private information, and there is no evidence suggesting that the 2 defendants were trying to “gather ammunition for another round of private controversy.”73 So I 3 find that the article’s statements reporting on the allegations in the complaint concern matters of 4 public interest under NRS 41.637(4). 5 Moreira-Brown argues that the references to him are driven by “salacious curiosity” 6 rather than public interest because he “is not an attorney in Nevada,” “the article does not refer to 7 his []courtroom conduct[,]” and he has “had no judicial proceedings in Nevada.”74 But these 8 arguments fail for at least three reasons. First, although they are responsive to the defendants’ 9 contentions that the article is of public interest because it concerns attorney misconduct, I find 10 that the public interest here is in local court matters, not attorney misconduct. Second, Moreira11 Brown’s implicit argument that the anti-SLAPP statute does not protect journalists’ reports on 12 issues of interest to people living outside the geographic location where the journalists are 13 situated (here, Las Vegas) is dubious, especially in a digital world in which people increasingly 14 access news online. Third, under California law, which the Supreme Court of Nevada has 15 largely adopted in this context,75 the “proper inquiry” is whether the article’s topic, and not 16 Moreira-Brown himself, “is connected to . . . an issue of public interest.” 76 So whether 17 Ademiluyi’s allegations concern a matter of public interest does not depend on whether there is a 18 public interest in Moreira-Brown specifically. [19] 73 Shapiro 389 P.3d at 268. [20] 74 ECF No. 106 at 10. 21 75 See, e.g., Shapiro, 389 P.3d at 268 (“Because this court has recognized that California’s and Nevada’s anti-SLAPP ‘statutes are similar in purpose and language,’ we look to California law 22 for guidance on this issue.”) (internal citations omitted) (quoting John, 219 P.3d at 1281 ); Patin, 429 P.3d at 1250 (“Because no Nevada precedent is instructive on this issue, we look to 23 California precedent for guidance.”). 76 Doe v. Gangland Prods., Inc., 730 F.3d 946, 956 (9th Cir. 2013). 1 2. The article meets the other criteria of NRS 41.637(4) and NRS 41.660. 2 Aside from requiring that the communication concern a matter of public interest, NRS 3 41.637(4) also requires that the communication be made “in a place open to the public or in a 4 public forum[,]” and both NRS 41.637(4) and NRS 41.660 require that the communication be 5 “truthful or be made without knowledge of its falsehood.”77 The article was plainly “in a place 6 open to the public or in a public forum” as newspapers are a prototypical example of public 7 fora.78 The statements also were made without knowledge of their falsehood because, as more 8 fully discussed in the 2017 order and incorporated here, the article accurately reported on the 9 allegations in the complaint regardless of whether those allegations themselves were true.79 That 10 the media defendants “could not corroborate” the claims in the complaint and should have 11 questioned their veracity,80 even if true, does not establish that they had “knowledge of their 12 falsehood.”81 So, as to the statements about Ademiluyi’s allegations, I find that the defendants 13 have satisfied their initial burden under the two-step anti-SLAPP framework, and thus the burden [77] Nev. Rev. Stat. § 41.637 (4); Nev. Rev. Stat. 41.660; see Delucchi v. Songer, 396 P.3d 826 , 17 833 (Nev. 2017) (holding that “a defendant’s conduct constitutes ‘good faith communication in furtherance of the right to petition or the right to free speech in direct connection with an issue of 18 public concern’ if it falls within one of the four categories enumerated in NRS 41.637 and ‘is truthful or is made without knowledge of its falsehood’”). 19 78 See Kosor v. Olympia Companies, LLC, 478 P.3d 390, 394 (Nev. 2020) (holding that “even a publication with a tightly controlled message—whether a community newsletter or, as in this 20 case, an [homeowners’ association’s] election pamphlet and direct letter to . . . homeowners— may qualify as a public forum where ‘it is a vehicle for communicating a message about public 21 matters to a large and interested community.’”) (quoting Damon v. Ocean Hills Journalism Club, 85 Cal. App. 4th 468, 476 (2000)). [22] 79 ECF No. 75 at 13–15. 23 80 ECF No. 106 at 11. [81] Nev. Rev. Stat. § 41.637 (4). 1 shifts to Moreira-Brown to show “with prima facie evidence a probability of prevailing on [this] 2 claim.”82 [3] 3. Moreira-Brown has not shown a probability of success on his 4 defamation claim regarding the reporting on Ademiluyi’s complaint. 5 To establish a prima facie83 case of defamation, “a plaintiff must prove: (1) a false and 6 defamatory statement by defendant concerning the plaintiff; (2) an unprivileged publication to a 7 third person; (3) fault, amounting to at least negligence; and (4) actual or presumed damages.”84 8 Moreira-Brown contends that the reporting about Ademiluyi’s lawsuit is actionable because “he 9 is accused of a sexual criminal act by a person who did not witness anything” and because the 10 “alleged victim did not confirm such conduct.”85 But this theory fails for the reasons I 11 articulated in the 2017 order and which are unaffected by Patin: “He has not demonstrated that 12 the [media defendants] made any false statement” because, even though he “vehemently denies 13 the accusations in Ademiluyi’s complaint[,] . . . the article does not level the rape-drug and 14 sexual-assault accusations against Moreira-Brown; it summarizes those allegations that 15 Ademiluyi made in her complaint.”86 [16] 17 82 Rosen, 453 P.3d at 1123 (quoting Nev. Rev. Stat. 41.660(3)(b)). 83 The parties dispute whether the older clear-and-convincing evidence or the newer prima-facie18 evidence standard applies. The appropriate standard may be “failure to state a claim” under Federal Rule of Evidence 12. Planned Parenthood Fed’n of Am., Inc. v. Ctr. for Med. Progress, [19] 890 F.3d 828, 834 (9th Cir.) (holding that “when an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply [the FRCP 12(b)(6)] standard and 20 consider whether a claim is properly stated”), amended, 897 F.3d 1224 (9th Cir. 2018). MoreiraBrown’s claim as to the statements in the complaint fails all these standards. [21] 84 Chowdhry v. NLVH, Inc., 851 P.2d 459, 462 (Nev. 1993). 22 85 ECF No. 106 at 12. 86 ECF No. 75 at 15–16; see Lubin v. Kunin, 17 P.3d 422, 426 (Nev. 2001) (holding that “the [23] district court correctly found that merely publishing the fact that a lawsuit alleging child abuse was filed would not be actionable”). 1 Even if Ademiluyi’s allegations are false and defamatory, this does not result in liability 2 for the media defendants. As I also held in my prior order,87 the reporting about these 3 allegations is immunized by the fair-reporting privilege as the “article offers a fair and true report 4 of Ademiluyi’s lawsuit.”88 So Moreira-Brown cannot make out a prima facie case of defamation 5 with respect to the reporting on Ademiluyi’s complaint,89 and Nevada’s anti-SLAPP protection 6 applies. 7 C. Though the report of the 1998 Congressional-bid derailment is not protected by Nevada’s anti-SLAPP statute, Moreira-Brown fails to state a defamation 8 claim based on it. 9 Aside from reporting on Ademiluyi’s allegations, the article contains one other statement 10 that Moreira-Brown challenges: “Moreira-Brown, 59, has faced rape allegations in the past. His 11 1998 campaign for a seat in the U.S. House of Representatives from New York was derailed 12 after a different woman accused him of rape, though a grand jury later declined to indict him.”90 [13] 14 87 These conclusions are also unaffected by Patin and are incorporated herein. [15] 88 ECF No. 75 at 16–17; see Sahara Gaming Corp. v. Culinary Workers Union Loc., 984 P.2d at 168 (holding that, because the “alleged defamatory statements were a fair and accurate report of 16 a judicial proceeding, they are absolutely privileged, and the material recited will not support a defamation suit even if the statements were made maliciously and with knowledge of their 17 falsity”). 89 Moreira-Brown argues that the defendants’ motion should be treated as one for summary 18 judgment because “the [d]efendants appear to challenge the factual sufficiency of the complaint.” ECF No. 106 at 14 (citing Planned Parenthood, 890 F.3d at 834 (holding that 19 “when an anti-SLAPP motion to strike challenges the factual sufficiency of a claim, then the Federal Rule of Civil Procedure 56 standard will apply” and “discovery must be allowed”), 20 amended, 897 F.3d 1224 (9th Cir. 2018)). But, as the defendants point out, he does not dispute whether the defendants are incorrectly reporting the allegations; he merely disputes Ademiluyi’s 21 allegations and whether the article is protected by Nevada’s anti-SLAPP statute. ECF No. 107 at 7. So I evaluate this motion under the motion-to-dismiss standard. Planned Parenthood, 890 22 F.3d at 834 (“[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the [motion-to-dismiss] standard and consider whether a 23 claim is properly stated.”), amended, 897 F.3d 1224 (9th Cir. 2018). 90 ECF No. 7-1 at 4. 1 The media defendants argue that this statement is shielded by NRS 41.637(4) as “[i]t cannot be 2 reasonably disputed that attorney misconduct is a matter of public concern,” citing the Supreme 3 Court of Nevada’s opinion in Abrams v. Sanson.91 But Abrams is inapposite, as it deals with an 4 attorney’s courtroom conduct.92 In that case, the Supreme Court of Nevada considered articles 5 posted by an attorney showcasing and discussing another attorney’s behavior in court and 6 practice of moving to seal cases.93 The Court held that the articles were protected under NRS 7 41.637(4) because they “depict[ed] and criticize[d] [the attorney’s] behavior in court and towards 8 [the judge], which directly connects to the public’s interest in an attorney’s courtroom 9 conduct.”94 It reasoned that “[t]he public has an interest in an attorney’s courtroom conduct that 10 is not mere curiosity, as it serves as a warning to both potential and current clients looking to hire 11 or retain the lawyer.”95 For that proposition, the Court approvingly cited multiple cases holding 12 that the public has an interest in attorneys’ conduct as it relates to their performance and conduct 13 as an attorney.96 14 Here, by contrast, the statement at issue relates to Moreira-Brown’s performance not as 15 an attorney—let alone his “courtroom conduct”—but as a would-be political figure 16 years 16 earlier in a Congressional district thousands of miles from Nevada. Because there is not [19] 20 91 ECF No. 101 at 6. 21 92 Abrams v. Sanson, 458 P.3d 1062 , 1064 (Nev. 2020). [93] Id. at 1064–65. [94] Id. at 1067 (emphasis added). 23 95 Id. at 1066 (emphasis added). [96] Id. 1 sufficient “closeness between the challenged statement[] and the asserted public interest” in 2 attorney misconduct,97 NRS 41.637(4) does not shield this statement. 3 This remaining portion of the defamation claim nevertheless must be dismissed because it 4 fails to state a claim upon which relief may be granted. Actionable defamation requires “a 5 publication of a false statement of fact,”98 but Moreira-Brown does not deny the truth of this 6 report.99 Indeed, he pleads himself out of a defamation claim based on this statement. Though 7 the complaint is rife with countless conclusory allegations that all aspects of the article are false, 8 defamatory, reckless, and malicious, the facts that he alleges about the derailed-campaign report 9 do not support its falsity. Moreira-Brown alleges in paragraph 30 of his complaint that 10 “Defendant newspaper further defamed the plaintiff by repeating an allegation against plaintiff 11 from a primary campaign almost twenty years earlier, knowing that said allegation did not result 12 in any criminal indictment and was not confirmed or corroborated in any manner whatsoever.”100 13 But the article did not report that the earlier sexual-assault accusation was valid, confirmed, or 14 corroborated—just that it was made and derailed his campaign, facts that Moreira-Brown does 15 not allege to be false. And in an affidavit in support of his opposition to the media-defendants’ 16 original motion to dismiss, he stated that he was “falsely accused in 1998,” suggesting that he 17 did, in fact, face such allegations in 1998.101 He neither alleges, nor has argued in his briefing, 18 that his campaign was not derailed by that allegation. So I find that Moreira-Brown fails to state [19] 20 97 Shapiro, 389 P.3d at 268. 98 Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 87 (Nev. 2002). [21] 99 See ECF No. 75 at 18 (incorporated herein by reference); see also Lubin, 17 P.3d at 426 22 (holding that publishing the fact that a lawsuit alleged child abuse was not actionable defamation). 23 100 ECF No. 1 at ¶ 30. 101 ECF No. 25 at 6, ¶ 14. defamation claim based on any portion of the article not shielded by NRS 41.637(4) and that this claim could not be saved by amendment. So I dismiss this claim in its entirety and close this case. 4 Conclusion 5 IT IS THEREFORE ORDERED THAT Moreira-Brown’s motion for reconsideration [ECF No. 99] is DENIED. 7 IT IS FURTHER ORDERED THAT the portion of my prior dismissal order [ECF No. 75 at § (B)(1)(a)] in which I found that the defamation claim is barred by NRS 41.637(3) and any conclusions based on that finding are VACATED; instead, the media defendants’ motion to dismiss [ECF No. 101] is GRANTED on the alternate bases stated herein. 11 IT IS FURTHER ORDERED THAT Moreira-Brown’s motion for an extension of time to 12||respond to the defendants’ motion to dismiss [ECF No. 104] is DENIED. 13 The Clerk of Court is directed to ENTER JUDGMENT and CLOSE THIS CASE. 15 mot ge J wikis A. Doney January 3, 2023