nuTSR and the Defamation Lawsuit: How to Read the Appellate Brief of LaNasa

[Snarf Zagyg]

The defamation thing might have had at least a little traction if the appellate had said, "The appellee committed defamation by saying XXXXXXXX at YYm, YYs of video (provides link)", rather than just screaming, "HE CALLED ME NAMES!!!!!" (big block of video).

Well, I think the killer issue was already identified in the district court's order. The district court apparently told Lanasa, regarding the original complaint (this is the third complaint) that you can't just point to youtube videos.

Rule 8 requires that you set forth the claims in short, plain statements, and you can't just say, "Look at all these youtube videos."

The fact that counsel is doubling down at the appellate stage on this is worrying. If you think district courts don't want to wade through your youtube videos, well, they are a lot more forgiving than an appeals court.

Honestly, if I was Tenkar's counsel, I would address this in a sentence or two, and point to the order- they were told to provide the statements, they had the chance to correct it (twice) and they did not.

I am slightly more interested in how the huge amount of non-record material will be addressed. Sometime you do a motion to strike, but IME most appellate courts hate motion practice. I tend to just note it in the response brief, and say that I don't wish to engage in motion practice, but will not be addressing improper and extra-record evidence, and will instead provide a statement of facts that only uses the record.

 

[Ryujin]

Well, I think the killer issue was already identified in the district court's order. The district court apparently told Lanasa, regarding the original complaint (this is the third complaint) that you can't just point to youtube videos.

Rule 8 requires that you set forth the claims in short, plain statements, and you can't just say, "Look at all these youtube videos."

The fact that counsel is doubling down at the appellate stage on this is worrying. If you think district courts don't want to wade through your youtube videos, well, they are a lot more forgiving than an appeals court.

Honestly, if I was Tenkar's counsel, I would address this in a sentence or two, and point to the order- they were told to provide the statements, they had the chance to correct it (twice) and they did not.

I am slightly more interested in how the huge amount of non-record material will be addressed. Sometime you do a motion to strike, but IME most appellate courts hate motion practice. I tend to just note it in the response brief, and say that I don't wish to engage in motion practice, but will not be addressing improper and extra-record evidence, and will instead provide a statement of facts that only uses the record.

I will say this feels, at this point, like abuse of process. They're rectifying nothing and resubmitting, requiring the appellee to respond (or at least trying to force response), thereby making them incur legal fees. To your question as to whether SLAPP applies, my gut says yes.

 

[Snarf Zagyg]

I will say this feels, at this point, like abuse of process. They're rectifying nothing and resubmitting, requiring the appellee to respond (or at least trying to force response), thereby making them incur legal fees. To your question as to whether SLAPP applies, my gut says yes.

Three things-

1. Abuse of process is a specific tort action; I don't think it applies here.

2. You can ask for sanctions (or the court can sua sponte order them) under FRAP 38 for frivolous appeals. But ... the bar is so high for frivolous appeals, that this doesn't cut it. It's a terrible brief, but not a frivolous appeal. IMO.

3. On the anti-SLAPP. Anti-SLAPP laws are specific, and the district court made a finding on that (which was not appealed) so that, as a matter of law now in this action, the anti-SLAPP law doesn't apply.

But to get into the weeds a little. This is a case in federal court, but it's there on diversity (the parties are from different states and there is a significant amount in controversy). This means that the federal court is applying state substantive law (New York law).

Now, there is a whole bunch of complicated law that dates back to something called Erie (Erie RR Co. v. Thompkins, 304 U.S. 64 (1938)) that means that federal courts apply state substantive law, and federal procedural law.

As the District Court explained, there is an emerging consensus in the federal courts in New York that the anti-SLAPP law of New York (which is a substantive law) has a provision that conflicts with the procedural requirements of federal law- so you can't apply that substantive law in federal court to dismiss a claim because of the conflict. To explain further requires really nerdy stuff that people who take Federal Courts love, but everyone else is just like, "Wut?"

 

[Ryujin]

Three things-

1. Abuse of process is a specific tort action; I don't think it applies here.

2. You can ask for sanctions (or the court can sua sponte order them) under FRAP 38 for frivolous appeals. But ... the bar is so high for frivolous appeals, that this doesn't cut it. It's a terrible brief, but not a frivolous appeal. IMO.

3. On the anti-SLAPP. Anti-SLAPP laws are specific, and the district court made a finding on that (which was not appealed) so that, as a matter of law now in this action, the anti-SLAPP law doesn't apply.

But to get into the weeds a little. This is a case in federal court, but it's there on diversity (the parties are from different states and there is a significant amount in controversy). This means that the federal court is applying state substantive law (New York law).

Now, there is a whole bunch of complicated law that dates back to something called Erie (Erie RR Co. v. Thompkins, 304 U.S. 64 (1938)) that means that federal courts apply state substantive law, and federal procedural law.

As the District Court explained, there is an emerging consensus in the federal courts in New York that the anti-SLAPP law of New York (which is a substantive law) has a provision that conflicts with the procedural requirements of federal law- so you can't apply that substantive law in federal court to dismiss a claim because of the conflict. To explain further requires really nerdy stuff that people who take Federal Courts love, but everyone else is just like, "Wut?"

Thanks. I had forgotten that SLAPP had already been ruled on. At least Having that Federal standard helps avoid people venue shopping, even if the law is good in general practice.

 

[Snarf Zagyg]

Okay, so I did a quick dive into one issue because it was bugging me and I had noted it in the above essay.

In the district court's opinion, we see the following:

Finally, though the remaining factual statements have objective truth value and implicate LaNasa’s character at least to some degree, (see 2d Am. Compl. ¶ 22 (alleging {Tenkar} accused LaNasa of “not paying his employees” and trying to dox them and that {Tenkar} claimed LaNasa was kicked out of the military)), LaNasa still has not stated a claim with respect to those statements because he failed to plead that any of them is false. Under New York law, falsity is an element of defamation, not an affirmative defense to it. Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 246–47 (2d Cir. 2017). Thus, at the pleadings stage, the plaintiff has the burden to allege facts supporting a reasonable inference that an allegedly defamatory statement was false. Id. at 247. A bare assertion that a statement was “false” does not suffice without some factual explanation as to how the statement was false. Id. at 245; see Henry v. Fox News Network LLC, 629 F. Supp. 3d 136, 147 (S.D.N.Y. 2022) (dismissing defamation claim for failure to allege falsity where plaintiff failed to allege facts supporting reasonable inference that defendant’s internal investigation that led to his firing was a “sham”). Here, paragraph 22 of LaNasa’s Second Amended Complaint, the only paragraph arguably containing any falsifiable defamatory matter, simply begins with a boilerplate conclusory statement that {Tenkar} made “knowingly, malicious, and intentional and false defamatory statements” and then proceeds to list a litany of examples without any detail explaining how those statements are false. (See 2d Am. Compl. ¶ 22.) LaNasa’s pleading strategy evidently was to prioritize quantity over quality, throwing as many allegedly defamatory statements as he could at the wall to see what would stick. That strategy failed. He simply described some very nasty opinions and commentary by {Tenkar} that may or may not have been true.

Opinion pp. 23-25. This was the part I was worried about. This is addressed in the brief (pp. 46-48).

So I went ahead and looked at the cases cited. First thing I noticed- Lanasa is almost entirely citing state court cases, and some of them are just trial court opinions. Uh oh.

Then I actually went and looked at the major cite from the district court's opinion - Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 246–47 (2d Cir. 2017). You can look at it as well, here-

Tannerite Sports, LLC v. NBCUniversal News Group, 864 F. 3d 236 - Court of Appeals, 2nd Circuit 2017 - Google Scholar

scholar.google.com

So now we get back into that Erie issue- we are applying Federal procedure (pleading standards) to the New York law. Under New York law, falsity is an element that must be plead.

And if you file a complaint in federal court, you must plead sufficient facts for each element of the claim (this is valled the Iqbal/Twombly standard). So when you plead a New York defamation claim in federal court, you cannot just say that the statement is false, you ALSO have to provide factual allegations that would allow a reasonable person to think it is false.

"Because falsity is an element of New York's defamation tort, and "falsity" refers to material not substantially true, the complaint in this case must plead facts that, if proven, would establish that the defendant's statements were not substantially true." Tanner Sports, 864 F. 3d at 247.

Now that I have seen this, I think that Lanasa really didn't understand the problem with the claim. Arguing state court cases is precisely the wrong way to do it. Because the problem is that you have to hit the federal pleading standard, which he didn't.

The more I look, the worse it is. IMO.

 

[Wincenworks]

I'm getting the feeling that Justin's lawyer has a tendency to simply do the searches in Lexis/Westlaw/whatever and then rush through them without bothering to do the required levels of due diligence - checking what court, the actual ratio, etc Instead he seems to just assume the computer wouldn't offer him anything useless and go with it.