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Libre by Nexus v. Buzzfeed

United States District Court, District of Columbia

December 13, 2018

LIBRE BY NEXUS, Plaintiff,
v.
BUZZFEED, et al., Defendants.

          MEMORANDUM OPINION

          Amit P. Mehta United States District Judge.

         I. In this defamation action, the court previously dismissed Plaintiff Libre by Nexus' Amended Complaint on the ground that “the specific theory of falsity that Plaintiff advances is not supported by the factual allegations that it makes.” Libre By Nexus v. Buzzfeed, Inc., 311 F.Supp.3d 149, 157 (D.D.C. 2018). Thereafter, with the court's consent, Plaintiff filed a Second Amended Complaint. See Second Am. Compl., ECF No. 16 [hereinafter Second Am. Compl.]. So far as the court can tell, the two complaints are nearly identical. The only change appears in paragraph ten, which more fully quotes from the letter, dated November 20, 2015, [1] from U.S. Immigration and Customs Enforcement (“ICE”) to Representative Norma Torres (“ICE Letter”). Compare Am. Compl., ECF No. 2, ¶ 10 with Second Am. Compl. ¶ 10.[2] Plaintiff also attaches a complete copy of that correspondence. See Second Am. Comp., Ex. A, ECF No. 16-1 [hereinafter ICE Letter]. Thus, the limited excerpt of the ICE Letter quoted in paragraph ten of the previously dismissed pleading is now available in full context. In pertinent part, the ICE Letter states:

5. [Question:] What steps is ICE taking to ensure detainees upon release are not being tricked into paying a bail bond company when paying such bond is not required?
[Answer:] Upon release from ICE detention, ICE explains the conditions of the release and specific reporting requirements associated with their form of release. If a bond is not required but an attempt is made to post one, ICE will not accept it.
6. [Question:] If state or federal statute is silent on this issue, what legal authority would ICE need to investigate those entities contacting ICE detainees and prosecute those acting inappropriately?
[Answer:] Absent a circumstance alleging a criminal violation, ICE has no legal authority to investigate or prosecute bail bond companies or other related service providers regarding allegations of inappropriate conduct between two private parties such as an indemnitor and bond company.

ICE Letter at 2-3 (emphases added).

         In paragraph ten of his prior complaint, Plaintiff included the italicized text but omitted the bolded text. Plaintiff originally alleged that the italicized text “establishes beyond any reasonable doubt that Nexus was not under investigation by ICE.” Am. Compl. ¶ 10. Also, in response to the original motion to dismiss, Plaintiff argued that the italicized text proves that Defendants' publication on July 23, 2016 (“the Buzzfeed Article”), [3] was “false and defamatory, ” because Defendants knew, based on the ICE Letter, that ICE in fact lacked the legal authority to investigate or prosecute Plaintiff. See Libre By Nexus, 311 F.Supp.3d at 156. The court ultimately held otherwise.

         In its present pleading, Plaintiff repeats almost verbatim the allegation that it made before. The ICE Letter, Plaintiff avers, “establishes beyond any reasonable doubt that ICE declined to investigate Libre because it lacked authority to do so.” Second Am. Comp. ¶ 10. And, once more, in response to Defendants' renewed motion to dismiss, Plaintiff insists that the italicized portion of the ICE Letter establishes the falsity of Defendants' reporting that ICE had investigated Plaintiff's business practices. See Pl.'s Opp'n to Defs.' Mot., ECF No. 20 [hereinafter Pl.'s Opp'n], at 4.

         As before, the court will grant Defendants' Motion to Dismiss, albeit this time with prejudice.

         II.

         A.

         Plaintiff's addition of the full ICE Letter to the present complaint does not help establish the falsity of Defendants' reporting. If anything, it hurts Plaintiff's cause.

         Plaintiff's theory of falsity is the same as before: The ICE Letter demonstrates that ICE lacked the legal authority to conduct the kind of investigation that Defendants reported. But the ICE Letter says just the opposite. Taken together, in Questions 5 and 6, Representative Torres asked: If federal or state statutory authority is lacking for ICE to investigate bonding companies that defraud ICE detainees by tricking them into paying a bond, what legal authority would ICE need to undertake and prosecute such conduct? ICE answered in response to Question 6: “Absent a circumstance alleging a criminal violation, ICE has no authority to investigate or prosecute bail bond companies or other related service providers regarding allegations of inappropriate conduct between two private parties such as an indemnitor and bond company.” ICE Letter at 3. This response is entirely consistent with the Buzzfeed Article. Defendants reported that ICE had undertaken, but ultimately closed, an investigation of Plaintiff “for allegedly targeting undocumented immigrants in custody and fraudulently charging them a fee for services.” Bowman Decl., at 5. The introductory clause of ICE's response to Question 6-“[a]bsent a circumstance alleging a criminal violation”- ...


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