United States District Court, District of Columbia
P. Mehta United States District Judge.
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,  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. 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
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
[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
ICE Letter at 2-3 (emphases added).
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”),  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.
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.
before, the court will grant Defendants' Motion to
Dismiss, albeit this time with prejudice.
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.
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