United States District Court, District of Columbia
MEMORANDUM OPINION (JANUARY 14 2019) [DKT.
## 19, 20]
RICHARD J. LEON United States District Judge
a defamation action for monetary damages brought by three
Russian businessmen-Mikhail Fridman, Petr Aven, and German
Khan ("plaintiffs")-against political opposition
research firm Fusion GPS and its principal Glenn Simpson
("defendants"). Pending before me are
defendants' motions to dismiss under the DG.
Anti-Strategic Lawsuits Against Public Participation
("Anti-SLAPP") Act of 2010, DG. Code §§
16-5501-5505, and Federal Rule of Civil Procedure 12(b)(6).
[Dkt. ## 19, 20]. On September 26, 2018, the parties
presented oral argument on these motions, and on November 7,
2018, the parties submitted supplemental briefing. [Dkt. ##
43, 44]. Upon consideration of the pleadings and the relevant
law, and for the reasons set forth below, defendants'
motions to dismiss are DENIED.
claim that defendants falsely accused them and their business
consortium, Alfa, of engaging in criminal and other
misconduct in conjunction with the Russian government and its
president, Vladimir Putin. See generally Am. Compl.
[Dkt. # 17]. Plaintiffs allege that defendants are liable for
defamatory statements contained in one of the seventeen
written Company Intelligence Reports 2016 ("CIRs")
that collectively comprise what is now known publicly as the
"Trump Dossier" or simply the "Dossier."
Id. at ¶¶ 1-2. According to the Amended
Complaint, defendants were hired first by the Washington Free
Beacon and later by a law firm representing the Democratic
National Committee and the Hillary Clinton presidential
campaign to conduct political opposition research against
then-candidate Donald Trump. Id. at ¶ 15. To
perform this research, defendants engaged former British
intelligence officer turned private investigator Christopher
Steele and his company Orbis Business Intelligence Limited.
Id. at ¶ 3. Steele allegedly used his sources
in Russia to create the CIRs and compile the Dossier.
issue in this case is CIR 112. CIR 112 is titled
"RUSSIA/US PRESIDENTIAL ELECTION: KREMLIN-ALPHA GROUP
CO-OPERATION," which, according to plaintiffs, implies
that they, through Alfa, "cooperated in the alleged
Kremlin-orchestrated campaign to interfere in the 2016 U.S.
presidential election." Id. at ¶ 19
(alleging that nearly all of the CIRs bear headings related
to alleged Russian interference in the 2016 United States
presidential election and/or ties between the Russian
government and the 2016 campaign of now-President Donald
Trump). CIR 112, which defendants attached to their motion to
dismiss, describes plaintiffs' and Alfa's purported
relationship with Putin, including (1)
"[significant" political favors done by plaintiffs
for Putin in exchange for business and legal favors done by
Putin for Alfa; (2)'an "illicit cash" delivery
by an "Alpha executive" to Putin while Putin was
the Deputy Mayor of St. Petersburg; (3) "informal
advice" given by two of plaintiffs to Putin regarding
Russian foreign policy toward the United States; and (4)
compromising information held by Alfa about Putin as a source
of leverage. See [Dkt. # 20-2]. Plaintiffs claim
that the foregoing statements are false and defamatory
because they accuse plaintiffs and their business of
"maintaining] a highly inappropriate, and even criminal,
relationship with Putin" and, by implication,
involvement in the Russian government's campaign to
interfere with the 2016 United States presidential election.
Am. Compl. ¶ 23.
Amended Complaint asserts that defendants knew that the CIRs
contained "unverified" and potentially inaccurate
information gathered from sources and "subsources"
unknown to them. Id. at ¶¶ 3-4, 13, 16,
18. In 2016, defendants allegedly arranged for Steele to
brief select members of the media about the contents of the
then-incomplete Dossier, including CIR 112, to "generate
interest in the Dossier and secure eventual public
dissemination of its content." Id. at
¶¶ 6, 18. These briefings were followed soon after
by media articles describing the Dossier's contents.
Id. In addition, defendants allegedly published the
Dossier and CIR 112 to multiple other third parties.
Id. at ¶ 18. Ultimately, on January 10, 2017,
media organization BuzzFeed, Inc. published the entire
Dossier online, including CIR 112. Id. at ¶ 8.
D.C. Anti-SLAPP Act
D.C. Anti-SLAPP Act imposes a heightened pleading standard
where a defendant makes "a prima facie showing that the
claim at issue arises from an act in furtherance of the right
of advocacy on issues of public interest." D.C. Code
§ 16-5502(b). Upon such a showing, a plaintiff can
survive dismissal only by "'demonstrating] that the
claim is likely to succeed on the merits." Id.
Defendants contend that they have made the required threshold
showing, that plaintiffs cannot show a likelihood of success,
and that, therefore, D.C.'s Anti-SLAPP law forecloses
plaintiffs' defamation action. See Mem. in Supp.
of Defs.' Special Mot. to Dismiss Under the D.C.
Anti-SLAPP Act [Dkt. # 19-1]. I disagree. How so?
general matter, federal courts sitting in diversity, as I am
here, are called on to apply local substantive law and
federal procedural rules. Hanna v. Plumer, 380 U.S.
460, 465 (1965) (citingErie R.R. Co. v. Tompkins,
304 U.S. 64 (1938)). Where local substantive law and a
validly promulgated federal rule address the same question
but differ as to the answer, the federal rule controls.
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 559 U.S. 393, 398-99 (2010). Applying this
framework, then-Judge Kavanaugh wrote for our Circuit in
Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328
(D.C. Cir. 2015) that a federal court sitting in diversity
must apply Federal Rules of Civil Procedure 12 and 56 rather
than D.C.'s Anti-SLAPP law, as the former are valid and
"answer the same question" differently than the
latter. Id. at 1334-37.
respond that the D.C. Court of Appeals later rejected
Abbas in Competitive Enterprise Institute v.
Mann, 150 A.3d 1213 (D.C. 2016). See Novak v.
Capital Mgmt. & Dev. Corp., 452 F.3d 902, 907 (D.C.
Cir. 2006) (federal court's "duty" in resolving
question of D.C. substantive law "is to achieve the same
outcome" that the D.C. Court of Appeals would reach).
Were that true, Mann would control here so long as
it "clearly and unmistakably" resolves the disputed
question. See Easaw v. Newport, 253 F.Supp.3d 22, 35
(D.D.C. 2017). Unfortunately for defendants, however, three
of my colleagues on this Court recently have held that
Mann does not sufficiently resolve this
issue and that, therefore, Abbas remains the
controlling law in our Circuit. See Cockrum v. Donald J.
Trump for President, Inc., 319 F.Supp.3d 158, 165 n.2
(D.D.C. 2018) (Huvelle, J.) ("The Court continues to
adhere to its view that controlling precedent precludes the
application of D.C.'s Anti-SLAPP Act in federal
court."); Fairbanks v. Roller, 314 F.Supp.3d
85, 94-95 (D.D.C. 2018) (McFadden, J.); Libre By Nexus v.
Buzzfeed Inc., 311 F.Supp.3d 149, 160-61 (D.D.C. 2018)
(Mehta, J.). Indeed, for this very reason defense counsel
candidly admitted at oral argument that defendants are
"swimming uphill on the application of the Anti-SLAPP
Act" in this case. Mot. to Dismiss Hr'g Tr. 22
(Sept. 26, 2018) [Dkt. #41]. Given the sound reasoning
employed in the foregoing decisions, the hill is steep, and
the current is strong. I decline to ease either.
defendants' motion to dismiss under D.C.'s Anti-SLAPP
Act is DENIED.
survive a Rule 12(b)(6) motion to dismiss, "a complaint
must contain sufficient factual matter, accepted as true, to
'state a claim to relief that is plausible on its
face."' Ashcroft v. Iqbal,556 U.S. 662,
678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550
U.S. 544, 570 (2007)). A facially plausible claim requires
"factual content that allows the court to draw the
reasonable inference that the defendant is liable for the
misconduct alleged." Iqbal, 556 U.S. at 678.
"The Court assumes the truth of all well-pleaded factual
allegations in the complaint and construes reasonable
inferences from those allegations in the plaintiffs
favor[.]" Sissel v. U.S. Dep't of Health &
Human Servs.,760 F.3d 1, 4 (D.C. Cir. 2014). In
addition to the complaint's factual allegations, the
Court may consider "documents attached to or
incorporated in the complaint, matters of which courts may
take judicial notice, and documents appended to ...