Petition for Writ of Certiorari — MyPillow, Inc., Petitioner v. US Dominion, Inc., et al.
Supreme Court briefJun 17, 2022
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APPENDIX
i
APPENDIX
TABLE OF CONTENTS
Appendix A Order in the United States Court of
Appeals for the District of Columbia
Circuit
(January 20, 2022) . . . . . . . . . . . . App. 1
Appendix B Memorandum Opinion in the United
States District Court for the District of
Columbia
(August 11, 2021) . . . . . . . . . . . . . App. 4
Appendix C Order in the United States District
Court for the District of Columbia
(August 11, 2021) . . . . . . . . . . . . App. 63
Appendix D Order in the United States District
Court for the District of Columbia
(March 1, 2022) . . . . . . . . . . . . . . App. 65
App. 1
APPENDIX A
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-7103
September Term, 2021
1:21-cv-00445-CJN
[Filed: January 20, 2022]
____________________________________
US Dominion, Inc., et al.,
)
)
Appellees
)
)
v.
)
)
My Pillow, Inc.,
)
)
Appellant
)
)
Michael J. Lindell,
)
)
Appellee
)
____________________________________)
Consolidated with 21-7104
BEFORE: Wilkins, Rao, and Jackson, Circuit
Judges
ORDER
App. 2
Upon consideration of the motion to dismiss for lack
of jurisdiction, the joint opposition thereto, and the
corrected reply, it is
ORDERED that the motion to dismiss be granted.
The district court’s order denying appellants’ motions
to dismiss does not qualify for immediate review under
the collateral order doctrine. Appellants have not
demonstrated that the order denied a “colorable”
immunity defense, see Broidy Cap. Mgmt. LLC v.
Muzin, 12 F.4th 789, 796 (D.C. Cir. 2021), and the
order is effectively reviewable on appeal from final
judgment, see, e.g., Kilburn v. Socialist People’s Libyan
Arab Jamahiriya, 376 F.3d 1123, 1133 (D.C. Cir. 2004).
Further, the district court has not certified the
nonfinal order for immediate appeal pursuant to 28
U.S.C. § 1292(b). See, e.g., Coopers & Lybrand v.
Livesay, 437 U.S. 463, 474–75 (1978) (“[T]he
discretionary power to permit an interlocutory appeal
[under 28 U.S.C. § 1292(b)] is not, in the first instance,
vested in the courts of appeals.
App. 3
United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
No. 21-7103
September Term, 2021
A party seeking review of a nonfinal order must first
obtain the consent of the trial judge.”). Appellants
therefore have not provided any valid basis upon which
this court could exercise appellate jurisdiction.
Pursuant to D.C. Circuit Rule 36, this disposition
will not be published. The Clerk is directed to withhold
issuance of the mandate herein until seven days after
resolution of any timely petition for rehearing or
petition for rehearing en banc. See Fed. R. App. P.
41(b); D.C. Cir. Rule 41.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY:
/s/
Manuel J. Castro
Deputy Clerk
App. 4
APPENDIX B
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
[Filed: August 11, 2021]
Civil Action No. 1:21-cv-00040 (CJN)
____________________________________
US DOMINION, INC., et al.,
)
)
Plaintiffs,
)
)
v.
)
)
SIDNEY POWELL, et al.,
)
)
Defendants.
)
____________________________________)
Civil Action No. 1:21-cv-00213 (CJN)
____________________________________
US DOMINION, INC., et al.,
)
)
Plaintiffs,
)
)
v.
)
)
RUDOLPH W. GIULIANI,
)
)
Defendant.
)
____________________________________)
App. 5
Civil Action No. 1:21-cv-00445 (CJN)
____________________________________
US DOMINION, INC., et al.,
)
)
Plaintiffs,
)
)
v.
)
)
MY PILLOW, INC., et al.,
)
)
Defendants.
)
____________________________________)
MEMORANDUM OPINION
US Dominion, Inc., and other related corporate
entities sued three sets of Defendants—Sidney Powell,
her law firm, and a related entity; Rudy Giuliani; and
Mike Lindell and his company, My Pillow, Inc.—
alleging that they each defamed Dominion in
connection with the 2020 presidential election.
Although the three lawsuits have not been
consolidated, they were designated as related pursuant
to Local Rule 40.5(b)(2) and assigned to this Court. The
Defendants have since moved to dismiss all of
Dominion’s claims. For the following reasons, the Court
denies their Motions in full.
I. Factual Background
The most recent presidential election occurred on
November 3, 2020.1 While many Americans cast their
1
The following factual summary is drawn from the facts alleged in
the Complaint, documents attached as exhibits or incorporated by
App. 6
votes that day, others did not; some voted in-person
before November 3, and others sent their ballots by
mail. States employed a myriad of procedures to handle
early and mail-in votes: some started counting in the
days or weeks leading up to the election, while others
waited until Election Day itself. See, e.g., 25 Pa. Stat.
§ 3146.8 (2020) (dictating that Pennsylvania mail-in
ballots may be counted no earlier than seven o’clock
a.m. on election day); N.C. Gen. Stat. § 163-234 (2020)
(directing that North Carolina may start counting two
weeks before election day).
Even twenty-four hours after the polls closed, no
clear winner had emerged—several news outlets
projected 253 electoral votes for now-President Biden
and 213 for then-President Trump, but the outcome of
the election depended on six states (Georgia,
Pennsylvania, Nevada, North Carolina, Alaska, and
Arizona) whose results were not finalized until much
later.2
On November 7, various news outlets declared Joe
Biden the winner.3 But public controversy surrounding
reference in the Complaint, and matters about which the Court
may take judicial notice. EEOC v. St. Francis Xavier Parochial
Sch., 117 F.3d 621, 625 (D.C. Cir. 1997).
2
See No winner yet, but Joe Biden’s chances to be US president
looks better, Deccan Chronicle (Nov. 5, 2020), https://www.deccan
chronicle.com/world/america/051120/no-winner-yet-but-bidens-cha
nces-looks-better-with-253-electoral-col.html.
3
See, e.g., Gabriel T. Rubin, Joe Biden Wins the 2020 Presidential
Election: What Happens Next?, Wall St. J. (Nov. 7, 2020),
https://www.wsj.com/articles/joe-biden-wins-the-2020-presidential-
App. 7
the election was far from over: election results in
various states were challenged, audited, and eventually
certified over the course of the next several weeks.
A. The Parties
US Dominion, Inc., Dominion Voting Systems, Inc.,
and Dominion Voting Systems Corporation (together,
“Dominion”) are related corporate entities involved in
the sale of electronic voting machines and software in
the United States. Powell Compl., ECF No. 1 at ¶ 2 n.1.
Dominion contracts with state and local governments
to supply voting systems and services in elections
across the country. Id. ¶ 33. At the time of the 2020
presidential election, Dominion had contracts to supply
those services in twenty-eight states and Puerto Rico.
Id.
These three corporate entities are now organized as
US Dominion, Inc., a Delaware corporation based in
Denver, Colorado, id. ¶ 30, and its two wholly-owned
subsidiaries, Dominion Voting Systems, Inc., and
Dominion Voting Systems Corporation, id. ¶¶ 12–14,
32. The companies’ origins lie in the founding in 2002
of Dominion Voting Systems Corporation (also now a
subsidiary) in Toronto, Ontario. Id. ¶ 29.
Defendant Sidney Powell is an attorney, formal
federal prosecutor, and media figure. Id. ¶ 15. She is a
director of Defending the Republic, Inc. (“DTR”), a
election-what-happens-next-11604772736; Katie Glueck, Joe Biden
is elected the 46th president of the United States., N.Y. Times (Nov.
7, 2020), https://www.nytimes.com/2020/11/07/us/politics/joe-bidenis-elected-the-46th-president-of-the-united-states.html.
App. 8
Texas corporation that runs the website
defendingtherepublic.org, id. ¶¶ 17, 21, and the
president of Powell, P.C., a Texas law firm and sole
proprietorship from which she conducts her private
practice, id. ¶ 16. Among other recent representations,
between 2018 and 2020, Powell and her law firm
represented Michael Flynn in the criminal case against
him in this district. Id. ¶¶ 24, 25, 80. Powell also
appeared as counsel of record in election-related
lawsuits in Georgia, Michigan, Wisconsin, and Arizona
filed by various parties. Id. ¶ 75. During the period
relevant to this suit, Powell made numerous media
appearances in which she discussed the election and
Dominion.
Defendant Rudolph Giuliani once served as the
mayor of New York City, Associate Attorney General of
the United States, and United States Attorney for the
Southern District of New York. Giuliani Compl., ECF
No. 1 at ¶ 8. He hosts a radio show and YouTube
podcast and is the personal attorney for President
Trump. Id. Giuliani has also represented the Trump
campaign, including in its lawsuit challenging mail-in
ballots and the conduct of election officials in
Pennsylvania. Id. ¶ 25. Like Powell, Giuliani made
numerous media appearances in which he discussed
the election and Dominion.
Defendant Michael Lindell is the founder and CEO
of My Pillow, Inc. (“MyPillow”), Lindell Compl., ECF
No. 1 at ¶ 10, a Minnesota corporation that sells
(among other things) pillows and bedding, id. ¶ 9. In
July 2017, then-President Trump endorsed MyPillow at
a White House event. Id. ¶ 22. MyPillow sponsored
App. 9
several rallies in support of President Trump and has
offered discounts on its products using discount codes
such as “FightforTrump,” “45,” and “PROOF.” Id. ¶ 1.
Like Powell and Giuliani, Lindell has made numerous
media appearances in which he discussed the election
and Dominion.
Dominion alleges that each Defendant made
defamatory statements about its role in the 2020
election. Those statements are too numerous to
summarize in their entirety; the Court limits its
discussion to the allegations necessary to decide the
pending Motions.
B. Examples of Allegedly Defamatory
Statements
On the day of the presidential election, Powell
appeared on One America News Network and declared
that Democrats were trying to “steal the vote” from
President Trump and that “they ha[d] developed a
computer system to alter votes electronically.” Powell
Compl. ¶ 52. Shortly thereafter, she and Giuliani
visited Trump campaign headquarters, where they
both urged the campaign’s attorneys to cast doubt on
election results by focusing suspicion on Dominion. Id.
¶ 54; Giuliani Compl. ¶ 15. The campaign declined to
pursue those claims after Powell was unable to provide
it with supporting evidence. Powell Compl. ¶ 55.
Between November 3 and December 23, both Powell
and Giuliani appeared on various television shows in
which they stated that Dominion was connected to
Venezuela. Powell Compl. ¶¶ 52, 181(ee). In particular,
on November 12, Giuliani appeared on Fox Business’s
App. 10
Lou Dobbs Tonight and stated that Dominion is owned
by a company called Smartmatic, which Giuliani
claimed was formed “by three Venezuelans” “in order to
fix elections.” Giuliani Compl. ¶ 178(b). Powell was a
guest on the show the next day; she stated that she
could “hardly wait to put forth all the evidence we’ve
collected on Dominion, starting with the fact it was
created to produce altered voting results in Venezuela
for Hugo Chávez and then shipped internationally to
manipulate votes for purchase in other countries[,]
including this one.” Powell Compl. ¶ 181(e).
On November 15, Powell appeared on Fox News’s
Sunday Morning Futures. Id. ¶ 181(g). She stated that
Dominion was involved in “massive election fraud” and
that she had “evidence . . . of substantial sums of
money being given to family members of state officials
who bought [Dominion] software.” Id. Two days later,
she appeared on Newsmax’s Greg Kelly Reports and
said that “[w]e’ve got the evidence from [the] mouth of
the guy who founded the company. I haven’t had a
chance to get that out to the public yet but . . . the
founder of [Dominion] admits he can change a million
votes, no problem at all.” Id. ¶ 181(j). Powell promised
that she would “tweet out the video later and . . . tag
[the host] in it.” Id. She has not disclosed the video. Id.
¶ 60.
On November 19, Giuliani and Powell appeared
together at a press conference at Republican National
Committee headquarters in Washington, D.C. Id. ¶ 62.
At that press conference, Giuliani stated that they
“represent[ed] President Trump and . . . the Trump
App. 11
campaign,” id.,4 and Powell repeated her claims about
Dominion being a tool created “to make sure [Hugo
Chávez] never lost an election” and imported to the
United States to flip votes from Trump to Biden in the
2020 election. Id. ¶ 63. Powell stated that the legal
team had collected
testimony of different workers admitting that
they were trained how to dispose of Trump votes
and add to Biden votes. The software has a
feature pursuant to which you can drag and drop
any number of batches of votes to the candidate
of your choice or simply throw them away. So,
we have mathematical evidence in a number of
states of massive quantities of Trump votes
being trashed—just simply put in the trash like
you would on your computer with any file and
Biden votes being injected.
Id. ¶ 181(k). President Trump later sent a tweet
including video footage of this press conference. Id.
¶ 66.
After a hand recount, Georgia certified its election
results on November 20. Powell Compl. ¶ 68. That
same day, Powell appeared on the Examining Politics
podcast and stated that Dominion “paid kickbacks and
4
On November 14, President Trump sent a tweet stating that
“[Rudy] Giuliani [would be] spearheading the legal effort to defend
OUR RIGHT to FREE and FAIR ELECTIONS!” Powell Compl.
¶ 59. He also stated that Powell had been added that legal team.
Id. On November 22, the Trump campaign (through Defendant
Giuliani), issued a statement that “Powell is practicing law on her
own. She is not a member of the Trump Legal Team. She is also
not a lawyer for the President in his personal capacity.” Id. ¶ 72.
App. 12
benefits to families of public officials who . . . got
[Dominion its] government contracts.” Id. ¶ 181(n). One
day later, she appeared on Newsmax and elaborated
that Georgia state officials were “in on this Dominion
scam with their last-minute purchase of a contract to
Dominion of a hundred million dollars.” Id. ¶ 69.
On November 23, Powell again claimed that
Dominion had stolen Trump votes “by massive election
fraud” and that she was collecting “overwhelming”
“evidence” that Dominion “shift[ed] millions of votes
from President Trump.” Id. ¶ 73. She also served as
counsel to plaintiffs in lawsuits in Georgia, Michigan,
Wisconsin, and Arizona alleging, among other things,
that there had been “massive election fraud” and that
Dominion was “founded by foreign oligarchs and
dictators to ensure computerized ballot-stuffing and
vote manipulation to whatever level was needed to
make certain Venezuelan dictator Hugo Chávez never
lost another election.” Id. ¶¶ 75, 80.
Powell also made public statements that Dominion
had flipped, weighted, and “injected” votes. On
November 28, she stated on Newsmax that Dominion
“weighted votes for President Trump at .77% and they
awarded votes to Biden at something like 1.22% . . . .
[Dominion] was designed to enable those sorts of vote
flipping and switching and the ability to trash votes in
large numbers so that Mr. Biden would win without
campaigning.” Id. ¶ 181(s). On December 2, she spoke
at a “Stop the Steal” rally in Georgia, where she
claimed that Georgia had performed a hand recount in
only one “small precinct” (instead of the entire state)
and that, in that county, “they flipped . . . 52% I think
App. 13
of the votes there . . . . [T]hey weighted Biden votes at
1.52 and they weighted Trump votes at .48 when the
votes went into the machine to change them.” Id.
¶ 181(u). The next day, she appeared on The John
Fredericks Show (broadcast from Georgia) and stated
that
one of the things we know is, from prior use and
testimony, that Dominion machines can flip
2.7%–3% of the vote from Trump to Biden easily.
That’s kind of what they’ve run many times
before. And that stands to reason that that
accounts for the 6% up for Biden where the
Dominion machines were operating . . . . You
don’t just add 350,000 Biden votes all of a
sudden at 3 o’clock in the morning. That’s like
flipping a coin 350,000 times and it always lands
on heads. It doesn’t happen. It’s a mathematical
and statistical impossibility . . . they can
literally just make up a number and inject it into
the system.
Id. ¶ 181(v).
By December 9, all of the election-related lawsuits
in which Powell served as counsel had been dismissed.
Id. ¶ 79. Following the dismissals, Powell appeared on
the Rush Limbaugh Show on December 29, and
claimed that
[t]he flipping of votes by Dominion is even
advertised; their ability to do that fraction, to
make a Biden vote count 1.26 and a Trump vote
count only .74. They’ve done it before. They’ve
done it in Venezuela. They’ve done it in other
App. 14
foreign countries. They’ve done it in this
country. We have evidence even that it was done
in 2016 in California to benefit Hillary over
Bernie, and it’s been done in other local elections
and smaller elections, different places . . . . It’s
absolutely the most appalling criminal operation
in the history of our country.
Id. ¶ 181(ii).
Also in early December, Lindell (like Powell and
Giuliani) made various public statements regarding the
election and Dominion. On December 3, he appeared on
America First with Sebastian Gorka and stated that he
and Powell were “getting the word out on this election
fraud” and that they were trying to get these
“Dominion machines.” Lindell Compl. ¶ 43. He also told
viewers that the “President loves” MyPillow and that
they could use promotional code “Gorka” for a discount
at MyPillow.com. Id. ¶ 44. In a December 11 interview
with the Conservative Business Journal, he explained
that President Trump had received so many votes that
he “broke the algorithm” that had been programmed to
give “1.3 to Biden and 0.7 to the [P]resident.” Id. ¶ 50.
On December 12, Lindell spoke at two MyPillowsponsored rallies in the District of Columbia. At the
“Women for America First” rally, he told the audience
that
[o]n election night, at 11:15 p.m., all the
algorithms that were set across our country in
the machines . . . where Biden got like 1.2 votes
for every vote and our president got .66. . . . 80
million votes that came in for our great
App. 15
President . . . broke the algorithms in the
machines.
Id. ¶ 165(a). At the Jericho March held on December 12
in Washington D.C., he said that
[e]verything that I’ve been telling you for three
weeks now is true. I have seen it. The fraud is
100% and Donald Trump will be our president
for four more years . . . . They tried to steal this
election . . . on election night at . . . 11:15, the
algorithms of these machines that cheated the
whole country could not keep up. Because he
had got so many votes that broke the algorithms
. . . . The technology of these Dominion machines
. . . it’s all going to be exposed in the future . . . .
Georgia, you better have a fair election and not
use those machines.
Id. ¶ 165(b). The Jericho March rally also displayed a
MyPillow ad featuring Lindell and offering viewers a
discount on MyPillow products if they used the
promotional code “ERIC” (presumably as a reference to
Eric Metaxas, another speaker at the march). Id. ¶ 55.
Between December 16 and 23, Dominion sent
retraction demand letters to Powell, Giuliani, Lindell,
and a number of news outlets (including ones on which
one or more of those Defendants had appeared). Powell
Compl. ¶ 145; Giuliani Compl. ¶ 138; Lindell Compl.
¶¶ 59–60. On December 21 (after receiving a retraction
letter), Newsmax aired a segment to “clarify its
coverage” about Smartmatic and Dominion systems.
Lindell Compl. ¶ 60. That same day, Lindell appeared
on a Newsmax show and declared that “the biggest
App. 16
fraud is the Dominion machines” and referenced a
“miracle . . . at 11:15 on election night.” Id. ¶ 165(g).
That evening, Lindell sent a tweet with a link to an
article about Powell and stating, “We have all the
evidence!!! Biggest election fraud in world history!!!!
Crime against the world!!!” Id. ¶ 62. Appearing on
FlashPoint on December 23, Lindell described
Dominion’s involvement in the election as “the biggest
crime ever committed in the history against our
country and the world.” Id. ¶ 165(h). On January 18,
2021 (after receiving his own retraction letter from
Dominion), Lindell stated that Dominion machines
“were built to cheat” and “steal elections,” id. ¶ 70, and
he “welcome[d Dominion] to come after [him] because
[he had] all the evidence and then they’ll finally see it,”
id. ¶¶ 63, 160.
In the weeks following Dominion’s retraction
demands, Defendants continued to speak publicly
about Dominion and the election. On January 5, 2021,
Lindell spoke at the Moms for America “Save the
Republic” rally in the District of Columbia. Id. ¶ 65. He
told the audience that “algorithms” in “Dominion
machines” weighted Biden votes and that, “if the truth
comes out,” we could avoid a civil war. Id. Later that
day, Giuliani sent a tweet with a link to his podcast in
which he claimed that “Dominion machines . . .
switched 6,000 votes.” Giuliani Compl. ¶ 147. On
January 6—in the hours leading up to the attack on the
Capitol—Lindell and Giuliani made similar public
statements to crowds gathered in the District. Lindell
spoke at the Women for America First’s “March for
Trump” bus tour (a tour sponsored by MyPillow) and
stated that Dominion machines used an “algorithm” to
App. 17
steal votes from Trump, but—in an event he called the
“election night miracle”—Trump had received so many
votes that those algorithms had broken. Id. ¶ 35.
Lindell declared that he had “been working with
General Flynn, . . . Sidney Powell, [and] Rudy Giuliani
. . . [t]o look into the fraud. . . . It’s the biggest election
corruption in the history [sic].” Lindell Compl. Ex. 268,
ECF No. 2-67 at 4.
Giuliani, at the “Save America” protest in front of
the White House, told crowds that
we get to see the machines that are crooked, the
ballots that are fraudulent. . . . So, let’s have
trial by combat. . . . [O]ne of the experts who’s
examined these crooked Dominion machines,
has absolutely found what he believes is
conclusive proof that in the last 10%, 15% of the
vote counted, the votes were deliberately
changed by the same algorithm that was used in
cheating President Trump and Vice President
Pence, same algorithm, same system, same
thing was done with the same machines. . . .
This election was stolen.
Giuliani Compl. ¶ 152.
C. Defendants’ Claims of Supporting Evidence
In addition to making the statements summarized
above, Powell, Giuliani, and Lindell all stated that they
had evidence to prove their claims. For example, Powell
has stated that she is in possession of a video that
depicts the founder of Dominion saying that “he can
change a million votes, no problem at all.” Powell
Compl. ¶ 181(j). She has also pointed to documents
App. 18
filed in her election lawsuits, including an undated
certificate from the Georgia Secretary of State, id. ¶ 91;
declarations from an anonymous “military intelligence
expert,” id. ¶ 88, and “Venezuelan military officer,” id.
¶ 90; research into general concerns about election
security, id. ¶ 89; and expert reports (one of which
Giuliani also touted in his podcast, Giuliani Compl.
¶¶ 58–59), Powell Compl. ¶ 82. Those court filings were
also posted on DTR’s website. Id. ¶¶ 17, 21.
On January 15, 2021, Lindell tweeted evidence in
the form of a screenshot of an article from an online
blog called The American Report. Lindell Compl. ¶ 75.
Lindell claimed that the blog contained “pages of the
machine voter fraud evidence that came out last week.”
Id. He also tweeted a screenshot to an American Report
spreadsheet that he said was “one page of hundreds
that prove President Trump got around 79m votes to
68m votes for Biden!” Id. On February 4, Lindell
appeared on FlashPoint and claimed that he had “a
cyber footprint from inside the [Dominion] machines”
proving that the machines were hacked “by foreign
countries, starting with China.” Id. ¶ 165(x).
Lindell later included this same material in a twohour documentary called “ABSOLUTE PROOF.”
(Lindell was an executive producer of the film.) Id.
¶¶ 103, 126, 127. The video also suggested that thenAttorney General Bill Barr (who had stated that the
Department of Justice had not seen evidence of
widespread election fraud) was “corrupt” and had been
“compromised.” Id. ¶ 114. Beginning on February 5,
“ABSOLUTE PROOF” was broadcast on multiple news
outlets and posted online. Id. ¶ 104. Lindell’s website
App. 19
(michaeljlindell.com) also posted the video; beneath it,
a MyPillow ad encouraged viewers to use the
promotional code “PROOF” to receive forty percent off
a MyPillow product. Id.
II. Procedural Background
On January 8, Dominion filed a lawsuit against
Powell, her law firm, and DTR (collectively, “Powell” or
“the Powell Defendants”) for defamation and deceptive
trade practices under Georgia law. See generally Powell
Compl. A month later, Dominion filed a similar suit
against Lindell and MyPillow, alleging defamation and
deceptive trade practices under Minnesota law. See
generally Lindell Compl. It also separately sued
Giuliani on a single count of defamation. See generally
Giuliani Compl. In all three lawsuits, Dominion alleges
that the Defendants’ conduct caused (1) Dominion
employees to be “stalked, . . . harassed, and . . .
receive[] death threats,” requiring Dominion to expend
money “to remedy the defamation and to protect the
lives of its employees,” and (2) harm in the form of lost
profits and damage to its name, reputation, and
goodwill. See Powell Compl. ¶ 145; Giuliani Compl.
¶ 175; Lindell Compl. ¶ 171. Dominion alleges that it
has suffered at least $651,735,000 in damages.5 See
5
Dominion also seeks $651,735,000 in punitive damages, costs and
fees, and—with respect to the Powell and Lindell Complaints—a
“narrowly tailored permanent injunction requiring the removal of
all [their] statements that are determined to be false and
defamatory and enjoining [them] from repeating in such
statements or engaging in any further deceptive trade practices
relating to Dominion.” See Powell Compl. ¶ 196(d); Giuliani
Compl.; Lindell Compl. ¶ 178(d).
App. 20
generally Powell Compl.; Giuliani Compl.; Lindell
Compl. The cases were designated as related pursuant
to Local Rule 40.5(b)(2).
All Defendants move to dismiss, but make different
arguments. The Powell Defendants argue that this
Court cannot exercise personal jurisdiction over them;
that the claims against them should be transferred to
Texas; and that Dominion has failed to state its
defamation claim because Powell’s statements are only
statements of opinion, not fact, and Dominion has
failed to plead actual malice. See generally Powell’s
Mem. Supp. Defs.’ Mot. to Dismiss (“Powell’s Mot.”),
ECF No. 22-2. The Powell Defendants also seek
dismissal of Dominion’s deceptive trade practices claim
on the ground that they were not “engaged in trade and
commerce of goods.”
Lindell and MyPillow filed separate Motions.
Lindell argues that he is not subject to the Court’s
personal jurisdiction; that venue is improper; and that
Dominion has failed to state a defamation claim
because his statements are protected as “debate on
public issues” and because Dominion has failed to plead
actual malice. Lindell’s Mem. Supp. Defs.’ Mot. to
Dismiss (“Lindell’s Mot.”), ECF No. 34-1. MyPillow
joins those arguments but also contends that the claims
against it must be dismissed because it hasn’t made
any statements about Dominion. MyPillow’s Mem.
Supp. Defs.’ Mot. to Dismiss (“MyPillow’s Mot.”), ECF
No. 30-1. Both Defendants also argue that Dominion’s
deceptive trade practices claim must be dismissed
because it merely recasts its defamation claim.
App. 21
Giuliani argues only that the defamation claim
against him should be dismissed because Dominion
may only recover lost profits as special damages, which
he argues Dominion has failed to plead. Giuliani’s
Mem. Supp. Defs.’ Mot. to Dismiss (“Giuliani’s Mot.”),
ECF No. 26-2.
On June 24, 2021, the Court heard oral argument
on Defendants’ Motions.
III. Legal Standard
When evaluating a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6), the Court must “treat
the complaint’s factual allegations as true . . . and must
grant plaintiff the benefit of all inferences that can be
derived from the facts alleged.” Holy Land Found. for
Relief & Dev. v. Ashcroft, 333 F.3d 156, 165 (D.C. Cir.
2003) (internal quotation omitted). Although the Court
accepts all well-pleaded facts in the complaint as true,
“[f]actual allegations must be enough to raise a right to
relief above the speculative level.” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555 (2007). “While a complaint
. . . does not need detailed factual allegations, a
plaintiff’s obligation to provide the grounds of [its]
entitlement to relief requires more than labels and
conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Id. (internal quotations
and citations omitted). The claim to relief must be
“plausible on its face,” and a plaintiff’s pleadings must
“nudge[ the] claims across the line from conceivable to
plausible.” Id. at 570.
Several of the Defendants also move to dismiss for
lack of personal jurisdiction. When deciding a motion to
App. 22
dismiss pursuant to Rule 12(b)(1), the Court may
consider materials outside the pleadings “to assure
itself of its own subject matter jurisdiction,” Settles v.
U.S. Parole Comm’n, 429 F.3d 1098, 1107 (D.C. Cir.
2005) (quoting Haase v. Sessions, 835 F.2d 902, 908
(D.C. Cir. 1987)), and must construe the complaint
liberally to afford all possible inferences favorable to
the pleader on allegations of fact, Settles, 429 F.3d at
1106. But the Court need not accept as true “a legal
conclusion couched as a factual allegation,” Trudeau v.
Fed. Trade Comm’n, 456 F.3d 178, 193 (D.C. Cir. 2006)
(quoting Papasan v. Allain, 478 U.S. 265, 286 (1986)),
or an inference “unsupported by the facts set out in the
complaint,” Trudeau, 456 F.3d at 193 (quoting Kowal
v. MCI Commc’ns Corp., 16 F.3d 1271, 1276 (D.C. Cir.
1994)). In all events, the plaintiff bears the burden of
establishing that the court has subject matter
jurisdiction by a preponderance of the evidence, Conejo
v. Am. Fed’n of Gov’t Emps., AFL-CIO, 377 F. Supp. 3d
16, 24 (D.D.C. 2019) (citing McNutt v. Gen. Motors
Acceptance Corp., 298 U.S. 178, 182–83 (1936)).
IV. Analysis
A. Statements of Fact or Opinion
Powell alone argues that her statements cannot be
defamatory because no reasonable person could
conclude that they were statements of fact. According
to Powell, her statements were either “opinions” that
cannot be proven true or false or “legal theories . . .
made in the context of pending and impending
litigation.” Powell’s Mot. at 43–44.
App. 23
For a statement to be actionable as defamatory, it
must at least express or imply a verifiably false fact
about the plaintiff. Milkovich v. Lorain Journal Co.,
497 U.S. 1, 19–20 (1990). And while statements of
opinion regarding matters of public concern cannot be
defamatory if they do not contain or imply a provably
false fact, they are actionable if they imply a provably
false fact or rely upon stated facts that are provably
false. Id. at 20. “In deciding whether a reasonable
factfinder could conclude that a statement expressed or
implied a verifiably false fact about [the plaintiff], the
court must consider the statement in context.” Weyrich
v. New Republic, Inc., 235 F.3d 617, 624 (D.C. Cir.
2001).6
Powell contends that no reasonable person could
conclude that her statements were statements of fact
because they “concern the 2020 presidential election,
which was both bitter and controversial,” Powell’s Mot.
at 38, and were made “as an attorney-advocate for
[Powell’s] preferred candidate and in support of her
legal and political positions,” id. at 39. As an initial
matter, there is no blanket immunity for statements
that are “political” in nature: as the Court of Appeals
has put it, the fact that statements were made in a
“political ‘context’ does not indiscriminately immunize
every statement contained therein.” Weyrich, 235 F.3d
6
Powell argues that Colorado law applies to Dominion’s
defamation claim. Powell’s Mot. at 22. But because Colorado also
uses the Milkovich standard to determine whether a statement is
actionable, see NBC Subsidiary (KCNC-TV), Inc. v. Living Will
Ctr., 879 P.2d 6, 9–13 (Colo. 1994), the Court need not reach the
choice-of-law question.
App. 24
at 626. It is true that courts recognize the value in
some level of “imaginative expression” or “rhetorical
hyperbole” in our public debate. Milkovich, 497 U.S. at
2.7 But it is simply not the law that provably false
statements cannot be actionable if made in the context
of an election.8
Powell similarly argues that her statements were
protected commentary about other lawsuits. But Powell
cannot shield herself from liability for her widely
disseminated out-of-court statements by casting them
as protected statements about in-court litigation; an
attorney’s out-of-court statements to the public can be
actionable, even if those statements concern
contemplated or ongoing litigation. Messina v.
7
Such “imaginative expression” or “rhetorical hyperbole” is
permitted under the theory that “the ultimate good desired is
better reached by free trade in ideas—that the best test of truth is
the power of the thought to get itself accepted in the competition
of the market.” Abrams v. United States, 250 U.S. 616, 630 (1919)
(Holmes, J., dissenting); Snyder v. Phelps, 562 U.S. 443, 460–61
(2011). But that free trade of ideas depends on a common
understanding of the facts, which is undermined by provably
untrue statements.
8
MyPillow appears to similarly argue that the First Amendment
grants some kind of blanket protection to statements about “public
debate in a public forum.” MyPillow’s Mot. at 10. Again, there is no
such immunity. See Weyrich, 235 F.3d at 626. Instead, the First
Amendment safeguards our “profound national commitment to the
principle that debate on public issues should be uninhibited,
robust, and wide-open,” Tah v. Global Witness Publ’g, Inc., 991
F.3d 231, 240 (D.C. Cir. 2021) (quoting N.Y. Times Co. v. Sullivan,
376 U.S. 254, 270 (1964)) (internal quotation marks omitted), by
limiting viable defamation claims to provably false statements
made with actual malice.
App. 25
Krakower, 439 F.3d 755, 761–62 (D.C. Cir. 2006)
(recognizing no privilege when statement is “published
to persons not having an interest [in] or connection to
the litigation”) (quoting Finkelstein, Thompson &
Loughran v. Hemispherx Biopharma, Inc., 774 A.2d
332, 342 (D.C. 2001)); see also Williams v. Burns, 540
F. Supp. 1243, 1247 (D. Colo. 1982) (contemplating
actionable defamation claim for attorney’s statements
while representing client during business transaction).
The question, then, is whether a reasonable juror
could conclude that Powell’s statements expressed or
implied a verifiably false fact about Dominion.
Milkovich, 497 U.S. at 19–20. This is not a close call. To
take one example, Powell has stated publicly that she
has “evidence from [the] mouth of the guy who founded
[Dominion] admit[ting that] he can change a million
votes, no problem at all.” Powell Compl. ¶ 181(j). She
told audiences that she would “tweet out the video.” Id.
These statements are either true or not; either Powell
has a video depicting the founder of Dominion saying
he can “change a million votes,” or she does not.
To take another example, Powell has stated that she
could “hardly wait to put forth all the evidence . . . on
Dominion, starting with the fact it was created to
produce altered voting results in Venezuela for Hugo
Chávez.” Id. ¶ 181(e). Again, this statement is either
true or it is not; either Dominion was created to
produce altered voting results in Venezuela for Hugo
Chávez or (as Dominion alleges) it was not.9
9
The Venezuela theory presumably finds its roots in the
Venezuelan origins of Smartmatic, a different company that
App. 26
Take a few more examples. Powell has stated
publicly that Dominion “flipped,” “weighted,” and
“injected” votes during the 2020 election, see supra at
p. 7; Powell Compl. ¶¶ 181(v), 181(ii), 181(u); either
Dominion did so or (as Dominion alleges) it did not.
Powell has claimed that state officials received
kickbacks in exchange for using Dominion machines,
id. ¶ 181(g); either state officials received such
kickbacks or (as Dominion alleges) they did not. All of
these statements, and many others alleged in
Dominion’s Complaint, “expressed or implied a
verifiably false fact” about Dominion. See Weyrich, 235
F.3d at 624.
Powell argues that these statements are merely her
own interpretation of “underlying facts [that] have
been disclosed.” Powell’s Mot. at 32. Statements may
not be actionable if the “defendant provides the facts
underlying the challenged statements, [and] it is ‘clear
that the challenged statements represent [her] own
interpretation of those facts, . . . leav[ing] the reader
free to draw his own conclusions.’” Bauman v.
Butowsky, 377 F. Supp. 3d 1, 11 n.7 (D.D.C. 2019)
(quoting Adelson v. Harris, 973 F. Supp. 2d 467, 490
(S.D.N.Y. 2013), aff’d, 876 F.3d 413 (2d Cir. 2017)). But
with respect to many of Powell’s allegedly defamatory
statements, Dominion alleges (and for the purposes of
the Motion to Dismiss, the Court must accept as true)
that she lied about having (or at the very least has not
disclosed) her purported “underlying facts.” For
Giuliani alleges owns Dominion, id. ¶ 101, but that Dominion
alleges is its competitor with no connection—either through
ownership or software—with Dominion, id. ¶ 183.
App. 27
example, Powell has stated that she has “evidence from
[the] mouth of the guy who founded [Dominion]
admit[ting that] he can change a million votes, no
problem at all.” Powell Compl. ¶ 181(j). She has not,
however, disclosed that video. She has also claimed
that Dominion paid “kickbacks and benefits” to the
families of Georgia public officials. Id. ¶ 181(n). But the
only evidence to which Powell points in support of this
claim is an undated (and allegedly doctored) Georgia
state certificate stating that Dominion’s systems had
“been thoroughly examined and tested and found to be
in compliance with” Georgia law. Id. ¶ 39. That
certificate provides no evidence of illicit payments to
public officials’ families; it is certainly not, as Powell
has argued,
evidence . . . from various whistleblowers that
are aware of substantial sums of money being
given to family members of state officials who
bought this software. . . . $100 million packages
for new voting machines suddenly, in multiple
states, and benefits ranging from financial
benefits for family members to sort of what I
would call election insurance, because they know
that they can win the election if they are using
that software.
Id. ¶ 181(g). More generally, Dominion alleges that for
many of Powell’s statements, the evidence to which she
points is either false or provides no factual basis for
what she said—and at this stage in the litigation, the
Court must assume the truth of these allegations. See
Ashcroft v. Iqbal, 556 U.S. 662, 664 (2009).
App. 28
In sum, Dominion has adequately alleged that
Powell made a number of statements that are
actionable because a reasonable juror could conclude
that they were either statements of fact or statements
of opinion that implied or relied upon facts that are
provably false. See Milkovich, 497 U.S. at 20.10
B. Actual Malice
Powell and Lindell both argue that Dominion has
failed to allege that they made their defamatory
statements “with ‘actual malice,’ that is, with
‘knowledge that [they were] false or with reckless
disregard of whether [they were] false or not.’” Liberty
Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287, 1292
(D.C. Cir. 1988) (quoting N.Y. Times Co. v. Sullivan,
370 U.S. 254, 280 (1964)).11 A defendant acts in
10
DTR argues that it did not make any statements about
Dominion. Powell’s Mot. at 51. But Dominion alleges that Powell
made her statements (at least in part) as an agent of her law firm
and an agent of DTR, and so (at this point in the proceedings)
Powell’s statements can be imputed to DTR. Dominion’s Mem. in
Opp’n to Powell’s Mot. to Dismiss (“Powell Opp’n”), ECF No. 39 at
50–51. In particular, Dominion alleges that Powell acted as an
agent of DTR when she solicited donations for it during her
defamatory television appearances, Powell Compl. ¶¶ 26, 126, and
for her law firm when publishing online the declarations it filed in
its election lawsuits, id. ¶ 151. Aside from the agency theory,
Dominion also alleges that DTR independently published Powell’s
statements on its website. See, e.g., id. ¶¶ 52, 58.
11
For the purposes of the Motions, Dominion does not dispute that
it must plead actual malice but argues that it has alleged ample
facts to demonstrate that the Defendants acted with the requisite
intent. Powell Opp’n at 23–37; Dominion’s Mem. in Opp’n to
Lindell’s Mot. to Dismiss (“Lindell Opp’n”), ECF No. 47 at 13–34.
App. 29
reckless disregard of the truth if she “in fact
entertained serious doubts as to the truth of [its]
publication” or acted “‘with a high degree of awareness
of . . .probable falsity.’” St. Amant v. Thompson, 390
U.S. 727, 731 (1968) (quoting Garrison v. Louisiana,
379 U.S. 64, 74 (1964)). The “‘serious doubt’ standard
requires a showing of subjective doubts by the
defendant.” Tavoulareas v. Piro, 817 F.2d 762, 789
(D.C. Cir. 1987) (en banc); see also St. Amant, 390 U.S.
at 731 (explaining that “reckless conduct is not
measured by whether a reasonably prudent man would
have published, or would have investigated before
publishing” the statement); Jankovic v. Int’l Crisis
Grp., 822 F.3d 576, 589 (D.C. Cir. 2016) (“[I]t is not
enough to show that defendant should have known
better; instead, the plaintiff must offer evidence that
the defendant in fact harbored subjective doubt.”).
Subjective doubt can be proven through “the
cumulation of circumstantial evidence [and] direct
evidence,” id. at 589 (internal quotation marks and
citation omitted), demonstrating that the defendant
was “subjectively aware that it was highly probable
that [its] story was ‘(1) fabricated; (2) so inherently
improbable that only a reckless person would have put
[it] in circulation; or (3) based wholly on an unverified
anonymous telephone call or some other source that [it]
had obvious reasons to doubt.’” Lohrenz v. Donnelly,
350 F.3d 1272, 1283 (D.C. Cir. 2003) (quoting
Tavoulareas, 817 F.2d at 790)).
a. Powell
Dominion argues that it has cleared this high bar.
As to Powell, Dominion contends it has alleged not only
App. 30
that Powell’s claims are so inherently improbable that
only a reckless person could have believed them, but
also that she deliberately ignored the truth in favor of
relying on facially unreliable sources, intentionally lied
about and fabricated evidence to support a
preconceived narrative about election fraud, and did so
to raise her own public profile and make a profit.
Powell’s primary argument is that she could not
have “entertained serious doubts as to the truth” or
acted with a “high degree of awareness” of the
“probable falsity” of her claims because she relied on
sworn declarations and other evidence that supported
her statements. Powell’s Mot. at 46–48; see St. Amant,
390 U.S. at 731. But there is no rule that a defendant
cannot act in reckless disregard of the truth when
relying on sworn affidavits—especially sworn affidavits
that the defendant had a role in creating. And
Dominion alleges that Powell’s “evidence” was either
falsified by Powell herself, misrepresented and cherrypicked, or so obviously unreliable that Powell had to
have known it was false or had acted with reckless
disregard for the truth. See, e.g., Powell Compl.
¶¶ 91–92, 7.
Powell again faces an obvious hurdle in the fact that
she has never produced (nor mentioned in any sworn
affidavit) the video of Dominion’s founder that she
claims to possess, see supra at p.6; a reasonable juror
could conclude that Powell has not produced the video
because she doesn’t have it. Dominion also alleges that
Powell doctored a certificate from the Georgia
Secretary of State to make it appear as though Georgia
officials purchased Dominion machines and software on
App. 31
a rushed timeline. Powell Compl. ¶ 91. (The certificate,
which is publicly available on the Georgia Secretary of
State’s website, includes the Georgia Secretary of
State’s date, seal, and signature—but Powell claimed
that the Dominion certification was “undated” and filed
a copy of the certificate that was missing the date, seal,
and signature during the course of her election
litigation in Georgia. Id.)
Dominion also alleges that Powell had a hand in
drafting the declarations she touts as evidence of her
claims. For example, Dominion alleges that the
“military intelligence expert” who was the source for
one declaration has admitted that he never actually
worked in military intelligence, that the declaration
Powell’s law firm drafted for him was “misleading,” and
that he was “trying to backtrack” on it. Id. ¶ 5.
Dominion further alleges that after that source’s
recantation, Powell claimed that the declaration was
actually from a different anonymous source (instead of
investigating whether there was a reason to doubt the
truth of the original source’s claims). Id. As for the
other anonymous declarations proffered by Powell,
Dominion alleges that they bear distinct signs of
having been drafted by Powell herself. Indeed, certain
sections in two of the declarations are almost
completely identical. Id. ¶ 90.
More generally, Dominion alleges that the
declarations provide no facts to support Powell’s claims
that Dominion flipped, stole, weighted, or injected any
votes into a U.S. election. For example, one declaration
says that “vote counting was abruptly stopped in five
states using Dominion software”; that at that time
App. 32
“Donald Trump was significantly ahead in the votes”;
and that “[w]hen the vote reporting resumed the very
next morning there was a very pronounced change in
voting in favor of the opposing candidate, Joe Biden.”
Pearson v. Kemp, No. 1:20-cv-04809 (N.D. Ga. Nov. 25,
2020) [ECF No. 1-2 at ¶ 26]. The declaration provides
no factual support for the proposition that Dominion
had flipped votes from Trump to Biden, and it certainly
says nothing about Dominion having been created in
Venezuela. Powell Compl. ¶ 181(e). A second
declaration provides even less support; while it
mentions Smartmatic, it says nothing about Dominion
or a U.S. election. See generally Pearson v. Kemp, No.
1:20-cv-04809 (N.D. Ga. Nov. 25, 2020) [ECF No. 1-3 at
¶ 11].
Dominion further alleges that Powell’s “expert”
reports are inherently unreliable and, as a former
federal prosecutor, Powell had good reason to doubt
their veracity. Powell Compl. ¶ 104. In particular, it
alleges that one expert was involved in a recent fraud
case where the judge “ordered [the ‘expert’] to pay more
than $25,000 after finding that she violated consumer
protection laws by misspending money she raised and
soliciting donations while misrepresenting her
experience and education,” id. ¶ 105, and that another
was found to have provided “materially false
information” in support of his claims of vote
manipulation after referencing locations in Minnesota
when alleging voter fraud in Michigan, id. ¶ 106. (That
expert has also publicly claimed that George Soros,
President George H.W. Bush’s father, the Muslim
Brotherhood, and “leftists” helped form the “Deep
State” in Nazi Germany in the 1930s—which would
App. 33
have been a remarkable feat for Soros, who was born in
1930. Id.) Dominion also alleges that a third expert has
been rejected by another federal court for his “sheer
unreliability,” id. ¶ 107, and a fourth has declared,
under penalty of perjury, that there was a pattern of
improbable vote reporting in a Michigan county that
does not exist, id. ¶ 108. According to Dominion, an
experienced litigator like Powell either knew (or should
have known) about these grave problems with her
experts’ reliability, and thus she must have
“entertained serious doubts as to the truth” of her
statements or at a minimum acted “with a high degree
of awareness of [their] probable falsity.” Id. ¶¶ 104–09;
see St. Amant, 390 U.S. at 731.
Dominion also alleges that Powell cherry-picked and
took out of context statements regarding general
concerns about election security made by Professor
Andrew W. Appel. Powell Compl. ¶ 89. According to
Dominion, Professor Appel’s research regarding
election security is reputable, but concerns “a decadesold machine not designed by Dominion [and] not used
in the 2020 election in any of the swing states . . .
challenged by Powell.” Id. (emphasis added). Indeed,
Dominion alleges that Professor Appel stated that he
“ha[s] never claimed that technical vulnerabilities have
actually been exploited to alter the outcome of any US
[sic] election” and that “no credible evidence has been
put forth that supports a conclusion that the 2020
outcome in any state has been altered through
technical compromise.” Id. (emphasis omitted). A
reasonable juror could conclude that Powell’s reliance
on Professor Appel’s research when he has stated that
there is “no credible evidence” of fraud is evidence of at
App. 34
least reckless disregard. See Zimmerman v. Al Jazeera
Am., LLC, 246 F. Supp. 3d 257, 283–84 (D.D.C. 2017).
Dominion argues that its allegations regarding
falsified documents, inherently unreliable sources,
misrepresentations about other evidence, and Powell’s
shifting positions reflect actual malice. It also argues
that Powell had reasons for this conduct: to raise funds,
to raise her public profile, and to curry favor with
President Trump. Powell Compl. ¶¶ 75, 80, 185. Powell
argues that Dominion has no facts to support these
claims. But Dominion alleges that Powell repeatedly
solicited donations to her law firm and DTR while
making her claims, id. ¶ 58;12 that President
Trump pardoned her client, Michael Flynn, on the
same day she filed her first lawsuit challenging the
results of the 2020 election, id. ¶ 80; and that in
November 2020, “someone purchased the web domain
sidneypowellforpresident.com,” id. ¶ 71.
12
Dominion alleges that Powell leveraged DTR to collect donations
under false pretense. In particular, Dominion alleges that Powell
has described DTR as a “non-profit working to help [her] defend all
[of her election lawsuits] and to defend [her as an individual],”
Powell Compl.¶ 156 (emphasis omitted), and represented that it is
a 501(c)(3) and 501(c)(4) organization, id. ¶¶ 17–19, but that it
appears as neither on the IRS website, id. ¶ 20. And it argues that
Powell used DTR donations for personal gain, as indicated by the
lack of separation between DTR, Powell, and her law firm: DTR’s
and the law firm’s websites are connected through at least ten
hyperlinks and encouraged users to donate money by checks
payable to the law firm’s “Defending the Republic Election
Integrity Fund,” id. ¶¶ 175–76, or directly to DTR (but mailed to
the law firm’s address), id. ¶ 177. According to Dominion, the DTR
website began collecting donations before DTR even existed as a
corporate entity. Id. ¶ 17.
App. 35
While it is true that “evidence of ill will ‘is
insufficient by itself to support a finding of actual
malice,’” Tah, 991 F.3d at 243 (quoting Tavoulareas,
817 F.2d at 795 (en banc) (emphasis added)); see also
Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S.
657, 665 (1989) (“[A defendant’s] motive . . . cannot
provide a sufficient basis for finding actual malice.”),
Dominion has proffered much more. For the reasons
discussed, Dominion has adequately alleged that
Powell made her claims knowing that they were false,
or at least with serious doubts as to their truthfulness.
b. Lindell
As for Lindell, Dominion contends that his claims
were so inherently improbable that only a reckless man
would have made them, that he intentionally
disregarded evidence of their falsity, that he relied on
obviously unreliable sources, and that he made his
claims in accordance with a preconceived narrative
that he constructed for financial gain. Like Powell,
Lindell argues that Dominion has failed to allege
actual malice because he has “evidence” to support his
claims (and because he has never expressed doubt as to
their truthfulness). Lindell’s Mot. at 29–41. But the
majority of the evidence to which Lindell points is
outside of the Complaint, and the Court cannot rely on
this information at this time. See Menoken v. Dhillon,
975 F.3d 1, 8 (D.C. Cir. 2020) (“In considering claims
dismissed pursuant to Rule 12 (b)(6), we accept a
plaintiff’s factual allegations as true and draw all
reasonable inferences in a plaintiff’s favor. . . . [T]he
district court erred by relying on two documents
outside the complaint.”); Zimmerman, 246 F. Supp. 3d
App. 36
at 285 (rejecting defendants’ attempt to rebut the
complaint’s allegations of fact and denying defendants’
motion to dismiss defamation claim).
Dominion alleges that Lindell has stated, among
other things, that Dominion committed the “biggest
crime ever committed in election history against our
country and the world” and stole the 2020 election by
using an algorithm to flip and weight votes in its
machines; that Trump received so many votes that that
algorithm broke on election night; that Dominion’s
voting machines were “built to cheat” and “steal
elections”; that a fake spreadsheet with fake IP and
MAC addresses was “a cyber footprint from inside the
machines” proving that they were hacked; and that
Dominion’s plot was kept under wraps because the
government had not really investigated claims of
election fraud (due to then-Attorney General Bill Barr
becoming “corrupt” and having been “compromised”).
Lindell Compl. ¶¶ 103, 114, 165(e), 165(p), 165(x), 170.
As a preliminary matter, a reasonable juror could
conclude that the existence of a vast international
conspiracy that is ignored by the government but
proven by a spreadsheet on an internet blog is so
inherently improbable that only a reckless man would
believe it. See St. Amant, 390 U.S. at 732. But
Dominion also alleges other facts that make those
claims even more obviously improbable (or at least
indicate that a reasonable juror could conclude that
those claims are inherently improbable), including
(1) public statements by election security specialists,
Attorney General Barr, numerous government
agencies, and elected officials; (2) independent audits;
and (3) paper ballot recounts that disproved those
App. 37
claims. Lindell Compl. ¶¶ 2, 3, 33–34, 40, 71, 72, 92,
167. Dominion also alleges that Lindell was made
aware of that countervailing evidence in Dominion’s
retraction letters, id. ¶¶ 63, 69, but—instead of
reconsidering his claims in light of the mountain of
evidence against them—doubled down and “dare[d]
Dominion to sue [him],” id. ¶ 160. To be sure, a demand
letter that is ignored, without more, does not
demonstrate actual malice. Chandler v. Berlin, No. 18CV-02136 (APM), 2020 WL 5593905, at *4 (D.D.C.
Sept. 18, 2020); Parisi v. Sinclair, 774 F. Supp. 2d 310,
320 (D.D.C. 2011). But here, the Complaint rests on
much more than Lindell’s refusal to retract; it also
alleges that Lindell recklessly disregarded the truth by
relying on obviously problematic sources to support a
preconceived narrative he had crafted for his own
profit.
Moreover, Dominion alleges that the evidence on
which Lindell did rely contains glaring discrepancies
rendering it wholly unreliable. Lindell, like Powell,
relied on the “forensic expert” who had provided
“materially false information” in support of his claims
of vote manipulation and who had claimed that George
Soros, President George H.W. Bush’s father, the
Muslim Brotherhood, and “leftists” all had a role in
forming the Nazi “Deep State” in the 1930s. Lindell
Compl. ¶ 71. As for the spreadsheet Lindell tweeted as
“evidence” that “President Trump got around 79m
votes to 68m for Biden,” id. ¶¶ 75–76, Dominion alleges
that the spreadsheet is obviously fake. In particular,
the Complaint alleges that, although the spreadsheet
purports to list IP addresses for election hackers and
their targets, id., the listed “[t]arget” IP addresses are
App. 38
actually the addresses for the website of a county in a
swing state (not for a voting machine or device), id.
¶ 81. And according to Dominion, the MAC addresses
in the spreadsheet (which should identify the specific
devices involved in the purported hacks) are not even
MAC addresses that exist. Id. ¶¶ 83–89.
As for Lindell’s purported profit motive, Dominion
alleges that Lindell knew that appealing to Trump
supporters would be “good for business,” id. ¶ 22, and
that his true motive is apparent in the repeated tying
together of his election fraud claims and promotion of
MyPillow products. Like Powell, Lindell correctly notes
that allegations of a defendant’s ill will or profit
motive, without more, do not satisfy the actual malice
standard. See Harte-Hanks, 491 U.S. at 666–67. But
again, Dominion has alleged more: in addition to
alleging that Lindell’s claims are inherently
improbable, that his sources are unreliable, and that he
has failed to acknowledge the validity of countervailing
evidence, Dominion has alleged numerous instances in
which Lindell told audiences to purchase MyPillow
products after making his claims of election fraud and
providing MyPillow promotional codes related to those
theories. In totality, it has adequately alleged that
Lindell made his claims knowing that they were false
or with reckless disregard for the truth.13
13
MyPillow argues that Lindell’s statements cannot be imputed
to it. MyPillow’s Mot. at 29. But a corporation may be liable for an
executive’s conduct when the executive was acting within the scope
of his employment and in furtherance of the company’s business,
see Palin v. N.Y. Times Co., 940 F.3d 804, 815 (2d Cir. 2019)
(determining that a complaint stated a claim for defamation
against The New York Times where it alleged facts giving rise to
App. 39
C. Deceptive Trade Practices Claims
With respect to Dominion’s deceptive trade practices
claims, Powell and Lindell argue that Dominion fails to
state a claim under the relevant statutes, though for
different reasons.
Powell argues that she cannot be liable for deceptive
trade practices under Georgia law because Dominion
has not alleged that she was “engaged in trade and
commerce of goods.” Powell’s Mot. at 52. She points to
a single case in which the court granted summary
judgment to the defendant on a deceptive trade
practices claim when the defendant was engaged
“neither in the business of selling or distributing the
substances at issue, nor in the business of selling or
distributing products similar to those sold and
distributed by Plaintiffs.” Int’l Brominated Solvents
Ass’n v. Am. Conf. of Governmental Indus. Hygienists,
Inc., 625 F. Supp. 2d 1310, 1318 (M.D. Ga. 2008). But
the court reached that conclusion only after
distinguishing other cases in which the defendant had
a “financial interest” in the promulgation of its
statements, id.; when such an interest exists, there is
a plausible inference that the paper’s agents recklessly disregarded
the truth); Mangan v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d
199, 202–04 (D.N.J. 2011) (deciding that a complaint stated a
claim for defamation against a corporation where CEO made
allegedly defamatory statements). Here, Dominion alleges that
Lindell repeatedly made his statements while being identified as
the CEO of MyPillow, Lindell Compl. ¶¶ 51, 70, 96, and at
MyPillow-sponsored rallies at which he furthered those claims, id.
¶¶ 35, 165, and that MyPillow accepted promotional codes
distributed during Lindell’s appearances that alluded to those
claims (e.g., “FightforTrump”), id. ¶ 67.
App. 40
no requirement that the defendant be engaged in the
trade and commerce of goods at issue, see Davita Inc. v.
Nephrology Assocs., P.C., 253 F. Supp. 2d 1370, 1380
(S.D. Ga. 2003) (permitting a deceptive trade practices
claim to proceed when plaintiffs pleaded that defendant
made false and misleading comments, statements
disparaged plaintiffs’ services and business, and
maliciousness was ascertainable from complaint).
Dominion, in contrast, has pleaded that Powell had a
financial interest in the promulgation of her
statements. See supra at 23.
Lindell, in turn, argues that Dominion’s deceptive
trade practices claim is merely an attempt to avoid the
requirements of the First Amendment. But Dominion
has satisfied those requirements, see supra at pp. 15
n.7, 24–26, and the Minnesota deceptive trade practices
statute expressly contemplates that conduct might be
actionable as both a common law tort and under the
statute by providing relief “in addition to remedies
otherwise available against the same conduct under
the common law,” Minn. Stat. § 325D.45(3). And
Lindell’s argument that only injunctive relief is
available under the Minnesota statute, Lindell’s Mot.
at 38, ignores that Dominion does seek injunctive relief,
Lindell Compl., Prayer for Relief.
D. Personal Jurisdiction
The Powell and Lindell Defendants also move to
dismiss the Complaints against them for lack of
personal jurisdiction.
A federal court has jurisdiction over a defendant
“who is subject to the jurisdiction of a court of general
App. 41
jurisdiction in the state where the district court is
located.” Fed. R. Civ. P. 4(k)(1)(A). If a District of
Columbia court could exercise jurisdiction over the
Defendants, then so can this Court. Trump v. Comm.
on Ways & Means, 415 F. Supp. 3d 98, 105 (D.D.C.
2019) (citing West v. Holder, 60 F. Supp. 3d 190, 193
(D.D.C. 2014)).
There are two types of personal jurisdiction:
“[1] general or all-purpose jurisdiction[] and [2] specific
or case-linked jurisdiction.” Goodyear Dunlop Tires
Operations, S.A. v. Brown, 564 U.S. 915, 919 (2011).
“For an individual, the paradigm forum for the exercise
of general jurisdiction is the individual’s domicile.”
Daimler AG v. Bauman, 571 U.S. 117, 137 (2014).
Specific jurisdiction, on the other hand, “aris[es] out of
or relate[s] to the defendant’s contacts with the forum.”
Id. at 127 (quoting Helicopteros Nacionales de
Colombia, S.A. v. Hall, 466 U.S. 408, 414 n.8 (1984)).
With respect to specific jurisdiction, the Court “must
engage in a two-part inquiry: . . . first examine whether
jurisdiction is applicable under the [D.C.] long-arm
statute and then determine whether a finding of
jurisdiction satisfies the constitutional requirements of
due process.” GTE New Media Servs. Inc. v. BellSouth
Corp., 199 F.3d 1343, 1347 (D.C. Cir. 2000) (citation
omitted). The D.C. long-arm statute authorizes specific
jurisdiction “over a person, who acts directly or by an
agent, as to a claim for relief arising from” certain
contacts that person may have with the forum. D.C.
Code § 13-423(a).
App. 42
As relevant here, a defendant’s contacts with the
District of Columbia can establish specific jurisdiction
if the claim arises from the defendant’s
(1) transacting any business in the District of
Columbia;
...
(3) causing tortious injury in the District of
Columbia by an act or omission in the District of
Columbia; [or]
(4) causing tortious injury in the District of
Columbia by an act or omission outside the
District of Columbia if he [i] regularly does or
solicits business, [ii] engages in any other
persistent course of conduct, or [iii] derives
substantial revenue from goods used or
consumed, or services rendered, in the District
of Columbia.
Id. “When jurisdiction over a person is based solely
upon this section, only a claim for relief arising from
acts enumerated in [subsection 13-423(a)] may be
asserted against him.” Id. § 13-423(b). A plaintiff bears
the burden of establishing personal jurisdictional over
each defendant. First Chi. Int’l v. United Exch. Co., 836
F.2d 1375, 1378 (D.C. Cir. 1988); Pinkett v. Dr.
Leonard’s Healthcare Corp., No. 18-1656, 2019 WL
1992904, at *2 (D.D.C. May 6, 2019) (“[T]he
requirements for personal jurisdiction ‘must be met as
to each defendant.’” (quoting Rush v. Savchuk, 444 U.S.
320, 332 (1980)).
App. 43
1. The Powell Defendants
Powell argues that her in-District conduct did not
include “business transactions” as contemplated by the
D.C. long-arm statute. Powell’s Mot. at 19.14 And, she
contends, even if her actions constituted business
transactions, they were not with Dominion, id. at 20,
directed at D.C. residents, id. at 20–21, or related to
Dominion’s claims for relief, id. at 21.
The D.C. long-arm statute certainly covers
“business transactions” in the everyday sense of
commercial deal-making activities like negotiating or
performing contracts. See, e.g., Helmer v. Doletskaya,
393 F.3d 201, 206–07 (D.C. Cir. 2004); Xie v. Sklover &
Co., 260 F.Supp.3d 30, 41 (D.D.C. 2017). But a
defendant also transacts business when advertising in
the District, see Shoppers Food Warehouse v. Moreno,
746 A.2d 320, 330–32 (D.C. 2000) (en banc), operating
an office in the District, see Wilson v. Wilson, 785 A.2d
647, 650 (D.C. 2001), representing an out-of-state client
before an in-District government entity, see Lex Tex
Ltd., Inc. v. Skillman, 579 A.2d 244, 249 (D.C. 1990)
(U.S. Patent and Trademark Office), or traveling to the
District for a business purpose when accompanied by
“some kind of ‘transaction’ in the traditional sense,” see
IMAPizza, LLC v. At Pizza Ltd., 334 F. Supp. 3d 95,
112 (D.D.C. 2018). As alleged by Dominion, Powell has
conducted in-District “business transactions”: her
14
“Section (a)(1)’s ‘transacting any business’ clause generally has
been interpreted to be coextensive with the Constitution’s due
process requirements and thus to merge into a single inquiry.”
GTE New Media Servs. Inc., 199 F.3d at 1347 (citing United States
v. Ferrara, 54 F.3d 825, 828 (D.C. Cir. 1995)).
App. 44
representation of Michael Flynn occurred here, and she
traveled to and rented hotel rooms here while filming
interviews in which she repeated her allegedly
defamatory statements. The long-arm statute does not
require that those business transactions were between
Powell and Dominion; it is enough that she has
“purposefully engaged in some type of commercial or
business-related activity directed at District residents,”
Trump v. Comm. on Ways & Means, 415 F. Supp. at
107 (citing Holder v. Haarmann & Reimer Corp., 779
A.2d 264, 270–71 (D.C. 2001)), and that there is a
“discernible relationship” between her contacts and
Dominion’s claims, IMAPizza, 334 F. Supp. 3d at 112
(quoting Jackson v. George, 146 A.3d 405, 412 (D.C.
2016)).15
As for the “tortious conduct” prongs of the long-arm
statute, Powell argues that none of her allegedly
tortious conduct resulted in Dominion suffering an
injury here. Powell’s Mot. at 21–22. But Dominion
alleges that it suffered reputational injury in the
District when Powell spoke here, including at the
Republican National Committee press conference,
15
Because Powell’s in-District conduct was also in her capacity as
an agent for her law firm and DTR, her District contacts can be
imputed to those Defendants and the personal jurisdictional
analysis is the same. D.C. Code § 13-423(a)(4) (authorizing
jurisdiction over a person, who acts directly or by an agent)
(emphasis added). In any event, DTR and Powell’s law firm had
their own contacts that constitute “transacting business” in this
District: both employed at least two employees here, both held out
office locations here, Powell’s law firm engaged in the
representation of Michael Flynn, and law firm attorneys listed a
D.C. address on their court filings.
App. 45
Powell Compl. ¶ 62, and in television appearances
filmed at the Trump International Hotel, id. ¶ 24. It is
certainly reasonable to infer that there is a reason
Powell regularly traveled here to make those
statements: This District is where elected officials—
some of whom have influence over decisions about
elections and government contracts—conduct their
business, and it is where Powell could avail herself of
audiences with President Trump and the Trump
campaign. Dominion—a voting machine provider—
certainly has an interest in maintaining its reputation
with the federal government and the state
governments that might be influenced by federal
employees, and it has alleged that Powell caused injury
to that reputation when she spoke to audiences here.16
2. The Lindell Defendants
Lindell, like Powell, argues that he neither
“transacted business” nor tortiously caused injury
within this District. Lindell’s Mot. at 47–49. But
Dominion alleges that that he traveled to the District
to appear at three MyPillow-sponsored rallies, Lindell
Compl. ¶¶ 51, 52, 55, 57, 165(a)–(b), 165(k), and touted
his relationship with President Trump to market his
products here (for example, during the 2017 White
House event in which Trump endorsed MyPillow and at
an August 2020 speech in the Rose Garden, id. ¶¶ 22,
23).
16
Personal jurisdiction under §13-423(a)(3) is proper under the
Due Process Clause when, as here, the defendant is physically
within the District when she took the alleged action. Wormley v.
United States, 601 F. Supp. 2d 27, 33 (D.D.C. 2009).
App. 46
Lindell argues that these contacts are insufficient
because any conduct underlying a tort claim cannot
count as “transact[ing] business” for purposes of the
D.C. long-arm statute. Lindell’s Mot. at 47. But Lindell
misconstrues the law: while tortious conduct by a
nonresident outside the District does not constitute
“transacting . . . business in the District,” IMAPizza,
334 F. Supp. 3d at 112, a person’s in-District conduct
can qualify as both tortious and “transacting business.”
Lindell’s argument that Dominion could not have
suffered injury in this District, Lindell’s Mot. at 47–48,
fares no better than Powell’s. Dominion alleges that it
suffered reputational injury here as a result of Lindell’s
in-District conduct, and again, there is a reason Lindell
regularly traveled here to appear at rallies and make
his claims: This District is where Lindell could target
influential D.C. audiences, including public officials
and institutions with significant roles in public
discourse about elections, and where Dominion alleges
it suffered injury to its reputation.17
V. Venue
Powell and Lindell’s final argument is that their
cases should be dismissed for improper venue or, in the
alternative, transferred to their home districts (for
17
Just as Powell’s contacts can be imputed to DTR and her law
firm, Lindell’s contacts can be imputed to MyPillow. D.C. Code
§ 13-423(a)(4) (authorizing jurisdiction over a person, who acts
directly or by an agent) (emphasis added). And MyPillow clearly
transacted business within this District by sponsoring several
rallies at which Lindell made at least three allegedly defamatory
appearances.
App. 47
Powell, the Northern District of Texas; for Lindell, the
District of Minnesota).
A. Legal Standard
“Courts in this circuit must examine challenges to
personal jurisdiction and venue carefully to guard
against the danger that a plaintiff might manufacture
venue in the District of Columbia.” Cameron v.
Thornburgh, 983 F.2d 253, 256 (D.C. Cir. 1993). Venue
is proper in the district where (1) any defendant
resides, if all defendants reside in the same state; (2) “a
substantial part” of the events giving rise to the suit
occurred; or (3) if venue would not be proper in any
district for those reasons, wherever the defendants are
subject to personal jurisdiction. 28 U.S.C. § 1391(b).
In considering a motion to dismiss for improper
venue, the Court must “accept[] the plaintiff’s well-pled
factual allegations regarding venue as true, draw[] all
reasonable inferences from those allegations in the
plaintiff’s favor, and resolve[] any factual conflicts in
the plaintiff’s favor.” Pendleton v. Mukasey, 552 F.
Supp. 2d 14, 17 (D.D.C. 2008) (quoting Darby v. U.S.
Dep’t of Energy, 231 F. Supp. 2d 274, 276–77 (D.D.C.
2002)). The plaintiff bears the burden of establishing
that venue is proper. Freeman v. Fallin, 254 F. Supp.
2d 52, 56 (D.D.C. 2003). But even when venue is
proper, a defendant may move to transfer the case “to
any other district . . . where it might have been
brought” “[f]or the convenience of the parties and
witnesses” and “in the interest of justice.” 28 U.S.C.
§ 1404(a). That decision is within the Court’s discretion
and requires “an ‘individualized, case-by-case
consideration of convenience and fairness.’” Stewart
App. 48
Org., Inc. v. Ricoh Corp., 487 U.S. 22, 29 (1988)
(quoting Van Dusen v. Barrack, 376 U.S. 612, 622
(1964)). “The moving party bears the initial burden of
establishing that transfer is proper.” Mandan, Hidatsa,
& Arikara Nation v. U.S. Dep’t of Interior, 358 F. Supp.
3d. 1, 6 (D.D.C. 2019).
B. Analysis
Powell and Lindell both argue that venue is
improper because “a substantial part” of the events
giving rise to the suits did not occur in this district,
presumably under a theory that more of the alleged
statements occurred while they were outside of the
District. But on a motion to dismiss for improper
venue, the question is not “which district is the ‘best’
venue” or which “has the most significant connection”;
it is “whether the district the plaintiff chose had a
substantial connection to the claim.” Exelon Generation
Co. v. Grumbles, 380 F. Supp. 3d 1, 11 (D.D.C. 2019)
(quoting Johns v. Newsmax Media, Inc., 887 F. Supp.
2d 90, 96 (D.D.C. 2012)). And Dominion has easily
alleged in-District conduct comprising “a substantial
part” of the events giving rise to its claims: this is
where Powell made numerous in-person and televised
appearances in which she voiced her claims to D.C.
audiences, where she rented hotel rooms and
represented Michael Flynn, and where Lindell touted
his relationship with President Trump and spoke at
several in-person rallies. Venue in this district is
proper.
App. 49
1. Transfer to the Northern District of Texas
To demonstrate that the case against her should be
transferred to the Northern District of Texas, Powell
must establish by a preponderance of the evidence that
(1) Dominion could properly have filed the case in that
court and (2) “considerations of convenience and the
interest of justice weigh in favor of transfer.” Brannen
v. Nat’l R.R. Passenger Corp., 403 F. Supp. 2d 89, 92
(D.D.C. 2005). Dominion does not dispute that it could
have filed the suit in Texas. After all, Powell is
domiciled there.18 Dominion instead focuses its
arguments on whether considerations of convenience
and justice support transfer. The Court first considers
six private interest factors: “(1) the plaintiff’s choice of
forum; (2) the [defendants’] choice of forum; (3) whether
the claim arose elsewhere; (4) the convenience of the
parties; (5) the convenience of the witnesses; and
(6) the ease of access to sources of proof.” Id. at 92–93.
It then turns to three public interest factors: “(1) the
transferee [court’s] familiarity with the governing laws;
(2) the relative congestion of the calendars of the
potential transferee and transferor courts; and (3) the
local interest in deciding local controversies at home.”
Id. at 95.
Powell correctly notes that, although the plaintiff’s
choice of forum is usually granted substantial weight,
it is given less deference when the plaintiff chooses a
foreign forum. Piper Aircraft Co. v. Reyno, 454 U.S.
235, 255–56 (1981). But even a plaintiff’s choice of a
18
Powell’s law firm is registered in Texas and DTR is a Texas
corporation. Powell Compl. ¶¶ 16, 21.
App. 50
foreign forum is entitled to some weight when there is
a nexus between that forum and the events giving rise
to the plaintiff’s claims. See Wilderness Soc. v. Babbitt,
104 F. Supp. 2d 10, 13 (D.D.C. 2000). Again, there is
such a nexus here: this is where Powell traveled to
meet with President Trump and the Trump campaign,
represented Michael Flynn, and spoke to in-person and
television audiences.
As for Powell’s choice of forum, her preference for
transfer to Texas is understandable. That is where she
lives, where her law firm is registered, and where DTR
is incorporated. Her preference is entitled to some
weight.
The next factor—where the claims arose—presents
a different challenge. It is difficult to pinpoint a single
location where the claims against Powell arose.
Powell’s in-District conduct certainly gave rise to a
portion of Dominion’s claims, but Powell’s out-ofDistrict conduct is also relevant; she made statements
that Dominion challenges here on several occasions
(and not always within the District) and filed her
election suits in other states. Ultimately, however,
Powell does not provide the Court with any conduct in
Texas that gave rise to Dominion’s claims, and so she
fails to demonstrate that transfer to that district is
warranted on that basis.
The Court next turns to which district is more
convenient to the Parties and witnesses, and which has
easier access to sources of proof. It is presumably more
convenient for Powell to litigate the case in her home
district, but this concern is somewhat mitigated by the
fact that Powell has demonstrated the ease with which
App. 51
she can travel—and engage in litigation—here. She has
routinely traveled here and engaged in legal
representation for clients in this district. Indeed, her
law firm has an office here. As for Dominion, it is
located in Colorado and Canada, Powell Compl. ¶¶ 12,
13, and it is not clear that the Northern District of
Texas is any more convenient than this district.
Regarding witnesses and evidence, Powell is a witness
located in Texas, as is Russell Ramsland (one of
Powell’s experts). Powell’s Mot. at 28. But again, it is
clear that Powell can easily travel to this courthouse,
and other witnesses and evidence are located here: this
is where Powell spoke at the Republican National
Committee press conference, where government and
campaign officials live and work, where some of
Powell’s television interviews were taped, and where
Powell’s attorneys represented Michael Flynn. This
factor weighs against transfer.
As for the relevant public interest considerations,
the Northern District of Texas is no more familiar with
the governing laws in this case and Powell has not
pointed to any related actions in her preferred forum.
There are, of course, related actions in this forum
(Dominion’s suits against Giuliani and Lindell). The
congestion of the relevant court calendars does not
weigh in either direction; while the median time
between filing and trial is faster in the Northern
District of Texas, the median time from filing to
App. 52
disposition is faster here.19 As for the district’s local
interest in deciding local controversies at home, Powell
has not proffered any “local interest” in the Northern
District of Texas. But there is certainly such an
interest in this district, where several of the events
underlying Dominion’s claims occurred. See Stewart v.
Azar, 308 F. Supp. 3d 239, 249 (D.D.C. 2018).
Powell has failed to demonstrate that private or
public interests counsel in favor of transfer to the
Northern District of Texas; she has certainly not done
so by a preponderance of the evidence. The Court
therefore declines to transfer the case against her.
2. Transfer to the District of Minnesota
Like Powell, Lindell argues that the case against
him should be transferred to his home district. The
Court therefore conducts a similar inquiry with respect
to that case and the interests of Minnesota.
Dominion does not dispute that it could have sued
Lindell in Minnesota; but it argues that considerations
of convenience and justice do not support transfer.20
Dominion’s choice of forum is entitled to some
weight because there is a nexus between the District
19
United States District Courts – National Judicial Caseload
Profile, U.S. Courts, https://www.uscourts.gov/sites/default/files/
data_tables/fcms_na_distprofile0930.2020.pdf (last visited Aug. 2,
2021).
20
As the Plaintiffs in the cases are identical, some of the analysis
is the same as that already conducted for Powell’s Motion. The
Court therefore limits its discussion to the ways in which the
inquiries differ.
App. 53
and the events giving rise to Dominion’s claims: this is
where Lindell appeared at White House events and
rallies. But Lindell’s choice of forum (in the place where
he and MyPillow are domiciled) is likewise entitled to
some weight.
The next factor—where the claims arose—provides
little guidance. As a preliminary matter, Lindell
equates the state whose law applies to the claim with
the place where that claim arose. But Dominion’s claim
arose where the claim accrued, not necessarily in the
state whose law applies. See, e.g., Ctr. for Envtl.
Science, Accuracy & Reliability v. Nat’l Park Serv., 75
F. Supp. 3d 353, 357–58 (D.D.C. 2014) (determining
that the claim arose where challenged activity
occurred). And Dominion has alleged that Lindell and
MyPillow acted in this district by sponsoring rallies
and making defamatory statements here. It is true that
some of the relevant decisions might have taken place
in Minnesota; that is presumably where MyPillow
executives made decisions about sponsoring rallies and
from where they issued MyPillow ads. But neither
Lindell nor MyPillow points to specific statements or
decisions made in Minnesota.
The remaining private factors (convenience to the
Parties and witnesses and ease of access to sources of
proof) do not point strongly in any direction, although
they might slightly support transfer. None of the
Parties is based in this district, and some MyPillow
witnesses are presumably located in Minnesota. But
evidence is located in both districts: evidence regarding
MyPillow decision-making will be based in Minnesota,
App. 54
while evidence relating to statements and conduct in
the District of Columbia will be located here.
As for the relevant public interest considerations,
while the District of Minnesota is more familiar with
the state law underlying Dominion’s deceptive trade
practices claim, see Brannen, 403 F. Supp. 2d at 95,
Lindell has failed to show that it will be any more
familiar with the law regarding the defamation claim
because (according to Lindell) that claim will largely
turn on constitutional questions and either federal
court is competent to decide the relevant federal issues,
see Preservation Soc. of Charleston v. U.S. Army Corps
of Eng’rs, 893 F. Supp. 2d 49, 57 (D.D.C. 2012). Lindell
urges the Court to conclude that MyPillow’s own
lawsuit (filed after the case against him here) counsels
in favor of transfer, but that ignores the first-filed rule,
see Holland v. ACL Transp. Servs., LLC, 815 F. Supp.
2d 46, 55 (D.D.C. 2011) (denying motion to transfer, in
part because “the longstanding first-filed rule militates
against transfer, as the first of these two cases was
filed here”), and the other two related lawsuits already
before this Court. The congestion of the relevant court
calendars does not weigh in either direction; while the
median time between filing and trial is faster in the
District of Minnesota, the median time from filing to
disposition is faster here.21 And as for the local interest
in deciding local controversies at home, Minnesota’s
interest in deciding controversies regarding the Lindell
21
United States District Courts – National Judicial Caseload
Profile, U.S. Courts, https://www.uscourts.gov/sites/default/files/
data_tables/fcms_na_distprofile0930.2020.pdf (last visited Aug. 2,
2021).
App. 55
Defendants is outweighed by this district’s interest in
controversies arising from events that occurred here.
See Stewart, 308 F. Supp. at 249.
Lindell has thus failed to demonstrate by a
preponderance of the evidence that transfer is
warranted, and the Court declines to transfer the case
against him.22
VI. Giuliani’s Rule 9 Motion
For his part, Giuliani moves to dismiss the
Complaint against him on very different grounds. See
generally Giuliani’s Mem. Supp. Defs.’ Mot. to Dismiss
(“Giuliani’s Mot.”), ECF No. 26-2. His Motion has three
parts: first, that Dominion is a corporation and
therefore may only recover lost profits; second, that lost
profits are special damages subject to Rule 9(g)’s
heightened pleading requirements (which Dominion
has failed to satisfy); and third, that each individual
corporate entity must plead its own damages amount
(instead of pleading damages as a group).
A. Individualized Pleading
It is easiest to start with Giuliani’s third argument,
which goes to the Court’s subject matter jurisdiction.
Giuliani argues that Dominion’s Complaint should be
dismissed under Rule 12(b)(1) because the three
22
Lindell and MyPillow also argue that they are entitled to
attorneys’ fees under the D.C. Anti-SLAPP Act. MyPillow’s Mot. at
26–27; Lindell’s Mot. at 58. But the special motion to dismiss
provision of that statute does not apply in federal court. Abbas v.
Foreign Policy Grp., 783 F.3d 1328, 1334, 1337 (D.C. Cir. 2015);
Tah, 991 F.3d at 239 (confirming that Abbas remains circuit law).
App. 56
corporate Plaintiffs have failed to plead distinct legal
injuries that are unique to each Plaintiff and therefore
fail to establish Article III standing.23
For a plaintiff to establish standing under Article
III, it must show (among other things) that it has
suffered an “injury in fact” that is concrete and
particularized. TransUnion LLC v. Ramirez, 141 S. Ct.
2190, 2203 (2021). A “particularized” injury is one that
affects the plaintiff in a personal and individual way.
Lujan v. Defs. of Wildlife, 504 U.S. 555, 560 n.1 (1992).
In cases premised on the court’s diversity jurisdiction,
the plaintiff must also satisfy the statute’s (1) complete
diversity and (2) amount in controversy (more than
$75,000) requirements. 28 U.S.C. § 1332. Giuliani does
not seriously dispute that the Plaintiffs have alleged an
injury in fact; nor does he argue that they have failed
to allege complete diversity; nor does he contend that
they have failed to plead over $75,000 in damages.
Instead, Giuliani argues that each Plaintiff must plead
that it suffered more than $75,000 in damages and that
all Plaintiffs have failed to do so because the Complaint
alleges damages amounts only with respect to
“Dominion” (which, for purposes of the Complaint,
collectively refers to all three corporate Plaintiffs).
23
Giuliani also asserts that the Court does not have prudential
standing under a “single business enterprise” theory of recovery.
Giuliani’s Mot. at 8–10. But Dominion does not assert such a
theory; instead, it pleads that each Plaintiff corporation has
suffered damages as a result of Giuliani’s alleged defamation to the
tune of “not less than $651,735,000.” Giuliani Compl., Prayer for
Relief.
App. 57
With respect to suits brought under §1332, “the sum
claimed by the plaintiff controls if the claim is
apparently made in good faith.” St. Paul Mercury
Indem. Co. v. Red Cab Co., 303 U.S. 283, 288 (1938)
(footnote omitted). For the Court to reject Dominion’s
alleged damages, “[i]t must appear to a legal certainty
that the claim is really for less than the jurisdictional
amount.” Id. at 289.
Affording to Dominion reasonable inferences from
its factual allegations, see Settles, 429 F.3d at 1106, the
Complaint alleges that each corporate entity was
independently exposed to “hatred and contempt,”
Giuliani Compl. ¶ 184, and suffered injuries in the
form of stalked and harassed employees, death threats,
expenses “to remedy the defamation and to protect the
lives of its employees,” lost profits, and damage to
reputation, id. ¶ 185. And again drawing reasonable
inferences in Plaintiffs’ favor, see Settles, 429 F.3d at
1106, each corporate entity has pleaded injuries
exceeding $75,000.
At the very least, Plaintiffs allege a total of
$651,735,000 in damages, which obviously means that
at least one Plaintiff allegedly suffered more than
$75,000 in damages. Giuliani Compl., Prayer for Relief.
Thus, even if two of the Dominion Plaintiffs had not
individually pleaded that they meet the amount-incontroversy requirement, the Court could exercise
supplemental jurisdiction over their claims. See Exxon
Mobil Corp. v. Allapattah Services, Inc., 545 U.S. 546,
549 (2005) (“[W]here the other elements of jurisdiction
are present and at least one named plaintiff in the
action satisfies the amount-in-controversy requirement,
App. 58
§ 1367 does authorize supplemental jurisdiction over
the claims of other plaintiffs in the same Article III
case or controversy, even if those claims are for less
than the jurisdictional amount specified in the statute
setting forth the requirements for diversity
jurisdiction.”).
B. Lost Profits
Giuliani also argues that Dominion is required to
(and has not) pleaded lost profits with the specificity
required by Federal Rule of Civil Procedure 9(g).
This argument rests on the premise that Dominion
is required to plead damages for its defamation claim.
Under D.C. law, defamation may be actionable as a
matter of law irrespective of actual harm (“defamation
per se”) or, if not, when the plaintiff pleads special
harm. Franklin v. Pepco Holdings, Inc. (PHI), 875 F.
Supp. 2d 66, 75 (D.D.C. 2012).24 There is no question
that Giuliani’s statements accusing Dominion of
election fraud constitute defamation per se; if Dominion
24
Giuliani argues that Dominion has pleaded that D.C. law applies
to its defamation claim. A better reading of the Complaint is that
Dominion alleges punitive damages may be available under D.C.
law. In any event, the choice-of-law issue is irrelevant at this stage
in the proceedings because New York and Colorado law—the two
other sources of law potentially applicable—also permit recovery
when a statement is per se defamatory or when the plaintiff has
pleaded special harm. Sharratt v. Hickey, 20 A.D.3d 734, 735(Ny.
App. Div. 2005) (“Plaintiffs in a defamation action must prove
special damages, meaning economic or financial loss, unless they
fit within an exception in which damages are presumed, i.e.,
defamation per se.”); Gordon v. Boyles, 99 P.3d 75, 79 (Colo. App.
2004) (“If a libelous communication is defamatory per se, damage
is presumed, and a plaintiff need not plead special damages.”).
App. 59
were an individual, damages would be presumed. See
Grossman v. Goemans, 631 F. Supp. 972, 974 (D.D.C.
1986) (noting that false allegations of criminal conduct
is actionable without proof of special damages).
But Giuliani contends that damages are not
presumed for corporate plaintiffs in the defamation per
se context. For this proposition, he relies on three
cases. The first is Martin-Marietta Corp. v. Evening
Star Newspaper, 417 F. Supp. 947 (D.D.C. 1976), in
which a corporate plaintiff had sued for libel (but not
libel per se) and the court contemplated the standard of
fault that should apply. In particular, Giuliani points
to Martin-Marietta’s explanation that
[t]he law of libel has long reflected the
distinction between corporate and human
plaintiffs by limiting corporate recovery to actual
damages in the form of lost profits. As stated by
a court in this district, “Although a corporation
may maintain an action for libel, it has no
personal reputation and may be libeled only by
imputation about its financial soundness or
business ethics.”
Id. at 955 (quoting Golden Palace, Inc. v. Nat’l
Broadcasting Co., 386 F. Supp. 107, 109 (D.D.C. 1974)).
While Martin-Marietta certainly stated in dicta that a
corporate plaintiff is limited to actual damages in the
defamation context, it did not address whether (let
alone hold that) such a plaintiff must plead damages if
it has alleged defamation per se. The other two cases on
which Giuliani relies are Court of Appeals opinions
citing Martin-Marietta, which similarly do not address
whether (let alone hold that) a corporate plaintiff must
App. 60
plead actual damages if it has alleged defamation per
se. Instead, those cases stand, at most, for the
proposition that a corporate plaintiff’s recovery is
measured in the form of economic loss (which is usually
lost profits). As the Court of Appeals put it:
Corporations are very different [from flesh-andblood humans]. To be sure, corporations may
derive substantial financial value from their
brands’ reputations. But that is precisely the
point: reputation is an asset that companies
cultivate, manage, and monetize. It is not a
quality integral to a company’s emotional wellbeing, and its diminution exacts no psychological
cost. This is why, for example, “[t]he law of libel
has long reflected the distinction between
corporate and human plaintiffs by limiting
corporate recovery to actual damages in the form
of lost profits.”
Kaspersky Lab, Inc. v. United States Dep’t of Homeland
Sec., 909 F.3d 446, 461–62 (D.C. Cir. 2018) (quoting
Martin-Marietta, 417 F. Supp. at 955).
The Court is not aware of any case requiring a
corporate plaintiff alleging defamation per se to plead
damages specially, and by its terms Rule 9(g) does not
include such a requirement. In any event, Dominion
has pleaded lost profits with the particularity required
by Rule 9(g). Under that rule, a defamation plaintiff
must set “forth the precise nature of [its] losses as well
as the way in which the special damages resulted from
the allegedly false publication.” Schoen v. Wash. Post,
246 F.2d 670, 672 (D.C. Cir. 1957). Here, Dominion
alleges that Giuliani made defamatory statements
App. 61
about its involvement in the 2020 election, that the
people who believed those statements made threats to
Dominion employees and board members, and that
those threats required Dominion to spend more than
$565,000 on private security to protect its employees.
Giuliani Compl. ¶ 126. Although Giuliani contends that
Dominion may satisfy Rule 9(g) only by “identifying
either particular customers whose business has been
lost or facts showing an established business and the
amount of sales before and after the disparaging
publication, along with evidence of causation,”
Browning v. Clinton, 292 F.3d 235, 245 (D.C. Cir.
2002), the cases he cites merely provide examples of
how a plaintiff may specifically state pecuniary harm
and demonstrate that those harms resulted from
defendant’s conduct. In its Complaint against Giuliani,
Dominion alleges that it suffered economic harm in the
form of additional expenses that it would not have
incurred if not for Giuliani’s alleged defamation, as
well as the loss of future contracts. See also Giuliani
Compl. ¶¶ 128 (noting that Dominion has incurred
$1,170,000 in expenses to mitigate harm to reputation
and business); id. ¶ 135 (projecting lost profits of $200
million over the next five years when reduced to
present value).25 Dominion has also alleged how those
25
At this stage in the proceedings, it is reasonable to infer that
Dominion’s lost future contracts include those in states that
currently contract with Dominion. See Giuliani Compl. ¶ 135
(“[T]he elected officials who are Dominion’s actual and potential
customers have received emails, letters, and calls from their
constituents demanding that they avoid contracting with Dominion
or using Dominion machines. As a result, elected officials, insurers,
and potential investors have been deterred from dealing with
Dominion, putting Dominion’s contracts in more than two dozen
App. 62
losses resulted from Giuliani’s defamatory statements.
Id. ¶¶ 106–32. The Complaint therefore alleges lost
profits with adequate specificity and survives Giuliani’s
Motion to Dismiss.
VII. Conclusion
For the foregoing reasons, the Court denies
Defendants’ Motions to Dismiss in full. An Order will
be entered contemporaneously with this Memorandum
Opinion.
DATE: August 11, 2021
/s/ Carl J. Nichols
CARL J. NICHOLS
United States District Judge
states and hundreds of counties and municipalities in jeopardy and
significantly hampering Dominion’s ability to win new contracts.”).
App. 63
APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 1:21-cv-00445 (CJN)
[Filed: August 11, 2021]
____________________________________
US DOMINION, INC., et al.,
)
)
Plaintiffs,
)
)
v.
)
)
MY PILLOW, INC., et al.,
)
)
Defendants.
)
____________________________________)
ORDER
For the reasons stated in the accompanying
Memorandum Opinion, it is hereby
ORDERED that Defendant My Pillow, Inc.’s
Motion to Dismiss, ECF No. 30, is DENIED; it is
further
ORDERED that Defendant Lindell’s Motion to
Dismiss, ECF No. 34, is DENIED.
DATE: August 11, 2021
App. 64
/s/ Carl J. Nichols
CARL J. NICHOLS
United States District Judge
App. 65
APPENDIX D
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
Civil Action No. 1:21-cv-0445 (CJN)
[Filed: March 1, 2022]
____________________________________
US DOMINION, INC., et al.,
)
)
Plaintiffs,
)
)
v.
)
)
MYPILLOW, INC., et al.,
)
)
Defendants.
)
____________________________________)
ORDER
US Dominion, Inc. and other related corporate
entities sued My Pillow, Inc. and Michael J. Lindell,
among others, on the grounds that those Defendants
defamed the Plaintiffs based on statements made in
connection with the 2020 presidential election. See
Memorandum Opinion, ECF No. 54. Defendants moved
to dismiss all of Dominion’s claims, see My Pillow, Inc.’s
Motion to Dismiss, ECF No. 30; see also Michael J.
Lindell’s Motion to Dismiss, ECF No. 34, and for the
reasons explained in the Court’s August 11, 2021
Memorandum Opinion, the Court denied those
App. 66
motions. See Order, ECF No. 53; see also Memorandum
Opinion, ECF No. 54. Days later, My Pillow moved to
modify the Court’s Order and its Memorandum
Opinion as well as to certify two questions for
interlocutory appeal. See Defs.’s Mot. to Modify and for
Interlocutory Appeal (“Defs.’s Mot.”), ECF No. 58.
Lindell joins My Pillow’s Motion. See Lindell’s Notice of
Joinder, ECF No. 77. The Court denies the Motion for
the reasons that follow.1
28 U.S.C. § 1292(b) authorizes a district court to
certify a nonfinal order for interlocutory appeal in
certain circumstances. The statute states in relevant
part that:
(b) When a district judge, in making in a civil
action an order not otherwise appealable under
this section, shall be of the opinion that such
order involves a controlling question of law as to
which there is substantial ground for difference
of opinion and that an immediate appeal from
the order may materially advance the ultimate
termination of the litigation, he shall so state in
writing in such order.
The party seeking certification must demonstrate that
the order “[1] involves a controlling question of law
1
Less than a month after the Court denied Defendants’ motion to
dismiss, and less than two weeks after Defendants filed the motion
to certify both questions for appeal, Defendants also filed a notice
of appeal from the same order. See Notice of Appeal, ECF No. 64.
The Court of Appeals has since dismissed the appeal and the
mandate has been returned to this Court. See Mandate Issued to
District Court in US Dominion, Inc., et al. v. My Pillow, Inc., et al.,
21- 7103 (March 1, 2022).
App. 67
[2] as to which there is substantial ground for
difference of opinion and that [3] an immediate appeal
from the order may materially advance the ultimate
termination of the litigation.” Citizens for Resp. &
Ethics in Washington v. Am. Action Network, 415 F.
Supp. 3d 143, 144–45 (D.D.C. 2019) (quotation
omitted); Swint v. Chambers Cty. Comm’n, 514 U.S. 35,
47 (1995) (unpacking the history of 28 U.S.C.
§ 1292(b)). All three criteria must be satisfied, see
Azima v. RAK Inv. Auth., 325 F. Supp. 3d 30, 34
(D.D.C. 2018), but even then, a court maintains the
discretion to decline certification because a piecemeal
appeal “undermines efficient judicial administration
and encroaches upon the prerogatives of district court
judges, who play a special role in managing ongoing
litigation,” Mohawk Indus., Inc. v. Carpenter, 558 U.S.
100, 106 (2009) (quotation omitted).
Defendants request that the Court modify its
August 11, 2021 Order and Memorandum Opinion to
include two questions for certification:
(1) “Whether a defamation complaint by a public
official against critics of its official conduct must
be dismissed at the pleading stage under New
York Times v. Sullivan if the complaint (a) fails
to allege any direct evidence of a statement or
act that the defendant knew was false, and
(b) relies only on circumstantial inferences to
prove reckless disregard; and
(2) whether, under New York Times v. Sullivan,
a court may deny a motion to dismiss a
defamation complaint by a public official against
critics of its official conduct without taking
App. 68
judicial notice of material establishing a robust
public debate on the issues set forth in the
complaint.” Defs.’s Mot. at 5.
The Court declines to certify both questions.
As to the first, My Pillow has not demonstrated that
there is a substantial ground for difference of opinion
regarding whether a public official must proffer “direct”
evidence, and not rely just on circumstantial evidence,
in seeking to prove that a speaker acted with actual
malice. The request to impose a higher burden of proof
on public-official plaintiffs—such that direct evidence
is necessary and circumstantial evidence alone is
insufficient to plausibly allege actual malice—runs
headfirst into binding precedent. It is well established
that circumstantial evidence can prove a defendant’s
state of mind in the defamation context, see Herbert v.
Lando, 441 U.S. 153, 165 (1979); Jankovic v. Int’l Crisis
Grp., 822 F.3d 576, 589 (D.C. Cir. 2016) (quotation
omitted) (“The plaintiff can prove the defendant’s
subjective state of mind through the cumulation of
circumstantial evidence, as well as through direct
evidence.”), and Defendants have not pointed to (and
the Court is not otherwise aware of) a decision
suggesting that a different rule applies where the
plaintiff is a public official. Indeed, the cases are legion
in which public-official plaintiffs have been permitted
to pursue claims of malice based on circumstantial
evidence. See, e.g., Tah v. Glob. Witness Publ’g, Inc.,
413 F. Supp. 3d 1, 12 (D.D.C. 2019), aff’d, 991 F.3d 231
(D.C. Cir. 2021); Fairfax v. CBS Corp., 2 F.4th 286, 293
(4th Cir. 2021).
App. 69
The Court declines to certify the first question for
an additional reason: it does not involve a “controlling”
question of law. See Judicial Watch, Inc. v. Nat’l
Energy Policy Dev. Group, 233 F. Supp. 2d 16, 19
(D.D.C. 2002) (quotation omitted) (“[A] controlling
question of law is one that would require reversal if
decided incorrectly or that could materially affect the
course of litigation with resulting savings of the court’s
or the parties’ resources.”). The Court assumed without
deciding that Dominion is a public official, and even if
the rule proposed by My Pillow were adopted for
certain public officials, it is not clear that it would
apply here. Moreover, Dominion relies on exhibits that
may in fact establish direct evidence of knowledge of
falsity or reckless disregard of the truth. See Pls.’s
Mem. in Opp’n, ECF No. 72 at 12. All of this means
litigation would continue apace even in the unlikely
event the Court of Appeals resolved the first question
in the Defendants’ favor.
As to the second question, My Pillow has not made
a serious argument that a court is required, at the
motion to dismiss stage in a defamation case, to
consider and weigh factual materials outside the
pleadings and relied on by the defendant. That is
obviously not the way it typically works, see Menoken
v. Dhillon, 975 F.3d 1, 8 (D.C. Cir. 2020) (concluding
that at the motion to dismiss stage, “the district court
erred by relying on two documents outside the
complaint”), and My Pillow has not pointed to (and
again the Court is not aware of) any decision
suggesting that a different rule should apply in the
defamation context.
App. 70
Nor does this second question necessarily involve a
controlling question of law. Defendants presume that
had the Court taken judicial notice of certain exhibits,
the Court would have arrived at a different outcome
because the allegedly defamatory statements would
have been deemed plausible, see Defs.’s Mot. at 7, and
thus, as a matter of law, Dominion could not prove
knowledge of falsity or reckless disregard for the truth.
But that is certainly not an obvious conclusion, and the
Court will reserve “weighing and considering the facts
relied upon by each party” until the summary judgment
stage. In re Domestic Airline Travel Antitrust Litig.,
221 F. Supp. 3d 46, 71–72 (D.D.C. 2016).
One last note. Even if the Court concluded that
Defendants satisfied all three prongs on both questions
(which they have not), the Court would exercise its
discretion and decline to certify under 28 U.S.C.
§ 1292(b) either question for interlocutory appeal. See
Ryan, Beck & Co., LLC v. Fakih, 275 F. Supp. 2d 393,
396 (E.D.N.Y. 2003) (quotation omitted) (noting that
“district court judges retain unfettered discretion to
deny certification of an order for interlocutory appeal
even where the three legislative criteria of § 1292(b)
appear to be met”); Villarreal v. Caremark LLC, 85 F.
Supp. 3d 1063, 1068 (D. Ariz. 2015). It is for good
reason that “interlocutory appeals are rarely allowed.”
Nat’l Cmty. Reinvestment Coal. v. Accredited Home
Lenders Holding Co., 597 F. Supp. 2d 120, 122 (D.D.C.
2009) (quotation omitted). Only “exceptional
circumstances justify a departure from the basic policy
of postponing appellate review until after the entry of
final judgment.” Id. (quotation omitted). The questions
raised for certification here are far from exceptional.
App. 71
Plus, additional fact development would aid in the
resolution of the fact-based nature of the proposed
certification questions.
In conclusion, and upon review of Defendants’
Motion for an Interlocutory Appeal under 28 U.S.C.
§ 1292(b), ECF No. 58, it is ORDERED that
Defendants’ Motion is DENIED.
It is so ORDERED.
DATE: March 1, 2022
/s/ Carl J. Nichols
CARL J. NICHOLS
United States District Judge
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