Sanchez-Sifonte et al v. Fonseca et al

Filing 156

OPINION AND ORDER re: 154 Memorandum of Law in Compliance. For the foregoing reasons, the Court DISMISSES WITH PREJUDICE Counts Nine, Thirteen, Fourteen, Fifteen, Eighteen, and Twenty and DENIES Plaintiffs' request to amend the SAC. Signed by Judge Raul M. Arias-Marxuach on 11/26/2024. (nat)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF PUERTO RICO
ELIAS SÁNCHEZ-SIFONTE et al.,
Plaintiffs,
CIVIL NO. 22-1444 (RAM)

v.
JOSUE FONSECA, et al.

OPINION AND ORDER
RAÚL M. ARIAS-MARXUACH, United States District Judge
Pending
Sifonte

before

the

Court

is

Plaintiffs

Mr.

Elías

Sánchez-

-

Mrs.

Memorandum of Law
Compliance

Memorandum

in

Compliance

in

Memorandum

No. 154). The Court concludes that while Mr. Sánchez has not shown
the actual malice necessary for six of his defamation and libel
counts to avoid dismissal, Mrs. Rodríguez has shown the actual
malice necessary for her defamation count to continue. For the
reasons set forth below, the Court DISMISSES WITH PREJUDICE Counts
Nine, Thirteen, Fourteen, Fifteen, Eighteen, and Twenty and DENIES
SAC.

2
I.

FACTUAL BACKGROUND

Plaintiffs are former residents of Puerto Rico who were
embroiled
involving former Governor of Puerto Rico Ricardo Rosselló. As
explained in the Second Amended Complaint

SAC

Mr. Sánchez was

an attorney, consultant, and lobbyist in Puerto Rico who also
served as campaign manager and transition team chairman for thenGovernor Rosselló. (Docket No. 130 ¶ 8). Mrs. Rodríguez is Mr.
Id. ¶ 9.
During the summer of 2019, hundreds of pages of private group
chat

messages

between

the

Governor

and

other

individuals,

including Mr. Sánchez, were leaked to the public. (Docket No. 73
at 2, 11). The messages caused major protests in Puerto Rico and
culmi

Id. at 2. Most of the

stories at issue in this case were published during that summer.
Plaintiffs claim to have suffered economic, emotional, and
reputational

damages

because

various

media

organizations

and

reporters published defamatory statements about them. (Docket No.
130 ¶¶ 5-6). Accordingly, Plaintiffs filed the present lawsuit
against
Television, Inc.
Josue

,
,

Jagual

Media

LLC

(Docket No. 130).

3
Plaintiffs initially asserted twenty counts of defamation, of
which eighteen have survived in whole or in part.1 (Docket No. 150
at 2, 37-39). Plaintiffs seek $5 million in compensatory damages
for

the

alleged

harm

to

their

reputations,

$30

million

in

consequential damages for the alleged harm to their business and
property, and punitive damages. See id. at 2.
II.

PROCEDURAL BACKGROUND

Plaintiffs originally filed this action in Florida state
court before Defendants removed the action to the United States
District Court for the Southern District of Florida based on
diversity of citizenship. (Docket Nos. 1 and 1-2). The case was
transferred to this District on September 13, 2021. (Docket Nos.
105; 108 and 110). Plaintiffs filed the SAC on November 9, 2022.
(Docket No. 130). On November 22, 2022, Defendants filed a Motion
to Dismiss against the SAC on various procedural and substantive
grounds. (Docket No. 133).
On September 6, 2023, the Court granted in part and denied in
Motion to Dismiss. (Docket No. 150). Counts Ten
and Eleven were dismissed in their entirety while the remaining
eighteen Counts continued. Id. at 37-39. That same day, the Court
issued a show cause order to Plaintiffs as to why Counts Two, Nine,
Thirteen, Fourteen, Fifteen, Eighteen, and Twenty should not be
Each count corresponds to a single publication, except for Count One, which
involves a July 16, 2019 broadcast that also replayed a segment from an April
16, 2019 broadcast. (Docket No. 150 at 2).
1

4
dismissed for failure to plead facts showing Defendants acted with
actual malice. (Docket No. 151). This order forms the basis for
the Memorandum in Compliance, which Plaintiffs filed on September
20, 2023. (Docket No. 154). Defendants filed a response on October
2, 2023. (Docket No. 155).
III. LEGAL STANDARD
A. Applicable Law
Federal courts
substantive

law

apply

when

federal

subject-matter

procedural

law

jurisdiction

is

and

state

based

on

diversity of citizenship. See Erie R. Co. v. Tompkins, 304 U.S.
64, 77-78 (1938).
transferee district court must be obligated to apply the state law

AER Advisors, Inc. v. Fidelity Brokerage Servs., LLC, 921 F.3d
282, 289 (1st Cir. 2019) (quoting Van Dusen v. Barrack, 376 U.S.
612, 639 (1964)). Here, the Court sits in diversity jurisdiction
and

.2 (Docket Nos.

105 at 35 and 130 ¶ 17).
B. Dismissal Under 12(b)(6)
Fed. R. Civ. P. 12(b)(6) allows a complaint to be dismissed

To determine if a complaint has stated a plausible, non-speculative
As noted previously by the Court, neither party has raised a conflict of law
issue. (Docket No. 150 at 9 n.6). Therefore, the Court continues to apply
Florida substantive law.
2

5
all the facts
alleged [in the complaint], when viewed in the light most favorable

Ocasio-Hernandez v. Fortuno-Burset, 640 F.3d 1, 14
(1st Cir. 2011) (emphasis in original). This requires treating
Nieto-Vicenty v. Valledor, 984 F.Supp.2d 17, 20 (D.P.R. 2013);
Schatz v. Republican State Leadership Comm., 669 F.3d 50, 55 (1st
-pled (i.e.,
non-conclusory,

non-speculative)

facts

as

true,

drawing

all

conclusions, and a formulaic recitation of the elements of a cause
Bell Atl. Corp. et al. v. Twombly et al.,
550 U.S. 544, 555 (2007) (citation omitted). Further, a complaint

Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (internal quotation marks and citation omitted). Courts
ma

Schatz, 669 F.3d

6
at 55 56 (quoting Arturet Vélez v. R.J. Reynolds Tobacco Co., 429
F.3d 10, 13 n.2 (1st Cir. 2005)).
C. Florida Defamation Law
Defamation, including libel and slander, is defined as
false and unprivileged publication of unfounded statements that
Harris v. Plapp, 386 So.3d 185, 189 (Fla. Dist.
Ct. App. 2022) (quoting Delacruz v. Peninsula State Bank, 221 So.2d
772, 775 (Fla. Dist. Ct. App. 1969)). The Florida Supreme Court
has

held

that

a

successful

defamation

claim

requires:

publication; (2) falsity; (3) actor must act with knowledge or
reckless disregard as to the falsity on a matter concerning a
public official, or at least negligently on a matter concerning a
private person; (4) actual damages; and (5) statement must be
Jews for Jesus, Inc. v. Rapp, 997 So.2d 1098, 1106
(Fla. 2008) (citation omitted); see also Turner v. Wells, 879 F.3d
1254, 1261 (11th Cir. 2018).
i.

Defamation by implication

Florida has recognized defamation by implication, a subtype
of

defamation

that

allows defendants to be found liable

for

defamation despite using true facts. See Jews for Jesus, Inc., 997
So.2d at 1100, 1108 (noting defamation by implication does not
extend to opinions); Readon v. WPLG, LLC, 317 So.3d 1229, 1237
(Fla. Dist. Ct. App. 2021) (citations omitted). Through defamation
by implication, a plaintiff can succeed on a defamation claim when

7
true statements...conveyed in such a
way as to create a false impression
implication by omitting facts

creates a defamatory

Jews for Jesus, Inc., 997 So.2d at

1106, 1108 (citation omitted). This false impression or inference,
not the underlying facts, forms the basis for the defamation claim.
Id. at 1108 n.13. Defamation by implication claims are treated the
same as claims brought under general defamation law. Id. at 1008
(citation omitted).
ii.

Distinguishing public and private plaintiffs

a
question of law for the Court because it entails matters of a
constitutional dimension. See Pendleton v. City of Haverhill, 156
F.3d 57, 67-68 (1st Cir. 1998).
evaluated differently if the plaintiff is a private figure rather
than a public figure. See Mile Marker, Inc. v. Petersen Pub., LLC,
811 So.2d 841, 845 (Fla. Dist. Ct. App. 2002). The requirements
for defamation of a private individual are relatively relaxed, as
a successful claim need only show that the
Jews for Jesus, Inc., 997 So.2d at 1106.
A public plaintiff is either a general public or limited
public figure. A

figure. Mile Marker, Inc., 811 So.2d at 845 (citing Gertz v. Robert

8
Welch, Inc., 418 U.S. 323, 342 (1974)). A limited public figure is

particular public controversy and thereby becomes a public figure
Gertz, 418 U.S. at 351.
To evaluate if a plaintiff is a limited public figure rather
than a private plaintiff, a court must: (i)
and (ii)
plaintiff

played

a

sufficiently

central

role

in

the

instant

controversy to be considered a public figure for purposes of that
Young v. Kopchak, 368 So.3d 1001, 1006 (Fla. Dist.
Ct. App. 2023) (citation omitted); see Readon, 317 So.3d at 1234
n.1.
Young,
368 So.3d at 1006 (citation omitted). To determine the existence
of a public controversy, a court should as
person

would

have

expected

persons

beyond

the

immediate

participants in the dispute to feel the impact of its resolution.
If the issue was being debated publicly and if it had foreseeable
and

substantial

ramifications

for

non-participants,

it

was

a

Id. (quoting Della-Donna v. Gore Newspapers
Co.,

489

So.2d

72,

76

(Fla.

Dist.

Ct.

omitted). Courts should also consider the

App.

1986)

(citation

level of media access

enjoyed by a particular claimant...as part of the public figure
calculus

Mile Marker, Inc., 811 So.2d at 846.

9
Public figure plaintiffs face a higher bar then private

safeguards publishers from defamation suits brought by public
figure

Readon, 317

So.3d at 1235 (citation omitted). This heightened standard exists
because, unlike private individuals, public plaintiffs have the
by
Gertz, 418
U.S. at 344.
iii. Actual malice
For actual malice,

a public figure plaintiff must establish

that the disseminator of the information either knew the alleged
defamatory statements were false, or published them with reckless
disregard

despite

awareness

of

their

probable

falsity.

Mile

Marker, Inc., 811 So.2d at 845; see also N.Y. Times v. Sullivan,
376 U.S. 254, 279-80 (1964); Readon, 317 So.3d at 1235 (quoting
Don King Prods., Inc. v. Walt Disney Co., 40 So.3d 40, 43 (Fla.
Dist. Ct. App. 2010)
and is defined as
false or reckless disregard of whether it was false or not
(citation omitted)); Harte-Hanks Comm

s, Inc. v. Connaughton,

public figure plaintiff must prove
more than an extreme departure from professional standards

10
Under Florida law, actual malice poses an exacting standard
for public figure plaintiffs.

The failure to investigate, without
Readon, 317 So.3d at

1236 (citation omitted); see also

, 329

So.3d 190, 198 (Fla

(citation omitted). A defendant does not need to mitigate

any

laintiff or search for someone
to defend the plaintiff. Don King Prods., 40 So.3d at 45 (citation
omitted). Additionally, the existence of ill will or motive cannot
be the only proof of actual malice. See id. at 44 (noting, however,
ill will or motive can be combined with other evidence to prove
actual malice

An intention to portray a public figure in a

negative light, even when motivated by ill will or evil intent, is
not sufficient to show actual malice unless the publisher intended
to inflict harm through knowing or reckless falsehood

Id. at 45

(citation omitted).
Failing

to retract or correct a falsehood does not prove
Hunt v. Liberty Lobby, 720 F.2d 631, 643 n.19 (11th

Cir. 1983) (citation omitted); see also Dockery v. Fla. Democratic
Party

malice) (citations omitted).
subject of an article before publication does not constitute actual

11

Klayman v. City Pages, 2015 WL 1546173, at *16 (M.D.
Fla. 2015) (citation omitted).
IV.

DISCUSSION

The Court turns to
private figures before determining whether Plaintiffs have pleaded
adequate cause for their defamation claims under Florida law. The
Court does not
its show cause order. (Docket No. 151).
A. Categorizing Plaintiffs as Private or Public Figures
i. Elías Sánchez-Sifonte
The Court finds that Mr. Sánchez is a public figure because
of his professional and political activities, particularly as no
party contests that he qualifies as a public figure. (Docket Nos.
130 ¶ 8; 154 at 4 and 155 at 4). Consequently, he must plead facts
alleging the existence of actual malice by the Defendants to
prevail on his defamation claims. See Readon, 317 So.3d at 1234.
As Counts Nine, Thirteen, Fourteen, Fifteen, Eighteen and Twenty
all involve defamation claims pertaining to Mr. Sánchez, the Court
will evaluate these Counts under an actual malice standard. (Docket
No. 155 at 4).
ii. Valerie Rodríguez-Erazo
The Court turns to Mrs. Rodríguez. Unlike her husband, she is
not a general public figure. Mrs. Rodríguez

12
aide to the
2010,

but

Plaintiffs

assert this role did not involve media

exposure or grant Mrs. Rodríguez any political power or influence
that would justify labeling her a general public figure. (Docket
No. 130 ¶ 9). She has not held the sort of employment that would
Gertz, 418 U.S. at
342. Cf Demby v. English, 667 So.2d 350, 354 (Fla. Dist. Ct. App.

and exercising independent
and supervisory authority); Finkel v. Sun Tattler Co., Inc., 348
appellant is a public
official or public figure by virtue of his former status as city
attorney and his current activities relating thereto
The Court next considers whether Mrs. Rodríguez is a limited
public figure by determining if
and, if so, whether
role

to become a limited public figure. Young, 368 So.3d at 1006.

The Court concludes a public controversy exists. Since 2011, Mrs.
Rodríguez

133(a)
a
namely those working in real estate or construction, would be
activities. Mile Marker, Inc.,

13
811 So.2d at 845. It is possible that different segments of society
could be impacted by and have contrasting views on Planning Board
activities. See Young, 368 So.3d at 1006 (citations omitted).
Furthermore, Defendants note
involve the allocation and use of government funds, which is an
ongoing matter of public interest. (Docket No. 155 at 6).
Mrs. Rodríguez has arguably
role in the instant controversy

become a limited public figure

on matters relating to her work in code enforcement with the
Planning Board. Young, 368 So.3d at 1006 (citation omitted); see
Mile Marker, Inc., 811 So.2d at 846. She has provided legal
services to the Planning Board since 2011. (Docket No. 130 ¶
133(a)). Although she does not appear to have deliberately sought
out media attention for her work, her professional service proposal
was

aired

on

a

broadcast

by

Defendants,

albeit

blurred

and

purportedly misquoted. See Mile Marker, Inc., 811 So.2d at 846;
(Docket No. 130 ¶ 42). Even if done unintentionally, Mrs. Rodríguez
a limited public figure for matters arising out
of her job with the Planning Board. Gertz, 418 U.S. at 351.
Therefore, Mrs. Rodríguez can be considered a limited public figure
for controversies related to her work at the Planning Board.

14
B. Presence of Negligence and Actual Malice
i.
For Counts Nine, Thirteen, Fourteen, Fifteen, and Eighteen,
Plaintiffs argue that context is key in determining whether the
actual malice standard is met. (Docket No. 154 at 5). However,
Plaintiffs do not cite, and the Court does not find, any binding
legal authority in support of this argument. Although a defamatory
statement

can

be

considered

in

the

larger

context

of

the

publication it appears in, Plaintiffs have not presented any
sources showing that multiple separate counts of defamation must
be considered together for purposes of Florida defamation law. See
Byrd v. Hustler Mag., Inc., 433 So.2d 593, 595 (Fla. Dist. Ct.
a publication must be considered in its totality
Furthermore,

as

argued

by

Defendants,

following

.

Plaint

directions would result in the survival of one defamation count
precluding dismissal of all other defamation counts for a lack of
actual malice. (Docket No. 155 at 15).
Plaintiffs also argue that actual malice can be proven through
circumstantial

ev

plaintiff. (Docket No. 154 at 10-11). These assertions are largely
supported by citations to court decisions from other states that
are not supported by (and indeed, often run contradictory to)
applicable Florida case law. Id. As discussed below, except for

15
Count Two, the Court finds Plaintiffs have failed to show the
actual malice necessary for these counts to survive dismissal.
ii.

Count Two

Count Two is for defamation and was brought by Mrs. Rodríguez
over

statements

purportedly

made

implies

in
Mrs.

an

October

Rodríguez

8,

2019

engaged

broadcast
in

corrupt

that
and

unethical behavior while working with the Puerto Rico Planning
Board. (Docket No. 130 ¶¶ 46, 131, 133). As described in the SAC,
during the broadcast a journalist identified Mrs. Rodríguez as Mr.
Sánchez
zoning regula

Id. ¶ 41. The journalist

and a show guest then discussed the supposed modification of zoning

as privatized and modified by
Id. ¶ 44. The broadcast also displayed
Mrs.

for certain

Rodríguez

Id. ¶ 42.

Plaintiffs claim that Defendants3: (i) did not provide sources
showing Mrs. Rodríguez was involved in zoning map changes; (ii)
did not give Mrs. Rodríguez the opportunity to refute statements

3

Unless otherwise stated, all Defendants are parties to a count.

16
made in the relevant broadcast; and (iii) continued to imply Mrs.
Rodríguez acted inappropriately after the president of the Puerto
Rico Planning Board denied that Mrs. Rodríguez had participated in
any zoning map changes. (Docket No. 154 at 3).
Assuming that Mrs. Rodríguez should be categorized as a
limited public figure under Count Two, Plaintiffs have plausibly
alleged

actual

malice.

Taking

-conclusory

factual

, the Court finds it plausible that
Defendants acted with actual malice in implying Mrs. Rodríguez
tailored zoning maps to benefit her clients. Nieto-Vicenty, 984
F.Supp.2d at 20; see Schatz, 669 F.3d 40; Jews for Jesus, Inc.,
997 So.2d at 1106; (Docket Nos. 130 ¶ 41 and 154 at 13-14).
Notably, Plaintiffs assert in the SAC that the president of
the

Puerto

Rico

journalist who

Planning

hosted

Board

was

interviewed

by

the

same

the October 8, 2019 broadcast and

had

Mrs. Rodríguez was not
involved in editing the zoning maps. (Docket Nos. 130 ¶ 41 and 154
at 13). Mrs. Rodríguez
zoning, supporting the Planning Board president

claims that Mrs.

Rodríguez never edited any Puerto Rican zoning maps. (Docket No.
130

¶

133(b)).

statements to the journalist, it is plausible that Defendants knew
their statements about Mrs. Rodríguez

17
Board were false or acted with reckless disregard as to their
falsity. See Mile Marker, Inc., 811 So.2d at 845. Count Two thus
survives dismissal under Fed. R. Civ. P. 12(b)(6).
ii.

Count Nine

Count Nine is for defamation and was brought by Mr. Sánchez
against Mr. Fonseca, Telemundo PR, NBC, Jagual, and TNG over
statements made in a July 12, 2019 broadcast. (Docket No. 130 at
92). The broadcast suggested Mr. Sánchez was improperly appointed
to then-Governor Rosselló

he

could use information gained in his professional capacity to
benefit his clients. Id. ¶ 172.
During

the

broadcast,

Mr.

Fonseca

directed

a

series

of

questions about Mr. Sánchez towards then-Governor Rosselló. Id. ¶
70.

Questions

included:

y

do

you

protect

so

much

Sánchez?

Elías
Elías

was continually calling them pushing contracts, did you arrest
Elías Sánchez

Mr. Governor, when employees and bosses and

members of your cabinet repeatedly warned you of questionable acts
by Elías Sánchez, did you stop him?

Id. ¶ 70(a)-(b). In a longer

segment of the broadcast, Mr. Fonseca stated:
Mr. Governor, it was you...who appointed Elías
Sánchez as your delegate to the board and
president
of
the
government
transition
committee,
that
is,
you gave him the
mechanisms to to [sic] find out about all the
contracts,
all
the
purchases,
all
the
computers, all the software that was going to

18
be bought, all from Elías Sánchez...And after
that knowing that at six months he would
become a lobbyist and call the heads of the
agency to push contracts in his interests.
Id. ¶ 70(c) (emphasis in original). While speaking, Mr. Fonseca

Id. ¶ 70.
Plaintiffs assert that Mr. Fonseca erred by referring to Mr.
Sánchez

as

president

of

the

government

transition

committee

because while Mr. Sánchez was chairman of the committee, another
individual held the primary leadership role of executive director.
Id. ¶ 172(a). Plaintiffs also claim Mr. Fonseca omitted information
that would have cast Mr. Sánchez in a more favorable light and
clarified the actual nature of his work with the government. Id.
¶ 172(b).
Plaintiffs fail to provide facts that plausibly satisfy the
actual malice threshold under Florida law. Id. ¶¶ 70-71; 170-74.
Mr. Fonseca may have made unflattering and inappropriate comments
directed at Mr. Sánchez, but Plaintiffs do not allege additional
facts

that

allege

Defendants

either:

(i)

knew

the

allegedly

defamatory statements were false; or (ii) published the statements
e
Mile Marker, Inc., 811 So.2d at 845.
Even if Defendants failed to present sufficient sources or
give Mr. Sánchez the opportunity to refute the contents of the

19
broadcast, actual malice requires more. See Readon, 3137 So.3d at
1236 (failure to investigate does not single-handedly prove actual
malice); Don King Prods., 40 So.3d at 45 (defendant does not need
to mitigate statements made against plaintiff); Klayman, 2015 WL
1546173 at *16; Hunt, 720 F.2d at 643 n.19. Viewing the SAC
allegations in the light most favorable to Plaintiffs and assuming
that Defendants failed to adequately investigate the underlying
facts of the July 12, 2019 broadcast, the SAC still does not
plausibly plead that Defendants acted with actual malice. See Mile
Marker, Inc., 811 So.2d at 845; Ocasio-Hernandez, 640 F.3d at 14;
(Docket No. 130 ¶¶ 70-71, 170-74); Fed. R. Civ. P. 12(b)(6).
In essence, Count Nine
claiming that Defendants committed defamation but lacks the nonconclusory factual allegations necessary to survive dismissal for
failure to state a claim upon which relief can be granted. Twombly,
550 U.S. at 555; see Nieto-Vicenty, 984 F.Supp.2d at 20. Given the
failure to plead an adequate factual backing, the Court finds that
Plaintiffs have not stated a plausible claim for relief to survive
dismissal under Fed. R. Civ. P. 12(b)(6).
iii. Count Thirteen
Count Thirteen is for defamation and was brought by Mr.
Sánchez over a July 18, 2019 broadcast that stated Mr. Sánchez
untimely filed certain financial disclosures and engaged in a payfor-play scheme by employing Governor Rosselló during his campaign

20
for

governor

in

return

for

future

Rosselló
comments, th

benefits

under

Governor

¶¶ 83, 87). Among other
Elías Sánchez paid the governor

his salary [while Governor Rosselló was campaigning]...and then
Elías came and orchestrated a whole system to enrich himself
for the record, this is not an opinion, this is facts...Can it be
disputed that Elías Sánchez was the employer of Ricardo Rossello
and that Ricardo Rossello later allowed Elías Sánchez to enrich
himself without restraint?

Id. ¶ 83(a)-(b).

Plaintiffs assert that Mr. Sánchez had filed his financial
disclosures with the Financial Oversight and Management Board
(FOMB)

that his publicly available

an employment agreement of the type alleged in the July 19, 2019
broadcast. Id. ¶ 216(a). Mr. Sánchez
require or include information about payments to employees in the
six years prior to 2019. Id. However, Plaintiffs acknowledge
Governor Rosselló was employed by Mr. Sánchez
than six months in 2012 and received a salary of $5,000 per month.
Id. ¶ 216(c).
Plaintiffs fail to provide facts that could plausibly satisfy
the actual malice threshold under Florida law. Id. ¶¶ 83, 87, 216.
Although a better investigation by Defendants could have revealed
factual

21

Readon, 317 So.3d at 1236. Plaintiffs complain that Defendants
failed to provide sources for their claims or give Mr. Sánchez the
opportunity to refute them. (Docket No. 154 at 16). However, a

not singlehandedly prove actual malice. See Klayman, 2015 WL
1546173 at *16. Plaintiffs have not plausibly alleged facts that
Defendants either: (i) knew the allegedly defamatory statements

Mile
Marker, Inc., 811 So.2d at 845.
The Court finds that Count Thirteen lacks plausible grounds
-conclusory factual allegations

Nieto-Vicenty, 984 F.Supp.2d at 20; see Schatz,
669 F.3d 40. Simply put, Plaintiffs have not alleged sufficient
facts

indicating

Defendants

acted

with

actual

malice.

While

may not reflect a high degree of journalistic
integrity or good will towards Mr. Sánchez, Plaintiffs have not
alleged facts to plausibly show Defendants acted with actual malice
on Count Thirteen. Fed. R. Civ. P. 12(b)(6). See Don King Prods.,
40 So.3d at 45; Dockery, 799 So.2d at 296; Readon, 317 So.3d at
1236.

22
iv.

Count Fourteen

Count Fourteen is for libel and was brought by Mr. Sánchez
against Mr. Fonseca and Jagual over a July 18, 2019 Facebook post
that summarizes and restates the broadcast in Count Thirteen.
(Docket Nos. 130 ¶¶ 83-84 and 154 at 17). The post stated Mr.
Sánchez

INVESTED HEAVILY IN [Governor Rosselló] BEFORE HE WAS

GOVERNOR - And now [Plaintiffs and Mr. Sánchez

-laws] filled

their hands and became a millionaire thanks to [Governor Rosselló].
These are the facts.

(Docket No. 130 ¶ 84). The post also claimed

Mr. Sánchez was Governor Rosselló
this in his financial disclosure reports. Id.
Plaintiffs

argue

the

Facebook

post

falsely

implies

Mr.

Sánchez
[Governor] Rosselló financ
and that this is shown in Mr. Sánchez
¶

87(a)-(b).

Their

arguments

mirror

Id.
those

provided

in

Count

Thirteen, namely that Mr. Sánchez timely filed his financial
disclosures and that none of his disclosures listed an employment
agreement of the type alleged in the July 18, 2019 Facebook post.
Id. ¶¶ 216, 221.
Unfortunately for Plaintiffs, Count Fourteen also mirrors
Count Thirteen by failing to allege actual malice. Id. ¶¶ 84, 87,
216.

Plaintiffs

argue

that

Defendants

did

not

provide

corroborating sources or give Mr. Sánchez the opportunity to refute

23
the claims made in the Facebook post. (Docket No. 154 at 16).
However, Plaintiffs are essentially alleging Defendants engaged in
sloppy investigative practices, and
Readon, 317 So.3d
at 1236; see also Klayman, 2015 WL 1546173 at *16. Furthermore,

Sánchez, they cannot
equate the presence of ill will with the existence of actual
malice. Don King Prods., 40 So.3d at 45 (ill will alone cannot
prove actual malice); (Docket No. 154 at 18).

investigate the claims against [Mr.] Sánchez because of that ill
they have not alleged facts to plausibly indicate Defendants
either: (i) knew the allegedly defamatory statements were false;

awareness of their probable falsity.
at 845; (Docket No. 154 at 18).

Mile Marker, Inc., 811 So.2d
-conclusory

s that
Plaintiffs have not plausibly stated a claim for relief that
survives dismissal under Fed. R. Civ. P. 12(b)(6). Nieto-Vicenty,
984 F.Supp.2d at 20.

24
v.

Count Fifteen

Count Fifteen is for defamation and was brought by Mr. Sánchez
against Mr. Fonseca, Telemundo PR, NBC, Jagual, and TNG over a
June 11, 2019 broadcast where Mr. Fonseca stated Mr. Sánchez
obtained

through his position in the

transition committee and benefitted personally and professionally
from his government access. (Docket No. 130 ¶¶ 90, 92, 224). The
broadcast described Mr. Sánchez
the Puerto Rican government through his work on then-Governor
Rosselló

stated

Mr.

90(a)-(b).

The

Sánchez
the

FOMB

broadcast

and

Puerto

proceeded

Rican
to

government.

claim

that

Mr.

Id.

¶

Sánchez

subsequently

resigned from the government and asked Puerto Rican agency heads
to give contracts to his private clients, with officials who
refused Mr. Sánchez being dismissed from their positions. See id.
¶ 90(c).
Plaintiffs argue the broadcast wrongly portrayed Mr. Sánchez
as having access to

state secrets

when he only had access to

public information during his tenure on the FOMB and the transition
committee. See id. ¶ 226. Additionally, Plaintiffs assert that no
public official has claimed Mr. Sánchez pressured them or caused
their termination. See id. ¶ 226(c).

25
the
plausible existence of actual malice is that Defendants did not
provide corroborating sources for the broadcast and that Mr.
Sánchez
statements. (Docket No. 154 at 18). And as with previous counts,
Plaintiffs fail to allege actual malice under Florida law. See
Mile

Marker,

Inc.,

811

So.2d

at

845

investigation may not meet proper journalistic practices, the

departure from professional standards. See HarteInc.

public figure plaintiff must prove more

than an extreme departure from professional standards

refusal to allow Mr. Sánchez to refute them does not plausibly
indicate

ng or
Don King Prods., 40 So.3d at 45; see Readon,

317 So.3d at 1236; Klayman, 2015 WL 1546173 at *16 (defendant is
not required to contact plaintiff before publishing content about
plaintiff). Plaintiffs have failed to provide well-pled facts that
plausibly allege actual malice. See Schatz, 669 F.3d at 50. Making
favor, the Court finds
Count Fifteen lacks sufficient factual backing to survive Fed. R.
Civ. P. 12(b)(6). See Ocasio-Hernandez, 640 F.3d at 14.

26
vi.

Count Eighteen

Count Eighteen is for defamation and was brought by Mr.
Sánchez over a July 30, 2019 broadcast where Mr. Fonseca accused
Mr. Sánchez
his clients and coerce government officials to grant government
contract[s] to his clients.

(Docket No. 154 at 19). During the

broadcast, Mr. Fonseca stated Mr. Sánchez
outside of normal governmental processes, with the implication
that Mr. Sánchez acted to benefit his clients. (Docket No. 130 ¶¶
111(a), 112).
Plaintiffs

argue

that

the

broadcast

did

not

provide

corroborating sources or provide Mr. Sánchez with the opportunity
to refute the claims. (Docket No. 154 at 19). They assert that Mr.
Sánchez has not been accused of wrongdoing before, and there is

given other counts of defamation in the instant case survive. Id.
Again, the Court finds Plaintiffs have not alleged facts that
could plausibly allege

m that there

See, e.g., OcasioHernandez, 640 F.3d at 14; (Docket No. 154 at 19). After taking
Plaintiffs

e SAC as true,
only

allege

that

Defendants

failed

to

properly

investigate the underlying facts of the July 30, 2019 broadcast

27
because of their ill will towards Mr. Sánchez. Nieto-Vicenty, 984
F.Supp.2d at 20; (Docket No. 154 at 19-20). While Plaintiffs claim
Defendants did not give Mr. Sánchez the opportunity to refute the
contents of the July 30, 2019 broadcast, this is akin to other
purported

departures

from

professional

journalistic

standards

that, without more, cannot prove actual malice. See Klayman, 2015
WL 1546173 at *16; Readon, 317 So.3d at 1236.
As stated previously, Plaintiffs do not allege facts to
plausibly allege that Defendants either: (i) knew the allegedly
defamatory statements were false; or (ii) published the statements

Mile Marker, Inc., 811 So.2d at 845. Without alleging
facts to plausibly show actual malice, the Court finds that Count
Eighteen cannot survive Fed. R. Civ. P. 12(b)(6).
vii. Count Twenty
Count Twenty is for libel and was brought by Mr. Sánchez
against Mr. Fonseca and Jagual over a November 25, 2020 statement
known as Twitter).4
(Docket Nos. 130 ¶¶ 120-23 and 154 at 20). The post stated

[a]n

ex-powerful [person] has already sent about 25 letters threatening
to sue...he keeps sending letters on key dates...the threats of a

Plaintiff variously refers to the content in County Twenty as an X post or a
Facebook post; the Court continues to refer to the social media post as an X
post. (Docket Nos. 130 ¶¶ 120, 267 and 154 at 20).
4

28
¶ 120). Mr.
Id. ¶¶ 121, 267(b).
While not identifying Mr. Sánchez by name, Plaintiffs assert
that readers of the post immediately knew it was referring to Mr.
Sánchez. Id. ¶ 121. Plaintiffs claim the post was made the day
after the Board of the Independent Prosecutor issued a report
finding there was no criminal behavior resulting from the chats
that prompted the TelegramGate scandal. (Docket No. 154 at 20).
Additionally

o

(Docket Nos. 130 ¶ 267(b) and 154 at 20).
The Court concludes that Plaintiffs have not shown cause for
Count Twenty to survive dismissal under Fed. R. Civ. P. 12(b)(6).
While the X post coincides with the publication of the Board of

facts to plausibly show that Mr. Fonseca knew the Board of the
I

Sánchez

of

criminal behavior in the TelegramGate scandal or that Mr. Fonseca
made the X post in response to the report. (Docket Nos. 130 and
154 at 20). Although the Court notes
delete the post within minutes of publishing it and the temporal

Spoilation Letter that same day, Plaintiffs do not offer sufficient

29
facts in support of actual malice. See Mile Marker, Inc., 811 So.2d
at 845.
Drawing all reasonable allegations in Plaintiff

and

-conclusory factual allegations as true,
the Court does not find Plaintiffs have plausibly alleged Mr.
Fonseca

acted

with

actual malice when he

called Mr. Sánchez

See id.; Nieto-Vicenty, 984 F.Supp.2d at 20; (Docket
No. 130 at ¶¶ 120-23). Claiming that Mr. Fonseca had
towards Mr. Sánchez

does

to the contrary. See Don King Prods., 40 So.3d at 45; (Docket No.
154 at 20). The Court concludes that Plaintiffs have failed to
plead plausible entitlement for relief and therefore dismissal
under

Fed.

R.

Civ.

P.

12(b)(6)

is

appropriate.

See

Ocasio-

Hernandez, 640 F.3d at 14.
C.

Purported Waiver of New Arguments
Plaintiffs contend that Defendants have waived their ability

to argue that the aforementioned counts in the SAC lack sufficient
facts

to

satisfy

the

malice

element

of

defamation

because

Defendants did not previously raise the issue in their Motion to
Dismiss. (Docket Nos. 133; 152 and 154 at 1-2). However, this
argument fails because the Court, not Defendants, raised the issue
of actual malice sua sponte. (Docket No. 151). As argued by
Defendants, such waivers do not apply when a court exercises its

30
power to dismiss a claim on its own motion. See, e.g., Cardona Del
Toro v. United States, 1993 WL 7933, at *1 (1st Cir. 1993).
Defendants are not precluded from arguing Plaintiffs have failed
to allege actual malice for some of their claims in response to

D.

SAC
Fed. R. Civ. P. 15(a)(2) provides that leave to amend should

requires.

However, the
Calderon-

Serra v. Wilmington Trust Co., 715 F.3d 14, 19 (1st Cir. 2013)
(citation omitted). A district court may deny leave to amend when

or if the
Id.
(citations omitted).
Here,

SAC is made with undue

delay. In November 2022, Plaintiffs filed the SAC and Defendants
subsequently filed their Motion to Dismiss. (Docket Nos. 130 and
133). In September 2023, the Court granted in part and denied in
part the Motion to Dismiss and issued an accompanying show cause
order, which Plaintiffs answered with their Motion in Compliance
that same month. (Docket Nos. 150; 151 and 154). Over two years
have passed since Plaintiffs filed the SAC, and over one year has

31
passed since the order to show cause, and still Plaintiffs have
not provided the factual allegations necessary for six of their
counts to survi

Further amendments

would be untimely and likely futile, particularly as the present
case has been pending since February 2021, when it was first filed
in Florida, giving Plaintiffs over three years to conduct the
necessary fact-finding to adequately plead actual malice. (Docket
No. 1); see, e.g., Nikitine v. Wilmington Trust Co., 715 F.3d 388,
391 (1st Cir. 2013) (affirming denial of leave to amend after

and the request to amend and there was no good reason for the
delay); Calderón Serra, 715 F.3d at 20 (same); Badillo-Santiago v.
Naviera-Merly, 378 F.3d 1, 7-8 (1st Cir. 2004) (affirming denial
of leave to amend after fourteen months elapsed from filing of the
the Court
does not believe further amendments to the SAC would cure the
deficiencies

in

Counts

Nine,

Thirteen,

Fourteen,

Fifteen,

request to amend the SAC.
V.

CONCLUSION

For the foregoing reasons, the Court DISMISSES WITH PREJUDICE
Counts Nine, Thirteen, Fourteen, Fifteen, Eighteen, and Twenty and
DENIES

SAC. Therefore, only the

following counts of the SAC remain pending before the Court: One,

32
Two,

Three,

Four,

Five,

Six,

Seven,

Eight,

Twelve,

Sixteen,

Seventeen, and Nineteen.
IT IS SO ORDERED.
In San Juan, Puerto Rico, this 26th day of November 2024.
s/Raúl M. Arias-Marxuach_________
UNITED STATES DISTRICT JUDGE