Malone v. Breggin et al
Filing
77
MEMORANDUM OPINION. Signed by Senior Judge Norman K. Moon on 3/27/2024. (dsa)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF VIRGINIA
CHARLOTTESVILLE DIVISION
DR. ROBERT W. MALONE,
CASE NO. 3:22-cv-00063
Plaintiff,
v.
MEMORANDUM OPINION
PETER R. BREGGIN, MD., et al.,
JUDGE NORMAN K. MOON
Defendants.
This matter is before the Court upon the motions to dismiss for lack of personal
jurisdiction, filed by Defendants Dr. Peter Breggin and Ginger Ross Breggin, and by Dr. Jane
Ruby. Dkts. 44, 46. Because the Court concludes that dismissal is appropriate for lack of
personal jurisdiction, the motions will be granted.
Background
Plaintiff Dr. Robert W. Malone is a licensed doctor in Madison County, Virginia.
Compl. ¶ 1. He alleges that “[h]e is a world-renowned scientist and expert in the field of mRNA
technology.” Id. And he argues he was “the leading contributor to the science exploited by Pfizer
and other pharmaceutical corporations to create the alleged ‘vaccines’ for the novel coronavirus
(‘COVID-19’).” Id. He has brought this defamation case against Defendants Peter R. Breggin,
Md., his wife Ginger Breggin, who are citizens of New York, and against Defendant Dr. Jane
Ruby, a citizen of Florida. Id. ¶¶ 4–5.
At a high level, Plaintiff alleges that Defendants published false statements against him
“in internet articles, podcast videos and via social media (Telegram and Twitter) that persistently
targeted [him] and were transmitted to subscribers and viewers in Virginia.” Id. ¶ 1. Plaintiff
1
claims Defendants falsely accused him of “fraud, disinformation, dishonesty, deception,” etc.,
and that “[t]he gist of the defamatory statements and implications is that [he] lacks the character
and is unfit to be a medical doctor and scientist.” Id.
According to Plaintiff, the Breggins “own and operate a website, https://breggin.com/ on
which they publish and advertise materials supportive of their view that America ‘is being taken
down by a pack of bloodthirsty predators – frenzied over feasting upon the carcass of our great
nation.’” Id. ¶ 4. Plaintiff alleges that the website is active. Id. 1 Plaintiff claims that on their
website, the Breggins (1) “litigate their position in this lawsuit,” (2) “fundraise off this lawsuit by
shamelessly soliciting donations from Virginians and others,” (3) “sponsor and publish the views
of third-parties about this lawsuit and about Dr. Malone,” (4) “advertise Dr. Breggin’s blogs and
solicit subscriptions to his email ‘alerts’”, and (5) “market, solicit and sell dozens of Dr.
Breggin’s books to consumers in Virginia and elsewhere.” Id.
On their website, the Breggins also produce and publish “subscription radio and internet
shows,” including “Refounding America TV,” the “Breggin Hour,” and “Brighteon.TV,” which
Plaintiff alleges they “use to broadcast false and defamatory statements to listeners and viewers
in Virginia and elsewhere.” Id. Plaintiff also alleges that they “operate multiple social media
properties which they use to follow Dr. Malone, solicit book sales from Virginians and others,
and republish the false and defamatory statements at issue in this action.” Id. Finally, the
Breggins “also operate ‘America Out Loud,’ a website dedicated to informing America ‘of the
evil politics and machinations of the Marxist Left.’” Id. Plaintiff alleges that “America Out Loud
broadcast and published in Virginia the Breggins’ false statements about Dr. Malone.” Id.
1
It remains active as of March 27, 2024.
2
Plaintiff alleges that Dr. Ruby “produces and broadcasts” an “internet show” called the
“Dr. Jane Ruby Show” on the Stew Peters Network to over 436,000 subscribers in Virginia and
elsewhere.” Id. ¶ 5. Plaintiff further alleges that Dr. Ruby “operates multiple social media
accounts, including a Telegram account … where she boasts 108,000 subscribers from Virginia
and elsewhere, a Twitter account … with 42,300 followers in Virginia and elsewhere … and a
Gab account … with over 17,400 followers.” Id. According to Plaintiff, Dr. Ruby “uses her
Internet show and social media accounts to publish false and defamatory statements into Virginia
to subscribers and users who pay Ruby for her unlawful content.” Id. Plaintiff contends that Dr.
Ruby has “persistently used Twitter” to defame him, and to “communicate directly with (i.e.,
tag) Dr. Malone and his subscribers and followers in Virginia.” Id. & n. 1. Plaintiff also cites a
video published in June 2023 “in the Charlottesville edition of YourNews,” in which she
“repeatedly insulted and maligned Dr. Malone, made false and defamatory statements about Dr.
Malone’s counsel,” and solicited donations in her defense. Id. & n. 1.
Plaintiff Dr. Robert Malone has filed this federal lawsuit against Defendants Peter and
Ginger Breggin and Dr. Jane Ruby, bringing two counts (defamation and defamation by
implication). See Compl. The Breggins filed two motions to dismiss the lawsuit, the first a Rule
12(b)(2) motion challenging personal jurisdiction, and the second under Rule 12(b)(6) claiming
Plaintiff did not state a plausible claim to relief. Dkts. 42, 44. Dr. Ruby similarly filed two
motions to dismiss. Like the Breggins, her first challenged personal jurisdiction, the latter
challenged the merits. Dkts. 46, 47. Plaintiff filed a unified opposition to the four motions to
dismiss. Dkt. 49. Defendants filed reply briefs. Dkts. 54, 56.
The Court heard oral argument on the motions to dismiss, and permitted the filing of
briefing on Defendants’ requests for an award of attorney’s fees. The parties have filed their
3
additional briefs on the subject of attorney’s fees. Dkts. 68, 74–76. The matter is now fully
briefed and ripe for disposition.
Legal Standard
Rule 12(b)(2) provides that a defendant may file a motion to dismiss for lack of personal
jurisdiction. Fed. R. Civ. P. 12(b)(2). “When personal jurisdiction is addressed under Rule
12(b)(2) without an evidentiary hearing, the party asserting jurisdiction has the burden of
establishing a prima facie case of jurisdiction.” Hawkins v. i-TV Digitalis Tavkozlesi zrt., 935
F.3d 211, 226 (4th Cir. 2019); Universal Leather, LLC v. Koro AR, S.A., 773 F.3d 553, 558 (4th
Cir. 2014). That is, the court must determine “whether the facts proffered by the party asserting
jurisdiction—assuming they are true—make out a case of personal jurisdiction over the party
challenging jurisdiction,” and the court “may also consider affidavits submitted by both parties”
in so doing, “although it must resolve all factual disputes and draw all reasonable inferences in
favor of the party asserting jurisdiction.” Hawkins, 935 F.3d at 226.
The federal rules provide that a district court must first look to state law to determine if
personal jurisdiction exists over a defendant. Specifically, Rule 4(k)(1)(A) asks whether a
defendant is “subject to the jurisdiction of a court of general jurisdiction in the state where the
district court is located.” Fed. R. Civ. P. 4(k)(1)(A). The exercise of personal jurisdiction is
therefore lawful “if [1] such jurisdiction is authorized by the long-arm statute of the state in
which it sits and [2] the application of the long-arm statute is consistent with the due-process
clause of the Fourteenth Amendment.” Consulting Eng’rs Corp. v. Geometric Ltd., 561 F.3d 273,
277 (4th Cir. 2009). “Virginia’s long-arm statute extends personal jurisdiction over nonresident
defendants to the full extent permitted by the Fourteenth Amendment’s Due Process Clause.”
UMG Recordings, Inc. v. Kurbanov, 963 F.3d 344, 350–51 (4th Cir. 2020). Therefore the
4
statutory and constitutional analyses merge into one inquiry, asking “whether the defendant has
sufficient ‘minimum contacts with [the forum] such that the maintenance of the suit does not
offend traditional notions of fair play and substantial justice.” Young v. New Haven Advocate,
315 F.3d 256, 261 (4th Cir. 2002) (quoting Int’l Shoe Co. v. Washington, 326 U.S. 310, 316
(1945)) (internal quotations marks and citation omitted).
The Fourth Circuit has adapted the traditional standard for establishing specific
jurisdiction “so that it makes sense in the Internet context.” Young, 315 F.3d at 263. 2 The court
“concluded that a State may, consistent with due process, exercise judicial power over a person
outside of the State when that person (1) directs electronic activity into the State, (2) with the
manifested intent of engaging in business or other interactions within the State, and (3) that
activity creates, in a person within the State, a potential cause of action cognizable in the State’s
courts.” ALS Scan, Inc. v. Digital Serv. Consult., Inc., 293 F.3d 707, 714 (4th Cir. 2002). The
Fourth Circuit further clarified that, “[w]hen the Internet activity is … the posting of news
articles on a website, the ALS Scan test works more smoothly when parts one and two of the test
are considered together.” Young, 315 F.3d at 263. Accordingly, a court should determine whether
the defendant “manifested an intent to direct their website content … to a Virginia audience.” Id.
In other words, the party posting the content “must, through the Internet postings, manifest an
intent to target and focus on Virginia readers.” Id. By contrast, merely “placing information on
the Internet” is not sufficient to subject a party to personal jurisdiction.” Id.; see also id.
(explaining that the mere “posting and accessibility” of the information in a State is not enough).
2
There is no argument that Defendants are subject to general personal jurisdiction in
Virginia. Plaintiff only argues that “Defendants are subject to specific personal jurisdiction in
Virginia ….” Compl. ¶ 8; Dkt. 49 at 2.
5
In Young, the Fourth Circuit concluded that a court in Virginia could not exercise specific
personal jurisdiction over Connecticut newspapers that published online articles concerning
conditions at a Virginia prison and allegedly defaming Young, a warden at the prison, while
reporting on a “Connecticut prison transfer policy.” Young, 315 F.3d at 263–64. The Fourth
Circuit determined that the “content of the websites [was] decidedly local, and neither
newspaper’s website contain[ed] advertisements aimed at a Virginia audience,” and further, that
“Connecticut, not Virginia, was the focal point of the articles.” Id.
Reasoning
Plaintiff contends that “[p]ersonal jurisdiction is warranted in Virginia because Virginia
is the ‘focal point’ both of [Defendant] Breggins’ and Ruby’s publications and of the harm
suffered.” Dkt. 49 at 7. In Plaintiff’s view, this is not mere “passive” electronic activity, but
rather, Defendants “wrote the articles, spoke in the videos and podcasts, and published both on
platforms they own and operate and on others’ networks.” Id. Plaintiff argues that Defendants
“directed their extensive online activities into Virginia numerous times, including through one or
more agents and instrumentalities in Virginia,” giving rise to these claims for defamation against
Plaintiff, “a Virginia medical doctor and scientist.” Id. at 6. And Plaintiff asserts that Defendants
are “actively litigat[ing] this case on the Internet, via podcasts published in Charlottesville, and
via Breggins’ active website, going so far as to publish confidential communications they have
had with their Virginia attorneys.” Id. at 8.
Plaintiff relies on the fact that he is a licensed doctor living in Virginia and a Virginia
citizen, as well as allegations that he suffered reputational harm in Virginia, to support the
Court’s exercise of personal jurisdiction over Defendants. See Compl. ¶¶ 1, 3, 8; Dkt. 49 at 7
(“Personal jurisdiction is warranted in Virginia because Virginia is the ‘focal point’ … of the
6
harm suffered,” and alleging that Defendants “knew or should have known that their
inflammatory statements would reach Dr. Malone, causing substantial harm in Virginia”). The
plaintiff in Young v. New Haven Advocate made a similar argument that the Supreme Court’s
decision in Calder 3 “requires a finding of jurisdiction in this case simply because the
newspapers posted articles on their Internet websites that discussed the warden and his Virginia
prison, and he would feel the effects of any libel in Virginia, where he lives and works.” 315
F.3d at 262. The Fourth Circuit rejected the argument, stated that “Calder does not sweep that
broadly, as we have recognized.” Id. While “the place that the plaintiff feels the alleged injury is
plainly relevant” to the jurisdictional analysis, “it must ultimately be accompanied by the
defendant’s own sufficient minimum contacts with the state” in order for personal jurisdiction to
attach. Id. (cleaned up).
The Breggins are citizens of New York, and Dr. Jane Ruby is a citizen of Florida.
Compl. ¶¶ 4–5. There is no argument that Defendants have any home, office, business, or
property in Virginia. See Dkt. 45 at 9 (“the Breggins have no home, office, business, or property
in Virginia”); Dkt. 48 at 13 (attesting that Dr. Ruby “has no offices in Virginia, no bank
accounts, property, assets, or other interests in Virginia”).
Plaintiff therefore primarily relies on Defendants’ internet-based statements and social
media postings to support personal jurisdiction. See Dkt. 49 at 1. As to the Breggins Defendants
these include: (1) their website, https://breggin.com, and their statements thereon, in which they
allegedly “litigate their position in this lawsuit,” fundraise “from Virginians and others,” publish
views about the lawsuit and Plaintiff, and market and sell “dozens” of Dr. Breggin’s books to
consumers “in Virginia and elsewhere,” (2) “subscription radio and internet shows” such as
3
Calder v. Jones, 465 U.S. 783 (1984).
7
“Refounding America TV,” the “Breggin Hour,” and “Brighteon.TV,” (3) social media accounts,
which the Breggins allegedly “use to follow Dr. Malone, solicit book sales from Virginians and
others, and republish” the false statements at issue; and (4) the America Out Loud website and
broadcast. Comp. ¶ 4; Dkt. 49 at 3. And as to Dr. Jane Ruby, these allegations include (1) her
“internet show,” the “Dr. Jane Ruby Show,” which allegedly has “436,000 subscribers in
Virginia and elsewhere,” (2) her social media accounts, including Telegram, Twitter, and Gab
with 108,000, 42,300, and 17,400 subscribers, respectively, and (3) a video published in June
2023 in the Charlottesville edition of YourNews. Compl. ¶ 5; Dkt. 49 at 4.
The mere fact that Defendants posted these allegedly defamatory articles online is not
sufficient to subject them to personal jurisdiction. Indeed, it is settled that “a person’s act of
placing information on the Internet is not sufficient by itself to subject that person to personal
jurisdiction in each State in which the information is accessed.” Young, 315 F.3d at 263 (citing
ALS Scan, 293 F.3d at 712) (cleaned up). As the Fourth Circuit explained, “the fact that the
newspapers’ websites could be accessed anywhere, including Virginia, does not by itself
demonstrate that the newspapers were intentionally directing their website content to a Virginia
audience.” Id. In other words, “[s]omething other than posting and accessibility” is needed to
show that Defendants here “purposefully (albeit electronically) directed their activity in a
substantial way to the forum state, Virginia.” See id. at 263 (cleaned up). The test, at bottom,
asks whether Defendants, “through the Internet postings, manifest[ed] an intent to target and
focus on Virginia readers.” See id.
Nothing in the Complaint or in Plaintiff’s briefing supports that Defendants intended to
purposefully direct in a substantial way their electronic activity toward Virginia, or to target and
focus on Virginia readers. Turning to the “general thrust and content” of Defendants’ websites
8
and social media accounts, see Young, 315 F.3d at 263, there is no indication in the record that
Virginia was the focus or a focus. Indeed, by Plaintiff’s own admission, the Breggins’ website
has a purportedly national character, focusing on perceived threats to the nation as a whole. See
Compl. ¶ 4. Similarly, the Breggins’ website and broadcast, entitled “America Out Loud,” is also
focused on national rather than Virginia-specific issues. See Compl. ¶ 4. The allegations about
Defendant Dr. Jane Ruby’s online presence and statements similarly reflect a national “thrust and
content.” See Compl. ¶ 5. In sum, it appears that “[t]he websites” and social media accounts “are
not designed to attract or serve a Virginia audience.” See Young, 315 F.3d at 263.
Plaintiff tries to bolster his personal jurisdiction argument by alleging that Defendants’
social media accounts and websites have Virginia subscribers and solicit donations from their
Virginia subscriber base. See, e.g., Compl. ¶ 4 (alleging that the Breggins use their “subscription
radio and internet shows” that are broadcast “to listeners and viewers in Virginia and
elsewhere”); id. ¶ 5 (alleging that the Dr. Jane Ruby Show has “over 436,000 subscribers in
Virginia and elsewhere,” and making similar representations about subscribers to her other social
media accounts “from Virginia and elsewhere”). Although these allegations purport to provide
information about Virginia connections, they include no facts to show anything other than that
these messages and statements were merely posted and accessible online in Virginia—as well as
anywhere else in the world—which is insufficient to support a showing of specific personal
jurisdiction. See Young, 315 F.3d at 263 (“Something more than posting and accessibility is
needed.”).
The Court must also examine “the specific articles [Plaintiff] complains about to
determine whether they were posted on the Internet with the intent to target a Virginia audience.”
See Young, 315 F.3d at 263. Here, Plaintiff argues that “Virginia is the ‘focal point’ both of
9
Breggins’ and Ruby’s publications and of the harm suffered.” See Dkt. 49 at 7. But Plaintiff’s
argument about the publications is not supported by the allegations themselves. None of the
allegedly defamatory comments refers to Virginia. See Compl. at 11–14 (¶ 10). Nor has Plaintiff
alleged any other Virginia-specific content at issue in Defendants’ statements or social media
accounts. The fact that they mentioned or referred to Plaintiff by name in the statements is not
sufficient. See Young, 315 F.3d at 263–64. 4
Plaintiff also asserts that Dr. Ruby’s publication of a June 2023 video in the
Charlottesville edition of YourNews, supports the exercise of specific personal jurisdiction.
However, Dr. Ruby attested in response that she, as the “content creator,” did not “select the
methods or location of distribution nor the locale in which the information will be published,”
and as such, she “did not select, urge, opine, or otherwise intend to distribute any content on
[YourNews] in or to Virginia.” Dkt. 48 at 15 n. 14. Plaintiff has not argued, much less provided
evidence to rebut, Dr. Ruby’s attestation on that point.
Plaintiff’s failure to establish personal jurisdiction in this case is further supported by this
Court’s decision in Gilmore v. Jones, 370 F. Supp. 3d 630 (W.D. Va. 2019). There, the Court
concluded that several online videos and articles about the Charlottesville Unite the Right attack
warranted the exercise of specific personal jurisdiction. But key to the Court’s analysis was that
“the ‘general thrust’ of [the defendant’s] video and article … were sufficiently targeted at a
Virginia audience.” Id. at 654. There, the “exclusive focus” of the article “was a Virginia event
and a Virginia citizen.” Id. at 654–55. Another “manifested an intent to target a Virginia
4
While Plaintiff mentions the Breggins’ sales of “dozens” of books through their
website, he does not appear to base any of his arguments for personal jurisdiction based on those
sales, nor do the factual allegations in the complaint establish that any of the alleged defamatory
comments were from the book.
10
audience by publishing an article and video focused on the political forces supposedly
underlying a Virginia event and a Virginia citizen’s role in that event.” Id. at 657–58. By
contrast, in this case the events at issue being discussed by Defendants were national in nature—
the COVID-19 pandemic, vaccines against COVID-19, government regulations concerning
COVID-19, and persons opposed to those government regulations (apparently part of a “health
freedom movement”). See Compl. at pp. 11–14 (¶ 10).
Finally, Plaintiff asserts that Defendants’ alleged connections with a Mr. Alexander
supports the exercise of personal jurisdiction. Alexander is alleged to reside in Virginia and be
employed in Virginia by the Infectious Diseases Society of America. Compl. ¶ 6. In other words,
it appears that Plaintiff is relying on a “conspiracy theory of jurisdiction,” under which
Defendants are “imputed with constitutionally sufficient contacts with Virginia through the
actions of their alleged coconspirators.” Unspam Techs., Inc. v. Chernuk, 716 F.3d 322, 329 (4th
Cir. 2013). Plaintiff’s allegations are not sufficient to establish this conspiracy theory of personal
jurisdiction, especially in light of their failings to secure jurisdiction under the Young test.
Plaintiff alleges that “[w]ithin a month of filing this lawsuit, the Breggins contacted Alexander
and requested him to participate with the Breggins and Ruby in a ‘war’ on Dr. Malone.”
Compl. ¶ 6. That has resulted in Alexander, “between January 2023 and the present,” repeatedly
publishing “false and defamatory statements” about Plaintiff on social media. These conclusory
and threadbare allegations fail to establish the conspiracy theory of jurisdiction. Moreover, “postcomplaint contacts are not relevant to the personal jurisdiction analysis.” See Gather Workspaces
LLC v. Gathering Spot, LLC, No. 19-cv-2669, 2020 WL 6118439, at *4 (D.D.C. Oct. 16, 2020)
(stating that this is the “law of [the D.C.] Circuit,” which “rule enjoys widespread acceptance
among out-of-Circuit authorities as well”).
11
The facts of this case establish that Defendants’ websites, social media posts, and other
referenced online communications, as well as the allegedly defamatory statements and posts at
issue, were aimed at a national audience. Defendants “did not post [these] materials on the
Internet with the manifest intent of targeting Virginia readers,” and as a result, they “could not
have ‘reasonably anticipated being haled into court in Virginia to answer for the truth of the
statements’” they made online. See Young, 315 F.3d at 264 (quoting Calder, 465 U.S. at 790)
(cleaned up). Accordingly, Defendants lack sufficient Internet-based contacts with Virginia to
permit this Court to exercise specific personal jurisdiction over them. See id.
Attorney’s Fees
Defendants have pressed for an award of attorney’s fees to be levied against Plaintiff,
even after the Court indicated at oral argument that it anticipated dismissing Plaintiff’s case
against them for lack of personal jurisdiction. Defendants argue that attorney’s fees should be
awarded pursuant to Va. Code § 8.01-223.2, Virginia’s anti-SLAPP (strategic lawsuit against
public participation) statute, and pursuant to Fed. R. Civ. P. 11 and its Virginia state-law
analogue, Va. Code § 8.01-271.1. See Dkt. 75 at 4–6, 10–11; Dkt. 76 at 3 (Anti-SLAPP
argument); id. at 9–10 (arguing for award of fees under court’s inherent authorities, Federal
Rules of Civil Procedure).
As Defendants recognize, Dkt. 75 at 4–5, “[i]n the United States, the prevailing litigant is
ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Alyeska Pipeline
Serv. Co. v. Wilderness Soc’y, 421 U.S. 240, 247 (1975). The “American Rule” also applies in
the Commonwealth of Virginia. Bolton v. McKinney, 855 S.E.2d 853, 855 (Va. 2021) (“Virginia
follows the American rule on attorney’s fees”).
12
Notwithstanding the general rule, Defendants argue that an award of attorney’s fees is
warranted under Virginia’s Anti-SLAPP legislation. Dkt. 75 at 6, 10–11; Dkt. 76 at 3. Generally,
anti-SLAPP statutes “aim to weed out and deter lawsuits for the improper purpose of harassing
individuals who are exercising their protected right to freedom of speech.” Fairfax v. CBS Corp.,
2 F.4th 286, 296 (4th Cir. 2021). Virginia’s statute provides, among other things, that “[a]ny
person who has a suit against him dismissed or [a subpoena quashed] pursuant to the immunity
provided by this section may be awarded reasonable attorney fees and costs.” Va. Code § 8.01223.2(B). Under the statute’s plain language, for attorney’s fees to be awarded, “the dismissal of
the case must be pursuant to the immunity the statute confers.” Hutchens v. McDougal, No. 1:21cv-982, 2022 WL 2440347, at *3 (E.D. Va. July 5, 2022); Fairfax, 2 F.4th at 297 (“the Virginia
fee statute authorizes an award whenever a suit is dismissed pursuant to anti-SLAPP immunity,
whether at the threshold, at summary judgment, or after a trial on the merits”). Here, the Court
has not dismissed the case pursuant to “the immunity provided by” Virginia’s anti-SLAPP
statute, Va. Code § 8.01-223.2(B), but for lack of personal jurisdiction over Defendants. Any
argument that Defendants’ personal jurisdiction defense “is inextricably intertwined with [their]
Anti-SLAPP motion” and is “part of … Anti-SLAPP immunity,” is without merit. Dkt. 76 at 4.
The analysis and legal issues involved between the statutory immunity conferred by the Virginia
statute and a constitutional personal jurisdiction analysis are very different. Compare Malone v.
WP Co., LLC, No. 3:22-cv-46, 2023 WL 6447311, at *8 (W.D. Va. Sept. 29, 2023) (holding that
defendant was immune from plaintiff’s defamation claims pursuant to Virginia Anti-SLAPP
statute). Section 8.01-223.2 does not authorize a fee award.
Defendants also urge the Court to award attorney’s fees pursuant to Fed. R. Civ. P. 11
and Fed. R. Civ. P. 54, as well as the Court’s inherent equitable powers. See Dkt. 75 at 9; Dkt. 76
13
at 9–10. None support an attorney’s fees award here. “In essence, Rule 11 imposes a duty on
attorneys to certify, on the basis of a reasonable inquiry, that any pleading or paper they file with
a district court (1) is not filed ‘for any improper purpose’; (2) is ‘warranted by existing law’; and
(3) alleges facts that ‘have evidentiary support.’” Lokhova v. Halper, 30 F.4th 349, 354 (4th Cir.
2022) (citing Fed. R. Civ. P. 11(b)); see also Fed. R. Civ. P. 11(b) (listing certifications made by
signing a pleading, written motion, or other paper). Courts “have discretion to impose sanctions
for violations of Rule 11,” but in exercising that discretion, the court must determine whether “a
reasonable attorney in like circumstances could not have believed his actions to be legally
justified.” Id. (citation omitted). “[A] sanctionable legal argument must have ‘absolutely no
chance of success under the existing precedent.’” Id. (quoting Hunter v. Earthgrains Co. Bakery,
281 F.3d 144, 153 (4th Cir. 2002)) (emphasis added).
Defendants point to “other similar lawsuits” filed by Plaintiff, as supporting a
determination that Plaintiff “was on notice that his claims against [ ] Dr. Ruby and the Breggins”
were without merit. See Dkt. 75 at 11. And Defendants are right to point to this Court’s ruling in
Malone v. WP Company, 2023 WL 6447311, as relevant precedent in that regard, as the Court
dismissed Plaintiff’s defamation lawsuit against the Washington Post in that case. See id. But,
significantly, the Court did not award attorney’s fees against Plaintiff in that case, noting various
factors, including possible “risk of deterring other plaintiffs from bringing colorable claims,” if
attorney’s fees were awarded. Malone, 2023 WL 6447311, at *9. In that case, the Court
cautioned Plaintiff, as a filer of “repeated defamation cases,” that if he were to “continue[ ] to
bring defamation actions like those that have been dismissed, there will come a time when his
lawsuits might fairly be deemed frivolous and awarding attorneys fees is appropriate.” Id. The
Court reiterates those words of caution to Plaintiff. That warning is emphasized, especially
14
given Plaintiff’s statement on social media that he hoped his lawsuit would “have a chilling
effect on corporate media.” Dkt. 76 at 2. But in Malone, the Court was aware of this thenpending action, and did not conclude that an award of attorney’s fees was warranted at that time.
Id. at *9 n. 14. So too here. In view of Plaintiff’s arguments in support of personal jurisdiction,
which, though rejected, were not utterly frivolous, the Court finds there is insufficient basis to
award attorney’s fees pursuant to Rule 11. See Sowards v. Switch Energy Co., 744 F. Supp.
1399, 1404 (W.D. Va. 1990) (“Even though the court rejects plaintiff’s position on personal
jurisdiction, plaintiff’s argument is not so lacking in legal foundation as to warrant the
imposition of sanctions.”).
Undeterred, the Breggins effectively argue that they should not be precluded from an
award of attorney’s fees by the fortuity that the Court considered and ruled upon their personal
jurisdiction motion first, instead of their motion to dismiss under Fed. R. Civ. P. 12(b)(6). See
Dkt. 75 at 14. Defendants filed separate motions to dismiss for lack of personal jurisdiction and
for failure to state a claim. Having found the personal jurisdiction arguments clear, meritorious,
and warranting dismissal, the Court need not gratuitously proceed to rule on additional,
unnecessary arguments also in support of dismissal, when doing so would be entirely
unnecessary to dispose of the case. Further still, it was no mere happenstance that the Court
considered personal jurisdiction first. Defendants self-assuredly argue that, if “the Court
considered [their] 12(b)(6) motion first, there would be no question that the defendants [would]
ha[ve] prevailed pursuant to the immunity granted by that statute.” Dkt. 75 at 14. Defendants
overlook, however, real differences between the allegedly defamatory statements in this case,
and those that were at issue in Malone v. WP Company. Compare, e.g., Compl. ¶ 10 (stating that
“Dr. Malone is the ‘chief supporter’ of Mattias Desmet, ‘a leading apologist for political mass
15
murderers’”, and that Dr. Malone “is a Hitler apologist and ‘excuser’”), with Malone v. WP
Company, 2023 WL 6447311, at *1–2 (Washington Post writing that Plaintiff’s claims have
been “discredited” and “bolstered a movement of misinformation”). Virginia’s Anti-SLAPP
statute’s immunity does not extend “to any statements that the declarant knew or should have
known were false or were made with reckless disregard for whether they were false.” Va. Code
§ 8.01-223.2(B). In any event, however, there was no need for the Court to rule on the merits of
the case and sift through the many allegedly defamatory false statements when it was clear there
was no personal jurisdiction over Defendants in the first place. In the exercise of its discretion,
the Court sees no basis to award attorney’s fees in this action.5
Conclusion
For these reasons, Defendants’ motions to dismiss for lack of personal jurisdiction will
therefore be granted, in an accompanying Order, to follow. Dkts. 44, 46. Because the Court will
grant the motions to dismiss for lack of personal jurisdiction, it need not address Defendants’
motions to dismiss for failure to state a claim, which motions will be denied, without prejudice,
as moot. Dkts. 42, 46.
The Court will also deny Defendants’ motion for an award of attorney’s fees. Dkt. 74.
5
To the extent Defendants argue that sanctions are also warranted under Va. Code
§ 8.01-271.1, the Rule 11 equivalent in Virginia, the Court limits its analysis to Rule 11 because
this case was not originally filed in state court. See Athena Constr. Grp., Inc. v. Smith, No. 1:21cv-396, 2023 WL 408910, at *4 (E.D. Va. Jan. 20, 2023); Tatoian v. Andrews, No. 7:14-cv-484,
2016 WL 613009, at *4 n. 7 (W.D. Va. Feb. 12, 2016). To the extent Defendants cite Fed. R.
Civ. P. 54 to support an award of attorney’s fees other than costs, the Court has concluded that
the request is without merit and should be denied. See Fed. R. Civ. P. 54(d)(2); Dkt. 75 at 9–10.
That is without prejudice to Defendants ability to seek costs in the usual course.
16
The Clerk of the Court is directed to send a certified copy of this Memorandum Opinion
to all counsel of record.
Entered this 27th
day of March, 2024.
17
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