Rudy Giuliani, former U.S. Attorney and former mayor of New York City, has filed a motion to dismiss a billion-dollar lawsuit against him brought by a voting machine vendor earlier this year.
“Giuliani denies that he has defamed [Dominion Voting Systems] or that he has engaged in any wrongful or malicious conduct toward [Dominion Voting Systems],” the relatively brief, 13-page filing notes.
Recall: Dominion sued former president Donald Trump’s stalwart friend and attorney in federal court in late January over a series of statements that alleged electoral fraud ran rampant during the 2020 presidential election in favor of eventual President Joe Biden. During various media and commercial appearances, Giuliani allegedly “cashed in” on the “Big Lie,” according to the lawsuit filed by defamation attorney Thomas Clare.
“As a result of the defamatory falsehoods peddled by Giuliani—in concert with Sidney Powell, Russell Ramsland, L. Lin Wood, Mike Lindell, Patrick Byrne, Lou Dobbs, Fox News, Fox Business, Newsmax, One America News Network (‘OAN’), The Epoch Times, and other like-minded allies and media outlets determined to promote a false preconceived narrative about the 2020 election—Dominion’s founder and employees have been harassed and have received death threats, and Dominion has suffered unprecedented and irreparable harm,” the lawsuit filed in the U.S. District Court for the District of Columbia alleges.
Giuliani’s motion is largely premised on the idea that some of the company’s claims are barred by circuit precedent.
“[I]n D.C., a corporation suing for defamation may only recover actual damages in the form of lost profits,” Giuliani’s attorney Joseph D. Sibley IV argues. “Therefore, even assuming that the complained of statements were defamatory of [Dominion] per se (that is, the statements disparaged [Dominion] on their face without the need for consideration of extrinsic evidence), [Dominion and its affiliated entities] are limited to the recovery of only special damages in the form of lost profits since they are corporations.”
In other words, Giuliani says Dominion’s request for damages over employees allegedly being stalked, harassed and threatened due to his comments, damages to remedy the alleged defamation and damages to repair the company’s reputation cannot even be entertained—even if these things did happen—because the law only permits a corporation to recover their lost profits in defamation cases filed in the District of Columbia.
The motion to dismiss additionally makes the case that Dominion did not plead their alleged injuries (and the damages that can be won when such injuries are proven) with particularity—a standard required by the Federal Rules of Civil Procedure.
The motion itself offers a summary of how this rule is usually applied: “A plaintiff can satisfy this pleading obligation 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.”
Giuliani’s motion explains this alleged defect:
Plaintiffs have done nothing more than generally allege that they have “lost profits” damages resulting from Giuliani’s alleged “viral disinformation campaign” in a specified dollar amount. [Federal] Rule [of Civil Procedure] 9(g) requires much more. Plaintiffs are required to plead their lost profits damages by detailing either specific customers allegedly lost due to Giuliani’s conduct, or allegations of “before and after” sales coupled with evidence that a drop in sales was due to Giuliani’s conduct. Because the Complaint contains no such allegations, it completely fails to satisfy Rule 9(g).
And while the motion to dismiss may have some merit, it may not be strong enough to have the case dismissed entirely, experts say.
“This is actually a good legal theory – the problem is that at best it buys Giuliani more time,” tweeted attorney Jay Reding. “The Court is not likely to dismiss the case outright, but at worst would grant Dominion the ability to re-plead its case with greater specificity.”
I do not know if the law as cited is correct – but on the surface nothing in this brief strikes me as wildly implausible and it’s written clearly and cogently. This is not Kraken-level lawyering. It may well be correct – but is unlikely to end the case.
— Jay Reding (@JayReding) April 7, 2021
Giuliani also raises threshold standing objections to Dominion’s defamation lawsuit—as well as arguing that the company has failed to state a claim.
“Giuliani said he wanted to present the ‘evidence’ for his defamatory statements about Dominion, but now he’s trying to avoid a trial and still offering no evidence at all. Dominion will continue to pursue accountability for Giuliani in a court of law,” Dominion lawyer Megan Meier said in a statement to Law&Crime.
Read the full filing below:
[image via screengrab/YouTube]
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