US Dominion, Inc. v. Herring Networks, Inc. ( 2022 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
US DOMINION, INC., et al.,
Plaintiffs,
v. Civil Action No. 1:21-cv-02130 (CJN)
HERRING NETWORKS, INC., et al.,
Defendants.
MEMORANDUM OPINION
US Dominion, Inc. and other related corporate entities claim that One America News
Network (“OAN”), as well as four other Defendants associated with OAN, defamed Dominion in
connection with the 2020 presidential election. Defendants have moved to dismiss or stay this
action under the Colorado River doctrine. Alternatively, Defendants move to transfer this case to
the United States District Court for the District of Colorado. And should the Court deny both
motions, three Defendants—OAN, Robert Herring, and Charles Herring—argue that the claims
against them must be dismissed for lack of personal jurisdiction. For the reasons that follow, the
Court denies Defendants’ motions.
I. Factual Background
A. The Parties
US Dominion, Inc., Dominion Voting Systems, Inc., and Dominion Voting Systems
Corporation (together, “Dominion”) are organized as US Dominion, Inc., a Delaware corporation
with its principal place of business in Denver, Colorado. See Compl. ¶¶ 14, 54, ECF No. 1.
Dominion contracts with state and local governments across the country to supply its voting
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systems and services in elections. Id. ¶ 55. Local election officials use Dominion’s voting
machines to tabulate votes and count paper ballots. Id. ¶ 56.
OAN is a cable news company wholly owned by Herring Networks, Inc. Id. ¶ 17.
Although headquartered in California, OAN also has an operational presence in the District of
Columbia. Id. For example, OAN maintains a news bureau and a studio in the District, and some
of its content is produced here. Id. Aside from its cable news channel, OAN runs social media
accounts and releases content on its website, OANN.com, as well as on digital platforms like
YouTube and Rumble. Id.
Robert Herring is the CEO of OAN, and his son, Charles Herring, is the President of the
network. Id. ¶ 18. Dominion alleges that the Herrings exercise tight control over the network’s
news coverage, especially when it comes to stories of high import. Id. Some of those stories are
referred to internally as “H stories,” which are stories that OAN must run upon request from the
Herrings. Id. ¶ 19. For these stories, Dominion alleges, the Herrings assume full editorial control
over the content—the usual editorial team in California plays little to no role. Id.
Chanel Rion is the Chief White House Correspondent for OAN. Id. ¶ 21. She resides in
the District of Columbia and works out of OAN’s D.C. bureau. Id. Christina Bobb is the former
host of “Weekly Briefing” on OAN, which is recorded in and broadcast from the District of
Columbia. Id. ¶ 22. Like Rion, Bobb is a District resident and worked out of OAN’s D.C. bureau.
Id.
Dominion claims that OAN and the other Defendants defamed it by spreading false
statements about its role in the 2020 election. Most of these statements were broadcast by OAN
on its cable channel.
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B. Examples of Allegedly Defamatory Statements
Dominion’s complaint organizes the allegedly defamatory statements under 25 headings.
See id. ¶ 305(a)–(y). The statements included under each heading vary in length and content, as
well as in the identity of the speaker, but they all feature a common allegation: The 2020
presidential election was either compromised or rigged, and Dominion’s voting machines were
responsible.
Shortly after the election, for example, OAN broadcast a segment on its cable channel
titled, “REPORT: DOMINION DELETED 2.7M TRUMP VOTES NATIONWIDE.” Id. ¶ 305(a).
Similar claims were made in the following days and months. For instance, Rion claimed on air
that Dominion’s voting system was “proven to have actually glitched in favor of Biden in at least
three states.” Id. ¶ 305(b). She also stated that “the bottom line is votes were switched from
President Trump to President—to now Joe Biden, and it happened in dozens of states, and it’s a
Dominion System software glitch that we are going to dig into.” Id. ¶ 305(c).
Other statements asserted that Dominion intentionally manipulated the vote. Soon after
the election, an individual named Joe Oltmann appeared on an OAN program and claimed that a
former Dominion executive named Eric Coomer had bragged on a conference call that “Trump is
not going to win, I made F’ing sure of that.” Id. ¶ 305(d). A few days later, in an OAN special
called “Dominion-izing the Vote,” Oltmann repeated his allegation against Coomer. Id. ¶ 305(f).
OAN re-aired “Dominion-izing the Vote” twice in December 2020. Id. ¶ 305(i)–(j).
Around the same time, former New York City mayor Rudy Giuliani appeared on a live
OAN broadcast and stated that Dominion may be “getting paid millions to help Biden win.” Id.
¶ 305(h). In another OAN broadcast, Giuliani claimed that Dominion’s voting machines were
“programmed to give somewhere between a two and five percent advantage [to Biden].” Id.
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¶ 305(k). And in still another broadcast, Giuliani stated that “the Dominion machines . . . were
basically built to cheat.” Id. ¶ 305(n).
Mike Lindell, founder and CEO of My Pillow, Inc., also made frequent appearances on
OAN. Over several months, OAN aired—and re-aired—multiple documentaries made by and
starring Lindell, including “Absolute Proof with Mike Lindell,” “Scientific Proof with Mike
Lindell,” “Absolute Interference with Mike Lindell,” and “Absolutely 9-0 with Mike Lindell.” Id.
¶ 305(p)–(x). These programs included numerous statements about Dominion’s role in the 2020
election. For example, Lindell announced: “I have proof, a hundred percent proof that our country
was attacked by China, by Communism coming in, this foreign interference to our elections
through the machines, Dominion, Smartmatic, ES & S, all of them.” Id. ¶ 305(s). In multiple
OAN segments, Lindell repeated his claim that China influenced the 2020 election by hacking
Dominion’s voting machines. Id. ¶ 305(t)–(u).
In a May 2021 broadcast, Bobb discussed fraud in the 2020 election. She stressed that
“[t]he only people who had absolute control over the election equipment was Dominion.” Id.
¶ 305(v). She lamented that local election officials “didn’t bother to insure that there was no
manipulation,” but instead “just took Dominion’s word for it, despite the fact that there were weird
mathematical patterns, and many experts stated the numbers indicated fraud.” Id.
The above quotes are just a sample of the allegedly defamatory statements that Dominion
claims Defendants made (or disseminated). Because Defendants do not move to dismiss for failure
to state a claim, the Court need not decide whether Dominion has adequately alleged that these
and other statements are defamatory. Instead, the Court includes the statements to provide the
factual context needed to decide the pending motions.
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II. Procedural Background
In August 2021, Dominion filed this suit. All Defendants later moved to dismiss or stay
the action under the doctrine established in Colorado River Water Conservation District v. United
States, 424 U.S. 800 (1976). See Defs.’ Mot. to Dismiss, Stay, or Transfer (“Defs.’ Mot.”), ECF
No. 41. According to Defendants, federal deferral is appropriate because there is a parallel action
pending in Colorado state court. See Coomer v. Donald J. Trump for President, Inc., Case No.
2020CV034319. That action—which predates this one by nearly eight months and names OAN
and Rion as defendants—was filed by Eric Coomer, the former Dominion executive who allegedly
bragged about rigging the 2020 election. Coomer no longer works for Dominion, and Dominion
is not a party to the Colorado suit. See Defs.’ Mot. at 9, 14 n.8.
Defendants also filed two alternative motions. First, all Defendants move to transfer this
case to the United States District Court for the District of Colorado under 28 U.S.C. § 1404(a). Id.
at 16. Second, OAN and the Herrings move to dismiss the claims against them for lack of personal
jurisdiction. Id. at 27.
III. Legal Standards
“The doctrine of abstention, under which a District Court may decline to exercise or
postpone the exercise of its jurisdiction, is an extraordinary and narrow exception to the duty of a
District Court to adjudicate a controversy properly before it.” Colo. River, 424 U.S. at 813(quotations omitted). The Supreme Court has recognized several different types of abstention.
See, e.g., R.R. Comm’n of Tex. v. Pullman Co., 312 U.S. 496 (1941); Younger v. Harris, 401 U.S.
37 (1971). The Colorado River doctrine, 1 in particular, “permits a federal court to stay or dismiss
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Although courts often use the phrase “Colorado River abstention,” the Court of Appeals has
suggested that this is a misnomer, because the doctrine does not rest “‘on considerations of state-
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a federal action in favor of a concurrent action in state court under ‘exceptional circumstances.’”
Edge Inv., LLC v. District of Columbia, 927 F.3d 549, 550 (D.C. Cir. 2019) (quoting Colo. River,
424 U.S. at 813)). Such deferral “rest[s] on considerations of wise judicial administration, giving
regard to conservation of judicial resources and comprehensive disposition of litigation.” Colo.
River, 424 U.S. at 817 (cleaned up). When a court invokes Colorado River, “it presumably
concludes that the parallel state-court litigation will be an adequate vehicle for the complete and
prompt resolution of the issues between the parties.” Moses H. Cone Mem’l Hosp. v. Mercury
Constr. Corp., 460 U.S. 1, 28 (1983).
“For the convenience of parties and witnesses” and “in the interest of justice,” a court may
transfer a case “to any other district . . . where it might have been brought.” 28 U.S.C. § 1404(a).
The decision to transfer a case is within the district court’s discretion and calls for “an
individualized, case-by-case consideration of convenience and fairness.” Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 29 (1988) (quotations omitted). “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).
To survive a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, the plaintiff
must establish “a factual basis for the exercise of personal jurisdiction over the defendant.” Fawzi
v. Al Jazeera Media Network, 273 F. Supp. 3d 182, 185 (D.D.C. 2017) (quotations omitted). “In
the absence of an evidentiary hearing,” the plaintiff “can satisfy that burden with a prima facie
showing” of pertinent jurisdictional facts. Mwani v. bin Laden, 417 F.3d 1, 7 (D.C. Cir. 2005)
(quotations omitted). This showing may rest on the pleadings, see id., and “factual discrepancies
federal comity or on avoidance of constitutional decisions.’” Edge, 927 F.3d at 554 n.5 (quoting
Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 14–15 (1983)).
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appearing in the record must be resolved in favor of the plaintiff,” Crane v. New York Zoological
Soc., 894 F.2d 454, 456 (D.C. Cir. 1990).
IV. Analysis
A. Colorado River
The Colorado River doctrine seeks to avoid duplicative litigation when there are parallel
proceedings pending in state and federal court. Both the Supreme Court and the Court of Appeals
have repeatedly held, however, that “the pendency of an action in the state court is [generally] no
bar to proceedings concerning the same matter in the Federal court having jurisdiction.” Colo.
River, 424 U.S. at 817 (quotations omitted); Edge, 927 F.3d at 552 (quotations omitted). That is
because federal courts have a “virtually unflagging obligation . . . to exercise the jurisdiction given
them.” Colo. River, 424 U.S. at 817.
For this reason, only “exceptional circumstances” and “the clearest of justifications will
warrant” deferral based on concurrent state and federal proceedings. Edge, 927 F.3d at 552–53
(quotations omitted). When a federal court invokes Colorado River, it “necessarily contemplates
that,” upon resolution of the state proceeding, it “will have nothing further to do in resolving any
substantive part of the case.” Moses H. Cone, 460 U.S. at 28. If the federal court “has any
substantial doubt as to this, it would be a serious abuse of discretion to grant the stay or dismissal
at all.” Id.Defendants argue that this case should be dismissed in its entirety—or at the very least
stayed—under Colorado River. Defs.’ Mot. at 10. They contend that deferral is warranted
because, in their view, this action and the Coomer action involve the same parties and the same
allegedly defamatory statements. Id. at 12–13. According to Defendants, deferral is therefore
necessary to avoid potentially conflicting findings and judgments. Id. at 13.
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Dominion counters by arguing that the federal abstention doctrines—including the
Colorado River doctrine—allow for dismissal only of suits seeking equitable relief, not suits that
(like Dominion’s) seek damages. See Dominion’s Opp’n to Defs.’ Mot. (“Dominion’s Opp’n”) at
4–5, ECF No. 45 (citing Quackenbush v. Allstate Ins. Co., 517 U.S. 706, 719 (1996)). What is
more, Dominion contends that this action and the Coomer action are not “parallel”—and thus
Colorado River is wholly inapposite—because the cases involve different parties and different
issues. Id. at 7–9. And even putting all that aside, Dominion maintains that this case does not
present the type of “exceptional circumstances” warranting deferral. Id. at 11.
Dominion is correct that Quackenbush forecloses Defendants’ request for dismissal.
There, the Supreme Court explained that “federal courts have the power to dismiss or remand cases
based on abstention principles only where the relief being sought is equitable or otherwise
discretionary.” Quackenbush, 517 U.S. at 731. As for suits seeking damages, the Supreme Court
observed that it has “applied abstention principles . . . only to permit a federal court to enter a stay
order that postpones adjudication of the dispute, not to dismiss the federal suit altogether.” Id. at
719.
Defendants argue that it is far from settled that Quackenbush, which involved Burford
abstention, applies to cases involving the Colorado River doctrine. See Defs.’ Reply in Support
of the Mot. to Dismiss, Stay, or Transfer (“Defs.’ Reply”) at 9, ECF No. 47. But Defendants “do[]
not explain why that distinction matters, especially in light of Quackenbush’s references to the
Court’s general abstention principles.” Jefferson-11th St., LLC v. District of Columbia, Civ. A.
No. 19-1416 (CJN), 2020 WL 3035038, at *4 (D.D.C. June 5, 2020) (quotations omitted). Simply
put, a fair reading of Quackenbush does not permit the dismissal of this case under Colorado River.
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But the Court still may enter a stay if Colorado River’s “exceptional-circumstances test”
is met. Edge, 927 F.3d at 553 (quoting Moses H. Cone, 460 U.S. at 19). As to the possibility of
this litigation being stayed, Dominion contends that Colorado River is inapplicable as a threshold
matter because this case and the litigation in Colorado are not “parallel actions” but instead involve
different parties and different issues. And, Dominion argues, exceptional circumstances do not
justify deferral.
Dominion’s threshold argument has merit. After all, if the state and federal proceedings
are not parallel—that is, if the proceedings involve different parties litigating different issues—
then it is hard to see how the state-court litigation could be an “adequate vehicle for the complete
and prompt resolution of the issues between the parties” in federal court. Moses H. Cone, 460
U.S. at 28; see also id. (“[T]he decision to invoke Colorado River necessarily contemplates that
the federal court will have nothing further to do in resolving any substantive part of the case,
whether it stays or dismisses.”).
Other courts have accordingly adopted some version of Dominion’s proposed threshold
test. See, e.g., vosRosenberg v. Lawrence, 849 F.3d 163, 168 (4th Cir. 2017) (“In deciding whether
[to defer under Colorado River], a court must first determine whether the federal and state actions
are parallel,” which requires “substantially the same parties litigat[ing] substantially the same
issues.” (quotations omitted)); AAR Int’l, Inc. v. Nimelias Enters. S.A., 250 F.3d 510, 518 (7th Cir.
2001) (“In evaluating the propriety of the district court’s decision to abstain under Colorado River,
we must first determine whether the federal and foreign proceedings are parallel.”); Ambrosia Coal
& Constr. Co. v. Pages Morales, 368 F.3d 1320, 1330 (11th Cir. 2004) (“[W]e hold that Colorado
River analysis is applicable as a threshold matter when federal and state proceedings involve
substantially the same parties and substantially the same issues.”). Courts in this District have
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applied the same principle. See, e.g., Saddler v. AMEC Foster Wheeler Env’t & Infrastructure,
Inc., 253 F. Supp. 3d 210, 219–20 (D.D.C. 2017) (concluding that the absence of the sole federal
defendant from the state-court action “alone[] provide[d] sufficient basis to deny” the defendant’s
deferral request, because the state action could not “possibly resolve the dispute between the
parties in [the federal] action”).
Applying this threshold test here, the Court concludes that deferral is improper because
this action and the Coomer action are not parallel proceedings under Colorado River. To begin,
there is minimal overlap between the parties in the cases. The sole plaintiff in the Colorado case—
Eric Coomer, a former Dominion employee who has no current affiliation with the company—is
not a party here, and of the 14 defendants named in the Colorado action, only two—OAN and
Rion—are also named in this federal action. See id. at 220 (concluding that deferral was improper
because the sole defendant in the federal action was not a party in the state action).
Defendants argue that Coomer “effectively is Dominion and every statement OAN has
made about Dominion is also a statement about Dr. Coomer (and vice versa).” Defs.’ Reply at 1.
To support this contention, Defendants cite a statement from Coomer in which he asserts that he
is “the face of the Dominion conspiracy theory” and that there is “no discernable distinction
between references to Dr. Coomer and Dominion.” Id. And at oral argument, Defendants even
claimed that issues decided against Coomer in the state action will have preclusive effect against
Dominion in this federal action. See 4/20/2022 Oral Argument Tr. 8:4–8.
Not so. When asked to provide their best evidence for the proposition that Dominion and
Coomer are the same party, counsel for Defendants responded, “My best argument for that is that
Dr. Coomer says he is Dominion.” Id. at 68:17–21. Coomer may have said that, but his saying it
does not make it so. After all, Coomer is no longer an employee of Dominion. Nor did he file his
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suit on Dominion’s behalf. To the contrary, Coomer’s complaint alleges that OAN (and others)
“invaded his privacy, threatened his security, and fundamentally defamed his reputation across
this country.” Coomer Compl. ¶ 1, ECF No. 41-11 (emphasis added). And he requests relief
ordering OAN (and others) “to remove any and all defamatory publications made about Dr.
Coomer,” not publications made about Dominion. Id. at 63–64 (emphasis added). 2
Defendants’ second argument is more modest. They argue that two cases are parallel for
purposes of Colorado River so long as the parties are “substantially similar.” Defs.’ Reply at 3.
The Court of Appeals has not had occasion to define substantial similarity, but another circuit has
explained that parties are “substantially the same under the Colorado River doctrine [if] they have
nearly identical interests.” Freed v. J.P. Morgan Chase Bank, N.A., 756 F.3d 1013, 1019 (7th Cir.
2014) (quotations omitted).
But even if Coomer and Dominion have identical interests, a fundamental problem
remains—there is virtually no overlap between the issues in the two cases. In its recent order
denying the defendants’ anti-SLAPP motions, the Colorado court confirmed that the Coomer
action centers on the allegation that Coomer bragged on a conference call about subverting the
2020 election. See Coomer v. Donald J. Trump for President, Inc., Case No. 2020CV034319,
2022 WL 12611311, at *1, 36–51 (Colo. Dist. Ct. May 13, 2022). Regardless of how the Colorado
court resolves that issue, it will not address all the other statements at issue here. See Compl. at
¶ 305(a)–(y).
The Court is therefore not persuaded that the Coomer action “will be an adequate vehicle
for the complete and prompt resolution of the issues between the parties.” Moses H. Cone, 460
2
Defendants insist that they intend to join Dominion as a party in the Coomer action. See Defs.’
Reply at 22. But “[t]he issue is whether [the Coomer action], as it currently exists, is a parallel,
state-court proceeding.” Crawley v. Hamilton Cty. Comm’rs, 744 F.2d 28, 31 (6th Cir. 1984).
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U.S. at 28. Instead, deferral would only delay the adjudication of Dominion’s claims. That said,
the Court of Appeals has never applied a threshold test in one of its Colorado River cases to
determine whether the state and federal proceedings are parallel. Instead, the Court of Appeals
considers various factors to assess whether Colorado River’s exceptional-circumstances test is
satisfied. See, e.g., Edge, 927 F.3d at 554–61. Those factors include the inconvenience of the
federal forum, the desirability of avoiding piecemeal litigation, the order in which jurisdiction was
obtained by the concurrent forums, whether federal or state law controls, and whether the state
forum will adequately protect the interests of the parties. See id. at 554, 554 n.6. “[I]t is not
enough that the factors favoring deferral outnumber those opposed (or neutral). Rather, the factors
favoring deferral must themselves be exceptional.” Id. at 554. The Court will therefore consider
whether those factors favor deferral.
The first factor—the inconvenience of the federal forum for the parties involved—does not
favor deferral. Two of the Defendants reside in the District of Columbia, and OAN maintains a
news bureau and a studio here. As for the Herrings, Dominion alleges that the two regularly
conduct business in the District. See Compl. ¶ 20. At the very least, Defendants identify no
exceptional circumstances that would warrant deferral based on this factor.
The second factor is the desirability of avoiding piecemeal litigation. In condemning
“piecemeal litigation,” the Supreme Court in Colorado River was not condemning “the mere risk
of duplicating efforts and different results.” Edge, 927 F.3d at 555. As the Court explained, “the
mere potential for conflict in the results of adjudications, does not, without more, warrant staying
exercise of federal jurisdiction.” Colo. River, 424 U.S. at 816. Instead, deferral is justified under
this factor only if “the circumstances enveloping th[e] cases will likely lead to piecemeal litigation
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that is abnormally excessive or deleterious.” Edge, 927 F.3d at 556 (quotations omitted) (emphasis
added).
Yet here, as in Edge, “mere duplication and potential inconsistency—in their simplest
forms—are all we have.” Id. Indeed, the case for deferral is arguably weaker here than it was in
Edge, because in that litigation, “the vast majority of claims [asserted] in federal court were also
asserted in the Superior Court,” “both cases [arose] from the same core set of facts,” and “the
issues [would] be resolved largely by reference to the same evidence.” Id. (cleaned up). Moreover,
because OAN and Rion are parties to both actions, the doctrines of res judicata and collateral
estoppel may apply to them, which mitigates some of the risk of inconsistent results. See id.
In short, Defendants do not identify any exceptional circumstances that would likely lead
to “abnormally excessive or deleterious” inconsistencies between the state and federal actions at
issue. Id. (“[H]ypothetical conflicts over discrete issues do not amount to an exceptional
circumstance.”). This case instead presents “a garden-variety example of two lawsuits proceeding
concurrently in two courts.” Id.
The next factor is the order of jurisdiction. It is certainly the case, as Defendants note, that
the Coomer action was filed nearly eight months before the federal action. Defs.’ Mot. at 13. Even
so, “there is nothing exceptional about the relative progress of the two cases.” Edge, 927 F.3d at
557; see also id. (holding that a fifteen-month gap between case filings did not present an
exceptional circumstance justifying deferral, in contrast to a case with a four-year gap). Indeed,
not much has happened in the Coomer action—the court relatively recently denied the defendants’
special motions to dismiss under Colorado’s anti-SLAPP statute, which provides a procedural
mechanism for dismissing frivolous claims in the early stages of a case. Because the relative
progress of the two cases is not exceptional, this factor does not favor deferral.
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Next up is whether federal or state law controls. Defendants contend that Colorado law
governs this case, and they stress that Colorado law on defamation affords greater protection to
speech than the First Amendment. Defs.’ Mot. at 13–14. Even if Defendants were right that
Colorado law controls—and it is not clear that they are—this factor would not support deferral.
That is because “[t]he mere absence of federal law . . . does not counsel in favor of abstention,
particularly where, as here, there are no complex or novel state law issues.” 1443 Chapin St., LP
v. PNC Bank, Nat. Ass’n, 718 F. Supp. 2d 78, 85 (D.D.C. 2010). Defendants have not identified
a complex or novel state law question in this case; they simply contend that Colorado applies the
familiar “actual malice” standard to a broader range of speech. And even if the legal issues were
complex, “[t]he presence of novel or difficult state-law questions in federal court litigation is not
exceptional. Federal courts exercising diversity jurisdiction frequently decide just such questions.”
Edge, 927 F.3d at 559.
The final factor is whether the state court could adequately protect the interests of the
parties. To be sure, there is no reason to doubt the Colorado court in this regard. But this fact,
essentially standing alone, cannot justify the surrender of the Court’s jurisdiction. Again, in
applying Colorado River, the lodestar is whether exceptional circumstances warrant deferral. See
Moses H. Cone, 460 U.S. at 25–26. That high bar is not met by a mere showing that a state court
could adequately hear the case. See 1443 Chapin St., 718 F. Supp. 2d at 85.
In sum, Defendants have not identified any “exceptional circumstances” that can overcome
the Court’s “virtually unflagging obligation to exercise its jurisdiction.” Edge, 927 F.3d at 561
(quotations omitted). Considering all the relevant factors, “with the balance heavily weighted in
favor of the exercise of jurisdiction,” Moses H. Cone, 460 U.S. at 16, the Court holds that federal
deferral is unwarranted under Colorado River.
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B. Transfer
In the alternative, Defendants move to transfer this case to the United States District Court
for the District of Colorado. The Court conducts a two-step inquiry to determine whether to grant
that motion. First, the Court must consider “whether the transferee forum is one where the action
‘might have been brought’ originally.” Forest Cty. Potawatomi Cmty. v. United States, 169 F.
Supp. 3d 114, 117 (D.D.C. 2016) (quoting 28 U.S.C. § 1404(a)). Second, the Court must consider
“whether private and public interest factors weigh in favor of transfer.” Id. Private interest factors
include: “(1) the plaintiff’s choice of forum; (2) the defendant’s 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.” Brannen v. Nat’l R.R. Passenger Corp., 403 F.
Supp. 2d 89, 92 (D.D.C. 2005). Public interest factors include: “(1) the transferee’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.
Defendants’ motion to transfer fails at step one. As the movants, Defendants “bear[] the
initial burden of establishing that transfer is proper.” Mandan, Hidatsa & Arikara Nation, 358 F.
Supp. 3d at 6. Yet Defendants did not even try to show that Dominion could have properly filed
this suit in Colorado. For starters, Defendants’ opening brief offers zero analysis on whether a
Colorado court could exercise personal jurisdiction over them. Defendants simply assert that they
would “stipulate to personal jurisdiction in Colorado for the purposes of this case.” Defs.’ Mot. at
16. But “the § 1404(a) phrase ‘where it might have been brought’ can[not] be interpreted to mean
. . . ‘where it may now be rebrought, with defendants’ consent.’” Hoffman v. Blaski, 363 U.S. 335,
342–43 (1960). The alternative, said the Supreme Court, “would empower a District Court, upon
a finding of convenience, to transfer an action to any district desired by the defendants and in
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which they were willing to waive their statutory defenses as to venue and jurisdiction over their
persons, regardless of the fact that such transferee district was not one in which the action ‘might
have been brought’ by the plaintiff.” Id. at 344.
Defendants also do not devote a single sentence—in either their opening brief or their
reply—to the question of venue. 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). Yet no Defendant resides in
Colorado. Nor could Defendants plausibly argue that conduct in Colorado comprises “a
substantial part” of the events giving rise to Dominion’s claims, which focus on statements made
by Defendants. Defendants have thus failed to establish that Dominion could have properly filed
this suit in the District of Colorado, and their motion to transfer can be denied on that basis alone.
In addition, neither the private nor the public interest factors weigh in favor of transfer.
Start with the private interest factors. “[A]lthough the plaintiff’s choice of forum is usually granted
substantial weight, it is given less deference when the plaintiff chooses a foreign forum.” US
Dominion, Inc. v. Powell, 554 F. Supp. 3d 42, 69 (D.D.C. 2021) (“Dominion I”). Still, “a plaintiff’s
choice of a 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.” Id. Such a nexus exists here: Dominion alleges
that “OAN’s Dominion-related content was produced and broadcast through OAN’s Washington,
D.C. office.” Compl. ¶ 17.
Defendants argue that their choice of forum—Colorado—is entitled to deference because
Dominion is headquartered in Colorado and because Coomer has already sued OAN and Rion
there. Although “a defendant’s choice of forum is a consideration when deciding a § 1404(a)
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motion, it is not ordinarily entitled to deference.” Douglas v. Chariots for Hire, 918 F. Supp. 2d
24, 32 (D.D.C. 2013). And when, as here, “Defendants move to transfer over Plaintiff’s
opposition, they must establish that the added convenience and justice of litigating in their chosen
forum overcomes the deference ordinarily given to Plaintiff’s choice.” Id. Defendants have not
made that showing. After all, Rion is a District of Columbia resident, and as explained below,
OAN conducts extensive business here.
The next factor—where the claims arose—also weighs against transfer. “Courts in this
district have held that claims ‘arise’ under 28 U.S.C. § 1404(a) in the location where the corporate
decisions underlying those claims were made, or where most of the significant events giving rise
to the claims occurred.” Id. (cleaned up). Based on Dominion’s Complaint, that location is the
District of Columbia, because that is where allegedly defamatory segments were made, filmed,
and/or produced. See Compl. ¶¶ 17, 21–22. By contrast, Defendants do not identify any conduct
in Colorado that gives rise to Dominion’s claims.
The remaining private interest factors—the convenience of the parties and witnesses, and
the ease of access to sources of proof—likewise do not favor transfer. Rion and Bobb reside in
the District of Columbia, and OAN conducts substantial business here. As for the Herrings,
Dominion alleges that they have engaged in business negotiations in the District and regularly
travel to OAN’s D.C. bureau for purposes of oversight. See id. ¶ 20; see also Dominion’s Opp’n,
Ex. 3 ¶ 9 (Declaration of Charles Herring). At the very least, the Court finds that the Herrings
would suffer only a minor inconvenience by being forced to travel to the District; that
inconvenience does not tip the scales in favor of transfer.
As to the convenience of potential witnesses—who, according to the parties’ briefing, are
spread out across the country—the Court finds that this factor does not weigh heavily in favor of
17
either forum. Although Colorado may be more convenient for some witnesses, the District of
Columbia will likely be more convenient for others. Finally, much of the relevant evidence will
be based in the District, because that is where the allegedly defamatory statements were filmed
and produced. See Compl. ¶¶ 17, 21–22. To be sure, evidence related to the integrity of
Dominion’s voting machines will likely be based in Colorado, because that is where Dominion is
headquartered. But “technological advances have significantly reduced the weight of the ease-of-
access-to-proof factor.” Douglas, 918 F. Supp. 2d at 33 (quotations omitted).
Turning to the public interest factors, Defendants argue that Colorado law applies and thus
the District of Colorado is more familiar with the governing law. Because this action was filed in
the District of Columbia, D.C. choice-of-law rules apply. Wu v. Stomber, 750 F.3d 944, 949 (D.C.
Cir. 2014). And under D.C. choice-of-law principles, the Court must “apply the tort law of the
jurisdiction that has the most significant relationship to the dispute.” Id. (quotations omitted). This
inquiry turns on “[1] where the injury occurred, [2] where the conduct causing the injury occurred,
[3] the domicile, residence, nationality, place of incorporation and place of business of the parties,
and [4] the place where the relationship is centered.” Id. (quotations omitted).
Dominion claims that it suffered reputational injury nationwide; its injuries, it asserts, are
not centered in either Colorado or the District of Columbia. See Compl. ¶¶ 301–02 (noting that
Defendants’ allegedly defamatory statements have placed “Dominion’s contracts in more than two
dozen states and hundreds of counties and municipalities at risk”). Allegedly defamatory
broadcasts that caused Dominion’s injury, by contrast, were filmed and produced at OAN’s D.C.
bureau. Indeed, none of Defendants’ allegedly defamatory conduct occurred in Colorado. What is
more, although Dominion is headquartered in Colorado, no Defendant is based there—again, Rion
and Bobb are D.C. residents, and OAN and the Herrings conduct substantial business in the
18
District. Finally, both sides agree that the fourth factor—where the parties’ relationship is
centered—is neutral because the parties do not have a relationship centered in either forum.
Accordingly, it is not obvious that Colorado law will apply; at a minimum, “it is as likely at this
stage that District of Columbia substantive law will apply given [Dominion’s] theory of tortious
conduct,” and Defendants have “not shown that it is more likely than not that the transferee forum
would have more familiarity with the applicable law.” Robinson v. Eli Lilly and Co., 535 F. Supp.
2d 49, 54 (D.D.C. 2008).
As for the remaining public interest factors, the relative congestion of the court calendars
offers little guidance—the median time from filing to trial is shorter in the District of Colorado,
while the median time from filing to disposition is shorter here. 3 Finally, Defendants have not
identified a “local interest” in Colorado that can outweigh the District of Columbia’s interest in
deciding Dominion’s claims, given that some of the conduct underlying those claims occurred
here. See Dominion I, 554 F. Supp. 3d at 71 (“Minnesota’s interest in deciding controversies
regarding the Lindell Defendants is outweighed by this district’s interest in controversies arising
from events that occurred here.”).
In sum, Defendants have failed to show that transfer is warranted for two independent
reasons. First, Defendants made no effort to show that the District of Colorado “is one where the
action ‘might have been brought’ originally.” Forest Cty. Potawatomi Cmty., 169 F. Supp. 3d at
117 (quoting 28 U.S.C. § 1404(a)). Second, neither the private nor the public interest factors weigh
in favor of transfer.
3
United States District Courts – National Judicial Caseload Profile, US Courts,
https://www.uscourts.gov/sites/default/files/fcms_na_distprofile0630.2022_0.pdf (last visited
Oct. 31, 2022).
19
C. Personal Jurisdiction
OAN and the Herrings also move to dismiss the claims against them for lack of personal
jurisdiction. A federal court has personal jurisdiction over a defendant “who 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). “If a District of Columbia court could exercise jurisdiction over the
Defendants, then so can this Court.” Dominion I, 554 F. Supp. 3d at 65.
“A court may assert general, or all purpose, jurisdiction over a defendant in its home state,”
or it “may exercise specific, or case-based, jurisdiction over a defendant if the plaintiff’s claims
arise out of or relate to the defendant’s forum state contacts.” Smartmatic USA Corp. v. Herring
Networks, Inc., Civ. A. No. 21-2900 (CJN), --- F. Supp. 3d ---, 2022 WL 2208913, at *3 (D.D.C.
June 21, 2022) (cleaned up). Here, Dominion asserts only specific jurisdiction. See Dominion’s
Opp’n at 37–38; Defs.’ Reply at 22 n.18 (noting that Dominion does not argue that the Court has
general jurisdiction over OAN or the Herrings).
To assess whether personal jurisdiction exists, the Court “must first examine whether
jurisdiction is applicable under [D.C.’s] 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). The District of Columbia’s long-arm
statute authorizes personal jurisdiction “over a person, who acts directly or by an agent, as to a
claim for relief arising from the” person:
(1) transacting any business in the District of Columbia;
(2) contracting to supply services 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]
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(4) causing tortious injury in the District of Columbia by an act or omission outside the
District of Columbia if he regularly does or solicits business, engages in any other
persistent course of conduct, or derives substantial revenue from goods used or
consumed, or services rendered, in the District of Columbia.
D.C. Code § 13-423(a). “The District’s first prong has been given an expansive interpretation that
coextends with the Fourteenth Amendment’s Due Process Clause,” which requires that a defendant
have “minimum contacts with the state in which the plaintiff filed the lawsuit.” Smartmatic USA,
--- F. Supp. 3d ---, 2022 WL 2208913, at *3 (quotations omitted). The burden is on Dominion to
establish personal jurisdiction over each Defendant, but “factual discrepancies appearing in the
record must be resolved” in Dominion’s favor. See Crane, 894 F.2d at 456.
1. OAN
In Smartmatic USA, the Court held that it had specific personal jurisdiction over
Smartmatic’s defamation claims against OAN. See --- F. Supp. 3d ---, 2022 WL 2208913, at *3–
5. In doing so, the Court observed that “OAN launched its network through a partnership with The
Washington Times; leases office and studio space in the District; built a broadcast studio in the
District; broadcasts television programs from the District; issues press releases from the District;
advertises in the District to promote its network; and produces and disseminates content (including
allegedly false and defamatory statements about Smartmatic) from the District.” Id. at *3. The
Court also noted that “but for OAN leasing television production studio and office space,
advertising its programming, and promoting its network with guests, OAN’s allegedly false and
defamatory statements would not have made it on the airwaves.” Id.So too here. Like Smartmatic, Dominion claims that OAN’s allegedly defamatory
statements arise out of OAN’s business transactions in the District. Specifically, Dominion alleges
that OAN maintains and operates a news bureau in the District; films, produces, reviews, edits,
and broadcasts programming from the District, including the allegedly defamatory programming
21
at issue here; and employs (or employed) the D.C.-resident individuals who made some of the
statements while on air in the District. See Compl. ¶¶ 17, 21–22, 43. These facts suffice to
establish personal jurisdiction under § 13-423(a)(1) of the District’s long-arm statute, which
covers, among other things, “‘business transactions’ in the everyday sense of commercial deal-
making activities like advertising, operating office space, and performing contracts.” Smartmatic
USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *3. They also suffice to establish personal
jurisdiction under the Due Process Clause. See GTE New Media Servs. Inc., 199 F.3d at 1347(“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.”); see also Smartmatic USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *5 (“[I]f § 13-
423(a)(1) has been satisfied then any added requirement emanating from the Due Process Clause
has been satisfied, too.”).
Personal jurisdiction also exists under the District’s long-arm statute because OAN
allegedly “caus[ed] tortious injury in the District of Columbia by an act or omission in the District
of Columbia.” D.C. Code § 13-423(a)(3). Again, Dominion alleges that OAN made numerous
defamatory statements in the District. See Compl. ¶ 43. And although those statements may have
caused injury nationwide, Dominion plausibly alleges that it suffered injury in the District as
well—the District, after all, is home to many influential policymakers with whom Dominion has
an interest in maintaining its reputation. See Dominion I, 554 F. Supp. 3d at 67.
OAN contends that specific jurisdiction is lacking here because Dominion’s claims do not
arise from OAN’s business transactions in the District. See Defs.’ Mot. at 29–30; see also Defs.’
Reply at 23. According to OAN, Dominion’s claims instead arise from news segments that were
broadcast nationwide from California. Defs.’ Mot. at 18 n.9. But Dominion also alleges that OAN
22
filmed, produced, reviewed, and edited the defamatory programming at its D.C. bureau. See
Compl. ¶ 43. Put another way, if Dominion’s allegations are true—and OAN offers no basis for
concluding otherwise—then OAN’s D.C. bureau was the editorial epicenter for the programming
at issue.
At oral argument, OAN advanced a new theory by arguing that the so-called
“newsgathering exception” bars the exercise of personal jurisdiction. Putting aside whether OAN
may have forfeited this argument by not presenting it in its briefs, the newsgathering exception
does not apply here. Under the exception, news outlets “whose presence in Washington consists
of mere collection of news material for use in subsequent publication elsewhere” are not subject
to personal jurisdiction under D.C.’s long-arm statute. 4 Shirlington Limousine and Transp., Inc.
v. San Diego Union-Trib., 566 F. Supp. 2d 1, 4 (D.D.C. 2008). But OAN did not merely gather
news in the District; instead, as alleged by Dominion, OAN also filmed and produced defamatory
programming here. Cf. id. at 2 (noting that “the research, writing, and publication [of the
defamatory articles] took place entirely within San Diego” and that the D.C. bureau provided “no
assistance . . . in preparing the[] articles”). And far from covering news “for a local audience
outside the District,” Lewy v. S. Poverty L. Ctr., Inc., 723 F. Supp. 2d 116, 127 (D.D.C. 2010),
OAN “aimed its allegedly defamatory and false statements to at least some residents of the
District,” Smartmatic USA, --- F. Supp. 3d ---, 2022 WL 2208913, at *4; see also Lewy, 723 F.
Supp. 2d at 127 (“SPLC’s newsgathering efforts . . . are aimed at a national audience that includes
D.C. residents.”).
4
The Court assumes without deciding that the newsgathering exception applies to D.C. Code
§§ 13-423(a)(1) and (3).
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2. The Herrings
For substantially the same reasons discussed above, the Herrings are also subject to
personal jurisdiction in the District. According to the Complaint, the Herrings exercised complete
control over the Dominion-related content produced at OAN’s D.C. bureau. Specifically,
Dominion alleges that “[t]he false Dominion stories were examples of what were referred to
internally at OAN as ‘H stories’—that is, stories that the Herrings personally approved and
required OAN to run, with the Herrings exercising control over their content, and without the
California editorial team (or anyone else) fact checking the stories or vetting sources.” Compl.
¶ 19; see also id. ¶ 20 (“The Herrings both regularly send information to and receive information
from the Washington, D.C. bureau as part of their close oversight and editorial supervision of the
work done by the reporters there.”). Charles Herring, for example, allegedly “reviewed drafts, and
approved final drafts for broadcasting, of at least some of the false Dominion stories,” id. ¶ 19, and
“he regularly travels to OAN’s Washington, D.C. bureau as part of his oversight and control of its
operations,” id. ¶ 20. Robert Herring, for his part, is described as the “de facto news director” for
the network, and he exercises “a ton of influence over every aspect of the newscast.” Id. ¶ 18(quotations omitted).
In short, Dominion has alleged that the Herrings transacted business in the District by
personally overseeing and directing publication of the Dominion-related content at OAN’s D.C.
bureau. That allegation is enough to support personal jurisdiction under both the District’s long-
arm statute, see §§ 13-423(a)(1), (a)(3), and the Due Process Clause. 5
5
Even if the Herrings did not themselves make the allegedly defamatory statements, Dominion’s
claims, as alleged, still arise from or relate to the Herrings’ transactions in the District because
“one is liable for the publication of defamation by a third person whom as his servant, agent or
otherwise he directs or procures to publish defamatory matter.” Restatement (Second) of Torts
§ 577, cmt. f.
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V. Conclusion
For the above reasons, the Court denies Defendants’ motions in full. An Order will be
entered contemporaneously with this Memorandum Opinion.
DATE: November 7, 2022
CARL J. NICHOLS
United States District Judge
Moreover, the Herrings cannot find shelter in the so-called “corporate shield” doctrine—a doctrine
that the Court of Appeals recently repudiated. See Urquhart-Bradley v. Mobley, 964 F.3d 36, 46
(D.C. Cir. 2020) (“[C]ourts cannot ignore contacts made by the individual just because they were
made in his or her capacity as an employee or corporate officer. Contacts are contacts and must
be counted.”).
25