In the United States Court of Appeals For the Second Circuit

August Term, 2021 No. 21-637

DEVIN G. NUNES, Plaintiff-Appellant,

v.

CABLE NEWS NETWORK, INC., Defendant-Appellee.

Appeal from the United States District Court for the Southern District of New York

ARGUED: NOVEMBER 30, 2021 DECIDED: APRIL 14, 2022

Before: PARK, NARDINI, and MENASHI, Circuit Judges.

Plaintiff-Appellant Devin G. Nunes appeals the Southern District of New York’s (Laura Taylor Swain, Chief Judge) dismissal of his defamation and civil conspiracy claims for failure to state a claim. We hold that the district court correctly predicted that the Virginia Supreme Court, applying lex loci delicti, would determine that California law governs Nunes’s claims. Further, we affirm the district court’s determination that the complaint failed to state claims for defamation and civil conspiracy to defame because Nunes (1) failed to demand retraction in accordance with California Civil Code § 48a, a substantive rule of decision, and (2) failed to plead special damages with the specificity required under Federal Rule of Civil Procedure 9(g). Accordingly, we AFFIRM the judgment of the district court dismissing the complaint with prejudice.

JUDGE MENASHI dissents in a separate opinion.

STEVEN S. BISS, Law Office of Steven S. Biss, Charlottesville, VA, for Plaintiff-Appellant.

STEPHEN J. FUZESI (Kevin T. Baine, Nicholas G. Gamse, Matthew J. Greer, on the brief), Williams & Connolly LLP, Washington, D.C., for Defendant-Appellee.

WILLIAM J. NARDINI, Circuit Judge:

In this diversity action, Plaintiff-Appellant Devin G. Nunes sued Defendant-Appellee Cable News Network, Inc. (“CNN”) for defamation and civil conspiracy in the United States District Court for the Eastern District of Virginia. The case was eventually transferred to the Southern District of New York (Laura Taylor Swain, Chief

2 Judge), but all parties agree that the action remains governed by the choice-of-law principles of Virginia, the state law of the forum where this suit was originally filed. And so the question we face is: How would a Virginia state court have ruled in this case?

The district court dismissed Nunes’s action for failure to state a claim based on two key holdings. First, it predicted that the Virginia Supreme Court would, in applying lex loci delicti to a multistate defamation suit like that brought by Nunes, determine that the “place of the wrong” is the state where the plaintiff is primarily injured as a result of the allegedly tortious online content, i.e., the plaintiff’s domicile, absent strong countervailing circumstances. Applying this standard, the district court determined that California law governed Nunes’s claims. Second, applying California’s retraction statute for defamation claims—California Civil Code § 48a—the district court determined that Nunes failed to state a claim because he did not adequately allege a retraction demand or special damages as required

3 by section 48a and Federal Rule of Civil Procedure 9(g). Nunes challenges each of these conclusions on appeal.

For the reasons outlined below, we affirm the judgment of the district court. I. BACKGROUND

A. Factual background. 1

At the time of the alleged defamatory conduct, Devin Nunes was a citizen of California and a member of the United States House of Representatives. He represented California for over twenty years in d