Montgomery v. Risen et al

MOTION for Summary Judgment

S.D. Fla.December 14, 2015

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA Case No. 15-cv-20782-MARTINEZ/GOODMAN DENNIS MONTGOMERY, Plaintiff, v. JAMES RISEN et al., Defendants. ________________________/ DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT AND MEMORANDUM IN SUPPORT HOLLAND & KNIGHT LLP Sanford L. Bohrer Sandy.Bohrer@hklaw.com Brian W. Toth Brian.Toth@hklaw.com 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 Tel: (305) 374-8500 Fax: (305) 789-7799 DAVIS WRIGHT TREMAINE LLP Laura R. Handman (admitted pro hac vice) laurahandman@dwt.com Micah J. Ratner (admitted pro hac vice) micahratner@dwt.com 1919 Pennsylvania Ave., NW, Suite 800 Washington, D.C. 20006 Tel.: (202) 973-4200 Fax: (202) 973-4499 Counsel for Defendants Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 1 of 47 PI. SII. A B C D E F AIII. A B C D E F CIV. RELIMINA TATEMEN Media. Relian. Allega Relian. Demo Relian. Comp. Montg. Pendin RGUMENT The C. Mater Law o The F. Many. Rheto As a M. Prove As a M. Convi Other 1. 2. Montg. ONCLUSIO RY STATE T OF FACT Coverage o ce on FBI R tions of Fak ce on FBI R nstrations o ce on Interv laint Allega omery’s Fa g Motion f ................. ourt Should ial Fact Exis n Plaintiff’s air Report P of the Chall rical Hyperb atter of La Substantial atter of La ncing Evide Applicable Montgome Montgome Evidence, omery’s Ot N .............. TABLE O MENT ....... S ................ f Montgom eports, Cou e Software. eports and f Software t iews with S tions ........... ilure to Prod or Sanctions .................... Grant Summ ts and Defe Libel and R rivilege Bar enged State ole Protecte w, Plaintiff Falsity........ w, Plaintiff nce, that De Fault ........... ry Is a Limi ry Cannot P or Any Othe her Tort Cla .................... i F CONTE ................... ................... ery Before t rt Documen ................... Court Docum o U.S. Gove ources and ................... uce the Crit for Spoliati ................... ary Judgm ndants Are E elated Tort s Plaintiff’s ments Are N d by the Fir Does Not, a ................... Does Not, a fendants Ac ................... ted-Purpose rove Actua r Applicabl ims Fail ..... ................... NTS ................... ................... he Book and ts, and Con ................... ents for A rnment Offi Documents . ................... ical Softwa on and Viol ................... ent Because ntitled to J s Claims ..... Claims ....... on-Actiona st Amendm nd Cannot, M ................... nd Cannot, P ted With Ac ................... Public Figu l Malice by e Standard o ................... ................... ................... ................... Risen’s Re gressional R ................... llegations of cials ........... ................... ................... re and Defen ation of Cou ................... No Dispute udgment as ................... ................... ble Opinion ent .............. eet His Bu ................... rove By Cl tual Malice ................... re .............. Clear and C f Fault ....... ................... ................... ................... ................... liance on It ecords for ................... Rigged ................... ................... ................... dants’ rt Orders ... ................... as to Any a Matter of ................... ................... and ................... rden to ................... ear and or Any ................... ................... onvincing ................... ................... ................... ..... 1 ..... 3 ..... 3 ..... 6 ..... 9 ..... 9 ... 11 ... 11 ... 14 ... 14 ... 17 ... 19 ... 22 ... 25 ... 25 ... 28 ... 35 ... 35 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 2 of 47 ii TABLE OF AUTHORITIES Page(s) Federal Cases Acosta Orellana v. CropLife Int’l, 711 F. Supp. 2d 81 (D.D.C. 2010) ...........................................................................................35 Adventure Outdoors, Inc. v. Bloomberg, 519 F. Supp. 2d 1258 (N.D. Ga. 2007), rev’d on other grounds, 552 F.3d 1290 (11th Cir 2008) ................................................................................................21 Air Wisconsin Airlines Corp. v. Hoeper, 134 S. Ct. 852 (2014) ...............................................................................................................22 Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) .....................................................................................................14, 29, 35 Baxter v. Palmigiano, 425 U.S. 308 (1976) .................................................................................................................32 Beckley Newspapers Corp. v. Hanks, 389 U.S. 81 (1967) ...................................................................................................................33 Bell v. Associated Press, 584 F. Supp. 128 (D.D.C. 1984) ..............................................................................................32 Biro v. Condé Nast, 2015 WL 8103736 (2d Cir. Dec. 8, 2015) ...............................................................................30 Biro v. Condé Nast, 963 F. Supp. 2d 255 (S.D.N.Y. 2013), aff’d, 2015 WL 8103736 (2d Cir. Dec. 8, 2015) ...................................................................29, 30, 31 Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485 (1984) ...........................................................................................................29, 33 Brueggenmeyer v. ABC, 684 F. Supp. 452 (N.D. Tex. 1988) .........................................................................................26 Bryant v. Avado Brands Inc., 187 F.3d 1271 (11th Cir. 1999) .................................................................................................3 Bustos v. A&E Television Networks, 646 F.3d 762 (10th Cir. 2011) .................................................................................................23 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 3 of 47 iii CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280 (4th Cir. 2008) .......................................................................................27, 28, 32 Castellanos v. Pfizer, Inc., 2008 WL 2323876 (S.D. Fla. May 29, 2008) ..........................................................................16 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) .................................................................................................................15 Chaiken v. VV Publ’g Corp., 119 F.3d 1018 (2d Cir. 1997)...................................................................................................34 Chapin v. Knight-Ridder, Inc., 993 F.2d 1087 (4th Cir. 1993) .................................................................................................18 Church of Scientology Int’l v. Behar, 238 F.3d 168 (2d Cir. 2001).....................................................................................................32 Clyburn v. News World Commc’ns, Inc., 903 F.2d 29 (D.C. Cir. 1990) .............................................................................................26, 30 Cohen v. Cowles Media Co., 501 U.S. 663 (1991) .................................................................................................................35 Coles v. Washington Free Weekly, Inc., 881 F. Supp. 26 (D.D.C. 1995), aff’d, 88 F.3d 1278 (D.C. Cir. 1996) ...........................................................................................17, 19 Colodny v. Iverson, Yoakum, Papiano & Hatch, 936 F. Supp. 917 (M.D. Fla. 1996) ..........................................................................................22 Cook-Benjamin v. MHM Corr. Servs., Inc., 571 F. App’x 944 (11th Cir. 2014) ....................................................................................15, 20 Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300 (11th Cir. 2014) ...............................................................................................32 Crane v. Ariz. Republic, 972 F.2d 1511 (9th Cir. 1992) .................................................................................................18 Dameron v. Wash. Magazine, Inc., 779 F.2d 736 (D.C. Cir. 1985) .................................................................................................19 Ditton v. Legal Times, 947 F. Supp. 227 (E.D. Va. 1996), aff’d, 129 F.3d 116 (4th Cir. 1997) ..................................19 Dorsey v. Nat’l Enquirer, Inc., 973 F.2d 1431 (9th Cir. 1992) .................................................................................................19 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 4 of 47 iv Dowd v. Calabrese, 589 F. Supp. 1206 (D.D.C. 1984) ............................................................................................18 Dubai World Corp. v. Jaubert, 2011 WL 579213 (S.D. Fla. Feb. 9, 2011) ..............................................................................16 Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185 (11th Cir. 1999) ...................................................................................16, 22, 33 Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113 (2d Cir. 1977).....................................................................................................30 Farah v. Esquire Magazine, 736 F.3d 528 (D.C. Cir. 2013) .......................................................................................3, 15, 35 Fetter v. N. Am. Alcohols, Inc., 2007 WL 551512 (E.D. Pa. Feb. 15, 2007) .............................................................................20 Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236 (4th Cir. 1985) .................................................................................................24 Flowers v. Carville, 310 F. Supp. 2d 1157 (D. Nev. 2004) ......................................................................................33 Foretich v. Chung, 1995 WL 224558 (D.D.C. Jan. 25, 1995) ................................................................................17 Forras v. Rauf, 39 F. Supp. 3d 45, 56 (D.D.C. 2014), appeal pending, No. 14-7070 (D.C. Cir. May 21, 2014) ....................................................................................35 Friendship Empowerment & Economic Development CDC v. WALB-TV, 2006 WL 1285037 (M.D. Ga. May 10, 2006) ...................................................................22, 23 Gertz v. Robert Welch, Inc., 418 U.S. 323 (1984) ...........................................................................................................28, 29 Global Relief Found. Inc. v. N.Y. Times Co., 390 F.3d 973 (7th Cir. 2004) ...................................................................................................18 Hakky v. Wash. Post Co., 2010 WL 2573902 (M.D. Fla. June 24, 2010) ...................................................................28, 30 Harper v. Walters, 822 F. Supp. 817 (D.D.C. 1993), aff’d, 40 F.3d 474 (D.C. Cir. 1994) ....................................17 Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657 (1989) ...........................................................................................................29, 33 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 5 of 47 v Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222 (7th Cir. 1993) ...............................................................................................23, 24 Hustler Magazine v. Falwell, 485 U.S. 46 (1988) ...................................................................................................................35 Info. Sys. & Networks Corp. v. City of Atlanta, 281 F.3d 1220 (11th Cir. 2002) ...............................................................................................15 Jankovic v. Int’l Crisis Grp., 494 F.3d 1080 (D.C. Cir. 2007) ...............................................................................................17 Klayman v. City Pages, 2015 WL 1546173 (M.D. Fla. Apr. 3, 2015), appeal pending, No. 15-12731-GG (11th Cir. June 18, 2015) ..............................16, 31, 33, 34 Krohngold v. Nat’l Health Ins. Co., 825 F. Supp. 996 (M.D. Fla. 1993) ..........................................................................................16 Lavin v. N.Y. News, Inc., 757 F.2d 1416 (3d Cir. 1985)...................................................................................................18 Law Firm of Daniel P. Foster, P.C. v. Turner Broad. Sys., Inc., 844 F.2d 955 (2d Cir. 1988).....................................................................................................18 Levan v. Capital Cities/ABC, Inc., 190 F.3d 1230 (11th Cir. 1999) .............................................................................22, 29, 32, 33 Liberty Lobby, Inc. v. Dow Jones & Co., 838 F.2d 1287 (D.C. Cir. 1988) .............................................................................22, 24, 30, 31 Liberty Lobby, Inc. v. Rees, 852 F.2d 595 (D.C. Cir. 1988) .................................................................................................30 Lieberman v. Fieger, 338 F.3d 1076 (9th Cir. 2003) .................................................................................................20 Loeb v. New Times Commc’ns Corp., 497 F. Supp. 85 (S.D.N.Y. 1980).............................................................................................30 Lohrenz v. Donnelly, 350 F.3d 1272 (D.C. Cir. 2003) ...............................................................................................30 Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461 (S.D.N.Y. May 2, 2005) ...........................................................................24 Masson v. New Yorker Magazine, Inc., 501 U.S. 496 (1991) ...........................................................................................................22, 29 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 6 of 47 vi Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986) .................................................................................................................15 Mayfield v. NASCAR, Inc., 674 F.3d 369 (4th Cir. 2012) ...................................................................................................30 McBride v. Merrell Dow & Pharms, Inc., 717 F.2d 1460 (D.C. Cir. 1983) ...............................................................................................15 McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208 (D.C. Cir. 1986) ...............................................................................................30 McDowell v. Paiewonsky, 769 F.2d 942 (3d Cir. 1985).....................................................................................................27 McFarlane v. Esquire Magazine, 74 F.3d 1296 (D.C. Cir. 1996) .....................................................................................29, 30, 34 McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501 (D.C. Cir. 1996) .................................................................................................30 McManus v. Doubleday & Co., 513 F. Supp. 1383 (S.D.N.Y. 1981) .........................................................................................34 Medico v. Time, Inc., 643 F.2d 134 (3d Cir. 1981).....................................................................................................18 Metcalf v. KFOR-TV, 828 F. Supp. 1515 (W.D. Okla. 1992) .....................................................................................20 Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990) ...............................................................................................................19, 20 Mirafuentes v. Estevez, 2015 WL 8177935 (E.D. Va. Nov. 30, 2015) ..........................................................................21 Moldea v. N.Y. Times Co., 15 F.3d 1137 (D.C. Cir. 1994) .................................................................................................20 Moldea v. N.Y. Times Co., 22 F.3d 310 (D.C. Cir. 1994) ........................................................................................... passim Morgan v. Tice, 862 F.2d 1495 (11th Cir. 1989) ...............................................................................................22 New York Times Co. v. Sullivan, 376 U.S. 254 (1964) ...........................................................................................................29, 34 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 7 of 47 vii Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220 (D. Or. 2011), aff’d, 740 F.3d 1284 (9th Cir. 2014) .............................20 Parisi v. Sinclair, 845 F. Supp. 2d 215 (D.D.C. 2012) .........................................................................................30 Paterson v. Little, Brown & Co., 502 F. Supp. 2d 1124 (W.D. Wash. 2007) ...............................................................................26 Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556 (5th Cir. 1997) ...................................................................................................32 Peterson v. Atlanta Hous. Auth., 998 F.2d 904 (11th Cir. 1993) .................................................................................................25 Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767 (1986) ...........................................................................................................22, 24 Pippen v. NBCUniversal Media, LLC, 734 F.3d 610 (7th Cir.), cert. denied, 134 S. Ct. 2829 (2014) .................................................30 Price v. Viking Penguin, Inc., 881 F.2d 1426 (8th Cir. 1989) .................................................................................................22 Q Int’l Courier, Inc. v. Seagraves, 1999 WL 1027034 (D.D.C. Feb. 26, 1999) .......................................................................17, 18 Restis v. Am. Coal. Against Nuclear Iran, Inc., 2015 WL 1344479 (S.D.N.Y. Mar. 23, 2015) .........................................................................24 Rhodes v. Placer Cnty., 2011 WL 1302240 (E.D. Cal. Mar. 31, 2011) .........................................................................20 Rosanova v. Playboy Enters., Inc., 580 F.2d 859 (5th Cir. 1978) ...................................................................................................27 Schatz v. Republican State Leadership Comm., 669 F.3d 50 (1st Cir. 2012) ......................................................................................................30 Seaton v. TripAdvisor LLC, 728 F.3d 592 (6th Cir. 2013) ...................................................................................................21 Serian v. Penguin Grp. (USA), Inc., 2009 WL 2225412 (N.D. W. Va. July 23, 2009) .....................................................................20 Silvester v. ABC, 839 F.2d 1491 (11th Cir. 1988) ....................................................................................... passim Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 8 of 47 viii Sirpal v. Univ. of Miami, 509 F. App’x 924 (11th Cir. 2013) ..........................................................................................15 Spelson v. CBS, Inc., 581 F. Supp. 1195, 1203 (N.D. Ill. 1984), aff’d, 757 F.2d 1291 (7th Cir. 1985) ....................21 St. Amant v. Thompson, 390 U.S. 727 (1968) .................................................................................................................29 Straw v. Chase Revel, Inc., 813 F.2d 356 (11th Cir. 1987) .................................................................................................28 Stroud v. Bank of Am., 886 F. Supp. 2d 1308 (S.D. Fla. 2012) ....................................................................................16 Tavoulareas v. Piro, 817 F.2d 762 (D.C. Cir. 1987) (en banc) ...............................................................24, 25, 29, 30 Time, Inc. v. McLaney, 406 F.2d 565 (5th Cir. 1969) ........................................................................................... passim Time, Inc. v. Pape, 401 U.S. 279 (1971) .................................................................................................................33 Trulock v. Lee, 66 F. App’x 472 (4th Cir. 2003) (per curiam) .........................................................................24 U.S. ex rel. Osheroff v. Humana Inc., 776 F.3d 805 (11th Cir. 2015) ...................................................................................................3 Waldbaum v. Fairchild Publ’ns, Inc., 627 F.2d 1287 (D.C. Cir. 1980) .........................................................................................25, 26 Washington Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966) ...........................................................................................15, 30 Washington v. Smith, 80 F.3d 555 (D.C. Cir. 1996) ...................................................................................................20 Weyrich v. New Republic, Inc., 235 F.3d 617 (D.C. Cir. 2001) .................................................................................................20 White v. Fraternal Order of Police, 909 F.2d 512 (D.C. Cir. 1990) ...............................................................................17, 18, 19, 30 Winn v. United Press Int’l, 938 F. Supp. 39 (D.D.C. 1996), aff’d, 1997 WL 404959 (D.C. Cir. 1997) .............................28 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 9 of 47 ix Wolf v. Ramsey, 253 F. Supp. 2d 1323 (N.D. Ga. 2003) ..............................................................................16, 22 Yohe v. Nugent, 321 F.3d 35 (1st Cir. 2003) ................................................................................................18, 19 State Cases Alpine Indus. Computers v. Cowles Publ’g Co., 57 P.3d 1178 (Wash. Ct. App. 2002) .......................................................................................19 Beck v. Lipkind, 681 So. 2d 794 (Fla. 3d DCA 1996) (per curiam) ...................................................................20 Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999 (Fla. 1980).......................................................................................................16 Don King Prods., Inc. v. Walt Disney Co., 40 So. 3d 40 (Fla. 4th DCA 2010) .....................................................................................16, 17 Fikes v. Furst, 61 P.3d 855 (N.M. Ct. App. 2002)...........................................................................................21 Gleichenhaus v. Carlyle, 591 P.2d 635 (Kan. Ct. App.), aff’d in relevant part, 597 P.2d 611 (Kan. 1979) ........................................................................................................27 Immuno v. Moor-Jankowski, 74 N.Y.2d 548, 560 (1989), vacated, 497 U.S. 1021 (1990), adhered to on remand, 77 N.Y.2d 235 (1991) .........................................................................20 Jackson v. District of Columbia, 412 A.2d 948 (D.C. 1980) .......................................................................................................35 Jung v. Jung, 791 A.2d 46 (D.C. 2002) .........................................................................................................35 Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841 (Fla. 4th DCA 2002) .......................................................................................34 Mosesian v. McClatchy Newspapers, 285 Cal. Rptr. 430 (Cal. Ct. App. 1991) ..................................................................................27 Pegasus v. Reno Newspapers, Inc., 57 P.3d 82 (Nev. 2002) ............................................................................................................34 Phillips v. Evening Star Newspaper Co., 424 A.2d 78, 87 (D.C. 1980) ...................................................................................................28 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 10 of 47 x Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861 (1995) .....................................................................................................21 Shiver v. Apalachee Publ’g Co., 425 So. 2d 1173 (Fla. 1st DCA 1983) .....................................................................................22 Sipple v. Found. for Nat’l Progress, 83 Cal. Rptr. 2d 677 (Cal. Ct. App. 1999) ...............................................................................18 Solers, Inc. v. Doe, 977 A.2d 941 (D.C. 2009) .......................................................................................................35 Stewart v. Sun Sentinel Co., 695 So. 2d 360 (Fla. 4th DCA 1997) .....................................................................15, 16, 17, 18 Thomas v. Patton, 2005 WL 3048033 (Fla. 4th Cir. Ct. Oct. 21, 2005), aff’d, 939 So. 2d 139 (Fla. 1st DCA 2006) .................................................................................16, 32 Yauncey v. Hamilton, 786 S.W.2d 854 (Ky. 1989) .....................................................................................................21 Rules Fed. R. Civ. P. 56(a) ......................................................................................................1, 14, 15, 25 Fed. R. Civ. P. 56(c)(1) ..................................................................................................................15 Fed. R. Civ. P. 12(b)(6)............................................................................................................15, 30 Other Authorities Restatement (Second) of Conflict of Laws § 150(2) .......................................................................16 Restatement (Second) of Torts § 581A cmt. h (1977). ...................................................................23 Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 11 of 47 M D Houghton (together for summ prejudice advanced continued P author Ja statemen (the “Boo allegation until now F privilege reports, c Montgom S opinion a allegedly and “craz subjectiv 1 Pending jurisdicti inconven Court gra OTION FO efendants Ja Mifflin Ha “Defendant ary judgme .1 Defendan in this mot chilling ef laintiff Denn mes Risen, h ts in Chapte k”), that rep s widely pu . The Cour irst, Montgo protects the ourt records ery rigged econd, other nd rhetorica perpetuated y,” that he w e opinions p before this on over Rise ient forum, nts that mot R SUMMA mes Risen, rcourt Com s”), respectf nt under Fed ts request a ion and the i fects of this I. is Montgom is publishe r 2 (“Chapte ort allegatio blished in a t should gra mery’s Am Chapter, w , and statem demonstratio statements l hyperbole was “one o as motivat rotected by Court are D n and HMH and to dismi ion on any g RY JUDG Houghton M pany (“HMH ully move t . R. Civ. P. 30-minute h mportance o action on fre PRELIM ery brings r HMH, and r”) of his bo ns that Mon rticles since nt Defendan ended Comp hich accurat ents in cong ns and prov Montgomer , not verifiab f the most e ed by “greed the First Am efendants’ m C, to dismi ss for failur round, it ne 1 MENT AN ifflin Harc C”), impro his Court fo 56(a) and d earing due f deciding t e speech. INARY ST this libel act HMH’s hol ok, Pay Any tgomery de 2008, that w ts summary laint is barr ely summar ressional re ided bogus y challenge le statemen laborate and ” and accus endment, b otion to di ss or transfe e to state a c ed not reach D REQUE ourt Publish perly sued a r an Order g ismissing th to the numb his motion w ATEMENT ion against ding compa Price: Gre frauded the ere never t judgment fo ed by the fa ized official cords – all o software to s are non-ac ts of fact. T dangerous ed of being ased on disc smiss or tran r for improp laim. (ECF summary j ST FOR HE ing Compan s HMH Hol ranting Def e Amended er of dispos ell before t Pulitzer Priz ny HMHC, ed, Power, federal gov he subject o r the follow ir report pri documents, f which alle the federal g tionable exp hat the hoax hoaxes in A a “con artist losed facts. sfer for lac er forum, to Nos. 25 an udgment. ARING y (“HMH”) dings, Inc., endants’ mo Complaint w itive ground rial to avoid e-winning arising from and Endless ernment – f a libel clai ing reasons vilege. The including F ged that overnment. ressions of Montgome merican his ,” are all k of persona transfer for d 52.) If the , and tion ith s the War m : BI ry tory” l Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 12 of 47 2 Third, his deliberate failure to produce what Magistrate Judge Goodman has said is the “critical” evidence in the case – the software at the heart of his claim – compels the conclusion that he cannot meet his burden to prove falsity as a matter of law. He claims his software works and that the Book was false when it reported allegations that his software was a fraud. Without his software, he cannot prove – and Defendants cannot test – that it works. Fourth, even if Montgomery could carry his burden to prove falsity, as a limited-purpose public figure, he has not and cannot put forth “concrete,” “affirmative evidence” that would allow a reasonable jury to find, by clear and convincing evidence, that Defendants published with actual malice, or indeed, any other applicable standard of fault. Risen interviewed Montgomery and published his denials; interviewed high-level government officials involved, as well as those close to Montgomery; relied on reputable news articles; and relied on official records, including testimony of his former business partner, his former lawyer, and Montgomery’s own repeated invocation of the Fifth Amendment privilege against self- incrimination when asked in deposition whether his software was a fraud, and the 2013 Congressional testimony of John Brennan, now Director of the CIA, who testified that Montgomery’s software “was determined not to be an accurate source of information.” Given this undisputed record, Plaintiff cannot carry his burden of showing that Risen or his publisher knew what they were publishing was false or had serious doubts as to the truth. Fifth, Montgomery’s other tort claims are barred for the same reasons as the libel claims and because he cannot prove the elements of those claims. Libel cases such as this that “impinge[] upon” fundamental free speech and press rights under First Amendment, lie in a “different category” where granting summary judgment to defendants is the rule, not the exception. Time, Inc. v. McLaney, 406 F.2d 565, 566 (5th Cir. 1969) (reversing denial of summary judgment on interlocutory appeal in libel action requiring actual malice against magazine publisher). This is a classic example of where “the failure to dismiss a libel suit might necessitate long and expensive trial proceedings, which, if not really warranted, would themselves offend … [First Amendment principles] because of the chilling Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 13 of 47 effect of and dism P fraud, an (SUMF ¶ after the intelligen context, R reports, m Pentagon challenge Invokes N A It the Chap and Aram Dec. 200 around C flights ba 11.) The who adm 2 The new U.S. ex r judicial n of determ those stat notice is 187 F.3d such litigati iss this fatal ay Any Pric d abuse by U 5.) Chapte terrorist atta ce – no mat isen recoun ost notably (“Playboy s, and a 201 ational Sec Media. is undispute ter, and Rise Roston at N 3: CIA Expe hristmas 20 sed on non- article quot itted that: th s articles an el. Osheroff otice of doc ining which ements).”); properly tak 1271, 1279 on.” Id. Th ly flawed A II e is a nine-c .S. governm r 2 of the Bo cks of Septe ter how susp ts Montgom a 2010 Play Article”), w 1 New York urity, which Coverage d that Mont n relied on BC News rts Saw Sec 03, the U.S. existent Al Q ed Tom Rid e intelligen d court and v. Humana uments such statements Farah v. Es en of public -80 (11th Ci e Court shou mended Com STAT. hapter book ent official ok, titled T mber 11, 20 ect – that m ery’s story boy Magaz hich reveale Times artic Risen co-au of Montgom gomery wa that coverag published an ret Code on government aeda codes ge, former S ce was “biz congression Inc., 776 F.3 as the new the docume quire Magaz ly available r. 1999) (jud 3 ld thus ente plaint with EMENT OF that describ s and the co he Emperor 01, governm ight preven retreading g ine feature t d the centra le titled Hid thored (“N ery Before s subject to e e. (SUMF ¶ article, title Al-Jazeera wrongly ra allegedly e ecretary of arre, unique al records a d 805, 811 spaper articl nts contain ine, 736 F.3 historical ar icial notice r summary prejudice. FACTS es how the w ntractors wh of the War o ent official t the next te round cover itled The Ma l allegations ing Details ew York Tim the Book xtensive m 10.)2 In Ju d Bogus An that Wasn’t ised the terr mbedded in the Departm , unorthodox re admissib n.4 (11th Ci es at issue h (but not for d 528, 534 ticles.”); Br of public re judgment fo ar on terro o stood to g n Terror, f s were willi rrorist attack ed by previ n Who Con Montgome of Dubious D es Article” and Risen’s edia coverag ne 27, 2005 alysis Led t There, whic or alert leve Al Jazeera ent of Hom , unprecede le under jud r. 2015) (“[C ere for the l determining (D.C. Cir. 2 yant v. Avad cords). r Defendant r led to wast ain from it. ocuses on ho ng to accept . (Id.) In th ous media ned the ry now eal, U.S. ). (Id.) Reliance o e years befo , Lisa Meye o Terror Ale h revealed t l and cancel broadcasts. eland Secur nted”; he icial notice. ]ourts may imited purp the truth of 013) (“Judic o Brands In s e, w, any at n It re rs rt in hat, ed (Id. ity, take ose ial c., Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 14 of 47 4 “wonder[ed] whether or not it was credible”; and “we weren’t certain” about this intelligence at the time. (Id.) Ridge “confirmed there were no secret terror messages” and “no evidence that terrorist were actively plotting against aviation at that time.” (Id.) On November 1, 2006, Montgomery became the subject of extensive media coverage when the Wall Street Journal ran a front-page story titled Congressman’s Favors for Friend Include Help in Secret Budget, revealing that Montgomery had accused then-Congressman, later Nevada Governor, Jim Gibbons of taking bribes from Warren Trepp, Montgomery’s former business partner at eTreppid Technologies (“eTreppid”). (SUMF ¶ 12.) In a follow-up Wall Street Journal article titled Nevada Governor Faces FBI Probe Into Contracts, Trepp accused Montgomery of giving “false testimony” in their litigation over Montgomery’s software. (Id. ¶ 13.) Montgomery exploited the media spotlight, giving an interview to Lisa Meyers of NBC News, the journalist who wrote the 2005 story on bogus Al Jazeera codes, on May 11, 2007, in which he repeated the “explosive charge” against Trepp and Gibbons. (Id. ¶ 14.) Gibbons was ultimately cleared in 2008, with his lawyer saying to the press: “It should be crystal clear that the only persons who should be investigated or charged are those who made false allegations of wrongdoing and who tried to fuel this investigation for their own private purposes.” (Id. ¶ 15.) By creating the controversy over whether Trepp bribed a public official to steer government contracts to eTreppid, Montgomery invited media scrutiny of his litigation with eTreppid, in which public records disclosed his once secret work for the U.S. government. For instance, an August 4, 2007 article published in the Reno Gazette-Journal titled eTreppid Court Documents Unsealed, publicized Montgomery’s statements in his newly unsealed declaration in which he claimed that his technology warned of and thwarted terrorist attacks around the world. (SUMF ¶ 16.) Montgomery was identified as a contractor who allegedly provided the bogus intelligence from Al Jazeera to the government in an August 2008 Bloomberg News article titled Yellowstone Club Divorcee Entangled in Terrorist Software Suits. (SUMF ¶ 17.) The article summarized Trepp’s allegations in court records that Montgomery stole eTreppid’s “computer code that purportedly could sift through broadcasts from Qatar-based news network Al-Jazeera Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 15 of 47 5 and find embedded messages to terrorists,” and quoted Montgomery’s former attorney’s charge that the “software was a sham.” (Id.) The Bloomberg Article also revealed, based on public FBI reports in Montgomery’s cases, that fellow employees at eTreppid told the FBI that Montgomery made them rig demonstrations of his software to sell it to visiting government officials. (Id.) Then again in 2010, the Playboy Article, written by Aram Roston, who worked on the 2005 NBC article, revealed the central allegations Montgomery now challenges. Its investigation claimed that Montgomery rigged software demonstrations and sold the U.S. government sham “noise filtering” software to decode purported Al Qaeda messages hidden in Al Jazeera broadcasts – bogus intelligence that led the White House to ground international flights around Christmas in 2003. (SUMF ¶ 18.) Soon after, the Playboy Article explained, a French contractor determined that not enough pixels existed in Al Jazeera broadcasts to include the hidden messages and the CIA and the White House soon concluded that they had been hoodwinked. The article quoted Sloan Venables, Montgomery’s co-worker, who stated that he doubted Montgomery’s software existed. (Id.) The article noted that, because of the secrecy surrounding the project, other government agencies continued to contract with Montgomery until 2009. The article quoted Joseph Liberatore, a former Air Force official who worked with Montgomery on the 2009 contract, who said the Air Force was just looking at Montgomery’s software “to see if there was anything there,” and an Air Force spokesman who said the Air Force’s evaluation of Montgomery’s software was “inconclusive” so it ended discussions. Risen and Eric Lichtblau’s 2011 New York Times Article covered much of the same material, but, based on government sources, added that the White House had considered shooting down transatlantic flights based on Montgomery’s intelligence and focused on the U.S. government’s use of the state-secrets privilege to cover up Montgomery’s misdeeds and the government’s gullibility. (SUMF ¶ 19.) The article quoted Liberatore, who said in 2008 that he supported Montgomery but he realized that others in the government did not think Montgomery was credible. (Id.) The article also quoted Steve Crisman, Montgomery’s co-worker at Blxware (the company where Montgomery worked after eTreppid), who said he believed Montgomery’s Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 16 of 47 technolog depositio ‘I’m goin In Gave Bog Jose A. R intelligen National passed al believed M Wikipedi the image on his Tw was in th addressed to obtain R York Tim published (Id. ¶ 22. Risen wr after Rise facts afte B A y was not r n in Novem g to assert m a 2012 arti us Intel to B odriguez, Jr ce and view Security Co ong the info in the verac ontgomery a page abou of the title itter page. e hospital, w in the Cha publicity be isen express es Article. numerous ) These arti ote in the Ch n interview r nearly ten Relian. Allega s with his N eal. (Id.) N ber 2010, “w y right und cle by Aram ush White H ., said the C ed it as “cra uncil (“NSC rmation to t ity of the inf ’s actions an t him descri page of the (SUMF ¶ 22 hen he soug pter – to Fox cause the re ly acknowle (SUMF ¶ 2 news stories cles – never apter. The ed him. (Id years in circ ce on FBI tions of Fa ew York Ti otably, the N hen asked i er the Fifth Roston in D ouse,” the ounterterror zy.” (SUM ”), echoed t he White Ho ormation” f d this media bes the alleg Playboy Art .) He conti ht to public News. (Id porter said M dges in the 4.) Risen re about Mon retracted, m Book added . ¶ 45.) Mon ulation. Reports, Co ke Softwar mes Article 6 ew York T f his softwa Amendmen efense New then-head o ism Center F ¶ 21.). To hese views, use, “[i]t is rom Montgo coverage m ations that icle, The M nued to seek ize his whis . ¶ 23.) Fox ontgomery Book that h lied on thes tgomery bef uch less the Montgome tgomery su urt Docum e and prior m imes Article re was a ‘co t.” (Id.) s, “Obama f the CIA’s was “very s mmy Vieto stating that absolutely w mery. (Id.) ade him no he defrauded an Who Con media atte tleblower al News, how lied to him e relied on t e and other r ore release o subject of ry’s denials ed here to ch ents, and C edia accoun said that, in mplete frau ’s Counterte Counterterr keptical” of r, former sp , although Jo rong to say torious befo the federal ned the Pen ntion into 20 legation – w ever, rejecte . (Id.) he Playboy eputable me f the Book a lawsuit – a to the narra allenge pub ongression ts, Risen pri Montgome d’, he answe rrorism Cza orism Cente Montgomer okesman for hn Brennan Mr. Brenn re the Book governmen tagon, was 14, even w hich Risen d his furthe Article and N dia outlets in October 2 ll track wha tive, obtaine lication of t al Records marily base ry’s red, r r, y’s the an . A t, and posted hile he r efforts ew that 014. t d hese for d the Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 17 of 47 7 Chapter on court records and other official documents. The Chapter refers to FBI interviews of Trepp and eTreppid employees. The Book expressly states that, “according to court documents that include his statements to the FBI,” Montgomery’s software was fake because “Trepp later told the FBI that he eventually learned that Montgomery had no real computer software programming skills.” (SUMF ¶ 25) (emphasis added). Similarly, the Chapter accurately quotes statements in FBI reports in which eTreppid employee Sloan Venables began to suspect Montgomery’s software was fake. Venables “told the FBI that another employee, Patty Gray, began to suspect that Montgomery ‘was doing something other than what he was actually telling people he was doing’” and “added in his statement to the FBI that he knew that ‘Montgomery promised products to customers that he had not been completed or even assigned to programmers.’” (Id. ¶ 26) (emphasis added). Then, citing court documents, the Chapter states: “Over the Christmas holidays [of 2005], Montgomery allegedly went into eTreppid’s offices and deleted all of the computer files containing his source code and software development data, according to court documents.” (SUMF ¶ 28) (emphasis added). Later, “[a]ccording to court documents, [Trepp] told the FBI that Montgomery had stolen the software eTreppid had used on secret Pentagon contracts” but “[a]s federal investigators moved in to investigate the alleged theft of the technology, they heard from Trepp and others that Montgomery’s alleged technology wasn’t real.” (Id.) (emphasis added). The Chapter correctly summarizes FBI reports contained in court records showing that the technology “wasn’t real.” (Id.) The Chapter also recounts how Montgomery’s later benefactor and business partner at Blxware, Edra Blixseth, was “going through an extremely bitter divorce, and Montgomery became caught up in their legal battles.” (SUMF ¶ 29.) “Mysteriously, government lawyers sometimes sought to intervene in their court cases ... to keep classified information stemming from Montgomery’s work with the intelligence community out of the public records.” (Id.) In those public court records, Edra’s ex-husband, Tim Blixseth, alleged the fraud in an affidavit: “Montgomery and Edra Blixseth have engaged in an extensive scheme to defraud the U.S. Government,” a “fraud [that] involves Mr. Montgomery’s purported ‘noise filtering software Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 18 of 47 8 technology,’ which “does not exist, yet has been used repeatedly by Edra Blixseth and Montgomery to commit financial frauds ....” (SUMF ¶ 29.) Michael Flynn, Montgomery’s former attorney, stated there in an affidavit: “Blxware possesses no marketable technology, the technology as represented does not exist[.]” (Id.) The Book recounts that Montgomery’s gambling and other debts led to bankruptcy and his arrest for passing $1 million in bad checks. (SUMF ¶ 30.) In that bankruptcy proceeding, Flynn told Montgomery in a deposition: “I know you conned me and you conned the U.S. Government. . . . You’re a computer hacker and you’re a fraud, Mr. Montgomery.” (Id.) The Book also expressly relies on congressional records to confirm that Montgomery’s software was fake. The Book explains that, “[a]t the time of the Christmas 2003 scare, John Brennan was the head of the Terrorist Threat Integration Center,” which “meant that Brennan’s office was responsible for circulating Montgomery’s fabricated intelligence to officials in the highest reaches of the Bush administration.” (SUMF ¶ 30.) The Book states that, “[i]n 2013, while the Senate was considering whether to confirm Brennan to run the CIA, Senator Saxby Chambliss, a Georgia Republican who was vice chairman of the Senate Intelligence Committee, submitted a written question to Brennan about his role in the intelligence community’s dealings with Montgomery.” (Id.) Indeed, Senator Chambliss’ written question titled “Bogus Intelligence,” states that “[m]edia reports indicate that when you led the Terrorist Threat Integration Center (TTIC), you championed a program involving IT contractors in Nevada who claimed to intercept al-Qaida targeting information encrypted in the broadcasts of TV news network Al Jazeera.” (Id.) The written questions confirm in congressional records that not only “[t]he media” but “documents we have reviewed show, that CIA officials derided the contractor’s information, but nonetheless, you passed it to the White House and alert levels ended up being raised unnecessarily.” (Id.) (emphasis added). Accurately quoting Brennan’s response, the Book states that, “[i]n response”: (1) “Brennan denied that he had been an advocate for Montgomery and his technology”; (2) “insisted that the Terrorism Threat Integration Center was merely a recipient of the information and data, which had been passed on by the CIA”; (3) he “included Montgomery’s data ‘in analytic Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 19 of 47 products source of C T described had asked officials told two they hear hidden ce on a com prominen court doc Montgom Montgom the Book D T documen placed go Station C that: som Frances T an NSC l threats; T down pas ’”; and (4) c accurate in Relian. Demo he Book als to federal i them to he came to visi eTreppid em d a beep on ll phone to puter keybo tly displaye uments.” (I ery’s comp ery’s hands accurately d Relian. he undispute tation to sup vernment s hief in 2003 e high-leve ownsend, a awyer that t ownsend co senger jets onfirmed tha formation.’” ce on FBI nstrations o o explicitly nvestigators lp him falsif t.” (SUMF ployees to g a cell phone buzz the cel ard, which i d in front of d.) (emphas uter softwar .” (Id.) Th escribes the ce on Inter d facts show port the stat ources. Rise when Mon l CIA offici former Wh he president nsidered wh over the Atl t Montgom (Id.) (emp Reports an f Software relies on cou how eTrepp y tests of hi ¶ 31.) Indee o into an em .” (Id.) Th l phone of o n turn flashe the military is added). T e had amazi e Book agai FBI report views with that Risen ements he w n interview tgomery per als did not b ite House co had authori ether it mig antic in late 9 ery’s purpor hasis added d Court Do to U.S. Gov rt records a id employe s object reco d, “Trepp s pty office a en “[a]fter h ne the eTrep d an image officers sta hus, “[t]he ngly detecte n includes M contained in Sources an relied on ex rote in the ed and relie petrated his elieve Mont unterterrori ty to shoot d ht have been 2003 based ted software ). cuments for ernment O nd FBI repo es had conf gnition soft aid that on o nd push a b e was in pla pid employ of a bazook nding in an military offi d and recog ontgomery court docu d Documen tensive inte Chapter. Ri d on William hoax on the gomery’s in sm official o own airplan time to ex on Montgom “‘was dete Allegation fficials rts, in which ided to him ware when ne occasion utton on a c ce in the fie ees, who the a on another other room, cers were co nized the ba ’s denials. ( ments. (Id. ts rviews with sen had num D. Murray CIA. Murr telligence a n the NSC, es believed ercise that a ery’s intell rmined not s of Rigged “Trepp als that Montgo Pentagon , Montgome omputer wh ld, he used a n pushed a screen according t nvinced tha zooka in Id.) Once a ) sources and erous well- , CIA Paris ay told Rise t the time; discussed w to be terror uthority to s igence; Fren to be a o mery ry en key o t gain, n ith ist hoot ch Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 20 of 47 10 intelligence and a technology company conducted a study showing there were not enough pixels in the Al Jazeera broadcasts to include hidden Al Qaeda messages; and the CIA concluded that Montgomery’s intelligence based on his purported software was fake. (SUMF ¶ 34.) Murray was described as a “former senior CIA official” in the Chapter. (Id.) Risen also interviewed another “former senior CIA official,” the now late Tyler Drumheller, the CIA European Division Chief in late 2003, who corroborated Murray’s statements to Risen. (Id. ¶ 35.) Risen obtained comment from CIA Office of Public Affairs officials, who said the CIA did not have a contract with Montgomery when he was providing data from Al Jazeera videotapes and that his “threat detection tools were not exactly as billed.” (SUMF ¶ 36.) Risen interviewed Melvin Dubee, a former staff member on the U.S. Senate Select Committee on Intelligence, who said that committee staff contacted the CIA about Montgomery’s technology and the CIA was “very skeptical of it at the time.” (Id. ¶ 37.) Risen interviewed former White House officials. Risen interviewed Townsend, and as the Chapter reflects, she denied considering shooting down planes, but Murray reaffirmed his statements when Risen told him Townsend’s denial. (SUMF ¶ 38.) Townsend told Risen she believed Montgomery’s was probably the biggest hoax that reached the president. (Id.) Risen interviewed Samantha Ravich, former advisor to Vice President Dick Cheney, who confirmed she met with Montgomery in the White House, but refused the technology absent proof that the software worked, which she said was never forthcoming. (Id. ¶ 39.) Risen obtained comment from current and former officials from other agencies with which Montgomery worked. That includes U.S. Special Operations Command (“SOCOM”) officials, who said that Montgomery’s technology did not meet SOCOM’s requirements, and an Air Force spokesman, who provided a statement stating that the Air Force awarded a contract to Montgomery’s company in 2009 but that “the contractor did not perform in accordance with the terms of the contract.” (SUMF ¶ 40, 41.) Risen also interviewed individuals close to Montgomery. The ex-husband of Edra Blxware, Tim Blixseth, described a demonstration of the Al Jazeera software Montgomery gave Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 21 of 47 to him in Flynn, re and havin E M allegation federal g software software, sham, an terrorist t transatlan now belie M investiga (SUMF ¶ [who] ‘co ‘create[d that he w F T software software objected disclose t again ref California. peated his st g “conned” Comp. ontgomery : that Risen overnment b worked and which supp d that the in hreat level i tic flights, “ ve was one ontgomery tive reports 47.) He tak ncluded tha ] a rogue int as ‘someone Mont. Pendi o defend ag allegedly w referred to i to the reque he locations used to discl (SUMF ¶ 4 atements m him and oth laint Alleg ’s 271-page, and HMH y peddling b existed. Id osedly deco telligence he n late 2003, what many of the most also challen that Montgo es issue wi t Montgome elligence op who has be gomery’s F ng Motion ainst Montg orks, on Jun n the Amen st to produc as “largely ose “the loc 3.) In interv ade in court ers. (Id. ¶ 4 ations 268-paragra defamed him ogus softw . In particul ded hidden passed on t ground inte current and elaborate an ges allegatio mery rigged th the statem ry was a fra eration with en accused ailure to Pr for Sanctio omery’s clai e 1, Defend ded Compla e the softwa irrelevant.” ation of the 11 iews, Mont records acc 2.) ph Amende by publish are. (SUMF ar, Montgom Al Qaeda m o federal ag rnational fli former U.S d dangerou ns former e demonstrat ents in the C ud,’” and “t little or no of being a c oduce the C ns for Spoli m that state ants request int. (SUMF re as, e.g., “ (Id.) On Ju relevant sof gomery’s fo using Montg d Complain ing allegati ¶ 46.) He ery takes is essages in A encies led th ghts, and co . officials an s hoaxes in Treppid em ions of his o hapter from hat out of ‘g adult superv on artist.’” ritical Soft ation and V ments in the ed a copy an ¶ 48.) On J burdensome ly 15, Mon tware.” (Id rmer lawyer omery of b t boils down ons that he d claims falsit sue with sta l Jazeera br e White Ho nsider shoot d others fam American h ployees mad bject recog Montgom reed’ Plain ision’ whic (Id.) ware and D iolation of Book are fa d the locatio uly 1, Mont ,” and the re tgomery’s r .) He also re , Michael eing a “frau to one cen efrauded th y alleging th tements tha oadcasts, w use to raise ing down iliar with th istory.” (Id. e in FBI nition softw ery’s “lawye tiff Montgom h was ‘crazy efendants’ Court Ord lse because ns of the gomery quest to evised objec fused “to d” tral e at the t his as a the e case ) are. r ery ’ and ers the tions Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 22 of 47 12 produce a copy of any software,” asserting it is “secret” classified information. (Id.) He did not state the software was outside his possession, custody, or control. On August 4, 2015, Defendants cited to Judge Goodman orders in Montgomery’s prior cases show that his software is not classified, yet he has repeatedly refused to produce it. (ECF No. 94.) In a case in which Montgomery’s former employer, eTreppid, sued Montgomery for allegedly misappropriating the subject software, the U.S. government moved for and obtained a protective order under the state secrets privilege to protect certain classified information from discovery (“U.S. Protective Order”). (SUMF ¶ 49.) But the U.S. Protective Order specifically excluded Montgomery’s software from its scope. (Id.) Thus, the judge in Nevada found that “[t]he clear understanding in drafting and issuing th[e] [U.S.] protective order was that the parties would be discussing the nature and capabilities of the technology.” (Id.) Still, Montgomery refused to produce the software in both the Nevada litigation and in his bankruptcy proceedings in which the U.S. Protective Order was also entered. In the Nevada action, the magistrate and district judges repeatedly ordered him to produce the software, but he refused. (SUMF ¶ 50.) Thus, the district judge held him in contempt, imposing a penalty of $2,500 per day until he produced the software. (Id.) Instead of producing it, he settled the action and signed confessions of judgment for over $25 million. (Id.) Then, he declared bankruptcy, refused to produce or describe the software in bankruptcy, and was thus denied discharge. (Id.) Montgomery repeated this pattern here. In his August 20, 2015 deposition, he testified that he searched for the software in response to Defendants’ discovery requests and gave his only copy of the software to the FBI on August 19, 2015. (SUMF ¶ 51.) At the August 21 hearing on Montgomery’s refusal to produce the software, Montgomery’s counsel confirmed Montgomery’s deposition testimony. Id. Judge Goodman found “the software is highly relevant” (id.) and credited the Nevada court’s finding that the software was not classified. (Id.)3 3 In a November 13, 2015 letter responding to Defendants’ subpoena, the CIA said it “conducted a search of its records and did not locate ‘a copy of Montgomery’s software, including but not limited to video compression software or noise filtering software Montgomery allegedly used to detect hidden Al Qaeda messages in Al Jazeera broadcasts.’” (SUMF ¶ 59.) The CIA declined Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 23 of 47 13 On August 22, 2015, Judge Goodman entered an order requiring Montgomery to “use his self-described right of continued access to non-classified information” from the FBI “and produce the software to Defendants.” (SUMF ¶ 52.) The order also required him to produce, by August 31, “all” communications with persons who know about the software and its location, including with the FBI, and produce the software by September 4. (Id.) On September 3, 2015, Judge Goodman denied Montgomery’s motion for a stay pending his objection. (SUMF ¶ 53.) Judge Goodman “agreed with Defendants’ position that the software is ‘highly relevant.’” (Id.) He found that “Plaintiff’s burden to prove falsity does not hinge on whether he [Risen] ever had a copy of the software” but rather “the critical fact issue is whether in fact the software worked.” (Id.) Thus, “Defendants have the right to inspect and test the software.” (Id.) He concluded the software is “highly relevant” and “critical” evidence Montgomery must produce. (Id.) The judge also found Montgomery intended “to sequester what could be the most important evidence in the entire case.” (Id.) On September 4, 2015, Montgomery failed to produce the software; he filed his objection. (SUMF ¶ 54.) On September 8, the FBI General Counsel explained that Montgomery gave the FBI the software in “hard drives contain[ing] 51.6 million files amounting to 600 million pages.” (Id.) He concluded “there is no reasonable way for the Government to locate and provide the alleged software, absent specific instructions from” Montgomery. (Id.) On October 19, 2015, Judge Goodman again ordered Montgomery: to produce his communications with the FBI, now by October 20; to give the FBI comprehensive instructions to locate the software or state that he cannot by October 21; and to produce the software by October 26, 2015. (SUMF ¶ 55.) The order permitted Defendants to file a motion for dismissal or adverse inference sanctions if Montgomery failed to comply. (Id.) Judge Goodman again held “that this particular software is, in fact, critical evidence in the case, because this is a defamation case, and one of your main burdens as the Plaintiff is to prove … to prove the falsity to look for any other requests, saying some of it might be classified, thus suggesting the software for which the CIA searched was not classified – consistent with its position in prior litigations. Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 24 of 47 of the all O contradic Judge Go searching did I prov (SUMF ¶ now loca O Montgom drives to October 2 for a stay grounds t (id.), whi Plaintiff’ the FBI’s Montgom A U there is n matter of party, “th otherwise of materi egation.” (I n October 2 ting his prio odman. Hi my memor ide it to the 56.) He do ted, or his a n October 2 ery’s couns locate softw 6, 2015, M . (Id.) On O hat Montgo ch is pendin s counsel sta position wa ery’s softw The C. Mater Law o nder Rule 5 o genuine d law.” Alth e mere exis properly su al fact.” An d.) (emphas 1, 2015, in a r deposition s declaration y, I do not b Federal Bu es not expla bout-face af 3, 2015, the el that, give are request ontgomery d ctober 28, mery spolia g before Jud ting that M s unchange are. (SUMF ourt Shoul ial Fact Ex n Plaintiff’ 6(a), “[t]he ispute as to ough the Co tence of som pported mo derson v. Li is added). n about-fac testimony, states: “Ba elieve that I reau of Inve in how he d ter he knew FBI Assista n Montgom ed in the Ris id not produ 2015, Defen ted the softw ge Goodma ontgomery h d from his O ¶ 60.) III. d Grant Su ists and De s Libel and court shall g any material urt views th e alleged fa tion for sum berty Lobby 14 e, Montgom and his coun sed on my p have had ac stigation (“F oes not have he could fac nt General C ery’s declar en litigation ce the softw dants filed t are and vio n. On Dece ad not give ctober 23 e ARGUMEN mmary Jud fendants A Related To rant summa fact and the e evidence i ctual disput mary judgm , Inc., 477 U ery filed a d sel’s Augu ersonal kno cess to any BI”) when access to h e severe san ounsel, Te ation “the F .” (SUMF ¶ are. He fil heir motion lated multip mber 11, 20 n the FBI th mail that the T gment Bec re Entitled rts Claims ry judgment movant is n a light fav e between th ent”; there .S. 242, 24 eclaration d st 21 represe wledge and of the subje I turned ove is own softw ctions. d Schwartz, BI will not 57) (emph ed an object for dismiss le court ord 15, Schwar e necessary FBI was no ause No Dis to Judgmen if the mova entitled to ju orable to the e parties wi must “be no 5, 247-48 (1 irectly ntations to belief, upon ct software, r the drives are, where emailed search the asis added). ion and requ al sanctions ers to produ tz emailed information t searching pute as to A t as a Matt nt shows th dgment as a non-movin ll not defeat genuine iss 986); see al nor ....” it is On est on ce it and for ny er of at g an ue so Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 25 of 47 15 Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986). Here, Montgomery carries the burden of proof at trial, so Defendants may obtain summary judgment simply by establishing that no genuine issue of material fact exists as to an essential element of Montgomery’s claim or an affirmative defense. Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). Defendants do not need to “support [their] motion with affidavits or other similar material negating the opponent's claim.” Id. at 323. Defendants may meet this burden by demonstrating “an absence of evidence to support [Montgomery’s] case.” Id. at 325. Once Defendants meet this initial burden, Montgomery must cite “to particular parts of materials in the record” or show “that the materials cited do not establish the absence … of a genuine dispute.” Fed. R. Civ. P. 56(c)(1). Modern litigation, and particularly trial, is cripplingly expensive regardless of the outcome, so Rule 56(a) helps weed out meritless claims. Such concerns are especially present in defamation cases, where forcing defendants to incur unnecessary costs defending ultimately meritless suits can chill speech.4 Thus, in libel cases particularly because of their potential chilling effect on speech about important issues to our democracy (such as the conduct of our counter-terrorism defenses raised in the Book), courts routinely grant motions for summary judgment on libel and related claims on the grounds set forth in this motion and appellate courts routinely affirm and even reverse for failure to grant summary judgment.5 Under D.C. law, or 4 Time, 406 F.2d at 566; Farah, 736 F.3d at 534 (recognizing in affirming Rule 12(b)(6) dismissal that “summary proceedings are essential in the First Amendment area because if a suit entails ‘long and expensive litigation,’ then the protective purpose of the First Amendment is thwarted even if the defendant ultimately prevails”) (quoting Washington Post Co. v. Keogh, 365 F.2d 965, 968 (D.C. Cir. 1966); McBride v. Merrell Dow & Pharms, Inc., 717 F.2d 1460, 1467 (D.C. Cir. 1983) (“District of Columbia law … endorses the use, where possible, of summary procedures in handling libel actions.”); Stewart v. Sun Sentinel Co., 695 So. 2d 360, 363 (Fla. 4th DCA 1997) (citing, inter alia, Keogh, 365 F.2d at 968) (“Where the facts are not in dispute in defamation cases, however, pretrial dispositions are ‘especially appropriate’ because of the chilling effect these cases have on freedom of speech.”). 5 See, e.g., Cook-Benjamin v. MHM Corr. Servs., Inc., 571 F. App’x 944, 947 (11th Cir. 2014) (affirming grant of summary judgment for lack of falsity and grounds of opinion); Sirpal v. Univ. of Miami, 509 F. App’x 924, 930-31 (11th Cir. 2013) (affirming grant of defendants’ summary judgment motion on libel claim for failure to prove falsity); Info. Sys. & Networks Corp. v. City Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 26 of 47 16 any other applicable law,6 Plaintiff fails to meet his burden to demonstrate critical elements of his claim as a matter of law: (1) that the statements are non-privileged; (2) that the statements are facts, rather than protected opinions; (3) that the statements at issue are substantially false, and (4) that the Defendants acted with fault, here knowledge of falsity or serious doubt as to of Atlanta, 281 F.3d 1220, 1228 (11th Cir. 2002) (affirming summary judgment for defendant on libel claim arising out of statement of opinion); Dunn v. Air Line Pilots Ass’n, 193 F.3d 1185, 1188 (11th Cir. 1999) (affirming summary judgment to defendants when plaintiff could not prove falsity or actual malice); Silvester v. ABC, 839 F.2d 1491, 1498 (11th Cir. 1988) (affirming summary judgment to media defendants for lack of actual malice); Time, 406 F.2d at 566 (reversing denial of motion for summary judgment and remanding with directions enter summary judgment for media defendant for lack of actual malice); Klayman v. City Pages, 2015 WL 1546173, at *7, *12-13 (M.D. Fla. Apr. 3, 2015) (granting summary judgment to media defendant in libel action for lack of actual malice), appeal pending, No. 15-12731-GG (11th Cir. June 18, 2015); Stroud v. Bank of Am., 886 F. Supp. 2d 1308, 1316 (S.D. Fla. 2012) (granting defendant summary judgment on libel claims because plaintiff failed to adduce evidence of falsity, malice, or willful intent); Dubai World Corp. v. Jaubert, 2011 WL 579213, at *14 (S.D. Fla. Feb. 9, 2011) (granting counterclaim-defendant summary judgment on libel claim for insufficient evidence of actual malice); Krohngold v. Nat’l Health Ins. Co., 825 F. Supp. 996 (M.D. Fla. 1993) (granting summary judgment for defendant in libel action where no genuine issue of material fact whether the statement was false); Wolf v. Ramsey, 253 F. Supp. 2d 1323, 1353 (N.D. Ga. 2003) (granting author defendants summary judgment for lack of actual malice); Stewart, 695 So. 2d at 361-62 (granting summary judgment to media defendants under the fair report privilege and for lack of actual malice); Don King Prods., Inc. v. Walt Disney Co., 40 So. 3d 40, 46 (Fla. 4th DCA 2010) (granting summary judgment to media defendant for lack of actual malice); Thomas v. Patton, 2005 WL 3048033 (Fla. 4th Cir. Ct. Oct. 21, 2005) (same), aff’d, 939 So. 2d 139 (Fla. 1st DCA 2006). 6 “A federal district court sitting in diversity applies the choice-of-law rules of the forum state.” Castellanos v. Pfizer, Inc., 2008 WL 2323876, at *3 (S.D. Fla. May 29, 2008). In tort cases, Florida courts apply the “significant relationship” test, which provides that “[t]he rights and liabilities of the parties ... are determined by the local law of the state which ... has the most significant relationship to the occurrence and the parties[.]” Bishop v. Fla. Specialty Paint Co., 389 So. 2d 999, 1001 (Fla. 1980). Where, as here, the claim involves allegedly defamatory statements circulated nationwide, the state with the most significant relationship “will usually be the state where the person was domiciled at the time, if the matter complained of was published in that state.” Restatement (Second) of Conflict of Laws § 150(2). Other considerations include: “(a) the state or states where the defendant did his act or acts of communication, such as assembling, printing and distributing a magazine or book and (b) the state or states of the defendant’s domicil[e] ....” Id. § 150(2) cmt. e. Although Montgomery claims to be a Florida citizen, discovery has shown that he was a citizen of Washington State at the time of publication, and even now. (ECF Nos. 52, 118.) D.C. bears the most significant relationship to this lawsuit because that is where Risen conducted the primary newsgathering and wrote much of the Chapter. (Id.; SUMF ¶ 6.) The Court need not decide which law applies because, on the issue here, the law of the relevant jurisdictions is the same. Defendants cite D.C. and Florida law here. Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 27 of 47 truth, as r B M Chapter a and relate records, c underlyin and fair, proceedin 695 So. 2 documen contain e the critic and accu advancin affairs.”9 comparin 7 Jankovi under D. plaintiff; the defen that the s publicati Florida la third part amountin 8 Coles v (D.C. Cir 9 Harper 10 See Q I (dismissi Chung, 1 motion li equired by The F. ontgomery re privilege d claims wh ongressiona g informati the reports a g.” White v d at 362-63 t, as long as rroneous inf al function t rate account g “[t]he purp Whether th g official re c v. Int’l Cr C. law as: “( (2) that the dant's fault tatement wa on caused th w, “A comm y) of a [2] f g to at least . Washingto . 1996). v. Walters, nt’l Courie ng libel clai 995 WL 224 bel claim ag Montgomery air Report ’s claim shou d under the ere – as her l records, a on ultimatel ttribute stat . Fraternal (“This privi their accoun ormation.”) hat the fair r ing of publi ose of the p e fair report cords subjec isis Grp., 49 1) that the d defendant p in publishin s actionable e plaintiff sp on law cla alse and def negligence n Free Week 822 F. Supp r, Inc. v. Sea m on motion 558, at *1-2 ainst news a ’s status as Privilege B ld be dismi fair report p e – a public nd governm y proves to b ements to th Order of Po lege include t is reasona (citation an eport privile c proceeding rivilege” by privilege ap t to judicial 4 F.3d 1080 efendant ma ublished the g the statem as a matter ecial harm” im for defam amatory stat on behalf of ly, Inc., 881 . 817, 823 (D graves, 199 for summa (D.D.C. Ja nchor for re 17 a public fig ars Plaintif ssed becaus rivilege. Th ation accura ent investiga e false, if “ e official rec lice, 909 F. s the broadc bly accurate d quotation ge is design s as well as “promot[in plies is a qu notice with , 1088 (D.C de a false a statement w ent amounte of law irresp ); Don King ation requi ement [3] co the publish F. Supp. 26 .D.C. 1993 9 WL 10270 ry judgment n. 25, 1995) porting alle ure.7 f’s Claims e the challen e privilege tely summa tive reports the reports w ords, and th 2d 512, 527 ast of the c and fair, ev marks omitt ed to protec informed c g] public sc estion of la the publica . Cir. 2007) nd defamato ithout privi d to at least ective of sp Prods., 40 res [1] the u ncerning an er, [5] with , 34 (D.D.C ), aff’d, 40 34, at *4-5 under fair r (dismissing gations in ju ged stateme protects aga rizes statem . It applies, ere substan ey “concern (D.C. Cir. 1 ontents of an en if the off ed). Here, t t: providin ommentary” rutiny of go w courts rou tion in suit.1 (stating ele ry statemen lege to a thi negligence; ecial harm So. 3d at 43 nprivileged other, [4] w damage ens . 1995), aff F.3d 474 (D (D.D.C. Feb eport privil on summa dicial proce nts in the inst defamat ents in cour even if the tially accur a governm 990); Stewa official icial docum he Book ser g “both a fai 8 and thus vernmental tinely decid 0 ments of lib t concerning rd party; (3) and (4) eith or that its (stating, un publication ith fault uing”). ’d, 88 F.3d 1 .C. Cir. 199 . 26, 1999) ege); Foreti ry judgment edings); ion t ate” ental rt, ents ves r e by el the that er der (to a 278 4). ch v. Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 28 of 47 18 First, the Chapter relies upon witness statements made in FBI investigative reports filed in court proceedings, quotes affidavits and deposition transcripts and other filed court documents, and discusses the contents of congressional records. Each of these plainly falls within the scope of fair report privilege. See White, 909 F.2d at 527 (explaining that privilege “extends broadly to the report ‘of any official proceeding, or any action taken by any officer or agency of the government,’” including not only government proceedings themselves, but also allegations or findings that prompt such proceedings) (citation omitted). Courts routinely hold that reporting on court records, judicial proceedings, and discovery documents, including affidavits and depositions,11 law enforcement investigations and reports,12 and congressional records and statements,13 is protected. Montgomery cannot dispute that these official records contain the heart of the allegedly defamatory statements: allegations that Montgomery rigged demonstrations of his software to government officials and that his software did not exist or did not work. (SUMF ¶ 24-31.) Second, the Chapter expressly reports on and refers to the government investigations, congressional records, and court proceedings. The privilege applies here, where, it is “apparent Stewart, 695 So. 2d at 361-62 (affirming motion to dismiss libel claim or summary judgment where newspaper’s statements protected by fair report privilege). 11 See Q Int’l Courier, 1999 WL 1027034, at *4 (privilege applies to report on civil complaint); Lavin v. N.Y. News, Inc., 757 F.2d 1416, 1419 (3d Cir. 1985) (reports of affidavits privileged); Sipple v. Found. for Nat’l Progress, 83 Cal. Rptr. 2d 677, 687-88 (Cal. Ct. App. 1999) (report on deposition testimony privileged). 12 See Medico v. Time, Inc., 643 F.2d 134, 139 (3d Cir. 1981) (fair report privilege applies to report on FBI documents that “express only tentative and preliminary conclusions that the FBI has never adopted as accurate”); White, 909 F.2d at 527-28 (privilege applies to report of D.C. administrative committee); Global Relief Found. Inc. v. N.Y. Times Co., 390 F.3d 973 (7th Cir. 2004) (privilege applies to report of federal investigation into Islamic charity for possible link to terrorism); Yohe v. Nugent, 321 F.3d 35, 44 (1st Cir. 2003) (articles giving “rough-and-ready summary” of official statement by police protected by fair report privilege); Law Firm of Daniel P. Foster, P.C. v. Turner Broad. Sys., Inc., 844 F.2d 955, 960 (2d Cir. 1988) (statement by FBI official about execution of search warrant protected); Dowd v. Calabrese, 589 F. Supp. 1206, 1217 (D.D.C. 1984) (report of DOJ investigation protected). 13 Crane v. Ariz. Republic, 972 F.2d 1511, 1517 (9th Cir. 1992) (secret investigation of House Select Committee on Narcotics Abuse and Control was official proceeding under the privilege); Chapin v. Knight-Ridder, Inc., 993 F.2d 1087, 1097 (4th Cir. 1993) (“[A] fair and accurate report of the public remarks of a member of Congress fits within the ‘fair report’ privilege[.]”). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 29 of 47 either fro or otherw 779 F.2d (“A publ summariz T and “sub the inves (“‘[A]ccu reported 31 n.3; A 2002) (“I comparis shows Ri In 7, 31, 44 Nat’l Enq degree of reporting included claims ar C S protected Moldea v opinion i m specific a ise drawing 736, 739 (D isher proper es or parap hird, Montg stantially ac tigative repo racy’ for fa and not to th lpine Indus. t is not nece on of the sta sen’s report deed, it is u ), making th uirer, Inc., flexibility a that petition entertainer’ e barred by Many. Rheto tatements of under the F . N.Y. Times s also not ac ttribution or upon offici .C. Cir. 198 ly attributes hrases from omery does curate,” Wh rts, congres ir report pur e truth abou Computers ssary that it tements in t ing was mor ndisputed th e report mor 973 F.2d 14 nd literary l filed again s statement t the fair repo of the Cha rical Hyper opinion tha irst Amendm Co., 22 F.3 tionable if i from the ov al document 5); Ditton v a report if th the judicial not have an ite, 909 F.2d sional recor poses refers t the events v. Cowles P be exact in he Chapter e than accu at Risen rep e than “fair” 31, 1437, 14 icense acco st entertaine hat charge w rt privilege. llenged Sta bole Prote t do “not co ent. Milko d 310, 313 t cannot be o 19 erall contex s or proceed . Legal Time e average r proceedings y evidence t at 527, acc ds, and cour only to the that actuall ubl’g Co., 5 every imma and facts an rate and fair eatedly incl for purpos 40 (9th Cir rded newspa r said entert as an “utte tements Ar cted by the ntain a prov vich v. Lora (D.C. Cir. 1 bjectively v t that the ar ings.” Dam s, 947 F. Su eader is like .”), aff’d, 12 hat the Chap ount of the f t proceeding factual corr y transpired 7 P.3d 1178 terial detail[ d allegation . uded Montg es of the pri . 1992) (tabl pers in mak ainer had A r fabrication e Non-Actio First Amen ably false fa in Journal C 994) (“Mold erified as fa ticle is quot eron v. Wa pp. 227, 23 ly to unders 9 F.3d 116 ter is anyth indings and s. See Yoh ectness of th .”); Coles, 8 , 1187 (Wa .]”) (citation s in the offic omery’s de vilege. See, oid “did not ing a ‘fair r IDS; last pa ”). Thus, M nable Opin dment ctual conno o., 497 U.S ea II”). In a lse or canno ing, paraphr sh. Magazin 0 (E.D. Va. tand that the (4th Cir. 19 ing but a fai allegations e, 321 F.3d e events 81 F. Supp. sh. Ct. App. omitted). ial records nials (SUMF e.g., Dorsey exceed the eport’” by ragraph of r ontgomery ion and tation” are . 1, 20 (199 ddition, an t “reasonab asing e, Inc., 1996) report 97). r in at 44 at A ¶¶ v. eport ’s 0); ly Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 30 of 47 20 [be] interpreted as stating actual facts” about the plaintiff. Milkovich, 497 U.S. at 18-20; Washington v. Smith, 80 F.3d 555, 556-57 (D.C. Cir. 1996). Rhetorical language that is “loose, figurative [and] hyperbolic” is not actionable. Milkovich, 497 U.S. at 21. Moreover, opinions based on disclosed facts are non-actionable.14 Whether the allegedly defamatory statements are non-actionable opinion is a question of law. Moldea v. N.Y. Times Co., 15 F.3d 1137, 1144 (D.C. Cir. 1994) (“Moldea I”). The court must analyze the challenged statements in their entirety, taking into account both the immediate context and the larger social context in which they appeared. See Moldea II, 22 F.3d at 314; see also Weyrich v. New Republic, Inc., 235 F.3d 617, 624 (D.C. Cir. 2001). Here, Montgomery’s allegation that Defendants said that Montgomery created a “rogue” intelligence operation, that he and other government contractors may have been motivated by “greed”15 and that “crazy became the new normal in the war on terror”16 are non-verifiable 14 E.g., Moldea II, 22 F.3d at 317 (where “the reader understands that [ ] supported opinions represent the writer’s interpretation of the facts presented, and because the reader is free to draw his or her own conclusions based upon those facts, this type of statement is not actionable in defamation”); Beck v. Lipkind, 681 So. 2d 794, 795 (Fla. 3d DCA 1996) (non-actionable “[p]ure opinion … when the defendant makes a comment or opinion based on facts which are set forth in the article or which are otherwise known or available to the reader or listener ….”). 15 Speculation as to another’s motivation, such as greed, is non-actionable opinion. See Immuno v. Moor-Jankowski, 74 N.Y.2d 548, 560 (1989) (“Speculations as to the motivations … generally are not readily verifiable, and are therefore intrinsically unsuited as a foundation for libel.”), vacated, 497 U.S. 1021 (1990), adhered to on remand, 77 N.Y.2d 235 (1991); Obsidian Fin. Grp., LLC v. Cox, 812 F. Supp. 2d 1220, 1233 (D. Or. 2011) (blogger’s statement plaintiff was “greedy,” was “figurative, hyperbolic, imaginative, or suggestive”), aff’d, 740 F.3d 1284 (9th Cir. 2014); Fetter v. N. Am. Alcohols, Inc., 2007 WL 551512, at *12 (E.D. Pa. Feb. 15, 2007) (statement “that the plaintiff was greedy … reflect[s] personal opinion” is non-actionable); Metcalf v. KFOR-TV, 828 F. Supp. 1515, 1530 (W.D. Okla. 1992) (statement that organizations were “shams perpetrated on the public by greedy doctors” was opinion). 16 See Cook-Benjamin, 571 F. App’x at 947 (“[S]tatement[] that [plaintiff] was … ‘crazy’ constitute[s] [defendant’s] opinion and thus cannot be proven false.”); Weyrich, 235 F.3d at 624 (statement that plaintiff experienced bouts of “paranoia” was protected opinion); Lieberman v. Fieger, 338 F.3d 1076, 1080 (9th Cir. 2003) (statement in interview that plaintiff, a psychiatric expert, is “crazy,” was protected opinion); Serian v. Penguin Grp. (USA), Inc., 2009 WL 2225412, at *9 (N.D. W. Va. July 23, 2009) (statement in national security book that plaintiff was “very crazy” was non-actionable “subjective opinion[]”); Rhodes v. Placer Cnty., 2011 WL 1302240 (E.D. Cal. Mar. 31, 2011) (calling plaintiff “a ‘crazy flute player’” was “hyperbole”). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 31 of 47 21 statements of subjective opinion and rhetorical hyperbole that are non-actionable. (SUMF ¶ 46.)17 Moreover, read in its proper context, statements that Montgomery “has been accused of being a con artist” (id. (quoting Chapter at 32)) are non-actionable opinion based on disclosed facts, including that Montgomery’s own former business partner, employees, and lawyer all accused him in court records of being a con artist and a fraud – an allegation to which his response was to take the Fifth.18 Finally, the statement that “many current and former U.S. officials and others familiar with the case believe” Montgomery’s software was “one of the most elaborate and dangerous hoaxes in American history” is a non-verifiable, subjective ranking that depends on the author’s viewpoint and viewpoints of the officials he describes later in the Chapter, rather than a statement of objective fact.19 This characterization is also opinion based on facts disclosed later in the Chapter that the White House seriously considered shooting down passenger jets over the Atlantic based on Montgomery’s intelligence. (SUMF ¶ 38.) Thus, these challenged statements are non-actionable opinion. 17 That Plaintiff is an “incorrigible gambler” (SUMF ¶ 46) is also non-actionable opinion where he was arrested for passing a million dollars in bad checks to a casino in Nevada and had to declare bankruptcy. The FBI Report shows that he was a gambler and “incorrigible” is a subjective assessment of his motivation, and, thus, protected opinion. (Handman Decl. Ex. 18 at Bates Nos. 00002, 00021-22); Fikes v. Furst, 61 P.3d 855, 864-65 (N.M. Ct. App. 2002) (statement that plaintiff was “pursuing a bizarre obsession” was protected opinion). The criminal charges are still pending, delayed by his claimed inability to travel to Nevada. (SUMF ¶ 29.) 18 See Spelson v. CBS, Inc., 581 F. Supp. 1195, 1203 (N.D. Ill. 1984) (statement that “individuals are ‘cancer con-artists’ and ‘practitioners of fraud,’” were opinion)), aff’d, 757 F.2d 1291 (7th Cir. 1985); Yauncey v. Hamilton, 786 S.W.2d 854 (Ky. 1989) (acquaintance of suspected murder’s statement to newspaper that suspect was a “con artist” was protected opinion); Quinn v. Jewel Food Stores, Inc., 276 Ill. App. 3d 861, 866-67 (1995) (employer’s evaluation stating that plaintiff was a “con artist” was protected opinion). 19 See Adventure Outdoors, Inc. v. Bloomberg, 519 F. Supp. 2d 1258 (N.D. Ga. 2007) (granting in part motion to dismiss on grounds that describing plaintiff and other gun dealers as “the worst of the worst,” “a scourge on our society,” “rogue,” and “immoral and corrupt” were statements of non-actionable opinion), rev’d on other grounds, 552 F.3d 1290 (11th Cir 2008) (holding district court lacked subject-matter jurisdiction); Mirafuentes v. Estevez, 2015 WL 8177935, at *3 (E.D. Va. Nov. 30, 2015) (dismissing libel claim under Rule 12(b)(6) because “[t]he assertion that Sota was perceived to be among the most corrupt Mexicans in 2013 is not actionable because it is not objectively verifiable and instead amounts to a subjective assertion”); Seaton v. TripAdvisor LLC, 728 F.3d 592, 600 (6th Cir. 2013) (affirming dismissal because TripAdvisor’s placement of Grand Resort on “2011 Dirtiest Hotels list” was statement of opinion). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 32 of 47 D T proving t indeed fa Capital C judgment to conclu Jones & demonstr G to enter s evidence 20 “[T]he (2014), m liability, substance deemed s defamato omitted). considere which the 21 Althou whether a by the m authority has previ clear and 1500 (11 Hatch, 93 public fig defamato 1175 (Fla Wolf v. R 22 See, e.g because L book or t relationsh As a M. Prove he First Am hat the spee lse. Philade ities/ABC, I when the p de that the d Co., 838 F.2 ating materi iven this co ummary jud corroborate falsity must eaning that Masson v. N , the gist, th ubstantially ry matter.” See also H d false unle pleaded tru gh in Levan plaintiff m ore demandi holds that t ously stated convincing th Cir. 1989 6 F. Supp. ure, he or s ry statemen . 1st DCA 1 amsey, 253 ., Dow Jon iberty Lobb hat it had “p ip existed b atter of L Substantia endment req ch at issue, w lphia Newsp nc., 190 F.3 laintiff fails efamatory s d 1287, 129 al falsity,20 nstitutional gment for d s the gist of be ‘materia errors “effe ew Yorker M e sting, of t true, even i Masson, 50 oeper, 134 S ss it ‘would th would ha v. Capital C ust demonst ng “clear an he clear and in dicta tha evidence th ) (emphasis 917, 922 (M he ‘has the b t … was fals 983)); Pric F. Supp. 2d es & Co., 83 y could not ublished” th etween Libe aw, Plaintif l Falsity uires a plain hich indisp apers, Inc. d 1230, 123 to come for ting of the p 4 (D.C. Cir whether by requirement efamation d the alleged l,’” Air Wis ct[ing] no m agazine, In he libelous c f the defend 1 U.S. at 51 . Ct. at 861 have a diffe ve produced ities/ABC, rate falsity b d convincin convincing t “The First at the statem added). See .D. Fla. 199 urden of sh e.’”) (quotin e v. Viking P 1323, 1353 8 F.2d at 12 establish st e magazine rty Lobby a 22 f Does Not, tiff such as utably addr v. Hepps, 4 9 (11th Cir. ward with e ublication i . 1988). Mo a preponder , courts in th efendants w defamation. consin Airlin aterial chan c., 501 U.S harge [was] ant “cannot 6-17 (citatio . An alleged rent effect o .’” Id.; Du the Eleventh y a prepond g” standard evidence sta Amendmen ents were fa also Colod 6) (“When t owing by cl g Shiver v. enguin, Inc (N.D. Ga. 2 95-96 (ente atements tha were mater nd the publ and Canno Montgomer esses a matt 75 U.S. 767 1999). The vidence suff s untrue. Li ntgomery ca ance or clea is Circuit an here, as her 22 For insta es Corp. v. ge in meani . 496, 516 ( justified,” t justify every ns and inter defamatory n the mind nn, 193 F.3d Circuit exp erance of th , 190 F.3d at ndard appli t ... requires lse ….” Mo ny v. Iverso he plaintiff ear and conv Apalachee P ., 881 F.2d 1 003). ring summa t its “publis ially false, d isher); See a t, Meet His y to bear th er of public , 776-77 (19 Court must icient for a berty Lobby nnot meet h r and convin d others ha e, the undisp nce, in Frien Hoeper, 13 ng” cannot g 1991). Thus he publicati word of th nal quotatio statement of the reade at 1193. ressly decli e evidence 1239 n.26, es. The Ele that [plainti rgan v. Tice n, Yoakum, P is deemed to incing evid ubl’g Co., 426, 1445 ( ry for media hing arm” d espite that n lso supra no Burden to e burden of concern, wa 86); Levan enter summ reasonable j , Inc. v. Dow is burden o cing eviden ve not hesita uted record dship 4 S. Ct. 852 ive rise to , “so long a on must be e alleged n marks is thus “not r from that ned to reach or, alternativ the weight o venth Circu ff] prove by , 862 F.2d 1 apiano & be a limite ence that the 425 So. 2d 8th Cir. 198 defendants isseminated o corporate te 5. s v. ary ury f ce.21 ted , 861 s the ely, f it 495, d 1173, 9); the Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 33 of 47 23 Empowerment & Economic Development, CDC, Inc. v. WALB-TV, the plaintiff alleged that the news broadcast was defamatory because it allegedly contained false allegations of child abuse. 2006 WL 1285037, at *4, *6 (M.D. Ga. May 10, 2006). Rejecting plaintiff’s argument that the report was false, the court found that the news broadcasts reported only the parent’s accusations and opinions and “included the exact video that [the parent] relied upon in support of her allegations.” Id. The court granted summary judgment to defendant television station because the news broadcast, as here, was “substantially and materially truthful” and “[n]o reasonable juror could reach any other conclusion.” Id. at *6. Here, the heart of Montgomery claim is that the Chapter made false statements that Montgomery’s software did not work or did not exist. (SUMF ¶ 46.) But no reasonable juror could conclude the software worked or even existed, because Montgomery has not produced the software itself in discovery. On August 21, Judge Goodman found the software is “highly relevant” to the element of “substantial falsity of the claim in the book that the software did not work.” (SUMF ¶ 51) On October 16, Judge Goodman reiterated that the “software is, in fact, critical evidence in the case, because this is a defamation case, and one of the main burdens as the Plaintiff is to prove … the falsity of the allegation.” (Id. ¶ 55) (emphasis added). Contrary to Montgomery’s arguments Judge Goodman has repeatedly rejected that the software is irrelevant because Risen did not have a copy of the software at the time of publication, falsity depends only on whether the software works or not. (SUMF ¶¶ 51, 55.) It is well-established that “it makes no difference [if] the true facts were unknown” at the time of publication, because “truth – not just known truth – is a complete defense to defamation.” Haynes v. Alfred A. Knopf, Inc., 8 F.3d 1222, 1228 (7th Cir. 1993) (Posner, J.) (internal citations omitted); Bustos v. A&E Television Networks, 646 F.3d 762, 764 (10th Cir. 2011) (stating defendant need not “know the truth … when he makes the defamatory statement” because if it “turns out to be true, he is free from liability; the truth, whenever discovered, serves as a complete defense.”); Restatement (Second) of Torts § 581A cmt. h (1977) (“[I]f the defamatory matter is true ... it is enough that it turns out to be true.”). Montgomery would have this Court Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 34 of 47 24 bless his attempts “to sequester what could be the most important evidence” of truth. (SUMF ¶ 53.) But he “does not have a legally protected right to a reputation based on the concealment of the truth.” Haynes, 8 F.3d at 1228. Rather, as Judge Goodman stated, the software is “highly relevant,” and indeed, “critical” to falsity. (SUMF ¶¶ 51, 53, 55.) Given that Montgomery has not produced the software, contends that the software is unobtainable because it is classified23 or he belatedly claims he lacks access to his own software, yet never says where it is if he does not have it, the consequences of this lack of verifiability must fall entirely on Montgomery as the party carrying the burden to establish falsity. Indeed, in Hepps, the Supreme Court emphasized that the allocation of the burden of proof will be dispositive in those cases in which the truth or falsity of a statement is, at bottom, unknowable. The Court recognized that this rule will “insulate from liability some speech that is false, but unprovably so.” 475 U.S. at 778. Accord Dow Jones & Co., 838 F.2d at 1292 (“Where the question of truth or falsity is a close one, a court should err on the side of nonactionability.”). In any event, the record in this case, “precludes any reasonable inference that the central allegation of the challenged [publication] was false.” Tavoulareas v. Piro, 817 F.2d 762, 783-84 (D.C. Cir. 1987) (en banc). Far from placing Montgomery in “a worse light than a bare recitation of the uncontested facts” would have, Haynes, 8 F.3d at 1228, it is now clear that the software either does not work, is unobtainable, or does not exist. Thus, Montgomery cannot meet his burden to prove material falsity, compelling summary judgment for Defendants. 23 Even if the software were classified – and there is no basis for that assertion, as Judge Goodman and other courts have found – the remedy would be dismissal or an adverse inference that the software did not work or did not exist, supporting summary judgment. See, e.g., Fitzgerald v. Penthouse Int’l, Ltd., 776 F.2d 1236, 1243-44 & n.11 (4th Cir. 1985) (dismissing libel action where classified material subject to state secrets privilege was central to plaintiff’s burden to prove falsity); Trulock v. Lee, 66 F. App’x 472, 476-77 (4th Cir. 2003) (per curiam) (same as to claim brought by former official Montgomery’s counsel represented); Restis v. Am. Coal. Against Nuclear Iran, Inc., 2015 WL 1344479, at *5-8 (S.D.N.Y. Mar. 23, 2015) (dismissing libel action based on statements accusing plaintiff of violating Iran sanctions because claims would disclose states secrets); Lyondell-Citgo Ref., LP v. Petroleos de Venezuela, S.A., 2005 WL 1026461, at *4 (S.D.N.Y. May 2, 2005) (entering adverse inference against party refusing to produce allegedly classified information under court order). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 35 of 47 E P limited-p clarity, a (or, indee M weight. “ Waldbau whether M controver whether controver is a “limi particular in contra F over wid raised the by purpo Silvester, resolution controver Montgom 29) is im 904, 917 As a M. Conv Other laintiff’s cla urpose publ s a matter of d, any other 1. ontgomery Whether th m v. Fairchi ontgomery sy, (2) exam ‘the alleged sy.’” Silves ted purpose public cont cting work h irst, Montgo ely-publiciz terror alert rtedly decod 839 F.2d at of the cont sy is more t ery’s allega material to w n.25 (11th C atter of L incing Evid Applicable im fails for ic figure – d law, for a r applicable Montgom ’s naked alle e plaintiff is ld Publ’ns, is a limited ine the plai defamation ter, 839 F.2 public figur roversy” ce e performed mery canno ed allegation and ground ing Al Qaed 1494-95 (c roversy wil han merely tion that his hether he i ir. 1993) (n aw, Plaintif ence, that D Fault another, ind oes not and easonable ju standard of ery Is a Lim gation that h a public fig Inc., 627 F.2 -purpose pu ntiffs’ invol [was] germa d at 1494 (q e,” having “ ntered on w for the U.S t dispute tha s that, arou ed internatio a messages iting Waldba l affect peop newsworthy work for th s a public fig oting there 25 f Does Not, efendants A ependent rea cannot put f ry to find th fault). ited-Purpo e is a priva ure is a que d 1287, 129 blic figure, vement in th ne to the pl uoting Wald inject[ed]” h idely-public . governmen t a public c nd Christma nal flights b broadcast o um, 627 F.2 le who do n and is of le e governme ure. See Pe is no require and Canno cted With son under R orth sufficie at Defendan se Public F te figure (SU stion of law 4 n.12 (D.C “the court m e controver aintiffs’ part baum, 627 imself into ized allegati t. Tavoula ontroversy e s 2003, the ased on dis ver Al Jazee d at 1296) ot directly p gitimate pub nt was secre terson v. At ment “that t t, Prove By Actual Ma ule 56(a): nt evidence ts acted wit igure MF ¶¶ 46) for the cour . Cir. 1980) ust (1) isola sy, and (3) d icipation in F.2d at 1297 and been “d ons that he reas, 817 F. xisted since U.S. govern credited inte ra televisio (“If it is evid articipate in lic concern t at one poi lanta Hous. here must b Clear and lice or Any Montgomer with convin h actual ma carries no t to resolve. . To determ te the publi etermine the ). Montgom rawn into a committed f 2d at 772. at least 200 ment wrong lligence gle n. (SUMF ¶ ent that it, the .”). nt (SUMF ¶ Auth., 998 e general pu y – a cing lice ” ine c ery raud 5 ly aned 12.) 24- F.2d blic Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 36 of 47 26 awareness of a problem … for it to constitute a matter of public concern”). In any event, he cannot dispute that no later than 2008, Bloomberg News (2008), The Guardian (2009), Playboy Magazine (2010), and The New York Times (2011), among many others, reported around the world that Montgomery was the contractor whose software provided the bogus intelligence about Al Qaeda codes on Al Jazeera broadcasts and rigged tests of his software to the government, the same controversy addressed in the Chapter years later in October 2014. (SUMF ¶¶ 10-22.) Second, Montgomery “voluntarily put [himself] into a position to influence the outcome of the controversy.” Silvester, 839 F.2d at 1496. In a declaration he filed in 2006 that he refiled in this action (SUMF ¶ 47), he publicly accused his business partner in eTreppid of bribing a Congressman to get government contracts for his software and then repeated those allegations in an interview he gave to NBC News in a nationally-televised program. (Id.) By voluntarily creating a public controversy about his company’s alleged bribes to obtain national security contracts for his software and giving an interview about his accusations on national news, he opened the door to media scrutiny about his own alleged government-contracting fraud contained in FBI documents filed in the same protracted litigation in which he accused his partner of offering bribes. By voluntarily engaging in a course of conduct that was likely to receive widespread media attention, he became a public figure.24 Third, even if Montgomery had not voluntarily thrust himself into the controversy, at the very least, he became “caught up in the controversy involuntarily and, against his will, assumes a prominent position in its outcome” and thus he “‘invited comment’ relating to the issue at hand.” Silvester, 839 F.2d at 1496 (quoting Waldbaum, 627 F.2d at 1298). Montgomery became caught up 24 See Clyburn v. News World Commc’ns, Inc., 903 F.2d 29, 32 (D.C. Cir. 1990) (finding public controversy, in which plaintiff became embroiled as public figure, because he associated with the mayor and lied to the press about his involvement in the death of a friend, prompting “the DEA, the U.S. Attorney’s office, and the D.C. Police Department investigat[ion]”); Paterson v. Little, Brown & Co., 502 F. Supp. 2d 1124, 1140 (W.D. Wash. 2007) (finding computer scientist who engaged in protracted debate about originality of his invention a limited-purpose public figure); Brueggenmeyer v. ABC, 684 F. Supp. 452, 458 (N.D. Tex. 1988) (finding plaintiff a limited- purpose public figure because “the course of conduct in which [plaintiff] engaged generated consumer complaints, government legal actions, BBB investigations, and media attention”). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 37 of 47 27 in the public controversy, and central to it, no later than 2008 when Bloomberg, then Playboy, then the New York Times, and other media outlets reported on Montgomery’s alleged government- contracting fraud. (SUMF ¶¶ 12-22.) Indeed, “[i]t is no answer to the assertion that one is a public figure to say, truthfully, that one doesn’t choose to be. It is sufficient … that ‘[plaintiff] voluntarily engaged in a course that was bound to invite attention and comment.’” Silvester, 839 F.2d at 1496 (quoting Rosanova v. Playboy Enters., Inc., 580 F.2d 859, 861 (5th Cir. 1978)). He cannot dispute that a Wikipedia page exists on the internet describing the allegation that he defrauded the federal government central to the Chapter and the image of the title page of the 2010 Playboy article, The Man Who Conned the Pentagon, was posted on his Twitter page, thereby underscoring that this controversy has become part of his public persona. (SUMF ¶ 22.) Fourth, Montgomery reconfirmed his public figure status by seeking and obtaining U.S. government contracts involving national security even after he was subject to extensive media scrutiny, thus assuming the risk of further public scrutiny about his alleged contracting fraud. See CACI Premier Tech., Inc. v. Rhodes, 536 F.3d 280, 295 (4th Cir. 2008); McDowell v. Paiewonsky, 769 F.2d 942, 947-51 (3d Cir. 1985) (holding that architect subject to previous media scrutiny about his work on public projects was limited-purpose public figure when he later accepted government contracts).25 Montgomery cannot dispute – indeed, he brags – that, after his alleged government contracting work on once secret national security projects was exposed as a fraud to the world, he continued to work on government contracts with his purported software and alleges he still seeks that work in Florida today. (SUMF ¶ 18-19, 40, 47.) Montgomery cannot continue the same course of conduct that invited intense scrutiny and expect a different outcome. Thus, he is like the government contractor in CACI that “became a public figure because,” when the U.S. military “engaged [the contractor] to provide civilian interrogators at Abu Ghraib,” it “surely knew 25 See also Mosesian v. McClatchy Newspapers, 285 Cal. Rptr. 430, 439 (Cal. Ct. App. 1991) (president of company who was subject to media attention in public debate about award of a public contract to company to put on horse-racing event a limited-purpose public figure); Gleichenhaus v. Carlyle, 591 P.2d 635, 641 (Kan. Ct. App.) (contributor to political campaign who later obtained government contract was a limited-purpose public figure), aff’d in relevant part, 597 P.2d 611, 612-13 (Kan. 1979). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 38 of 47 when it a climate o fronton o profile in revenue b with gov contractin into 2014 whistlebl In his allege defamati regarding A Gertz, 41 must pro 26 Even i dismissed plaintiffs standard that of ne states ma Montgom and recor on officia reputable negligenc periodica law when (D.C. Cir (dismissi allege su ccepted the f media crit wners becam dustry in wh ecause of c ernment age g frauds. S , even while ower allega sum, it is b d governme on. Thus, he his alleged 2. s a public fi 8 U.S. at 33 ve actual ma f Montgome because he . Phillips v. of care in th gligence.”); y not impos ery cannot d reflect, Ri l records an author – all e. See, e.g. l that relies it does not . 1997); Ha ng libel clai fficient facts interrogatio icism.” 536 e limited-p ich there w orruption” w ncies despit ilvester, 839 he was in t tion – which eyond dispu nt-contracti is unquesti fraud on the Montgom Evidence, gure, Montg 1-32; Straw lice by clea ry were not cannot prov Evening Sta e District of see also Ge e “liability w show neglig sen relied o d included M factors that , Winn v. Un on articles f verify those kky v. Wash m against m demonstrat n work that F.3d at 295 urpose publ ere few maj as a public e the harsh g F.2d at 149 he hospital, Risen addr te that the C ng fraud, wh onably – as governmen ery Cannot or Any Oth omery must v. Chase Re r and convin a public figu e negligenc r Newspape Columbia f rtz v. Rober ithout fault ence, based n articles pr ontgomery show, as a ited Press I rom other re articles wit . Post Co., 2 edia compan ing negligen 28 it was poten . And just a ic figures by or participan controversy lare of publ 5-97. Inde when he sou essed in the hapter is ge ich is the fo a matter of t. Prove Actu er Applica prove that vel, Inc., 81 cing eviden re, which h e, the lower r Co., 424 A or media de t Welch, Inc ” in libel ca on the undi eviously pub ’s denials in matter of law nt’l, 938 F. liable publi h their origi 010 WL 25 y because, ce ….”). tially expos s the Eleven “entering a ts” and “[t] , Montgome icity on his ed, he contin ght to publ Chapter – to rmane to th cus of the C law – a limi al Malice b ble Standar Defendants 3 F.2d 356, ce; a prepon e is, the Am standard ap .2d 78, 87 famation of ., 418 U.S. ses private p sputed mate lished in re the Chapte , not just n Supp. 39, 45 cations is no nal sources. 73902, at *6 in part, “und ing itself to th Circuit h strictly reg he potential ry continue previous all ued to seek icize his alle Fox News e controvers hapter and ted-purpose y Clear an d of Fault acted with a 361 (11th C derance wil ended Com plicable to (D.C. 1980) private indi 323, 347 (19 laintiffs bri rial facts. A putable pub r, and HMH o actual mal (D.D.C. 19 t negligent ”), aff’d, 199 (M.D. Fla. er Iqbal, Pl the inhospit eld that jai a ulated, high loss of tax d to seek co eged govern media atten ged . (SUMF ¶ 2 y surroundi the claimed public figur d Convinci ctual malice ir. 1987). H l not suffice plaint must private-figur (“[T]he bas viduals … [ 84) (holdin ng). s the Chapt lications, rel relied on a ice, but no 96) (“[A] as a matter o 7 WL 4049 June 24, 20 aintiff failed able lai - ntracts ment- tion 3.) ng e ng .26 e . be e ic is] g er ied f 59 10) to Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 39 of 47 29 Masson, 501 U.S. at 510; Levan, 190 F.3d at 1239. “The standard of actual malice is a daunting one.” McFarlane v. Esquire Magazine, 74 F.3d 1296, 1308 (D.C. Cir. 1996), “and quite purposefully so.” Biro v. Condé Nast, 963 F. Supp. 2d 255, 277 (S.D.N.Y. 2013), aff’d, 2015 WL 8103736 (2d Cir. Dec. 8, 2015). Accord Anderson, 477 U.S. at 255-57; Gertz, 418 U.S. at 342. Actual malice gives “breathing space” to journalists and publishers reporting on matters of public concern where, although not present here, “erroneous statement is inevitable.” N.Y. Times Co. v. Sullivan, 376 U.S. 254, 271-72 (1964). Indeed, a plaintiff does not establish actual malice even by proof of “‘highly unreasonable conduct constituting an extreme departure from the standards of investigation and reporting ordinarily adhered to by responsible publishers.’” Harte-Hanks Commc’ns, Inc. v. Connaughton, 491 U.S. 657, 663-64 n.5 (1989) (citation omitted); Levan, 190 F.3d at 1239. The Supreme Court has explained that “reckless conduct is not measured by whether a reasonably prudent man would have published, or would have investigated before publishing. There must be sufficient evidence to permit the conclusion that the defendant in fact entertained serious doubts as to the truth of his publication.” St. Amant v. Thompson, 390 U.S. 727, 731 (1968). The actual malice standard thus turns on the subjective state of mind of the author at the time of publication. See Bose Corp. v. Consumers Union of U.S., Inc., 466 U.S. 485, 511 n.30 (1984) (same); Harte-Hanks, 491 U.S. at 688. To defeat summary judgment, Plaintiff must submit “concrete,” “affirmative evidence” that would allow a reasonable jury “to find actual malice by clear and convincing evidence.” Anderson, 477 U.S. at 254-57; Silvester, 839 F.2d at 1498. He must show “not merely that the defamatory publication was false, but that the defendant either knew the statement to be false or that the defendant ‘in fact entertained serious doubts as to the truth of his publication.’” Tavoulareas, 817 F.2d at 775-76 (quoting St. Amant, 390 U.S. at 731); Silvester, 839 F.2d at 1498. The defendant must be aware that the story was “(1) fabricated; (2) so inherently improbable that only a reckless person would have put [it] in circulation; or (3) based wholly on an unverified anonymous telephone call or some other source that [defendant has] obvious Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 40 of 47 30 reasons to doubt.” Lohrenz v. Donnelly, 350 F.3d 1272, 1283 (D.C. Cir. 2003); Tavoulareas, 817 F.2d at 776 (“‘For [the actual malice] standard to be met, the publisher must come close to willfully blinding itself to the falsity of its utterance.’”) (citation omitted). Here, because the Chapter expressly relies on previously published articles in reputable publications and statements in official court records, FBI reports, and the Congressional Record, and includes Plaintiff’s denials, Plaintiff could not even plausibly plead the “daunting” standard of actual malice,27 much less prove actual malice by clear and convincing evidence. When assessing actual malice, federal courts in Eleventh and D.C. Circuits routinely grant summary judgment.28 Indeed, the undisputed facts here conclusively demonstrate the absence of actual malice, as a matter of law. The Chapter reflects that Risen extensively interviewed Montgomery – facts showing the absence of actual malice. See Parisi v. Sinclair, 845 F. Supp. 2d 215, 218-19 (D.D.C. 2012) (no actual malice where defendant interviewed plaintiff) (citing Lohrenz, 350 F.3d at 1283).29 The Chapter includes Montgomery’s denials throughout. (SUMF ¶¶ 7, 31, 44), which further precludes actual malice. See Lohrenz, 350 F.3d at 1286 (“[R]eporting perspectives at odds with the publisher’s own ‘tend[s] to rebut a claim of malice’”) (citation omitted); Biro, 963 F. Supp. 2d at 288 (finding no actual malice when defendant printed plaintiff’s denials).30 27 See Hakky, 2010 WL 2573902, at *6-7 (dismissing libel claim under Rule 12(b)(6) where plaintiff failed to plausibly allege facts showing actual malice); Biro v. Condé Nast, 2015 WL 8103736 (2d Cir. Dec. 8, 2015) (affirming dismissal of libel claim for failure to plausibly allege actual malice); Pippen v. NBCUniversal Media, LLC, 734 F.3d 610, 614 (7th Cir.) (same), cert. denied, 134 S. Ct. 2829 (2014); Schatz v. Republican State Leadership Comm., 669 F.3d 50, 58 (1st Cir. 2012) (same); Mayfield v. NASCAR, Inc., 674 F.3d 369, 377-78 (4th Cir. 2012) (same). 28 See supra note 5; Lohrenz, 350 F.3d at 1274 (affirming summary judgment); McFarlane v. Sheridan Square Press, Inc., 91 F.3d 1501 (D.C. Cir. 1996) (same); Moldea II, 22 F.3d at 312 (same); McFarlane, 74 F.3d at 1300 (same); White v. Fraternal Order of Police, 909 F.2d at 514 (same); Clyburn, 903 F.2d at 35 (same); Liberty Lobby, Inc. v. Rees, 852 F.2d 595, 596 (D.C. Cir. 1988) (same); Dow Jones & Co., 838 F.2d at 1291 (same). Cf. Keogh, 365 F.2d at 967 (reversing denial of summary judgment). 29 See also Biro, 963 F. Supp. 2d at 288 (no actual malice where defendants had interviewed plaintiff and included denials); Loeb v. New Times Commc’ns Corp., 497 F. Supp. 85, 93 (S.D.N.Y. 1980) (no actual malice when plaintiff “himself was interviewed”) (citation omitted); McBride v. Merrell Dow & Pharms., Inc., 800 F.2d 1208 (D.C. Cir. 1986). 30 Montgomery’s general denials do not establish knowledge or serious doubts as to falsity. See, e.g., Edwards v. Nat’l Audubon Soc’y, Inc., 556 F.2d 113, 121 (2d Cir. 1977) (actual malice Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 41 of 47 31 Next, the Chapter, Risen’s declaration, his deposition, his notes, and his correspondence with sources also show that Montgomery cannot prove actual malice because Risen had numerous high-level government officials and individuals close to Montgomery familiar with intelligence generated by Montgomery’s software on which he based his statements about Montgomery – sources he had no reason to doubt at the time of publication and whose information was corroborated by official records. (SUMF ¶¶ 33-44.) This is just like in Silvester v. ABC, where the Eleventh Circuit affirmed summary judgment because plaintiff could not prove actual malice, given that the publisher and author relied on some sources, albeit with an axe to grind, but independently verified information by interviewing law enforcement officials, a journalist, and plaintiff’s attorney who were all familiar with the controversy or with plaintiff. 839 F.2d at 1494. Thus, with discovery now closed, Montgomery has failed to find any evidence that Risen had subjective doubts as to falsity. Reliance on previously published material from reputable publications also precludes Montgomery from proving actual malice, as a matter of law. See, e.g., Dow Jones & Co., 838 F.2d at 1297 (“[G]ood faith reliance on previously published materials in reputable sources … precludes a finding of actual malice as a matter of law.”); Biro, 963 F. Supp. 2d at 279 (plaintiff could not plausibly plead actual malice because defendants republished an article from The New Yorker, a reputable publication). Here, the Book expressly cites the comprehensive Playboy Article and New York Times Article, which contain all the facts Plaintiff now challenges, facts first published in the 2008 article in Bloomberg News, also a reputable publication. Plaintiff has not – and could not – prove that he had obtained retractions or challenged any of these publications in a lawsuit. Reliance on these reputable sources defeats actual malice. Moreover, reliance on official reports or official sources, as Risen did here, cannot constitute actual malice.31 No less a prominent official than the CIA Director, in Congressional “cannot be predicated on mere denials, however vehement; such denials are so commonplace in the world of polemical charge and countercharge that, in themselves, they hardly alert the conscientious reporter to the likelihood of error”). 31 Klayman, 2015 WL 1546173, at *16-17 (granting defendants summary judgment, because, in Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 42 of 47 32 testimony, supported the claim that Montgomery’s information was not accurate or, as Senator Chambliss described it “bogus.” In a 2012 article in Defense News, Jose Rodriguez, the man who had been in charge of the CIA’s Counterterrorism Center, said the Center had been “skeptical,” viewed the software as “crazy” and passing it along to the White House “ridiculous.” (SUMF ¶ 21.) These official views echoed what Plaintiff’s ` former business partner in eTreppid told the FBI and said in court records: the demonstrations were rigged and the software non- existent. The court records include what Plaintiff’s former lawyer said: “Blxware possesses no marketable technology, the technology as represented does not exist[.]” (Id. ¶ 29.) Montgomery repeatedly invoked his Fifth Amendment right against self-incrimination in his deposition in response to questions about his software, most notably “when asked if his software was a ‘complete fraud,’” (id. ¶¶ 20, 30). In a civil case, an adverse inference that the software was a fraud may be drawn from Montgomery’s invocation.32 In the face of this adverse inference and “[i]n view of the vast number of objective sources who condemned” Montgomery as a fake, this Court should “conclude as a matter of law” that Defendants “did not entertain serious doubts that the gist” of the Chapter “was true.” Levan, 190 F.3d at 1244 (Eleventh Circuit reverses plaintiff’s jury verdict on actual malice and enters judgment for defendant). Montgomery alleges that Risen should have focused on Trepp, rather than Montgomery, because Trepp led eTreppid, was allegedly responsible for obtaining contracts from the U.S. part, no actual malice when newspapers and authors relied on judicial opinions and public filings in Florida Bar disciplinary proceedings); Thomas, 2005 WL 3048033, at *3 (granting media defendant summary judgment, no actual malice where author relied on report of official proceedings); Bell v. Associated Press, 584 F. Supp. 128, 129, 132 (D.D.C. 1984) (no actual malice where reporter relied on arrest report); CACI., 536 F.3d at 292 (affirming summary judgment, no actual malice where radio commentator relied on official reports about the conditions set by government contractor that led to torture, rape, and murder at Abu Ghraib prison); Church of Scientology Int’l v. Behar, 238 F.3d 168, 175 (2d Cir. 2001) (affirming summary judgment, no actual malice where author relied on police report); Peter Scalamandre & Sons, Inc. v. Kaufman, 113 F.3d 556, 562-63 (5th Cir. 1997) (reversing jury verdict, finding no actual malice where arson allegations were based on police report). 32 See, e.g., Coquina Invs. v. TD Bank, N.A., 760 F.3d 1300, 1310 (11th Cir. 2014) (“In civil cases, ... ‘the Fifth Amendment does not forbid adverse inferences against parties ... when they refuse to testify ....’”) (quoting Baxter v. Palmigiano, 425 U.S. 308, 318 (1976)). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 43 of 47 33 government, and did not have to return the money he earned from federal contracts. (SUMF ¶ 47.) Montgomery also asserts that his companies would not have continued to obtain contracts from the federal government if the software did not work (id.), but that is pure speculation. Risen adopted an equally or more plausible theory given the extensive evidence that Montgomery’s software was a fraud: the CIA had every incentive after 9/11 to find any intelligence to prevent that next attack; when the CIA ultimately found Montgomery’s intelligence was bogus, the CIA kept it secret from the public and other government agencies, allowing Montgomery to peddle his software to other agencies. (Id.) In any event, after the CIA found Montgomery’s software wanting, SOCOM reached the same conclusion. (Id. ¶ 39.) And the Air Force similarly found his technology “inconclusive” and did not proceed in 2009. (Id. ¶ 18-19, 40.) As a matter of law, Risen’s rational interpretation of complex and ambiguous events cannot establish actual malice. See Time, Inc. v. Pape, 401 U.S. 279, 289-90 (1971) (where an event lends itself to “a number of possible rational interpretations,” an author’s “deliberate choice of [one] such … interpretation, though arguably reflecting a misconception, [does] not” show actual malice); Bose, 466 U.S. at 512-13 (same).33 In addition, Montgomery’s claim that Risen acted with common law malice, cannot, as a matter of law, demonstrate actual malice. “Ill-will, improper motive or personal animosity plays no role in determining whether a defendant acted with ‘actual malice.’” Dunn, 193 F.3d at 1198 n.17; Beckley Newspapers Corp. v. Hanks, 389 U.S. 81, 82 (1967) (holding it was error to instruct jury that ill will can establish actual malice). “[D]espite its name, the actual malice standard does not measure malice in the sense of ill will or animosity, but instead the speaker’s subjective doubts about the truth of the publication.” Klayman, 2015 WL 1546173, at *13. Although ill will or motive, combined with other evidence Montgomery cannot muster, may provide some circumstantial support for actual malice, ill will alone cannot establish actual malice. Harte-Hanks, 491 U.S. at 668. “Subjective ill-will does not establish actual malice, nor 33 Moldea II, 22 F.3d at 315 (“[W]hen a writer is evaluating or giving an account of inherently ambiguous materials or subject matter, the First Amendment requires that the courts allow latitude for interpretation.”); Flowers v. Carville, 310 F. Supp. 2d 1157, 1166 (D. Nev. 2004) (“[one] who publishes a rational interpretation of an ambiguous report has not acted with actual malice[.]”). Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 44 of 47 34 does a malevolent motive for publication,” which is all Montgomery asserts here. Klayman, 2015 WL 1546173, at *13 (citing id. at 665). Here, Montgomery cannot point to any evidence of ill will – Risen went out of his way to include Montgomery’s point of view in the Chapter. And given that the Book was the work of a highly reputable author – Montgomery admits Risen “is a Pulitzer Prize-winning journalist,” and a “national security expert” (SUMF ¶ 1) who had published the same allegations in the New York Times in 2011 without legal challenge – Montgomery cannot prove that HMH was even negligent, much less acted with actual malice, in relying on and publishing Risen’s work. See Mile Marker, Inc. v. Petersen Publ'g, L.L.C., 811 So. 2d 841, 847 (Fla. 4th DCA 2002) (granting summary judgment for lack of actual malice where the publisher reasonably relied on product reviewer); Chaiken v. VV Publ’g Corp., 119 F.3d 1018, 1032 (2d Cir. 1997) (publisher is not liable “if it relies upon the integrity of a reputable author and has no serious reason to question the accuracy of the information provided by that author”).34 HMH would have no reason to doubt Risen since other reputable publications had also published the same allegations for years without legal challenge.35 Montgomery deposed both Risen and HMH and had over 6,000 pages of documents, yet cannot point to any evidence that Risen or HMH had doubts, much less serious doubts, as to the truth of what Risen wrote and HMH published. In sum, Montgomery cannot defeat summary 34 See McManus v. Doubleday & Co., 513 F. Supp. 1383, 1390 (S.D.N.Y. 1981) (publisher was “entitled as a matter of law to rely on [author’s] proven reportorial ability”); Pegasus v. Reno Newspapers, Inc., 57 P.3d 82, 93 (Nev. 2002) (no actual malice where “there is no evidence that ... anyone … at [the newspaper] had any reason to believe [the freelance reporter] would lie ....”). 35 Plaintiff cannot put forth any evidence to prove that the publisher HMH acted with any degree of fault, and HMH’s deposition testimony shows it acted with no fault (SUMF ¶ 3.) See Mile Marker, 811 So. 2d at 847 (granting summary judgment because “[w]here the defendant in a defamation action is a publishing organization, this ‘actual malice’ must be ‘brought home to the persons in the [publishing] organization having responsibility for the publication’”) (quoting N.Y. Times, 376 U.S. at 287); McFarlane, 74 F.3d at 1303 (explaining that, because actual malice is a question of each defendant’s subjective state of mind, absent respondeat superior, actual malice will not be imputed from the author to the publisher). Risen was an independent contractor, not an employee, of HMH. (SUMF ¶ 3.) Nor can Montgomery provide evidence that HMHC was at fault in any way, and the undisputed facts show it is merely a holding company of the publisher and had nothing to do with publication of the Book (id. ¶ 4). This is an additional basis to dismiss the Amended Complaint as to HMH and HMHC. Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 45 of 47 judgment would all other app F B the same related ca 22 F.3d a Amendm claims fo 736 F.3d 46, 50 (1 F. Supp. failure to (D.C. Cir F motion fo 36 Plainti “extreme CropLife harmful o party is th Columbia behavior 2009) (di was inten v. Jung, 7 that (2) in since he ca ow a reason licable leve Mont. ecause Mon allegedly de uses of acti t 319-20 (ci ent consider r tortious in at 540 (dism 988) (dismis 3d 45, 56 (D show intent . May 21, 2 or the forego r summary ff cannot sho and outrage Int’l, 711 F r offensive ereby put in , 412 A.2d lacking the smissing for tional and t 91 A.2d 46 tentionally nnot come f able jury to l of fault. A gomery’s O tgomery’s “ famatory sp on to avoid ting Cohen ations that a terference, i issing torti sing intenti .D.C. 2014 to harm or 014). Mont ing reasons judgment an w intent or ous” condu . Supp. 2d 8 contact ... o such immi 948, 955 n.1 intent to com failure to s hat there wa , 50 (D.C. 2 or recklessly orward with find with “c nderson, 47 ther Tort C defamation eech.” Far the constitut v. Cowles M pply to defa ntentional in ous interfere onal inflictio ) (dismissing that stateme gomery also CIV. , Defendant d dismiss th that stateme ct, intent, or 1, 92 (D.D.C r an immine nent appreh 5 (D.C. 198 mit an assa tate a claim s resulting d 002) (eleme caused (3) 35 the requisit onvincing c 7 U.S. at 25 laims Fail claim fails, ah, 736 F.3d ional requis edia Co., 50 mation ther fliction of e nce claim); n of emotio assault cla nts were thr cannot subm ONCLUSI s respectfull e Amended nts were thr severe distr . 2010) (as nt apprehen ension”) (al 0) (no liabi ult); Solers, because “pl amage” to s nts of IIED severe emo e “concrete” larity” actua 5-57. so do [his] o at 540. “[A ites of a def 1 U.S. 663, efore apply motional di Hustler Ma nal distress im Montgom eats), appea it evidence ON y request th Complaint eats of civil ess as to IIE sault if “(a) sion of such terations om lity for assau Inc. v. Doe aintiff must tate a tortio : “(1) extrem tional distre “affirmativ l malice or, ther tort cla ] plaintiff m amation clai 670 (1991) also to” Mo stress, and a gazine v. Fa claims); Fo ery’s coun l pending, N to prove th at the Court with prejud assault, and D. See Aco they act inte a contact, a itted); Jacks lt for neglig , 977 A.2d 9 show that th us interferen e and outra ss to anothe e evidence” indeed, any ims based u ay not use m.” Molde ). “The Firs ntgomery’s ssault. Fara lwell, 485 U rras v. Rauf sel brought f o. 14-7070 ese claims.3 grant their ice. cannot sho sta Orellan nding to cau nd (b) the o on v. Distri ent or reckl 41, 948 (D. e interferen ce claim); J geous cond r.”). that pon a II, t h, .S. , 39 or 6 w a v. se a ther ct of ess C. ce ung uct Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 46 of 47 36 Dated: December 14, 2015 Respectfully submitted, s/Brian W. Toth Sanford L. Bohrer Florida Bar No. 160643 sbohrer@hklaw.com Brian W. Toth Florida Bar No. 57708 brian.toth@hklaw.com HOLLAND & KNIGHT LLP 701 Brickell Avenue, Suite 3300 Miami, Florida 33131 Telephone: (305) 374-8500 Fax: (305) 789-7799 – and – Laura R. Handman (admitted pro hac vice) laurahandman@dwt.com Micah J. Ratner (admitted pro hac vice) micahratner@dwt.com DAVIS WRIGHT TREMAINE LLP 1919 Pennsylvania Ave., NW, Suite 800 Washington, D.C. 20006 Tel.: (202) 973-4200 Fax: (202) 973-4499 Counsel for Defendants CERTIFICATE OF SERVICE I certify that on December 14, 2015, I filed this document with the Clerk of Court using CM/ECF, which will serve this document on all counsel of record. s/Brian W. Toth Case 1:15-cv-20782-JEM Document 201 Entered on FLSD Docket 12/14/2015 Page 47 of 47