7.21 Litigation: Preliminary Issues

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2022 Ed.)

7.21 LITIGATION: PRELIMINARY ISSUES

7.2101 In General.

With their unique blend of constitutional and common law principles, defamation claims generate a number of preliminary litigation issues.

7.2102 Arbitration.

A number of courts have discussed the arbitrability of defamation claims arising in the employment context. Several courts have found that an employment contract arbitration clause covers defamation claims. ⁴⁸¹³ One court found that even the arbitrability of the claim was subject to the arbitration clause. ⁴⁸¹⁴

7.2103 Exhaustion of Remedies.

Plaintiffs pursuing a defamation action against the government must exhaust their administrative remedies. ⁴⁸¹⁵

7.2104 Standing.

The issue of standing sometimes arises in the context of defamation directed at companies. Corporate owners generally cannot pursue an action for defamation of the corporation because the corporate entity is "itself the only person entitled to recover for injuries to its business, profits, or property." ⁴⁸¹⁶

In WJLA-TV v. Levin, ⁴⁸¹⁷ the Virginia Supreme Court seemed to have muddied this concept somewhat, finding that a doctor could recover for diminution in his earning capacity, thus essentially recovering indirectly for damages to his corporate practice. A Virginia circuit court, relying on WJLA-TV, found that both an auto dealership and its owner could sue for defamatory statements about the former. ⁴⁸¹⁸

A 2015 Virginia Supreme Court case, however, held that a corporation's owner could not personally assert a cause of action for defamation of her corporation. ⁴⁸¹⁹ The court explained that corporate owners generally cannot personally pursue an action for defamation of their corporation, because the corporate entity is "itself the only person entitled to recover for injuries to its business, profits or property." ⁴⁸²⁰

7.2105 Suing the Right Defendant.

In some situations, plaintiffs must decide whom to sue for a defamatory statement. For instance, one court explained that a plaintiff complaining of defamatory statements reported in a newspaper and on a television news report could sue the person who made the statement without also suing the media entity that republished the statement. ⁴⁸²¹

7.2106 Subject Matter Jurisdiction: Federal Courts.

A. Preemption.

Courts must sometimes wrestle with arguments that state law defamation claims are preempted by federal law and, therefore, must be brought in federal court if they can be brought at all. The federal laws involved include:

· The Fair Credit Reporting Act; ⁴⁸²²

· ERISA laws; ⁴⁸²³

· Title VII; ⁴⁸²⁴

· OSHA; ⁴⁸²⁵

· The Communications Decency Act; ⁴⁸²⁶ and

· Labor laws. ⁴⁸²⁷

B. Jurisdiction of State Claims in Federal Court.

A federal court dismissing the federal portions of a lawsuit has the discretion to hear or remand any remaining state law defamation claims. Although most federal courts decline to exercise jurisdiction in this situation, ⁴⁸²⁸ some federal courts have retained jurisdiction. ⁴⁸²⁹

C. Diversity Jurisdiction.

The standard federal diversity jurisdiction principles apply in defamation cases. In one interesting case, the Fourth Circuit indicated that adding as a defendant a United States citizen domiciled abroad destroys diversity jurisdiction. ⁴⁸³⁰

D. Forum Non Conveniens.

An Eastern District of Virginia court dismissed on forum non conveniens grounds an action brought by a United Kingdom resident against a defendant who spent most of his time in Iraq. ⁴⁸³¹

7.2107 Subject Matter Jurisdiction: State Courts.

⁴⁸³² State courts may also wrestle with jurisdiction issues in defamation cases. For instance, the Virginia Supreme Court has held that courts cannot exercise jurisdiction over defamation claims involving matters of church or ecclesiastical doctrine because the exercise of that jurisdiction would inevitably infringe on the federal and state constitutional protections covering religious freedom. ⁴⁸³³

But more recently, the court exercised jurisdiction over a defamation claim against a church pastor. The court explained that the claim did not involve church governance. ⁴⁸³⁴

7.2108 Personal Jurisdiction.

Under generally applicable personal jurisdiction principles, defamation defendants may be sued where they can be found. ⁴⁸³⁵ The United States Supreme Court has held that First Amendment considerations do not affect the minimum contacts due-process analysis that underlies the exercise of jurisdiction. ⁴⁸³⁶ That analysis requires "certain minimum contacts" with the forum state "such that the maintenance of the suit does not offend traditional notions of fair play and substantial justice." ⁴⁸³⁷ It turns on the number and relationship of a defendant's contacts with the forum state as well as whether the cause of action arises from the defendant's contacts with that state. ⁴⁸³⁸

7.2109 Long-Arm Jurisdiction: Traditional Rules.

A. In General.

Given the ease with which communications cross state lines, it is not surprising that courts have had to wrestle with long-arm jurisdiction issues. Defamation plaintiffs have generally relied on three long-arm jurisdiction theories to sue out-of-state defendants in Virginia. Under each of these theories, the defamation claim must arise from the acts enumerated in the long-arm statute. ⁴⁸³⁹

B. Section 8.01-328.1(A)(1).

Some plaintiffs rely on section 8.01-328.1(A)(1) of the Virginia Code to justify suing a defendant who derives substantial revenue from Virginia and engages in a persistent course of conduct in Virginia. ⁴⁸⁴⁰ Other plaintiffs have failed in their efforts to assert personal jurisdiction on this basis. ⁴⁸⁴¹

C. Section 8.01-328.1(A)(3).

Some plaintiffs have sought the assertion of long-arm jurisdiction over defendants under section 8.01-328.1(A)(3), arguing that the communication sent into Virginia was a tortious act committed in Virginia. Some plaintiffs have succeeded in this assertion, ⁴⁸⁴² whereas other plaintiffs have failed. ⁴⁸⁴³

D. Section 8.01-328.1(A)(4).

Some plaintiffs have sought to assert long-arm jurisdiction under section 8.01-328.1(A)(4), arguing that the defendant's tortious act outside Virginia caused injury inside Virginia. This requires a closer connection between the defendant and Virginia than the other long-arm theories. Some plaintiffs have succeeded in this argument, ⁴⁸⁴⁴ whereas other plaintiffs have failed. ⁴⁸⁴⁵

E. Conspiracy.

A plaintiff might also argue that an out-of-state defendant conspired with a defendant over whom the court has jurisdiction. In 2011, a Virginia circuit court found that the plaintiff could not satisfy the pertinent sections' standards for exercising personal jurisdiction over several out-of-state defendants but could exercise jurisdiction over them under a conspiracy theory. ⁴⁸⁴⁶

7.2110 Long-Arm Jurisdiction: Internet Defamation.

As in so many other areas of the law, the rise of the Internet has complicated the long-arm jurisdiction analysis in defamation claims.

With more traditional forms of communication, such as a letter, fax, or telephone call, it was much easier to envision and analyze a communication traveling from one state to another. However, the presence of a defamatory communication on the Internet creates a complex and confusing picture. The communication is not actually sent into Virginia, but someone in Virginia can read it or download it. Is this the equivalent of someone in Virginia opening a letter—even an email—sent from another state?

In Internet defamation cases, simply posting something on the Internet does not subject the poster to specific personal jurisdiction every place the post is read. More is...