7.22 Litigation: Initial Pleadings and Summary Dispositions

• Library: The Virginia Lawyer: A Deskbook for Practitioners (Virginia CLE) (2018 Ed.)

7.22 LITIGATION: INITIAL PLEADINGS AND SUMMARY DISPOSITIONS

7.2201 In General. As with preliminary litigation issues, the unique nature of defamatory claims raises several issues involving litigation pleading and practice.

7.2202 Initial Pleading: Identifying the Exact Defamatory Statement.

A. In General. A number of special common law and statutory pleading rules apply to defamation cases.

B. State Courts.

1. General Rule. Under a long-standing Virginia rule, plaintiffs in a defamation or insulting words action must plead the allegedly defamatory statement with particularity. ¹¹⁷² A plaintiff's initial pleading must

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specify the exact words spoken by each of the defendants. ¹¹⁷³ Virginia courts often dismiss claims lacking this specificity, although most courts give plaintiffs another chance to replead the exact words. ¹¹⁷⁴

2. Statute of Limitations Ramifications. In some situations a defamation defendant argues that the plaintiff's amended claim identifying the exact words actually states a new cause of action that is time-barred under Virginia's fairly short one-year statute of limitations. Given Virginia law's insistence that a defamation plaintiff plead the exact words, this argument certainly makes sense in many situations. For instance, a plaintiff filing a defamation action based on the defendant's alleged statement that "the plaintiff robbed a bank" should not be permitted to amend her claim 18 months later to claim for the first time that the defendant also said "the plaintiff killed her neighbor."

Not surprisingly, most situations confronting Virginia courts are more subtle. For instance, one court found that the statute of limitations did not bar a plaintiff's amended claim based on media reports about the defendant's alleged defamation spoken to a reporter. The court explained, "Plaintiff could not have known the exact words spoken to the reporters until Plaintiff had taken their depositions." ¹¹⁷⁵

On the other hand, the Virginia Supreme Court has held that a plaintiff's eventual recitation of the exact words about which he complained were not time-barred because those words were "consistent" and "essentially the same" as the words the plaintiff had included in his motion for judgment and in his bill of particulars. ¹¹⁷⁶ If taken too far, a liberal approach to a plaintiff's allegation makes it nearly impossible for a defendant to defend himself or herself because the exact words about which plaintiff complains would be a "moving target."

C. Federal Courts. Federal courts formerly took differing positions on whether the Virginia-based specificity requirement trumped the much more liberal federal court notice pleading principles. Until 2000, some

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federal district courts followed the Virginia approach, ¹¹⁷⁷ whereas others used the federal rule notice approach. ¹¹⁷⁸

The Fourth Circuit apparently ended the debate in favor of the latter approach, indicating that federal courts must follow federal pleading requirements rather than the Virginia rule requiring specificity. ¹¹⁷⁹ Some cases have followed this approach. ¹¹⁸⁰ Other federal cases seem more de-manding. ¹¹⁸¹

7.2203 Initial Pleading: Other Specificity Requirements.

A. In General. In addition to the long-standing Virginia requirement that plaintiffs allege the specific defamatory language, parties may also have to address several other areas in which courts have debated the need for specificity.

B. Details of Facts and Circumstances. Virginia courts have discussed the level of specificity required in the plaintiff's allegations about the facts and circumstances of the alleged defamation. Does the plaintiff have to specifically plead background facts, such as when and where the defendant communicated the defamation and who heard it? A number of circuit court decisions had required that specificity, even dismissing a motion for judgment

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deemed too general. ¹¹⁸² Other Virginia circuit courts had not required that specificity. ¹¹⁸³

In 2003, the Virginia Supreme Court rejected a defendant's argument that the plaintiff's motion for judgment should have included those facts. In a case involving a doctors' group representative's allegedly defamatory statements about two doctors who left the group, the court held that "details such as the time and place of the alleged communication, the name of a defendant's agent, and the names of the individuals to whom the defamatory statement was purportedly communicated can be provided in a bill of particulars if not included in a plaintiff's pleading." ¹¹⁸⁴ Since 2003, circuit courts have followed this approach. ¹¹⁸⁵

In 2012, the Western District of Virginia dismissed a defamation claim, because the plaintiff had not provided any "supporting facts or con-tentions." ¹¹⁸⁶ Other federal courts have taken the same approach. ¹¹⁸⁷

C. Facts Supporting Malice Allegations. Virginia courts have assessed whether plaintiffs can proceed simply by alleging that defendants acted with "malice" without including any factual predicate for that allegation. Several courts have stated that plaintiffs must provide some factual basis for a conclusory allegation of constitutional or common law malice, although it appears that the pleading requirement is not very onerous. ¹¹⁸⁸ Several courts have been more demanding. ¹¹⁸⁹ Other courts are more liberal. ¹¹⁹⁰

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Most Eastern District of Virginia decisions have found that a plaintiff must do more than simply plead "conclusory allegations" of malice to overcome a qualified privilege ¹¹⁹¹ or to avoid dismissal of a claim requiring constitutional malice. ¹¹⁹² Other federal court decisions have been less demand-ing. ¹¹⁹³

Given the tremendously high burden a plaintiff faces in having to establish with clear and convincing evidence that the defendant acted with constitutional malice, it makes sense to require at least some initial factual support for a constitutional malice claim. Defending a defamation lawsuit can itself be a chilling experience for media and other defendants. Just as in the case of a federal court fraud claim, plaintiffs should have some threshold burden of reciting factual basis for a constitutional malice claim.

D. Plaintiff's Identity. Absent "special circumstances," plaintiffs in Virginia must identify themselves and may not remain anonymous, as plaintiffs may in some states. ¹¹⁹⁴

E. Defendant's Identity. One court explained that Virginia law now permits claims against "John Doe" defendants, although in that circumstance the plaintiff had not met the standard allowing that anonymous plead-ing. ¹¹⁹⁵ As explained below, Virginia law has adopted a specific discovery process for discovering the identity of an anonymous online defamer. ¹¹⁹⁶

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F. Other Requirements. Plaintiffs must plead falsity to survive a dismissal of their claim. ¹¹⁹⁷

One federal court in the Eastern District of Virginia dismissed a defamation action because the plaintiff had not alleged that the purportedly defamatory statements made the plaintiff "appear odious, infamous, or ridiculous." ¹¹⁹⁸

7.2204 Statutory Provisions. ¹¹⁹⁹ Virginia also has two peculiar statutory provisions relating to defamation pleadings.

Under section 8.01-48 of the Virginia Code, a print media defendant may introduce certain mitigating factors in seeking to avoid compensatory or punitive damages, but only if the grounds of defense or answer sets forth those mitigating facts. Perhaps this law was seen to help media defendants at a time when they normally faced strict liability. However, as the constitutional and common law has shifted in favor of defendants, the law could be seen as hindering media defendants who may now be required to lay out their factual defense very early in the litigation.

A similar statute, section 8.01-46, requires defendants to provide notice that they intend to mitigate their damages by proving that they apologized or offered to apologize. As with section 8.01-48, this statute may have made sense under a strict liability standard but now simply burdens defendants.

7.2205 Court as Gatekeeper. Virginia law requires trial courts handling defamation cases to decide several key (often outcome determinative) threshold issues. In essence, the court acts as a "gatekeeper." The court must deal as a matter of law with issues such as:

• Whether the statement at issue is fact or opinion;

• Whether the statement at issue is capable of a defamatory meaning;

• Whether the statement amounts to defamation per se;

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• Whether the statement is capable of meeting the insulting words statutory standard;

• Whether the action is barred by the statute of limitations (if the facts are undisputed);

• Whether the statement is absolutely privileged;

• Whether the

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