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Edwards v. Schwartz

United States District Court, W.D. Virginia, Roanoke Division

March 20, 2019

MARC EDWARDS, Plaintiff,
v.
PAUL SCHWARTZ, et ah, Defendants.

          MEMORANDUM OPINION

          MICHAEL F. URBANSKI CHIEF UNITED STATES DISTRICT JUDGE

         This matter is before the court on a motion to dismiss, ECF No. 13, plaintiff Marc Edwards' Amended Complaint, ECF No. 9, filed by defendants Paul Schwartz, Yanna Lambrinidou, and Melissa Mays (hereinafter, collectively, "defendants"), pursuant to Rules 12(b)(2) and 12(b)(6) of the Federal Rules of Civil Procedure, for want of personal jurisdiction and failure to state a claim upon which relief can be granted, respectively. The defendants have also moved for attorney's fees pursuant to Va. Code Ann. § 8.01-223.2. This matter was removed from the Circuit Court for Montgomery County, Virginia, to the United States District Court for Western District of Virginia on August 1, 2018. This court exercises jurisdiction pursuant to 28 U.S.C. § 1332.[1] Edwards filed his Amended Complaint on August 24, 2018, alleging defamation per se (Count I), defamation (Count II), tortious interference with contract expectancy, business relationship, and economic advantage (Count III), common civil law conspiracy (Count IV), and statutory civil conspiracy pursuant to Va. Code Ann. § 18.2-499 (Count V), against all defendants. The court held a hearing on October 29, 2018, after which it ordered Edwards to file a supplemental brief (henceforth "Supplemental Memorandum") identifying which of the numerous statements set forth in the Amended Complaint allegedly give rise to causes of action under Count I and Count II. The court requested the Supplemental Memorandum include only those statements that fall within Virginia's statute of limitations period for defamation. Va. Code Ann. § 8.01-247.1 (West).[2] On November 9, 2018, Edwards filed this memorandum with the court. ECF No. 27. Schwartz and Mays filed a response on November 16, 2018, ECF No. 30, and Lambrinidou filed a separate response on November 21, 2018, ECF No. 31. Upon thorough examination of the voluminous submissions made by the parties and for the reasons set forth herein, the motion to dismiss for want of personal jurisdiction pursuant to Rule 12(b)(2) is GRANTED in part and DENIED in part, and the motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) is GRANTED as to Counts I-V.

         I.

         A.

         The controversy giving rise to this case relates to protracted personal, professional, and advocacy-related disputes concerning the water crisis in Flint, Michigan. Marc Edwards, a Virginia Polytechnic Institute and State University ("Virginia Tech") professor involved in exposing the contamination in Flint, Michigan, claims that prior to the events giving rise to this case, he "enjoyed a distinguished reputation in the community at large and an unblemished professional reputation in the fields of education, science, and community advocacy." ECF No. 9, at 2-3. Edwards' causes of action in Counts I-V are predicated upon an allegedly defamatory letter ("Letter") published on May 10, 2018, "as well as numerous subsequent dates," and a multitude of other statements made via "Facebook posts, Twitter tweets, television interview, radio interviews, emails, correspondence, and other public for a." Id. at 5, 24. The statements alleged as defamatory or defamatory per se fall into two categories: (1) those contained in the Letter, and (2) and those contained in communications made via Facebook, Twitter, YouTube, and elsewhere. It is the Letter, however, that by Edwards' own characterization, is "at the heart of this case." ECF No. 21, at 4; see Id. at 29 ("[T]he case arises from this Letter ...").

         Edwards asserts that the Letter marked the "crescendo" of a concerted and ongoing disparagement campaign conducted by the defendants against him that began in 2016. ECF No. 9, at 4. The Letter accuses Edwards of, among other things, speaking on behalf of Flint residents without their consent, engaging in "[unsubstantiated defamation of Flint residents," and obstructing "Flint's right for self-determination." ECF No. 9-1; ECF No. 27-1, at 2. In the course of this litigation, Edwards submitted three versions of the Letter for the court's review. Though each version of the Letter is substantively the same, the quantity and identities of the signatories differ. The first version of the Letter was submitted with the Amended Complaint as Exhibit 1, ECF No. 9-1, and featured the signatures of 39 Flint workers, parents, and residents, including Melissa Mays, as well as an Episcopal priest. It is this first version of the Letter that was apparently sent on May 10, 2018 as an email attachment to, among others, Virginia Tech president Timothy Sands, the Union of Concerned Scientists, the National Academy of Sciences, the Association of Environmental and Engineering Science Professors, the American Association for the Advancement of Science, the National Science Foundation, and several individuals within Edwards' professional community or associated with the aforementioned organization ECF No. 9, at 6. The content of the email is as follows:

Esteemed President Sands,
Residents of Flint request you tell us where we can file a formal complaint against the behavior, since January 2016, of Professor Marc Edwards of Virginia Tech. We also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Attached is our full complaint. Thank you for your time and immediate attention on this matter.
Affected Residents of Flint, Michigan

Id. The Letter itself is addressed "To the Scientific and Engineering Communities." Id. The following "false and harmful" statements from the Letter were flagged by Edwards as defamatory and/or defamatory per se and are excerpted and numbered below as they were presented in paragraph 13 of the Amended Complaint.[3] Id. at 5. The bolded portions of paragraphs 13(a) - 13(i) were bolded by Edwards, presumably to direct the court's attention specifically to those statements and/or sentences.

Paragraph 13(a)
Residents of Flint.... Also request that you send representatives to Flint as soon as possible for a meeting with us to hear directly from us about our experiences with Mr. Edwards and our call for an investigation into Mr. Edwards' conduct and the harm his actions have caused.
Paragraph 13(b)
This is dishonest, paternalistic and exploitative and, we fear, used by Mr. Edwards to build his own professional and financial power ... Far too many residents are exhausted from Mr. Edwards [sic] bullying... Mr. Edwards is using our crisis and suffering for entertainment, intrigue, exhibitionism, and personal power that might attract the media and outside readers but are completely inappropriate for the circumstances.
Paragraph 13(c)
Mr. Edwards' portrayal of Flint residents as dumb, dirty and vulnerable to being misled by anyone other than himself started in early 2016, is ongoing, and is misguided and offensive
Paragraph 13(d)
Contrary to Mr. Edwards' claims, Flint residents were never told that shigella was in our tap water and, as a whole, never stopped using proper hygiene from fear of the water. The allegation that FACHEP announced that they found shigella in Flint water is a lie. The allegation that WE caused our own shigella outbreak because we stopped bathing out of fear of the water, is also a lie.
Paragraph 13(e)
What scares us is Mr. Edwards who uses his position as a scientist to misrepresent us and silence us.
Paragraph 13(f)
In May 2016, Mr. Edwards erroneously accused Scott Smith and Water Defense of scaring residents out of bathing .... Mr. Edwards also accused Dr. Laura Sullivan and Mr. McElmurry of FACHEP [Flint Area Community Health and Environment Partnership] of causing Flint residents to stop bathing because their research scared us (according to some reports, Mr. Edwards made the preposterous claim that as many as 80% of us returned to a state of filth). This is insulting and false. It is also blatantly unscientific because Mr. Edwards did not bother to ask actual Flint residents about our bathing habits before coming up with this pronouncement.
Paragraph 13(g)
To our knowledge, there is no one in the scientific community overseeing Mr. Edwards' work or the way he uses his power over powerless residents. As far as we know there is no one in the scientific community ensuring the integrity and honesty of Mr. Edwards' words, research and activism. Mr. Edwards has repeatedly spoken and written about how there are no bacteria or dangerous pathogens in Flint residents' water, even though he is not a microbiologist nor is he doing mass testing within our homes.
Paragraph 13(h)
Instead, Mr. Edwards goes around the country giving talks that dismiss our concerns and calls us 'tribal'.... Shockingly, Mr. Edwards has gone as far as to declare that the Flint Water Crisis was over 2 years ago (in 2016).... We need an end to his disruptive presence so that we can finally clean up the mess he has left behind him, focus on healing the rifts he has created between residents, and try to address the real problems plaguing us.
Paragraph 13 (i)
We are reaching out to you, key representatives of the scientific and engineering communities who keep awarding and rewarding Mr. Edwards for his behavior, because we need full protection from Mr. Edwards immediately. We also need an immediate investigation that puts OUR voices at the center and demands evidence for all claims made by Mr. Edwards. We ask for a committee that includes academics, professionals, and Environmental Justice leaders who have expertise in abuses of professional power against poisoned communities like Flint.

Id. at 6-8.

         Edwards claims that following die May 10, 2018 publication of die Letter, die defendants, "acting individually and in concert," created a webpage www.flintcomplaints.com and a Facebook page to "host, draw attention to, and facilitate die republishing" of the Letter. Id. at 21. Edwards further claims that each of die defendants, "at various times and by various means, re-published the Letter to various audiences and members of the public, including colleagues and otiier members" of Edwards' professional community and. field, and continue to make defamatory statements about him. Id. at 23. In his Supplemental Memorandum, Edwards submitted two additional versions of the Letter, ECF Nos. 26-1, 26-2, in which "provision was made for non-Flint residents to sign." ECF No. 9, at 21. The second version of the Letter (Exhibit A) includes die signatures of Mays and Lambrinidou. ECF No. 26. The third version (Exhibit B) includes die signatures of all three defendants. Id. With respect to why the first version of the Letter (Exhibit 1) did not contain the signatures of Lambrinidou or Schwartz, Edwards explains:

The Letter falsely purported to be written and submitted by "Residents of Flint" and, in its initial version, was signed only by Flint residents. This was false because, on information and belief, Schwartz, Lambrinidou, and perhaps others participated in writing the Letter. According to an article for the East Village, die origins of the Letter were "strategically cloaked a little bit because die idea is to avoid its being associated too closely with any one individual or individuals." An anonymous Facebook page created to disseminate die letter, flintcomplaints.com, stated that die Letter was "crafted for us." According to an article published in the Roanoke Times, counsel for [defendants stated he did not know who compiled the Letter and, when asked who operated flintcomplaints.com, stated "that information isn't public." This explicidy false statement that die Letter was entirely the work of Flint residents - without outside input - was intended to, and did in fact, add to die Letter's sting and thereby increase its damaging effect on Edwards professional reputation.

ECF No. 9, at 12; ECF No. 27, at 2. Edwards alleges that, "upon information and belief," Schwartz, Mays, and Lambrinidou "collaborated, worked on, shared ideas, encouraged one another, contributed to and generally acted in concert to draft the contents of the Letter." ECF No. 9, at 12. Elsewhere in his pleadings, Edwards similarly avers that the defendants, "both individually and acting as conspirators in concert and together, and as members and representatives of a non-profit organization known as the Campaign for Lead Free Water, participated in drafting, signing, electronically communicating and/or mailing a damaging defamatory and tortious letter and email." Id. at 2. Many of the allegedly defamatory statements in paragraphs 13(a) - 13(i) featured hyperlinks to third-party online materials, including newspaper articles, blog posts, an audio recording, and a transcript of remarks made by Edwards at Swarthmore College. Edwards asserts that a review of this hyperlinked material demonstrates that much of it is factually inconsistent with statements and accusations contained in the Letter. Id. at 4. Indeed, he asserts that the Letter sent to the "president of Virginia Tech," as well as numerous academic listservs and scientific colleagues, is "replete with falsehoods." Id. at 5. In terms of who authored the Letter, Edwards claims that metadata recovered from and embedded within the Microsoft Word document containing the Letter indicates that it was "saved on and distributed from ... Melissa Mays' computer." Id. at 23. Edwards further states that the Letter may also have been saved on and distributed from other defendants' computers. Id.

         In addition to those statements in the Letter, Edwards originally asserted as defamatory or defamatory per se a dizzying array of statements contained in communications purportedly published by the defendants at various times, to various audiences, via various media, including Facebook and Twitter. It was initially unclear to the court which of these communications (and statements contained therein) Edwards was alleging gave rise to causes of action for defamation, which were being offered as circumstantial evidence of intent, which were included in support of Counts III-V only, and which were presented merely to provide context. Following a hearing on October 29, 2018, the court requested, and Edwards later produced, the Supplemental Memorandum. In this memorandum, Edwards identified six communications and/or instances of alleged defamation besides the Letter. ECF No. 27, at 3-6. These additional communications are contained in paragraphs 52, 53, 54, 55, 56, and 63 of the Amended Complaint. Edwards also attached, as discussed above, the second and third versions of the Letter as exhibits. In this Supplemental Memorandum, Edwards also conceded that statements contained in paragraphs 49-51 of the Amended Complaint do not provide a basis for liability under Count I or Count II because they are time-barred by Va. Code Ann. § 8.01-247.1, Virginia's statute of limitations for defamation. The six additional communications, and concomitant statements, are reproduced below, in relevant part, as they were presented in the Amended Complaint:

Paragraph 52
On September 9, 2017, Mays stated via Twitter, "The person [Edwards] being talked about betrayed my family. He promised he would fight for us and when he was coopted by the State, he abandoned us."
Paragraph 53 In late 2017, Lambrinidou made two keynote presentations that, based on information and belief, included false and harmful statements of and concerning Edwards. Attendees live tweeted that an engineer involved in D.C. and Flint [Edwards] was engaged in "structural bullying" and compared Edwards' conduct to sexual harassment and assault victims in the "#metoo" movement.
Paragraph 54
On February 27, 2018, Mays made the following false and harmful statements of and concerning Edwards during an interview on CAN TV, an online program available now on YouTube:
As for the filters ... also ... Wayne state has been trying to get this study out for a year. The state of Michigan has blocked it.. . as well as some other PhDs (I am not bitter). The tap filters grown [sic] bacteria .... Boil the water. We had to find that the hard way because the filters cause Dysentery (shigella)....
From 2014 Hundreds of people in Flint died from pneumonia. Probably undiagnosed legionnaires disease. They are willing to kill people. Why are they killing us off because who will pay the bills? Because they want the land.
Paragraph 55
On May 10, Flint residents sent a letter out to the heads of the Scientific and Engineering Communities and Academia asking for an independent committee to come to Flint and hear our stories firsthand of the attacks and intimidation by a certain researcher [Edwards].
[T]he social media, public attacks and intimidation by this researcher [Edwards] have not stopper [sic] and now his students have copied this behavior in a presentation just last week[.]
[Edwards] began another barrage of false accusations to her personally, which is abhorrent behavior for a [p]rofessor[.]
Paragraph 56
Edwards' imperial and colonial version of "saving" us by denying through gaslighting, intimidation, and ridicule the real harm that he inflicts on the ground, and by belittling our knowledge, demands, organizing and mobilization in defense of our health is corrosive, unethical and not about science in any sense of the word.
We are carefully watching you [Dr. Cooper and anyone who supports Edwards].
That Edwards' full-of-untruths story of "heroism" was recently . served to AAAS by citizen science ambassador Dr. Caren Cooper of North Carolina State University to get Edwards the prestigious "scientific freedom and responsibility" award, that Cooper has no direct knowledge about Edwards' work in DC and Flint, that after nominating Edwards Cooper was granted a seat on Edwards' $1.9 million EPA project, and that Cooper has known but has expressed not an iota of curiosity about community voices protesting Edwards' community work and the harm that has ensued, are not lost on us.
These statements, published via Facebook by [d]efendant Schwartz ...
Paragraph 63
On June 30, 2018, Melissa Mays published defamatory statements of and concerning Edwards via Facebook and Twitter, associated with a photograph of a water hydrant spewing discolored water that defendants stated had been taken days earlier. After Edwards [] team demonstrated that the viral photo was not taken a few days early, but was actually from 2015 during the height of the water crisis, Mays stated:
Here is yet ANOTHER example of Virginia Tech's Marc Edwards and @flintwaterstudy taking it upon themselves to attack poisoned Flint residents and call them liars .... It's just appalling that professionals 'investigate' and attack residents, not the people who poisoned us.

ECF No. 9, at 18-24.

         Edwards contends that the publication (and apparent republication) of the Letter and the statements reproduced above were part of a "defamatory campaign" lasting "nearly two years," during which the defendants "refused to back down ... despite [his] repeated attempts to demonstrate the falsity of their statements." Id. at 4-5. In furtherance of this campaign, Edwards claims the defendants (1) "purposefully and repeatedly misquoted [him] and intentionally and falsely attributed damaging statements to him that he never made," (2) "deliberately misquoted or misrepresented publicly available facts and/or articles and documents ... they [themselves] ... referred to during their smear campaign," and (3) "disregarded the truth" by ignoring "publicly available information of which they had actual or constructive knowledge that contained true facts inconsistent with [their] false statements." Id. at 4. He alleges that the Letter, taken as a whole, as well as the individual statements excerpted in paragraphs 13(a) - 13(i), falsely imply that he "violated ethical obligations required by members of his profession," including obligations outlined in the American Society of Civil Engineering Code of Ethics. Id. at 12. He further asserts that the Letter implies that he "lacks integrity and is unfit to perform his professional duties" and resulted in permanent stigmatization. Id. Edwards, of course, flatly denies the truth of all of these purported implications.

         B.

         In support of his contention that the defendants acted with "actual malice" and "common law malice," Edwards cites (1) the defendants' continued publication of statements containing falsehoods despite his efforts to apprise them of their falsity, as well as (2) the defendants' improper motives for continuing to publish said falsehoods despite an awareness of their falsity.

         Edwards claims to have made numerous efforts to "dissuade [die defendants] from repeatedly publishing false statements" through "conciliatory emails"[4] and text messages[5] to die defendants "requesting opportunities to explain the falsity of [their] aspersions." Id. On May 23, 2017, for example, after he first learned of the Letter, Edwards claims to have emailed and/or engaged in other correspondence with the defendants (1) "challenging its misrepresentations," (2) "providing clarifications and supporting citations [for] his statements that were intentionally mischaracterized in the Letter," and (3) "attempting to demonstrate the falsity of the Letter's statements and misattributions." Id. at 29. Edwards also claims to have requested documentation supporting the allegedly false statements in the Letter. Id. The defendants reportedly responded to these overtures by publishing additional defamatory statements, including labeling his correspondence and associated media comments as "threats," and by republishing the defamatory Letter on a website and elsewhere. Id. Edwards also allegedly published several blog posts on www.flintwaterstudy.org "debunking" the defendants' false statements. Id. at 27. In one such post, published on May 4, 2014 and titled, "Direct Response to Public Assertions and Insinuations Made Against Us By a Few Individuals," Edwards "attempted to counter [defendants statements accusing him of unethical conduct." Id. at 28. In another post, tided, "Correcting Some Misconceptions About Our 9/15/2017 Press Conference: Lead Data," Edwards "attempted to correct factually false attacks by the [defendants" through (1) clarifying that he had not said Flint water was "safe," (2) disputing claims that he had not been transparent or respectful, (3) and explaining why it was incorrect to claim that he made the unqualified statement that the "the Flint water crisis was over." Id. at 29. Lambrinidou allegedly responded to this latter post with "more than a dozen tweets disparaging Edwards." Id.

         Taken together, Edwards maintains that these exchanges via email, text message, Facebook, and blog posts indicate that "[defendants had knowledge of falsity, or recklessly disregarded the truth, when making defamatory statements [, ] including those alleged in paragraph 13." Id. Lastly, Edwards avers, upon information and belief, that defendants were aware that in response to the Letter, representatives from the American Association for the Advancement of Science met with Flint residents and found that the Letter's myriad allegations did not warrant further investigation, which "demonstrated the factually false nature of the statements alleged in paragraph 13." Id. at 29-30.

         Furthermore, Edwards claims that the defendants had "various and overlapping motives to damage [him]," including "financial, professional, and social incentives to make negative and damaging statements regarding [him] and his work." Id., at 4, 16. The nature of these alleged "incentives" varies widely by defendant.

         Lambrinidou, for example, purportedly "harbors severe animosity" toward Edwards following, among other things, a romantic falling-out, as well as a professional estrangement related to disagreements over collaborative research projects and a course ("Engineering Ethics and the Public") they co-taught from 2007-2010 at Virginia Tech. Id. at 13-17. Edwards states that he and Lambrinidou decided to cease co-teaching the Virginia Tech course together, and initially agreed that Edwards would "lead teaching of the course." Id. at 14. Edwards claims that shortly thereafter, he and Lambrinidou began to "have disputes regarding intellectual property," with Lambrinidou questioning whether Edwards could continue to teach the course they co-developed or "put into practice ideas they had jointly developed and published." Id. at 15. Edwards claims to have suggested on multiple occasions that they address these and other concerns through faculty mediation services at Virginia Tech, but that Lambrinidou declined to participate in this program. Id. at 15. "[U]pon information and belief," Edwards asserts that Lambrinidou made "repeated negative statements" about him to Schwartz and Mays, who "believe that Edwards had treated Lambrinidou wrongfully." Id. at 15-16.

         Mays, according to Edwards, possesses a "vested financial interest in generating attention in the Flint Water Crisis." Id. at 16. More specifically, Mays is allegedly the "named plaintiff in a multi-million-dollar class action lawsuit involving the Flint water crisis, alleging harm to her family from lead and copper exposure." Id. at 16. Edwards claims to have exposed and reported Mays' manipulation of water samples using a Virginia Tech lead test kit to the United States Environmental Protection Agency in 2016. Id. at 17. Edwards further claims that by manipulating test results, Mays "demonstrated dangerous levels of lead in her water." Id. at 16. Mays allegedly admitted violating testing protocols to Edwards in person, but nevertheless "gave false results to the media in a manner to promote her lawsuit." Id., at 16-17. Edwards claims he was "obligated to provide evidence of Mays[, ] falsified results to the Environmental Protection Agency, which funded die work." Id. at 17.

         More generally, Edwards claims that the defendants (1) have made numerous statements expressing resentment or jealously toward the credit and accolades he has received, (2) expressed animosity towards him because they "believe he represents government interests and does not perform objective water testing," and (3) "harbor severe animosity" towards him due to "differences regarding community activism" and "other issues surrounding the Flint water crisis." Id. at 16. Edwards claims that it was this accumulated animus toward him that propelled the publication (and republication) of the Letter and other bad-faith conduct on the part of the defendants. On June 27-28, 2018, for example, Edwards claims:

Mays, Lambrinidou, and Schwartz directed and sent false and harmful statements via social media posts to the W.K. Kellogg Foundation, the Engagement Scholarship Consortium, and the Association of Public and Land Grants [sic] University, that included, but were not limited to republication of the defamatory Letter quoted above, and affirmatively discouraged these professional organizations and foundations from awarding Edwards' team at Virginia Tech awards or any other positive recognition. Edwards and his team were finalists for a prestigious award and cash prize, and the [defendants purposefully targeted re-publication of the Letter to influence the selection process.

Id. at 24. Further, Edwards claims that on July 18-19, 2016, die defendants, as well as others, formed a group known as the Campaign for Lead Free Water, which "has attempted to establish expertise and credibility, in an area of research and advocacy in which Edwards has received international recognition," and "holds itself out as operating in competition with Edwards' professional work and team at Virginia Tech." Id. at 17.

         In Count IV and Count V, Edwards alleges that the defendants' "concerted smear campaign" was part of an ongoing civil conspiracy to "attack and damage" his professional reputation and "demonize[ ] [him.] and his work to the public at large as well as [to] specific individuals and subsets within Edwards' professional community." Id. at 17. Edwards claims generally that many of the allegedly defamatory statements "contain false implications of fact damaging to [his] reputation, including but not limited to the implication that [he] has engaged in unethical, inappropriate and/or illegal conduct sufficient to provide the basis for a formal complaint and initiate an investigation." Id. at 30. Edwards claims that the defendants' tortious conduct resulted in damages and in fact harmed him by (1) diminishing' his ability to procure grant funding, (2) stunting his career development, (3) negatively affecting his eligibility for professional awards and commendations, (4) permanently diminishing his potential earning capacity, and (5) causing him and his family severe emotional distress. Id. at 30-31. More specifically, Edwards claims (1) that colleagues otherwise inclined to nominate him for professional awards and prizes have expressed reluctance to do so because of fears they would be "targeted," (2) that research sponsors have expressed concern to him regarding the defendants' "public attacks" and accusations that he engaged in unethical behavior, (3) that he has been retained for far fewer speaking engagements since the publication of the Letter, and that those who do book him have requested proof of liability insurance, and (4) impairment of his ability to raise funds via crowd source initiatives, to expose environmental injustices, and to conduct his "life's work and passion." Id. at 31-32.

         C.

         In their motion to dismiss and subsequent filings, the defendants assert a variety of grounds for dismissal. In support of their motion to dismiss for want of personal jurisdiction, the defendants claim that they are not residents of Virginia and that there are insufficient minimum contexts with Virginia to confer either general or specific jurisdiction. ECF No. 13, at A1-A2. They further assert that a finding of personal jurisdiction would offend notions of fair play and substantial justice given the "unconscionable burden" and "inconvenience" it would place on Mays and the "compelling state interest Michigan has over the health, safety, and welfare of her denizens." Id. at 4. In support of their motion to dismiss Count I and Count II for failure to state a claim, the defendants assert that the statements made by or attributed to them about Edwards are "substantially true by his own words" bearing citations to the "public record" with "reasonable interpretations drawn therefrom," and, in any event, constitute non-actionable, protected opinion in the context of a "heated debate about matters of public concern and science." Id. at 3; ECF No. 22, at 2.

         The defendants further contend that Edwards' lawsuit represents a "cynical attempt" to "strip the residents of Flint of their right to self-determination by replacing their voices with the judgment of Virginians," and "seeks to embroil this [c]ourt in a public policy debate over the history and future of the City of Flint, with the battle lines set between those seeking community empowerment by allowing residents to speak for themselves versus those with a preference for scientific paternalism." ECF No. 13, at 1-2. The defendants also assert that Edwards has failed to plausibly allege that they acted with "actual malice," which is the appropriate standard given Edwards' status as a public figure. Id. at 19. With respect to the remaining counts, the defendants assert that Edwards has failed to plead several elements essential to sustain Count III for tortious interference, and that his claims for civil conspiracy (both common law and statutory) in Count IV and Count V are redundant and fail for, among other reasons, lack of any non-speculative harm. Id. at 1, 14.

         The court will first address the veritable thicket of jurisdictional questions presented by this case, and then proceed to address the defendants' motion to dismiss as to Count I and Count II for defamation per se and defamation, respectively. For reasons stated below, the court will not address Counts III-V.

         II.

         "When personal jurisdiction is properly challenged under Rule 12(b)(2), the jurisdictional question is to be resolved by the judge, with the burden on the plaintiff ultimately to prove grounds for jurisdiction by a preponderance of the evidence." Carefirst of Md. Inc. v. Carefirst Pregnancy Ctrs.. Inc., 334 F.3d 390, 396 (4th Cir. 2003) (citation omitted). However, where, as here, the court considers a challenge to personal jurisdiction without conducting an evidentiary heating, the plaintiff need only make a prima facie showing of personal jurisdiction, rather than show jurisdiction by a preponderance of the evidence. Id. (citing Combs v. Bakker. 886 F.2d 673, 676 (4th Cir. 1989)). "The court, in deciding whether a plaintiff has met this burden, must construe all relevant pleading allegations in the light most favorable to the plaintiff, assume credibility, and draw the most favorable inferences for the existence of jurisdiction." Brooks v. Motsenbocker Advanced Devs.. Inc. 242 Fed.Appx. 889, 890 (4th Cir. 2007). "If a plaintiff makes the requisite showing, the defendant then bears the burden of presenting a 'compelling case,' that, for other reasons, the exercise of jurisdiction would be so unfair as to violate due process." Reynolds Foil. Inc v. Pal No. 3:09cv657, 2010 WL 1225620, at *1 (E.D. Va. Mar. 25, 2010) (quoting Burger King v. Rudzewicz, 471 U.S. 462, 477-78 (1985)). "For purposes of the motion to dismiss, the reviewing court may presume that any uncontradicted evidence submitted by either party is true." Id.

         The court employs the traditional two-step analysis to resolve the personal jurisdiction dispute at issue. Therefore, the court must first decide whether Virginia's long-arm statute, Va. Code Ann. § 8.01-328.1, [6] permits the court to exercise personal jurisdiction over the defendants, and second, whether the exercise of such jurisdiction comports with the due process requirements of the Fourteenth Amendment. See. e.g., Mitrano v. Hawes, 377 F.3d 402, 406 (4th Cir. 2004); ESAB Group. Inc. v. Centricut. Inc. 126 F.3d 617, 622 (4th Cir. 1997). Virginia's long-arm statute extends personal jurisdiction to the extent permitted by due process, and therefore "the statutory inquiry necessarily merges with the constitutional inquiry, and the two inquiries essentially become one." Young v. New Haven Advocate. 315 F.3d 256, 261 (4th Cir. 2002) (quoting Stover v. Q'Connell Assocs.. Inc.. 84 F.3d 132, 135-36 (4th Cir. 1996)). The inquiry becomes whether the defendants maintain sufficient minimum contacts with the forum state so as not to offend "traditional notions of fair play and substantial justice." Int'l Shoe Co. v. Washington, 326 U.S. 310, 316 (1945) (quoting Milliken v. Meyer, 311 U.S. 457, 463 (1940)).

         "The standard for determining the existence of personal jurisdiction over a nonresident defendant varies, depending on whether the defendant's contacts with the forum state also provide the basis for the suit." Carefirst, 334 F.3d at 397. "If the defendant's contacts with the [s]tate are also the basis for the suit, those contacts may establish specific jurisdiction .... [T]f the defendant's contacts with the [s]tate are not also the basis for suit, then jurisdiction over the defendant must arise from the defendant's general, more persistent, but unrelated contacts with the [s]tate." ALS Scan. Inc. v. Dig. Serv. Consultants. Inc.. 293 F.3d 707, 712 (4th Cir. 2002) (citing Helicopteros Nacionales de Columbia. S.A. v. Hall, 466 U.S. 408, 414 & n.8-9 (1984)). Edwards properly asserts only specific jurisdiction pursuant to Va. Code Ann. § 8.01-328.1.[7]

         To determine whether specific jurisdiction exists, the Fourth Circuit has adopted a three-part test. The court must consider: "(1) whether the defendant purposefully availed (herself] of the privileges of conducting activities in the forum state, (2) whether the plaintiffs claim arises out of the defendant's forum-related activities, and (3) whether the exercise of personal jurisdiction over die defendant would be constitutionally reasonable." Young, 315 F.3d at 261. In relation to the first factor, "no clear formula [exists] for determining what constitutes 'purposeful availment."' Reynolds Foil. 2010 WL 1225620, at *2. However, "[i]f, and only if... die plaintiff has satisfied this first prong of the test for specific jurisdiction need [the court] move on to a consideration of prongs two and three." Consulting Eng'rs Corp. v. Geometric Ltd.. 561 F.3d 273, 278 (4th Cir. 2009). "The second prong of the test for specific jurisdiction ... requires that the defendant's contacts with the forum state form the basis of the suit." Id. at 278-79 (citing Burger King, 471 U.S. at 472). The third prong of the specific jurisdiction test "permits a court to consider additional factors to ensure the appropriateness of the forum once it has determined that a defendant has purposefully availed itself of the privilege of doing business there." Id. at 279.

         In Count I and Count II, Edwards "incorporate[d] by reference ... all of the allegations appearing elsewhere in this [c]omplaint." ECF No. 9, at 32-33. In its review of the pleadings, the court struggled to determine with any precision which of Edwards' sundry "allegations" were intended to support which claims for relief. Moreover, it was evident that although asserting one count of defamation per se (Count I) and one count of defamation (Count II), subsumed within these counts were statements contained in the Letter sent via email to Virginia Tech on May 10, 2018, [8] and numerous other statements arising out of, among other things, the defendants' social media activity. Edwards' incorporation-by-reference approach placed the onus of sorting allegations scattered throughout his pleadings on the court. The resulting confusion between the parties and the court required the latter to order Edwards to submit a supplemental brief specifying which statements, besides those contained in the Letter, he was alleging constituted actionable defamation. Edwards' Supplemental Memorandum directed the court's attention to six communications: (1) Mays' September 9, 2017 Twitter post alleged in paragraph 52, (2) Lambrinidou's late 2017 "keynote presentations" alleged in paragraph 53, (3) Mays' February 27, 2018 interview on CAN TV, "an online program available now on YouTube," alleged in paragraph 54, (4) a Facebook post ostensibly published by all three defendants on a Facebook page tided Flint Complaints, alleged in paragraph 55, [9] (5) a Facebook post purportedly published by Schwartz on May 22, 2018, alleged in paragraph 56, and a (6) June 30, 2018 Twitter post by Mays alleged in paragraph 63. Edwards contends generally that the court has jurisdiction over these communications.

         The Internet presents unique challenges to establishing personal jurisdiction over nonresident defendants. It has been long held that the purposeful availment prong of the personal jurisdiction analysis can be met if a defendant's "intentional conduct [in the foreign state was] calculated to cause injury to [the plaintiff] in [the forum state]." Calder v. Jones, 465 U.S. 783, 791 (1984) ("Jurisdiction over petitioners is therefore proper in California based on the 'effects' of their Florida conduct in California."). Calder, however, does not vest jurisdiction in a state merely because it serves as the locus of the plaintiffs injury. See Walden v. Fiore, 571 U.S. 277, 278 (2014) ("[M]ere injury to a forum resident is not a sufficient connection to the forum."). The "proper question is not where the plaintiff experienced a particular injury or effect but whether the defendant's conduct connects him to the forum in a meaningful way." Id.

         In the Internet context, the Fourth Circuit, "adopting and adapting" a three-part test posited in Zippo Manuf. Co. v. Zippo Dot Com. Inc.. 952 F.Supp. 1119 (W.D. Pa. 1997), frames the Calder "effects" test as follows: "a [s]tate may, consistent with due process, exercise judicial power over a person outside of the [s]tate when that person (1) directs electronic activity into the [s]tate, (2) with the manifested intent of engaging in business or other interactions within the [s]tate, and (3) that activity creates, in a person within the [s]tate, a potential cause of action cognizable in the [s]tate's courts." ALS Scan, 293 F.3d at 714.

         The Fourth Circuit provided relevant guidance on the application of this standard in Young. 315 F.3d at 256. There, two Connecticut newspapers and their staff allegedly defamed a Virginia prison warden, Stanley Young, by posting articles online discussing Connecticut's policy of housing prisoners in Virginia facilities. Id. at 258-59. Warden Young argued, per Calder:

[T]hat the district court has specific personal jurisdiction over the newspaper defendants ... because of the following contacts between them and Virginia: (1) the newspapers, knowing that Young was a Virginia resident, intentionally discussed and defamed him in their articles, (2) the newspapers posted the articles on their websites, which were accessible in Virginia, and (3) the primary effects of the defamatory statements on Young's reputation were felt in Virginia.

Id. at 261-62. The Fourth Circuit rejected Young's argument, noting that the place where Young felt the effects of the allegedly libelous statements was relevant to the jurisdictional analysis, but "emphasized how important it is ... to look at whether the defendant has expressly aimed or directed its conduct toward the forum state." Id. at 263 (citation omitted).

         The dispositive question, according to the Fourth Circuit, was "whether the newspapers manifested an intent to direct their website content.... discussing conditions in a Virginia prison ... to a Virginia audience." Id. In other words, the mere "act of placing information on the Internet" is not sufficient by itself to "subject[ ] that person to personal jurisdiction in each [s]tate in which the information is accessed" as, otherwise, a "person placing information on the Internet would be subject to personal jurisdiction in every [s]tate," and the "traditional due process principles governing a [s]tate's jurisdiction over persons outside of its borders would be subverted." Id. (citation omitted).

         Here, Edwards asserts only specific personal jurisdiction over the defendants, and therefore the court must have jurisdiction over each claim that it decides. See Gatekeeper Inc. v. Stratech Sys.. Ltd. 718 F.Supp.2d 664, 667-68 (E.D. Va. 2010) ("[T]hough the Fourth Circuit has yet to address this issue, the three courts of appeal that have done so have sensibly concluded that specific jurisdiction requires a claim-specific analysis."); see also Seiferth v. Helicopteros Atuneros. Inc.. 472 F.3d 266, 274 (6th Cir. 2006) (citing 5B Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil 3d § 1351, at 299 n.30 (2004) ("There is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.")).

         Importantly, and as explained above, the court cannot, having determined that personal jurisdiction exists over a defendant with respect to one claim, use that claim to exert personal jurisdiction over the same defendant with respect to other claims that do not otherwise support such jurisdiction. See Helicopteros, 466 U.S. at 414; gee also Remick v. Manfredy, 238 F.3d 248, 255 (3d Cir. 2001). For the reasons explained below, Edwards has failed to make a prima facie showing of specific personal jurisdiction as to the six claims arising out of the defamatory communications alleged in paragraphs 52, 53, 54, 55, 56, and 63 of the Amended Complaint.

         A.

         Edwards cannot satisfy the Calder "effects" test, as elucidated in Young, to establish this court's jurisdiction over his claims that arise out of the defendants' social media activity (paragraphs 52, 55, 56, 63), Lambrinidou's late 2017 keynote presentations and related "live tweet[s]" made by an unnamed third party (paragraph 53), [10] or Mays' February 27, 2018 interview on CAN TV, apparently available on YouTube (paragraph 54). Though alleging numerous instances of defamation arising out of communications on various media, Edwards does not separate these claims and/or causes of action into separate counts. Nor does he apparently regard any of the six additional communications identified above as separate claims for the purposes of establishing personal jurisdiction. That these six additional claims were pled collectively and presented under two umbrella counts, however, belies the fact that each constitutes a discrete cause of action arising under distinct circumstances for which a separate jurisdictional analysis is required. In other words, Edwards' pleading numerous instances of defamation under two counts does not relieve him of establishing, nor the court of evaluating, jurisdiction on a claim-by-claim basis. Indeed, "it is well-settled that 'repeated defamations do not constitute a [single] continuing tort, "' but rather, "as courts have uniformly recognized, each separate defamatory statement itself constitutes a separate and distinct cause of action." Katz v. Odin. Feldman & Pittleman. P.C. 332 F.Supp.2d 909, 917 (E.D. Va. 2004) (citation omitted); Hoai Thanh v. Ngo. No. CIV. PJM 14-448, 2015 WL 2227923, at *2 (D. Md. May 8, 2015), affd sub nom. Hoai Thanh v. Hien T. Ngo, 694 Fed.Appx. 200 (4th Cir. 2017) (holding that "[e]very alleged defamatory statement constitutes a separate instance of defamation, which a plaintiff must specifically allege"); see also English Boiler, 1999 WL 89125 at *3 (holding that in a defamation claim, "[a] plaintiff may not baldly allege a broad course of conduct over a lengthy period of time and later sue on any act that occurred during that time period," and that "[e]ach act of defamation is a separate tort... a plaintiff must specifically allege"). Thus, the court must assess whether there is a basis for exercising jurisdiction over each of the seven communications Edwards alleges contained defamatory statements, i.e., the Letter, plus the six communications described above.

         The relevant legal principle requiring this court to individually assess defamatory communications of the kind alleged in this case is illustrated in McNeil v. Biaggi Productions. LLC, where the plaintiff appeared to allege that because the defendants "deliberately communicated via telephone and email with a third party located in Virginia" (Count 5), the court was permitted to exercise jurisdiction over other allegedly defamatory statements disseminated via Facebook, Twitter, and a blog (Counts 1-4 & 6-11) concerning the same or similar subject matter as the "telephone [call] and email." No. 3:15CV751, 2017 WL 2625069, at *5-8 (E.D. Va. June 16, 2017). In addition to advancing a theory of ancillary specific jurisdiction, the plaintiff invoked die Calder "effects" test theory of jurisdiction. The McNeil court reiterated that mere injury to a Virginia resident is not a sufficient connection to Virginia, and therefore, per Young, posting defamatory statements on social media, without more, does not constitute purposeful availment. The court then rejected McNeil's ancillary specific jurisdiction argument, refusing to allow those communications which did not arise from contacts with Virginia to piggyback on Count 5, which did involve communications (and statements) which the court concluded were expressly directed at Virginia. Id. at *8. Vis-a-vis those statements made during the "telephone [call] and email" to a police department in Virginia alleged in Count 5, the court held that "[t]hat contact supports a finding of personal jurisdiction on Count V, which alleges defamation stemming from those precise communications. It does not, however, provide the [c]ourt with a basis to extend its jurisdictional reach to other, unrelated claims." Id. The McNeil court allowed the case to proceed based solely on those communications contained in Count 5. In support of this communication-specific approach, the McNeil court cited Gatekeeper Inc. v. Stratech Sys, Ltd.. 718 F.Supp.2d 664, 667-69 (E.D. Va. 2010), where the court held that "if specific personal jurisdiction over a defendant with respect to one cause of action were sufficient to allow a plaintiff to allege a series of other claims not arising from the defendant's forum state contacts ... then th[e] important distinction between general and specific jurisdiction would be significantly attenuated, if not eviscerated." This court finds the reasoning in McNeil and Gatekeeper persuasive and will proceed by assessing the jurisdictional basis for each communication (and cause of action) alleged in the present case.

         B.

         Edwards asserts that statements contained in the six communications identified in the Supplemental Memorandum (1) "caused tortious injury ... in the Commonwealth of Virginia, and, seemingly as an afterthought, that defendants (2) transmitted these communications "dkecdy to Virginia Tech via social media." ECF No. 9, at 2; see also ECF No. 29, at 29 (same). No additional factual matter is proffered in support of the second generalized assertion, and although die court must construe die pleadings, affidavits, and odier supporting documents in the light most favorable to Edwards, it need not "credit conclusory allegations or draw farfetched inferences." Masselli & Lane. PC v. Miller & Schuh. PA. 215 F.3d 1320 (4th Cir. 2000) (citation omitted); see Magic Toyota. Inc. v. Se. Toyota Distribs.. Inc.. 784 F.Supp. 306, 310 (D.S.C. 1992) (holding that a plaintiffs showing of personal jurisdiction must be based on specific facts set fordi in die record in order to defeat defendants' motion to dismiss); see also Boykin Anchor Co.. Inc., v. AT & T, Corp.. No. 5:10-CV-591-FL, 2011 WL 1456388, at *2 (E.D. N.C. Apr. 14, 2011). In addition to the Fourth Circuit's express rejection in Young of jurisdiction undergirded solely on tortious injury in die forum, die weakness of Edwards' showing vis-a-vis die statements alleged in paragraphs 52, 53, 54, 55, 56, and 63 is underscored by die holdings of numerous courts in die Fourdi Circuit and beyond in cases involving die publication of allegedly defamatory statements on websites or social media feeds.

         In FireClean, LLC v. Tuohy, for example, the district court dismissed a defamation case for lack of personal jurisdiction where the underlying claims arose from articles posted on a firearms blog and various social media websites, including Facebook. No. 1:16-CV-0294, 2016 WL 3952093, at *3 (E.D. Va. July 21, 2016). The allegedly defamatory posts and articles in FireClean questioned whether the plaintiffs product, a gun oil used to lubricate firearms and reduce carbon residue buildup, was any different than ordinary cooking oil. Id. at *2. In one article published by defendant Tuohy, initially entitled "Lies, Errors, and Omissions," Tuohy stated that FireClean is a "common vegetable oil, with no evidence of additives for corrosion resistance or other features," and closed by criticizing the plaintiff for not being "entirely truthful about [their product], the way it works, or what it contains," and misleading consumers into buying their product at a markup under the belief that the "bottle of vegetable oil was the most advanced gun lube on the planet." Id. at *2-3. FireClean LLC, a Virginia company, filed suit in Virginia alleging multiple counts of defamation.

         The court applied the Fourth Circuit's analysis in Young, ultimately dismissing the case after concluding that it lacked personal jurisdiction over the defendants. The court rejected FireClean's argument that jurisdiction exists in the state where the plaintiff experienced reputational harm, despite the fact that: (1) Tuohy exchanged non-defamatory "emails, text messages, Facebook messages, and occasionally phone calls" with the company (in Virginia), (2) FireClean had sent Tuohy samples of its lubricant from Virginia, (3) 90 of the 9, 181 people who "liked" Tuohy's allegedly defamatory Facebook posts were located in Virginia, and (4) some Virginia servers may have processed Tuohy's online content. Id. at *5. The court underscored that these contacts neither form the basis of the plaintiffs defamation claim, nor do they evince purposeful targeting of Virginia. Id. at *5-7. In relation to the Facebook "likes" specifically, the court held that such "contacts" "appear[ed] completely 'random, fortuitous, or attenuated.'" Id. at *6 (citation omitted); see Binion v. O'Neal 95 F.Supp.3d 1055, 1060 (E.D. Mich. 2015) (holding that posting offensive pictures of the plaintiff on Instagram and Twitter did not constitute the defendant's purposefully availing ...


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