IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF IOWA
WESTERN DIVISION
NuStar Farms, LLC, Anthony Nunes, Jr.,
and Anthony Nunes, III,
Plaintiffs,
v.
Ryan Lizza and Hearst Magazine Media,
Inc.,
Defendants.

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Case No. 5:20-cv-04003-CJW-MAR
Defendants’ Brief in Support of Their
Motion to Dismiss Pursuant to Fed. R.
Civ. P. 12(b)(6), and for a More Definite
Statement Pursuant to Fed. R. Civ. P.
12(e)
(Telephonic Oral Argument Requested)

Defendants Ryan Lizza and Hearst Magazine Media, Inc. (“Defendants”) respectfully
submit this brief in support of their motion (the “Motion”) (i) to dismiss the Complaint of
Plaintiffs NuStar Farms, LLC (“NuStar”), Anthony Nunes, Jr. (“Anthony Jr.”), and Anthony
Nunes, III (“Anthony III”), see ECF No. 1 (the “Complaint”), pursuant to Fed. R. Civ. P.
12(b)(6), and, in the alternative, (ii) for a more definite statement pursuant to Fed. R. Civ. P.
12(e) because the Complaint’s vague and ambiguous allegations prevent Defendants from
reasonably preparing their answers and defenses.

Case 5:20-cv-04003-CJW-MAR Document 16-1 Filed 03/23/20 Page 1 of 32

 Table of Contents
Introduction ......................................................................................................................................1
Fact Allegations ...............................................................................................................................2
A.

NuStar, Managed by Anthony Jr. and Anthony III, Operates a Dairy Farm ...........2

B.

Esquire Magazine Publishes the Article ..................................................................2

C.

Plaintiffs File This Lawsuit......................................................................................5

Argument .........................................................................................................................................6
I.

II.

Plaintiffs’ Complaint Should Be Dismissed Pursuant to Rule 12(b)(6) ..................6
A.

Only False, Defamatory, Factual Statements that Are “Of and
Concerning” Any or All of Plaintiffs Are Actionable .................................7

B.

Plaintiffs Have Failed to Plead Facts to Support a Claim for
Defamation.................................................................................................10

C.

Plaintiffs Cannot State a Claim for Defamation as a Matter of Law .........11

Should the Complaint Not Be Dismissed, the Court Should Order Plaintiff to
Replead with a More Definite Statement ...............................................................23

Conclusion .....................................................................................................................................25

i
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 Table of Authorities
Page(s)
Cases
Abbas v. Foreign Policy Grp., LLC,
783 F.3d 1328 (D.C. Cir. 2015) .........................................................................................22, 23
AIDS Counseling & Testing Ctrs. v. Grp. W Television, Inc.,
903 F.2d 1000 (4th Cir. 1990) .................................................................................................20
Ashcroft v. Iqbal,
556 U.S. 662 (2009) .........................................................................................................1, 6, 11
Bandstra v. Covenant Reformed Church,
913 N.W.2d 19 (Iowa 2018) ......................................................................................................9
Bell Atl. Corp. v. Twombly,
550 U.S. 544 (2007) .........................................................................................................1, 6, 11
Bierman v. Weier,
826 N.W.2d 436 (Iowa 2013) ......................................................................................2, 7, 8, 10
Black v. Am. Family Mut. Ins. Co.,
No. C18-3021-LTS, 2018 WL 1865872 (N.D. Iowa Apr. 18, 2018) ......................................24
Boley v. Atl. Monthly Grp.,
950 F. Supp. 2d 249 (D.D.C. 2013) .....................................................................................7, 11
Brummett v. Taylor,
569 F.3d 890 (8th Cir. 2009) .....................................................................................................8
Cabello-Rondón v. Dow Jones & Co.,
No. 16-CV-3346 (KBF), 2017 WL 3531551 (S.D.N.Y. Aug. 16, 2017) ............................7, 11
Chapin v. Knight-Ridder, Inc.,
993 F.2d 1087 (4th Cir. 1993) .................................................................................................22
Cochran v. NYP Holdings, Inc.,
58 F. Supp. 2d 1113 (C.D. Cal. 1998) .....................................................................................13
Cohn v. Nat’l Broad. Co.,
67 A.D.2d 140 (N.Y. App. Div., 1st Dep’t 1979) ....................................................................20
Craig v. City of Cedar Rapids, Iowa,
826 N.W.2d 516 (Iowa Ct. App. 2012)....................................................................................10

ii
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 Crawford-El v. Britton,
523 U.S. 574 (1998) .................................................................................................................24
CRST Expedited, Inc. v. Knight Transp., Inc.,
No. 17-CV-24 CJW, 2018 WL 1369920 (N.D. Iowa Mar. 15, 2018) .....................................24
Franklin v. Dynamic Details, Inc.,
116 Cal. App. 4th 375 (2004) ..................................................................................................14
Freeman v. Bechtel Constr. Co.,
87 F.3d 1029 (8th Cir. 1996) ...................................................................................................24
Gilman v. Spitzer,
538 F. App’x 45 (2d Cir. 2013) ...............................................................................................20
Greenbelt Coop. Publ’g Ass’n v. Bresler,
398 U.S. 6 (1970) .....................................................................................................................12
Hawkins v. Kiely,
250 F.R.D. 73 (D. Me. 2008) ...................................................................................................24
Horsley v. Feldt,
304 F.3d 1125 (11th Cir. 2002) ...............................................................................................12
Hovey v. Iowa State Daily Publ’n Bd., Inc.,
372 N.W.2d 253 (Iowa 1985) ....................................................................................................8
Int’l Ass’n of United Mine Workers Union v. United Mine Workers of Am.,
No. 2:04CV00901, 2006 WL 1183245 (D. Utah May 1, 2006) ........................................19, 21
Johnson v. Nickerson,
542 N.W.2d 506 (Iowa 1996) ..........................................................................................7, 8, 19
Lauderback v. Am. Broad. Cos.,
741 F.2d 193 (8th Cir. 1984) .......................................................................................12, 14, 16
Lee v. Lincoln Nat’l Life Ins. Co.,
No. 18-CV-2063-CJW, 2018 WL 5660553 (N.D. Iowa Oct. 31, 2018) ..................................17
Lundell Mfg. Co. v. Am. Broad. Cos.,
98 F.3d 351 (8th Cir. 1996) .................................................................................................8, 13
Mallory v. S & S Publishers,
168 F. Supp. 3d 760 (E.D. Pa. 2016) .......................................................................................15
Martin v. Mooney,
No. 19-CV-00323-LM, 2020 WL 1027940 (D.N.H. Mar. 3, 2020) ..........................................7

iii
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 McBride v. Crowell-Collier Publ’g Co.,
196 F.2d 187 (5th Cir. 1952) ...................................................................................................20
Mechdyne Corp. v. Garwood,
707 F. Supp. 2d 864 (S.D. Iowa 2009) ......................................................................................8
Milkovich v. Lorain Journal Co.,
497 U.S. 1 (1990) .......................................................................................................................9
Miller v. Redwood Toxicology Lab., Inc.,
688 F.3d 928 (8th Cir. 2012) ...................................................................................................17
Mills v. State,
924 F. Supp. 2d 1016 (S.D. Iowa 2013) ................................................................10, 16, 18, 22
N.U. by Amar v. E. Islip Union Free Sch. Dist.,
No. 16-CV-4540 (SJF) (ARL), 2017 WL 10456860 (E.D.N.Y. Sept. 15, 2017) ..............19, 21
N.Y. Times Co. v. Sullivan,
376 U.S. 254 (1964) ...................................................................................................................8
Paolini v. Albertson’s, Inc.,
No. CV-02-0041-S-BLW, 2003 WL 27386670 (D. Idaho Jan. 24, 2003) ..............................24
Phila. Newspapers, Inc. v. Hepps,
475 U.S. 767 (1986) .............................................................................................................8, 10
Reeder v. Carroll,
759 F. Supp. 2d 1064 (N.D. Iowa 2010) ........................................................................8, 16, 22
Schuster v. U.S. News & World Report, Inc.,
602 F.2d 850 (8th Cir. 1979) .......................................................................................15, 16, 22
Smith v. Maldonado,
72 Cal. App. 4th 637 (1999) ......................................................................................................9
State v. Milner,
571 N.W.2d 7 (Iowa 1997) ........................................................................................................2
Taggart v. Drake Univ.,
549 N.W.2d 796 (Iowa 1996) ....................................................................................................8
Tannerite Sports, LLC v. NBCUniversal News Grp.,
864 F.3d 236 (2d Cir. 2017).......................................................................................6, 7, 11, 18
Verragio, Ltd. v. AE Jewelers, Inc.,
No. 15 CIV. 6500 (CM), 2017 WL 4125368 (S.D.N.Y. Aug. 23, 2017) ..............................6, 7

iv
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 Whitney v. Guys, Inc.,
700 F.3d 1118 (8th Cir. 2012) ...................................................................................................6
Wilson v. IBP, Inc.,
558 N.W.2d 132 (Iowa 1996) ....................................................................................................9
Wright v. Boys & Girls Clubs of the Lowcountry,
No. CIV.A. 9:12-3243-SB, 2013 WL 3229719 (D.S.C. June 25, 2013) .................................24
Wyo. Corp. Servs. v. CNBC, LLC,
32 F. Supp. 3d 1177 (D. Wyo. 2014) .................................................................................12, 13
Yates v. Iowa W. Racing Ass’n,
721 N.W.2d 762 (Iowa 2006) .......................................................................................... passim
Other Authorities
Fed. R. Civ. P. 12(b)(6)........................................................................................................6, 17, 25
Fed. R. Civ. P. 12(e) ......................................................................................................................23
Tom Wolfe, Why They Aren’t Writing the Great American Novel Anymore,
Esquire, May 15, 2018, https://www.esquire.com/lifestyle
/money/a20703846/tom-wolfe-new-jounalism-american-novel-essay/ (last
accessed Mar. 23, 2020).............................................................................................................2

v
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 Introduction
In September 2019, Congressman Devin Nunes filed a meritless strike suit for
defamation in this Court. See Case No. 5:19-cv-04064-CJW-MAR, ECF No. 1. His complaint
concerned the Esquire article “Devin Nunes’s Family Farm Is Hiding a Politically Explosive
Secret” (the “Article”). Three-and-a-half months later, the same counsel who represents
Congressman Nunes in his case filed a strikingly similar complaint for defamation concerning
the same Article—this time, on behalf of Congressman Nunes’s father (Anthony Jr.), brother
(Anthony III), and their dairy farm (NuStar).
Plaintiffs’ Complaint follows the same cadence as that of Congressman Nunes: It is
filled with bluster, hyperbole, and conclusory allegations of fabrication and misconduct, while
summarily alleging that 16 statements in the Article are false. But Plaintiffs’ Complaint does not
explain why or how any of the 16 challenged statements are actionable, beyond simply quoting
them and declaring them “false and defamatory.” The Complaint does not provide any factual
information as to what aspects of the statements—some of which are an entire paragraph in
length—are false, and why that is so. Plaintiffs have therefore failed to carry their burden of
pleading falsity with sufficient factual detail to make the allegation plausible, as required by
Twombly and Iqbal. See Point I.A. (At a minimum, the Court should order that Plaintiffs plead a
more definite statement, with details explaining precisely how and why they maintain that the
challenged statements are false. See Point II.) Plaintiffs should not be permitted to subject
Defendants to burdensome discovery that chills their and others’ First Amendment rights without
specifying facts that would support their conclusory claims of falsity.
Notwithstanding Plaintiffs’ failure to satisfy Rule 8, every challenged statement is on its
face not actionable for one or more reasons. Most are not statements “of and concerning”
Plaintiffs. Most are not defamatory; that is, the statements would not tend to injure any of

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 Plaintiffs’ reputations in the community. Several are actually or substantially true, as admitted in
the Complaint. And others are nonactionable opinions, as evidenced by the literary journalism
format of the Article and the overall context, and moreover such opinions are predicated on facts
disclosed in the Article, and are therefore fair comment protected by the First Amendment and
Art. I, § 7 of the Iowa Constitution.1 See Point I.B.
Fact Allegations
A. NuStar, Managed by Anthony Jr. and Anthony III, Operates a Dairy Farm.
NuStar operates a dairy farm in Sibley, Iowa. Compl. ¶ 4. Anthony Jr. and Anthony III
“manage the business of NuStar,” with Anthony III running the farm’s day-to-day operations.
Id. ¶ 5. Anthony Jr. is the father of Devin Nunes, the California Congressman who currently
represents the state’s 22nd Congressional District and who serves as the ranking Republican
member on the House Permanent Select Committee on Intelligence. Anthony III is
Congressman Nunes’s brother.
B. Esquire Magazine Publishes the Article.
Esquire magazine is a publication of Hearst Magazine Media, Inc. (“HMMI”). Id. ¶ 7.
Esquire’s content is also distributed on Esquire.com. Id. Esquire’s articles tend to be written in
the style of literary journalism, which combines journalistic research with the techniques of prose
writing in reports about real-life, public-interest events, often through the perspective of the
author’s first-person observations.2

1

The Iowa Constitution “imposes the same restrictions on the regulation of speech as does
the federal constitution.” Bierman v. Weier, 826 N.W.2d 436, 451 (Iowa 2013) (quoting State v.
Milner, 571 N.W.2d 7, 12 (Iowa 1997)).
2
Esquire has been closely associated with this genre, known as “New Journalism,” and its
progenitors, including Tom Wolfe, since the 1960s. See, e.g., Tom Wolfe, Why They Aren’t
Writing the Great American Novel Anymore, Esquire, May 15, 2018, https://www.esquire.com
/lifestyle/money/a20703846/tom-wolfe-new-jounalism-american-novel-essay/ (last accessed
Mar. 23, 2020).
2
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 The Article exemplifies this style. Authored by Lizza, HMMI’s predecessor-in-interest
posted the Article on Esquire.com on September 30, 2018, and reprinted it in the November 2018
edition of Esquire magazine. See March 23, 2020 Declaration of Ravi Sitwala (“Sitwala Decl.”),
Exs. A, B. The cover of the print magazine includes this headline: “One Powerful Congressman,
2,000 Cows, and a Small Town’s Big Secret   A Very Weird Political Thriller   By Ryan Lizza.”
Id., Ex. B. Consistent with the literary journalism style, on the page preceding any text in the
print edition (and near the top of the online edition) appears a full-page illustration depicting
Lizza sweating while driving past dairy farms in Sibley, with endless lines of cows staring at him
on both sides of the road and a white SUV appearing in his rear-view mirror, the driver focused
on Lizza. Id., Exs. A, B.
These elements reflect the tone of Lizza’s first-person reporting, as he takes the reader
into his investigation into the Nunes family farm. Id., Exs. A, B. As the Article explains,
Congressman “Nunes grew up in a family of dairy farmers in Tulare, California, and as long as
he has been in politics, his family dairy has been central to his identity and a feature of every
major political profile written about him.” Id. The Article points to several instances of prior
reporting on Congressman Nunes in which his family farm was featured. Id.
The Article then reveals that “[t]he Nunes family dairy of political lore—the one where
his brother and parents work—isn’t in California. It’s in Iowa.” Id. The family moved their
farming operations to Sibley, Iowa, more than a decade ago. Id. The Article explains that
Congressman Nunes and his family, including Anthony Jr. and Anthony III, appear to have kept
this fact a “secret,” and that they “tried to conceal” it. Id. The Article notes that “until late
August, neither Nunes nor the local California press that covers [Congressman Nunes] had ever
publicly mentioned that his family dairy is no longer in Tulare[, California,]” according to the

3
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 author’s research. Id. The Article then describes several instances where Lizza would have
expected to find reference to the family farm having moved to Iowa—for example, in a press
release for a campaign rally for Congressman Steve King in his Iowa district, which
Congressman Nunes attended—but Lizza found no such disclosure. Id. The Article then asks,
“[w]hy would the Nuneses, Steve King, and an obscure dairy publication all conspire to hide the
fact that the congressman’s family sold its farm and moved to Iowa?” Id.
The foregoing appears within the first 14 paragraphs of the 68-paragraph Article. See id.,
Ex. A.3 The rest of the Article concerns Lizza’s experience reporting in and around Sibley, a
small town in a region of Iowa that overwhelming supported Donald Trump in 2016, and is
represented by Steve King, “the most anti-immigrant member of Congress.” Id., Exs. A, B. The
Article reports on Lizza’s interviews with several Sibley residents, who offered their opinions on
President Trump and his policies. Generally speaking, the residents that Lizza interviewed
(including Sibley’s mayor) supported President Trump, but were uneasy about his hardline
positions on immigration. Id.
In conducting his reporting, Lizza learned why area residents might not take a hardline
position in immigration: “Midwestern dairies tend to run on undocumented labor.” Id., Exs. A,
B. The Nunes family farm, NuStar, was no exception. In the Article’s 54th paragraph, Lizza
reports that “NuStar did indeed rely, at least in part, on undocumented labor.” Id. Lizza
comments that this appears as a “massive political hypocrisy” given residents’ election of King
and vocal support of Trump generally; “Trump’s and King’s rural-farm supporters embrace antiimmigrant politicians while employing undocumented immigrants.” Id.

3

This count includes the summary paragraph that appears at the top of the Article. In the
print edition, the 12th and 13th paragraphs are combined for formatting reasons; thus, the
foregoing appears within the first 13 paragraphs of the 67-paragraph Article as it appears in print.
Id., Ex. B.
4
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 Lizza attempted to speak to Anthony Jr. about this issue, but Anthony Jr. “did not
respond to numerous requests for interviews.” Id. In the most vivid example of Anthony Jr.’s
recalcitrance, Lizza was rebuffed when he approached Anthony Jr.’s house. Anthony Jr. told
Lizza that he was “taking [his] license plate down and reporting [Lizza] to the sheriff,” adding
that he didn’t “want to be bothered” by Lizza and if he “s[aw] [him] again, [he was] gonna get
upset.” Id.
Lizza then reports on how he was being followed by members of the Nunes family while
reporting in Sibley. He observed a GMC Yukon following him as he drove aimlessly around
Sibley. Id. He observed a man watching him while Lizza was in the parking lot of a local
grocery store. Id. Lizza had “a particularly sensitive interview” with a source that was
interrupted when the source received a phone call from a NuStar employee, warning the source
not to speak with Lizza. Id. Using his GoPro, Lizza video recorded several cars that appeared to
be following him—and, upon cross-checking the drivers caught on camera against photographs
on Facebook, he concluded that he was being followed by members of the Nunes family,
including Anthony Jr. and Anthony III. Id. The Article characterizes what Lizza found as
“paranoia and hypocrisy”; residents of Sibley, and in particular members of the Nunes family,
appeared to be startled by Lizza’s presence. Lizza questioned whether the fears of Iowa dairy
farmers, so reliant on undocumented laborers, were misplaced: “The greatest threat to Iowa dairy
farmers, of course, is not the press. It’s Donald Trump.” Id.
C. Plaintiffs File This Lawsuit.
Plaintiffs initiated this action by filing the Complaint on January 16, 2020. ECF No. 1.
The Complaint asserts one count of defamation based on 16 allegedly defamatory statements in
the Article. All are recounted and addressed below.
The Complaint focuses on supposed harm to Congressman Nunes, not to Plaintiffs. It
5
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 alleges that Defendants published the Article in an effort to “accomplish a nefarious purpose” of
damaging Congressman Nunes in advance of the 2018 Congressional election. Compl. ¶ 3. It
adds that the Article was published “to retaliate against [Congressman Nunes] for exposing
corruption, including the DNC/Clinton campaign’s role in funding the salacious ‘Steele
dossier.’” Id. ¶ 12. It complains that Plaintiffs “were collateral damage in Defendants’ reckless
smear operation” against Congressman Nunes. Id. ¶ 13. Regardless of the Complaint’s focus,
none of the allegedly defamatory statements are actionable, see Point I infra, and in the
alternative the Court should order Plaintiff to plead a more definite statement, see Point II infra.
Argument
I.

Plaintiffs’ Complaint Should Be Dismissed Pursuant to Rule 12(b)(6).
“To survive a motion to dismiss” pursuant to Rule 12(b)(6), “a complaint must contain
sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). The plaintiff must “plead[] factual content that allows the court to draw the
reasonable inference that the defendant is liable for the misconduct alleged.” Whitney v. Guys,
Inc., 700 F.3d 1118, 1128 (8th Cir. 2012) (citation omitted). “‘[L]abels and conclusions’ or ‘a
formulaic recitation of the elements of a cause of action will not do.’” Id. (citation omitted).
The Twonbly/Iqbal pleading standard applies with full force to a defamation plaintiff’s
burden to plead that a challenged statement is false (or not substantially true). It is not enough
for a plaintiff to merely allege, in conclusory fashion, that a statement is false. Rather, because
“falsity—or lack of substantial truth—is an element of a . . . defamation claim, it follows that a
plaintiff must plead facts demonstrating falsity to prevail on a motion to dismiss the complaint in
federal court.” Tannerite Sports, LLC v. NBCUniversal News Grp., 864 F.3d 236, 247 (2d Cir.
2017); see also Verragio, Ltd. v. AE Jewelers, Inc., No. 15 CIV. 6500 (CM), 2017 WL 4125368,
6
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 at *7 (S.D.N.Y. Aug. 23, 2017) (defamation plaintiff must “present any well-pleaded factual
allegations suggesting that the above statement is false”). This requires a plaintiff to not only
identify the challenged statements, but to also explain how and why the challenged statements are
not substantially true. Tannerite Sports, 864 F.3d at 251 (“Tannerite’s complaint failed
to . . . explain why th[e challenged] statements were false” (emphasis added)).4
A. Only False, Defamatory, Factual Statements that Are “Of and Concerning” Any or
All of Plaintiffs Are Actionable.
To state a claim for defamation, Plaintiffs must plead (1) publication (2) of a false
statement (3) concerning the plaintiff (4) made with the requisite level of fault (5) that resulted in
demonstrable injury to their reputation through its falsity. See Johnson v. Nickerson, 542
N.W.2d 506, 510 (Iowa 1996). Importantly, Plaintiffs cannot sidestep this burden as to the
falsity, fault, and injury to reputation elements by the doctrine of libel per se; that doctrine does
not apply in defamation cases brought against members of the media, like Hearst or Lizza. See
Bierman, 826 N.W.2d at 448 (“[L]ibel per se is available only when a private figure plaintiff
sues a nonmedia defendant for certain kinds of defamatory statements that do not concern a
matter of public importance.”). In considering whether Plaintiffs have pleaded those elements,
courts are guided by various principles of common law and First Amendment5 considerations.

4

See also Martin v. Mooney, No. 19-CV-00323-LM, 2020 WL 1027940, at *8 (D.N.H.
Mar. 3, 2020) (“[F]ederal courts have required plaintiffs to plead facts that, if proven true, would
allow a reasonable person to consider the statement false.”); Verragio, 2017 WL 4125368, at *7
(dismissing claim where plaintiff failed to “articulat[e] how the statements ‘may be’ false”
(emphasis added)); Cabello-Rondón v. Dow Jones & Co., No. 16-CV-3346 (KBF), 2017 WL
3531551, at *6 (S.D.N.Y. Aug. 16, 2017) (“Cabello must do more than perfunctorily state that a
statement is false; rather, Cabello must identify how the defendant’s statement was false.”
(quotation marks and citation omitted)), aff’d, 720 F. App’x 87 (2d Cir. 2018); Boley v. Atl.
Monthly Grp., 950 F. Supp. 2d 249, 263 (D.D.C. 2013) (“Although his complaint makes blanket
denials of Goldberg’s statements . . . Boley does not . . . explain why Goldberg’s characterization
of him as a warlord was false.” (emphasis added)).
5
References in this Brief to the First Amendment include the protection provided under its
free speech clause, its freedom of the press provision, and the independent state free speech and
free press rights afforded under Art. I, § 7 of the Iowa Constitution.
7
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 Five salient points are described below.
First, the article in question must be read as a whole, and any allegedly defamatory
statements must be considered in their context. See Lundell Mfg. Co. v. Am. Broad. Cos., 98
F.3d 351, 359 (8th Cir. 1996) (applying Iowa law). And any allegedly defamatory statements
must be judged objectively from the perspective of an objective reasonable reader; a defamation
plaintiff may not maintain a claim premised on her own subjective interpretation of the article.
Yates v. Iowa W. Racing Ass’n, 721 N.W.2d 762, 771 (Iowa 2006).
Second, the question of whether the statement is capable of a defamatory meaning is a
question of law for the Court to decide. Id. at 722. “In carrying out this task, a court should
not . . . ‘indulge far-fetched interpretations of the challenged publication.’” Mechdyne Corp. v.
Garwood, 707 F. Supp. 2d 864, 875 (S.D. Iowa 2009) (quoting Yates, 721 N.W.2d at 771-72).
Third, the requirement that the allegedly defamatory statement be “of and concerning”
the plaintiff is constitutionally required. See, e.g., N.Y. Times Co. v. Sullivan, 376 U.S. 254, 287
(1964); Brummett v. Taylor, 569 F.3d 890, 892 (8th Cir. 2009); Bierman, 826 N.W.2d at 464-65;
Taggart v. Drake Univ., 549 N.W.2d 796, 802 (Iowa 1996). The Court can decide this issue as a
matter of law where there is no possibility that a reasonable reader could understand the
statement as referring to the plaintiff. See Reeder v. Carroll, 759 F. Supp. 2d 1064, 1083 (N.D.
Iowa 2010).
Fourth, the plaintiff bears the burden of proving falsity, Johnson v. Nickerson, 542
N.W.2d 506, 511 n.3 (Iowa 1996)—also a constitutional requirement, see Phila. Newspapers,
Inc. v. Hepps, 475 U.S. 767, 775 (1986)—and the truth of a statement defeats a defamation
claim, Hovey v. Iowa State Daily Publ’n Bd., Inc., 372 N.W.2d 253, 256 (Iowa 1985). Plaintiffs’
burden to prove falsity cannot be met by relying on minor inaccuracies; the plaintiff must prove

8
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 the challenged statement is materially false, meaning it must be substantially untrue. See Yates,
721 N.W.2d at 769-70 (“Slight inaccuracies of expression are immaterial provided the
defamatory charge is true in substance.” (citation omitted)). So long as the “gist” or “sting” of
the challenged statement is substantially true, there can be no recovery. See, e.g., Wilson v. IBP,
Inc., 558 N.W.2d 132, 140-41 (Iowa 1996). Where a complaint admits to the truth of the
statement, then this issue may be decided as a matter of law. See Smith v. Maldonado, 72 Cal.
App. 4th 637, 652 (1999), as modified (June 23, 1999). Further, and as explained supra pp. 6-7,
falsity (or lack of substantial truth) cannot be alleged in a conclusory manner; it must be
supported by factual allegations explaining how and why the challenged statement is not
substantially true.
Fifth, the Constitution protects pure opinion, “rhetorical hyperbole,” and any other
statements that are not “sufficiently factual to be susceptible of being proved true or false.”
Milkovich v. Lorain Journal Co., 497 U.S. 1, 20, 21 (1990). Beyond these baseline safeguards
outlined in Milkovich, the common law of Iowa examines various factors to consider whether, in
context, the statements would be understood by the reader as statements of constitutionally
protected opinion. Iowa courts “utilize a four-part test to determine whether a statement is
factual or a protected opinion”: (1) “whether the alleged defamatory statement has a precise core
of meaning for which a consensus of understanding exists or, conversely, whether the statement
is indefinite and ambiguous”; (2) “the degree to which the [alleged defamatory] statements are
objectively capable of proof or disproof”; (3) “the context in which the alleged defamatory
statement occurs”; and (4) “the broader social context into which [the alleged defamatory]
statement fits.” Bandstra v. Covenant Reformed Church, 913 N.W.2d 19, 47 (Iowa 2018)
(alterations in original) (quotation marks and citations omitted).

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 In determining whether the statement is protected opinion, courts also consider whether
the author has disclosed the facts on which the statement is based. See Mills v. State, 924 F.
Supp. 2d 1016, 1034 (S.D. Iowa 2013) (author’s “subjective impression[]” of a situation is not
actionable if it does not imply the speaker possesses additional, undisclosed facts informing that
impression); Yates, 721 N.W.2d at 771 (“[S]tatements of opinion can be actionable if they imply
a provable false fact, or rely upon stated facts that are provably false.” (citation omitted)).
Whether a statement is one of opinion is a question of law for the Court to decide. See Craig v.
City of Cedar Rapids, Iowa, 826 N.W.2d 516 (Iowa Ct. App. 2012).
B. Plaintiffs Have Failed to Plead Facts to Support a Claim for Defamation.
Plaintiffs takes issue with 16 statements in the Article. Those statements are set forth in
paragraph 14 of the Complaint, in bullet points that span three pages. But aside from calling the
entire Article “a legion of lies” and characterizing all of the quoted statements as “false and
defamatory,” the Complaint does not include any facts to support that conclusory claim. Indeed,
rather than allege facts concerning the truth of the identified statements, the Complaint focuses
on Congressman Devin Nunes, who is not a party to this case. Paragraph 14 itself purports to
provide the “context” that renders the identified statements false:
The click-bait headline falsely states or implies that Devin owns an
interest in NuStar, and that Devin colluded with NuStar, Tony,
Anthony and other members of the Nunes family to hide a
“Politically Explosive Secret”. In truth, Devin does not own an
interest in his family’s dairy farm in Iowa, never has, and is not
involved in any way in its operations.
Compl. ¶ 14. But this “context” has nothing to do with the truth of the identified statements or
Plaintiffs themselves—it is the focus of an entirely separate lawsuit filed in this Court.
Proof of substantial falsity is an essential element of Plaintiffs’ claims, and one for which
they carry the burdens of pleading and proof. Bierman, 826 N.W.2d at 448; Hepps, 475 U.S. at

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 775. By including only “blanket denials” of a laundry list of statements without “explaining
why” those statements are false (and substantially so), Plaintiffs have failed to plead “facts
demonstrating falsity” to satisfy their pleading obligations under Twombly and Iqbal. Tannerite
Sports, 864 F.3d at 247; Boley, 950 F. Supp. 2d at 263. Plaintiffs “must do more than
perfunctorily state that [various statements are] false; rather, [they] must identify how the
[D]efendant[s]’ statement[s] w[ere] false.” Cabello-Rondón, 2017 WL 3531551, at *6
(quotation marks and citation omitted). For this reason alone, the Complaint should be dismissed
in its entirety.
C. Plaintiffs Cannot State a Claim for Defamation as a Matter of Law.
While Plaintiffs fail to plead facts supporting their conclusory claim of falsity, it is
apparent on the face of the challenged statements and the other allegations of the Complaint
itself that the challenged statements are not actionable as a matter of law, warranting dismissal
with prejudice of the entire Complaint. Each statement is discussed below.
1.

Statements to the effect that Anthony Jr. and Anthony III concealed, kept secret,
and/or conspired to keep secret the fact that the family farm moved to Iowa.

Plaintiffs allege that the following statements are defamatory:


“[W]hat is strange is that the family has apparently tried to conceal the move from
the public—for more than a decade,” Compl. ¶ 14, bullet point 2;



“Why would the Nuneses, Steve King, and an obscure dairy publication all
conspire to hide the fact that the congressman’s family sold its farm and moved to
Iowa?,” id. ¶ 14, bullet point 3; and



Devin Nunes “and his parents seemed to have concealed basic facts about the
family’s move to Iowa. It was suspicious,” id. ¶ 14, bullet point 11.

None of these statements are actionable. First, insofar as they concern Congressman
Nunes or Congressman King, they are not “of and concerning” Plaintiffs. Moreover, the fact that
Anthony Jr. and Anthony III moved the family’s farming operations to Iowa is (i) true, and (ii)

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 not defamatory, as the Article itself recognizes in noting that there is nothing strange about that.
See Sitwala Decl., Exs. A, B (“There’s nothing particularly strange about a congressman’s
family moving.”).
Second, statements that Anthony Jr. or Anthony III “concealed” or kept “secret” the fact
of the farm’s move are not defamatory. Because there is nothing illegal, shameful, or wrong
about the fact that Anthony Jr.’s and Anthony III’s relatives moved the family farm to Iowa, as a
matter of law, it is not defamatory to state that they chose to keep that fact a secret. See Wyo.
Corp. Servs. v. CNBC, LLC, 32 F. Supp. 3d 1177, 1187 (D. Wyo. 2014) (because “there is
nothing illegal or shameful about hiding a person’s ownership in a company,” it was therefore
not defamatory for defendant to state or imply that the plaintiff’s “purpose” in creating a
corporation was “to conceal ownership”). For the same reason, it is not defamatory to state that
Anthony Jr. or Anthony III “conspired” to keep that fact “secret,” an obvious rhetorical
hyperbole in any event. See Greenbelt Coop. Publ’g Ass’n v. Bresler, 398 U.S. 6, 14 (1970) (use
of word “blackmail” to describe actions of public official not actionable “as a matter of law”);
Horsley v. Feldt, 304 F.3d 1125, 1133 (11th Cir. 2002) (allegation in heated debate that the
plaintiff had “conspired with others” to commit criminal acts nonactionable hyperbole; “a
reasonable listener would not have taken the statement as a literal assertion that [the plaintiff]
had actually conspired in the technical legal sense”); Lauderback v. Am. Broad. Cos., 741 F.2d
193, 197 (8th Cir. 1984) (applying Iowa law to hold that an allegation that the plaintiff “was
dealing unscrupulously with senior citizens, is more analogous to a broad, unfocused, wholly
subjective comment than it is to specific accusations of felonious conduct”) (quotation marks and
citation omitted).
Third, these statements are clearly nonactionable opinion. To start, they are obvious

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 hyperbole, as noted above. Further, the statements that Anthony Jr. or Anthony III kept the
farm’s move a “secret,” or that they “concealed” it, are not readily capable of being proven true
or false, and those words do not have an easily defined meaning (consider: to whom, to how
many people, and in what contexts would Anthony Jr. or Anthony III need to disclose the fact of
the farm’s move before it could be said that they were no longer keeping that fact a “secret” or
“concealing” it?). See Wyo. Corp. Servs., 32 F. Supp. 3d at 1187 (statement that purpose of
creating legal entity was to “conceal ownership” was “opinion”; “it cannot be proven true or
false,” and “[t]he statement does not imply ‘the allegation of undisclosed defamatory facts’”
(citation omitted)).
Moreover, the Article’s tone and setting as a work of literary journalism written in the
author’s first-person perspective establish that the challenged statements constitute nonactionable
opinion. Sitwala Decl., Exs. A, B. The tone of the Article, which must be taken as a whole,
Lundell Mfg. Co., 98 F.3d at 359, is filled with adjectives and introspective questions intended to
reveal Lizza’s mental impressions as he conducted reporting for the Article. A cartoon-style
illustration appears at the top of the Article, Sitwala Decl., Exs. A, B., which the hard copy
edition previews as being not a traditional news report but rather “A Very Weird Political
Thriller,” id., Ex. B. These elements align with the author’s literary voice. Together, these cues
signal to readers that words like “secret,” “conceal,” or “conspire” are, in the context of the
Article, not offered as objective facts but rather the opinion of Lizza as he investigates the piece.
See Cochran v. NYP Holdings, Inc., 58 F. Supp. 2d 1113, 1121 (C.D. Cal. 1998), aff’d, 210 F.3d
1036 (9th Cir. 2000) (statements were opinion considering “the general tenor of the entire work,”
including dramatic lead paragraph, and sarcasm and figurative language throughout).
Further, the Article discloses the constituent facts that led to the author’s opinion that

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 Anthony Jr. and Anthony III kept the move a “secret,” and that they “conspired” with
Congressman Nunes and Congressman King to do so. The author states that, “[a]s far as I could
tell, until late August, neither Nunes nor the local California press that covers him had ever
publicly mentioned that his family dairy is no longer in Tulare.” Sitwala Decl., Exs. A, B. In
announcing that Congressman Nunes would be visiting his district, Congressman King’s office
issued a press release stating that “Congressman Nunes’[s] family has operated a dairy farm in
Tulare County, California for three generations”, but “[t]here was no mention that the Nunes
family actually lived up the road in Sibley, where they operated a dairy.” Id. The Article even
reports on efforts to keep Devin Nunes’s name out of a regional dairy industry publication’s
news article on the Nunes family farm in Iowa. Id. In sum, “the factual bases” for the opinion
“were revealed” in the Article, and thus readers were free to accept or reject the author’s opinion
based on their own independent evaluation of the disclosed facts. Lauderback, 741 F.2d at 198;
see also Franklin v. Dynamic Details, Inc., 116 Cal. App. 4th 375, 387 (2004).
2.

“Devin; his brother, Anthony III; and his parents, Anthony Jr. and Toni Dian,
sold their California farmland in 2006. Anthony Jr. and Toni Dian, who has also
been the treasurer of every one of Devin’s campaigns since 2001, used their cash
from the sale to buy a dairy eighteen hundred miles away in Sibley, a small town
in northwest Iowa where they—as well as Anthony III, Devin’s only sibling, and
his wife, Lori—have lived since 2007.” Compl. ¶ 14, bullet point 2.6

It’s not clear that Plaintiffs are alleging that these facts are false; they would seem to be
demonstrably true. But even if the facts were false, it is not defamatory to report that members
of Congressman Nunes’s family moved the family farm to Iowa.

6

This bullet point in Plaintiffs’ Complaint adds the following at the end of this quotation:
“…[W]hat is strange is that the family has apparently tried to conceal the move from the
public—for more than a decade.” In the Article, these words appear in the following paragraph.
They are addressed supra Point I.B.1.
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 3.

“As he walked to his truck, [Anthony Jr.] looked back and warned me: ‘If I see
you again, I’m gonna get upset.’ Apparently Sibley’s First Amendment training
hadn’t filtered down to all its residents.” Compl. ¶ 14, bullet point 4.

As an initial matter, it is not clear that Plaintiffs are alleging that these facts are
inaccurate. The Complaint alleges that residents of Sibley were concerned about Lizza’s
reporting on the Nunes family farm, and had reported their concerns to members of
Congressman Nunes’s family. Compl. ¶ 19. Those allegations seem to be proffered as an
explanation for why Anthony Jr. would have told Lizza that he’d “get upset” if he saw him
again.
In any event, it is not defamatory to report that Anthony Jr. told Lizza that he’d “get
upset” if he saw him again; the fact that he said this to Lizza does not impugn his reputation in
any way. See Mallory v. S & S Publishers, 168 F. Supp. 3d 760, 770, 771 (E.D. Pa. 2016)
(statement that plaintiff “had come up to the office and caused a great scene” not defamatory;
“there is nothing defamatory about [the plaintiff] getting angry or emotional, . . . whatever the
cause”) (citation omitted). Moreover, it is substantially true: The Complaint does not dispute
that Anthony Jr. told Lizza that he was “taking [his] license plate down and reporting [Lizza] to
the sheriff,” and that he didn’t “want to be bothered.” Sitwala Decl., Ex. A, B. Given this
undisputed reporting, the fact that Anthony Jr. added that he would “get upset” if he saw Lizza
again would not change the effect of the Article on the minds of readers.
4.

“Other dairy farmers in the area helped me understand why the Nunes family
might be so secretive about the farm: Midwestern diaries [sic] tend to run on
undocumented labor.” Compl. ¶ 14, bullet point 5.

This statement about what “Midwestern d[ai]ries” “tend” to do is not “of and concerning”
NuStar—just one of thousands of dairy farms in the Midwest—or its owners and operators,
Anthony Jr. and Anthony III. See Schuster v. U.S. News & World Report, Inc., 602 F.2d 850,
854, 854-55 (8th Cir. 1979) (where there were “hundreds of persons in the United States
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 involved in the sale, distribution, and advocacy of Laetrile,” “[t]he alleged libel of the large
group of Laetrile distributors and advocates in these two national periodicals could not, as a
matter of law, reasonably be understood as being of and concerning Hanson or Schuster”);
Reeder, 759 F. Supp. 2d at 1082 (statement in email referring to “[t]his group” of physicians at a
hospital was not “of and concerning” a founding member and owner of the group). To the
extent, if any, that Plaintiffs allege these two sentences together imply that NuStar itself “run[s]
on undocumented labor,” that is addressed infra Point I.B.10.
5.

“In the heart of Steve King’s district … the economy is powered by workers that
King and Trump have threatened to deport. I checked Anthony Nunes Jr.’s
campaign donor history. The only federal candidate he has ever donated to,
besides his son, is King ($250 in 2012). He also gives to the local Republican
party of Osceola County, which, records show, transfers money into King’s
congressional campaigns.” Compl. ¶ 14, bullet point 6.

The first sentence is not “of and concerning” Plaintiffs. It is about the local economy
generally. Again, such general statements are not “of and concerning” Plaintiffs. See Schuster,
602 F.2d at 854, 855; Reeder, 759 F. Supp. 2d at 1082. Moreover, the statement is protected
opinion; whether a region’s economy is “powered by” a certain subset of the population is a
subjective statement not capable of being objectively proven true or false. See Lauderback, 741
F.2d at 197 (“dealing unscrupulously with senior citizens” protected opinion); Mills, 924 F.
Supp. 2d at 1033 (statements that there was a “culture of a lack of transparency” in legal office
and that plaintiff “micromanaged” actions which constituted a “serious conflict of interest” were
statements of opinion; “[e]ven if the Court were to permit every single individual involved in any
way with the [the incident in question] to testify at a trial in this case, it would be entirely
reasonable for some jurors to believe, and for some to disbelieve,” the challenged statement);
Yates, 721 N.W.2d at 773 (whether racing dog kennel produced “substandard and poor
performers” did “not have a precise and verifiable meaning” and was therefore nonactionable

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 opinion).
As for the rest of this statement: Anthony Jr.’s campaign contributions are a matter of
public record, which the Court can consider on this motion. See Lee v. Lincoln Nat’l Life Ins.
Co., No. 18-CV-2063-CJW, 2018 WL 5660553, at *2 (N.D. Iowa Oct. 31, 2018) (Williams, J.)
(“In ruling on a Rule 12(b)(6) motion to dismiss, the Court may consider . . . ‘matters of public
record’” (quoting Miller v. Redwood Toxicology Lab., Inc., 688 F.3d 928, 931 n.3 (8th Cir.
2012)). In considering these matters, it is true that Anthony Jr. made the campaign contributions,
as reported. See Sitwala Decl., Ex. C (FEC report regarding Anthony Jr.’s campaign
contributions) and Ex. D (Iowa Ethics and Campaign Disclosure Board report regarding Anthony
Jr.’s campaign contributions). In any event, it is not defamatory to (accurately) report that
Anthony Jr. contributed to Steve King’s congressional campaigns and to the local Republican
party.
6.

“The absurdity of this situation—funding and voting for politicians whose core
promise is to implement immigration policies that would destroy their
livelihoods—has led some of the Republican-supporting dairymen to rethink their
political priorities.” Compl. ¶ 14, bullet point 7.

This statement is not “of and concerning” any of the Plaintiffs. Neither NuStar nor
Anthony Jr. nor Anthony III are referenced in this statement, which concerns “Republicansupporting dairymen” generally. Indeed, the paragraph goes on to report on Lizza’s interview
with another “area dairy farmer” who no longer supports Congressman King. Moreover, it is
clearly protected opinion; here, Lizza is opining on the apparent hypocrisy of “Republicansupporting dairymen” who “fund[] and vot[e] for politicians whose core promise is to implement
immigration policies that would destroy their livelihoods,” arguing that doing so is “absurd.”
And to the extent this statement is reporting that the unspecified “dairymen” may “rethink their
political priorities,” that (i) is not defamatory, and (ii) not objectively provable true or false, and

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 thus another statement of opinion. See Mills, 924 F. Supp. 2d at 1033; Yates, 721 N.W.2d at 773.
7.

“‘They are immigrants and Devin is a strong supporter of Mr. Trump, and Mr.
Trump wants to shut down all of the immigration, and here is his family benefiting
from immigrant labor’, documented or not.” Compl. ¶ 14, bullet point 8.

This statement is a quote from a reporter for a dairy industry publication whom Lizza
interviewed for the Article. In this quote, the reporter explains to Lizza why, in his view, Lizza’s
“encounter with Anthony Jr.,” described seven paragraphs above, was “hostil[e].” Sitwala Decl.,
Exs. A, B. It is not defamatory for the reporter to state that Anthony Jr. and Anthony III are
immigrants. Whether Congressman Nunes “is a strong supporter of Mr. Trump,” or whether
“Mr. Trump wants to shut down all of the immigration,” is neither “of and concerning” Plaintiffs
nor susceptible of being objectively proven true or false. And lastly, stating that Anthony Jr. and
Anthony III are “benefiting from immigrant labor, documented or not” (emphasis added), is not
defamatory; this statement does not accuse Anthony Jr. or Anthony III of hiring anybody and it
is not defamatory to report that they hire immigrants.
8.

“I had a particularly sensitive interview that afternoon with a source who I knew
would be taking a risk by talking to me about immigration and labor at NuStar.
When I arrived, we talked for a few minutes before the source’s cell phone
suddenly rang. The conversation seemed strained. ‘Sí, aquí está,’ the source said.
I learned that on the other end of the phone was a man named Flavio, who
worked at NuStar. Somehow Flavio knew exactly where I was and whom I was
talking to. He warned my source to end the conversation. Not only was I being
followed, but I was also being watched, and my sources were being contacted by
NuStar.” Compl. ¶ 14, bullet point 9.

Here, Lizza reports that NuStar, aware of Lizza’s reporting efforts, instructed an
employee or associate to stop speaking with Lizza. But the Complaint does not proffer any
factual support for the conclusory allegation that this statement is false; that is, the Complaint
fails to explain how or why the statement is substantially untrue. See Tannerite Sports, 864 F.3d
at 247. Moreover, it is not defamatory. That NuStar was discouraging its employees and
associates against speaking with members of the press would not “tend[] to injure the reputation
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 of [NuStar] or to expose [NuStar] to public hatred, contempt, or ridicule or to injure [NuStar] in
the maintenance of [its] business.” Johnson, 542 N.W.2d at 510.
9.

“I left and drove to the local grocery store, where I parked in the open, hoping to
draw out whoever was tailing me. I suddenly noticed a man in jeans, a work shirt,
and a baseball cap pulled down low. He was talking on his cell phone and
walking suspiciously. Was he watching me? I held up a camera to take pictures
and he darted away. I followed. His car was parked haphazardly on the side of
the road half a block away. He got in and took off while I followed. It was a dark
Chevrolet Colorado pickup truck—with California license plates … The guy in
the pickup truck with California plates was, of course, … Anthony Jr.” Compl.
¶ 14, bullet point 10.

As an initial matter, this “statement” pastes together a portion of the Article’s 47th
paragraph with one sentence from its 63rd paragraph. It omits—and does not dispute—the
accuracy of a number of relevant facts in between, including that (i) the California plates were
registered in Tulare, California, the Nunes’s hometown, (ii) Lizza had taken video footage of the
vehicles that had been following him, including the Chevrolet Colorado pickup truck, (iii) after
cross-checking that footage against photographs found on Facebook, he confirmed that Anthony
Jr. was the driver of the Chevrolet Colorado. Sitwala Decl., Exs. A, B. Because Plaintiffs fail to
challenge these statements, the statement that Anthony Jr. was the “guy in the pickup truck with
California plates” that was following Lizza is necessarily true. See N.U. by Amar v. E. Islip
Union Free Sch. Dist., No. 16-CV-4540 (SJF) (ARL), 2017 WL 10456860, at *19 (E.D.N.Y.
Sept. 15, 2017) (dismissing defamation claim on grounds of truth where plaintiff, challenging
that he “confessed to being part of ISIS, that he knew how to make bombs and was going to blow
up the school,” did not dispute that he “told several students” and made a confession “that he was
a terrorist and that he intended to blow up the Middle School’s fence”); Int’l Ass’n of United
Mine Workers Union v. United Mine Workers of Am., No. 2:04CV00901, 2006 WL 1183245, at
*19 (D. Utah May 1, 2006) (dismissing defamation claim on grounds of truth where plaintiff
challenged statement that workers were “exploited” without challenging underlying facts
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 supporting that statement: “Defamation cannot rest upon facts that are true. This alleged
defamation is a conclusion that the author bases upon facts described in the article. The
Plaintiffs do not dispute the truth of the facts upon which the author's conclusion is based.”).
Moreover, even as pasted together, this “statement” merely alleges that Anthony Jr. may
have been monitoring Lizza as he conducted his reporting. That is not defamatory, and again,
the Complaint alleges various facts that supposedly would have given rise to Anthony Jr.’s
supposed suspicions, specifically that the Nunes family had been alerted to concerns of Sibley
residents regarding Lizza and his reporting. Compl. ¶ 19. And again, the Complaint fails to put
forth factual allegations sufficient to make Plaintiffs’ allegation of falsity plausible.
10.

“There was no doubt about why I was being followed. According to two sources
with firsthand knowledge, NuStar did indeed rely, at least in part, on
undocumented labor. One source, who was deeply connected in the local
Hispanic community, had personally sent undocumented workers to Anthony
Nunes Jr.’s farm for jobs . . . asserting that the farm was aware of their status.”
Compl. ¶ 14, bullet point 12.

As an initial matter, this statement is not “of and concerning” Anthony Jr. or Anthony III.
It only concerns NuStar.7 Moreover, while it is entirely unclear what, if any, aspects of the
statement Plaintiffs believe is false or why,8 it is evident that there is nothing materially false
about the statement in light of what Plaintiffs explicitly declined to take issue with in the full

7

See Gilman v. Spitzer, 538 F. App’x 45, 47 (2d Cir. 2013) (“[A] broad reference to an
organization cannot give rise to a defamation claim by one of its constituent members.”); AIDS
Counseling & Testing Ctrs. v. Grp. W Television, Inc., 903 F.2d 1000, 1005 (4th Cir. 1990)
(dismissing claims brought by company’s investors where allegedly defamatory statement
concerned company, not individual investors); Cohn v. Nat’l Broad. Co., 67 A.D.2d 140, 145
(N.Y. App. Div., 1st Dep’t 1979) (dismissing lawsuit by former aides and advisors to Senator
Joseph McCarthy based on documentary about McCarthy’s career), aff’d, 408 N.E.2d 672 (N.Y.
1980); McBride v. Crowell-Collier Publ’g Co., 196 F.2d 187, 189 (5th Cir. 1952) (“If what is
said in the article about the corporation, in which he is said to own stock, does, or could,
constitute defamation of the corporation for which a libel action would lie, the action would be
that of the corporation, not that of the owners of its stock.”).
8
In particular, it is unclear whether Plaintiffs are claiming they have never hired
undocumented workers, that they do not currently do so, that they have not knowingly done so,
or something else entirely.
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 statement. In particular, the quote in the Complaint omits the following statement, which NuStar
does not challenge as being false: “‘I’ve been [to NuStar] and bring illegal people,’ the source
said.” Sitwala Decl., Exs. A, B. In light of this unchallenged fact, there can be nothing
substantially false about the challenged statement as a matter of law. See also id. (another
unchallenged statement in the following paragraph: “A second source, who claimed to be an
undocumented immigrant, also claimed to have worked at NuStar for several years, only recently
leaving the dairy, which this source estimated employed about fifteen people.”); N.U. by Amar,
2017 WL 10456860, at *19; Int’l Ass’n of United Mine Workers Union, 2006 WL 1183245, at
*19.
11.

“I laid out the facts I had uncovered in Sibley, including the intimidation of
sources … , and asked him for advice. ‘I’d tell that story,’ he said. He paused and
added, ‘We’re a sanctuary church, if you need a place to stay. You’re safe here!”
Compl. ¶ 14, bullet point 13.

This statement concerns Lizza’s conversation with a priest about his reporting; it is not
“of and concerning” Plaintiffs. To the extent Plaintiffs are taking issue with the reference to
NuStar’s “intimidation of sources,” this refers to statements addressed supra pp. Point I.B.8—
and, as stated above, it is not defamatory to report that NuStar warned its employees or
associates against speaking with members of the press.
12.

“I learned that Anthony Jr. was seemingly starting to panic. The next day, the
2009 Dairy Star article about NuStar, the one that made me think the Nuneses
were hiding something and that had led me to Sibley in the first place, was
removed from the Dairy Star’s website.” Compl. ¶ 14, bullet point 14.

The actions of the Dairy Star are not “of and concerning” Anthony Jr. or Anthony III.
Whether Anthony Jr. had “start[ed] to panic” is a subjective statement of opinion, not capable of
being objectively proven true or false; the fact that Anthony Jr. may disagree with the
characterization that he “start[ed] to panic” does not make it false, and indeed “the disagreement
highlights the fact that these statements are expressions of opinion that are not subject to an
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 action for defamation.” Mills, 924 F. Supp. 2d at 1032. Notably, the Article discloses—and the
Complaint does not challenge the accuracy of—the facts that support that opinion, stated in the
rest of the paragraph: “Anthony Jr., I was told, had called the newspaper and demanded that the
editors take the nine-year-old story down. They relented. . . . According to someone who talked
to him that day, Anthony Jr. allegedly said that he was hiring a lawyer and that he was convinced
that his dairy would soon be raided by ICE.” Sitwala Decl, Exs. A, B; Yates, 721 N.W.2d at 773
(nonactionable opinion where defendant “disclos[ed] of the facts underlying his statement of
‘substandard and poor performers,’ facts that [the plaintiff] conceded were true”).
13.

“Is it possible the Nuneses have nothing to be seriously concerned about? Of
course, but I never got the chance to ask because Anthony Jr. [and Representative
Nunes] did not respond to numerous requests for interviews.” Compl. ¶ 14,
bullet point 15.

To the extent this statement concerns persons other than Anthony Jr. or Anthony III, it is
not “of and concerning” them. Also, it is not an actionable statement of fact; it is a
nonactionable question. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1338 (D.C. Cir.
2015) (Kavanaugh, J.) (“[I]t is generally settled as a matter of defamation law . . . that a question,
‘however embarrassing or unpleasant to its subject, is not accusation.’” (quoting Chapin v.
Knight-Ridder, Inc., 993 F.2d 1087, 1094 (4th Cir. 1993))). As it relates to Anthony Jr., it is
neither false nor defamatory to report that he did not respond to a request to be interviewed.
Indeed, the Complaint does not dispute the accuracy of the reporting concerning Lizza’s
interaction with Anthony Jr. at his house.
14.

“The relationship between the Iowa dairy farmers and their undocumented
employees is indeed fraught.” Compl. ¶ 14, bullet point 16.

This statement concerning “Iowa dairy farmers” generally is not “of and concerning”
Plaintiffs. See Schuster, 602 F.2d at 854, 855; Reeder, 759 F. Supp. 2d at 1082. And whether
the relationship between such farmers “and their undocumented employees is indeed fraught” is
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 a subjective statement of opinion that is not capable of being objectively proven true or false, and
in all cases is not injurious to the reputation of any Plaintiff.
15.

“So why did [Devin Nunes’] parents and brother cover their tracks after quietly
moving the farm to Iowa? Are they hiding something politically explosive? On the
ground in Iowa, Esquire searched for the truth—and discovered a lot of paranoia
and hypocrisy.” Compl. ¶ 14, bullet point 1.

These are two more non-actionable questions. See Abbas, 783 F.3d 1328. The statement
regarding “paranoia and hypocrisy” is (i) not of and concerning Plaintiffs and (ii) protected
opinion.
II.

Should the Complaint Not Be Dismissed, the Court Should Order Plaintiff to
Replead with a More Definite Statement.
The format of the Complaint does little to inform Defendants as to what, exactly,
Plaintiffs are challenging in the Article. In one paragraph, the Complaint lists 16 statements
from the Article—some of which are four or five sentences in length—that are allegedly “false
and defamatory.” Compl. ¶ 14. However, the Complaint does not explain why or how any of
these challenged statements are false or defamatory. That is, the Complaint provides no
explanation as to (i) what aspect(s) of each statement is supposedly false and defamatory, and (ii)
what Plaintiffs allege the truth of the matter to be. While this failing warrants dismissal, see
supra Point I.A, should the Court decline to dismiss the Complaint, it should, at a minimum,
require Plaintiffs to provide these explanations in order to allow Defendants to meaningfully
respond.
Rule 12(e) allows a party to move for a more definite statement “of a pleading to which a
responsive pleading is allowed but which is so vague or ambiguous that the party cannot
reasonably prepare a response.” Fed. R. Civ. P. 12(e). The motion must “point out the defects
complained of and the details desired.” Id. “In granting a Rule 12(e) motion, a court ‘may insist
that the plaintiff put forward specific, nonconclusory factual allegations that establish the claims
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 alleged in order to survive a prediscovery motion for dismissal or summary judgment.” CRST
Expedited, Inc. v. Knight Transp., Inc., No. 17-CV-24 CJW, 2018 WL 1369920, at *3 (N.D.
Iowa Mar. 15, 2018) (quoting Crawford-El v. Britton, 523 U.S. 574, 598 (1998)).
Courts frequently grant motions for a more definite statement where, as here, a plaintiff
proffers a vague defamation claim.9 A motion for a more definite statement is particularly useful
where, as here, a more definite pleading will help the parties and the Court understand whether
there are dispositive threshold questions to which the challenged statements may be susceptible.
See Hawkins v. Kiely, 250 F.R.D. 73, 76 (D. Me. 2008) (granting motion in defamation case;
“[w]hat is more, as the defendants point out, such details as they have been able to glean from
the Complaint and the Response provide reason to believe that there are substantial dispositive
threshold questions in this case”).
While none of the statements are actionable in any way, as explained above, to the extent
that Plaintiffs can identify any plausible way that any of the statements could be actionable, they
should have to do so in a new pleading that Defendants have the opportunity to challenge. More
details will help the parties and the Court understand whether the statements at issue are
statements of fact versus opinion; whether they are substantially true; whether they are
defamatory at all; and whether Plaintiffs are attempting to assert a claim of defamation-by-

9

See Black v. Am. Family Mut. Ins. Co., No. C18-3021-LTS, 2018 WL 1865872, at *5
(N.D. Iowa Apr. 18, 2018) (granting motion for more definite statement with regard to unspecific
defamation claim) (citing Freeman v. Bechtel Constr. Co., 87 F.3d 1029, 1031 (8th Cir. 1996);
Wright v. Boys & Girls Clubs of the Lowcountry, No. CIV.A. 9:12-3243-SB, 2013 WL 3229719,
at *3 (D.S.C. June 25, 2013) (granting motion; defamation “requires the inclusion of more
information as to content, timing, audience, and method than is present here, before a defendant
can adequately respond in keeping with its own obligations under the Rules.”); Paolini v.
Albertson’s, Inc., No. CV-02-0041-S-BLW, 2003 WL 27386670, at *2 (D. Idaho Jan. 24, 2003)
(granting motion for more definite statement in defamation case; plaintiff’s “defamation
allegation fails to provide the context of the statements, names of those who made the
statements, and to whom the statements were communicated,” and thus are “excessively vague,
precluding [the defendant] from asserting a good faith response”).
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 implication, which is subject to more searching constitutional scrutiny.
Conclusion
For the reasons stated above and their related motion papers, Defendants respectfully
request that the Court dismiss the Complaint pursuant to Rule 12(b)(6), with prejudice; or, in the
alternative, order that Plaintiffs replead with a more definite statement.
March 23, 2020

Ryan Lizza and Hearst Magazine Media, Inc.,
Defendants
By: /s/ Jonathan R. Donnellan
Jonathan R. Donnellan, Lead Counsel*
jdonnellan@hearst.com
Ravi V. Sitwala*
rsitwala@hearst.com
Nathaniel S. Boyer*
nathaniel.boyer@hearst.com
THE HEARST CORPORATION
Office of General Counsel
300 West 57th Street
New York, New York 10019
Telephone: (212) 841-7000
Facsimile: (212) 554-7000
*Admitted Pro Hac Vice
Michael A. Giudicessi
michael.giudicessi@faegrebd.com
Nicholas A. Klinefeldt
nick.klinefeldt@faegrebd.com
Susan P. Elgin
susan.elgin@faegrebd.com
FAEGRE DRINKER BIDDLE & REATH LLP
801 Grand Avenue, 33rd Floor
Des Moines, Iowa 50309-8003
Telephone: (515) 248-9000
Facsimile: (515) 248-9010
Attorneys for Defendants

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 Certificate of Service
The undersigned certifies that a true copy of Defendants’ Brief in Support of Their
Motion to Dismiss Pursuant to Fed. R. Civ. P. 12(b)(6), and for a More Definite Statement
Pursuant to Fed. R. Civ. P. 12(e) (Telephone Oral Argument Requested) was served upon
the following parties through the court’s CM/ECF electronic filing system on March 23, 2020.
Copy to:

/s/ Jonathan R. Donnellan
Jonathan R. Donnellan

Joseph M. Feller
jfeller@kkfellerlaw.com
Steven S. Biss
stevenbiss@earthlink.net
Attorneys for Plaintiff

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