Trump’s Libel Lawsuit Against N.Y. Times and Penguin Random House Can Proceed in Florida, Rather Than N.Y.

From Judge Steven Merryday (M.D. Fla.) today in Trump v. N.Y. Times Co. (for the Complaint in the underlying case, which involves various statements about Trump’s early life and business career, see here):

A public figure, perhaps the world’s most prominent public figure, whose actions and remarks routinely generate immediate global news coverage, sues a newspaper, perhaps the world’s most prominent English-language newspaper, along with the world’s largest trade book publisher and three authors. The plaintiff initiates in the Middle District of Florida an action for defamation arising from two articles and a book, researched, written, and edited in New York but published nationwide and abroad, including in the Middle District of Florida. The plaintiff, who resides in the Southern District of Florida but maintains a business presence in the Middle District of Florida, alleges that publication of the allegedly defamatory statements in the Middle District of Florida caused reputational and economic injury in the Middle District of Florida.

The court concluded that the case had been permissibly filed in the Middle District of Florida:

Under 28 U.S.C. § 1391(a)(2), venue is proper in any “judicial district in which a substantial part of the events or omissions giving rise to the claim occurred.” Section 1391(a)(2) “contemplates some cases in which venue will be proper in two or more districts,” and “a plaintiff does not have to select the venue with the most substantial nexus to the dispute, as long as [the plaintiff] chooses a venue where a substantial part of the events giving rise to the claim occurred.” …

The plaintiff claims that venue in the Middle District of Florida is proper and bases the claim on publication in the Middle District of Florida of allegedly defamatory statements {defendants distributed approximately 3,000 print copies of the allegedly defamatory articles in this district [and] … approximately 2,200 copies of the allegedly defamatory book “in or around” this district, [and] approximately 45,000 “unique online readers” in this district viewed the allegedly defamatory articles}, consequent reputational and business injuries in the Middle District of Florida, and a business presence in the Middle District of Florida. {The plaintiff is the cofounder of Trump Media & Technology Group, Corp., a media and technology company headquartered in Sarasota, Florida, and the plaintiff “was TMTG’s majority shareholder at the time his claims accrued.”} {To establish reputational and economic injury in this district the plaintiff alleges, “Defendants used their false and defamatory publications to disparage President Trump and impugn his reputation  Defendants’ false publications about President Trump also led directly to a precipitous decline in the stock price of TMTG, significantly injuring the President given his ownership stake.”}

The defendants claim that venue in the Middle District of Florida is improper and base the claim primarily on the location of the “relevant journalistic activities” (the defendants’ summary phrase), including researching, interviewing, writing, editing, and the like, almost all of which occurred in New York and the balance of which occurred in New Jersey. The defendants’ claim is based on events that occurred before publication, that is, before the claim for defamation accrued. These “relevant journalistic activities” were not—either individually or cumulatively—themselves actionable as defamation (or for any other reason that appears) in Florida or New York or elsewhere.

Under Judge Tjoflat’s governing logic in Jenkins Brick [the Eleventh Circuit precedent -EV], these “relevant journalistic activities” are not the events most directly, that is, most immediately and causally, connected to an actionable defamation (or, more exactly, a claim of defamation). Publication plus reputational and business damage are the events most directly connected to the alleged claim and, therefore, most determinative of a proper venue.

The Middle District of Florida is the largest district in the third largest state (behind only California and Texas and ahead of New York) in the United States. The argument that publication in the Middle District of Florida plus reputational and business injury in the Middle District of Florida—the events most directly connected to the plaintiff ‘s claim for defamation by the defendants, including the largest newspaper (that is not a specialized financial newspaper) in the United States and the largest seller of trade books—are not a “substantial portion” of the events directly resulting in the plaintiff ‘s claim for defamation is, to say the least, an untenable argument under Jenkins Brick and under Section 1391(a)(2), which since the 1990 amendment contemplates instances of proper venue in two or more districts. The Southern District of New York is a proper venue, the Southern District of Florida is a proper venue, and the Middle District of Florida is a proper venue. The plaintiff chose the Middle District of Florida, a choice to which the law tends to defer, absent an important, manifest, and imbalanced inconvenience to the defendant….

And the court declined to transfer the action to the Southern District of New York:

The defendants argue that under 28 U.S.C. § 1404(a) an order should transfer the action to the Southern District of New York. Under Section 1404(a), “For the convenience of parties and witnesses, in the interest of justice, a district court may transfer any civil action to any other district or division where it might have been brought or to any district or division to which all parties have consented.” The transferee court must have personal jurisdiction and subject matter jurisdiction and must offer a proper venue. The Southern District of New York is an eligible transferee, but “[t]he plaintiff ‘s choice of forum should not be disturbed unless it is clearly outweighed by other considerations.” “Other considerations” include:

(1) the convenience of the witnesses; (2) the location of relevant documents and the relative ease of access to sources of proof; (3) the convenience of the parties; (4) the locus of operative facts; (5) the availability of process to compel the attendance of unwilling witnesses; (6) the relative means of the parties; (7) a forum’s familiarity with the governing law; (8) the weight accorded a plaintiff’s choice of forum; and (9) trial efficiency and the interests of justice, based on the totality of the circumstances.

The defendants argue that the convenience of nonparty witnesses strongly supports transfer. “The party seeking the transfer must support its motion by clearly specifying the key witnesses to be called and particularly stating the significance of their testimony.” The defendants identify as key nonparty witnesses (1) “for the Apprentice Statements … President of NBC Entertainment Jeff Zucker and advertising executive Alan Blum”; (2) “for the Inheritance Statements … Mary Trump (who provided the underlying estate documents), trust and estate lawyer Jim Ledley, accountant Joel Rosenfeld, and Michael Bailkin … counsel for the New York City Mayor’s Office of Lower Manhattan Development”; and (3) “for the Business Statements … Peter Goldmark, who served as the executive director of the New York and New Jersey Port Authority, former Trump Organization executives Barbara Res and Abraham Wallach, and environmental consultant Tim Miller.” According to the defendants, Jeff Zucker, Alan Blum, Mary Trump, Jim Ledley, Joel Rosenfeld, Michael Bailkin, Peter Goldmark, Barbara Res, Abraham Wallach, and Tim Miller are in New York, are beyond the subpoena power of the Middle District of Florida and are likely “key witnesses” if the action proceeds to trial….

The defendants in the present case identify no physical obstacle impeding any nonparty witness’s ability to travel to Florida. And although the defendants clearly identify the nonparty witnesses, the defendants fail to particularly state the significance of each nonparty witness’s individual testimony. The defendants provide insufficient detail to determine, for example, the extent to which of each nonparty witness’s individual testimony is cumulative or otherwise unnecessary. The defendants state that each identified nonparty witness is beyond the subpoena power of the Middle District of Florida, but transfer may be denied “where the movant does not show that the witnesses would be unwilling to testify, and that compulsory process would be necessary.” The defendants fail to show that any nonparty witness is unwilling to testify or that compulsory process might be necessary.

Further, the inconvenience to nonparty witnesses is mitigated if, in an action such as this, the parties’ robust financial means are more than sufficient to pay for witnesses’ travel, lodging, and sustenance, and to present at trial by video recording the testimony of any witness unable or unwilling to attend trial. The convenience of the nonparty witnesses weighs only slightly, if at all, in favor of transfer.

The defendants argue that the convenience of the parties weighs in favor of transfer because the defendants and the defendants’ employees reside in New York, New Jersey, and Washington, D.C. According to the defendants, “[i]f this matter proceeds to trial, their testimony will be required to decide actual malice.” But the significance of convenience to witnesses “is diminished when the witnesses, although in another district, are employees of a party and their presence at trial can be obtained by that party.” …

The defendants argue that the plaintiff ‘s choice of venue carries no weight because “the plaintiff was forum shopping,” because “the selected forum has little to no connection with the parties or the subject matter,” and because the plaintiff initiated the action “in a district other than his home district.” “The plaintiff’s choice of forum is generally a factor that heavily weighs against transfer.”

The plaintiff does not appear to have engaged in unwholesome “forum shopping.” Although the plaintiff selected a forum; every plaintiff in every action necessarily selects a forum. Although the Middle District of Florida is not the plaintiff ‘s home district, the Middle District of Florida is in the plaintiff ‘s home state and is near his home and the plaintiff maintains a business presence here and alleges that reputational harm and economic injury occurred here. Because the Middle District of Florida bears a substantial connection to the parties and to the plaintiff ‘s claim for defamation, the plaintiff’s choice of venue heavily weighs against transfer….

Trump is represented by Alejandro Brito, Ian Corp, and Jalaine Garcia Brito, PLLC; Daniel Zachary Epstein (Epstein & Co. L.L.C.); and Edward Andrew Paltzik (Taylor Dykema PLLC).