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1- 322 F.Supp.3D 445 Rod WHEELER, Plaintiff, V. TWENTY-FIRST

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1- 322 F.Supp.3D 445 Rod WHEELER, Plaintiff, V. TWENTY-FIRST Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018) 322 F.Supp.3d 445 , against Defendant Fox News Network LLC ("Fox News"), its parent company, Defendant Rod WHEELER, Plaintiff, Twenty-First Century Fox, Inc. ("21st Century v. Fox" and, with Fox News, "Fox"), Fox News TWENTY-FIRST CENTURY FOX, Fox investigative journalist Defendant Malia News Network LLC, Malia Zimmerman (with Fox, "the Fox Zimmerman, in her individual and Defendants"), and Fox News contributor professional capacities, and Ed Defendant Ed Butowsky. (See Am. Compl., Butowsky, in his individual and ECF No. 56,) Plaintiff's allegations principally professional capacities, Defendants. arise out of Fox News's coverage of his investigation into the murder of Seth Rich, a 17 Civ. 5807 (GBD) former Democratic National Committee ("DNC") employee who was rumored to have United States District Court, S.D. New leaked sensitive, private emails from DNC York. servers to WikiLeaks.1 (See id. ) Signed August 2, 2018 Defendants move to dismiss Plaintiff's lawsuit in its entirety for failure to state a claim [322 F.Supp.3d 448] pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure.2 (ECF Nos. 74 and 78.) Rod Wheeler, pro se. Butowsky also moves for sanctions against Plaintiff and Plaintiff's former counsel Douglas Holden Wigdor, Jeanne-Marie Bates pursuant to Rule 11. (ECF No. 43). Both Christensen, Kenneth Daniel Walsh, Michael Butowsky and Plaintiff request an award of John Willemin, Wigdor LLP, New York, NY, attorneys' fees and costs in connection with for Plaintiff. the Rule 11 motion. (Mem. in Supp. of Dane Hal Butswinkas, Kevin Taylor Baine, Butowsky's Mot. for Sanctions ("Sanctions Katherine Anne Petti, William Jefferson Mem."), ECF No. 44, at 4; Pl. Mem. in Opp'n Vigen, Williams & Connolly LLP, to Butowsky's Mot. for Sanctions ("Sanctions Washington, DC, David H. Stern, Pro Hac Opp'n"), ECF No. 57, at 1.) Vice, Dechert LLP, Carolin Sahimi, Hughes Defendants' motions to dismiss for failure to Hubbard & Reed LLP, Los Angeles, CA, state a claim are GRANTED. Butowsky's Joseph M. Terry, Pro Hac Vice, Williams & motion for sanctions and Butowsky's and Connolly LLP, Daniel Haym Weiner, Hughes Plaintiff's requests for attorneys' fees and Hubbard & Reed LLP, New York, NY, David costs are DENIED. Butler Harrison, Carolyn Beth Rendell, Jeffrey Alan Shooman, Short Hills, NJ, for I. FACTUAL BACKGROUND Defendants. On July 10, 2016, Seth Rich, a Democratic MEMORANDUM DECISION AND ORDER National Committee ("DNC") staff member, was murdered. (Am. Compl. ¶ 77.) The GEORGE B. DANIELS, United States District Washington D.C. Metropolitan Police Judge Department ("MPDC") believed that the [322 F.Supp.3d 449] murder occurred in the course of a botched robbery. (Id. ) In the weeks after the murder, Plaintiff Rod Wheeler brings this action some individuals theorized that Rich was the asserting claims for defamation per se and, in source of DNC emails leaked to the media the alternative, defamation and libel per quod organization WikiLeaks during the primaries -1- Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018) for the 2016 presidential election, and that his March 14, 2017, the Rich family and Plaintiff murder was related to the leak. (Id. ¶ 78.) entered into a written agreement that Plaintiff However, others believed that Russian would conduct his own independent hackers leaked the emails to WikiLeaks in an investigation "with regards to the official attempt to sway the election in favor of then- police investigation surrounding the death of candidate Donald Trump, and that Rich's Seth Rich." (Id. ¶ 95.) The agreement murder was unrelated to the emails. (Id. ¶¶ expressly stated that Butowsky would pay the 76–78, 85.) costs of the investigation. (Id. ¶ 99.) Thereafter, Plaintiff began interviewing Rich's Butowsky, a Fox News contributor, spoke relatives, co-workers, and friends. (Id. ¶ 102.) with Seymour Hersh, an investigative Plaintiff also reviewed evidence made journalist, who claimed that he had received available to him through the MPDC. (Id. ) information regarding an FBI report about While conducting his own investigation, Rich's murder. (Id. ¶ 86.) Though he had not Plaintiff kept Butowsky and Zimmerman seen the report, Hersh said he had learned informed of the steps he was taking, the from "somebody on people he had spoken to, and what records he had reviewed. (Id. ¶ 105.) [322 F.Supp.3d 450] On April 25, 2017, Plaintiff met with the inside" that the FBI report stated the Detective Joseph Della-Camera of the MPDC, MPDC had obtained a search warrant for who stated that he believed Rich's murder Rich's home and recovered Rich's computer. was the result of a botched robbery. (Id. ¶ (Id. ¶¶ 87–88.) According to Hersh, the 108.) Della-Camera said he had no report indicated that the FBI, at the MPDC's information indicating Rich's murder was request, accessed the contents of Rich's related to the DNC emails and no knowledge computer and found Rich submitted a series of any FBI involvement with the murder of DNC emails to WikiLeaks. (Id. ) investigation. (Id. ) On February 23, 2017, Butowsky contacted On May 10, 2017, Butowsky and Zimmerman Plaintiff, who has his own private informed Plaintiff that they had a source at investigative consulting company, and the FBI who confirmed emails were sent explained that the Rich family wanted to hire between Rich and WikiLeaks. (Id. ¶ 112.) On an investigator to conduct an independent May 11, 2017, Zimmerman sent Plaintiff a investigation of Rich's murder. (Id. ¶¶ 6, 82– draft of an article regarding Rich's murder 83.) On February 28, 2017, Plaintiff met (the "Article"). (Id. ¶ 113.) The draft did not Butowsky and Zimmerman, an investigative contain any quotes from Plaintiff suggesting journalist for Fox News who had been that Rich had sent emails to WikiLeaks or investigating Rich's death for several months, suggesting that the DNC, Democratic Party, to discuss Plaintiff's possible investigation of presidential candidate Hillary Clinton, or Rich's murder. (Id. ¶ 92.) According to former president Bill Clinton were involved in Plaintiff, if the investigation confirmed Rich a cover-up of Rich's murder. (Id. ) was murdered for leaking the emails, Butowsky and Zimmerman hoped to use the On Monday, May 15, 2017, Zimmerman information to discredit theories that emailed Plaintiff that the Article would be Russians had done so to influence the 2016 published imminently. (Id. ¶ 119.) Plaintiff presidential election. (Id. ¶ 9.) told Zimmerman that he was traveling and would be unable to review drafts of the Article Plaintiff had multiple conversations with the that she sent him throughout the day. (Id. ¶ Rich family over several weeks. (Id. ¶ 94.) On 120.) However, at Zimmerman's request, -2- Wheeler v. Twenty-First Century Fox, 322 F.Supp.3d 445 (S.D. N.Y., 2018) Plaintiff sent Zimmerman quotes for the I have a source inside the Article. (Id. ) A text message containing one [MPDC] that has looked me of Plaintiff's quotes read, in part: straight in the eye and said, ‘Rod, we were told to stand Joe said that when I called the down on this case and I can't [MPDC] right after that Donna share any information with Brazil[e] called him and was you.’... I don't think it comes asking him why was I snooping from the Chief's office, but I do around asking questions about believe there is a correlation the death of Seth [Rich] .... I between the Mayor's office and also spoke with another source the DNC and that is the today who informed me that not information that's going to only was Donna Brazil[e] come out tomorrow. snooping around ... but also ... Debbie Wasserman Schultz was (Id. at 3:23–4:8.) snooping around wanting to know how much it was I [was] The next day, Fox published the Article as the learning. lead story on the FoxNews.com homepage. (Am. Compl. ¶ 126.) The Article, entitled Seth [322 F.Supp.3d 451] Rich, Slain DC Staffer, Had Contact with WikiLeaks, Say Multiple Sources , listed (Decl. of David B. Harrison in Supp. Zimmerman as the author. (Am. Compl., Ex. ("Harrison Deck"), Ex. 6, ECF No. 80-6, at 4– A ("Article"), ECF No. 56-1, at 1.) The Article 5.3 ) The text message also stated, "you can stated, among other things, "A federal add that I do strongly believe that the answers investigator who reviewed an FBI forensic to who murdered [Rich] sits on his computer report ... detailing the contents [of] Rich's on a shelf at the [MPDC] or FBI computer said he made contact with headquarters!" (Id. at 5.) WikiLeaks," and quoted the investigator as stating, "I have seen and read the emails That evening, the news program Fox 5 between Seth Rich and WikiLeaks." (Id. at 1– interviewed Plaintiff. (Id. ¶ 122; see also Decl. 2.) of Joseph M. Terry in Supp. ("Terry Decl."), Ex. 5, ECF No. 76-5.) During the Fox 5 The Article noted that the FBI investigator's Interview, when asked, "You have sources at "revelation is consistent with the findings of the FBI saying that there is information ... Rod Wheeler." (Id. at 2.) In discussing that could link Seth Rich to WikiLeaks?" Plaintiff's findings, the Article attributed a Plaintiff responded, "Absolutely. Yeah. That's quote to Plaintiff (the "Email Quote") stating, confirmed." (Terry Decl., Ex. 5, at 3:17–23.) " ‘My investigation up to this point shows there was some degree of email exchange In the same Fox 5 Interview, Plaintiff stated between Seth Rich and WikiLeaks,’ Wheeler that neither "[t]he [MPDC] nor the FBI have said.
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