United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
H. Miller, United States District Judge.
before the court are (1) a motion to dismiss under Federal
Rule of Civil Procedure 12(b)(6) and the Texas Citizens
Participation Act (“TCPA”) filed by defendants
Radio Free Asia (“RFA”), Libby Liu, and Khanh Van
Nguyen (Dkt. 18); (2) a motion to dismiss under Rule 12(b)(6)
and the TCPA filed by defendant Viet Tan, as an
unincorporated association also known as Viet Nam Reform
Party (“Viet Tan”) (Dkt. 52); (3) a motion to
dismiss under Rule 12(b)(6) and for lack of personal
jurisdiction filed by defendants Chan Vu Dang, Xuyen Dong
Matsuda, and Trinity Hong Thuan (collectively,
“Individual Defendants Group One”) (Dkt. 25); (4)
a motion to dismiss under Rule 12(b)(6) and for lack of
personal jurisdiction filed by defendants Duy Tu Hoang, a/k/a
Dan Hoang, Angelina Trang Hunyh, Dinh Co Hoang, and Doan Bui,
a/k/a Ly Thai Hung (collectively, “Individual
Defendants Group Two”) (Dkt. 46); (5) a motion to
dismiss under Rule 12(b)(6), for lack of personal
jurisdiction, and under the TCPA filed by defendant Diem
Hoang Do (Dkt. 51); (6) a motion to dismiss under
the TCPA filed by the Individual Defendant Group One (Dkt.
26); (7) a motion to dismiss under the TCPA filed by the
Individual Defendants Group Two (Dkt. 47); (8) a motion to
require the plaintiff to post a bond filed by RFA, Libby Liu,
and Khanh Van Nguyen (Dkt. 30); and (9) objections to
evidence filed by Viet Tan and Diem Hoang Do (Dkt. 76). The
court held a hearing on these motions on May 23, 2018. The
Individual Defendants all consented to jurisdiction after the
hearing. Dkts. 79, 80. After considering the motions,
responses, replies, arguments at the hearing, related
filings, and the applicable law, the court is of the opinion
that the motions to dismiss for lack of personal jurisdiction
(partially, Dkts. 25, 46, 51) should be DENIED, the motions
to dismiss under the TCPA (Dkts. 26, 47, and, partially,
Dkts. 18, 51, 52) should be either GRANTED (Dkts. 18, 26, 47,
51) or GRANTED IN PART DENIED IN PART (Dkt. 52), and the
motions to dismiss under Rule 12(b)(6) (partially, Dkts. 18,
25, 46, 51, 52) should be either DENIED AS MOOT (Dkts. 18,
25, 46, 51, 52) or GRANTED IN PART AND DENIED IN PART (Dkt.
52). Additionally, the motion for bond (Dkt. 30) should be
DENIED, and the evidentiary objections (Dkt. 76) should be
case is about issues that are particularly significant to the
Vietnamese American community. Plaintiff Tu Nguyen's
father, Dam Phong Nguyen, was a prominent journalist in
Vietnam who wrote under the name Dam Phong. Dkt. 63 at 4. Dam
Phong Nguyen, his wife, and ten children (including Tu)
escaped the communist government in Vietnam in 1975.
Id.; Dkt. 72-2 at 5 (“My family and I
previously lived in Vietnam and like many other individuals,
had to escape the communist government in Vietnam at great
risk to my life.”). By 1981, the family had settled in
Houston, Texas, and Dam Phong Nguyen had founded a Vietnamese
language newspaper. Dkt. 63 at 4-5. In 1982, he published
some investigative reports about a group known as “The
Front.” Id. at 5. Tu Nguyen contends that The
Front wanted Dam Phong Nguyen to discontinue publishing the
investigative reports, falsely accused Dam Phong Nguyen of
being a communist and supporting the Vietnamese government,
and threatened Dam Phong Nguyen's life. Dkt. 72-2. On
August 24, 1982, when Tu Nguyen was 19 years old, Dam Phong
Nguyen was murdered in front of his home. Id. No
arrests were ever made. Id. Tu Nguyen has strong
suspicion that agents of The Front were involved in his
father's murder. Id. He also believes that The
Front is linked to the political party Viet Tan. Id.
his father's murder, Tu Nguyen was concerned for his
safety and the safety of his family. Id. He
consequently refrained from participation in Vietnamese
community activities for many years. Id. However, he
began investing a possible link between The Front and Viet
Tan in 2014. Id.
around November 3, 2015, Tu Nguyen was featured in a PBS
Frontline documentary, Terror in Little Saigon. Dkt.
72-2; Dkt. 73-3. According to the translated transcript of a
press conference given by defendant Diem Hoang Do on November
14, 2016, who was the Viet Tan party Chairman at the time,
the film can be summarized “as alleging that the
National United Front for Liberation of Vietnam [(the Front)]
was behind the deaths of a few Vietnamese journalists in the
1980's. To give the impression that The Front was guilty,
they painted the Vietnamese refugees community as radical,
bent on using violence, and intending to resume a war to
reclaim privileges and social positions they lost.”
Dkt. 73-3 at 3. Diem Hoang Do characterized the film's
contents as “offensive to the Vietnamese refugees
community's struggle.” Id.
Nguyen continued his investigation. In the summer of 2016, he
learned that Viet Tan was not an officially incorporated
entity. Dkt. 72-2. An acquaintance of Tu Nguyen's
incorporated an entity in California named VT Corp (Viet Tan
- Vietnam Reform Party). Id. Tu Nguyen was
originally an officer in this corporation, but he has since
resigned. Id. Registration of the name led to a
lawsuit in California. See Dkt. 46, Ex. 6
(Complaint, Vietnam Reform Party v. Viet Tan -
Vietnam Reform Party, No. 5:17-cv-00291-NC (Jan. 20
2017)). In this lawsuit, Viet Tan alleged that Tu Nguyen is a
resident of Texas and the owner and incorporator of Viet Tan
- Vietnam Reform Party. Id. Viet Tan contended that
it was formed on September 19, 2004, as an association of
members whose aim is “to establish democracy and reform
Vietnam through peaceful and political means.”
Id. It asserted that since that time it has
continually used its marks throughout California and the
United States. Id. Viet Tan alleged that the Viet
Tan corporation “was organized for the sole, improper
purpose of interfering with [Viet Tan's] ongoing business
and political activities and attempting to usurp control of
[Viet Tan's] Marks.” Id. Viet Tan
additionally alleged that Tu Nguyen contacted various
individuals and organizations and advised that the Viet Tan
corporation, as opposed to the original Viet Tan party, had
exclusive rights to the Marks. Id. Tu Nguyen and
Viet Tan eventually settled the case. Dkt. 63.
in the midst of this kerfuffle, Tu Nguyen contends that he
started to receive death threats about his involvement with
the creation of the Viet Tan corporation. Dkt. 68-1. He
consequently started performing Internet searches of the
names of various leaders of the RFA and Viet Tan, and he
discovered numerous statements on the Internet about or
relating to him that he contends are defamatory. Id.
The statements, for the most part, indicate that Tu
Nguyen's work to discredit Viet Tan is at least
peripherally aiding the communist party in Vietnam. Dkt. 63.
Nguyen contends that he has vivid memories of his
father's murder and that the current death threats have
made him fearful of leaving his home. Dkt. 72-2 at 7. He is
afraid he “may ultimately face the same fate as [his]
father” because of the statements made by the
defendants in this lawsuit. Id. He believes that the
defendants in this lawsuit have falsely labeled him as a
communist or communist sympathizer and asserts that
“being labeled as a communist or communist sympathizer
can shatter a person's reputation in the [Vietnamese
American] community.” Id. at 6. He explains
that in the “Vietnamese community in the United States,
it is considered taboo and traitorous to show any support to
the communist government in Vietnam.” Id. at
3. Tu Nguyen states that he has never supported the communist
government in Vietnam and is ideologically opposed to that
government. Id. at 6. In fact, he contends that he
agrees with Viet Tan's stance against communism in
Nguyen initiated this lawsuit on July 6, 2017. Dkt. 1. He
originally sued (1) the Broadcasting Board of Governors
Directors Leon Aron, Ryan Crocker, Michael W. Kempner,
Jefferey Shell, and Matthew Armstrong, in their official
capacities; (2) RFA as a corporation; (3) Libby Liu, John
Lansing, Bernadette M. Burns, Susan Lavery, Alan Tanenbaum,
Norman Thompson, and Khanh Van Nguyen, who all appear to be
affiliated in some way with RFA; (4) Viet Tan/Viet Nam Reform
Party as an unincorporated association; (5) Duy Tu Hoang (Dan
Hoang), Diem Hoang Do, Dinh Co Hoang, Chan Vu Dang, Xuyen
Dong Matsuda, Doan Bui “Ly Thai Hung, ” and
Angelina Trang Huynh, who all appear to be affiliated with
Viet Tan; (5) Nguoi Viet Daily News, Inc.; (6) Giao Thein Phu
Pham; and (7) John Do #1 through Doe #10. Id.
January 3, 2018, summonses were issued relating to Doan Bui,
Chan Vu Dang, Dim Hoang Do, Dan Hoang, Dinh Co Hoang,
Angelina Trang Huynh, Libby Liu, Xuyen Dong Matsuda, Khanh
Van Nguyen, RFA, Trinity Hong Thuan, and Viet Tan.
See Dkt. (Jan. 3, 2018). According to the record,
each of these individuals except Trinity Hong Thuan was
served at some point between February and March 2018. Dkts.
11-15, 19-24. Tu Nguyen did not serve the other originally
named defendants. Tu Nguyen subsequently filed an amended
complaint in which he only names the following individuals as
defendants: Viet Tan/Viet Nam Reform Party, Duy Tu Hoang
a/k/a Dan Hoang, Diem Hoang Do, Dinh Co Hoang, Chan Vu Dang,
Xuyen Dong Matsuda, Trinity Hong Thuan, Doan Bui a/k/a Ly
Thai Hung, Angelina Trang Huynh, and RFA. Dkt. 63.
Nguyen alleges that the following statements are defamatory:
(1) On March 1, 2016, Chan Vu Dang wrote an article published
in Viet Times magazine that allegedly accuses Tu of
“being a willing puppet for the communists in
Vietnam.” Id. ¶ 32.
(2) On April 25, 2016, Chan Vu Dang allegedly stated in an
article published on Viet Tan's blog that Tu Nguyen
“was attacking Viet Tan and its ideals to fight against
(3) On August 27, 2016, Dan Hoang allegedly issued a
statement that indicated that Tu Nguyen and his collaborators
were “lending a hand in helping to let off the pressure
on the Vietnamese Communist regime, and dispersing the common
struggle of all Vietnamese.” Id. ¶ 33.
(4) In the same statement, Dan Hoang allegedly stated that
the “scheme” “creates chaos in the
Vietnamese community overseas, ” and then he called on
“all executive committees of community organizations,
all media organizations, and all associations to be vigilant
to isolate these saboteurs from the ranks of those who seek
freedom and democracy for our country.” Id.
¶ 34. Tu Nguyen contends that it called for community
leaders to take action against him personally because he was
assisting the communist regime in Vietnam. Id.
(5) On August 28, 2016, Angelina Huynh, who Tu Nguyen
contends is the executive director of Viet Tan, allegedly
stated on Facebook that Tu Nguyen was “serving the
interests of the communist Vietnam” and
“‘hiding behind the so-called “search for
justice” to undermine efforts to fight for democratic
freedom'” and that the people doing this
“‘should be isolated, as this is serving the
interests of the communist Vietnam.'” Id.
(6) On April 27, 2016, Trinity Hong Thuan, an alleged Viet
Tan member, allegedly stated that “‘there is
someone overseas who claims to “seek justice for
Dad” but continues to use the communist dirty
tactics'” and this person “‘should be
condemned.'” Id. ¶ 36.
(7) On the same day, Trinity Hong Thuan allegedly also posted
on her Facebook page that it was “‘no surprise
that [the plaintiff] and “The People” newspaper
[the official communication of the communist party in
Vietnam] form a tag team.'” Id. ¶ 37.
(8) On April 26, 2016, Xuyen Dong Matsuda allegedly posted an
article by Hoi Trinh about Tu Nguyen on her two Facebook
pages. Xuyen Dong Matsuda shared the article and allegedly
stated that “‘the communist party would succeed,
to a certain extent, when it could condition the thought of
those who care to the point that they agree with
it.'” Id. ¶ 38. Tu Nguyen contends
that the comment “incites the idea that Tu [Nguyen] had
been conditioned by the communist party of Vietnam to be in
like mindset with it to further that party's
(9) On March 3, 2016, Xuyen Dong Matsuda allegedly created
another Facebook page under the alias Xuyen Dan An and
reposted the allegedly defamatory remarks of Chan Vu Dang
calling Tu Nguyen a puppet for the communists. She also
allegedly posted the article to a blog.
(10) In September 2016, Diem Hoang Do allegedly made a
statement in front of the media stating that Tu Nguyen's
actions benefitted the Vietnamese communist party “and
were offering a spear to the enemy.” Id.
(11) On September 8, 2016, Dinh Co Hoang, who Tu Nguyen
contends is the chair of the Viet Tan and former Chief
Financial Officer of The Front, allegedly sent an email that
accused Tu Nguyen of “being a tool for the communist
regime in Vietnam and sabotaging the cause of freedom and
democracy for Vietnamese people.” He also allegedly
stated that Tu Nguyen brought his father “‘back
to life'” by following in his footsteps, which Tu
Nguyen interprets as meaning that his “father deserved
to be killed” and Tu Nguyen deserves the same
treatment. Id. ¶ 41. Tu Nguyen contends that
this email was re-broadcasted by Viet Tan members and
(12) On September 2, 2016, Nguyen Tuong Thuy, who is not a
party in this case, allegedly published an article on an
RFA-affiliated blog. This article stated that Tu Nguyen stole
Viet Tan's name and concluded that Tu Nguyen's work
benefitted the communist party. Id. ¶ 42.
(13) On November 14, 2015, Viet Tan issued a statement
regarding Terror in Little Saigon. Diem Hoang Do
held a press conference in Orange County, California, and
Doan Bui held a press conference in Houston, Texas.
Id. ¶ 43. Tu Nguyen alleges that during these
press conferences they “insinuate[d that] the film and
those involved, ” including Tu Nguyen, “had the
financial support of the Vietnamese communist
(14) On May 2, 2018, after the trademark case in California
settled, Dan Hoang and Viet Tan issued a press release that
was posted on Viet Tan's website. Id. ¶ 44.
Tu Nguyen contends that the press release referred to him as
a criminal defendant. Id.
(15) Tu Nguyen contends that Nguyen Tuong Thuy reposted his
RFA article insinuating that Tu Nguyen's actions
benefitted the Vietnamese communist party on his Facebook
page on or around this same time. Id.
Nguyen also argues that the Individual Defendants, who he
contends are all high-ranking members of Viet Tan in America,
worked in concert to defame his name by coordinated press
conferences and making an erroneous connection between
criticism of Viet Tan and having a relationship with
communists. Id. at 11. He additionally contends that
RFA and the Viet Tan defendants “have embarked on a
witch hunt to defame Tu [Nguyen] with false accusations of
being aligned with or acting for the communist party in
Vietnam.” Id. at 10.
defendants have all filed motions to dismiss:
(1) Libby Liu, Khanh Van Nguyen, and RFA filed their motion
to dismiss under Rule 12(b)(6) and the TCPA on March 13,
2018. Dkt. 18.
(2) The Individual Defendants Group One filed their motions
to dismiss for lack of personal jurisdiction and under Rule
12(b)(6) and the TCPA on March 23, 2018. Dkts. 25, 26.
(3) The Individual Defendants Group Two filed their motions
to dismiss for lack of personal jurisdiction and under Rule
12(b)(6) and the TCPA on April 20, 2018. Dkts. 46, 47.
(4) Diem Do and Viet Tan both filed motions to dismiss under
Rule 12(b)(6) and the TCPA on April 26, 2018, and Diem
Do's motion included a motion to dismiss for lack of
personal jurisdiction. Dkts. 51, 52.
defendants all seek attorneys' fees or, in the
alternative, sanctions, under the mandatory attorneys'
fees provision of the TCPA. Dkts. 18, 26, 47, 51, 52.
Libby Liu, Khanh Van Nguyen, and RFA filed their motion to
dismiss, Tu Nguyen voluntarily dismissed Libby Liu and Khanh
Van Nguyen from the case. Dkt. 29 (filed Mar. 28, 2018). The
next day, Libby Liu, Khanh Van Nguyen, and RFA filed a motion
to require Nguyen to post a bond. Dkt. 30 (filed Mar. 29,
court set a hearing on all these motions for May 23, 2018.
Dkt. 49. Before the hearing, Tu Nguyen moved for leave to
file the second amended complaint, and the court granted the
motion. Dkts. 59, 62. After Tu Nguyen filed his second
amended complaint on May 8, 2018, RFA filed a request to
maintain the May 23 hearing, and the court maintained the
hearing. Dkts. 63, 64. Prior to the hearing, Diem Do and Viet
Tan's filed objections to Tu Nguyen's
evidence. Dkt. 76. The parties all appeared for the
hearing on May 23. All of the defendants who filed motions to
dismiss for lack of personal jurisdiction have now consented
to jurisdiction. Dkts. 79, 80.
motions are ripe for disposition.
Hoang Do and Viet Tan present two evidentiary objections.
Dkt. 76. First, they object to the translator's
“note” in a translation Tu Nguyen provided on a
May 1, 2018 press release by Viet Tan. Dkt. 76 (objecting
partially to Dkt. 72-16). Second, they object to a
translation of an email that does not contain information
about the person to whom the email was sent. Id.
(objecting to Dkt. 72-9).
regard to the translator's note, the translator stated
that “Bi Cao in this context is referring to the
defendant as a criminal in criminal procedure, where as Bi
Don is a defendant in a civil case.” Dkt. 72-16.
However, in the translated text, the translator merely uses
the English word “defendant” without any
modifiers. Id. Diem Hoang Do and Viet Tan object to
the translator's note under Federal Rule of Evidence 702
and 703, arguing that the note is improper expert testimony.
Dkt. 76. Tu Nguyen argues that the note “was inserted
to highlight the distinction in Vietnamese between the words
for criminal defendant versus civil defendant.” Dkt.
81. He asserts that foreign languages cannot
“‘convey precisely and exactly the same idea and
intent comprised in the original text, and it is unrealistic
to impose an impossible requirement of exactness before
allowing a translation to be considered.'”
Id. (quoting United States v. Zambrana, 841
F.2d 1320, 1337 (7th Cir. 1988)). Tu Nguyen contends that if
the court does not consider the note, “the translation
would be lacking the necessary context that would assist the
Court in making its decision.” Id. He points
out that Diem Hoang Do and Viet Tan could have provided a
competing translation and failed to do so. Id.
certainly it would have been helpful if the translator had
just modified the translated word “defendant”
with the word “criminal” rather than adding this
context with a note, it is difficult to fault a translator
for attempting to explain a variation in how things are
interpreted by adding a note, especially to the extent that
merely adding the English word “criminal” in
front of “defendant” would not accurately convey
the distinction. The note does not transform the translator
into an expert any more than any particular translation of
any other word in the document would do so. Moreover, Diem
Hoang Do and Viet Tan were certainly not prohibited from
offering a different translation or calling the translator to
testify if they actually took issue with the substantive
correctness of the note. The objection to the
translator's note is therefore OVERRULED.
court now turns to the email. The top of the email provides
information about who the email is from, the date and time
sent, and the email subject. Dkt. 72-9. It does not provide
information regarding to whom the email was sent. See
Id. Diem Hoang Do and Viet Tan assert that they
“are only left to wonder whether this ‘sent
to' information was redacted from the email provided to
the translator.” Dkt. 76. They therefore object under
Federal Rule of Evidence 1002, the Best Evidence Rule.
Id. They point out that in its current state, they
cannot even ascertain whether the email was
“published” to third parties. Id. They
also object under Federal Rule of Evidence 403 because they
contend the probative value of the email is substantially
outweighed by the danger of unfair prejudice it poses to the
Nguyen asserts that he does not know why the email does not
list a recipient. Dkt. 81. He points out that Dinh Co Hoang
(the email sender) stated in a declaration filed with the
court that he sent the email to a private individual in
France. Id. (citing Dkt. 46 at 11). He further notes
that the original email will be obtained from Dinh Co Hoang
during discovery, making the Best Evidence Rule point moot.
with regard to Rule 403, which provides that the court
“may exclude relevant evidence if its probative value
is substantially outweighed by a danger of one or more of the
following: unfair prejudice, confusing the issues, misleading
the jury, undue delay, wasting time, or needlessly presenting
cumulative evidence, ” Diem Hoang Do and Viet Tan have
not actually provided any argument as to why the email poses
a danger of unfair prejudice to them. Fed.R.Evid. 403. The
Rule 403 objection is therefore OVERRULED.
regard to the Best Evidence Rule objection, Tu Nguyen states
in his affidavit that the email “was re-broadcasted by
Viet Tan members and sympathizers, ” which is
presumably how Tu Nguyen acquired the email with no
“to” field. Dkt. 72-2 ¶ 37. Clearly, under
the expedited TCPA proceedings, Tu Nguyen would be prejudiced
if he were required to obtain the best evidence since he has
not had the opportunity to conduct discovery and propound
requests for production. The original email that contains all
of the fields would be in the custody and control of Dinh Co
Hoang, not Tu Nguyen.
court finds that absent any allegation that the email is
otherwise not authentic and in consideration of the fact that
the information regarding the original recipient is in the
record (see Dkt. 46, Ex. 3 ¶ 8), the exhibit
provided is in adequate form to be considered as clear and
specific evidence should the substance of the email actually
meet the elements of a prima facie case of defamation. Diem
Hoang Do and Viet Tan's objection under the Best Evidence
Rule is OVERRULED.
Legal Standards for Motions to Dismiss
Failure to State a Claim
Rule of Civil Procedure 8(a)(2) requires only ‘a short
and plain statement of the claim showing that the pleader is
entitled to relief.'” Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955 (2007). In
considering a Rule 12(b)(6) motion to dismiss a complaint,
courts generally must accept the factual allegations
contained in the complaint as true. Kaiser Aluminum
& Chem. Sales, Inc. v. Avondale Shipyards, Inc.,
677 F.2d 1045, 1050 (5th Cir. 1982). The court does not look
beyond the face of the pleadings in determining whether the
plaintiff has stated a claim under Rule 12(b)(6). Spivey
v. Robertson, 197 F.3d 772, 774 (5th Cir. 1999).
“[A] complaint attacked by a Rule 12(b)(6) motion to
dismiss does not need detailed factual allegations, [but] a
plaintiff's obligation to provide the ‘grounds'
of his ‘entitle[ment] to relief' requires more than
labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.”
Twombly, 550 U.S. at 555 (citations omitted). The
“[f]actual allegations must be enough to raise a right
to relief above the speculative level.” Id.
The supporting facts must be plausible-enough to raise a
reasonable expectation that discovery will reveal further
supporting evidence. Id. at 556.
TCPA is Texas's anti-SLAPP statute. SLAPP stands for
“Strategic Lawsuit Against Public Participation.”
See In re Lipsky, 411 S.W.3d 530, 536 n.1, 539 (Tex.
App.-Fort Worth 2013). The statute “protects citizens
from retaliatory lawsuits that seek to intimidate or silence
them on matters of public concern.” In re
Lipsky, 460 S.W.3d 579, 586 (Tex. 2015). The Texas
Supreme Court explains “matters of public
concern” as “[p]ublic matters [that] include
‘a subject of legitimate news interest; that is, a
subject of general interest and of value and concern to the
public.'” Brady v. Klentzman, 515 S.W.3d
878, 884 (2017) (discussing “[w]hat then is a matter of
public concern?” (citing Snyder v. Phelps, 562
U.S. 443, 453, 131 S.Ct. 1207 (2011)).
TCPA sets forth a special expedited procedure. A defendant
who believes the lawsuit was filed in response to a valid
exercise of First Amendment rights may file a motion to
dismiss, and the court must conduct a hearing on the motion
“not later than the 60th day after the date of service
of the motion unless the docket conditions of the court
require a later hearing . . . [but] in no event shall the
hearing occur more than 90 days after service of the motion,
” with certain exceptions. Tex. Civ. Prac. &
Remedies Code Ann. § 27.004. The court must then rule on
the motion no later than thirty days after the hearing.
Id. § 27.005.
court “shall dismiss a legal action against the moving
party if the moving party shows by a preponderance of the
evidence that the legal action is based on, relates to, or is
in response to the party's exercise of: (1) the right of
free speech; (2) the right to petition; or (3) the right of
association.” Id. “The ‘right of
free speech' refers to communications related to ‘a
matter of public concern' which is defined to include an
issue related to: ‘(A) health or safety; (B)
environmental, economic, or community well-being; (C) the
government; (D) a public official or public figure; or (E) a
good, product, or service in the marketplace.'”
In re Lipsky, 460 S.W.3d at 586 n.4. “The TCPA
does not require that the statements specifically
‘mention' health, safety, environmental, or
economic concerns, nor does it require more than a
‘tangential relationship' to the same; rather, TCPA
applicability requires only that the defendant's
statements are ‘in connection with' ‘issue[s]
related to' health, safety, environmental, economic, and
other identified matters of public concern chosen by the
Legislature.” ExxonMobil Pipeline Co. v.
Coleman, 512 S.W.3d 895, 900 (Tex. 2017) (per curiam).
“The ‘right to petition' refers to a wide
range of communications relating to judicial, administrative,
or other governmental proceedings.” In re
Lipsky, 460 S.W.3d at 586 n.5. “The ‘right
of association' refers to people ‘collectively
express[ing], promot[ing], pursu[ing], or defend[ing] common
interests.'” Id. at n.6.
defendant makes this public-concern showing, the burden
shifts to the plaintiff. Id. at 587. “The
court may not dismiss a legal action under this section if
[the plaintiff] establishes by clear and specific evidence a
prima facie case for each essential element of the claim in
question.” Tex. Civ. Prac. & Remedies Code Ann.
§ 27.005. A “prima facie case” means
“evidence sufficient as a matter of law to establish a
given fact if it is not rebutted or contradicted.”
In re Lipsky, 460 S.W.3d at 590. Courts should
determine if there is clear and specific evidence
establishing a prima facie case early in the proceedings and
“typically on the basis of the pleadings and
affidavits.” Id. “Clear and specific
evidence” does not mean that direct evidence of each
essential element is required. Id. at 591. In the
defamation context, “pleadings and evidence that
establishes the facts of when, where, and what was said, the
defamatory nature of the statements, and how they damaged the
plaintiff should be sufficient to resist a TCPA motion to
dismiss.” In re Lipsky, 460 S.W.3d at 591.
Then, if the moving party establishes by a preponderance of
the evidence each essential element of a valid defense to the
claim, the court shall dismiss the claim. Tex. Civ. Prac.
& Remedies Code Ann. § 27.005.
court will first consider the motions to dismiss for lack of
personal jurisdiction. It will then address whether the
claims should be dismissed under the TCPA or Rule 12(b)(6).
Finally, it will consider the requests for a bond and
Individual Defendants have all filed motions to dismiss for
lack of personal jurisdiction. Dkts. 25, 46, 51. After the
hearing, all of these defendants consented to personal
jurisdiction. Dkts. 79, 80. Because they have consented to
personal jurisdiction, the motions to dismiss for lack of
personal jurisdiction filed by these defendants (Dkts. 25,
46, 51) are DENIED AS MOOT.
purpose of the TCPA is ‘to encourage and safeguard the
constitutional rights of persons to petition, speak freely,
associate freely, and otherwise participate in government to
the maximum extent permitted by law and, at the same time,
protect the rights of a person to file meritorious lawsuits
for demonstrative injury.'” NCDR, L.L.C. v.
Mauze & Bagby, P.L.L.C., 745 F.3d 742, 746 (5th Cir.
2014) (quoting Tex. Civ. Prac. & Rem. Code Ann. §
27.002)). The court will thus consider this delicate balance
while analyzing the claims under the burden shifting approach
required by the TCPA.
defendants must first show by a preponderance of the evidence
that Tu Nguyen's claims are based on, related to, or in
response to the defendants' right of free speech, right
to petition, or right of association. The court will consider
whether each defendant or set of defendants has met this
allegedly defamatory statement by RFA is the article Nguyen
Tuong Thuy published on an RFA-affiliated blog. RFA contends
that Tu Nguyen cannot hold it accountable for an article
placed on its blog by a third party. Dkt. 19. Tu Nguyen
argues that Nguyen Tuong Thuy has written many articles for
RFA and the contested article contained a tagline indicating
that he was affiliated with RFA. Dkt. 40 at 11. Tu Nguyen
contends that the article denounced him for
“stealing” the Viet Tan name and concluded that
Tu Nguyen's work benefitted the communist party. Dkt. 63
asserts that Tu Nguyen's concern about how being
considered a communist impacts his status as a Vietnamese
American in the community renders the speech a matter of
public concern to the Vietnamese American community. Dkt. 18
at 15. Additionally, it contends that the allegation that Tu
Nguyen has received death threats elevates the case to one
involving a public concern. Id. at 17. Tu Nguyen
contends that the TCPA does not apply because defamatory
language made against private individuals is not protected by
the First Amendment. Dkt. 40 at 17. RFA construes this
argument as a concession that the statements regarding
communism implicate a matter of public concern, ...