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Nguyen v. Hoang

United States District Court, S.D. Texas, Houston Division

June 28, 2018

Tu Nguyen, Plaintiff,
v.
Duy Tu Hoang, et al., Defendants.

          MEMORANDUM OPINION AND ORDER

          Gray H. Miller, United States District Judge.

         Pending 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[1] (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 OVERRULED.

         I. Background

         This 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.

         After 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.

         On or 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.

         Tu 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.

         Unfortunately, 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.

         Tu 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 Vietnam. Id.

         Tu 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.

         On 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.

         Tu 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 communism.” Id.
(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. ¶ 35.
(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 objectives.” Id.
(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. ¶ 40.
(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 sympathizers. Id.
(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 government.” Id.
(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.

         Tu 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.

         The 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.

         The 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.

         After 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, 2018).

         The 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.[2] 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.

         The motions are ripe for disposition.

         II. Evidentiary Objections

         Diem 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).

         With 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.

         While 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.

         The 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 defendants. Id.

         Tu 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. Id.

         First, 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.

         With 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.

         The 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.

         III. Legal Standards for Motions to Dismiss

         A. Failure to State a Claim

         “Federal 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.

         B. TCPA

         The 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)).

         The 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.

         The 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.

         If the 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.

         IV. Analysis

         The 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 attorneys' fees.

         A. Personal Jurisdiction

         The 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.

         B. TCPA

         “The 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.

         1. Defendants' Burden

         The 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 burden.

         a. RFA

         The 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.[3] 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 ¶ 42.

         RFA 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, ...


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