Virginia is the proper forum for plaintiff’s defamation suit because under the lex loci delicti rule, the cause of action arose where the last act for publishing the allegedly defamatory essay took place; in this case, when a newspaper uploaded the essay to the internet from servers located in Virginia.
Plaintiff, John C. Depp, claims defendant, Amber Heard, defamed him in a Washington Post op-ed when she implied that he was a domestic abuser. The essay was first published on the Post’s digital platform and later in its print edition. The Post has offices in Virginia, is printed in Virginia and its digital platform is created and routed through servers in Virginia.
Depp sued in Fairfax Circuit Court and seeks $50 million in compensatory damages and $350,000 in punitive damages from Heard.
Heard has moved to dismiss, asserting that Depp’s cause of action arose outside of Virginia, and that the suit should be dismissed under the doctrine of forum non conveniens. She argues that federal courts have determined that “a multistate, mass media defamation suit arises … ‘where the plaintiff suffered the greatest injury … [and] that district is usually the one in which the plaintiff is domiciled.’”
She notes that Depp lives in California, does not own property in Virginia, does the bulk of his work as an actor in California and “the harm to his professional and personal reputation is most impacted in California.”
Depp responds that Virginia follows the lex loci delicti rule to determine where a tort has occurred, and in this case that is Virginia, where publication took place. He argues that because the cause of action arose in Virginia, his choice of forum is presumed correct and Heard cannot overcome the presumption.
The court must determine whether the cause of action arose outside of Virginia to “apply the forum non conveniens analysis.” To even consider whether a party has shown good cause to invoke forum non conveniens, “the cause of action must arise outside of the Commonwealth.”
Virginia is in the minority of jurisdictions that follow the lex loci rule, that is, the place of the wrong is where the cause of action arises. “The last act for an individual to become liable for defamation in online, multi-jurisdictional cases occurs when the defamatory statement is uploaded to the internet. …
“The last event to make Ms. Heard liable for the alleged defamatory statements in her Op-Ed was uploading it to the internet. Using the servers located in Springfield, Virginia, The Washington Post posted it to the internet[.] … Therefore, Mr. Depp’s cause of action arises in Virginia and the prerequisite to dismiss the case based on forum non conveniens is not met.”
Depp v. Heard. Case No. CL-2019-2911, July 25, 2019; Fairfax Cir. Ct. (White). Benjamin G. Chew, Robert B. Gilmore, Timothy McEvoy, Sean Patrick Roche, Eric M. George for the parties. VLW 019-8-069, 10 pp.