MyPillow, Inc. v. US Dominion, Inc., et al.

A defamation lawsuit has been filed by a forprofit corporation (“Dominion”) whose machines tabulated ballots in 28 States in the 2020 Presidential election. Dominion’s complaint alleges that the defendants falsely stated that the election was “stolen” because of flaws and abuse of Dominion’s voting machines. The defendants are (a) an individual (“Lindell”) who has criticized the tabulation of votes and (b) the corporation he founded and owns in part (“MyPillow”). Dominion has widely publicized its defamation lawsuit and claims more than $1.3 billion in damages. The 115-page complaint contains no allegation that Lindell ever personally made any statement or personally committed any act manifesting subjective knowledge of falsity or reckless disregard of the truth or falsity of his assertions. To this day Lindell continues to declare that his criticism is true. Lindell moved under FRCP 12(b)(6) to dismiss Dominion’s complaint under New York Times Co. v. Sullivan, 376 U.S. 254 (1964), for failure to allege actual malice. The motion was denied by the district judge on the ground that circumstantial evidence, such as a potential finding by a jury that Lindell’s assertion “is so inherently improbable that only a reckless man would believe it” satisfies the constitutional “actual malice” standard. Lindell and MyPillow appealed the district court decision under 28 U.S.C. § 1291. The court of appeals dismissed the appeal on jurisdictional grounds. The Question Presented is: Whether a critic of official conduct may immediately appeal under 28 U.S.C. § 1291 a district