Funimation, Monica Rial, and Ron Toye have recently submitted new filings to the court in the ongoing defamation lawsuit brought against them by Dragon Ball Super: Broly and Prince Adventures: Chronicles voice actor Vic Mignogna.
On July 1st, 2019 Funimation filed a Motion to Dismiss Under the TCPA in an attempt to have Mignogna’s lawsuit dismissed and lawyers fees recouped due to provisions in the Texas Citizens Participation Act, an act which states that “If a legal action is based on, relates to, or is in response to a party’s exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action.” In the filing, Funimation claims that Mignogna’s lawsuit is “retaliatory,” that the non-infamous tweets issued by the company regarding Mignogna were “truthful and non-defamatory,” and that the company “cannot be held vicariously liable” for the conduct of co-defendants Rial, Toye, and Jamie Marchi as they are “not Funimation’s agents or employees”:
“The Texas Legislature enacted the Texas Citizens Participation Act (“TCPA”) to “encourage and safeguard the constitutional rights of persons to . . . speak freely [and] associate freely.” Tex. Civ. Prac. & Rem. Code § 27.002. Numerous courts have noted the TCPA is designed to stop retaliatory lawsuits that are designed to squelch free speech, precisely what is occurring in this dispute.
Applying the TCPA, the Court should dismiss Plaintiff Victor Mignogna’s (“Vic”) lawsuit against Defendant Funimation Production, LLC because Funimation’s February 11, 2019, tweets about its decision to terminate its working relationship with Vic were clearly an exercise of Funimation’s right of free speech and right of association. As explained below, Funimation published the tweets in response to widespread public outcry about allegations that Vic, a well-known voice actor, had engaged in inappropriate conduct with his fans and with his co-workers.
Because Funimation’s tweets were truthful and non-defamatory, Vic’s tort claims against Funimation fail as a matter of law. Further, Funimation cannot be held vicariously liable for any alleged tortious conduct of its co-defendants Monica Rial, Ron Toye, or Jamie Marchi because they are not Funimation’s agents or employees.”
Funimation also presented three arguments in support of this motion, arguing that the lawsuit must be dismissed because the suit is in response to Funimation exercising their “rights of free speech and association” and thus “the burden shifts to Vic, who must establish “by clear and specific evidence a prima facie case for each essential element of the claim in question” or face dismissal”:
A. The TCPA applies to Funimation’s tweets because the tweets involved a matter of public concern.
B. The TCPA also applies to Funimation’s tweets because the tweets involved Funimation’s right of association.
C. Vic cannot satisfy his burden under § 27.005(c) to provide clear and specific evidence for each essential element of his claims against Funimation.
On the last argument, Funimation specifies these essential elements, arguing that Mignogna cannot “meet his burden to show clear and specific evidence for his tortious interference with existing contract claim against Funimation,” “meet his burden to show clear and specific evidence for his tortious interference with existing contract claim against Funimation,” “show clear and specific evidence for his tortious interference with prospective business relations claim against Funimation,” “meet his burden to show clear and specific evidence for his civil conspiracy claim against Funimation,” or “meet his burden to show clear and specific evidence for his vicarious liability “claim” against Funimation”.
Due to the citation of the TCPA, Funimation was also granted a stay of discovery, as “on the filing of a motion under [the TCPA], all discovery in the legal action is suspended until the court has ruled on the motion to dismiss.” Funimation will not have to participate in discovery until the court rules on the motion, which must take place within 60 to 90 days according to the TCPA.
Simultaneously, a Notice of Litigation Hold was filed by Rial and Toye, which notified nine specific individuals that they “must preserve any documents, information, tangible things, or electronically stored information in your possession, custody, or control that may be relevant to the Lawsuit,” The individuals notified, Chelsea Beard, Alyssa Fluty, Todd Haberkon, Lisa Hansell, Chuck Huber, Veronica Julian, Barb Myers, Nick Rekeita, and Chris Slatosch, were instructed to preserve “relevant materials,” including but not limited to accounting information regarding Mignogna’s GoFundMe campaign and communications between an individual and Mignogna’s lawyer, Ty Beard:
• Documents and communications (emails/texts/other) with Mignogna about Monica Rial, Ronald Toye, Jamie Marchi, Funimation, Tammi Denbow, Rooster Teeth, or any other matters concerning this Lawsuit;
• Documents and communications (emails/texts/other) between or among you and Monica Rial;
• Documents and communications (emails/texts/other) between or among you and Ronald Toye;
• Documents and communications (emails/texts/other) between or among you and Mignogna’s litigation counsel in this Lawsuit, Beard Harris Bullock Hughes;
• Documents and communications (emails/texts/other) between or among yourselves about Mignogna or this Lawsuit;
• Documents, donations, and accounting information concerning the “Vic Kicks Back” GoFundMe campaign found at this URL: https://www.gofundme.com/f/vickicks-back;
• Your communications to any person in which you exchange personal or identifying information concerning the Defendants in the lawsuit, any witnesses to Mignogna’s behavior at fan conventions, and any individuals who testify in the Lawsuit; this request specifically includes your communications (emails/texts/direct messages/posts) to individuals associated with Kiwi Farms and the Risembool Rangers.