Armenta v. G/O Media, Inc. d/b/a Deadspin

IN THE SUPERIOR COURT OF THE STATE OF DELAWARE

RAUL ARMENTA JR. and )
SHANNON ARMENTA, individually )
and on behalf of their minor son, H.A., )
)
Plaintiffs, )
)
v. ) C.A. No.: N24C-02-051 SPL
)
G/O MEDIA INC., D/B/A )
DEADSPIN, )
)
Defendant. )

Submitted: July 8, 2024
Decided: October 7, 2024

MEMORANDUM OPINION

On Defendant’s, G/O Media, Inc., D/B/A Deadspin,
Motion to Dismiss:
DENIED

Elizabeth M. Locke, Esq. (Argued), David Sillers, Esq., Jonathan R. Kaiman, Esq.
of CLARE LOCKE LLP, Brian E. Farnan, Esq., Michael J. Farnan Esq. of FARNAN
LLP, Attorneys for Plaintiffs, Raul Armenta Jr., Shannon Armenta, and H.A.

Joseph Slaughter, Esq. (Argued), Elizabeth S. Fenton, Esq., Lynn Oberlander, Esq.,
Lauren P. Russell, Esq., of BALLARD SPAHR LLP, Attorneys for Defendant G/O
Media d/b/a Deadspin.

LUGG, J.
INTRODUCTION

Deadspin published an image of a child displaying his passionate fandom as

a backdrop for its critique of the NFL’s diversity efforts and, in its description of the

child, crossed the fine line protecting its speech from defamation claims. On

November 26, 2023, the Armenta family, a mother, father, and their minor son,

traveled from California to Las Vegas, Nevada to attend an NFL game between the

Las Vegas Raiders and the Kansas City Chiefs. To support his favorite team, H.A.,

the Armentas’ minor son, wore Native American headdress, painted his face black

and red, and donned a Chiefs jersey. During the game, a television broadcast focused

briefly on H.A. Soon afterwards, still images, or “screenshots,” of the television

broadcast circulated online. The following day, Deadspin published an article, with

an accompanying screenshot, describing the boy as wearing “Black face” in a

display of racial animus toward African Americans and “Native headdress” to

display his hatred toward the Native American. The article further surmised that

Raul and Shannon Armenta, H.A.’s parents, taught H.A. that hatred.

The Armentas sued Deadspin for defamation, asserting that Deadspin’s

reporting caused them serious reputational and emotional harm. Deadspin has

moved to dismiss under Delaware Superior Court Civil Rule 12(b)(6), contending

that the article contained an expression of opinion and is therefore insulated from

the Armentas’ defamation claims. Having reviewed the complaint, the Court

1
concludes that Deadspin’s statements accusing H.A. of wearing Black face and

Native headdress to “hate Black people and the Native American at the same time,”

and that he was taught this hatred by his parents, are provably false assertions of fact

and are therefore actionable and Deadspin’s motion is DENIED. Further,

Deadspin’s motion to dismiss based on forum non conveniens favoring California is

DENIED.

2
FACTUAL AND PROCEDURAL BACKGROUND

A. The Conduct, the Article, and Its Updates

Raul and Shannon Armenta and their nine-year-old son, H.A., are residents of

California.1 On November 26, 2023, Raul, Shannon, and H.A. attended an NFL

game in Las Vegas, Nevada.2 H.A., a Kansas City Chiefs fan, wore a Chiefs jersey,

Native American headdress, and painted his face half red and half black.3 Raul

helped him paint his face.4 H.A. appeared on the CBS television broadcast for

approximately three seconds.5 A still photo, or “screenshot,” of H.A. soon began

circulating on social media.6 The screenshot showed H.A. at an angle displaying

only the half of his face painted black.7

Defendant G/O Media, d/b/a Deadspin, is a media company headquartered in

New York and incorporated in Delaware.8 The day after the football game, Deadspin

published an article (the “Original Article”), written by non-party Senior Writer

1
Compl. ¶¶ 14-16.
2
Compl. ¶ 1.
3
Compl. ¶¶ 1-2.
4
Compl. ¶ 19.
5
Compl. ¶ 23.
6
Docket Item (“D.I.”) 18 (“Slaughter Decl.”), Ex. 5.
7
Slaughter Decl., Ex. 5.
8
Compl. ¶ 17. One month after the Armentas’ filed their complaint, G/O Media
sold the Deadspin website. D.I. 18 (“Javaid Decl.”). For purposes of this litigation,
“Deadspin” refers to G/O Media.
3
Carron Phillips,9 criticizing the Armentas, the NFL and its commissioner, and the

league’s social justice initiatives.10 The Original Article’s headline read: “The NFL

needs to speak out against the Kansas City Chiefs fan in Black face, Native

headdress: They’re doubling up on the racism. Are you going to say anything, Roger

Goodell?”11 The screenshot of H.A., showing only the black half of his face,

appeared directly below the headline.12 Beneath the screenshot, the article opened,

“[i]t takes a lot to disrespect two groups of people at once. But on Sunday afternoon

in Las Vegas, a Kansas City Chiefs fan found a way to hate Black people and the

Native American at the same time.”13 And, the article rhetorically inquired,

“[d]espite their age, who taught that person that what they were wearing was

appropriate?”14

Deadspin posted a link to the Original Article on the social media platform

X.15 X’s content moderation program “Community Notes” appended a statement

9
Compl. ¶ 18.
10
D.I. 39, Joint Stipulation Regarding Article Versions (“Joint Stipulation”), Ex. 1.
11
Compl. ¶¶ 3-4; Slaughter Decl. ¶ 4; Javaid Decl. ¶ 4.
12
Joint Stipulation, Ex. 1.
13
Joint Stipulation, Ex. 1.
14
Joint Stipulation, Ex. 1.
15
Compl. ¶ 35.
4
clarifying that H.A. was not wearing Black face because the other side of his face

was painted red.16

The Armentas contend that their reputations were damaged by Deadspin’s

publication.17 After Deadspin posted the Original Article, the Armentas began

receiving hateful messages and death threats.18 They requested that Deadspin

remove the Original Article from its website.19 Deadspin instead republished an

edited version of the Original Article on November 30, 2023 (the “November 30

Update”).20 The November 30 Update retained accusations of H.A.’s Black face,

hatred for Black people and the Native American, and continued to display his

picture.21 On December 7, 2023, Deadspin again updated the article (the “December

7 Update”).22 The December 7 Update removed H.A.’s picture and changed the

headline to read “Culturally Insensitive Face Paint” instead of “Black face,” but

maintained that H.A. wore “what appeared to be black face paint.”23

16
Compl. ¶ 35.
17
Compl. ¶¶ 52-53, 75, 85, 102, 111, 127.
18
Compl. ¶ 49-50.
19
Compl. ¶¶ 36.
20
Compl. ¶¶ 40-48.
21
Joint Stipulation, Ex. 2.
22
Joint Stipulation, Ex. 3.
23
Joint Stipulation, Ex. 3.
5
The Armentas allege that neither the November 30 Update nor the December

7 Update stopped the hateful and threatening messages.24 The Armentas contend

that Deadspin’s publications directly led to the family’s fear for their safety and

H.A.’s declined academic performance.25 On December 12, 2023, Deadspin updated

the article a final time.26 No claim arises from the final update.

B. The Armentas Bring Suit for Defamation

On February 6, 2024, the Armentas filed a complaint alleging five counts of

defamation against Deadspin based on the Original Article, the November 30

Update, and the December 7 Update.27 The complaint avers that “Phillips’

accusation that H.A. engaged in racist conduct towards Black people and Native

Americans—and that Shannon and Raul taught him to engage in that conduct—is

false and defamatory.”28

Count I asserts defamation per se based on Deadspin’s publication of the

Original Article.29 The Armentas contend that the Original Article created “three

distinct defamatory messages”: (1) H.A. wore Black face, “a public display of vile

24
Compl. ¶¶ 49-58.
25
Compl. ¶¶ 49-58.
26
Joint Stipulation, Ex. 4.
27
See Compl.
28
Compl. ¶ 33.
29
Compl. ¶ 60.
6
racist conduct toward Black people;” (2) H.A. wore a Native American headdress to

demonstrate his hatred for Native Americans; and (3) H.A.’s parents, Raul and

Shannon Armenta, taught H.A. to hate Black people and Native Americans.30 Count

I asserts that the following statements are false, defamatory, and constitute

defamation per se:

a) A photo that Deadspin selectively and misleadingly edited to make
H.A. appear as if he was wearing blackface, and its caption alleging
that he was the “Chiefs fan on Sunday in . . . Black face.”

b) The title of the Article, “The NFL needs to speak out against the
Kansas City Chiefs fan in Black face, Native headdress.”

c) “[O]n Sunday afternoon in Las Vegas, a Kansas City Chiefs fan
[H.A.] found a way to hate Black people and the Native Americans
at the same time.”

d) H.A. and his family are “doubling up on the racism.”

e) “The image of a Chiefs fan in Black face … leads to so many
unanswered questions.”

f) H.A.’s costume “was as if Jon Gruden’s emails had come to life.”

g) “This [H.A.] is what happens when you ban books, stand against
Critical Race Theory, and try to erase centuries of hate. You give
future generations [H.A.] the ammunition they need to evolve and
recreate racism better than before.”

h) “The image of a Chiefs fan in Black face wearing a Native
headdress during a road game leads to so many unanswered
questions. … The answers to all of those questions lead back to the
NFL. … While it isn’t the league’s responsibility to stop racism and

30
Compl. ¶ 63.
7
hate from being taught in the home, they are a league that has
relentlessly participated in prejudice.”31

Count II asserts defamation by implication and is also based on the Original

Article.32 Count II asserts that the following imply false and defamatory facts about

the Armenta family:

a) A photo that Deadspin selectively and misleadingly edited to make
H.A. appear as if he was wearing Black face.

b) “The image of a Chiefs fan in Black face wearing a Native headdress
during a road game leads to so many unanswered questions.”

c) “The answers to all of those questions lead back to the NFL. …
While it isn’t the league’s responsibility to stop racism and hate
from being taught in the home, they are a league that has relentlessly
participated in prejudice.”33

Count III asserts defamation per se and is substantively identical to Count I,

but based on the November 30 Update.34 Count IV, also stemming from the

November 30 Update, alleges defamation by implication and offers statements

similar to those in Counts I, II, and III.35

31
Compl. ¶ 61(a-h) (emphasis excluded).
32
Compl. ¶ 77.
33
Compl. ¶ 79(a-c).
34
Compl. ¶¶ 86-102.
35
Compl. ¶¶ 103-111.
8
Count V alleges defamation per se based on the December 7 Update.36 It

avers that the following statements convey the same “distinct defamatory messages”

as asserted in Counts I, II, III, and IV:

a) “It takes a lot to disrespect two groups of people at once. But on
Sunday afternoon in Las Vegas, someone in the stands at the Kansas
City Chiefs game found a way, leading to lots of unanswered
questions.”

b) “The answers to those questions lead back to the NFL. While it isn’t
the league’s responsibility to stop racism, they are a league that has
relentlessly participated in prejudice.”

c) “This is what happens when you ban books, stand against Critical
Race Theory, and try to erase centuries of hate. You give future
generations the ammunition they need to evolve and recreate racism
better than before.”

d) “As of now, the league hasn’t released a statement on what took
place in the stands in Las Vegas on Sunday.”37

36
Compl. ¶ 113.
37
Compl. ¶ 114 (a-d).
9
STANDARD OF REVIEW

I. DELAWARE SUPERIOR COURT CIVIL RULE 12(b)(6)

Delaware Superior Court Civil Rule 12(b)(6) governs a motion to dismiss for

failure to state a claim upon which relief can be granted.38 When assessing a motion

to dismiss under this rule, this Court must:

(1) accept all well pleaded factual allegations as true, (2) accept even
vague allegations as “well pleaded” if they give the opposing party
notice of the claim, (3) draw all reasonable inferences in favor of the
non-moving party, and (4) do not affirm a dismissal unless the plaintiff
would not be entitled to recover under any reasonably conceivable set
of circumstances.39

This Court, in U.S. Dominion v. Fox, explained that even where the applicable

substantive state law contains an Anti-SLAPP statute, Delaware’s conceivability

standard of review applies to a motion to dismiss.40 Delaware’s pleading standards

at the motion to dismiss stage are minimal.41 A complaint is sufficient to survive a

motion to dismiss under Rule 12(b)(6) “[if] a plaintiff may recover under any

reasonably conceivable set of circumstances susceptible to proof under the

complaint.”42 If, based on the circumstances presented, the plaintiff may recover,

38
Super. Ct. Civ. R. 12(b)(6).
39
Cent. Mortg. Co. v. Morgan Stanley Mortg. Capital Holdings LLC, 27 A.3d 531,
535 (Del. 2011).
40
2021 WL 5984265 at *18-19 (Del. Super. Ct. Dec. 16, 2021).
41
Cent. Mortg. Co., 27 A.3d at 536.
42
Spence v. Funk, 396 A.2d 967, 968 (Del. 1978).
10
then the motion to dismiss must be denied.43 Conversely, a motion to dismiss will

be granted if “under no reasonable interpretation of the facts alleged could the

complaint state a complaint for which relief might be granted.”44 The Court need

not “accept conclusory allegations unsupported by specific facts or [] draw

unreasonable inferences in the plaintiff’s favor.”45

There exist additional considerations unique to defamation suits when

evaluating a motion to dismiss. “Early dismissal of defamation lawsuits for failure

of the complaint to state a claim on which relief can be granted not only protects

against the costs of meritless litigation, but provides assurance to those exercising

their First Amendment rights that doing so will not needlessly become prohibitively

expensive.”46 Accordingly, courts set a “high bar to clear to establish defamation,”

especially for claims made by a public figure against the free press.47

43
Id.
44
Unbound Partners Ltd. P’ship v. Invoy Holdings Inc., 251 A.3d 1016, 1023 (Del.
Super. Ct. 2021).
45
Clinton v. Enterprise Rent-A-Car Co., 977 A.2d 892, 895 (Del. 2009).
46
ShotSpotter Inc. v. VICE Media, LLC, 2022 WL 2373418, *6 (Del. Super. Ct. Jun.
30, 2022) (cleaned up).
47
Id. at *6-8.
11
II. DELAWARE SUPERIOR COURT CIVIL RULE 12(b)(3)

Delaware Superior Court Civil Rule 12(b)(3) governs a motion to dismiss

based on forum non conveniens.48 The doctrine of forum non conveniens empowers

this Court to “decline to hear a case despite having jurisdiction over the subject

matter and the parties.”49 Delaware Courts are hesitant to grant relief “based on

forum non conveniens, and the doctrine is not a vehicle by which the Court should

determine which forum would be most convenient for the parties.”50 “Forum non

conveniens claims motions are addressed to the trial court’s discretion.”51

48
Arrowood Indem. Co. v. AmerisourceBergen Corp., 2023 WL 2726924, at *7 (Del.
Super. Ct. Mar. 30, 2023).
49
Chrysler First Business Credit Corp. v. 1500 Locust Ltd. Partnership, 669 A.2d
104, 106 (Del. 1995).
50
In re Citigroup, Inc. S’holder Derivative Litig., 964 A.2d 106, 117 (Del. Ch. 2009)
(citing Taylor v. LSI Logic Corp., 659 A.2d 1196, 1199 (Del. 1997)).
51
GXP Cap., LLC v. Argonaut Mfg. Servs., Inc., 253 A.3d 93, 97 (Del. 2021).
12
ANALYSIS

I. THE ARMENTAS’ DEFAMATION CLAIMS ARE ACTIONABLE.

A. California Law Applies to the Armentas’ Substantive Claims.

This Court follows the Restatement (Second) of Conflict of Laws, which

directs that the law of the jurisdiction with the “most significant relationship” to the

case governs.52 The Restatement further specifies that “the state of the most

significant relationship will usually be the state where the [plaintiff] was domiciled

at the time, if the matter complained of was published in that state.”53 In an internet

defamation case, the law of plaintiffs’ home state usually applies because

“defamation produces a special kind of injury that has its principal effect among

one’s friends, acquaintances, neighbors and business associates in the place of one’s

residence.”54 In Schmidt v. Washington Newspaper Publishing Company, the

plaintiff was a resident of California, and no other state held a “more significant

relationship” to the case; therefore, that court applied California substantive law.55

52
Smith v. Delaware State Univ., 47 A.3d 472, 480 (Del. 2012).
53
Restatement (Second) of Conflict of Laws § 150 (Am. Law Inst. 1971).
54
Stephen G. Perlman, Rearden LLC v. Vox Media, Inc., 2015 WL 5724838, at *11
(Del. Ch. Sept. 30, 2015) (quoting Aoki v. Benihana, Inc., 839 F. Supp. 2d 759, 765
(D. Del. 2012).
55
Schmidt v. Washington Newspaper Publ’g Co., 2019 WL 4785560, at *2 (Del.
Super. Ct. Sept. 30, 2019)
Here, the parties do not identify another jurisdiction with any significant

relationship to this case; in fact, they appear to agree that California substantive law

controls. In any event, the Court will apply California substantive law because that

is the plaintiffs’ home state. Also, to the extent First Amendment protections are

asserted, the Court will apply precedent assessing Constitutional protections

applicable to defamation claims.56

B. The Contours of Defamation Under California Law

Under California law, defamation “involves (a) a publication that is (b) false,

(c) defamatory, and (d) unprivileged, and that (e) has a natural tendency to injure or

that causes special damage.”57 “The defamatory statement must also specifically

refer to, or be ‘of and concerning,’ the plaintiff.”58 As explained in McGarry v.

University of San Diego, a valid defamation claim must be supported by statements

containing a “provable falsehood,” and while generally protected, “expressions of

opinion may imply an assertion of objective fact” and thus may be actionable.59

56
See Page v. Oath, 2021 WL 528472, at *3 (Del. Super. Ct. Feb. 11, 2021) (finding
a choice of law determination between New York and Delaware unnecessary for
defamation claims).
57
Taus v. Loftus, 151 P.3d 1185, 1209 (Cal. 2007).
58
John Doe 2 v. Superior Court, 206 Cal.Rptr.3d 60, 68 (Cal. Ct. App. 2016).
59
64 Cal.Rptr.3d 467, 479 (Cal. Ct. App. 2007).
14
Here, Deadspin argues that its statements cannot be proven false because they

are statements of opinion.60 Whether a statement constitutes a statement of fact or

opinion is a question of law.61 Statements expressed as opinions, though, do not

“enjoy blanket constitutional protection” because “expressions of ‘opinion’ may

often imply an assertion of objective fact.”62 As such, this Court must determine

whether the statements expressed in Deadspin’s Article and its subsequent Updates

are actionable: “whether a reasonable fact finder could conclude that the published

statement declares or implies a provably false assertion of fact.”63

To answer this question, California Courts have developed a “totality of the

circumstances test,” under which the language and context of the statement are to be

examined.64 For the statement to be defamatory, it must be “understood in a

defamatory sense.”65 Where the indicia of an opinion piece are present, “readers can

be expected to discount the statements made in that context as more likely to be the

stuff of opinion than fact.”66 Courts must consider “the nature and full content of

60
Op. Br. 15-20.
61
Franklin v. Dynamic Details, 10 Cal.Rptr.3d 429, 436 (Cal. Ct. App. 2004).
62
Id. (citing Milkovich v. Lorain Journal Co., 497 U.S. 1, 18 (1990)).
63
Id.
64
Baker v. Los Angeles Herald Examiner, 721 P.2d 87, 90-91 (Cal. 1986).
65
Id. at 90.
66
Morningstar v. Superior Court, 29 Cal.Rptr.2d 547, 556 (Cal. Ct. App. 1994)
15
the communication and the knowledge and understanding of the audience to whom

the publication was directed.”67

C. The Contours of Defamation under the United States Constitution

“The Free Speech Clause of the First Amendment provides that ‘Congress

shall make no law . . . abridging the freedom of speech.’”68 But, Congress and the

States may impose liability for defamatory speech “subject to a number of

constitutional guardrails.”69 To be actionable, a statement must “be understood as

defamatory by a reasonable third party and was published.”70 “[W]hen the

challenged statement is on a matter of public concern, the plaintiff must demonstrate

that the statement was false.”71 Statements of opinion on matters of public concern

“are not categorically shielded from actionability.”72 Rather, to be actionable,

defamatory statements of opinion must “reasonably be interpreted as stating or

implying defamatory facts about an individual that are provably false.”73

67
Baker, 721 P.2d at 91.
68
Cousins v. Goodier, 283 A.3d 1140, 1148 (Del. 2022) (quoting U.S. Const. amend
I) (cleaned up).
69
Id.
70
Id.
71
Id.
72
Id.
73
Id.
16
The fact that the use or display of cultural “mascots and symbols is

controversial and has been for decades is scarcely subject to doubt.”74 Commentary

relating to political, social, and other community concerns are fairly considered

addressing matters or public concern warranting greater Constitutional scrutiny.75

The Delaware Supreme Court has concluded that “statements on matters of public

concern are actionable in defamation when, even if presented as ‘opinion,’ they may

be reasonably construed as stating or implying defamatory facts about an individual

that are provably false.”76

D. Statements Accusing H.A. of Wearing Black face are Actionable.

Generally, statements labeling a person as racist are not actionable.77 “A term

like racist, while exceptionally negative, insulting, and highly charged—is not

actionable under defamation-type claims because it is a word that lacks precise

meaning and can imply many different kinds of fact.”78 In Cousins, the Delaware

74
Id. at 1151 (citing reports of controversies surrounding Native American mascots,
monikers, and imagery).
75
Id.
76
Id. at 1155.
77
See generally, id.
78
Skidmore v. Gilbert, 2022 WL 464177, at *9 (N.D. Cal. Feb. 15, 2022) (cleaned
up) (citing Overhill Farms, Inc. v. Lopez, 119 Cal.Rptr.3d 127, 138-39 (Cal. Ct. App.
2010)).
17
Supreme Court explained that the defendant’s “personal view of what is racist” was

not provably false and upheld the trial court’s dismissal of the defamation claim:

It cannot be denied America is in the midst of an ongoing national
debate about what it means to be racist. To be sure, there is nearly
universal agreement that some behaviors are racist: these include the
use of racial slurs, the practicing of overt racial discrimination, and the
commission of racially motivated violence. . . . But when a wider net is
cast, this consensus quickly vanishes: it is clear to us that Americans
disagree about a long and growing list of things that to some are racist
and to others are not. It is not our role here to enter into this debate and
decide who is right and who is wrong. In fact, we think that the First
Amendment is clear that doing so would be the opposite of our role.79

Deadspin argues that the statements alleging H.A. wore Black face80 are non-

actionable for the same reasons that calling him racist would be non-actionable.81

The Armentas recognize that courts “often dismiss as non-actionable ‘pure opinion’

statements … that someone ‘is a racist’ … without more.”82 But there is a legally

significant distinction between a statement calling someone a racist and a statement

accusing someone of engaging in racist conduct; expressions of opinion are not

79
Cousins, 283 A.3d at 1157-58.
80
“Blackface is used to mock or ridicule Black people; it is considered deeply
offensive.” Spectrum WT v. Wendler, 693 F.Supp.3d 689, 696 n.1 (N.D. Tex. 2023)
(quoting Smith v. Salvation Army, 2023 WL 2252380, at *6 (N.D. Ala. Feb. 27,
2023)) (cleaned up). Deadspin, in recasting Black face as “culturally insensitive face
paint” in the December 7 Update, recognizes the negative understanding of the
descriptive term.
81
Op. Br. 15-20.
82
Resp. Br. 10.
18
protected if they imply an assertion of an objective, defamatory fact.83 Two recent

decisions applying California law, Overhill Farms, Inc. v. Lopez84 and La Liberte v.

Reid,85 assist in clarifying this distinction.

The Court in Overhill Farms held that “a claim of racially motivated

employment termination is a provably false fact.”86 In that case, a group of

employees accused their employer of engaging in racist firings of Hispanic workers

as a pretext to hide racist and discriminatory abuse against Latina women

immigrants.87 After the employer sued for defamation, the employees moved to

dismiss, arguing that their statements were non-actionable opinions.88 The

California Court of Appeals denied the employees’ motion, reasoning:

[D]efendants did not merely accuse [their employer] of being “racist”
in some abstract sense …. [I]n almost every instance, defendants’
characterization of [their employer] as “racist” is supported by a
specific reference to its decision to terminate the employment of a large
group of Latino immigrant workers. The assertion of racism, when
viewed in that specific factual context, is not merely a hyperbolic
characterization of [the employer’s] black corporate heart—it
represents an accusation of concrete, wrongful conduct.89

83
Milkovich, 497 U.S. at 18-19.
84
119 Cal.Rptr.3d 127 (Cal. Ct. App. 2010).
85
966 F.3d 79 (2d Cir. 2020).
86
Overhill Farms, Inc., 119 Cal.Rptr.3d at 140-41.
87
Id. at 140.
88
Id. at 132.
89
Id. at 140.
19
The Court continued:

Defendants’ primary contention on appeal is that none of their alleged
statements were actionable as defamation because none declared or
implied a provably false assertion of fact under the totality of the
circumstances. However, the statements reflected in defendants’
written press release, leaflets and flyers accused Overhill of more than
harboring racist attitudes; they accused Overhill of engaging in a mass
employment termination based upon racist and ageist motivations.
Such a contention is clearly a “provable fact;” indeed an employer’s
motivation for terminating employment is a fact plaintiffs attempt to
prove routinely in wrongful termination cases.90

In La Liberte v. Reid, a community activist brought suit after a television host

republished two photographs of her at a pro-immigration rally with captions alleging

racist conduct.91 The first caption accused the plaintiff of screaming “You are going

to be first deported … dirty Mexican!” at a 14-year-old boy.92 The second caption

compared a photograph of the plaintiff to white Americans yelling at the Little Rock

Nine.93 The television host moved to dismiss the activist’s defamation claims,

arguing that her statements were “nonactionable statements of opinion.”94 The trial

90
Overhill Farms, Inc. v. Lopez, 119 Cal.Rptr.3d 127, 140-41 (Cal. Ct. App. 2010)
(citing Milkovich, 497 U.S. at 19).
91
La Liberte, 966 F.3d at 84.
92
Id.
93
Id.
94
Id. at 92.
20
court agreed and granted dismissal.95 The Second Circuit Court of Appeals reversed,

explaining:

A reader could interpret the juxtaposition of the Photograph with the
1957 Little Rock image to mean that [plaintiff] likewise screamed at a
child out of racial animus—particularly in light of [defendant’s]
comment that “[h]istory sometimes repeats.” That interpretation is
bolstered by [defendant’s] description of the white woman in the Little
Rock photograph as a “person screaming at a child, with [her] face
twisted in rage” and [her] comment that it was “inevitable” that the
photos would be juxtaposed. [Defendant] thus portrayed [plaintiff] as
a latter-day counterpart of the white woman in 1957 who verbally
assaulted a minority child. Like the defendants in Overhill Farms,
[defendant] “did not merely accuse [plaintiff] of being ‘racist’ in some
abstract sense.” Rather, her July 1 Post could be understood as an
“accusation of concrete, wrongful conduct,” which can be proved to be
either true or false. That makes it potentially defamatory.96

The Armentas contend that the Original Article and its Updates involve

defamatory statements regarding conduct that is provably false and, therefore, this

Court should be guided by Overhill Farms and La Liberte.97 These statements

include:

(1) H.A. was wearing “Black face;”

(2) H.A.’s conduct in wearing “Black face” was motivated by his hatred of
Black people;

(3) H.A.’s wearing of a Native headdress resulted from his hatred of Native
Americans;

95
Id.
96
Id. at 93 (internal citations omitted).
97
Resp. Br. 2; see Compl.
21
(4) H.A. is part of a “future generation[]” of racists who had “recreate[d]
racism better than before”; and

(5) Raul and Shannon Armenta “taught” their son, H.A., “racism and hate” in
their home.98

Deadspin’s audience could understand its portrayal of H.A. to mean that his

entire face was painted black and, because his entire face was painted black, it was

H.A.’s intent to disrespect and hate African Americans. The publication went

beyond an expression of opinion and flatly stated H.A.’s motivation for appearing

as he did. Similarly, a reader could be left with the belief that H.A. wore a Native

American headdress as a signal of disrespect to that population. Any doubt as to the

thrust of these representations is resolved in the opening line of the article, where

the author unequivocally asserts, “It takes a lot to disrespect two groups of people at

once. But on Sunday afternoon in Las Vegas, a Kansas City Chiefs fan found a way

to hate Black people and the Native American at the same time.”99 While arguably

couched as opinion, the author devotes substantial time to describing H.A. and

attributing negative racial motivation to him. Further, the article may be reasonably

viewed as derogating those who may have taught him—his parents. A reader might

not, as Deadspin contends, interpret this assertion as a reflection of the author’s

98
Resp. Br. 15.
99
Joint Stipulation, Ex.1 and Ex. 2.
22
opinion.100 To say one is a racist may be considered opinion, but to plainly state that

one’s attire, presentation, or upbringing demonstrates their learned hatred for

identifiable groups is actionable. A reader may reasonably interpret the Article’s

assertion that H.A. was wearing Black face as fact.101

California’s totality of the circumstances test centers on the statement’s

“susceptibility of being proved true or false.”102 The CBS broadcast showed H.A.

for approximately three seconds.103 In those three seconds, viewers could see that

H.A.’s face was painted two colors: black and red.104 Deadspin published an image

of H.A. that displayed only the portion of H.A.’s face painted black and presented it

as a factual assertion that there was a “Chiefs fan in Black face” at the game.105 The

complaint asserts facts that, reasonably interpreted, establish Deadspin’s Original

Article and its Updates as provably false assertions of fact.106

Deadspin contends that La Liberte and Overhill Farms stand as outliers from

decisions recognizing that accusations of racist behavior are “inherently subjective

100
Op. Br. 18.
101
Comp. ¶ 49-50.
102
Morningstar v. Superior Court, 29 Cal.Rptr.2d 547, 557 (Cal. Ct. App. 1994).
103
Compl. ¶ 2.
104
Compl. ¶ 2.
105
Joint Stipulation, Ex.1 and Ex. 2.
106
Compl. ¶ 2.
23
and therefore non-actionable[.]”107 Not so. They reflect reasoned assessments of

the lines between protected and actionable speech and offer a paradigm for

identifying and assessing provably false allegations of racial animus. This Court

may grant Deadspin’s motion under Rule 12(b)(6) only if “under no reasonable

interpretation of the facts alleged could the complaint state a claim for which relief

might be granted.”108 Applying the analytical framework of La Liberte and Overhill

Farms to the facts here, the Armentas maintain a “possibility of recovery.”109

Deadspin further argues that the December 7 Update cannot be considered

defamatory because it does not contain an image of H.A., name the Armenta family,

or reference “Black face.”110 With the removal of identifying information, Deadspin

contends that the December 7 Update could not have been perceived to be “of and

concerning” the Armentas.111 But the “of and concerning” standard does not require

express, identifying language; rather, it may be satisfied if the statement refers to the

107
Reply Br. 10.
108
Unbound Partners Ltd. P’ship, 251 A.3d at 1023.
109
See Cent. Mortg., 27 A.3d at 537 n.13 (“Our governing ‘conceivability’ standard
is more akin to ‘possibility.’”).
110
Op. Br. 21.
111
Op. Br. 21.
24
plaintiff by “reasonable implication.”112 The plaintiff must also show that the

statement was understood by a third person to have concerned them.113

Deadspin began the December 7 Update with edited language referencing

their prior article versions about the “young fan” in the stands at the Chiefs game.114

It then detailed how “someone in the stands” found a way to “disrespect two groups

of people at once.”115 Replacing “a Kansas City Chiefs fan” with “someone in the

stands” reasonably implicates H.A. and his parents, Raul and Shannon. The

complaint sufficiently alleges facts whereby the December 7 Update may be

considered an accusation that H.A. engaged in racist conduct despite the removal of

his image and the references to Black face.

II. FORUM NON CONVENIENS

Deadspin also argues that this Court should exercise its discretion and dismiss

this case under the doctrine of forum non conveniens because litigating in Delaware

would be “unfair or inequitable to the parties or the Court.”116 The Armentas

respond that, because Deadspin has not met its burden to show overwhelming

112
Dickinson v. Cosby, 250 Cal.Rptr.3d 350, 367 (Cal. Ct. App. 2019).
113
Id. (citing Bartholomew v. YouTube, LLC, 225 Cal.Rptr.3d 917, 927 (Cal. Ct.
App. 2017)).
114
Joint Stipulation, Ex. 3.
115
Joint Stipulation, Ex. 3.
116
Op. Br. 22.
25
hardship, this Court should not grant dismissal based on forum non conveniens.117

While this Court has concluded that California law governs the substantive issues

raised by the Armentas’ defamation claims, Delaware procedural law controls.118

A. The Doctrine of Forum Non Conveniens

The doctrine of forum non conveniens empowers this Court to “decline to hear

a case despite having jurisdiction over the subject matter and the parties.”119 This

doctrine allows the Court to exercise some control over a foreign plaintiff’s access

to a forum in Delaware.120 Under Delaware law, dismissal on forum non conveniens

grounds is left to this Court’s discretion and is only granted in “rare case[s].”121 In

evaluating Deadspin’s motion, this Court considers the Cryo-Maid factors in the

exercise of its discretion; these factors include:

(1) the relative ease of access to proof; (2) the availability of
compulsory process for witnesses; (3) the possibility of the view of the
premises; (4) whether the controversy is dependent upon the
application of Delaware law which the courts of this State more

117
Resp. Br. at 20. General Foods Corp. v. Cryo-Maid, 198 A.2d 681 (Del. 1964)
and Martinez v. E.I. DuPont de Nemours & Co., 86 A.3d 1102 (Del. 2014).
118
Dominion, 2021 WL 5984265 at *18.
119
Chrysler First Business Credit Corp. v. 1500 Locust Ltd. Partnership, 669 A.2d
104, 106 (Del. 1995).
120
Ison v. E.I. DuPont de Nemours and Co., Inc., 729 A.2d 832, 839-40 (Del. 1999)
(examining doctrine of forum non conveniens and concluding that “[i]n Delaware
jurisprudence there is a proper place for dismissals based on forum non
conveniens.”).
121
Aimbridge Hosp., LLC v. Plaza Resort Atlantic Ocean LLC, 2024 WL 3949965,
at *2 (Del. Super. Ct. Aug. 26, 2024).
26
properly should decide than those of another jurisdiction; (5) the
pendency or nonpendency of a similar action or actions in another
jurisdiction; and (6) all other practical problems that would make the
trial of the case easy, expeditious and inexpensive.122

Dismissal on forum non conveniens grounds requires the movant show that

“overwhelming hardship and inconvenience” would result if dismissal is not

granted.123 “It is not enough that all of the Cryo-Maid factors may favor

defendant.”124 Depriving the plaintiff of their chosen forum requires the movant to

“meet the high burden of showing that [the Cryo-Maid] factors weigh so heavily that

the defendant will face ‘overwhelming hardship’ if the lawsuit proceeds in

Delaware.”125 The overwhelming hardship standard is meant to be “stringent,” but

not “preclusive.”126

122
Martinez, 86 A.3d at 1104 (citing Taylor v. LSI Logic Corp., 689 A.2d 1196,
1198-99 (Del. 1997)).
123
BCORE Timber EC Owner LP v. Qorvo US, Inc., 2023 WL 2985250, at *2 (Del.
Super. Ct. Apr. 18, 2023).
124
Martinez, 86 A.3d at 1104 (quoting Chrysler First Bus. Credit Corp., 669 A.2d
at 105).
125
Chrysler First Bus. Credit Corp., 669 A.2d at 105.
126
Martinez, 86 A.3d at 1106.
27
B. Deadspin Cannot Establish Overwhelming Hardship.

Where, as here, the Delaware action is the first action filed, the Court applies

the overwhelming hardship standard.127 Application of the Cryo-Maid factors

reveals that Deadspin does not establish overwhelming hardship.

1. Relative Ease of Access to Proof

The Court first assesses “the relative ease of access to proof.”128 The

Armentas’ alleged harm, allegedly inflicted by an online publication, occurred

primarily in California where they reside.129 Deadspin, headquartered in New York

and incorporated in Delaware, suggests this factor “overwhelmingly” weighs in

favor of dismissal because neither the documentary evidence nor the witnesses are

located in Delaware.130 This argument is unavailing. Even if the documentary

evidence stretches from New York to California, “modern methods of information

transfer render concerns about transmission of documents virtually irrelevant.”131

And although the Armentas and out-of-state witnesses may eventually encounter

127
Martinez, 86 A.3d at 1105-06 (citing Williams Gas Supply Co. v. Apache Corp.,
594 A.2d 34 (Del. 1991)).
128
Martinez, 86 A.3d at 1104.
129
Compl. ¶¶ 14-16.
130
Op. Br. 25.
131
In re CVS Opioid Ins. Litig., 2022 WL 3330427, at *7 (Del. Super. Ct. Aug. 12,
2022) (quoting Barrera v. Monsanto Co., 2016 WL 4938876, at *6 (Del. Super. Ct.
Sept. 13, 2016)).
28
some inconvenience by proceeding in Delaware, there is also no one single forum

that will be convenient for all parties and witnesses, who are scattered throughout

the country.

2. Availability of Compulsory Process for Witnesses

The Court must consider whether “another forum would provide a substantial

improvement as to the number of witnesses who would be subject to compulsory

process.”132 Deadspin does not identify any witnesses whose testimony would be

unavailable if this case proceeds in Delaware. To the contrary, California133 and

Delaware134 have both adopted the Uniform Interstate Depositions and Discovery

Act which provides Deadspin the necessary tools to compel depositions of any out-

of-state witnesses.135 Further, extant technology mitigates any inconvenience in case

investigation and preparation; “video depositions or transcribed depositions can be

taken at most places where non-[party] witnesses are located.”136 And because

132
Mt. Hawley Ins. Co. v. Jenny Craig, Inc., 668 A.2d 763, 769 (Del. Super. Ct.
1995).
133
CAL. CIV. P. CODE § 2029.100 (West 2010), California Interstate and
International Depositions and Discovery Act.
134
10 Del.C. § 4311, Delaware Uniform Interstate Depositions and Discovery Act.
135
See generally CAL. CIV. P. CODE § 2029.100 (West 2010),
136
Chrysler Fin. Corp. v. Fruit of the Loom, Inc., 1992 WL 19945, at *2 (Del. Super.
Ct. Feb. 4, 1992).
29
Deadspin is incorporated in Delaware, compulsory process is available for non-party

witness, the author of the articles, Carron Phillips.

3. View of the Premises

The view of the premises generally holds “little to no weight even in a case

where there was a relevant ‘premises’ that the fact-finder might want to view.”137

But here, this factor carries no weight because there is no premises to view or,

viewed another way, the premises may be viewed anywhere the internet is available.

To the extent that the published articles may be argued to constitute the “premises”

upon which the tortious conduct was committed, the articles are readily available for

review and examination.138

4. Application of Delaware Law

This Court next considers “whether the controversy is dependent upon the

application of Delaware law which the courts of this State more properly should

decide than those of another jurisdiction.”139 When “important and novel issues”

stem from a different state’s law, that state is best positioned to determine the law’s

application.140

137
Hall v. Maritek Corp., 170 A.3d 149, 162 (Del. Super. Ct. 2017) (citation
omitted).
138
Joint Stipulation.
139
Martinez, 86 A.3d at 1109.
140
Id. at 1109-10.
30
Deadspin avers that California’s retraction statute and anti-SLAPP law

“represent important policy decisions” that should compel this Court to allow

California an opportunity to decide this case.141 But Delaware courts are fully

capable of applying California law and “often decide legal issues—even unsettled

ones—under the law of other jurisdictions.”142 The application of California law

here is not sufficient reason to warrant dismissal under the doctrine of forum non

conveniens.143

5. Pendency of Similar Actions in Other Jurisdictions

Where, as here, there exist no other actions pending between the parties, “the

plaintiff’s choice of forum is accorded even more weight.”144 The absence of other

pending litigation between the Armentas and Deadspin therefore “weighs

significantly against” granting Deadspin’s forum non conveniens motion.145

141
Op. Br. 29.
142
Berger v. Intelident Solutions, Inc., 906 A.2d 134, 137 (Del. 2006); see Taylor v.
LSI Logic Corp., 689 A.2d 1196, 1200 (Del. 1997) (“It is not unusual for courts to
wrestle with [even] open questions of the law of sister states”).
143
Berger, 906 A.2d at 137.
144
Mar-Land Indus. Contractors, Inc. v. Caribbean Petroleum Refining, L.P., 777
A.2d 774, 778 (Del. 2001).
145
Berger, 906 A.2d at 137.
31
6. All Other Practical Problems

The sixth and final Cryo-Maid factor examines “all other practical problems

that would make the trial of the case easy, expeditious, and inexpensive.”146

Deadspin does not identify any “other” practical problems that are not covered by

its arguments related to the preceding Cryo-Maid factors. Deadspin chose to

establish its corporate home in Delaware. In so doing, it has availed itself of the

benefits of this State. This self-selected domicile, too, serves to establish Delaware

as a jurisdiction for resolving any suits against it. For this reason, and because the

Cryo-Maid factors do not favor dismissal, Deadspin’s motion to dismiss on the

ground of forum non conveniens is denied.

146
BCORE Timber EC Owner LP, 2023 WL 2985250, at *7.
32
CONCLUSION

This case presents a challenging factual scenario that sits on the fine line

between defamation and protected speech. Nonetheless, the complaint asserts

sufficient facts under which recovery is conceivable, even when viewed through the

more discerning lens applied to defamation claims. Deadspin has not established

that no reasonable interpretation of the facts may entitle the Armentas to relief. And

the Court does not find Deadspin will suffer an overwhelming hardship in defending

itself in the State of its corporate home. Accordingly, Deadspin’s motion to dismiss

under Superior Court Civil Rule 12(b)(6) and (b)(3) is DENIED.

33