1 UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

SMARTMATIC USA CORP. , et al

. Plaintiff s ,

v. Civil Action No. 1: 2 1

- cv - 0 2995 ( C JN )
SIDNEY POWELL , Defendant

.

MEMORANDUM O PINION This suit, brought by Smartmatic USA Corp. and related entities ( collectively, “Smartmatic” ), is one of many arising out of allegedly defamatory statements made by certain individuals in the wake of the 2020 presidential election. See , e.g. , US Dominion, Inc. v. Powell , 554 F. Supp. 3d 42 (D.D.C. 2021) ( Powell I ) ; US Dominion, Inc. v. Byrne , 600 F. Supp. 3d 24 (D.D.C. 2022); Smartmatic USA Corp. v. Herring Networks, Inc. , 610 F. Supp. 3d 92 (D.D.C. 2022); US Dominion, Inc. v. Herring Networks, Inc. , Civ. A. No. 21

- 2130 (CJN), 2022 WL 16744924 (D.D.C. Nov. 7, 2022). The sole defendant here, Sidney Powell , argues (among other things) that Smartmatic has failed to adequately show that the Court has personal jurisdiction over her

. T he Court agrees as to some of Smartmatic’s claims , but will not dismiss them; instead, the Court provides Smartmatic with leave to either amend its C omplaint or take jurisdictional discovery on Powell’s contacts with the District of Columbia.2 I. Factual Background Smartmatic USA Corp. is an election technology and software company incorporated in Delaware and based in Florida

. 1 Compl. ¶ 1. The company is owned by Smartmatic International Holding B.V., a Netherlands corporation that owns multiple businesses operating under the Smartmatic brand. Id. ¶ 2. Smartmatic International is , in turn , owned by a U.K. parent company called SGO Corporation Limited

. Id. ¶ 3. The se three entities are the plaintiffs here

. Smartmati c “ provid ed election technology and soft ware for Los Angeles County ” during the 2020 election. Id. ¶ 1. This “technology and software were not used in any other county or
State.” Id. Nor did Smartmatic work with any other voting technology companies in recording or tabulating votes

. Id. ¶ 138. Sidney Powell is a lawyer, former federal prosecutor, media figure , and the sole defendant in this action

. Id. ¶ 5. She resides in Dallas, Texas, but has made media appearances in the District of Columbia and elsewhere , where at various times she discussed Smartmatic’s role in the 2020 election. Id. ¶ 17 ; see also Powell I , 554 F. Supp. 3d at 66

– 67

. She also represented former

n ational s ecurity a dviser Michael Flynn in a criminal case against him in the District. Compl. ¶¶ 17, 363. Smartmatic alleges that, s hortly after the election, Powell teamed up with former New York City mayor Rudy Giuliani to promote the theory that the election had been rigged and stolen from Donald Trump. Id. ¶ 74. According to Smartmatic, Powell a nd Giuliani falsely claimed that the alleged steal was made possible , in part , by nefarious acts associated with Smartmatic’s election technology and software. Id.

1 On a motion to dismiss, “the Court must treat the complaint’s factual allegations as true and afford the plaintiff the benefit of all inferences that can be derived from the facts alleged.” Atlas Brew Works, LLC v. Barr , 391 F. Supp. 3d 6, 11 (D.D.C. 201 9) (quotations omitted)

.3 Smartmatic alleges that Powell and Giuliani tried to maximize the reach of their message b y rel ying on Fox News as one of their primary platforms. Id. ¶ 116. Powell appeared on the network ( in some manner ) to discuss Smartmatic’s role in the election on the following dates in 2020: November 14, 15, 16, and 19, and December 10. Id. ¶¶ 84, 87

– 90, 93

– 94, 101, 109

. Although Smartmatic alleges that Powell was present in the District of Columbia for many of these
appearances , it supports this allegation with varying degrees of specificity.
For some of those appearances, Smartmatic eit her makes no claim about Powell’s location

or relies only on “ information and belief ” in alleging that she was in the District. See , e.g. , id. ¶¶ 84, 90. But for two appearances

— a November 19 press conference that aired on Fox News, and a December 10 interview on the network

— Smartmatic is more specific

. It alleges that t he November 19 press conference was “held by Ms. Powell and Mr. Giuliani in Washington, D.C.,” id

. ¶ 101, and that Powell gave the December 10 inte rview “from a hotel room she rented in the Trump International Hotel in Washington, D.C.,” id

. ¶ 109. Powell also appeared on Fox News for an interview by phone on November 19, but Smartmatic does not allege that she was in the District at the time. Id. ¶ 102

– 03 ; Ex. 25. Regardless of her location, Powell’s statements on air were similar

. In one broadcast, Powell claimed that there were “[a]ll kinds of different means of manipulating the Dom inion and Smartmatic software.” Compl. ¶ 84. In another, she stated that Smartmatic’s software “shifted” “millions of votes” and that it “was designed to rig elections .” Id. ¶ 90. She went on t o decry “massive election fraud” involving “Dominion and it s Smartmatic software.” Id

. When Fox News aired segments of the November 19 press conference, it included Powell’s
assert ion that one of the “most characteristic features [of Smartmatic’s software] is its ability to flip votes. It can set and run an algorithm that probably ran all over the country to take a certain4 percentage of votes from President Trump and flip them to Pres ident Biden.” Id

. ¶ 101. And while at Trump International Hotel, Powell went on air and claimed that she had “reams and reams” of evidence that various individuals, including t he former c hairman of SGO, “ designed and develop[ed] the Smartmatic and Domini on programs and machines that include a controller module that allows people to log in and manipulate the votes even as it’s happening. ” Id

. ¶ 109. Touting her own “independent investigation,” Powell added that Smartmatic’s voting technology and software were “ created for the benefit of Venezuela and Hugo Chávez to rig elections to make sure he continued winning .” Id. ; see also id. ¶ 85 ( “[ Smartmatic ] was created for the express purpose of being able to alter votes and secure the re

- election of Hugo Chávez .” )

. Smartmatic claims that Powell, i n making t hese statements ( and others ), falsely stated or implied that (1) Smartmatic’s technology and software were widely used in the 2020 election, (2) Dominion used th at technology and software, (3) the techn ology and software helped steal the presidency from Donald Trump, ( 4 ) the technology and software were compromised and hacked , ( 5 ) Smartmatic is a Venezuelan company founded and funded by socialist dictators, and ( 6 ) Smartmatic designed its technology and software for the express purpose of rigging elections. Id

. ¶ 115. B ased on these categories of allegedly false statements , Smartmatic states twelve causes of action

— s even for defamation, five for injurious falsehood

— and it sorts each of Powell’s
statements into the relevant category

. Id

. ¶¶ 381

– 543.
II. Procedural Background In early 2021, Smartmatic sued Powell, Giuliani, and several other parties in New York
state court. Id. , Preliminary Statement ; Smartmatic USA Corp., et al. v. Fox Co rp
. , et al. , No. 151136/2021 (filed Feb. 4, 2021)

. That suit, according to Smartmatic, is “ materially identical” to this one, except that this one “is solely against Powell.” Compl., Preliminary Statement.5 Smartmatic brought this action in November 202 1 “ as a prophylactic measure in the event that personal jurisdiction is found lacking in the Supreme Court of the State of New York .” Id

. In March 2022 , t he New York court granted Powell’s motion to dismiss for lack of personal jurisdiction

. See Status Report, Ex. A, ECF No. 19. Powell now moves to dismiss this action (or at least parts of it) on various grounds

. T he Court consider s just one here : whether Smartmatic has established an adequate factual basis for the Court’s exercise of persona l jurisdiction over Powell

. III. Legal Standard On a motion to dismiss for lack of personal jurisdiction, the burden is on t he plaintiff to establish “a factual basis for the exercise of personal jurisdiction over the defendant.” Fawzi v. Al Jazeera Media Netw ork , 273 F. Supp. 3d 182, 185 (D.D.C. 2017). Courts “may consider materials outside the pleadings in deciding whether to grant [the] motion,” Jerome Stevens Pharms., Inc. v.
FDA , 402 F.3d 1249, 1253 (D.C. Cir. 2005), and “factual discrepancies appearing i n the record must be resolved in favor of the plaintiff,” Crane v. New York Zoological Soc. , 894 F.2d 454, 456 (D.C. Cir. 1990). But “[b]are allegations and conclusory statements will not suffice.” Smartmatic USA Corp. v. Herring Networks, Inc. , 610 F. Supp. 3d 92, 97 (D.D.C. 2022). A plaintiff must instead “allege specific facts connecting the defendant to the forum.” Id.
IV. Analysis The jurisdictional analysis proceeds in two steps. 2 First, the Court must determine whether jurisdiction exists under the District of Columbia’s long

- arm statute. Then, the Court must as k whether exercising jurisdiction comports with the Due Process Clause. GTE New Media Servs.

2 Smartmatic does not argue that the Court has general jurisdiction over Powell, so the Court considers only specific jurisdiction.6 Inc. v. BellSouth Corp. , 199 F.3d 1343, 1347 (D.C. Cir. 2000). At each step, a relevant fac t is Powell ’s physical location when she made the allegedly defamatory statement s
. See Powell I , 554 F. Supp. 3d at 66. On this issue, the Complaint says too little when addressing certain statements made by Powell

. As noted above, Smartmatic specifically alleges that Powell was present in the District when she made her statements at the November 19 press conference and during the December 10 interview . In all othe r cases, however, Smartmatic either retreats to general allegations when addressing Powell’s location or altogether fails to address the issue

. Had Powell conceded the point, perhaps there would have been no need for the Court to question these general al legations

. But Powell’s motion to dismiss includes a declaration attesting that she was not present in the District of Columbia when she made her allegedly defamatory statements on November 14, 15, and 16. Powell Decl. ¶ 19, ECF No. 23

- 3. Smartmatic , for its part, makes no effort to re fute Powell’s declaratio n
. Instead, Smartmatic relies on Powell I , and for an obvious reason

— there, the Court held that it had personal jurisdiction over Powell for allegedly defamatory statements she made co ncerning Dominion. 554 F. Supp. 3d at 66

– 67

. But in that case , Powell did not dispute Dominion’s allegation that she was present in the District when she made the relevant statements; instead, her primary argument was that her presence did not constitute “transacting business” under the D.C. long

- arm statute. See Powell Mot

. to Dismiss, US Dominion, Inc., et al. v. Powell , et al. , Civ A. No. 21

- 40 (CJN) (D.D.C. March 22, 2021), at 15, ECF No. 22 ( not disput ing that she was present in the District for var ious events giving rise to the defamation claims). Here , though , Powell filed a declaration

— to which Smartmatic offers no rebuttal

— contesting Smartmatic’s bare allegations about her presence in the Distric t

. And “when a plaintiff files an opposition to a dispositive motion and addresses only7 certain arguments raised by the defendant, a court may treat those arguments that the plaintiff failed to address as conceded.” Williams v. GEICO Corp. , 792 F. Supp. 2d 5 8, 63 (D.D.C. 2011) ( holding that venue was improper because the plaintiff did not refute a declaration accompanying a motion to dismiss) (quotations omitted)

. To be sure , Powell’s declaration concedes that she was in the District for the December 10 int erview. Powell Decl. ¶ 20. And her reply brief concedes that she was in the District for the November 19 press conference as well. Powell Reply at 2 n.2, ECF No. 34. Thus, for the reasons given in Powell I , Smartmatic has sufficiently pleaded personal jurisdiction for claims related to Powell’s statements at the November 19 press conference and during the December 10 interview. That the Court has personal jurisdiction over Powell for claims relating to those statements does not, however, mean that it has personal jurisdiction for claim s relating to her other statements. After all, “each separate defamatory statement itself constitutes a separate and distinct cause of action.” Katz v. Odin, Feldman & Pittleman, P.C. , 332 F. Supp. 2d 909, 917 (E.D. Va. 2004) (quotations omitted). And because s pecific personal jurisdiction is claim

- s pecific , it “must be established for each claim.” Seiferth v. Helicopteros Atuneros, Inc. , 472 F.3d 266, 274

– 75 (5 th Cir. 2006); see also 5B Charles A

. Wright & Arthur R. Miller, Fed eral Prac tice and Proc edure § 1351 ( 3d ed. 20 23 ) (“There is no such thing as supplemental specific personal jurisdiction; if separate claims are pled, specific personal jurisdiction must independently exist for each claim and the existence of personal jurisdiction for one claim will not provide the basis for another claim.”). Accordingly, for its claims based on statements Powell made on November 14, 15, and 16, and during the interview o n November 19 , Smartmatic must establish claim

- specific forum contacts.8 In the face of Powell’s unrebutted declaration, Smartmatic’s reliance on its Complaint’s bare allegations about Powell’s location does not suffice

. 3
For now , however, the Court will not dismiss these claims . Smartmatic has requested leave to either amend its C omplaint or take jurisdictional discovery. Opp’n to M ot. to Dismiss at 11 n.4,
ECF No. 27. The standard for granting leave to amend a complaint is generous: “The c ourt should freely give leave when justice so requires.” Fed

. R. Civ. P. 15(a)(2). Likewise, t he “standard for permitting jurisdictional discovery is quite liberal,” and leave may be granted even when the plaintiff “has not made out a prima facie case of jurisdiction.” Diamond Chem

. Co., Inc. v. Atofina Chems

. , Inc. , 268 F. Supp. 2d 1, 15 (D.D.C. 20 03). The Court finds no basis for denying Smartmatic leave to amend its Complaint. See Zalduondo v. Aetna Life Ins. Co. , 845 F. Supp. 2d 146, 160 (D.D.C. 2012) (observing that grounds for denial include undue delay, bad faith, undue prejudice, and futil ity). And g iven Powell’s activities and whereabouts during the relevant period, see generally Powell Decl., Powell I , 554 F. Supp. 3d 42, the Court finds that Smartmatic’s request for discovery is made with a “good faith belief that such discovery will enable it to show that the court has personal jurisdiction over the defendant,” Diamond Chem

. , 268 F. Supp. 2d at 15 (quotations omitted). At the very least, the

3 The Court recognizes that Smartmatic also alleges suit

- related business transactions and forum contacts based on Powell’s representation of Michael Flynn in the District. But the thrust of the Complaint

— and Smartmatic’s argument in opposition to Powell’s motion

— is the contention that Powell was present in the District when she made the allege dly defamatory statements. So too, h er presence in the District was the focus of the Court’s decision in Powell I , 554 F. Supp. 3d 42. For this reason, the Court declines to decide at this time whether Powell’s representation of Flynn, by itself, can sup port personal jurisdiction for each claim in this case . More clarity on Powell’s physical location will sharpen not only the jurisdiction al analysis, but also the question of venue, which turns on whether a substantial part of the events giving rise to a particular claim occurred in the forum

.9 Court does not believe that discovery here “would amount to nothing more than a fishing expedition.” Bastin v. Fed. Nat’l Mortg. Ass’n , 104 F.3d 1392, 1396 (D.C. Cir. 1997).
* * * Accordingly, Smartmatic shall file, within two weeks of this Opinion and Order, notice of whether it intends to amend its Complaint or take jurisdictional discovery on the question of Powell’s contacts with the District with respect to her allegedly defamatory statements. The case is stayed pending the filing of an amended complaint or the completion of jurisdictional discovery. A separate Order will issue.

DATE: May 24, 2023 CARL J. NICHOLS United States District Judge