IN THE SUPERIOR COURT OF THE STATE OF DELAWARE 

SMARTMATIC USA CORP., 

SMARTMATIC INTERNATIONAL 

HOLDING B.V., and SGO 

CORPORATION LIMITED, 

Plaintiffs,

 v. 

NEWSMAX MEDIA, INC., , 

Defendant.

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) C.A. No.: N21C-11-028 EMD

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Submitted: September 13, 2024

Decided: September 23, 2024

Upon Defendant’s Rule 59(e) Motion for Clarification or, in the Alternative, Motion for 

Reargument as to the Court’s Motion for Summary Judgment Ruling on Punitive Damages

GRANTED

Michael J. Barrie, Esquire, Kate Harmon, Esquire, Benesch, Friedlander, Coplan & Aronoff 

LLP, Wilmington, Delaware; J. Erik Connolly, Esquire, Nicole Wrigley, Esquire, David D. 

Pope, Esquire, William Walsh, Esquire, Lee B. Muench, Esquire, Lauran Tortorella, Esquire, 

Olivia Sullivan, Esquire, Meghan Golden, Esquire, Benesch, Friedlander, Coplan & Aronoff 

LLP, Chicago, Illinois. Attorneys for Plaintiffs Smartmatic USA Corp., Smartmatic International 

Holding B.V., and SGO Corporation Limited.

C. Barr Flinn, Esquire, Kevin A. Guerke, Esquire, Timothy E. Lengkeek, Esquire, Lauren 

Dunkle Fortunato, Esquire, Michael A. Laukaitis II, Esquire, Young Conaway Stargatt & Taylor 

LLP, Wilmington, Delaware; Douglas D. Herrmann, Esquire, Troutman Pepper Hamilton 

Sanders LLP, Wilmington, Delaware; Bennet J. Moskowitz, Esquire, Troutman Pepper Hamilton 

Sanders LLP, New York, New York; Misha Tseytlin, Esquire, Troutman Pepper Hamilton 

Sanders LLP, Chicago, Illinois; Howard M. Cooper, Esquire, Joseph M. Cacace, Esquire, Josh L. 

Launer, Esquire, Maria A. Lombardi, Esquire, Todd & Weld LLP, Boston, Massachusetts. 

Attorneys for Defendant Newsmax Media, Inc.

DAVIS, J.
2

I. INTRODUCTION

On September 12, 2024, the Court issued a decision granting in part and denying in part 

Plaintiffs’ and Defendant’s cross-motions for summary judgment (the “Decision”).

1

 On 

September 13, 2024, Defendant Newsmax Media, Inc. (“Newsmax”) filed Defendant’s Rule 

59(e) Motion for Clarification, or in the Alternative, Motion for Reargument as to the Court’s 

Summary Judgment Ruling on Punitive Damages (the “Motion”).2 Plaintiffs Smartmatic USA 

Corp., Smartmatic International Holding B.V., and SGO Corporation Limited (collectively 

“Smartmatic”) filed Plaintiffs’ Opposition to the Defendant’s Rule 59(e) Motion for 

Clarification, or in the Alternative, Motion for Reargument as to the Court’s Summary Judgment 

Ruling on Punitive Damages (the “Opposition”) on September 15, 2024.

3

The Court has reviewed the Motion and the Opposition. The Court has determined that 

no hearing on the Motion is necessary. The Court holds that it has overlooked precedent or legal 

principles of Florida law that would have controlling effect, or otherwise misapprehended 

Florida law in a way that would have affected the Decision on the issue of punitive damages. 

Accordingly, the Court GRANTS the Motion.

II. RELEVANT FACTS

The Court has previously set out all relevant facts in the Decision.4

1 See Smartmatic USA Corp. v. Newsmax Media, Inc., 2024 WL 4165101 (Del. Super. Sept. 12, 2024) (D.I. No. 

1229). Hereafter, the “Decision.”

2 See D.I. No. 1235.

3 See D.I. No. 1248.

4 See Smartmatic USA Corp., 2024 WL 41651101, at *2-11. 
3

III. PARTIES’ CONTENTIONS

A. THE MOTION

Newsmax argues that it is entitled to summary judgment on punitive damages and moves 

for clarification or reargument on the issue.5 First, Newsmax contends that, “[a]s the parties 

have agreed ... under Florida law, a defamation plaintiff must prove express malice to recover 

punitive damages.”6 To further support the contention that the parties have “agreed on this point 

of law,” Newsmax refers the Court to the parties’ Proposed Pretrial Stipulation and Order (the 

“Pretrial Stipulation”).7 In the Pretrial Stipulation, “Smartmatic recognized that ‘to succeed on 

punitive damages and defeat any privileges, Smartmatic must also prove express malice, which 

will require additional evidence.’”8 Second, Newsmax claims that Florida’s standard jury 

instructions requires that a defamation plaintiff must prove express malice to support punitive 

damages claims.

9

 

B. THE OPPOSITION

Smartmatic denies that it uses the same definition of “express malice” as Newsmax.10 

Thus, Smartmatic disagrees with Newsmax’s contention that it has “agreed” that a defamation 

plaintiff must prove an “intent to harm” to recover punitive damages.11 Instead, Smartmatic

maintains that it utilizes the term “express malice” as an “imprecise shorthand term” “for a state 

of mind that is distinct from ‘actual malice.’”12 Smartmatic contends that even Florida courts 

5 See D.I. No. 1235 at 1.

6

Id.

7 D.I. No. 1218.

8 D.I. No. 1235 at 4; see also D.I. No. 1218 at 62.

9

Id. at 5.

10 See D.I. No. 1248 at 1.

11 Id.

12 Id.
4

“have long recognized that ‘express malice’ is an imprecise misnomer that confuses the issue of 

punitive damages....”13 

Next, Smartmatic argues that because the term “express malice” is unclear, the Florida 

punitive damages statute (the “Statute”) is the most accurate authority to determine the instant 

issue.14 Smartmatic contends that the Statute provides that a “specific intent to harm the plaintiff 

is not the only conduct that justifies punitive damages. Plaintiffs can recover capped punitive 

damages for less egregious conduct.”15 Smartmatic claims that under the Statute, punitive 

damages are appropriate if the fact-finder concludes that the defendant was guilty of intentional 

misconduct or gross negligence.

16

 Smartmatic proffers that “both of these are distinct from an 

intent to harm the plaintiff.”17 Smartmatic asserts that a specific intent to harm the plaintiff is 

“only required to recover uncapped punitive damages” under the Florida statute.18 Thus, 

Smartmatic asserts that even without a showing of express malice, “capped punitive damages are 

still available” to Smartmatic.19 

Smartmatic goes on to argue that the “plain language of the [Statute] ... trumps any 

common law conceptions of the legal standard....”20 Smartmatic highlights that the term 

“express malice” is not mentioned in the Statute, so imposing the additional requirement of 

intentional harm improperly ignores the Statute’s wording.21 “Accordingly, any Florida case law 

purporting to graft an ‘express malice’ requirement onto the statutory text is not good law.”22

13 Id.

14 Id. at 2.

15 Id.

16 Id. at 2-3.

17 Id.

18 Id. at 3.

19 Id.

20 Id. at 6.

21 Id. at 3.

22 Id.
5

Smartmatic finally argues that Newsmax’s argument relying on Florida’s pattern jury 

instructions for defamation is improper because, as of November 2021, “Florida no longer has 

any pattern jury instructions for defamation.”23 Smartmatic asserts that the Florida Bar 

“removed earlier published defamation instructions because portions of them were no longer 

accurate statements of the law.”24 Smartmatic, instead, urges the Court to consider Florida’s 

“operative punitive damages jury instruction that is still in effect [and] tracks the language of the 

Florida punitive damages statute.”25 Smartmatic provides that the operative Florida pattern jury 

instruction states, “Punitive damages are warranted against [defendant] if you find by clear and 

convincing evidence that [defendant] was guilty of intentional misconduct or gross negligence, 

which was a substantial cause of damage to claimant.”26

IV. LEGAL STANDARD

Superior Court Civil Rule 59(e) provides that a party may file a motion for reargument 

“within 5 days after the filing of the Court’s Order or decision.”27 The standard for a Rule 59(e) 

motion is well defined under Delaware law.28 A motion for reargument will be denied unless the 

Court has overlooked precedent or legal principles that would have controlling effect, or 

misapprehended the law or the facts such as would affect the outcome of the decision.29 

Motions for reargument should not be used merely to rehash the arguments already 

decided by the court,30 or to present new arguments not previously raised.31 In other words, a 

motion for reargument is “not a device for raising new arguments or stringing out the length of 

23 Id. at 4.

24 Id.

25 Id. at 5.

26 Id.

27 Super. Ct. Civ. R. 59(e).

28 Kennedy v. Invacare Corp., 2006 WL 488590, at *1 (Del. Super. Jan. 31, 2006).

29 Woodward v. Farm Family Cas. Ins. Co., 2001 WL 1456865, at *1 (Del. Super. Aug. 24, 2001).

30 Id.

31 Id.
6

time for making an argument.”32 Such tactics frustrate the efficient use of judicial resources, 

place the opposing party in an unfair position, and stymie “the orderly process of reaching 

closure on the issues.”33

V. DISCUSSION

A. “EXPRESS MALICE” IS WELL-DEFINED IN FLORIDA DEFAMATION LAW

In Florida defamation law, “express malice” is well-known to mean a specific intent to 

harm.34 “Express malice under the common law of Florida, ... is present where the primary 

motive for the statement is shown to have been an intention to injure the plaintiff.”35 

The Court need not rehash whether Smartmatic has met the standard for express malice. 

The Court has already found, in the Decision, that Smartmatic could not meet its evidentiary 

burden of proving express malice in this proceeding.36 Smartmatic’s argument that it uses the 

term “express malice” as an “imprecise shorthand term” to mean something else other than an 

intent to harm is unconvincing. The Court will not adopt a new meaning to a well-known legal 

standard under Florida law. 

B. FLORIDA REQUIRES BOTH ACTUAL MALICE AND EXPRESS MALICE FOR PUNITIVE 

DAMAGES

In Cable News Network, Inc. v. Black, the District Court of Appeal of Florida for the 

Fourth District plainly states that, in addition to actual malice,

[u]nder Florida common law, to recover punitive damages a defamation plaintiff 

must prove “express malice” or “common law malice”—that the defendant acted 

with a primary motive to injure the plaintiff personally.37

32 Bd. of Managers of the Del. Crim. Justice Info. Sys. v. Gannett Co., 2003 WL 1579170, at *1 (Del. Super. Jan. 17, 

2003) rev’d on other grounds, Gannett Co. v. Bd. of Managers of the Del. Crim. Justice Info. Sys., 840 A.2d 1232 

(Del. 2003).

33 See, e.g., 1 WOOLLEY ON DELAWARE PRACTICE §§ 584 and 614 (1906); Commission, PRACTICE BLACK’S LAW 

DICTIONARY (4th ed. 1951).

34 Nodar v. Galbreath, 462 So. 2d 803, 806 (Fla. 1984).

35 Id.

36 Smartmatic USA Corp., 2024 WL 41651101, at *16-17. 

37 Cable News Network, Inc. v. Black, 374 So. 3d 811, 816 (Fla. Dist. Ct. App. 2023).
7

Black is a recent decision—issued in 2023—on the issue of punitive damages in a defamation 

case. Moreover, Black is a case from a Florida appellate court. This Court is a trial court and 

must give substantial precedential weight to decisions by the Florida appellate courts.

Smartmatic argues that cases like Black are “not good law” because the Black court 

improperly gives priority to the common law over an applicable statute. Smartmatic, instead, 

asserts that the Court should apply the Statute when determining whether to allow for punitive 

damages. The Statute provides:

(1) In any civil action, no claim for punitive damages shall be permitted 

unless there is a reasonable showing by evidence in the record or 

proffered by the claimant which would provide a reasonable basis for 

recovery of such damages. The claimant may move to amend her or his 

complaint to assert a claim for punitive damages as allowed by the rules 

of civil procedure. The rules of civil procedure shall be liberally 

construed so as to allow the claimant discovery of evidence which 

appears reasonably calculated to lead to admissible evidence on the 

issue of punitive damages.38

(2) A defendant may be held liable for punitive damages only if the trier of 

fact, based on clear and convincing evidence, finds that the defendant 

was personally guilty of intentional misconduct or gross negligence. As 

used in this section, the term:

(a) “Intentional misconduct” means that the defendant had actual 

knowledge of the wrongfulness of the conduct and the high 

probability that injury or damage to the claimant would result and, 

despite that knowledge, intentionally pursued that course of 

conduct, resulting in injury or damage.

(b) “Gross negligence” means that the defendant’s conduct was so 

reckless or wanting in care that it constituted a conscious disregard 

or indifference to the life, safety, or rights of persons exposed to 

such conduct.39

38 Fla. Stat. §768.72(1).

39 Fla. Stat. §768.72(2).
8

The Court finds that Florida defamation law requires the presence of both actual malice 

and express malice for punitive damages. Black plainly provides Florida’s punitive damage rule

in defamation cases.40 Smartmatic fails to provide any supporting caselaw for its argument that 

Florida courts are not properly applying punitive damage law in Florida defamation actions. 

Moreover, Smartmatic’s argument on punitive damages (statute controls over the common law) 

is the position pressed by the dissent in Black.

41

 As such, the Florida Appellate Court in Black

considered this legal argument but chose not to follow it in the decision. 

The Court notes that most of the Florida caselaw on express malice concerns how express 

malice is related to qualified privileges; however, that is not the issue raised in the Motion. 

Thus, because there is controlling precedent, the Court need not consider the applicability of the 

Statute over the rule enunciated in Black.

42

Finally, the Court notes that Smartmatic did agree with Newsmax about this issue in the 

Pretrial Stipulation. In the Pretrial Stipulation and Order, Smartmatic provides the following 

language: “Third, to succeed on punitive damages and defeat any privileges, Smartmatic must

also prove express malice, which will require additional evidence.”43 So, the Court finds that 

Smartmatic understands Florida law on punitive damages and used the standard set out in Black

when Smartmatic provided its portion of the Pretrial Stipulation.

40 Black, 374 So. 3d at 816.

41 Id. at 819-22.

42 A review of Florida decisions does reveal that Florida courts are not always precise on how this issue is 

characterized. Some use the term “common law malice” and other use the term “express malice” when discussing 

the applicability of punitive damages in defamation cases. However, the law in Florida is that in order to sustain an 

award of punitive damages, the plaintiff must present that the defendant’s feelings toward the plaintiff evidenced ill 

will, hostility or evil intent. See, e.g., Matthews v. Deland State Bank, 334 So. 164, 166 (Fla. App. 1976) (“In order 

to award punitive damages in a libel action, ill will, hostility or an evil intention to defame and injure, must be 

present.”); see also Hunt v. Liberty Lobby, 720 F.2d 631, 650 (11th Cir. 1983). Black, however, clarifies that express 

malice and common law malice are the same for purpose of punitive damages in a defamation case. Black, 374 So. 

3d at 816.

43 See D.I. No. 1218 at 62 (emphasis supplied—not in original).
9

C. FLORIDA DOES NOT CURRENTLY PROVIDE DEFAMATION JURY INSTRUCTIONS

As a supplementary matter, the Court observes that Florida does not currently provide 

defamation jury instructions. The Civil Jury Instructions page on the Florida Bar website states, 

“The Committee removed earlier published defamation instructions because portions of them 

were no longer accurate statements of law. The Committee will consider bringing forth a revised 

set of instructions in the future. (Deleted November 19, 2021.)”44 Thus, the Court did not use the 

jury instructions, as argued by Newsmax, because Florida’s defamation jury instructions are not 

instructive on the issue here. 

VI. CONCLUSION

For the reasons stated above, the Court GRANTS the Motion. The Court will not allow 

the jury to consider the issue of punitive damages in the trial.

IT IS SO ORDRED

September 23, 2024

Wilmington, Delaware

/s/ Eric M. Davis

Eric M. Davis, Judge

 

cc: File&ServeXpress

44 Civil Jury Instructions, THE FLORIDA BAR, https://www floridabar.org/rules/florida-standard-juryinstructions/civil-jury-instructions/civil-instructions/#405 (last visited September 20, 2024).