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Another Plaintiff Voluntarily Dismisses Suit After anti-SLAPP Motion Is Filed

Posted on June 10, 2013 by Leslie Machado

Last month, I wrote about an anti-SLAPP motion filed by a Charlottesville, Virginia newspaper.  The plaintiff’s opposition was due last week.  

Instead, on June 6, he voluntarily dismissed his complaint and, the next day, the Court acted on the notice and closed the case. 

This is not the first time this has happened in this case.  As noted here, after this same plaintiff initially filed the Complaint in Virginia state court in September 2012, he then voluntarily dismissed it the next day. 

This dismissal, however, likely means the end of the lawsuit.  Under Federal Rule of Civil Procedure 41(a)(1)(B), a notice of dismissal is “without prejudice” (meaning that the suit can be refiled again).  The same rule provides, however that, “if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits.” 

Interestingly, this is the second plaintiff who voluntarily dismissed a defamation lawsuit when faced with an anti-SLAPP motion.  In September 2011, Dan Snyder dismissed his suit after the City Paper filed an anti-SLAPP motion. 

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Superior Court Judge Grants District of Columbia’s anti-SLAPP Motion against Former Employee

Posted on June 3, 2013 by Leslie Machado

Last week, another DC Superior Court judge granted an anti-SLAPP motion.  This motion was filed by the District of Columbia in response to a defamation/related torts lawsuit brought by a former employee: Eric Payne.  (For prior discussions on this suit, see this post discussing the DC opening brief; this post discussing Payne’s opposition brief; and this post discussing DC’s reply brief).  You can also find news stories about the lawsuit here and here, and an editorial that is critical of DC’s anti-SLAPP motion here).

This is the second anti-SLAPP motion that has been granted by a DC Superior Court judge, joining Lehan v. Fox.  An anti-SLAPP motion was denied by another DC Superior Court judge in Newmyer v. Huntington and anti-SLAPP motions are pending in two other DC Superior Court cases: Mann v. National Review and Campbell v. CGI Group.

The Payne court’s opinion first finds that the suit arose from protected activity because the challenged statements – about the alleged reasons why Mr. Payne was terminated by the District of Columbia – were made in connection with a pending lawsuit and on an issue of public interest (“actions by a government agency, a government official and a government employee’s conduct”).  Accordingly, it turns to whether Mr. Payne could show that he was nevertheless going to prevail on the merits. 

CONTINUE READING . . .

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Newspaper’s anti-SLAPP Motion Potentially Raises Issue of Whether Statute Applies to Action Arising Under Foreign Law

Posted on May 15, 2013 by Leslie Machado

Another newspaper has moved under DC’s anti-SLAPP statute to dismiss a complaint alleging libel and related torts.  (As I wrote on the two-year anniversary of the statute, it is noteworthy how many movants have been “established” media).

CONTINUE READING . . .

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Does Detention for Immigration Violation Toll Libel Statute of Limitations?

Posted on May 6, 2013 by Leslie Machado

In response to the anti-SLAPP motion filed by The Atlantic and its correspondent, George Boley has filed his opposition brief and the defendants, in turn, have filed their reply brief.  The briefs are relatively routine for this type of libel case, with Boley arguing that:

  • he has adequately plead facts showing actual malice (and the defendants arguing that he has not);
  • defendants are not entitled to the fair report privilege because some of the challenged statements were not based on official records (while they argue they were all based on court filings or official reports);
  • the reports on which the story was based were wrong, have never been challenged in court and have been disputed by numerous other Liberian government officials (while the defendants argue this is irrelevant under the fair report privilege).

CONTINUE READING . . .

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Is Ninth Circuit Going to Revisit Whether California anti-SLAPP statute applies in federal court?

Posted on April 23, 2013 by Leslie Machado

While we wait for the DC Circuit to resolve whether the DC anti-SLAPP statute applies in federal court (either in Sherrod v. Breitbart or Farah v. Esquire), two judges on the Ninth Circuit have suggested that court should revisit its prior decisions on whether the California anti-SLAPP act applies in federal court.

The surprising statements came in last week’s opinion in Makaeff v. Trump University.  In that lawsuit, Ms. Makaeff brought a putative class action against Trump University, alleging that it engaged in deceptive business practices.  Trump University filed a counterclaim against Ms. Makaeff for defamation.  She moved to dismiss that counterclaim under California’s anti-SLAPP statute.  The federal district court held that the challenged statements arose from protected conduct under the statute, but that Trump University had demonstrated a reasonable probability of prevailing on the merits, thus defeating the anti-SLAPP motion.

CONTINUE READING . . .

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Mann and National Review Spar Over anti-SLAPP burden and related issues

Posted on April 15, 2013 by Leslie Machado

In the libel squabble between Michael Mann and National Review, Mann has filed his response to the defendants’ anti-SLAPP motion, and they, in turn, have filed their reply brief. Now that the briefing is complete, it is clear that there are several issues in serious dispute between the parties.

First, they disagree on the burden imposed upon Mann to avoid dismissal.  The statute provides that, if the moving party satisfies the statute’s elements, the suit must be dismissed unless the non-moving party can show that it is “likely” to succeed on the merits.  

CONTINUE READING . . .

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The DC anti-SLAPP Statute: A Two Year Retrospective

Posted on April 3, 2013 by Leslie Machado

It has been two years since the District of Columbia’s anti-SLAPP statute first became effective.  To date, anti-SLAPP motions have been granted in a Superior Court case (Lehan v. Fox), denied in a Superior Court case (Newmyer v. Huntington), granted in a federal court case (Farah v. Esquire), and denied in two federal court cases (Sherrod v. Breitbart and 3M v. Boulter).  Anti-SLAPP motions have also been made in five other Superior Court cases:

  • Dean v. NBC Universal (dismissed as a sanction for the plaintiff’s refusal to pay the defendants’ fees in order to refile the suit in federal court; currently on appeal);
  • Payne v. District of Columbia (libel suit arising out of statements about the termination of the plaintiff’s employment; an anti-SLAPP motion is pending);
  • Campbell v. CGI Group, Inc. (the plaintiff alleges that defamatory statements by the defendants led to her termination as a DC employee; an anti-SLAPP motion is pending); and
  • Mann v. National Review (the plaintiff alleges that the defendants libeled him in a blog post; an anti-SLAPP motion is pending).

And anti-SLAPP motions are currently pending in Abbas v. Foreign Policy Group and Boley v. Atlantic Monthly Group, in DC federal court.  

One of the interesting developments has been the type of defendants that have invoked the statute.  In the statute’s legislative history, the DC Council noted that a typical SLAPP suit involved “an effort to stop a citizen from exercising their political rights, or to punish them for having already done so.”  It cited an example provided by the American Civil Liberties Union of the Nations Capitol which involved an alleged retaliatory lawsuit by a developer against grassroots advocates who opposed his efforts.  The Reporters’ Committee for Freedom of the Press provides a similar example of neighbor vs. neighbor litigation as the reason why states should enact anti-SLAPP legislation.

CONTINUE READING . . .

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Sherrod Oral Argument Suggests DC Circuit Might Not Resolve Erie Issue

Posted on March 15, 2013 by Leslie Machado

Unfortunately, I was not able to attend this morning’s oral argument in the Sherrod appeal.  The Legal Times’ summary is here.  The Washington Post summary is here.  And another summary is here.  Both the Legal Times and the Washington Post articles point out that there are a variety of other issues in Sherrod that could prevent us from getting a definitive answer on whether the statute can be used in federal court, including whether the motion was timely made, whether it applies to conduct that pre-dated the statute’s effective date, or whether it can be immediately appealed (I’ve discussed all three issues here).  

As I’ve written before, if Sherrod doesn’t resolve “the Erie question,” it is also teed up for the DC Circuit in Farah v. Esquire.  Stay tuned.

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The Atlantic Responds to Defamation Suit With Anti-SLAPP Motion

Posted on March 7, 2013 by Leslie Machado

The Atlantic Monthly Group and a correspondent have filed an anti-SLAPP/Rule12(b)(6) motion in DC federal court in response to a Complaint by George Boley.  The pro se Complaint, filed January 22, 2013, alleges that statements in a January 2010 article and February 2010 follow-up post on the Atlantic website defamed him by stating that he was a warlord in his native Liberia.  It seeks compensatory and punitive damages. 

The defendants’ brief in support of their anti-SLAPP and Rule 12(b)(6) motions first chronicles Boley’s tenure as leader of the Liberian Peace Council, citing to and quoting from a U.S. State Department report on Liberian Human Rights Practices and the Liberian Truth and Reconciliation Commission to support its thesis that the articles were accurate.  The defendants also assert that Boley has a history of using litigation to attack critics. 

At their core, the defendants argue, the articles accurately described “official investigations into Boley’s war crimes” and “report widely available facts.”  Consequently, they argue, the defamation suit must be dismissed because it is barred by: (a) the one-year statute of limitations; and (b) the fair report privilege, which protects the reporting of official reports and proceedings.  They also argue that the Complaint does not plead facts in support of the required elements of falsity or fault, and should be dismissed for these additional reasons. 

Interestingly, the defendants’ brief first argues that dismissal is appropriate under Rule 12(b)(6) and, almost as an afterthought, argues that dismissal is also appropriate under the anti-SLAPP statute.  This is undoubtedly by design; rather than get into a protracted dispute over whether the DC anti-SLAPP statute applies in federal court (the so-called “Erie” issue from Sherrod v. Breitbart, Farah v. Esquire and Abbas v. Foreign Policy Group, LLC), the defendants are arguing that, even under the more generous Rule 12(b)(6) standard, the Complaint still fails to state a claim and must be dismissed.  This is the same strategy that Esquire has taken at the DC Circuit, arguing to that Court that “[t]he simplest basis on which to affirm the dismissal of Plaintiffs’ claims is under Fed. R. Civ. P. 12(b)(6).”

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Will Farah v. Esquire Appeal Resolve “Erie” Question?

Posted on March 4, 2013 by Leslie Machado

While the Sherrod v. Breitbart appeal has attracted a lot of attention at the DC Circuit, there is another case that could resolve whether the DC anti-SLAPP statute applies in federal court: Farah v. Esquire.  There, the plaintiffs/appellants are appealing the district court’s decision granting the defendants’ anti-SLAPP and 12(b)(6) motions and dismissing their false light, defamation, and Lanham Act causes of action.

As alleged in the Complaint, a May 2011 post on Esquire’s politics blog contained fictional statements by publisher Joseph Farah that he would destroy the first-run print of Jerome Corsi’s book, Where’s the Birth Certificate? The Case that Barack Obama is not Eligible to be President; pull copies from bookstore shelves; and refund the purchase price to customers, all because he could no longer publish the book “in good conscience” after the release of Obama’s long-form birth certificate. (The blog post is still available here). 

CONTINUE READING . . .

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