The Dean v. NBC Universal case took an odd turn today when the plaintiff filed a notice of voluntary dismissal without prejudice. According to the filing, “[t]he Complaint has been refiled in the U.S. District Court for the District of Columbia due to the Court’s recent decision in 3M v. Boulter, No. 11-cv-1527 (RLW).”
The MSNBC defendants (Rachel Maddow, NBC and MSNBC) had previously moved to dismiss the suit, either because it failed to state a claim under Rule 12(b)(6) or under the DC anti-SLAPP statute. The plaintiffs had opposed that motion by attacking the constitutionality of the statute and by arguing that they had a likelihood of success on the merits. Their attack prompted a brief by the DC Attorney General to defend the statute, and was responded to by the defendants in their reply brief. All of those pleadings are pending before the Court.
The plaintiffs’ reason for moving to dismiss the suit, so that he can refile it in federal court, shows the troubling impact of that court’s 3M v. Boulter decision. As a result of that decision, which was appealed last week, a libel defendant cannot utilize the anti-SLAPP statute in federal court, while it can be employed in Superior Court, as shown in Lehan v. Fox. This results in the kind of naked forum shopping seen here.