Another DC federal court judge recently held that the DC anti-SLAPP statute applies in federal court, and applied it to dismiss a libel and related torts action. This decision, in Forras v. Rauf, means that four DC federal district court judges have held that the DC anti-SLAPP statute applies in federal court, while one has held that it does not.
The facts that lead to the Forras decision are complicated, so stay with me. In 2010, Forras, who gained notoriety as a 9/11 first responder, sued Rauf in New York state court, alleging that Rauf’s plan to construct an Islamic community center near the World Trade Center site constituted nuisance, intentional and negligent infliction of emotional distress, and assault. Forras was represented by Larry Klayman.
Rauf’s motion to dismiss the lawsuit called Forras a “bigot,” among other choice statements. His attorney, Adam Bailey, filed an accompanying affidavit in which he stated, “I will not let the right to the free exercise of religion be confined by narrowness of vision and I will not let the right to erect a house of prayer to be torn down by blind bigotry.”
Forras reacted to the filings by filing a motion for sanctions, which the New York court orally denied on the basis that the statements were “related to their litigation” (and presumably thus protected by the judicial proceedings privilege). The New York court then granted Rauf’s motion to dismiss the lawsuit.
Forras and Klayman nevertheless filed an action in the DC Superior Court for defamation, false light, assault, and intentional infliction of emotional distress, based on the statements made in the New York action. They sued both Rauf and Bailey, who promptly moved to dismiss the action for a variety of reasons, including under the DC anti-SLAPP statute.
After securing three extensions of time to respond, Forras and Klayman filed an identical action in DC federal court, and sought to voluntarily dismiss the DC Superior Court action. Their reason for doing so was because of the 3M decision issued by the DC federal court, which held that the DC anti-SLAPP statute could not be applied in federal court. (If this stunt sounds familiar, it is because Klayman attempted it in the Dean v. Maddow action. There, the DC Superior Court conditioned dismissal on Dean paying the defendants’ legal fees and, when he failed to do so, dismissed the complaint with prejudice. That decision is on appeal).
Once the DC Superior Court reluctantly dismissed the action here, the DC federal action proceeded, with the defendants renewing their motion to dismiss. In it, they argued that the lawsuit was defective for multiple reasons, including: (a) lack of both subject matter and personal jurisdiction; (b) that it was filed after expiration of the statute of limitations; and (c) that it was legally insufficient. In addition to moving under Rule 12(b)(6), the defendants moved under the DC anti-SLAPP statute.
The plaintiffs’ opposition was confusing and unpersuasive, so I’m not going to try to summarize it; if you want to read it, it is here. The defendants apparently agreed that the opposition brief was weak, using only 10 (out of an available 25) pages to respond to the arguments in their reply brief.
Judge Rothstein’s opinion was succinct and to the point. First, she joins several of her colleagues in holding that the DC anti-SLAPP statute applies in federal court. While describing the 3M opinion as “thoroughly reasoned,” she finds that it “conflicts with the weight of authority” including “three Courts of Appeals” and “three other D.C. District Court judges.” Thus:
[f]inding the Courts of Appeals cases and the recent D.C. District Court cases persuasive, the Court concludes that the Anti-SLAPP Act empowers defendants with the substantive right to fend off SLAPP lawsuits. Therefore the Court will apply the Anti-SLAPP Act’s special motion to dismiss provisions in this case.
The remainder of the opinion is unsurprising. The Court finds that the claim is within the scope of the DC anti-SLAPP statute because it “arises from an act in furtherance of the right of advocacy on issues of public interest” (i.e., statements made in connection with a lawsuit). It holds that, to avoid dismissal, plaintiffs must show a likelihood of success on the merits, which it borrows from the Ninth Circuit to require “a standard comparable to that used on a motion for judgment as a matter of law.”
Applying this standard, the Court holds that the plaintiffs cannot carry their heavy burden, so their complaint must be dismissed. First, the core libel and false light claims failed because the challenged statements were protected by the judicial proceedings privilege in that they: (a) were made in the course of a judicial proceeding; (b) were contained in the motion to dismiss; and (c) were related to the underlying proceeding because they represented defendants’ “attempts to highlight Plaintiffs’ allegedly frivolous position.”
This conclusion appears to be correct. See, e.g., American Petroleum Inst. v. Technomedia Int’l, Inc., 699 F. Supp. 2d 258, 268 (D.D.C. 2010) (“The District of Columbia, ‘like the majority of other jurisdictions, has long recognized an absolute privilege for statements made preliminary to, or in the course of, a judicial proceeding, so long as the statements bear some relationship to the proceeding.’ The privilege applies, not only to attorneys, but to parties as well”); Messina v. Fontana, 260 F. Supp. 2d 173, 177 (D.D.C. 2003) aff’d, 439 F.3d 755 (D.C. Cir. 2006) (holding that the “relation test” is liberally construed to apply as long as the alleged defamatory statement “has some reference to the subject matter of the proposed or pending litigation” and that it affords absolute protection, without regard to the attorney’s motives).
Next, the opinion holds that the assault claims fails because the evidence did not show that the defendants intended to harm the plaintiffs, or that the challenged statements were threats, as required to support a cognizable claim. Third, the intentional infliction of emotional distress claim failed because the challenged statements were not “extreme and outrageous,” as required by law. Finally, the Court holds, all of the claims were time barred and plaintiffs could not “relate back” the statute of limitations to the institution of the Superior Court action. The result is that the complaint is dismissed and the defendants can seek fees.
Two interesting notes:
The Forras opinion explains that “[a]lthough D.C. Code § 16-5502 provides that a special motion to dismiss should be filed within forty-five days of the service of the claim, here Defendants moved promptly to stay this action because of the pendency of the Superior Court Action. As such, considering the circumstances under which the action was brought, the time to file the special motion to dismiss is equitably tolled and this motion is considered timely.”
In Sherrod v. Breitbart, of course, the DC Circuit held that the 45-day period in the DC anti-SLAPP statute could not be extended and that a motion made outside that period was untimely and properly denied. In Huntington v. Newmyer, the DC Superior Court similarly held that an anti-SLAPP motion made outside the 45 days was untimely, although it suggested that it might be willing to consider “a more flexible interpretation of the forty-five day framework” if it believed that the lawsuit was an actual SLAPP.
On the other hand, in Adelson v. Harris, the New York federal court excused an untimely anti-SLAPP motion under the Nevada statute because it was unclear what law might apply to the dispute, the defendants advised the Court and the parties that they intended to move under the Nevada anti-SLAPP statute if Nevada law applied to the dispute, and then promptly made such a motion.
The Forras’ court’s reasoning seems sound to me in these unique circumstances. Given that the plaintiffs filed the federal action while the prior action was still pending in Superior Court, it would have been a waste of resources to force the defendants to move in the federal action, until it was clear that federal court would be the appropriate forum.
Finally, for those of you keeping track at home, this makes Larry Klayman 0-3 in his battles against the DC anti-SLAPP statute. As noted above, Klayman’s client Bradlee Dean had his libel suit dismissed when he failed to pay the defendants’ fees as a condition for being able to pursue it in federal court. And Judge Collyer granted an anti-SLAPP motion against Klayman’s client (Joseph Farah), which was affirmed on appeal, albeit under 12(b)(6) only.
In both Dean and Farah, the appeals included attacks against the trial judge. It will be interesting to see if Klayman does so here