Rotenberg v. Politico LLC Dismissed on Jurisdictional Grounds
More than a year and a half after the briefing on the motion to dismiss in this case was complete, a decision has arrived: Judge Tanya Chutkan has held that the federal court lacks jurisdiction, because both plaintiff and some of the indirect members of the LLC defendant are D.C. citizens. To refresh readers’ recollection, let me reprise my April 4, 2021 article on the subject, where I suggested this would happen:
As I’ve suggested in my earlier posts (on the disclosure of private facts claim and the libel and false light claims), the lawsuit by Marc Rotenberg—former head of the Electronic Privacy Information Center—against Politico and Protocol is likely to be an uphill battle. This of course raises the question: Will Politico and Protocol be able to take advantage of D.C.’s anti-SLAPP statute? That statute, like others in various states,
- allows early dismissal of lawsuits based on speech “in connection with an issue of public interest,” if the court concludes that plaintiff’s claim is legally unfounded;
- generally suspends discovery until the motion is resolved;
- requires expedited hearings and rulings in such cases;
- provides for immediate appellate review; and
- presumptively requires a losing plaintiff to pay the prevailing defendant’s attorney fees.
Anti-SLAPP statutes are bad news for plaintiffs with iffy legal claims.
But wait: Though many federal courts have held that state anti-SLAPP statutes apply in federal lawsuits based on state tort claims, others have disagreed. And the D.C. Circuit, in an opinion by then-Judge Kavanaugh, held that the D.C. anti-SLAPP statute is a procedural rule that doesn’t apply in D.C. federal district court. Rotenberg sued in that federal court, so he needn’t fear the anti-SLAPP statute, right?
Not so fast! The lawsuit is in federal court on a “diversity of citizenship” theory—the claim is that plaintiff Rotenberg is domiciled in D.C. and defendants Politico LLC and Protocol Media, LLC are headquartered and “incorporated” in Virginia. But there are also two other defendants, Robert L. Allbritton and Tim Grieve, who run Politico and Protocol. And while their addresses are listed on the Complaint as being the same as the Virginia address of Politico and Protocol Media, my quick research suggests that they might be domiciled in D.C.
And if at least one of the defendants is a D.C. domiciliary, that means that there isn’t complete diversity of citizenship between plaintiff and defendants, and thus no federal jurisdiction. The federal court would have to dismiss the case, and while Rotenberg could refile in D.C. Superior Court, the anti-SLAPP statu
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