If the judge grants the defendant’s petition for dismissal, which side won the case?
Do you need more time? Or maybe CivPro?
Here on planet earth, the defendant is the dominant party. Yes, even if the plaintiff “voluntarily” dismisses the case for 14 days to appeal before the trial judge issues a “final order”.
Can you imagine which attorney at Razzledazzle Libelslander actually filed a motion alleging that his client incapacitated the court’s jurisdiction by dismissing their lawsuit before a final judgment was given?
Obviously, it is Devin Nunes’ favorite attorney at Earthlink, Steven Biss, who is best known for suing a Twitter cow, with the assistance of Roger Stone’s attorney Robert Buschel. Last year these two legal eagles sued the Daily Beast on behalf of right-wing “personality” Dan Bongino, who was cruelly defamed by a story about the end of his relationship with NRATV (RIP) and who needed $ 15,000,000 to get him back to health do.
Or maybe not. On August 6, US District Judge Jose Martinez granted the beast’s motion to reject it because Bongino’s case was procedurally and factually flawed in all respects. Worse still, the court forgave the Beasts legal fees for defending themselves against such a bullshit SLAPP suit.
Not so quickly, argued Biss and Buschel. Bongino had until August 20 to appeal, but instead filed a motion to dismiss the case on August 10, so there was no winner here and the court should just get started.
If we hadn’t seen it with our own eyes:
The court has no substantive jurisdiction to examine the defendant’s application. On August 6, 2020, the court issued an order approving the defendant’s motion for dismissal with permission to amend and the defendant’s motion for reimbursement of costs and fees under Florida’s Anti-SLAPP Act “Fees Based on Plaintiff’s Original Complaint “” Prospectively “was granted. Since the court gave the plaintiff an opportunity to amend, the court withheld a final decision on the matter. [ECF No. 23]. On August 10, 2020, the plaintiff filed a notice of voluntary dismissal under Rule 41 (a) (1) (A) (i) of the Federal Code of Civil Procedure in good time. On August 11, 2020, the Court of Justice issued a final dismissal order and closed the case. The plaintiff had an “absolute” right to voluntarily dismiss the case under Rule 41 (a) (1) (A) (i) prior to the court’s final decision on the defendant’s motion for reimbursement of fees under Florida Exercised SLAPP law. Carter v USA, 547 F.2d 258, 259 (5th Cir. 1977) (“A plaintiff has the absolute right to dismiss a claim before the defendant has submitted a response or a summary judgment.”). The District Court was relieved of substantive jurisdiction after the plaintiff filed the notice of voluntary dismissal.
That … didn’t go over.
“The plaintiff relies on a single 1963 case, American Cyanamid Company v. McGhee,” notes US Judge Shaniek M. Maynard, before citing several cases over the past 57 years that “mak[e] It is clear that a court can award attorneys’ fees even if a case has been voluntarily dismissed. “Her honor was no longer impressed with the claim that Bongino had somehow drawn the Beast.
“It is not a moment when Judge Martinez has granted the defendant’s motion unscathed because when a district court dismisses a suit against a defendant, the defendant is the dominant party, even if that dismissal is unscathed,” she wrote. “Accordingly, in this case the defendant is the predominant party and is entitled to fees.”
Yeah no shit.
So Bongino is on the hook for $ 31,835.00 which is a ridiculously low figure for 91 man hours from Davis Wright Tremaine LLP. But even with the bath he’s investing in Parler, the man’s posts are routinely in the top ten Facebook performers and he has tons of listeners for his podcast so he can afford it.
Ah great. Sometimes you own the libraries, sometimes you own the libraries.
Bongino v Daily Beast Company, LLC [Docket via Court Listener]
Elizabeth Dye lives in Baltimore, where she writes on law and politics.