Free Speech

Libel Lawsuit Dismissed Under "Fugitive Disentitlement" Doctrine

The doctrine originated in criminal appeals by defendants who were fugitives, but it can also apply to civil cases -- here, where the federal court plaintiff has absconded with her and defendant's children in violation of a state court order.

|The Volokh Conspiracy |


From Judge Rodolfo Ruiz writing earlier this year in Vibe Ener v. Martin (S.D. Fla. 2019) (now on appeal):

In 2017, [Johanna Maria Vibe] Ener and [Pedro] Martin were parties to several disputes in Florida's Eleventh Judicial Circuit Unified Family Court and Domestic Violence Divisions …. On July 18, 2017, then-Judge Ariana Fajardo Orshan entered an Order Granting Defendant's Motion for Sanctions and/or Contempt …, finding that Ener "contemptuously, willfully, and deliberately violated the clear and express orders of [the] Court" by, among other reasons, failing to attend court-ordered mediation, refusing to communicate with the Court-appointed Guardian Ad Litem, and failing to comply with the Court's visitation order.

Additionally, Judge Fajardo Orshan found that Ener "has absconded with the [the Parties'] children while cutting off all communication with [Martin]."  The Contempt Order provided Ener with the opportunity to purge herself of the contempt by complying with the Court's orders and reimbursing Martin for the reasonable attorney's fees and costs he incurred because of Ener's contempt.

On October 31, 2017, over three months after the Contempt Order was entered, Judge Fajardo Orshan entered an Order of Referral to Law Enforcement … finding that Ener violated a Temporary Injunction. More importantly, the Referral to Law Enforcement authorized any Florida law enforcement officer to detain Ener if located in the jurisdiction. Ener was never detained pursuant to the Referral to Law Enforcement and is currently residing in the United Kingdom.

Despite being fully aware of the Contempt Order and the Referral to Law Enforcement in the State Court Proceedings, Ener filed the instant Complaint in this Court … on April 23, 2019 seeking upwards of $200,000,000.00 in damages from Martin and ten unidentified co-conspirators pursuant to six counts: Count I — Defamation, Count II — Invasion of Privacy, Count III — Breach of Contract, Count IV — Intentional Infliction of Emotional Distress, Count V — Civil Conspiracy, and Count VI — Abuse of Process….

[T]he Complaint warrants dismissal pursuant to the fugitive disentitlement doctrine. "The fugitive disentitlement doctrine limits access to courts by a fugitive who has fled a criminal conviction in a court in the United States."  Although the doctrine has traditionally been applied by the courts of appeal to dismiss the appeals of fugitives, district courts "may sanction or enter judgment against parties on the basis of their fugitive status."  And while the doctrine typically applies to criminal defendants, "the doctrine has also been applied where the fugitive was not a criminal defendant, but instead was a civil litigant who continued to ignore court orders and evade arrest." …

The rationale for the fugitive disentitlement doctrine includes "the difficulty of enforcement against one not willing to subject himself to the court's authority; the inequity of allowing a fugitive to use court resources only if the outcome is an aid to him; and the need to avoid prejudice to the nonfugitive party." …

To dismiss an affirmative claim pursuant to the fugitive disentitlement doctrine, the following three elements must be satisfied: (1) the plaintiff is a fugitive; (2) his fugitive status has a connection to his civil action; and (3) the sanction employed by the district court, dismissal, is necessary to effectuate the concerns underlying the fugitive disentitlement doctrine.  In order to be considered a fugitive for purposes of the fugitive disentitlement doctrine, "a party must either have 'absented himself from the jurisdiction with the intent to avoid prosecution[,]' … or constructively fled, i.e., 'depart[ed] for a legitimate reason from the jurisdiction in which his crime was committed but who later remains outside that jurisdiction for the purpose of avoiding prosecution….'" …

[Ener] absconded with Martin's two children in violation of various court orders and has remained outside the United States for purposes of evading arrest pursuant to the Contempt Order and the Referral to Law Enforcement in the State Court Proceedings. In this Court, Ener failed to appear at the Status Conference despite the Court confirming her availability and arranging for her to appear telephonically. Moreover, Ener's fugitive status has a direct connection to the instant action as many, if not all, of the allegations levied against Martin stem directly from the facts underlying the State Court Proceedings and the State Court Proceedings themselves.

Ultimately, dismissal is necessary to avoid the inequity of allowing Ener, a fugitive, to use court resources to aid only herself, as well as to avoid prejudicing Martin, who has not had access to his children since Ener fled the United States in violation of court orders…. [I]mplementation of the fugitive disentitlement doctrine is a reasonable and measured response to Ener's contumacious disregard for prior court orders in both the State Court Proceedings and before this Court. Ener cannot avail herself of the benefits of this Court while she openly flaunts her disregard for the authority of the state court. Equitable principles mandate that Ener be disentitled from calling upon the resources of this Court for determination of her claims….

I came across this order because someone using Mr. Martin's name (who may or may not be Mr. Martin or his agents) has asked Google to deindex a The Real Deal (South Florida Real Estate News) article about the original libel lawsuit—a request that I expect Google to reject, since nothing in the court order suggests that the story is libelous or otherwise a violation of Mr. Martin's legal rights. (It may be that The Real Deal ought to, as a journalistic matter, update the story to mention the dismissal of the lawsuit, but that's a separate matter. Compare Petro-Lubricant Testing Labs., Inc. v. Adelman (N.J. 2018), which takes the view that not reporting something that "'reflects ambiguously on the merits of the action' and is not a determination of whether the allegations are true or false"—there, a settlement, and here, a dismissal on grounds unrelated to the merits of the libel claim—is not libelous; see also Martin v. Hearst Corp. (2d Cir. 2015).)