The Volokh Conspiracy

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Avenatti v. Fox News Getting Funner (at Least for Law Geeks Like Me)

Third Circuit Judge Stephanos Bibas has been appointed to hear the case.


I blogged in November about this case:

Michael Avenatti sued Fox News and various Fox News personalities Thursday for libel, stemming from Fox's coverage of Avenatti's Nov. 2018 arrest for domestic violence. Much of the Complaint consists of general condemnations of Fox News, but on p. 23 the Complaint finally comes to the particular allegations about how Fox had supposedly defamed Avenatti in particular. (Ken White [Popehat] has more.) Here are some quick thoughts on why the lawsuit is likely going nowhere.

Since then, the case has been removed by defendants to federal district court on the grounds that the plaintiffs and defendants are citizens of different states; Avenatti, though, is trying to get it sent back to Delaware state court, by joining a defendant who is a California citizen, like Avenatti. You can see the motions linked here.

Of course, motions to remand are almost never the funner part. But just this morning, the court announced that Third Circuit Judge Stephanos Bibas has been appointed to sit by designation on the case. (Circuit Judges sometimes sit by designation in district court, which is often viewed as an interesting and useful break from their normal tasks, one that gives them more of a perspective on the district judges whose decisions they have to review.)

Judge Bibas is a former Supreme Court clerk, federal prosecutor, and University of Pennsylvania law professor, indeed one of the leading conservative criminal procedure scholars of his generation. His opinions thus tend to be unusually scholarly; not everyone likes opinions like that, but I certainly do. He is also an excellent writer; so unless the case is promptly remanded, I would expect especially interesting opinions now that he's at the helm. (Indeed, maybe he can make even a motion-to-remand opinion interesting.) Will keep you folks posted.