The Legal Complexities in Rotenberg v. Politico—#1332 Might Surprise You!

Remember: Lawyers’ true superpower is the power to turn all questions into questions about procedure.

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 statute would apply there.

Nor can Rotenberg avoid this by refiling the lawsuit in federal court without the two individual defendants (who aren't really necessary defendants in any event). "For diversity jurisdiction to exist, no plaintiff may share state citizenship with any defendant," and "Unincorporated associations, including LLCs, have the citizenship of each of their members."

Contrary to what the Complaint says, Politico LLC and Protocol Media, LLC appear not to have been "incorporated," but to instead be, true to their names, LLCs; I checked on the Virginia State Corporation Commission's site, which showed each as a "Limited Liability Company." So if Allbritton, Grieve, or both are members of the LLCs, and if the member or members are D.C. residents, then the case would still be kicked out of federal court, and would have to be refiled in D.C. Superior Court.

I expect that, if my tentative research about Allbritton's and Grieve's D.C. residence is correct, the defendants will promptly move to dismiss on this jurisdictional ground; we should learn within a few weeks whether that indeed happens.

Comments

[twobaylorbears]

So, what you’re saying is that his lawyers had Fiss for Procedure.

[Eugene Volokh]

To be fair to Yale, the lawyer who signed the Complaint is a graduate of Cardozo Law School. But then “MR. JUSTICE CARDOZO took no part in the consideration or decision” of Erie R. Co. v. Tompkins, so maybe that’s it.

[DaivdBehar]

Procedure is the lawyer super power.

The English lawyer of the 13th Century felt deep shame if his case ever reached substance. This technique was taught to him by the French conquerors. The reason for that is to require a lawyer make his living, and to seek the rent. Imagine a bunch of Roberts type bullshitters, only fluently arguing in three languages.

If we allow you traitors to have your way, you will be arguing in the 20000 character alphabet of Mandarin Chinese, as the Commies take over our country. Try passing the bar exam in Chinese. No worry. Even if your Chinese is atrocious, adherence to party loyalty on your bar exam answer will get you a passing grade.

[emanate in my penumbra]

I started nodding along then your comment became feverishly chain-mail-ish

[DaivdBehar]

If you are having fun, my job is done.

[John F. Carr]

I know how to write 人 so I will win the personal jurisdiction battle against the average American who doesn’t.

[emanate in my penumbra]

I’ll have to take a look at Kavanaugh’s eerie SLAPP opinion. Seems fairly outcome determinative to me but—then again—Federal Courts sitting in diversity don’t have to adopt the more lenient summary judgement standards retained by many states.

[Straw Man Bad, Strawbridge Good]

Couldn’t the court order jurisdictional discovery to determine where Albritton’s and Grieve’s domiciles were at time of filing?

[Eugene Volokh]

In principle, jurisdictional discovery might be available, I think. But in this instance, if Albritton and Grieve are D.C. residents, I think they will just introduce evidence of their domicile themselves, and I doubt that much further discovery will be needed.

[Dr. Ed 2]

But, in this case, define “domicile.”

If A is a legal resident of DC and has a bed which sleeps in, located in DC — but spends 12+ hours per day across the river in Alexandria (VA), not just working there but eating a lot of his meals in restaurants there — essentially only returning to DC to sleep — then which is his actual domicile?

Assume for the sake of argument that of the 168 hours in a week, he consistently spends more than 85 of them in Virginia, and further that he has been doing this long enough for whatever time period exists to establish residency. Wouldn’t this establish his domicile in Virginia?

Cross-border commuting is a relatively new thing — and due to geology, NH & ME have become suburbs of Boston as roads running north don’t need to cross the Appalachians. But when we get to the situation where someone might be working way more than an 8 hour/5 day-week job, *and* where the restaurants/bars in Alexandria than in DC proper — when the majority of a person’s time is spent in Virginia — where does he really live.

DC is somewhat unique and the subway system nonchalantly covers three states — without telling you which state you are actually in. Silver Springs (MD) is another example, and like with Alexandria, someone could work, eat, & play there — only sleeping in DC…

[John F. Carr]

This isn’t like taxes where counting days determines the outcome. You can be a legal resident of a state where you do not spend a majority of your time. Intent is important. Where are you registered to vote? Where do you consider home? When you left D.C. for Iowa did you intend to return, or was your stay in Iowa of indefinite duration?

[Straw Man Bad, Strawbridge Good]

It would be interesting though if the hypothetical commuter got a girlfriend who lived right across from his job and he started spending the night at hers. Suppose he spent six nights a week there, left a toothbrush at hers, the works. Probably he still hasn’t formed the intent to remain indefinitely, but we’re getting closer. At the very least, it looks like a closer call.

[Straw Man Bad, Strawbridge Good]

Okay, maybe not that closer. I suppose there’s still the possibility that he’ll break up with the girlfriend–to say nothing of whether she plans to keep leasing there or the fact that our commuter is still paying for an apartment or paying the mortgage on a house in the District.

[Eugene Volokh]

My sense is that there is a lot of caselaw on these very subjects, and it creates lots of interesting hypotheticals in close cases. But there are also many cases that are not at all close; this case might well be one of them.

[Michael Masinter]

Pro tip #1 for lawyers — when attempting to plead diversity jurisdiction, plead the citizenship / domicile of each party, not his residence.
Pro tip #2 for lawyers — read the diversity jurisdiction statute and the handful of relevant SCOTUS cases before suing an LLC; as the OP notes, LLCs are not treated as corporations but rather as the sum total of their owners for citizenship purposes.
Fun tip for everyone — under Article Three diversity jurisdiction hinges on diversity of state citizenship, the District of Columbia is not a state, but by statute Congress treats citizenship in the District as state citizenship for purposes of diversity jurisdiction despite the seemingly plain language of Article Three. On to SCOTUS, where in a decision in which the holding can only be stated as the outcome, National Mutual Ins. Co. v. Tidewater Transfer Co., with differing majorities rejecting each alternative ground for the decision, the Court ruled that diversity jurisdiction extends to a claim between a citizen of a state and a citizen of the District of Columbia. Try teaching that case in a federal courts class. Summing to five trumps reasoning.

[tkamenick]

Except in every other circumstance, LLCs are treated as they actually are – corporate entities legally distinct from their owners. This is such a stupid rule.