The Volokh Conspiracy

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Free Speech

Marc Rotenberg v. Politico LLC Seems Likely to Get Thrown Out of Federal Court


I blogged a few weeks ago about a COVID-related libel and privacy lawsuit by former Electronic Privacy Information Center head Marc Rotenberg against Politico, LLC, Protocol Media, LLC, and Robert L. Allbritton and Tim Grieve (who run Politico and Protocol). One of the things I noted was the possible jurisdictional problem: The lawsuit is in federal court on a "diversity of citizenship" theory, which doesn't work if plaintiff and any of the defendants share the same state citizenship ("state" here including D.C.); and both Rotenberg and, it appeared, Allbritton or Grieve or both were D.C. citizens.

A week ago, Judge Tanya S. Chutkan noted this problem, and ruled:

Plaintiff brings this diversity action against two corporate entities and two individuals. However, the venue, jurisdiction and parties sections of the Complaint do not set forth the facts necessary to establish that this court has jurisdiction pursuant to 29 U.S.C. Section 1332. Plaintiff has not alleged the states where the individual defendants are citizens. Additionally, Defendant has not alleged where Politico LLC has its principal places of business, nor where Protocol Media, LLC is incorporated or has its principal place of business. Accordingly, by May 5, 2021 Plaintiff shall file an Amended Complaint that contains the facts necessary for this court to establish jurisdiction.

Yesterday, Rotenberg's lawyer responded by voluntary dismissing the individuals, and refiling an Amended Complaint asserting that each LLC defendant is "a Delaware corporation." But as best I can tell, that was in error: They are indeed registered on the Delaware Department of State Division of Corporations site, but as LLCs, not as corporations.

"Unincorporated associations, including LLCs, have the citizenship of each of their members," which defeats diversity jurisdiction if any of them have the same citizenship as the opposing party. And the Notice of Removal in a different case against Politico—Patel v. Politico, LLC (E.D. Va. Nov. 26, 2019—notes that Politico LLC is indeed an LLC, and its members include several D.C. citizens. (That case was indeed eventually remanded to state court, precisely because it later turned out that plaintiff there was a D.C. citizen, as were some of Politico's members.) I'm pretty sure that defendants' lawyers will move to dismiss on jurisdictional grounds, and I don't see what Rotenberg's lawyer will be able to say in response.

Of course, Rotenberg's lawyer can re-file in D.C. Superior Court, but that would be mighty perilous: As I've suggested in my earlier posts (on the disclosure of private facts claim and the libel and false light claims), the lawsuit is likely to be an uphill battle. And D.C.'s anti-SLAPP statute makes matters perilous for plaintiffs with weak libel and privacy claims; 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.

I'm skeptical that Rotenberg will want to risk that, but I might be wrong.