The Volokh Conspiracy

Mostly law professors | Sometimes contrarian | Often libertarian | Always independent

"A Fishing Expedition for the Loch Ness Monster"


In Rotenberg v. Politico LLC, former EPIC head Marc Rotenberg sued Politico LLC and Protocol Media LLC for libel in federal court, but the defendants are LLCs whose indirect members appear to be D.C. citizens, as Rotenberg himself is. As I read the cases on the subject of LLC citizenship, the rule is that an LLC's citizenship (unlike a corporation's) turns on the citizenship of each of its members. This means the case doesn't belong in federal court, and must instead be refiled in the D.C. Superior Court, where Rotenberg would likely face a successful anti-SLAPP motion on both the disclosure of private facts claim and the libel and false light claims.

Rotenberg also seeks jurisdictional discovery, but I doubt this will work, either, for the reasons given in Politico's reply; but here's a passage that particularly struck me:

Second, Plaintiff states that he also "seeks jurisdictional discovery to determine whether … the incorporation of Allbritton LLC [the LLC that is the sole member of Politico LLC and Protocol Media LLC, and the members of which in turn include D.C. residents] was intended to frustrate jurisdiction in this matter," because "Allbritton LLC was newly formed on April 7, 2020," and "[a]s alleged in the Complaint, it was Grieve's actions during this time that led to The Protocol and Politico's decision to publish" the challenged news reports. Opp. at 12.

In other words, Plaintiff hopes to find evidence that, before Defendants even published the reports at issue, Allbritton LLC was formed so that if Plaintiff should someday sue over news reports that did not yet exist, he could not bring his hypothetical claims in D.C. federal court. To call that a mere fishing expedition would be understatement—it is more like a fishing expedition for the Loch Ness monster.

Credit to Chad R. Bowman and Maxwell S. Mishkin of Ballard Spahr for the Loch Ness line, though a Google search reveals that it had been used on rare occasions in the past: in 2014 by University of Baltimore law professor Charles Tiefer, and in 2015 by Assistant Travis County Attorney Andrew Williams.