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Nevada S. Ct. Rejects Libel Plaintiff's Attempt to Dismiss a Case While an Anti-SLAPP Motion is Pending
From Willick v. Sanson, decided Thursday by the Nevada Supreme Court.
Petitioners Marshal S. Willick and Willick Law Group (collectively, Willick) filed a complaint against respondents Steve Sanson and Veterans in Politics International, Inc. (collectively, Sanson), alleging that they made defamatory statements against Willick online. In response, Sanson filed a special motion to dismiss the action pursuant to Nevada's anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, NRS 41.660 [which provides for attorney fees if the defendant wins, but after a good deal of litigation and while a renewed anti-SLAPP motion was pending, Willick moved to voluntarily dismiss the case] …. The district court [rejected Willick's attempt] …. Willick … ask[s] us to vacate the district court's order….
[E]stopping Willick from voluntarily dismissing his case serves NRCP 41(a)(l)(A)(i)'s essential purpose in this instance…. Willick waited a long time—four years—before filing his notice of voluntary dismissal. Further, he filed this notice only after this court reversed a district court order favorable to his case, and one day after a failed mediation attempt. These events themselves happened after a hearing on the anti-SLAPP motion. By now, the merits of the anti-SLAPP motion's first prong have been thoroughly raised, determined, appealed, reviewed de novo, and remanded. Now, Willick and Sanson await the district court's determination on the motion's second prong.
"Nevada's anti-SLAPP statutes aim to protect First Amendment rights by providing defendants with a procedural mechanism to dismiss 'meritless lawsuit[s] that a party initiates primarily to chill a defendant's exercise of his or her First Amendment free speech rights' before incurring the costs of litigation." Here, at this point in the proceedings, Sanson has no doubt incurred litigation costs.
Given these unique and extreme circumstances, we conclude that Willick is estopped from dismissing his action with no consequences, as the litigation has reached an advanced stage after four years and a prior de novo appeal. Therefore, we conclude that the district court did not manifestly abuse its discretion by, or lack jurisdiction when, vacating petitioners' notice of voluntary dismissal. For these reasons, we deny Willick's petition for a writ of mandamus and prohibition.
Congratulations to Margaret A. McLetchie on the victory.
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Wow. Based on the procedural facts and history, I am … not surprised by the outcome….
But it has generally been the law that plaintiffs, even on the eve of trial (and sometime during) can choose to dismiss their claims. Plaintiffs are masters of their case and all that.
So this is surprising.
A plaintiff cannot dismiss a defendant’s counterclaims, though, and SLAPP motions are in many ways analogous to counterclaims. It doesn’t seem to me that the outcome should be surprising.
In many ways analogous … does not mean that they are counterclaims. In fact, I would say that they are in no way analogous.
You can’t dismiss the defendant’s counterclaims because …wait for it … the defendant, when they file the counterclaims, becomes a COUNTER-PLAINTIFF. And the counter-defendant cannot dismiss the counter-plaintiff’s claims by dismissing their own claims.
While I love anti-SLAPP motions, they are procedurally just motions to dismiss with enhanced procedural rules (usually) and sanctions (usually). That’s why the court is using this estoppel theory … which is pretty novel.
Maybe it’s novel. I don’t know.
But it certainly makes complete sense, given the design and purpose of anti-SLAPP legislation. If vexatious plaintiffs can work around the deterrence of anti-SLAPP laws and avoid the consequences of their actions merely by choosing to dismiss the case at the last minute, before the anti-SLAPP issues are finally decided, but after the respondent has gone to considerable time and expense to deal with the suit, then the anti-SLAPP measures lose much of their force.
I mean …. so?
Did either of you read the opinion? I did. I don’t necessarily agree with it, but it’s the standard “okay, this is a matter of right, but if there’s a lot of stuff that goes on (with stuff being undefined), then it would be unfair to just dismiss.” It’s just equitable principles. It’s completely unmoored from the text and the intent, and it’s borrowing from a case that is not well-regarded … saying the 1953 case (Harvey Aluminum) is not well-regarded is an understatement ….
Which … you know, equitable principles and procedural rules that are clearcut often don’t match that well. Especially because FRCP 41(a)(1) is the codification of earlier equitable principles that limited the earlier common law principle.
If you think this seems unfortunate, this is in a state that follow the federal rule. There are jurisdictions that still follow the old rule- you know, plaintiff can voluntarily dismiss REGARDLESS of an answer being filed. There are variations, but I know of jurisdictions that allow voluntary dismissal during trial …. So, yeah.
Anyway, bad facts make bad law.
You could take the view that the legislature implicitly repealed common-law and court rules which would result in a complete end run around the legislation.
The result could be regarded as an example of liberal statutory construction attempting to effect the stated legislative intent, rather than a bunch of disembodied equitable principles attempting to achieve what the judges personally think is fair.
The court has an opportunity to end a dispute. Both courts choose to churn the case, mostly to get the lawyers paid, and to generate even more lawyer fees. This court should be sued for fraudulent case churning, and the judges should be fired for corruption.
The deeper fault is the lack of loser pays.
Someone asked, would you like to pay for OJ’s legal expenses, after he won his criminal trial?
Eugene, at the end of this piece, your congratulations to the lawyer has been placed alongside the quotation sidebars, making it appear like it’s part of the opinion. Was the lawyering so good that the court took the unusual step of offering its congratulations to winning counsel?
Whoops, fixed, thanks!
Harvey Aluminum, the 1953 2nd circuit case that furnished the “advanced litigation” exception to FRCP 41(a) dismissal by notice (Nevada’s rule is a carbon copy, so it finds federal precedent persuasive) hasn’t been well received by the other circuits. They acknowledge that there may be extreme cases where an exception to the literal rule might be appropriate, but consistently find Harvey distinguishable. Even the 2nd has cabined it in the intervening decades, so it is good to see it hasn’t been completely neutered. Four years of litigation should be “advanced” by anybody’s definition.
Why? It’s an absolute right. The problem is Harvey (and this case).
If the issue is anti-SLAPP, then just have the standard changed; provide a similar safe-harbor provision (a la sanctions) if that is really what it’s about. Or change the Nevada equivalent of FRCP 41 to include anti-SLAPP motions as precluding voluntary dismissal without a court order.
It is a court-created right that, in (in)appropriate circumstances like these, can be used to frustrate legislation. I believe when that happens the rule should lose. I appreciate that you and a half dozen other circuit courts of appeal don’t agree.
Uh, no. It’s not a “court created right.”
It’s a common law right. Prior to any court-created rules, the plaintiff always had the absolute right to dismiss the suit without prejudice prior to judgment.
“The right to dismiss, if it exists, is absolute. It does not depend on the reasons which the plaintiff offers for his action.” In re Skinner & Eddy Corp., 265 US 86 (1924).
” It may also be conceded that as a general rule, a complainant in an original bill has the right at any time upon payment of costs to dismiss his bill.” Chicago & Alton R. Co. v. Union Rolling Mill Co., 109 U.S. 702 (1884) (surveying multiple authorities).
The general rule that you can dismiss at any time, other than when a counter-complaint has been filed or when there has been a judgment, is in numerous places, such as-
“The plaintiff is allowed to dismiss his bill on the assumption that it leaves the defendant in the same position as he would have stood if the suit had not been instituted; it is not so where there has been a proceeding in the cause which has given the defendant a right against the plaintiff.” Cooper v. Lewis, 2 Phil. 178, 41. Eng. Reprints 909 (Ch. 1847)
I’m sure people can go even further back- but this all predates written rules of procedure.
There is no such thing as an absolute right.
If a plaintiff obtains a favorable order from the district court (reversed by an appellate court), how SLAPPable is the plaintiff’s conduct?
I do not know that answer, but an original victory seems relevant to a SLAPP analysis.
The initial victory was with respect to the SLAPP analysis.
Are you suggesting it should carry weight in spite of having been reversed?
I don’t care enough to investigate further, especially where the reports are difficult to follow.
So why not dismiss the case pending the outcome of the SLAPP motion?
Presumably, the SLAPP motion seeks to dismiss the case, after awarding fees (if appropriate). So, both sides are trying to dismiss the case, and the only issue is who will be paying defendant’s lawyer. Why not settle the one issue they have left, and deep-six the case?
We’re waiting for a decision on a similar issue by Pakistan’s top court. Can the Prime Minister avoid a vote of no confidence by preemptively dissolving Parliament?