The Volokh Conspiracy

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

Free Speech

Plaintiff Accused of Being "Litigious" Sues for Slander

He loses.


From Dever v. Dugan, decided by a panel of the Vermont Supreme Court (Harold E. Eaton, Jr., Karen R. Carroll & Nancy J. Waples) on June 12:

Plaintiff was performing work at Amy's Bakery in Brattleboro…. Dugan owned the property where the business was located.

Plaintiff alleged in his complaint that Dugan stated "that, as owner of [the] property, he had the right to approve or refuse, anyone doing work in or on his building," and "he would not allow [plaintiff] to work in his building" because "[plaintiff] had sued people for whom he had worked in the past," and "there was a good chance" that plaintiff would sue them and "he didn't want to take that chance." According to plaintiff, Dugan told Comerchero [who owned Amy's Bakery] that if she did not terminate plaintiff immediately, he would evict her.

Plaintiff also alleged that Dugan gave Comerchero a list of cases that plaintiff had been involved in for use in a breach-of-contract case that plaintiff brought against her. While plaintiff referred to this list of cases as "malicious defamation," there was no allegation that plaintiff was not in fact involved in these suits.

The trial court rejected Dever's slander claim:

It found the statement that "[plaintiff] has sued people for whom he worked in the past" to be a true statement. The court also noted that "the publication need not be literally true to receive protection. It is enough if the publication is substantially true."

The court found that the second part of the statement, "there is a good chance that [plaintiff] would sue" Comerchero or Dugan or both, and "he didn't want to take that chance" did not assert a fact. It was an opinion about what the future might hold….

The court also rejected plaintiff's assertion that calling him "litigious" was slanderous…. The court looked to a definition of the term "litigious" and concluded that, while the term might have a derogatory implication in common usage, considering someone "litigious" was a statement of opinion, not fact….

And the Vermont Supreme Court panel agreed, concluding, among other things,

We further agree with the trial court that the term "litigious" is an expression of opinion.

There's more in the court's opinion.