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.

Comments

[Mr. Bumble]

It would seem that by filing this action the plaintiff, in fact, confirms he is litigious.

[SRG2]

Yes indeed. I am reminded of a case in Singapore where someone alleged that senior politicians there would sue journalists for libel as a means of suppressing free speech and he was promptly sued for libel by one such politician.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

I wonder what they discussed in private, and how tempting it was to remark on this in the decision itself. There must be some juicy Latin phrase addressing hoisting oneself upon one's own petard. But there must also be something similar from the opposite tack, where one's right to sue is chilled by the fact of suing being harmful to the case.

[Flight-ER-Doc]

Ms. Streisand, paging Ms. Streisand....

[ReaderY]

If there was ever a case where somebody managed to plead himself out of court, this would be that case.

[Dr. Ed 2]

I would consider suing for interference with contract or whatever that's called.

Threatening to evict a business because of who that business decides to do business with is outrageous. Requiring the tenant to post a bond to indemnify the landlord and/or contractor to agree to waive right to sue, MAYBE (IANAA) but to outright prohibit him from gainful employment?

Now the suit may have been been brought for the wrong reason, but I think he has solid grounds to sue on the interference with contract or whatever that is called.

[Flight-ER-Doc]

seems reasonable if a tenant decides to hire someone that is a threat to the owner of the property.

As long as that is a reasonable consideration - not as a route to discrimination on racial grounds, etc..

[Dr. Ed 2]

How about discrimination on non-protected grounds, e.g. political affiliation? How dare you hire that dirty hippie to work in YOUR LEASED space?

Now I'm presuming there is some sort of "build out" clause to the commercial lease because a restaurant usually leases a shell and then "builds out" to meet its needs in terms of counter space, ovens and the rest. And there are "build out" building permits and the rest. Unlike an apartment, it's KNOWN that the commercial tenant is going to need to modify the interior of the leased space to meet the tenant's needs -- and (usually) the landlord ao

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

Or maybe freedom of association keeps government out of it altogether. If the tenant doesn't like the landlord's policies, get a different landlord and sign a better contract next time.

What's this guy's history of suing? If he sues the landlord, it's the landlord's business to keep him from working there. If he sues tenants, the tenant should thank the landlord for bringing this to the tenant's attention.

Stop trying to drag government into everything.

[David Nieporent]

I would consider suing for interference with contract or whatever that’s called.

From the decision:

Plaintiff offers no persuasive argument to the contrary. Plaintiff fails to show that he alleged a tortious interference with contract claim below. See In re S.B.L., 150 Vt. 294, 297 (1988) (explaining that appellant bears burden of demonstrating how trial court erred warranting reversal, and Supreme Court “will not comb record searching for error”);

[TextFirst]

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

I guess this is now the law in Vermont, but I feel it's not right. Whether someone is litigious has at least something of a factual basis, in that you can check whether they've been a party to litigation. If I say a 50 year old man who has never been a party to a lawsuit is litigious, then I'm implicitly (falsely) stating he's been a party to litigation *at least once*. There might not be damages or there might be some other defense, but still. In this case, the Court should have ruled that calling someone litigious is a factual statement, but that it's true in this instance (and while I wouldn't rule on matters not before me, I'd probably end up holding that someone can be "litigious" if they've been the plaintiff in litigation at least once).

I see this clown argued his case pro se, so he may not have argued this right and the Court appears not to have spent too much time disposing of this matter. In much the same way hard facts create bad law, bad advocacy creates false dicta.

[Bored Lawyer]

I agree with you to an extent. For someone who has never filed suit, "litigious" is indeed factually false. I would say even one suit. When you get to five, I think it becomes a matter of opinion.

[Mr. Bumble]

Does the outcome of the suits weigh on whether a person may be considered litigious?

[Flight-ER-Doc]

I'd say no....the number of times one is listed as a plantiff seems dispositive.

[KenveeB]

I don't think you have to get up to five. Maybe you don't think someone's actually litigious until they hit five, but others may think two or three is enough. I'd say it also depends on how closely together they're filed. Some people might think an egregiously stupid enough case qualifies even if it's only one. Everyone will have their own opinion, so unless someone's never filed a lawsuit, I think you could call it a matter of opinion.

[Dr. Ed 2]

Look at WalMart which has (had) a corporate policy of taking every claim against it to court, even though it would be cheaper not to.

[Mr. Bumble]

They were/are responding to suits against them. Not the same.
Settling claims only leads to more claims.

[ReaderY]

I think that if a court has the power to sanction someone for something, than that something must be a matter of fact. Given that courts can sanction “frivolous” or “vexatious” litigants, those terms must be terms of fact. How can a judge have the power to sanction someone over a matter of opinion? There could be no defense. A defense to a charge consists of demonstrating the charge is false or doubtful, which requires the charge to involve fact.

So if a state permitted sanctioning “litigious” plaintiffs, I think if it declared “litigious” to be a matter of opinion for libel purposes a sanctionee would have an excellent case that any sanction for being litigious for court-supervision purposes would be unconstitutional.

[Bored Lawyer]

"Litigious" is not the same thing as "vexatious" or "frivolous."

I just got a bill from the NJ Dept. of Taxation that says I owe $ 90, because I underpaid last year by $ 22, plus another $ 68 in interest.

Pretty outrageous. I could file suit, but it's not worth my time. If I did file suit, I think I could be characterized as "litigious" but not "frivolous" or "vexatious."

[Bwaaah]

Yes. And depending on the reasoning of that case, I would say that being a party to even one case *can* be a reasonable basis for formulating an opinion that a party is "litigious".

[Dr. Ed 2]

Interest alone? Not penalties?
That would be an APR in excess of 300%!

Pray tell, HOW did they calculate that?

[David Nieporent]

I guess this is now the law in Vermont, but I feel it’s not right. Whether someone is litigious has at least something of a factual basis, in that you can check whether they’ve been a party to litigation.

1) Even if your argument that it would be defamatory to label someone who never filed a lawsuit as litigious were valid, that doesn't fit the facts here; the guy had sued people before.
2) Prof. Volokh only excerpted the parts he cared about (I don't mean this as a criticism); the court noted that plaintiff failed to actually properly plead that defendant used that term:

The court also rejected plaintiff’s assertion that calling him “litigious” was slanderous. It noted that plaintiff made no specific allegation that Dugan published such statement at a particular time.

(The Supreme Court here is summarizing the trial court's decision; that's why it says "the court" did such and such. It then affirms that decision.)

[Chacho]

While I mostly agree, I think someone who never filed a lawsuit could still potentially be called litigious -- for example, someone who regularly sends demand letters threatening to litigate absent a settlement payment (even if they ultimately back down to the recipients that call their bluff).

[Drewski]

I have to disagree. In the legal context, litigious means someone is "prone" to filing lawsuits or other legal action, not that they actually have done so. It's a statement of character, not a description of actions.

Also, although it's not really relevant to the OP case, litigious often does not refer to lawsuits. Merriam-Webster gives the primary definition as "disputatious, argumentative." (OED prefers the legal context.) Most of the time the usage will be ambiguous enough that a defendant could claim they were using the primary, American English definition. That doesn't necessarily support a bright-line rule philosophically, but practically I don't think such a rule will prevent any actually meritorious cases.

[susancol]

There's a reason that Q.E.D. has persisted across the centuries . . . thanks for this beautiful example!

[apedad]

This case also shows small town antics.

Brattleboro, VT, has approx. 12K people, and this owner checks every employee on the business he leases to in his building.

And is this legal?

" . . .Dugan told Comerchero [who owned Amy's Bakery] that if she did not terminate plaintiff immediately, he would evict her."

[KenveeB]

Does he check everyone, or did this person come to his attention for some reason?

[Bwaaah]

"this owner checks every employee on the business he leases to in his building"

You made that up. It's unlikely that he does. It is only evident that he maintains a right to do so. As KenveeB suggests above, this employee's reputation probably preceded the owner's interest.

[Dr. Ed 2]

Please explain how he has a right to interfere in third party business relationships.

[Flight-ER-Doc]

Tenant hires contractor.

Contractor slips on the steps, and sues the landlord. After all, he’s the owner

So far perfectly reasonable, right?

Now, tenant hires a contractor who has a history of slipping and suing the landlord. And the landlord knows about it, and says no, you can't

Is that reasonable?

[Dr. Ed 2]

I've been to Brattleboro, it has more of a commercial district than one might think because it is also the commercial district for Hinsdale, NH (across the river) and the communities to the west. It is a junction of North/South and East/West highways (and has a railroad station).

It's got a built-up downtown with storefronts -- but usually there aren't more than a dozen people who own almost all of the commercial real estate of that type and they all know each other -- and lobby the town together for things like snow removal.

So a formal screening, no -- but an informal one of a purported competitor warning him to watch out for the guy Amy hired? Quite possible...

[Drewski]

"And is this legal?"

Absolutely nobody can answer this without seeing a copy of the lease. A commercial landlord reserving a right to exclude people from the premise is not too unusual.

[John F. Carr]

I've heard of it in residential but I don't know if it was technically legal. The lease was renewed on the condition that one of the lessee's roommates was not welcome any more. I only heard about it because I moved into the vacated bedroom.