"Justice Is Not Served by Allowing This Game of Whack-a-Mole to Continue"
From today's decision by Judge Steven McAuliffe (D.N.H.) in Beres v. RELX, Inc.:
After multiple unsuccessful defamation suits against RELX, Inc., d/b/a LEXIS NEXIS USA, and Portfolio Media, Inc., in other courts, Christopher Beres, who is a lawyer proceeding pro se, brought the same claims in Hillsborough County (New Hampshire) Superior Court. Defendants removed the action to this court, but Beres then added Andrew Delaney as a plaintiff to destroy diversity jurisdiction and sought remand to state court.
The court granted the defendants' motion to sever Delaney from the case to preserve diversity jurisdiction, and denied the plaintiffs' motion to remand. Delaney is no longer a party in this case.
In response, Beres filed a notice of voluntary dismissal without prejudice. Defendants move to convert Beres's notice of voluntary dismissal without prejudice to dismissal with prejudice and also seek an award of fees incurred in litigating this case….
The factual backstory:
Delaney was employed in a temporary position at a law firm, where he worked on a project for the firm's client, Toyota, and apparently had access to confidential documents. The project was suspended during the COVID pandemic, resulting in Delaney losing his job. Delaney, through Beres, who was acting as his legal counsel, sent a demand letter to Toyota, but Toyota did not respond. In April of 2020, Beres filed a lawsuit against Toyota on Delaney's behalf in Brevard County, Florida. Beres included allegedly sensitive information about Toyota in that complaint. Delaney later dismissed the suit without prejudice.
The agency that employed Delaney and placed him in a temporary position at the law firm filed suit against Delaney in federal court in the Southern District of New York, alleging breach of contract and other claims, arising from information about Toyota that Delaney included in the complaint filed in Florida state court. That case remains stayed because of Delaney's ongoing bankruptcy proceeding. Defendant RELX owns PMI, which publishes Law360, an internet legal news service. Between December 20, 2021, and January 6, 2023, Law360 published articles about the case against Delaney in the Southern District of New York. Delaney and Beres then filed a series of defamation lawsuits against PMI and RELX, based upon statements published in those articles.
The first defamation suit was filed in federal court in the Southern District of Florida on February 10, 2022, challenging eight statements in four of the Law360 articles as defamatory. When defendants moved to dismiss the claims, Delaney and Beres voluntarily dismissed the suit without prejudice.
A year later, however, Delaney and Beres filed an identical complaint in Florida state court, and, again, when defendants moved to dismiss, Delaney and Beres voluntarily dismissed the suit. In that suit, the court awarded defendants fees under Florida's two-dismissal rule and Florida's Anti-SLAPP statute, because Beres and Delaney had previously dismissed the same defamation claims against the same defendants in the federal action.
Several months later, Delaney and Beres, undeterred, filed a third suit in Florida state court, alleging defamation based on the same statements as well as three additional statements in new Law360 articles. And, once again, when defendants moved to dismiss, Delaney and Beres filed a notice of voluntary dismissal.
Delaney then filed a similar defamation complaint in Minnesota state court, and when that suit was dismissed, filed a new and similar action in New York state court. Beres filed this suit in Rockingham County Superior Court (New Hampshire) on January 3, 2025, alleging defamation against the same defendants based on many of the same claims that were previously dismissed in Florida federal and state courts, Minnesota state court, and New York state court….
The New Hampshire federal court concluded that the claims should be "dismissed with prejudice under the two-dismissal rule," which provides:
Under the circumstances presented here, a "plaintiff may dismiss an action without a court order by filing [] a notice of dismissal before the opposing party serves either an answer or a motion for summary judgment." Unless otherwise stated, a voluntary dismissal is without prejudice. "But if the plaintiff previously dismissed any federal- or state-court action based on or including the same claim, a notice of dismissal operates as an adjudication on the merits."
The court concluded the rule applied here:
As the Minnesota court wrote when dismissing Delaney's defamation claims against the same defendants: "Justice is not served by allowing this game of whack-a-mole to continue."
And the court concluded that defendants were entitled to attorney fees under New Hampshire law, which allows such fees "when one party has acted in bad faith, vexatiously, wantonly, or for oppressive reasons, when the litigant's conduct can be characterized as unreasonably obdurate or obstinate, and when it should have been unnecessary for the successful party to have defended the action":
Beres's practice of filing multiple defamation actions against these defendants arising out of the same or similar claims and then voluntarily dismissing the actions without prejudice, only to refile the same claims, is plainly vexatious. Beres and Delaney have continued that practice here, which appears to be aimed at harassing the defendants despite a demonstrated lack of merit in the claims. The harassing and vexatious conduct here included adding Delaney as a party to destroy subject matter jurisdiction in this case. That maneuver required defendants and the court to spend time and resources sorting through plaintiffs' tangled litigation history to determine that Delaney did not belong in this case.
There is no doubt that Beres's litigation tactics were pursued in bad faith and were vexatious. In the interests of justice and to discourage Beres's practice of filing frivolous lawsuits, defendants are entitled to an award of fees.
For a post about an earlier Beres/Delaney libel case against a different legal publication, see Court Dismisses Lawyer's and Client's $120M Libel Lawsuit Against Legal Newspaper.
Olivia F. Bensinger (Shaheen & Gordon) and Elizabeth A. McNamara, John M. Browning, and Celyra I. Myers (Davis Wright Tremaine) represent defendants.