A short excerpt from yesterday’s 15K-word opinion by Judge Mary Kay Vyskocil (S.D.N.Y.) Friday in Wolff v. Trump:
In this case, a chronicler of the First Family sues the First Lady because she threatened to sue him for defamation. While Plaintiff and the First Lady have a real dispute, they must litigate it according to the same procedures as everyone else.
Plaintiff asks for a declaration that, if the First Lady sues him, he deserves to win. That is not how the federal courts work. He also contends that he should not be in federal court at all. But, while it may have started in state court, this case was properly removed. Plaintiff and the First Lady are citizens of different states, and the lawsuit she threatened seeks a billion dollars in damages.
There are many features of this case that make it complicated: the prominence of the personalities involved, the scandalizing content of the underlying statements, and, frankly, an inappropriate level of tactical gamesmanship. But the outcome is simple. The Court will not be conscripted to oversee an abusively presented spat and so declines to reach the merits here….
From the Complaint, here are Melania Trump’s allegations of what statements are defamatory (the emphasis appears to originate in her demand letter):
“Melania Trump ‘Very Involved’ in Epstein Scandal: Author.”
“First Lady Melania could be the missing link in President Trump’s ties to convicted sex offender Jeffrey Epstein.”
“Melania was ‘very involved’ in Epstein’s social circle, and noted that this is how she met Trump.”
“She’s introduced by a model agent, both of whom Trump and Epstein are involved with. She’s introduced to Trump that way. Epstein [knew] her well.”
“In explosive tapes recorded by Wolff, Epstein alleged that Trump liked to ‘f—his friend’s wives and first slept with Melania on his ‘Lolita Express.’“
“Where does [Melania] fit into the Epstein story? Where does she fit into this, into this whole culture of models of indeterminate age?”
“Epstein told [you], that Trump and Melania got together the first time [] on Epstein’s airplane,” and that “Melania met Trump through the same modeling circles through which Epstein and Trump procured dates.”
“This sham marriage, trophy marriage, hardly any marriage at all is part of the scam.”
“The Epstein story, in which Melania plays no small part.”
“Where does Melania fit in with Epstein?”
“You stated that Mrs. Trump is sending letters threatening to sue anyone who makes the connection between her and Epstein because they are hiding something they don’t want us to know.”
Back to the court’s opinion:
This case is presented to the Court in a somewhat contorted posture: A would-be defamation defendant sues a would-be defamation plaintiff in New York state court. He seeks a declaration that statements identified in a demand letter threatening litigation under Florida law are not defamatory, and, further, that any such litigation would violate—or, perhaps, has violated already—New York’s anti-SLAPP law. Thereafter, the would-be defamation plaintiff removes the action to federal court, and moves to dismiss.
On the merits, the basic issue here is whether Plaintiff’s public statements about the First Lady were defamatory. But that question, however much attention it may have received in the media, is not yet before the Court. Instead, the Court must first decide whether it can hear this case at all. The Court must next evaluate whether it would be a wise and economical exercise of the judicial power to do so….
As brought before this Court, the pending claims for declaratory judgment are not obviously ones the Court is permitted to decide. While the Court finds that it probably could do so, for reasons discussed below it declines to proceed to the merits….
When a plaintiff seeks declaratory relief concerning his past torts, courts generally decline to exercise their jurisdiction over his claim. Plaintiff here asks the Court to bless as non-tortious certain public statements he has previously made about the First Lady. This is an abuse of the Declaratory Judgment Act….
“[T]o allow a declaratory judgment action under the facts before us would be to allow a substitute for the traditional procedures for adjudicating” speech-tort cases between private parties. More specifically, to entertain this case would reward Plaintiff’s brazen attempt to “short-circuit” a suit by the First Lady in Florida, conferring upon him an undue “procedural advantage” by allowing him to “preempt the forum choice of the plaintiff to the coercive action.”
This is textbook bad-faith forum-shopping, in which Plaintiff asks the Court to collude by “exercis[ing] jurisdiction over [a] declaratory action[ ] motivated by a desire to wrest the choice of forum from the real plaintiff.” Plaintiff may or may not have defenses to the First Lady’s would-be claim of defamation. Indeed, he may or may not have—or come to have—anti-SLAPP claims of his own. The Court takes no position on these possibilities. The Parties are free to pursue in good faith whatever claims they wish.
But it is disingenuous for Plaintiff to assert that he had “no choice” but to preemptively file this action in New York…. There is no reason whatsoever that Plaintiff should be allowed to “rely solely on [the] past injuries” purportedly caused by the assertion of claims against him in Florida “to obtain declaratory relief” thwarting those claims in a parallel action here.
The Court does note that Plaintiff makes much of the “chilling impact” one might experience upon being sued for defamation.. In other words, he contends that his claim concerns “not just past speech, but, significantly, future speech.” But, fundamentally, he is asking the Court to adjudicate the tortiousness of specific statements that he has already made, and to do so in a forum other than the one in which litigation is already threatened (or, perhaps, pending). That he apparently wants to repeat those statements does not entitle him to “short-circuit” the Florida lawsuit here.
{If he means, by contrast, to ask the Court to review statements he has never before made, the Court declines to offer its assistance. Indeed, as discussed, the Court seriously doubts that it would have jurisdiction to issue an opinion staking out for him the boundaries within which any such statements would be immunized from future litigation.}
The Court’s assessment of Plaintiff’s gamesmanship bottoms out into recognition that he should simply seek the “adequate remedy” available to him by the assertion of his defenses and counterclaims in the action that he argues is pending “between the same parties” in Florida, where “all of the same issues raised in the declaratory judgment action are also in dispute.” The coercive action in Florida may already be “pending” or it may merely be “potential.” Either way, it is clearly relevant to the question of “whether there is a better or more effective remedy,” available for the resolution of this case.
It does not trouble the Court that a defensive proceeding in Florida may not afford him “an opportunity for ventilation of the same state law issues,” as would an offensive one in New York. All that might be missing in Florida—depending on a choice-of-law inquiry the Court does not endeavor here to undertake—are “the more protective policies” reflected in New York’s anti-SLAPP law. This merely confirms the obvious reality, already discussed, that Plaintiff’s action here constitutes an improper “rush to file first in anticipation of litigation in another tribunal, thereby enabling [him] to choose the forum and governing law by which to adjudicate the dispute, and otherwise to interfere with or frustrate the [First Lady’s] pursuit of claims elsewhere.”
Relatedly, “the use of a declaratory judgment would increase friction between sovereign legal systems [and] improperly encroach on the domain of a state … court,” undermine “judicial efficiency and … economy,” and potentially still fail to “clarify[ ],” “settl[e],” and “finalize” the controversy. In struggling against the First Lady’s right to select a forum for her coercive action in the first instance, and her right to remove to a federal one in the second, Plaintiff has brought this case to the Court in a posture of profound confusion.
He asks a federal court to interpose “the more protective policies of New York State and its own Constitutional protections of free speech” as reflected in New York’s anti-SLAPP law, in a simulated adjudication of a would-be Florida-based defamation suit. Faced with this procedurally convoluted request, the Court declines to multiply “[t]he risk of potentially contradictory fact finding between the state and federal court[s] on [the] critical issue” of the truth or falsity of Plaintiff’s statements about the First Lady. Nor will it gratuitously volunteer to generate a “needless” decision on the scope of New York’s anti-SLAPP law. To reach the merits here would be an abuse of the judicial system and a waste of its resources.
The First Lady was entitled to have Plaintiff’s action against her heard by a federal court according to federal procedures. That action does concern a live case or controversy, but it is one that should be litigated according to the “traditional procedures for adjudicating” speech-tort cases between private parties. Accordingly, it should not be litigated here….
Alejandro Brito (Brito, PLLC) and Caryn Gail Schechtman and Steven Rosato (DLA Piper US LLP) represent Melania Trump.
