Court Tosses Former Sheriff Arpaio's Attempt To Relitigate His Libel Lawsuit The Court Tossed Last Year

from the guess-it's-time-to-go-forum-shopping dept

When you lose a lawsuit -- as former Sheriff Joe Arpaio did last year -- you have a few options. Arpaio sued a few news outlets for defamation, alleging their reference to him as a convicted felon had done over $300 million in damage to his pristine reputation.

Represented by Larry Klayman, Arpaio came away with a loss. The DC federal court not only said Arpaio failed to state facts pointing to actual malice by the publications, but that Arpaio failed to plead any facts at all. That's classic Klayman lawyering: go light on facts, heavy on rhetoric, and try to avoid being being hit with sanctions and/or having your license suspended for your antics both on and off the court.

The correct thing to do when faced with a dismissal is file a motion to amend the lawsuit or petition the DC appeals court for a second look. Arpaio and Klayman did neither of these things. Instead, they dropped one defendant (CNN) and filed essentially the same lawsuit in the same court that had dismissed Arpaio's previous lawsuit with prejudice. (h/t Adam Steinbaugh)

Having had its time wasted twice with the same lawsuit, the court isn't happy with Arpaio or his representation. This decision [PDF] is even shorter than the 11-page dismissal Arpaio received on his first pass. The court says there's nothing new here and this isn't the way the court system works -- something Arpaio's lawyer should know but apparently chose to ignore.

Regarding claim preclusion, the Court holds that the claims in Arpaio I are, for legal purposes, the same as the claims in Arpaio II. Even though plaintiff added two causes of action in Arpaio II (general defamation and defamation by implication), the Court sees no meaningful distinction between the new causes of action and the old ones. Furthermore, plaintiff does not explain why he could not have asserted all of these claims in Arpaio I.

Nor does the new complaint explain why Arpaio chose not to follow the established procedures for challenging a dismissal.

Plaintiff’s argument that he should have been permitted to file an amended complaint in Arpaio I does not save this case either. [...] He claims that he prudently filed a new case because the Court erred in dismissing Arpaio I with prejudice. But plaintiff had at least two procedurally sound options to challenge the Court’s ruling: either file a timely appeal or a motion to reconsider the Court’s judgment. Plaintiff opted to file a new case instead—a decision that runs contrary to case law.

A footnote points out Sheriff Arpaio thought he should be able to bypass the appeal process for political reasons -- something I'm sure his lawyer believes to be a legitimate reason for breaking the rules.

Plaintiff admits that he did not appeal the Court’s ruling in Arpaio I because the D.C. Circuit is “a very liberal forum” that is “likely not favorably disposed towards Plaintiff Sheriff Arpaio[.]” He also states that an appeal would have “been costly and delayed adjudication on the merits.” Plaintiff’s status as a public figure (“America’s Toughest Sheriff”) does not grant him special privileges—he cannot circumvent the normal appeals process because of alleged philosophical disagreements with D.C. Circuit judges.

Unfortunately, the court isn't willing to sanction Arpaio and his legal rep for wasting government resources, as well as those of the defendants forced to again defend themselves from allegations this court had already dismissed with prejudice.

Although the Court agrees with the HuffPost defendants that this case is frivolous, plaintiff’s decision to initiate Arpaio II is not as egregious as the plaintiffs’ actions in Reynolds and McLaughlin. The Court is not convinced that plaintiff filed this case for an improper purpose. Rather, the filing of this case seems to be the result of a legal miscalculation, which the Court corrects today by dismissing the case. Accordingly, the Court will deny the HuffPost defendants’ motion for sanctions.

If refiling an identical suit after a dismissal with prejudice isn't sanctionable, then nearly nothing is. This is the DC court's inadvertent argument for a federal anti-SLAPP law. If Klayman and Arpaio had been forced to pay the legal fees of everyone they sued, they wouldn't have filed a pretty much identical lawsuit after having been handed a loss the first time around.

Filed Under: 1st amendment, defamation, free speech, joe apraio, larry klayman, vexatious lawsuits