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


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  • icon
    Thad (profile), 5 May 2020 @ 11:03am

    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.

    Depends. What's the penalty for nonpayment of legal fees? And is it subject to presidential pardon?

    reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 5 May 2020 @ 11:07am

    This? This is how you get terrible lawsuits.

    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.”

    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.

    The plaintiff admitted in court that they didn't go with the acceptable route was because they didn't think it would work out for them and wanted another swing at the case that had just been dismissed with prejudice, the court agreed that the case is frivolous, and yet they didn't think that that warranted sanctions? As the article notes if behavior that blatant don't rise to the level of sanctions then basically nothing does.

    I have zero sympathy for any frustration the judge may be feeling here and can only hope they get nothing but garbage cases from here on out, because their silk-glove treatment of even the most blatant abuse of the courts ensures that more such cases will crop up, and while that can be annoying for judges who have to deal with such cases the damages for those on the receiving end of them can be far worse.

    reply to this | link to this | view in chronology ]

    • icon
      Wyrm (profile), 5 May 2020 @ 11:45am

      Re: This? This is how you get terrible lawsuits.

      I second (or third) this conclusion.

      On the other hand, this half-justifies Arpaio's confidence that this court would go easy on him. Not to the point of actually granting him the case, but at least in not judging him frivolous enough to sanction him (and his lawyer, who deserves it just as much).

      reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 5 May 2020 @ 11:54am

        Re: Re: This? This is how you get terrible lawsuits.

        Indeed, there is some warped humor to be found from the fact that by their inaction the court demonstrated that he was actually right on at least one part of his argument even if the rest of it was garbage, and in so doing showed why he would try his luck with them again.

        reply to this | link to this | view in chronology ]

  • icon
    Scary Devil Monastery (profile), 6 May 2020 @ 12:51am

    Entitled children?

    "A footnote points out Sheriff Arpaio thought he should be able to bypass the appeal process for political reasons"

    I can only envision this;

    Judge: "Let me get this straight. You made such a hamfisted botch job of a lawsuit that when it hit the court the judge dismissed it as he would a sack of garbage left in the sun for a week. And then you pile that same sack of garbage on the floor of MY courtroom, in the hopes that i'd be a bit dumber than the previous judge? What the hell were you thinking?"

    Arpaio: "It's always worked before. Why do you judges suddenly hate the police? I'm gonna tell big daddy Barr on you!"

    In the best of all possible worlds - where humans aren't really human - you might expect to see people who have gotten used to never having their violations of the rules questioned still at least remembering that those rules exist. It's the same world where an entitled child spoiled rotten might spontaneously mature into a responsible being without having several seriously formative experiences along the road.

    That's not the sort of world we live in, though. This is that world where the spoiled rotten brat grows into an entitled man-child. It's not really unexpected that a US police officer by now expects every part of the judiciary to rubberstamp his/her way through the legal system given that the same system keeps giving uniformed sadists, religious fscknuts and serial killers a pass.

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 6 May 2020 @ 8:00am

      Re: Entitled children?

      And then you pile that same sack of garbage on the floor of MY courtroom, in the hopes that i'd be a bit dumber than the previous judge? What the hell were you thinking?"

      The kicker is, as pointed out above, that he was only half wrong in doing so. Sure his case was tossed again but even after admitting that he was trying to game the system they didn't even give him a slap on the wrist for it and instead all they did was tell him to go away, for all the good that does for his targets.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 7 May 2020 @ 12:38am

        Re: Re: Entitled children?

        "...Sure his case was tossed again but even after admitting that he was trying to game the system they didn't even give him a slap on the wrist for it..."

        Yep. When the spoiled man-child knows all he gets for misbehaving is authority looking at him and going "tsk, tsk" why on earth would he change?

        Then he runs into that one judge who goes by the book and is completely poleaxed when he finds himself denied - or if actual justice is done, incarcerated - for what by then is a series of serious crimes.

        reply to this | link to this | view in chronology ]

    • icon
      Thad (profile), 6 May 2020 @ 10:33am

      Re: Entitled children?

      Not for nothin', Arpaio got elected six times.

      And while he repeatedly lost lawsuits, it was the taxpayers' money he had to pay out, not his own.

      And when a judge finally did give him a slap on the wrist for his bad behavior, the president pardoned him.

      It's not just that Arpaio hasn't been punished for his years of racism and fascism and flouting the law. It's that for most of that time, he's been rewarded for it.

      And also that he's a legitimately awful human being.

      reply to this | link to this | view in chronology ]

      • icon
        Scary Devil Monastery (profile), 7 May 2020 @ 12:40am

        Re: Re: Entitled children?

        "It's that for most of that time, he's been rewarded for it."

        Yeah...it's like seeing the schoolyard bully who walked home with one Note To His Parents after the other, only to get a headpat by his pappy for becoming "A tough guy". Now all grown up.

        reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 6 May 2020 @ 9:05am

    "The correct thing to do..."

    "When in trouble or in doubt, run in circles - scream and shout."

    • Bob Heinlein

    reply to this | link to this | view in chronology ]


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