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Friday, August 11, 2017

First Amendment procedure

Sarah Palin sued The New York Times for defamation over a June editorial (following the congressional ballgame shooting) that linked Palin's rhetoric to the 2011 Gabby Giffords shootings. Palin alleges The Times writers acted with actual malice, in part because the paper had published numerous news stories showing there was no link between Palin's rhetoric and Jared Loughner. The Times moved to dismiss, arguing that the complain did not plausibly plead actual malice. In a brief order yesterday, Judge Rakoff ordered the author(s) of the editorial to appear at an evidentiary hearing next week, for questioning about their awareness of these prior news stories.

The prevailing view among civ professors online seems to be that the order is inappropriate.

The point of Twiqbal is that a plaintiff must plead sufficient facts, without the benefit of discovery, to allow a reasonable/plausible inference of the elements of a claim. If the plaintiff cannot do that, the complaint must be dismissed and, perhaps, the plaintiff given a chance to replead. That is a problem for facts such as actual malice, that go to the defendant's state of mind, but that is the regime the Court has set-up. The court has discretion to convert a motion to dismiss to a motion for summary judgment if matters beyond the complaint (such as testimony) are considered. But Judge Rakoff did not do that here. He is using this testimony, not including in the complaint, to rule on a 12(b)(6). Unless, of course, he converts later, although conversion must include notice and an opportunity to present material, which might require an opportunity to take discovery.

This case somewhat illustrates the problems with the Twiqbal regime. Courts are supposed to decide plausibility based on "judicial experience and common sense," which essentially requires a form of judicial notice. We might understand Rakoff as trying to enhance his experience and common sense, one of many work-arounds courts have developed. But the point of Twiqbal is to keep defendants from having to deal with any discovery, even a few hours of testimony. Rakoff seems to be trying to have it both ways--get enough information to evaluate the factual assertions, without deeming the complaint sufficient (which it seems to be) and allowing the case to move forward to full (or at least sectioned) discovery. To the extent Rakoff is doing something necessary to make an intelligent plausibility determination, it reveals the problem and impossibility of implementing such a standard at the pleading stage.

This offers a nice example of when a party might be tempted to use a writ of mandamus to challenge an interlocutory order. Mandamus is limited to exceptional circumstances in which the trial court clearly overstepped its bounds. Ordering discovery before deciding a motion that is designed to keep cases out of discovery might qualify. The drawback, as someone pointed out, is that a mandamus requires The Times to formally sue Judge Rakoff (or the Southern District), who will preside over this litigation; a party's reluctance to wield this tool is understandable.

Alexi Lahav has a new paper describing how courts disregard the FRCP's procedural design (complaint/dismissal/discovery/summary judgment), but moving pieces and skipping steps. This seems another example.

Posted by Howard Wasserman on August 11, 2017 at 12:16 PM in Civil Procedure, Constitutional thoughts, First Amendment, Howard Wasserman | Permalink


Rule 43(c) is in the title on trials, but is that enough to conclude that it only applies in the course of a trial? My understanding is that neither side has objected to the hearing.

Posted by: Reynolds Holding | Aug 15, 2017 11:09:43 AM

Anon: I think a Rule 43(c) hearing would be permissible on summary judgment. The point of the rule is that evidence can be presented to the judge for a motion through affidavits, depositions, or testimony--so long as the court does not find facts or make credibility determinations off the evidence she hears, this is OK. But you are right that the court's reliance on that rule to justify this hearing was inappropriate. A court only should take evidence this way on a motion in which such additional evidence (in this case, beyond the allegations in the complaint) is properly used.

Posted by: Howard Wasserman | Aug 12, 2017 11:01:19 AM

The judge referenced FRCP 43(c). That's a rule of procedure for trial not for a motion to dismiss. Even conversion of the motion to one for summary judgment, taking testimony would be improper. That would essentially put the judge in the position of fact finder. That would pretty much guarantee reversal on appeal.

Posted by: anon | Aug 11, 2017 10:16:53 PM

Thanks for mentioning my paper - to any readers: I welcome comments!

Posted by: Alexandra Lahav | Aug 11, 2017 8:36:22 PM

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