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Thursday, December 21, 2017

Zervos v. Trump, in federal or state court

Richard Primus discusses an amicus brief he wrote in Zervos v. Trump, the defamation lawsuit filed by a former Apprentice contestant in New York state court (Zervos claims Trump sexually assaulted her and that Trump's denials effectively defamed her as a liar). Trump has moved to dismiss, arguing that a sitting President enjoys immunity from suit in state court (stated differently, Clinton v. Jones applies only in federal court). Primus's brief (written for Steven Burbank, Richard Parker, and Lucas Powe) argues that state and federal courts are no different for purposes of the President's amenability to sue.

The existence of presidential immunity does not matter in this case, because Zervos will refile in federal court on diversity jurisdiction (Zervos is from California, Trump is probably from New York, but definitely someplace other than California). The surprise when Zervos filed suit was that she had filed in state court (in Trump's home state, no less) rather than federal court. It might have been a fear of anti-plaintiff federal procedure and a desire to take extensive (embarrassing) discovery that she is more likely to get in state court than federal court. But the same law applies and the jury pool in the Southern District of New York is the same (and as anti-Trump) as the County of New York, so it is not obvious Zervos is better off in state court than federal court.

From the other side, though, it is worth wondering why Trump is bothering to raise immunity in this case, because it will not end or even delay the lawsuit. Does he so badly want to be in federal court? Is he trying to protect the presidency apart from his personal interests (something he has not been inclined to do)? Is he trying to make Zervos work for it?

Posted by Howard Wasserman on December 21, 2017 at 10:27 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Law and Politics | Permalink


Presumably it is his lawyers who decide the details of the litigation strategy so I would wonder about the principal-agent problem here. Filing a motion to get the case dismissed will seem like good work to the client and an easy way to justify your paycheck, if said client is not aware of how easy refiling is.

Posted by: Jr | Dec 21, 2017 4:51:24 PM

Are the judges in the County of New York no more anti-Trump than those in SDNY? Or put it this way; whatever their politics, which set of judges is more likely to be politically motivated? What about the New York Court of Appeals, or the intermediate appellate courts in New York, versus the Second Circuit? I think I would tell Trump that if he has a decent case for summary judgment, he has a better chance of getting a fair hearing on it in federal court.

I also suspect that Trump doesn't want precedent or persuasive authority that says he can be sued in New York courts or other state courts, whatever the advantages of federal court in this case.

Posted by: Asher Steinberg | Dec 21, 2017 3:26:48 PM

Thanks for that post , but what about the statutory limitation ?? To my best knowledge , that wasn't an issue in Clinton Vs . Jones , yet , if immunity is held , we need to ask the following questions :
Whether the race or ticking clock is freezing ( due to the immunity ) then , she would be able later to sue him ( after one or both tenures ) . Yet , if not frozen , then , she may lose the race , and so , statutory limitation , shall reach the case , and seal it !! However , if the clock is ticking , then , we have another secondary issue , or another precedent in fact . If another one , one may argue that the case should be decided in federal court again ( in light of that game changer of statutory limitation , without frozen time ) . On the other hand , in the state court , it may be argued , that , since , it is another precedent , they may ignore Clinton v. Jones as irrelevant in this regard ( this is because , statutory limitation period may reach the case ) .

P.S . : To my best knowledge , there is not stopage of the ticking clock , due or thanks to immunity of the president ...


Posted by: El roam | Dec 21, 2017 1:08:50 PM

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