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Friday, June 04, 2021

Mike Lindell sues Dominion

MyPillow CEO Mike Lindell's new lawsuit against Dominion is a rerun and expansion of the suit the company filed last month, throwing in a civil RICO claim along with more of the same absurd factual allegations about election fraud and nonsense constitutional arguments.

Lindell's state action arguments fail for the same reasons as MyPillow's state action arguments--Dominion does not "administer" elections beyond providing infrastructure (any more than the handcuff manufacturer uses excessive force) and, if it did, it does not become a state actor for all purposes beyond running those elections.

This is garbage on the merits. But there are procedural issues attached to both actions that are worth considering.

Both sets of claims could have been brought as counterclaims in Dominion's defamation action in the District of D.C. At bottom, both actions allege that Dominion's lawsuit is part of a campaign to silence Lindell/MyPillow about election fraud; both suits allege that the Dominion suit is an abuse of process and a First Amendment violation.

One question is whether they would be compulsory; the answer is probably not, because the MyPillow/Lindell claims do not arise out of the same transaction or occurrence as Dominion's claims. This illustrates a common sequence: X does something to injure A, A files suit to remedy that injury, and X files a counterclaim alleging that those remedial efforts violate X's rights. Most courts say this is not STO because the real-world events giving rise to A's claims are based on whatever X did, while the event giving rise to X's counterclaims is A filing that lawsuit. There is a but-for relationship: But for X's actions, A would not have sought remedy; but for A seeking a remedy, X would not have a basis to sue. But that is not the necessary logical connection between the real-world events. Here, MyPillow/Lindell made false statements about Dominion, Dominion sought a remedy by suing, and MyPillow/Lindell argue that suit is tortious/violates the First Amemdment/violates RICO; that is the but-for relationship courts deem insufficient.

Nevertheless, they could have been brought as permissive counterclaims--there is diversity jurisdiction and/or some of the claims arise under federal law.

A second question is whether personal jurisdiction and venue is proper in Minnesota. The action that MyPillow and Lindell challenge is the filing of the lawsuit, which took place in D.C. The question is the same as one I considered about the Texas heartbeat law: Is suing a Minnesota citizen (and serving process on that Minnesota citizen in Minnesota) outside of Minnesota sufficient to establish personal jurisdiction? Again, this arises in the legal-malpractice and patent context and courts seem split on it.

A third question is whether the court should transfer venue to D.D.C. A court in Minnesota would be reluctant to adjudicate a lawsuit challenging the validity of a lawsuit in another court while that lawsuit is ongoing, as both turn on the same underlying facts (the truth of Lindell's original allegations against Dominion). The convenience of witnesses and evidence would seem to favor transfer--the validity of MyPillow/Lindell's claims depends on the validity of Dominion's defamation claim, which is occurring in D.C. The "situs" of the events in the counterclaim is the situs of the allegedly abusive defamation action, which is D.C. I would think both cases are better litigated in the same place, if not the same action, as the underlying lawsuit alleged to be violative.

Update: Commentators elsewhere point out a choice-of-law problem. Lindell points to Minnesota law on the abuse-of-process claim. But the prevailing view is that such claims are governed by the law of the place in which the allegedly abusive proceeding was filed. In other words, D.C. law. Which makes sense. A plaintiff who chooses to file a claim that is not abusive in one jurisdiction should not bear the risk that it might be abusive in a different jurisdiction. The choice-of-law issue also affects the transfer analysis, discussed above. What law applies is one of the public-interest factors that gets balanced--if D.C. law applies, that will favor the Minnesota court sending the case to D.C.

Further Update: The attorney from the firm Barns & Thornburg, who signed the complaint as local counsel, has been defenestrated. The firm says it did not know about the lawsuit.

Posted by Howard Wasserman on June 4, 2021 at 09:31 AM in Civil Procedure, Constitutional thoughts, Howard Wasserman, Judicial Process | Permalink

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