Trump plays procedural games, wins procedural prizes (Updated Twice)

Donald Trump voluntarily dismissed his BS lawsuit against the DesMoines Register and pollster Ann Selzer over her erroneous final-weekend poll that showed Kamala Harris winning Iowa. Some people are using this as another TACO and "See, we must fight Trump" moment. Turns out it is more procedural.

Trump sued Selzer, her company, and the Register in state court. I had not paid much attention because the suit is nonsense and the Register and Selzer (represented by FIRE) seemed ready to litigate a strong First Amendment position

I also assumed it would stay in state court because Selzer and her company are Iowa citizens. But they snap-removed. Trump then filed an amended complaint adding two Iowa politicians as plaintiffs (destroying diversity) and moved to remand. Last month (I missed this), the court denied the motion. First, the court held snap removal is permissible. Second, the court denied leave to amend the complaint to add the non-diverse plaintiffs. Although Trump filed the amended complaint within the matter-of-course time period of FRCP 15(a)(1)(B), under circuit precedent (and Wright & Miller) a plaintiff must seek leave when adding a new party, especially when adding the party destroys diversity jurisdiction. Leave to amend was improper because the new plaintiffs are no indispensable and were added for the explicit purpose of destroying jurisdiction and Trump will not be prejudiced by having to litigate alone. With the Iowa plaintiffs not in the case, jurisdiction remained and the court had no basis to remand.

So I imagine Trump dismissed this action with plans to refile in a different state court with the Iowans as plaintiffs. Then some things to watch: 1) How quickly can they serve Selzer and the company to preclude another snap removal; 2) Selzer may remove and try to argue that the Iowa plaintiffs are fraudulently joined; 3) Is there some other basis on which to stop this type of gamesmanship?

Update: Later Monday, the Register moved to strike the Notice of Dismissal. First, a petition to appeal the denial of remand is pending in the Eighth Circuit (the district certified the snap-removal issue as a controlling issue of law). Second, Trump seeks to dismiss the federal action to pursue the same case (with the two Iowa plaintiffs added) in a different court (Trump filed that new lawsuit in Iowa state court Monday). The combination raises two problems. A party cannot voluntarily dismiss through FRCP 41 if an appeal, including a still-unresolved request to appeal, is pending. And the combination of issues reflects Trump's effort to voluntarily dismiss to avoid an adverse ruling (possible affirmance of the remand issue) and to obtain a more favorable forum, both grounds for a court to reject voluntary dismissal. 

According to the Register, timing matters. Iowa enacted an anti-SLAPP statute that takes effect on Tuesday but that does not apply retroactively. Trump made these moves now to get out of federal court and have the sole action in state court filed before the SLAPP statute takes effect.

Stay tuned.

Updated Again (July 3): The district court struck the notice of voluntary dismissal and declined to dismiss the action. Because an aspect of the case is in the court of appeals, the district court cannot dismiss the action unless Trump takes steps to have the appeal dismissed, which he has not done.

This seems a momentary blip. Trump will seek to have the appeal dismissed, then refile his voluntary dismissal. While Trump is clearly trying to forum shop, I would be surprised if the federal court continues to resist dismissal.

But things might get fun if the trial court refuses to dismiss. Trump might then ask the federal court to abstain under Colorado River, although I doubt a federal court that refuses to voluntary dismiss would exercise discretion to abstain. That leaves us with parallel litigation and a race to the finish--whether with Trump as party to both actions or the state court action featuring only the Iowa plaintiffs (assuming they want to pursue litigation and are not in the case to destroy complete diversity). The defendants also might try to remove the new state court action and argue that the Iowa plaintiffs are fraudulently joined (which did not come up on the remand motion).

Again, stay tuned.