Texas Developer Who Used Eminent Domain to Acquire Property for Himself Sues Journalist Carla Main and lawprof Richard Epstein for Libel:

Back in 2006, I wrote two posts about Western Seafood Co. v. City of Freeport, a potentially important post-Kelo eminent domain case decided by the Fifth Circuit Court of Appeals (see here and here). The case became the subject of an excellent book by legal journalist Carla Main, who documented how the condemnation of the property was likely instigated by H. Walker Royall, the Texas oil millionaire who sought to acquire the land in order to build a luxury marina.

Now Royall is suing Main for libel, and also suing University of Chicago law professor Richard Epstein because Epstein wrote a laudatory blurb for the book. Tim Sandefur has the details and additional links here. As Tim points out, it is unlikely that Royall will win his suit because he is clearly a "public figure" under New York Times v. Sullivan, and a public figure cannot prevail on a libel claim unless he proves both that the statements about him were untrue and that the the defendants knew it or acted with "reckless" disregard for the truth.

CONFLICT OF INTEREST WATCH: Richard Epstein and I have worked together on some other eminent domain issues, though not on this case. I also have done a variety of eminent domain-related pro bono work for the Institute for Justice, which is representing Epstein and Main.

Ex-Fed (mail) (www):
Did I read the article through the link correctly? Did he sue Prof. Eptstein for a blurb criticizing him for suing people for criticizing him?

Wow.

Good news, though -- thanks to the internet, H Walker Royall can expect his name to become synonymous with "thuggish censorious asshat."
12.12.2008 5:28pm
OrinKerr:
One word: Sanctions.
12.12.2008 5:33pm
Cornellian (mail):
Darn, Kerr beat me to it.
12.12.2008 5:43pm
Thomas_Holsinger:
It's called Strategic Lawsuit Against Public Participation and, in California would be subject to an immediate special motion to strike under California Code of Civil Procedure section 425.16.
12.12.2008 5:46pm
Bob White (mail):
Wow. Epstein's blurb doesn't even mention Tyler by name, just "avaricious developers." I wonder if he has something personal against Prof. Epstein, or just wanted the extra publicity.
12.12.2008 5:46pm
Houston Lawyer:
Sounds like a quest for free advertising.
12.12.2008 5:53pm
Cornellian (mail):
Bob White will probably now be joined as a defendant.
12.12.2008 5:55pm
faceword:
What is Tyler's attorney's thinking by adding Epstein? Isn't there a 99% chance that such a merit-less lawsuit will result in a career-killing state bar complaint against the attorney who filed it?

This is not situation where the defendant has no resources - Prof. Epstein is renowned law professor!

The entirety of Epstein blurb:


“Like a Greek tragedy unfolding, Carla Main’s book chronicles the eminent domain struggles in Freeport, Texas, which pitted the Gore family, with its longtime shrimp business, against the machinations of an unholy alliance between city politicians and avaricious developers. If you have ever shared the Supreme Court’s unquestioned deference to the public planning process that shaped its ill-fated Kelo decision, you’ll surely change your mind as you follow this sordid saga to its bitter end. You’ll never look at eminent domain in the same way again.”
12.12.2008 6:00pm
Lior:
Watch it faceword: you may have just made our Conspirators potential co-defendants!

More seriously, is there any chance for the defendants to recover their legal fees in this case, or does this fall under the usual "each side pays his own expenses"?
12.12.2008 6:24pm
Christopher Cooke (mail):


One word: Sanctions.



in Texas state court? Someone that doesn't strike me as very likely. Perhaps Houston lawyer could comment.

Nor does it seem likely that the Texas state bar would take up a complaint about a lawyer's filing of a frivolous lawsuit. If that happened the whole state judicial system would grind to a halt due to inactivity, at least in California (just kidding, please no libel suits, this is a joke)

I would try to remove to federal court ASAP, based on diversity jurisdiction, if possible. Where does Ms. Main live?
12.12.2008 6:36pm
Christopher Cooke (mail):
It looks like there is complete diversity of jurisdiction, because Ms. Main appears to be a New Yorker, and Epstein, no doubt, lives in Chicago, IL. I would bet the plaintiff has claimed over $75K. I would definitely remove, if the case is not in federal court. But, maybe the plaintiff lawyer did something sneaky and named a local bookseller to defeat diversity jurisdiction.
12.12.2008 6:46pm
fortyninerdweet (mail):
Wow, since the blurb didn't mention anyone by name can't the plaintiff actually be counter-sued here because he failed to mitigate potential damages when he "came out of the closet" and self-identified himself as an "avaricious developer"?

Legal disclaimer: I am asking a question, not offering an opinion. Not that I don't have one.

OK, so sue me. I've always wanted to own part of a marina on the gulf coast.
12.12.2008 6:55pm
RPT (mail):
Mr. Holsinger:

It's called Strategic Lawsuit Against Public Participation and, in California would be subject to an immediate special motion to strike under California Code of Civil Procedure section 425.16."

We agree on this one. This statute, and the ensuing case law, has essentially eliminated the possibility of successful defamation litigation in California.
12.12.2008 7:04pm
loki13 (mail):

Wow, since the blurb didn't mention anyone by name can't the plaintiff actually be counter-sued here because he failed to mitigate potential damages when he "came out of the closet" and self-identified himself as an "avaricious developer"?


While I cannot speak specifically to Texas law (and I am far too lazy to look it up right now) this wouldn't go to mitigation -- not that this would be an issue in defamation. It would go to the common law element that is usually referred to as "identification". Can the plaintiff say the defamatory statement was about the plaintiff? Usually this is a problem when a libelous statement is about a larger group (All Americans have STDs!). In this case, I think that it is a fair statement that identification is not a problem since he is the developer mentioned in the book.

There's way too many other problems, though. Developers (plural)? Is being called avaricious, if you're a developer, even a libelous statement -- or a compliment? Would it harm you in the eyes of the community, or even a substantial and respectable minority (among developers, it might get you a prize)? That's before getting into the constitutional protections . . .
12.12.2008 7:36pm
Richard Aubrey (mail):
Nice to know the legalities of the suit.
The other point, that the rest of us worry about, is being Kelo-ed out of our property by a corrupt takings process.
Forensic audits of all public officials for life!!
12.12.2008 7:49pm
loki13 (mail):
Ilya,

As a quick followup, i was curious about an assertion you make. You claim that H. Walker Royall is a 'public figure'. Why are you convinced that this is the case (I've never heard of him, and know little about this case).

1. I doubt he is a general purpose public figure.
2. If he is a limited-purpose public figure for this controversy, why would you say that he is? Texas has the texas journaslist / Waco articulation for a limited purpose public figure, and he might meet the definition under that.
3. He is more likely a private figure in a matter of public concern (which is what Gertz, a case Tim cites, is actually about). In that case, there are constitutional protections, but not the ones you're thinking of. While state law might impose a different standard, the con. minimum is only actual malice for presumed damages; Royall could get actual/emotional without AM.

Just wonderin'. Still think it is most likely a bogus claim, but the difference between 1&2 vs. 3 is huge one.
12.12.2008 9:42pm
Fub:
RPT wrote at 12.12.2008 7:04pm:
We agree on this one. This statute [California Code of Civil Procedure section 425.16], and the ensuing case law, has essentially eliminated the possibility of successful defamation litigation in California.
I think "has essentially eliminated frivolous defamation litigation in California" would be more accurate.

If the initial pleadings state a strong libel case without further discovery, then the defendant's 425.16 motion won't prevail. Too many times plaintiffs embroiled in public issue discussions sue in libel with a near frivolous case just to jack around the defendant with motions and discovery. CCP 425.16 stops those cases cold. But frivolous motions to strike will cost the losing defendant. From CCP 425.16(c):
(c) In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
12.12.2008 10:07pm
TerrencePhilip:
I was unable to locate a copy of the complaint, but docket info is available from courts.dallascounty.org. The case number is DC-08-13480. It appears he sued a couple of in-state newspaper companies, I don't know the specifics of what he sued them for but perhaps they repeated allegations of the book or reviewed it? If so that was probably enough to defeat a claim of fraudulent joinder (or "improper joinder" as the Fifth Circuit calls it, in deference to statutory language). It appears from the state court docket entries that no one ever tested this by filing a removal notice. The suit has been going on since October.

Orin, like others here, I seriously doubt this suit will result in sanctions from the state court. Well-known members of the bar from well-known law firms advance cruddy claims and defenses all the time in local state courts, and sanctions are exceedingly rare. The typical attitude of the state court judge is "I'll just rule on the case, fooling with sanctions is not worth my time and the appellate courts don't want to affirm them; let people go to federal court for sanctions. Besides, this is an elected position and why make enemies when I can just move on to the next case?"
12.12.2008 10:21pm
Eli Rabett (www):
Sounds like Mr. Royall might be a candidate for a long swim a la Robert Maxwell
12.12.2008 11:06pm
Gary Imhoff (mail) (www):
Unlike California and several other states, Texas doesn't have an explicit anti-SLAPP law. My wife has recently had a SLAPP lawsuit dismissed in Guam, which has a model anti-SLAPP law, and even under those circumstances it took two years of litigation just to get the case dismissed. Guam's law requires the filer of a SLAPP suit (both the clients and the lawyers) to pay lawyer's fees, costs, and sanctions to the defendant in a lawsuit that is found to have been a SLAPP suit; it may take another two years to recover those, if the filer resists a settlement and litigates any court award.

The best route in the absence of an anti-SLAPP law is to try to get the court to dismiss the defamation suit as quickly as possible (on the facts given here, that should be relatively easy for Epstein and much harder for Main), and then for both of them to make a malicious prosecution claim against Royall. It looks like years of tsuris ahead.
12.12.2008 11:07pm
AndrewK (mail):
Will Royall receive just compensation when the court dismisses the complaint and exercises eminent domain on his dignity?
12.12.2008 11:33pm
Ilya Somin:
You claim that H. Walker Royall is a 'public figure'. Why are you convinced that this is the case (I've never heard of him, and know little about this case).

Royall is a very prominent businessman in the area. That makes him a public figure. In addition, he has used his business clout to try to influence public policy, including in this case. That too makes him fair game as a public figure.
12.13.2008 12:18am
Ispress (mail):
Royall was declared a limited-purpose public figure in his other defamation lawsuit, the one against the Gore family whose land he tried to have the city take. That's not a guarantee he'll be declared on here, but the odds seem very high.
12.13.2008 7:03am

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