Mann v. Steyn Mulligan

On December 19, the District of Columbia Court of Appeals effectively erased Michael Mann’s initial court victory in his defamation lawsuit against Mark Steyn, National Review, Rand Simberg and the Competitive Enterprise Institute.  Here’s how Mark Steyn pithily summarizes the developments:

1. Dr Michael Mann’s lawyer, John Williams, filed a fraudulent complaint falsely representing his client as a Nobel Laureate, and accusing us of the hitherto unknown crime of defaming a Nobel Laureate.
2. After Charles C W Cooke and others exposed Dr Mann’s serial misrepresentation of himself as a Nobel Prize winner, Mann’s counsel decided to file an amended complaint with the Nobel falsehood removed.
3. Among her many staggering incompetences, DC Superior Court judge Natalia Combs-Greene then denied NR’s motion to dismiss the fraudulent complaint while simultaneously permitting Mann’s lawyers to file an amended complaint.
4. The appellate judges have now tossed out anything relating to Mann’s original fraudulent complaint, including Judge Combs-Greene’s unbelievably careless ruling in which the obtuse jurist managed to confuse the defendants, and her subsequent ruling in which she chose to double-down on her own stupidity. Anything with Combs-Greene’s name on it has now been flushed down the toilet of history.
5. So everyone is starting afresh with a new judge, a new complaint from the plaintiff, and new motions to dismiss from the defendants. That’s the good news.
6. The bad news is that Mann’s misrepresentation of himself as a Nobel Laureate and Combs-Greene’s inept management of her case means that all parties have racked up significant six-figure sums just to get back to square one. In a real courthouse – in London, Toronto, Dublin, Singapore, Sydney – Dr Mann would be on the hook for what he has cost all the parties through his fraudulent complaint. But, this being quite the most insane “justice system” I have ever found myself in, instead the costs of the plaintiff’s vanity, his lawyer’s laziness and the judge’s incompetence must apparently be borne by everyone.

So, the lawsuit is effectively reset in the trial court, where a motion to dismiss Mann’s amended complaint remains pending with a new judge.  (The original judge was the recently reproached and retired Judge Natalie Combs Greene who, as I noted in this post, was quite sloppy in her initial opinion.)

In a related development, the defendants received substantial support in their effort to seek interlocutory appeal of Judge Combs Greene’s initial order, in the form of amicus briefs from the ACLU, Reporters Committee for the Freedom of the Press (joined by several more media organizations), and the District of Columbia.

Readers may also be interested in this recent decision by the U.S. Court of Appeals for the D.C. Circuit upholding the district court’s dismissal of Joseph Farah’s defamation claim against Esquire magazine under D.C.’s anti-SLAPP statute.

NOTE: I inadvertently omitted the name of one of the defendants in this suit, Rand Simberg when I first published this post.

UPDATE: Reading the comments, I figured  it would be helpful to provide a bit more procedural background to explain why the appellate decision in this case effectively resets the litigation.   Here’s the relevant timeline (summarized in Judge Weisberg’s Oct 2 order). After Mann filed his initial complaint, the defendants filed motions to dismiss under the D.C. anti-SLAPP statute. While these motions were pending, Mann filed an amended complaint on July 10, 2013. On July 19, Judge Combs Greene (the original judge in this case) denied the defendants motion to dismiss the original complaint and lifted the stay on discovery. On July 24, the defendants filed motions to dismiss the amended complaint and subsequently filed an interlocutory appeal.

The primary question in the appeal was whether the appellate court had jurisdiction over an interlocutory appeal of a denial of a motion to dismiss under the anti-SLAPP Act. Yet a threshold question was whether the appeal was moot because of the amended complaint. One might have thought that the amended complaint superseded the original complaint, but Judge Greene went ahead and ruled on the motion to dismiss the original complaint after the amended complaint was filed. In such a case, seeking an immediate appeal serves two purposes: challenging the trial court’s order on the merits as well as giving the appellate court the opportunity to make clear that the initial order was procedurally improper and does not constitute the law of the case for subsequent proceedings in the trial court. The defendants would obviously preferred a victory on the merits, but an order effectively erasing Judge Combs Greene’s adverse decision from this past fall is a second-best.

As Judge Weisberg (Judge Combs Greene’s replacement) noted in his Oct 9 order, a reason for the appellate panel to “dismiss the appeal as moot” would be “that the trial court should not have denied the motions to dismiss the first complaint after the Plaintiff had filed his amended complaint.” Further, Judge Weisberg noted, “if the appeal is moot it is because the filing of the amended complaint mooted the motions to dismiss the original complaint prior to Judge Combs Greene’s rulings on those motions. In that event, the law of the case doctrine would not apply, or would apply with substantially less force, and this court would be called upon to decide the motions to dismiss the amended complaint ab initio.” In other words, the appellate court’s conclusion that the appeal was moot effectively wipes away Judge Combs Greene’s original opinion, leaving Judge Weisberg a clean slate upon which to consider the relevant legal issues.

A final note, as some commentators have suggested, it would have been more accurate to characterize Steyn’s summary as colorful than as pithy.

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