by MNObserver

Jul 15, 2012, 6:00 PM

Our heavy metal man of Jesus meets the judicial system

There’s been a fair amount of confusion and speculation about what the heck is going on with heavy metal preacher and notorious homophobe Bradlee Dean’s various lawsuits against MSNBC and Rachel Maddow.  On behalf of you, dear reader, we have accepted the task of figuring out what they’re doing, why Bradlee’s acting like some ass, and why he has to pay all that money.  A lengthy perusal of court dockets and filings has been undertaken.  This is somewhat involved, so bear with me here.

If you recall, back in August 2011, Bradlee and his “ministry,” You Can Run But You Can’t Hide, International (YCRBYCH), filed a defamation lawsuit against MSNBC, Rachel Maddow, Andy Birkey, and the Minnesota Independent alleging that these defendants had defamed him.  The case was brought in District of Columbia Superior Court, before Judge Joan Zeldon.

Shortly after the lawsuit started, a “Special Motion to Dismiss” was filed on behalf of Defendants Maddow and MSNBC.  This is a motion brought under DC’s anti-SLAPP (strategic lawsuit against public participation) Act.

These motions allow defendants who are on the wrong end of a SLAPP lawsuit to bring a motion to dismiss very early on in the case.  Goal is to give a defendant the opportunity to challenge the basis for the lawsuit before running up lots of legal fees.  Many of these anti-SLAPP laws also provide for a losing plaintiff to be required to pay the legal fees of a prevailing defendant.  It’s meant to discourage frivolous lawsuits that really only are intended as a means to scare people into shutting up.

MSNBC’s and Maddow’s lawyers brought the special motion to dismiss right away.  Bradlee Dean’s and YCRBYCH’s lawyer opposed the motion to dismiss and mounted a challenge to the DC anti-SLAPP act.

What followed in the DC Superior court docket was the normal sort of wrangling one sees in civil litigation, with scheduling conferences, requests for delay, objections to those delays, motions for the admission of out-of-state attorneys, a motion by the District to intervene to support its own Act, a motion to dismiss the action against Andy Birkey, etc.  The case was lumbering toward a determination as to the applicability of the DC law.  A hearing on the defendant’s special motion to dismiss was scheduled for a hearing on February 24, 2012.  The big moment.  This lawsuit’s equivalent to the showdown at the OK Corral.

But then on February 21, 2012, Dean and YCRBYCH suddenly and voluntarily dismissed the Superior Court action before the judge could rule on any of the matters before her.  Normally a plaintiff is allowed to voluntarily dismiss a claim, and for the most parts defendants are happy to have the matter go away and be done with it.

But that’s not what happened here.  On the very same day as the dismissal, February 21, Bradlee Dean and YCRBYCH started a separate lawsuit in the United States District Court for the District of Columbia against MSNBC and Maddow alleging pretty much the same stuff they alleged in the Superior Court action.  That matter, Court File No. 12-00283, was filed on February 21, 2012.

Why would Dean and company suddenly drop the state-level action and suddenly file the same lawsuit in federal court?  This is where all sorts of shenanigans comes out.

You see, federal courts are courts of limited jurisdiction, and in order to utilize the courts, there has to be some reason for the court’s jurisdiction.  If it’s a lawsuit that deals with federal law, it can be brought in federal court.  If it’s a lawsuit involving citizens of different states, then the federal court can have subject matter jurisdiction under 28 USC 1332, which gives it jurisdiction under what is called “diversity jurisdiction.”  When the court handles a case under diversity jurisdiction, some federal rules apply and some state law applies.  Generally, in a federal court diversity proceeding, federal procedural rules apply and state substantive law applies.  The federal court runs the proceedings under its own rules, but when it comes to what the underlying law is, it turns to state law.  Needless to say, whether an issue is procedural or substantive is often a big matter.

In this lawsuit under the court’s diversity jurisdiction, whether or not the “special motion to dismiss” contemplated by the DC anti-SLAPP act is procedural or substantive is at the heart of the issue.  If the “special motion to dismiss” proceedings are considered substantive, the provisions of the DC act are probably going to mean that Dean and YCRBYCH are out of luck – which is where he was headed in the matter in Superior Court.  But if the “special motion to dismiss” proceedings are procedural, the federal district court doesn’t have to follow the DC law’s provisions.

You may wonder why Dean’s crack legal team hadn’t considered this back when they filed the lawsuit.  We don’t know if they did or not, but we do know what happened in February 2012 that made all of this forum-hopping take place.

You see, on February 2, 2012, Judge Robert Wilkins of the federal district court issued his decision in 3M v. Boulter, a matter where the plaintiffs held off a dismissal by arguing that the DC anti-SLAPP law didn’t apply in federal court.  More here.

This is just what the Dean and YCRBYCH folks needed, but gosh darn it, they were in the wrong court!  So cue up a quick redrafting of the complaint with a federal court heading, a re-filing in the court where they might win the first round, all on the same day as a voluntary dismissal without prejudice in the Superior Court action.  Problem solved!

Not so fast, said MSNBC’s and Maddow’s lawyers.  The next day, February 22, a status conference call was held with the court about this trick.  After hearing from all parties, Judge Zeldon of the Superior Court told defendants MSNBC and Maddow that if they had issues, they should file a motion to vacate the voluntary dismissal and reinstate the action.  They quickly did so.

While all of this was going on, the defense lawyers were at work in the federal action filing motions seeking the stay of that action while the state court action was pending.  Under a doctrine known as Colorado River abstention (from the case of Colorado River Water Conservation District v. United States, 424 U.S. 800 (1976)), federal courts will stay and even dismiss actions that are duplicative of state court actions.  The defendants also moved to dismiss on the merits, essentially bringing a “special motion to dismiss” under the DC anti-SLAPP lawsuit in this federal action as well.

But meanwhile, back before Judge Zeldon in Superior Court, the defendants were raising holy hell about all the work they’d done only to have the plaintiffs try to walk away from the action.  This did not fall on deaf ears, and on April 23, Judge Zeldon re-opened the case.  On May 7, the defendants moved the court for an order granting them attorneys’ fees for all of the time they’d wasted.  They’d been defending the action for months, only to have Dean and YCRBYCH go all Emily Litella on them and say “Nevermind.”

Judge Zeldon agreed that this had been a monumental – and expensive – waste of time.  On June 25 ordered Dean to pay $24,625.23 to MSNBC’s and Maddow’s lawyers if he wanted to dismiss the Superior Court action without prejudice.

In essence, only if Dean paid that money would he be allowed to walk away from the lawsuit.  Tough choice for our intrepid heavy metal man of Jesus.

Now I know that for many, that $24,625.23 figure seems like a lot of money.  But for the level of attorney time that has gone into this matter at the Superior Court level, that’s a fraction of what the defendants have spent defending this case.  Trust me on this one.

But the real kicker here?  While the wrangling about the future of the Superior Court action was being played out, on May 14, the federal court action was “stayed pending the final resolution of Dean v. NBC Universal et al., Case Number 2001 CA 006055 B, currently pending in the Superior Court of the District of Columbia.” (Minute Order, Court File No. 12-00283, entered May 14, 2012.)

Dean’s response to all of this?  Judge Zeldon is acting like “a woman scorned.”

Good luck with that one, Bradlee.

Update by Steve: According to Andy, he was dismissed from the Superior Court action for lack of jurisdiction over him.

Further update by MNO: Yep, Andy never did any of what he is alleged to have done while in the District of Columbia.  As such, the Superior Court didn’t have personal jurisdiction over him.  And he’s not involved in the federal lawsuit, because if he were named as a defendant, it would have destroyed diversity because Bradlee and Andy are residents of the same state.  I suspect that is all they will ever have in common.