A brief excerpt from Judge Mary Kay Vyskocil’s 15,000-word opinion, issued Friday in Wolff v. Trump in the Southern District of New York:
In this dispute, a chronicler of the First Family sues the First Lady after she threatened to sue him for defamation. Although the plaintiff and the First Lady have a legitimate disagreement, they must resolve it under the same procedures that apply to everyone else.
The plaintiff seeks a declaration that, should the First Lady bring suit against him, he should prevail. That is not how the federal courts operate. He also contends that the case should not be heard in federal court at all. But, although the dispute may have originated in state court, removal to federal court was proper. The parties reside in different states, and the threatened suit seeks damages totaling a billion dollars.
There are many features that make this case intricate: the high-profile figures involved, the provocative nature of the underlying statements, and, frankly, a troubling level of tactical maneuvering. Yet the outcome is straightforward. The Court will not be enlisted to oversee a spat framed in an abusive manner and thus declines to address the merits here….
From the Complaint, here are Melania Trump’s allegations of what statements are defamatory (the emphasis appears to originate in her demand letter):
“Melania Trump ‘Very Involved’ in Epstein Scandal: Author.”
“First Lady Melania could be the missing link in President Trump’s ties to convicted sex offender Jeffrey Epstein.”
“Melania was ‘very involved’ in Epstein’s social circle, and noted that this is how she met Trump.”
“She’s introduced by a model agent, both of whom Trump and Epstein are involved with. She’s introduced to Trump that way. Epstein [knew] her well.”
“In explosive tapes recorded by Wolff, Epstein alleged that Trump liked to ‘f—his friend’s wives and first slept with Melania on his ‘Lolita Express.’“
“Where does [Melania] fit into the Epstein story? Where does she fit into this, into this whole culture of models of indeterminate age?”
“Epstein told [you], that Trump and Melania got together the first time [] on Epstein’s airplane,” and that “Melania met Trump through the same modeling circles through which Epstein and Trump procured dates.”
“This sham marriage, trophy marriage, hardly any marriage at all is part of the scam.”
“The Epstein story, in which Melania plays no small part.”
“Where does Melania fit in with Epstein?”
“You stated that Mrs. Trump is sending letters threatening to sue anyone who makes the connection between her and Epstein because they are hiding something they don’t want us to know.”
Back to the court’s opinion:
This case is presented to the Court in a somewhat contorted posture: A would-be defamation defendant sues a would-be defamation plaintiff in New York state court. He seeks a declaration that statements identified in a demand letter threatening litigation under Florida law are not defamatory, and, further, that any such litigation would violate—or, perhaps, has violated already—New York’s anti-SLAPP law. Thereafter, the would-be defamation plaintiff removes the action to federal court, and moves to dismiss.
On the merits, the central issue here is whether the Plaintiff’s public statements about the First Lady were defamatory. But that question, however much attention it has received in the media, is not yet before the Court. Instead, the Court must first decide whether it can hear this case at all. The Court must next assess whether it would be prudent and economical to do so….
As presented to this Court, the pending claims for declaratory judgment are not obviously appropriate for determination. While the Court believes it could potentially decide them, for reasons discussed below it declines to reach the merits….
When a plaintiff seeks declaratory relief concerning past torts, courts generally decline to exercise jurisdiction over his claim. Here, the plaintiff asks the Court to bless as non-tortious certain public statements he has previously made about the First Lady. This constitutes an abuse of the Declaratory Judgment Act….
“[T]o permit a declaratory judgment action under the circumstances before us would amount to substituting the traditional procedures for adjudicating” speech-tort cases between private parties. More specifically, entertaining this case would reward the Plaintiff’s brazen attempt to “short-circuit” a Florida suit by the First Lady, granting him an improper procedural advantage by allowing him to “preempt the forum choice of the plaintiff to the coercive action.”
This is textbook bad-faith forum-shopping, whereby the Plaintiff asks the Court to collude by “exercising jurisdiction over [a] declaratory action[ ] motivated by a desire to seize the choice of forum from the real plaintiff.” The Plaintiff may or may not have defenses to the First Lady’s proposed defamation claim. Indeed, he may or may not have—now or later—anti-SLAPP defenses of his own. The Court takes no position on these possibilities. The Parties are free to pursue in good faith whatever claims they wish.
But it is disingenuous for the Plaintiff to claim that he had “no choice” but to preemptively file this action in New York…. There is absolutely no reason for him to be allowed to “rely solely on [the] past injuries” allegedly caused by Florida-facing claims “to obtain declaratory relief” that would thwart those same claims in a parallel action here.
The Court does note that the Plaintiff emphasizes the “chilling effect” that one might feel when sued for defamation. In other words, he argues that his claim concerns “not just past speech, but, importantly, future speech.” But fundamentally, he seeks the Court to adjudicate the tortious nature of statements he has already made, and to do so in a forum other than the one where litigation is already threatened (or perhaps pending). That he apparently wishes to repeat those statements does not entitle him to “short-circuit” the Florida lawsuit here.
{If, on the other hand, his aim is to request the Court to review statements he has never before uttered, the Court declines to provide that assistance. Indeed, as discussed, the Court seriously doubts that it would have jurisdiction to issue an opinion setting the boundaries within which any such statements would be immune from future litigation.}
The Court’s assessment of the Plaintiff’s gamesmanship leads to the conclusion that he should simply pursue the “adequate remedy” available by asserting his defenses and counterclaims in the action he argues is pending “between the same parties” in Florida, where “all of the same issues raised in the declaratory judgment action are also in dispute.” The Florida action may already be pending, or it may merely be prospective. In any case, it bears directly on whether there is a better or more effective remedy for resolving this dispute.
It does not trouble the Court that a defensive action in Florida may not offer him “an opportunity to ventilate the same state-law issues” as an offensive case in New York would. What Florida may be missing—depending on a choice-of-law analysis the Court does not undertake here—are “the more protective policies” embodied in New York’s anti-SLAPP regime. This simply confirms the unambiguous reality already noted: the Plaintiff’s move here constitutes an improper rush to file first in anticipation of litigation elsewhere, thereby enabling him to choose the applicable forum and governing law and to interfere with or frustrate the First Lady’s pursuit of claims elsewhere.
Relatedly, “the use of a declaratory judgment would heighten friction between sovereign legal systems [and] improperly intrude on the realm of a state … court,” undercutting “judicial efficiency and … economy,” and potentially failing to “clarify,” “settle,” and “finalize” the dispute. In resisting the First Lady’s right to select a forum for her initial coercive action, and her right to remove to a federal forum in the second phase, the Plaintiff has brought this matter before the Court in a posture of evident confusion.
He asks a federal court to import “the more protective policies of New York State and its own constitutional protections of free speech” as reflected in New York’s anti-SLAPP law, in a hypothetical adjudication of a Florida-based defamation suit. Confronted with this procedurally tangled request, the Court declines to amplify “[the risk of potentially contradictory fact-finding between state and federal courts on [the] central issue” of the truth or falsity of the Plaintiff’s statements about the First Lady. It will not, moreover, venture a “needless” ruling on the scope of New York’s anti-SLAPP law. Reaching the merits here would amount to an improper use of the judicial system and a waste of its resources.
The First Lady was entitled to have the Plaintiff’s action against her adjudicated in a federal court under federal procedure. The action concerns an actual live controversy, but it is one that should be resolved by the traditional procedures for adjudicating speech-tort cases between private parties. Accordingly, it should not be resolved here….
Alejandro Brito (Brito, PLLC) and Caryn Gail Schechtman and Steven Rosato (DLA Piper US LLP) represent Melania Trump.
