WILMINGTON, Del. (Legal Newsline) – Michael Avenatti will not have the opportunity to add a defendant to his defamation lawsuit against Fox News or remand the case to Delaware Superior Court, per a federal appellate judge.
Avenatti, known for representing adult-film actress Stormy Daniels in her lawsuits against President Donald Trump and an alleged extortion scheme involving Nike, sued Fox News over its coverage of his 2018 arrest for domestic violence. Formal charges were not filed.
What he called defamation, Fox News called accurate reporting.
“The gravamen of Mr. Avenatti’s claim is that while he was arrested ‘on suspicion’ of domestic violence, he was never ‘charged’ with a crime,” the network’s counsel said.
Despite the case being filed in Delaware, the defendants said California law should control it and that Avenatti missed the statute of limitations to sue when he waited until November 2020.
They also said he has failed to plead Fox News acted with actual malice, a standard for libel lawsuits that Trump’s campaign was recently unable to clear in a case against CNN.
UPDATE
After the complaint was removed to federal court, Avenatti filed an amended version which added a new defendant, Jonathan Hunt, and filed paperwork seeking to remand the action.
“Hunt resides in California. So Avenatti now moves to remand because there is no longer complete diversity of citizenship, depriving this Court of diversity jurisdiction. His motion does not explain why he did not name Hunt as a defendant at first, even though the original complaint mentioned him,” U.S. Court of Appeals for the Third Circuit Judge Stephanos Bibas (sitting by special designation), said.
However, Bibas added that federal jurisdiction could not be negated simply by Hunt’s addition to the case.
“The minor substantive differences between the two complaints confirm Avenatti’s purpose [for Hunt’s addition]. The original complaint mentions Hunt, noting that he said on the air that Avenatti ‘left court last night’ after the arrest (which Avenatti says is false). All the amended complaint adds is the label ‘Defendant’ right before ‘Hunt,” Bibas said.
“The amended complaint also includes one more substantive allegation, charging Hunt and Fox News with publishing an internet article stating that Avenatti was ‘out on bail after domestic violence charge[s]’ and that he ‘was formally charged last week with felony domestic violence.’ But Avenatti had already charged Fox News and the other employees with making nearly identical statements on the air and on the web. The extra article adds little.”
Bibas pointed out that Avenatti knew about Hunt’s potential liability at the outset and mentioned Hunt in the original complaint, but did not explain why he wasn’t an initial defendant.
“All he does say, in his reply brief and without elaboration, is that he did not know of the additional article until after he filed in state court. That claim is suspicious: no discovery had occurred yet, so he had no occasion to learn anything new. In short, Avenatti’s evident purpose was to destroy diversity jurisdiction. Under Hensgens, that factor favors remand,” Bibas said.
“Avenatti amended quickly, so he was not dilatory under another Hensgens factor. But that does not overcome my conclusion that he added Hunt to defeat diversity jurisdiction and will not suffer if I drop him. Because Avenatti probably added Hunt only to defeat federal diversity jurisdiction, I am dropping Hunt from the case. I thus deny Avenatti’s motion to remand.”
Fox News personalities included as defendants in the case include Sean Hannity, Laura Ingraham and Bret Baier. They are represented by attorneys at Ross Aronstam & Moritz and Brown George Ross.
From Legal Newsline: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com