In early October I announced that I would be joining Ron Coleman in a pro bono defense of Patrick Frey of Patterico's Pontifications and his wife Christi Frey in response to a federal lawsuit filed by Nadia Naffe here in the Central District of California.
Today I write to offer pleadings for anyone interested in the case, and a pleasing update regarding its status. As long as litigation continues, I'll refrain for both prudential and stylistic reasons from arguing our case here, other than to say we continue to believe the case is an abusive and meritless attempt to retaliate against protected speech. As a result, I won't be explaining the motions or legal theories, or helping you decipher legalese. You're on your own. Sorry.
The following are conformed copies of the relevant documents, all filed publicly on PACER:
The Motion to Dismiss:
The Anti-SLAPP Motion:
The Notice of Dismissal
As you can see, Ms. Naffe dismissed all claims against Mrs. Frey in response to our motions.
Today I appeared before Judge George H. Wu on our motions. His written tentative ruling is attached here. Note, as stated in footnote 1, that he treats allegations of fact in the Complaint as true for purposes of the motion to dismiss, as is appropriate; that's not a finding that the allegations are true. Many are not.
In brief, Judge Wu agreed with us that the Complaint failed to state a claim under 42 U.S.C. section 1983 because the facts alleged do not show that Mr. Frey was acting "under color of state law," as is required under that statute. After argument, he gave Ms. Naffe what he described as "just one chance" to amend — that is, he gave her a chance to file an amended complaint to see if she could plead facts sufficient to satisfy the requirements of Section 1983. Generally judges err in favor of giving a chance to amend.
Judge Wu did not reach the anti-SLAPP motion or the state law claims it addresses Rather, he questioned — on his own, not at our urging — whether Ms. Naffe could satisfy the damage cutoff for diversity jurisdiction, which is one of her asserted bases for federal jurisdiction. To the extent Ms. Naffe relied upon federal question jurisdiction based on her Section 1983 claim, Judge Wu indicated he would exercise his discretion to refuse to extend supplemental jurisdiction over the state law claims. In other words, Judge Wu questioned whether a federal court should hear the state claims at all. That will undoubtedly be the subject of the next set of motions.
I'm pleased that Ms. Naffe dismissed all claims Mrs. Frey in response to our motions. Although the case continues, I'm also pleased with this result, and look forward to challenging Ms. Naffe's amended complaint to vindicate the crucial First Amendment issues involved. Patrick's trying a case, so you probably won't get an update from him any time soon.
A Note About Sarcasm
I'm only going to address one minor issue in the briefs and the tentative ruling, because it involves me and this blog. In March, well before Ms. Naffe sued and I appeared in this case, I wrote a post about Ms. Naffe's threats against Mr. Frey. In that post, referring to Mr. Frey's point-by-point questioning of Ms. Naffe's accusations against James O'Keefe, I dropped this line:
The defense attorney in me is tempted to say that this is the most thorough consideration of exculpatory evidence that I have ever seen from a Los Angeles County Deputy District Attorney, but that would be uncouth, so I will not, and you should definitely forget that I brought it up.
I thought that this was self-evidently a joke, a friendly swipe by a snarky criminal defense lawyer talking about a prosecutor. I was rather surprised to see both Ms. Naffe's counsel and — in response – the judge seem to take it literally. Such are the hazards of sarcasm. Or maybe I should say, as I always do to my wife, kids, law partners, and anyone who will sit still, that nobody understands me.