Forras v. Rauf

• Decision Date: 18 April 2014
• Docket Number: CIVIL ACTION NO. 12–00282BJR
• Citation: 39 F.Supp.3d 45
• Parties: Vincent Forras, et al., Plaintiffs, v. Imam Feisal Abdul Rauf, et al. Defendants.
• Court: U.S. District Court — District of Columbia

39 F.Supp.3d 45

Vincent Forras, et al., Plaintiffs

v.Imam Feisal Abdul Rauf, et al. Defendants.

CIVIL ACTION NO. 12–00282BJR

United States District Court, District of Columbia.

Signed April 18, 2014

Larry E. Klayman, Law Office of Larry Klayman, Washington, DC, for Plaintiffs.

Christopher G. Hoge, Crowley, Hoge & Fein, P.C., Washington, DC, for Defendants.

MEMORANDUM OPINION GRANTING DEFENDANTS' SPECIAL MOTION TO DISMISS

BARBARA J. ROTHSTEIN, UNITED STATES DISTRICT JUDGE

Plaintiffs Larry Klayman and Vincent Forras bring this action against Defendants Imam Feisal Abdul Rauf and Adam Leitman Bailey to recover damages for defamation, false light, assault, and intentional infliction of emotional distress. Before the Court is Defendants' motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(1), (2), (3) and (6), and special motion to dismiss under the District of Columbia Anti–Strategic Lawsuits Against Public Participation Act of 2010 (the “Anti–SLAPP Act”), D.C. Code § 16–5501 –5505. Defendants' Memorandum of Law in Support of Motion to Dismiss and For Attorneys' Fees (hereinafter “Mot. to Dismiss”) at 3. Upon careful consideration of the parties briefs, submissions, and exhibits, the Court concludes for the following reasons that Defendants' special motion to dismiss must be granted.

I. BACKGROUND

This litigation springs out of the efforts of Imam Rauf and members of the Islamic community in New York City to build an Islamic community center on Park Place in lower Manhattan, several blocks away from the site of the tragic destruction of the World Trade Center in the September 11, 2001 attacks. Complaint (“Compl.”) ¶¶ 3, 4.

A. Plaintiffs' New York Supreme Court Action

On September 9, 2010, Plaintiff Forras, through his attorney Plaintiff Klayman, brought an action in the Supreme Court of the State of New York, New York County against Defendant Imam Rauf, alleging that Rauf's plan to construct the community center constituted nuisance, intentional and negligent infliction of emotional distress, and assault. See Forras v. Rauf, No. 111970/2010, 39 Misc.3d 1215(A), 2012 WL 7986872 (N.Y.Sup.Ct. Sept. 26, 2012) (the “New York Action”). Defendant Bailey represented Rauf.

Forras claims to have been a “first responder” to the terrorist attacks of September 11, 2001 and has made himself an outspoken public advocate on issues regarding the September 11 attacks, personally and through an organization he founded, the Gear Up Foundation. Compl. ¶ 7.

Klayman is a “publically known civil rights and individual rights activist.” Id. Personally and through an organization he founded, Freedom Watch, he engages in political commentary and institutes litigation on behalf of causes he advocates. Id. ¶2.

On October 7, 2010, Rauf (through his attorney, Bailey) filed a motion to dismiss the New York Action. The “Memorandum of Law in Support of Motion to Dismiss” stated in pertinent part:

“Plaintiff's attorney, an infamous publicity hound, has found in Plaintiff the perfect victim, a man who could have comfortably concluded his life as a national hero, as [a] self-described ‘first responder’ to the greatest national tragedy since Pearl Harbor. Instead, thanks to this wholly frivolous lawsuit, he trades in his well deserved laurels for fifteen minutes of fame as a nationally recognized bigot.”

“His cause and his case have all the rationality of one who would seek to tear down New York City's Chinatown as vengeance for Pearl Harbor on the theory that all Asians are alike.”

“Plaintiff's view is simple. According to him, Islam equates with terrorism....”

“Yet because [ ] Plaintiff's revulsion for one particular religion has so poisoned his mind, he claims the right to use the power of the court....”

“He has elected to transform himself from America's poster child hero to America's Spokesman of Bigotry ...”

“That the plaintiff in this suit finds Islam unacceptable to him personally is simply irrelevant to the protection which Islam is entitled under the First Amendment ...”

“... we find that Plaintiff has nothing to offer but his bigoted assumption that all Muslims approve terrorism ...”

Id. ¶9. Bailey submitted an affidavit in the New York Action, which stated:

“I am an American and profoundly proud to be a citizen of the greatest most diversely embracing nation the planet earth has ever had in all of its recorded history.”

“I am a Jew and profoundly proud to adhere to the nation that brought to Western Civilization the commands to love one's neighbor as oneself and not to oppress the foreigner for we were once strangers in another land.”

“I will not let the right to the free exercise of religion be confined by narrowness of vision and I will not let the right to erect a house of prayer to be torn down by blind bigotry.”

“When in the days following an analogous atrocity in 1941 our people marshaled their will and marched off, nobody was an American of this type. We were all united under a single banner pledged to eradicate the very kind of religious intolerance we see in Plaintiff, represented in those years by the Third Reich and those aligned with it.”

Id. ¶10.

On October 12, 2010, the New York Post reported on the motion to dismiss in an article entitled “Anti–Mosque Lawsuit Slammed as Bigotry .” Id. ¶11; Annie Karni, Anti–Mosque Lawsuit Slammed as Bigotry, N.Y. Post, Oct. 12, 2010. The article quoted the Defendants' statement in their dismissal motion that the New York Action was “motivated by ‘blind bigotry.’ ” Affidavit of Larry Klayman in Support of Plaintiff's Opposition to Defendants' Motion to Dismiss and For Attorneys Fees, Exhibit 1.

On January 2, 2011, Klayman cross-motioned for sanctions, objecting to the language of the dismissal motion and citing the New York Post article. On April 5, 2011, the Honorable Lucy Billings orally denied the sanctions motion because Defendants' “controversial statements” were “related to their litigation.” Declaration of Adam Leitman Bailey in Support of Defendant's Motion to Dismiss and for Attorneys' Fees (hereinafter “Bailey Dec.”), Exhibit 5.

On September 26, 2012, Justice Billings granted Defendants' motion to dismiss the action for failure to state a claim. Forras, 39 Misc.3d 1215(A), 2012 WL 7986872.

B. Plaintiffs' D.C. Superior Court Action

On October 11, 2011—after the court in the New York Action orally denied Klayman's motion for sanctions, but before the court granted Defendants' motion for dismissal—Klayman and Forras filed a complaint against Rauf and Bailey in the District of Columbia Superior Court. See Vincent Forras & Larry Klayman v. Iman Feisal Abdul Rauf & Adam Leitman Bailey, 2011 CA 0008122 B (D.C.Super. Aug. 7, 2012) (the “D.C. Superior Court Action”). Forras and Klayman sought to recover damages for defamation, false light, assault, and intentional infliction of emotional distress stemming from the statements Defendants made in their motion to dismiss the New York Action, and the subsequent partial publication of those statements in the New York Post. Declaration of Christopher G. Hoge in Support of Defendant's Motion to Dismiss and For Attorneys' Fees, Exhibit 2.

On February 21, 2012, Plaintiffs, after having been granted three extensions of time by the Superior Court, commenced the present action in this Court and filed a Notice of Dismissal in the Superior Court. Id., Exhibit 5. Plaintiffs explained that they wanted to take advantage of a recent federal court decision, 3M v. Boulter, 842 F.Supp.2d 85, 93–111 (D.D.C.2012), which declined to apply the Anti–SLAPP Act to federal diversity cases. Id.

C. The Present Action

Plaintiffs' Complaint in the instant case is identical in substance to the D.C. Superior Court Action complaint. Plaintiffs allege defamation, false light, assault, and intentional infliction of emotional distress stemming from the statements Defendants made in their motion to dismiss the New York Action, and the subsequent partial publication of those statements in the New York Post. Compl. ¶¶ 1, 8–10.

Defendants present a mélange of reasons why this case should be dismissed. They have filed a motion to dismiss under Rules 12(b)(1), (2), (3) and (6) and a special motion to dismiss under the Anti–SLAPP Act, which authorizes dismissal where a defendant shows that the claims at issue arise from an act in furtherance of the right of advocacy on issues of public interest.¹ The Court will resist the temptation to deal with all of Defendants arguments and will instead focus on Defendants' Anti–SLAPP Act and statute of limitations arguments. Mot. to Dismiss at 3. Because the Anti–SLAPP Act instructs courts to address special motions to dismiss on an expedited basis, see D.C. Code § 16–5502(d), the Court gives that motion priority and will address it first.

II. SPECIAL MOTION TO DISMISS UNDER THE ANTI–SLAAP ACT

A. Applicability of the Anti–SLAPP Act in Federal Diversity Actions

As a threshold matter, Plaintiffs argue that the Anti–SLAPP Act's special motion to dismiss provisions do not apply in federal proceedings where, as here, the court's jurisdiction is based on diversity. See Erie v. Tompkins, 304 U.S. 64, 58 S.Ct. 817, 82 L.Ed. 1188 (1938) (federal courts sitting in diversity must apply state substantive laws and federal procedural laws); see also Compl. ¶ 1 (invoking the Court's diversity jurisdiction). Plaintiffs rely exclusively on 3M Co. v. Boulter . In that case the Court held that the Anti–SLAPP Act “squarely attempts to answer the same question that [Federal Rules of Civil Procedure] 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity.” 842 F.Supp.2d 85, 102 (D.D.C.2012) (Wilkins, J.).

While thoroughly reasoned, 3M Co. conflicts with the weight of authority. Indeed, three Courts of Appeals have deemed it appropriate to enforce state anti-SLAPP laws in diversity actions, finding no conflict between those statutes' special motion to dismiss provisions and Federal Rules of Civil Procedure 12 and 56. See Godin v. Schencks, 629 F.3d 79, 81...