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Publisher’s Notebook: A lesson in Civ Pro

Paul Fletcher//August 30, 2021

Publisher’s Notebook: A lesson in Civ Pro

Paul Fletcher//August 30, 2021//

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Johnny Depp and Amber Heard, in happier days (Deposit Photos)
Johnny Depp and Amber Heard, in happier days (Deposit Photos)

The defamation suit filed by actor Johnny Depp against his ex-wife, Amber Heard, took a new twist this month, as at least the fourth Circuit Court opinion in the case was issued.

The case started two years ago over a 2018 op-ed that Heard wrote for The Washington Post. As Fairfax Circuit Judge Penney Azcarate put it, Depp, “believing that Defendant’s statements falsely characterized him as a domestic abuser, filed his defamation claim on March 1, 2019.”

Last year, Heard filed a countersuit against Depp, claiming he defamed her in an interview with GQ, among other publications.

The decisions, up to this point, were issued by now-retired Fairfax Circuit Chief Judge Bruce D. White, who ruled that the case should stay in Virginia (Heard wanted it moved to California) and that some of Heard’s claims against Depp survived demurrer (Depp wanted them all kicked).

Azcarate drew the straw to get the Depp v. Heard case and in the latest installment (VLW 021-8-106), she got to decide the impact, if any, on the Fairfax proceedings of a case Depp brought against a British tabloid.

As the judge here put it, “Prior to the commencement of Plaintiff’s suit in Fairfax County Circuit Court, Plaintiff brought suit in the United Kingdom (“UK”) against News Group Newspapers, the publisher of The Sun newspaper, for claims of defamation regarding The Sun’s publication of a 2018 column referring to Plaintiff as a ‘wife beater.’”

In November of last year, she continued, “[T]he Judge in the UK litigation ruled against Plaintiff, finding The Sun’s statements were substantially true and thus a defense to defamation.”

On March 25, 2021, the UK Court of Appeal upheld the trial court’s ruling against Depp and in favor of The Sun, denying his application for permission to appeal.

“Plaintiff’s litigation in the UK against The Sun became final on April 6, 2021,” Azcarate wrote.

What happened next? Heard “moved for leave to amend her plea in bar to dismiss Plaintiff’s Complaint based on collateral estoppel, res judicata, comity, and the Uniform Foreign-Country Money Judgments Recognition Act.”

The judge added, “Ultimately, Defendant argues the UK’s finding that Plaintiff is a ‘wife beater’ should be given preclusive effect in this Court.”

That’s a lot of ways to get a court to dismiss a lawsuit. Spoiler alert: None of them worked here.

Azcarate’s 11-page opinion reads like a lesson in civil procedure.

She marched through the various arguments, ultimately tossing each one. Keep a copy of this case handy, because the judge cites all the major decisions you’ll need if and when you’re facing any one of these motions.

Collateral Estoppel. Stops a second lawsuit. Parties and their privies can’t litigate an issue already decided in the first action. Privity sometimes is the key and the Virginia high court says it should be construed narrowly.

That was the case here.

Heard  argued “she was in privity with The Sun because they both had the same interest in the case. However, for privity to exist, Defendant’s interest in the case must be so identical with The Sun’s interest such that The Sun’s representation of its interest is also a representation of Defendant’s legal right.”

The judge wrote, “The Sun’s interests were based on whether the statements the newspaper published were false. Defendant’s interests relate to whether the statements she published were false. Although the claims are similar in the sense they both relate to claims of abuse by Plaintiff, the statements being defended in the UK case are inherently different than the statements published” by Heard. No provity.

The judge next spent several pages examining whether there was mutuality in the case. Short answer: no.

Res judicata. Prevents a party from retrying issues already settled in a prior case.

Not the case here, Azcarate ruled.

After reviewing the case law and some legislative history relating to res judicata, the judge said, “Defendant’s claim of res judicata is especially puzzling. At the time Plaintiff initiated his suit against The Sun, Defendant had not even released her op-ed. Plaintiff’s defamation claim in the UK was based on completely different statements than the present case. The specific statements uttered in defamation cases are incredibly important.”

She continued, “The statements from The Sun and from Defendant are not related in time; several months passed between the publication of the two collective statements. They are not related in motivation; they are not related in space. The only relation is the origin, as both statements arose from Plaintiff’s alleged abuse.”

She found it “would be nonsensical to find that any statement relating to whether Plaintiff abused Defendant arose from the same transaction or occurrence simply because they come from the same origin.” No res judicata.

OK, Heard’s lawyers next said, how about grounds of comity?

Comity, first acknowledged by the Supreme Court of Virginia in 1942, is “defined as the recognition and effect which a forum jurisdiction gives within its territory to the legislative, executive, and judicial acts of a foreign jurisdiction,” based on a number of factors.

One factor is whether the procedural and substantive law applied by the foreign court are comparable to that of Virginia. (Call that foreshadowing).

Azcarate said, “[T]he libel laws of Virginia are starkly different than those of England. The Declaration of Independence and the First Amendment of the United States Constitution represent major departures from the English Common Law with respect to freedom of speech and freedom of the press.”

And given “the differences between Virginia and UK law regarding trials by jury and libel laws, the Court is hesitant to apply preclusive effect to the UK finding, especially considering Defendant was not a party in the UK suit and was not subject to the same discovery requirements in that suit,” she said. Strike three. No comity.

The judge denied Heard’s motions. But she also wouldn’t give Depp his lawyer’s fees or sanctions.

She wrote, “While Defendant’s Supplemental Plea in Bar was misguided and only thinly supported by preexisting law, it is not sanctionable.”

If everyone goes away unhappy, call that a good and appropriate result. Stay tuned. There will be more, no doubt.

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