Virginia Lawyers Weekly VA Lawyers Weekly
When a man voluntarily dismissed a defamation suit against his ex-wife before she moved to dismiss in federal court, she cannot recover attorneys’ fees pursuant to Virginia’s “anti-SLAPP” statute, the Eastern District of Virginia has ruled in a matter of first impression.
A similar hypothetical was posed in the defamation case Johnny Depp filed against his former wife Amber Heard.
Here, Judge Rossie D. Alston Jr. concluded that “[f]or attorney’s fees to be recovered, the [‘anti-SLAPP’] statute requires a suit to be dismissed because of the defendant’s immunity, [not] when the case ends with a voluntary dismissal or nonsuit.”
The July 5 opinion is Hutchens v. McDougal (VLW 022-3-285).
The dismissal
Stephen L. Hutchens sued his ex-wife, Amy E. McDougal, claiming she made defamatory statements during a background investigation for his government job. Among other statements, McDougal told the investigators that Hutchens wasn’t in compliance with their divorce order.
Hutchens initially filed in state court. McDougal had the case removed to the Eastern District.
Two months later, Hutchens filed a notice of voluntary dismissal, which the court granted the next day without prejudice. McDougal did not file a motion to dismiss in the Eastern District before Hutchens moved to voluntarily dismiss the matter.
Two weeks after dismissal, McDougal requested attorneys’ fees pursuant to the Virginia “anti-SLAPP” statute. She provided the court with an order and transcript of a state court ruling that Hutchens was in contempt for violating their divorce order.
McDougal argued that Hutchens sued her for the improper purposes of intimidation, harassment and retaliation and that she was protected from such suits under the anti-SLAPP statute. She also argued that the statute only requires that a suit be dismissed, and that it is immaterial whether that dismissal is voluntary or involuntary.
But Hutchens claimed that attorneys’ fees could be awarded only if McDougal was immune from suit under the anti-SLAPP statute — not if the case was dismissed voluntarily.
Recovery denied
In answering what he called a “novel question” that hasn’t been resolved by the Virginia courts, Alston said the purpose of the anti-SLAPP statute was “to deter harassing lawsuits aimed at individuals exercising their First Amendment right to freedom of speech, particularly in matters of public concern” by allowing them to recover costs.
The judge said this case required him to “determine whether attorneys’ fees are authorized by Virginia’s anti-SLAPP statute for a defendant when a plaintiff voluntarily dismisses a case before ever receiving a ruling on the merits of the claim.”
The statute provides that “any person who has a suit against him dismissed or a witness subpoena or subpoena duces tecum quashed pursuant to the immunity provided by this section may be awarded reasonable attorney fees and costs,” Alston noted.
The 4th U.S. Circuit Court of Appeals has held that attorneys’ fees may be granted upon the dismissal of a case, provided the dismissal is pursuant to the defendant’s anti-SLAPP immunity.
“Other courts agree, requiring that the dismissal of the case be pursuant to the immunity provided in the statute,” Alston wrote. This included the Depp case, where the court concluded that if Depp were to nonsuit then Heard would not have been able to recover on her counterclaim of anti-SLAPP immunity.
Looking to the plain meaning of the statutory language, the judge noted that the “pursuant to the immunity” language was “best read using the series-qualifier rule.”
Under that rule, the “‘pursuant to the immunity’ modifier does not only apply to quashed subpoenas, as the modifier follows a ‘concise and integrated clause,’ which allows ‘pursuant to the immunity’ to modify the entire preceding clause.”
Therefore, the judge said, an individual may only seek attorneys’ fees under Virginia’s anti-SLAPP statute when a case is dismissed “pursuant to the immunity the statute confers.”
Here, Hutchens voluntarily dismissed the case and did not provide McDougal’s anti-SLAPP immunity as the reason.
“Nor was there any decision by this court on the merits of the case, much less a dismissal on the merits,” Alston continued.
In summary, the judge said, for attorneys’ fees to be available “the statute requires a suit to be dismissed because of the defendant’s immunity [and] that requirement is not met when the case ends with a voluntary dismissal or nonsuit” as it did here.
