Sherrod v. Breitbart [1]

On February 11, 2011, former United States Department of Agriculture official Shirley Sherrod filed in District of Columbia Superior Court a defamation lawsuit against Andrew Breitbart and Larry O'Connor, two individuals involved with the prominent conservative political blog BigGovernment.com. The complaint also names a John Doe defendant.

The complaint [2] stems from a March 2010 speech Sherrod gave to the NAACP, and the defendants' subsequent treatment of that speech. On July 19, 2010, Breitbart posted [3] on BigGovernment an edited video of Sherrod's speech, along with allegations that Sherrod carried out her USDA duties "through the prism of race and class distinctions." The complaint also discusses slides added to the video of the speech that allege that Sherrod "discriminates against people due to their race." Along with Breitbart's post discussing Sherrod's speech, the complaint also alleges that O'Connor posted the edited video to YouTube, and that the John Doe defendant provided Breitbart and O'Connor with the unedited video and assisted in editing it.

After the defendants' alleged actions, Sherrod left her job with the USDA; the complaint alleges that the White House asked for her resignation because of the edited video and ensuing media uproar. Sherrod's complaint alleges defamation (for the edited video, blog post, and a Twitter post promoting the video and post), false light, and intentional infliction of emotional distress, and also seeks punitive damages.

The defendants removed [4] the case to the U.S. District Court for the District of Columbia. Sherrod responded by moving to remand [5], arguing that the other defendants knew that the John Doe lived in Georgia (where Sherrod lives), and that Doe's citizenship defeats federal diversity jurisdiction. The defendants opposed [6] remand on the grounds that a John Doe defendant's citizenship is irrelevant for diversity-jurisdiction purposes.

On the same day (April 18) that they filed their opposition to remand, the defendants moved to dismiss, both pursuant to Federal Rule 12(b) [7] and under the D.C. Anti-SLAPP Act [8]. The Rule 12(b) motion argues improper venue (with an alternative request to move the case to California, where Breitbart and O'Connor live), as well as substantive grounds (that the blog post was non-actionable opinion, and that the edited video was an accurate depiction of Sherrod's speech). The anti-SLAPP motion incorporates the motion to dismiss in arguing that Sherrod cannot show that her claims are likely to succeed.

On May 19, Sherrod filed memoranda opposing both motions to dismiss. Her opposition [9] to the anti-SLAPP motion argues, among other things, that the D.C. Anti-SLAPP Act was passed after the lawsuit began and does not apply retroactively, and/or that it does not apply in federal court. Her opposition [10] to the Rule 12(b) motion argues both that venue in D.C. is proper, and that the defendants' comments are non-opinion and "indefensible." Sherrod also filed a reply [11] in further support of her motion to remand. On June 3, the defendants filed replies [12] in support [13] of both motions to dismiss.