By: D.T. COLEN / FASP FOUNDER
Last Updated: Monday, May 1, 2017
Accomplished attorneys who are successful in their practice and respected by their peers, for the most part, are not the ones who are going to file a bogus defamation lawsuit.
There's far too much risk involved. It's typically the younger ones who are desperate to feel relevant and even more eager for a payday.
(Think student loans).
Often times, phony defamation lawsuits are filed by a relative of the plaintiff. I can attest to this from personal experience.
In nearly three full decades of publishing for the mass
media (NBC, FOX, ESPN, CBSSportsline.com, AventuraUSA.com, among others), spanning a good million pages, give or take, in both print and hard‑copy format, I've been sued
for defamation a grand total of
three times. Of course, no one ever has won a penny from me or any company for which I ever worked. And of those three lawsuits, two were brought by attorneys doing a favor for their
father (or father-in-law).
So there's a good chance the attorney who files a meritless defamation lawsuit against you, to be perfectly blunt, is not going to have the first clue what he's doing.
That being the case, one of the first things you'll want to do after receiving service of a defamation complaint in the State of Florida is to consider whether you received proper
pre‑suit notice at least five days before the plaintiff's attorney submitted his lawsuit to the county clerk's office.
In the event that no such pre‑suit notice was delivered, be sure to file a Motion To Dismiss as your very first response to the complaint.
You'll want to set a quick hearing on the judge's motion calendar, and be sure to bring with you copies of the relevant case law, which appears below, for both the judge (who,
believe me, likely will be presiding over her very first defamation case and will not want to learn the law from a non‑attorney) and opposing counsel.
Each and every statement the plaintiff alleges to be defamatory, as well as the specific article in which those challenged statements were printed,
must be specifically cited in your pre‑suit notice, and all defendants in defamation lawsuits in the State of Florida must receive pre‑suit notification.
Keep in mind, too, that a cease‑and‑desist letter has absolutely nothing in the world to do with pre-suit notice in Florida defamation actions.
Therefore, if you received a garden variety C&D letter that does not explicitly state that a lawsuit is going to be filed against you, in as soon as five days, then the plaintiff
has not complied with pre‑suit notice under Fla Stat. § 770.01.
Plaintiffs in all civil actions in the State of Florida also are required to specifically "plead performance" with all pre‑suit requirements. Therefore, if there is
no specific paragraph in your complaint that indicates with particularity that the plaintiff has complied with Fla Stat. § 770.01, then you are entitled to a dismissal.
So if the complaint you were served does not contain proof of any pre‑suit notice, as well as an assertion of compliance of the same, then
you are absolutely entitled to a dismissal of the case. Any judge who does not rule accordingly is demonstrating her own ignorance, abusing her power,
and legislating from the bench (and in my opinion, should be removed immediately from her job).
The attorney in the defamation lawsuit I am currently defending made a desperate attempt to convince our judge that pre‑notice only applies to media defendants in the State of Florida.
Do not allow the judge presiding over your defamation case to be fooled by the same chicanery; the case law makes very clear that every defamation defendant must receive it.
This fact was established in
Wagner, Nugent, Johnson, et al. v. Flanagan 629 So.2d 113 (Fla. 1994)
Orlando Sports v. Sentinel Star, District Court of Appeal of Florida, Fourth District, 316 So.2d 607 (Fla. Dist. Ct. App. 1975),
Tobkin v. Jarboe, District Court of Appeal of Florida, Fourth District 695 So.2d 1257 (Fla. Dist. Ct. App. 1997), and
Comins v. Vanvoorhis, District Court of Appeal of Florida, Fifth District, 135 So.3d 545 (Fla. Dist. Ct. App. 2014):
Florida Statute 770.01 states: "Before any civil action is brought ... the plaintiff shall, at least 5 days before instituting such action, serve notice in writing on the defendant,
specifying the article or broadcast and the statements therein which he or she alleges to be false and defamatory."
Comins v. Vanvoorhis, District Court of Appeal of Florida, Fifth District, 135 So.3d 545 (Fla. Dist. Ct. App. 2014) and
Tobkin v. Jarboe, District Court of Appeal of Florida, Fourth District 695 So.2d 1257 (Fla. Dist. Ct. App. 1997):
"Although chapter 770 primarily addresses media defendants, we note the chapter is broadly titled Civil Actions for Libel.
We hold the above statute applicable to all civil litigants, both public and private, in defamation actions.
To rule otherwise would allow potentially endless liability since Florida Statutes contain no statute of repose for this particular tort.
We doubt the legislature would have intended this."
Wagner, Nugent, Johnson, et al. v. Flanagan 629 So.2d 113 (Fla. 1994):
"Chapter 770 is applicable to all civil litigants, both public and private, in defamation actions."
Rolle v. Cold Stone Creamery 212 So. 3d 1073 (Fla. Dist. Ct. App. 2017):
"The Letter did not explicitly threaten litigation" ...
"Moreover, a review of the First Amended Complaint fails to allege that the Letter was sent as a statutory five day pre-suit notice under section 770.01, Florida
Statutes (2011). The Letter does not, on its face, indicate that it was sent as a five day pre-suit notice required under section 770.01."
"The Letter did not warn
CNBC that a lawsuit was imminent, and thus, on its face, the Letter cannot be said to provide notice of an
impending lawsuit. Instead, the Letter can better be described as a demand that CNBC cease and desist rebroadcasting the documentary ..."