Thursday, November 18, 2021

Why Filing Identical Election Defamation Lawsuits Is a Shrewd Move

Last week, Smartmatic filed suit against attorney Sidney Powell in the U.S. District Court for the District of Columbia , claiming damages for false statements she allegedly made against the voting machine company in connection with the 2020 presidential election. The suit is virtually identical to the one they had previously filed against her in New York. 

Was this a crazy thing to do? No, it is quite the opposite. The reason relates to two issues: jurisdiction and the statute of limitations. 

As we saw in all of the failed election challenge lawsuits, your first step to succeed in a lawsuit is to make sure that you are suing the proper defendant in the proper court. Sometimes it is easy for the court to agree to accept or reject jurisdiction claims. In other cases, the answer is not so easy. 

In the first suit by Smartmatic against Sidney Powell in New York, there is some question whether that court has “personal jurisdiction” over Sidney Powell. If jurisdiction over Powell is denied, the case is over in that court. 

An attorney who loses a case on jurisdictional grounds might well decide to then file in another court where jurisdiction is clear. That option is not available to Smartmatic. The reason is due to the statute of limitations. 

The purpose of a statute of limitations is to make sure that an injured party acts promptly to claim damages. So, for example, if I am injured in a traffic accident, I cannot wait 10 years to decide to sue. Individual state laws set the maximum time period to file suit. In election defamation cases, that period is generally one year. 

The one-year statute of limitation period is quickly coming to an end for Smartmatic lawsuits. If they were to lose in New York on jurisdictional grounds, they would have no place to go to get relief because time had expired, unless … 

Unless they file what is called a “protective lawsuit” in another court where jurisdiction is assured. This is exactly what Smartmatic did. Interestingly, Smartmatic told the D.C. court exactly why they were filing the lawsuit at this time. They went so far as to tell the court that they fully expected (and wanted) the case to continue in New York and would not take any further action in D.C. until the jurisdiction question in New York was settled. If New York accepts jurisdiction, the D.C. court will be dismissed. 

The protective action by Smartmatic is smart legal practice. 

You might be asking how Smartmatic filing suit in different courts is different from the election contest cases. In the election contest cases, almost identical cases were also filed in different courts. 

The difference is that Smartmatic is not filing spurious claims in multiple courts, hoping that, like spaghetti thrown against the wall, maybe something will stick. In other words, the goal of the Smartmatic cases is to actually win, not simply to keep unfounded claims in the news.

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