Federal Court Confirms That Dan Bongino Is A Total Loser, Orders Fees In Daily Beast SLAPP Suit

Cough it up, a**hole.

POP QUIZ:

If the judge grants Defendant’s motion to dismiss, which side won the case?

Do you need more time? Or perhaps remedial CivPro?

Here on Planet Earth, the Defendant is the prevailing party. Yes, even if the Plaintiff “voluntarily” dismisses the case during the 14 days allotted for him to file an appeal, before the trial judge enters a “final order.”

For extra credit, can you guess which razzledazzle libelslander lawyer actually filed a motion claiming that his client had deprived the court of subject matter jurisdiction by dismissing his suit before a final judgment was entered?

Obviously it’s Devin Nunes’s favorite Earthlink lawyer Steven Biss, best known for suing a Twitter cow, with a local assist from Roger Stone’s attorney Robert Buschel. Last year, these two legal eagles sued the Daily Beast on behalf of rightwing “personality” Dan Bongino, who had been cruelly defamed by a story about the end of his business relationship with NRATV (RIP) and needed $15,000,000 to make him whole again.

Or perhaps not. On August 6, U.S. District Judge Jose Martinez granted the Beast’s Motion to Dismiss, since Bongino’s case was procedurally and factually defective in every respect. And worse still, the court awarded the Beast attorneys’ fees for having to defend itself against such a bullshit SLAPP suit.

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Not so fast, argued Biss and Buschel. Bongino had until August 20 to file an appeal, but instead he filed a motion to dismiss the case on August 10 so bingo bango bongo, actually there was no winner here and the court should just butt right out.

If we hadn’t seen it with our own eyes:

The Court has no subject matter jurisdiction to consider Defendant’s motion. On August 6, 2020, the Court entered an Order granting Defendant’s motion to dismiss with leave to amend and “prospectively” granting Defendant’s motion to recover costs and fees under Florida’s anti-SLAPP statute “fees based on Plaintiff’s initial Complaint.” Because the Court permitted Plaintiff an opportunity to amend, the Court held off on a final ruling on the matter. [ECF No. 23]. On August 10, 2020, Plaintiff timely filed notice of voluntary dismissal pursuant to Rule 41(a)(1)(A)(i) of the Federal Rules of Civil Procedure. On August 11, 2020, the Court entered a Final Order of Dismissal and closed the case. Plaintiff had an “absolute” right to voluntarily dismiss the case pursuant to Rule 41(a)(1)(A)(i), which he exercised prior to the Court’s final ruling on Defendant’s motion to recover fees under Florida’s anti-SLAPP law. Carter v. United States, 547 F.2d 258, 259 (5th Cir. 1977) (“a plaintiff has an absolute right to dismiss a lawsuit before the defendant has filed an answer or summary judgment motion.”). The District Court was divested of subject matter jurisdiction upon Plaintiff’s filing of the notice of voluntary dismissal.

That … did not go over.

“Plaintiff relies on a single case from 1963, American Cyanamid Company v. McGhee,” notes U.S. Magistrate Judge Shaniek M. Maynard, before going on to cite several cases in the past 57 years which “mak[e] clear that a court can award attorneys’ fees even after a case has been voluntarily dismissed.” Her Honor was no more impressed with the contention that Bongino had somehow fought the Beast to a draw.

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“It is of no moment that Judge Martinez granted Defendant’s Motion to Dismiss without prejudice, because when a district court dismisses an action against a defendant, even if that dismissal is without prejudice, the defendant is the prevailing party,” she wrote. “Accordingly, Defendant is the prevailing party in this case and entitled to fees.”

Yeah, no shit.

So Bongino is on the hook for $31,835.00, which is a ridiculously low figure for 91 hours of labor from Davis Wright Tremaine LLP. But even with the bath he’s taking on his investment in Parler, the guy’s posts are routinely in top ten performers on Facebook and he’s got a gazillion listeners for his podcast, so he can afford it.

Ah, well. Sometimes you own the libs, sometimes the libs own you.

Bongino v. Daily Beast Company, LLC [Docket via Court Listener]


Elizabeth Dye lives in Baltimore where she writes about law and politics.