In the latest move in litigation swirling around Fox News reporting on the death of Democratic National Committee staffer Seth Rich, a motion by a former Fox News contributor by a pro-Trump Fox commentator against a former contributor to the network was denied by U.S. District Judge George Daniels, appearing to force the plaintiff to respond to a sanctions motion.
The denial in Wheeler v. Twenty-First Century Fox, 17-cv-05807, was stamped on a copy of the Oct. 11 request by counsel for Rod Wheeler, the former Fox News contributor suing Fox Business commentator Ed Butowsky and the network for defamation. Wigdor LLP partner Jeanne Christensen said her client intends to meet an Oct. 23 deadline to either respond to a number of defendants’ motions, or amend the complaint.
Wheeler intends to amend the complaint, Christensen said, but asked the court to essentially make moot the current defendant motions, including the Rule 11 sanctions issue. A new deadline of Nov. 22 was sought for all defendants’ responses to the amended complaint.
The problem, according to Butowsky’s counsel, Spiro Harrison name attorney David Harrison, was that Wheeler had already blown through the initial 21-day safe harbor period to address the advised Rule 11 issues.
“Here, Plaintiff and his counsel were well-aware of the deficiencies in their pleadings. Defendant Butowsky alerted Plaintiff to those deficiencies prior to Plaintiff filing his complaint and in Defendant’s notice provided 22 days before his Rule 11 filing,” the defendant’s own Oct. 11 letter stated. “Now, he is asking the Court and the parties to adjourn Defendant’s Rule 11 motion because he intends to belatedly amend his complaint to purportedly fix deficiencies—many of which are incurable—that he had ample opportunity to consider and address both before filing his complaint and before Defendant filed his Rule 11 motion.”
Wheeler’s suit was launched in blockbuster fashion at the beginning of August, alleging circumstantially that President Donald Trump himself had been alerted to the article he, Butowsky, and others were working on.
“He wants the article out immediately,” Butowsky is alleged to have said in a text message to Wheeler just days before the article at issue was published, according to the complaint.
More directly at issue are allegations that Butowsky and the other defendants misattributed quotes in the May 16 article to Wheeler that accused former Democratic presidential candidate Hillary Clinton or her allies of “blocking” the investigation into the July 10 murder of former DNC staffer Rich. Wheeler also was quoted suggesting Rich had been the source of internal DNC emails that appeared on the website WikiLeaks.
These statements added fuel to conspiracy theories connecting Rich’s death to WikiLeaks’ publishing of the internal documents, which figured prominently in last year’s election. Nearly a week later, the story was retracted by Fox News after substantial criticism that it was inaccurate, including from Rich’s family.
Wheeler claims that the misquoted statements harmed him and his reputation. Butowsky and the Fox News plaintiffs have retorted that Wheeler voluntarily stood by the statements ahead of the criticism. Butowsky’s attorneys went further, seeking Rule 11 sanctions against Wheeler and Wigdor LLP name attorney Douglas Wigdor over what they claim is a frivolous lawsuit which follows a pattern of similar lawsuits, specifically against Fox. According to media reports, Wigdor, a self-described Republican, has filed nearly a dozen defamation, sexual harassment and racial discrimination suits against the company as of late September.
The sanctions motion was filed Sept. 19. Nine days later, Wheeler’s team was granted the October extension for responses or to file an amended complaint. In the letter Wednesday, Butowsky’s counsel argued that “Rule 11 is clear” that Wheeler’s response was required within the 21-day safe harbor period.
“Once the 21-day safe harbor period expires, the Rule 11 violation is complete, and sanctions are appropriate for Plaintiff’s failure to cure,” the letter to the court stated. As Wheeler’s “interpretation of Rule 11 would eviscerate the purpose of the safe harbor,” Butowsky’s counsel requested the Oct. 23 deadline be maintained for the Rule 11 response.
In a letter responding to Butowsky’s claims, Christensen reiterated that, as the first complaint would soon “no longer be operative,” it would make more sense to hold off on any Rule 11 complaints, if Burtowsky wished to proceed with the sanctions motion.
“As our opposition to Defendant Ed Butowsky’s Rule 11 motion will make clear, before Defendant Ed Butowsky or his counsel even read a draft of the Complaint and admitted to us that they had ‘no idea what the lawsuit was about,’ our firm received an email from Butowsky’s counsel threatening to seek Rule 11 sanctions,” Christensen said in a statement Thursday.
Butowsky’s attorney Harrison declined to comment.