After the plaintiff and defendant exchanged several profanity-laced emails, a Denton County lawyer has decided to dismiss his $100 million defamation suit against an online critic who allegedly called him a “Nazi” and “white supremacist” in internet postings and caused the attorney to lose his job at a law firm.
Attorney Jason Van Dyke filed the defamation case against Thomas Retzlaff in a state district court earlier this year. But Retzlaff later removed the suit to federal court and moved to dismiss it under the Texas Citizens Participation Act, an anti-SLAPP law passed by the Texas Legislature in 2011 that allows judges to quickly dismiss cases that infringe on free-speech rights, and forces a plaintiff to pay the defendant’s court costs.
In July, U.S. District Judge Amos Mazzant of Sherman denied Retzlaff’s motion to dismiss, ruling that the U.S. Court of Appeals for the Fifth Circuit has yet to address whether the TCPA applies in federal court. Retzlaff appealed the decision to the Fifth Circuit, an appeal that caught the attention of 40 media organizations, including The New York Times and The Washington Post, who filed an amicus brief with the Fifth Circuit urging it to allow civil litigants to use Texas’ anti-SLAPP statute to protect themselves against defamation claims filed in federal courts as well.
Retzlaff and Van Dyke both exchanged bitter emails over the past few days—messages on which media members, including Texas Lawyer, were copied—prompting Van Dyke to declare in a Dec. 2 message: “He has cost me damn near two full years of my life, and I am not going to spend another minute of my time on him. The FBI, the courts, and the State Bar of Texas can do what they need to do because, frankly, I do not give a single solitary f—,” Van Dyke wrote. “I’m out, and as far as I am concerned, Thomas Retzlaff no longer exists.”
Retzlaff responded to Van Dyke’s email, writing, “My position is this: Van Dyke can go f— himself. … I ain’t dismissing shit. If he wants to quit, fine by me. I’m winning, so f— him.”
On Dec. 3, Van Dyke filed a motion for court-ordered dismissal of his case, noting: “Plaintiff wishes to dismiss this lawsuit because he is of the opinion that, short of locking defendant in a prison cell for the rest of his natural life, there is nothing that this or any other court can do that will stop defendant from continuing to harass plaintiff.
“There is no resolution of this case that will stop defendant’s behavior. Defendant has already placed plaintiff in dire financial straits and, simply put, plaintiff lacks the time and resources to continue litigating against a lunatic,” Van Dyke wrote in the motion.
Van Dyke also noted in the motion that he had no opinion as to whether the lawsuit should be dismissed with or without prejudice.
Jeffrey Dorrell, a Houston attorney who represents Retzlaff in the case, said he is not convinced the lawsuit is finished until Mazzant rules on Van Dyke’s motion.
“I guess we’re going to have to wait and see what actually happens,’’ Dorrell said of Van Dyke’s motion. “There’s no question he’s filed it. But he’s filed motions before and withdrew them before the court rules on them. And until the court rules on it, I don’t know where we are.”
Dorrell also noted that even though Van Dyke has filed the motion to drop the lawsuit, that action alone will not moot Retzlaff’s appeal before the Fifth Circuit.
“That by itself … does not moot the appeal because Retzlaff’s anti-SLAPP motion survives the dismissal. Retzlaff on his own would have to drop the anti-SLAPP motion, and that would moot the appeal,” Dorrell noted.
Reached by email, Van Dyke said he agrees with Dorrell that his dropping the lawsuit does not moot the appeal currently pending before the Fifth Circuit.
“If the Fifth Circuit answers the question in his favor, Retzlaff may be able to seek sanctions. I am not worried about that,” Van Dyke wrote. “If the appeal is decided in my favor, the case is possibly over. If the appeal is decided in his favor and the federal court awards sanctions, I will file for bankruptcy.”