Houston lawyer Robert S. Bennett, who secured a $110,000 default judgment earlier this month in a Facebook defamation suit against a former legal assistant, now wants to vacate the judgment and dismiss the suit with prejudice.
Bennett’s motion to vacate came after defendant Xiomara Collins filed a motion on Feb. 12 seeking a new trial on the ground, among several, that Bennett failed to properly attempt to serve her a copy of the petition.
Bennett declines comment except to say he is trying to settle Bob Bennett v. Xiomara Collins.
"We are trying to work out something," he says.
Scott Rothenberg, an attorney in Houston who represents Collins, says he hopes there’s a settlement.
"The agreement, as I understand it, is: He will agree the court should vacate the order granting the $110,000 in damages . . . and he will dismiss with prejudice the lawsuit against my client. In turn I will agree not to pursue the attorney’s fees that we are statutorily entitled to," says Rothenberg, of Law Offices of Scott Rothenberg, referring to the Texas Citizens Participation Act.
Bob Bennett v. Xiomara Collins attracted attention because Bennett alleged Collins made defamatory comments about him on the Houston Family Law page on Facebook.
In the Aug. 30, 2012, petition, Bennett, managing partner of Bob Bennett & Associates, sought a permanent injunction: to prohibit Collins from making any false statements about him that disparage him; to mandate that Collins "correct all disparaging and false statements" about him allegedly posted on the Houston Family Law Facebook page or elsewhere on Facebook or the Internet; and to mandate that Collins offer a "formal public apology" to him, his firm, his clients and colleagues that meets his approval.
In the petition, Bennett alleged Collins’ "public accusations" on the Internet caused him "considerable damages" and the statements were false and she should have known they were false. He brought libel, common-law defamation, business disparagement and tortious interference causes of actions against Collins. [See "Defamation Suit Filed Over Alleged Facebook Posting," Texas Lawyer, Sept. 17, 2012, page 1.]
On Nov. 27, 2012, 334th District Judge Ken Wise signed Bennett’s order for substitute service. "The court finds plaintiff’s attempts to serve defendant have been unsuccessful and finds the substitute service requested in plaintiff’s motion will be reasonably effective to give defendant, Xiomara Collins, notice of the suit," Wise wrote.
On Feb. 6, Wise signed an order granting a default judgment against Collins and awarding Bennett $110,000 in damages and $3,500 in attorney fees. In his Jan. 15 motion for default judgment, Bennett noted that Collins was served with the petition at her last known address, but she did not file an answer.
On Feb. 12, Collins filed a motion for new trial "because Bennett’s attempt at substituted service was defective" and also because the statements Collins made about Bennett on Facebook are "constitutionally protected opinion." On Feb. 14, Collins filed a motion to dismiss on the ground that her speech is protected under the Texas Citizens Participation Act, which is in Chapter 27 of the Texas Civil Practice & Remedies Code.
Rothenberg says the two sides had settlement talks. Bennett filed the motion on Feb. 14 to vacate the default judgment and dismiss with prejudice, and on Feb. 19, he set it for submission on March 4.