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3m Company, Boulter, et al. v. Defendants.

March 22, 2013

3M COMPANY, BOULTER, ET AL.
PLAINTIFF,
v.
DEFENDANTS.



The opinion of the court was delivered by: Robert L. Wilkins United States District Judge

MEMORANDUM OPINION AND ORDER

This matter is before the Court upon remand from the Court of Appeals. While this matter was on interlocutory appeal, the District of Columbia filed a motion to dismiss its appeal and to vacate the portion of this Court's opinion that was the subject of the appeal. The Court of Appeals dismissed the appeal, and it ordered "that the case be remanded to the district court with instructions to consider the motion for vacatur as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). . . ." (Dkt. No. 96).

The Court will therefore consider the District's motion. However, before turning to the merits, a review of the procedural history is necessary.*fn1

I.PROCEDURAL HISTORY

The Plaintiff in this matter, 3M Company, filed an eight-count complaint against Defendants Lanny J. Davis, Lanny J. Davis & Associates, PLLC and Davis-Block LLC (collectively, the "Davis Defendants") and Harvey Boulter, Porton Capital Technology Funds and Porton Capital, Inc. (collectively the "Porton Defendants") asserting a number of claims, including commercial defamation, tortious interference with contract and prospective business relations, and civil conspiracy. Initially, the Plaintiff was able to complete service on all Defendants except for Harvey Boulter. Thereafter, all Defendants (except Boulter, of course) filed motions to dismiss pursuant to either Rules 12(b)(2) or 12(b)(6) of the Federal Rules of Civil Procedure. In addition, those Defendants also filed a "special motion to dismiss pursuant to the District of Columbia Anti--SLAPP Act of 2010." See D.C. CODE §§ 16-5501--5505. After those motions were filed, the District of Columbia sought to intervene "solely for the limited purpose of presenting argument to defend the validity of the Anti-SLAPP Act," (Dkt. No. 22 at 1), and the Court granted permissive intervention to the District pursuant to Federal Rule of Civil Procedure 24(b)(2) "only for the limited purpose of defending the District of Columbia Anti-SLAPP Act of 2010 (D.C. Code §§ 16-5502-5505)." (Dkt. No. 29 at 1).

On February 2, 2012, following briefing and argument on the various motions, the Court granted the Porton Defendants' motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule 12(b)(2), and the Court granted the Davis Defendants' motion to dismiss for failure to state a claim pursuant to Federal Rule 12(b)(6), for all claims except the commercial defamation claim. 3M Co., 842 F. Supp. 2d at 111-20. The Court also held that the special motion to dismiss procedure mandated by the D.C. Anti--SLAPP Act conflicts in several fundamental respects with the Federal Rules of Civil Procedure, and, accordingly, the Court held that the Act cannot apply to a federal court sitting in diversity pursuant to Hanna v. Plumer, 380 U.S. 460 (1965), and its progeny. 3M Co., 842 F. Supp. 2d at 93-111.

On February 17, 2012, the Davis Defendants noted an interlocutory appeal of the Court's order denying the special motion to dismiss. (Dkt. No. 65). On February 23, the District also noted an appeal. (Dkt. No. 67). The Court postponed discovery on the remaining claim against the Davis Defendants, allowing the Court and the parties to monitor the progress of the appeal and the Plaintiff an opportunity to continue its attempts to effectuate service on Mr. Boulter.

Mr. Boulter was eventually served and, like the defendants before him, filed a motion to dismiss pursuant to Federal Rules 12(b)(2) and 12(b)(6). (Dkt. No. 85). In addition, Boulter also filed a "special motion to dismiss" pursuant to the D.C. Anti--SLAPP Act. (Dkt. No. 87). The Plaintiff and Boulter then stipulated that Boulter's special motion to dismiss would be held in abeyance until the Court of Appeals acted on the still-pending interlocutory appeals. (Dkt. No. 90). On October 5, 2012, the Court granted Boulter's motion to dismiss for lack of personal jurisdiction pursuant to Federal Rule 12(b)(2). (Dkt. No. 94 (transcript)). The Court did not rule on Boulter's special motion to dismiss at that time. (Id.).

Subsequently, the Plaintiff reached a settlement with the Davis Defendants, and the Davis Defendants dismissed their interlocutory appeal. The settlement did not include any of the Porton Defendants.

Thereafter, the Court ruled on Boulter's special motion to dismiss-denying it. 3M Co. v. Boulter, --- F. Supp. 2d. ----, 2012 WL 5245458 (D.D.C. Oct. 24, 2012). The Court took this action because the parties had stipulated that, if the interlocutory appeal of the Davis Defendants was dismissed for any reason, "then Mr. Boulter's special motion to dismiss shall be denied by this Court." (Dkt. No. 90). In addition, by denying Boulter's special motion to dismiss, either the District or Boulter could appeal the Court's denial and thereby obtain review of the Court's ruling on the inapplicability of the D.C. Anti-SLAPP Act. However, the Plaintiff did not appeal the dismissal of the Porton Defendants on personal jurisdiction grounds, and neither the District nor Boulter appealed the denial of Boulter's special motion to dismiss.

Instead of appealing the Court's denial of Boulter's special motion to dismiss, the District filed a motion to dismiss its interlocutory appeal and to "Vacate the Portions of the District Court Opinion and Order Addressing the District of Columbia Anti-SLAPP Act." The Court of Appeals granted the motion to dismiss the appeal, took no position on vacatur, and ordered "that the case be remanded to the district court with instructions to consider the motion for vacatur as a motion for relief from judgment pursuant to Fed. R. Civ. P. 60(b). See U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 29 (1994)." (Dkt. No. 90). The Court will therefore follow the instructions of the Court of Appeals and consider the District's motion for relief from judgment.

II.THE MERITS

As directed by the Court of Appeals, this Court will consider the motion to vacate its prior order as if it were a motion made to this Court pursuant to Federal Rule of Civil Procedure 60(b), which sets forth the grounds upon which a party may seek relief from a judgment or order. Of those grounds, the only one applicable in this instance appears to be the "catch-all" provision of Rule 60(b)(6), which permits a court to relieve a party from an order or judgment for "any other reason that justifies relief." FED. R. CIV. P. 60(b)(6).

The District's burden for obtaining relief under Rule 60(b)(6) is quite high. It is well settled that, while this provision "provides courts with authority 'adequate to enable them to vacate judgments whenever such action is appropriate to accomplish justice,'" Liljeberg v. Health Services Acquisition Corp., 486 U.S. 847, 863-64 (1988) (quoting Klapprott v. United States, 335 U.S. 601, 614-15 (1949)), such relief requires "extraordinary circumstances," id. (quoting Ackermann v. United States, 340 U.S. 193, 199 (1950)), and further, that such relief "should only be sparingly used," Computer Professionals for Social ...


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