                                UNITED STATES DISTRICT COURT
                                FOR THE DISTRICT OF COLUMBIA


                                                         )
JOSEPH MICHAEL ARPAIO,                                   )
                                                         )
                 Plaintiff,                              )
                                                         )
        v.                                               )   Civil Case No. 19-3366
                                                         )
KEVIN ROBILLARD, et al.,                                 )
                                                         )
                Defendants.                              )
                                                         )

                                      MEMORANDUM OPINION

        The Court once again finds itself tasked with resolving Plaintiff Joseph Arpaio’s grievances

against two media entities—TheHuffingtonPost.com, Inc. (“HuffPost”) and Rolling Stone LLC

(“Rolling Stone”)—Kevin Robillard (an employee of HuffPost), and Tessa Stuart (an employee of

Rolling Stone).1 Plaintiff alleges that defendants defamed him in online news articles covering his

2018 campaign for United States Senate in Arizona. He also alleges that defendants tortiously

interfered with prospective business relations and portrayed him in a false light.

        The Court previously addressed these claims in the case of Arpaio v. Zucker, Case No. 18-

cv-2894 (RCL) (D.D.C.). The Court granted defendants’ motions to dismiss pursuant to Federal

Rule of Civil Procedure 12(b)(6) because plaintiff did not allege any facts of actual malice. In

response, plaintiff filed the instant case with a revised complaint. Plaintiff claims that the new

complaint properly corrects the deficiencies of the old complaint.




1The Court will refer to HuffPost and Mr. Robillard collectively as “the HuffPost defendants.” Likewise, the Court
will refer to Rolling Stone and Ms. Stuart collectively as “the Rolling Stone defendants.”

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       For their part, defendants argue that plaintiff’s claims have already been litigated and are

barred by res judicata. But even if they are not, defendants argue that they must be dismissed

nonetheless because they still fail to state a claim.

       Before the Court are defendants’ motions to dismiss pursuant to Rule 12(b)(6) and the

HuffPost defendants’ motion for sanctions. For the reasons that follow, the Court will hold that

plaintiff’s claims are barred by res judicata and grant defendants’ motions to dismiss, but the Court

will deny the HuffPost defendants’ motion for sanctions.

                                             Background

       The facts underlying this case (“Arpaio II”) are virtually identical to those presented in

Arpaio v. Zucker (“Arpaio I”):

       Mr. Arpaio served as the Sheriff of Maricopa County from 1993 to 2017.
       Compl. ¶ 14, ECF No. 1. During his tenure as Sheriff, Mr. Arpaio was frequently
       at the center of various controversies. Among them was Mr. Arpaio’s handling of
       his office’s policing tactics in Latino neighborhoods, as detailed in Melendres v.
       Arapaio, No. CV-07-2513-PHX-GMS. In Melendres, Judge G. Murray Snow
       enjoined then-Sheriff Arpaio and his office from “detaining any person based only
       on knowledge or reasonable belief . . . that the person is unlawfully present within
       the United States because as a matter of law such knowledge does not amount to
       reasonable belief that the person” committed a crime. United States v. Arpaio, No.
       CR-16-01012-001-PHX-SRB, 2017 U.S. Dist. LEXIS 214888, at *4 (D. Ariz. July
       31, 2017). Judge Snow would go on to refer Mr. Arpaio for an investigation of
       criminal contempt based on the court’s finding that Mr. Arpaio had knowledge of
       the injunction and continued to engage in conduct that violated it. See id. at *3;
       Melendres v. Arpaio, No. CV-07-2513-PHX-GMS, 2016 U.S. Dist. LEXIS
       111489, at *5–6 (D. Ariz. Aug. 19, 2016).

       The U.S. Department of Justice brought criminal contempt charges against Mr.
       Arpaio but agreed to limit the sentence it would seek to six months. Mar. 1, 2017
       Order, United States v. Arpaio, No. CR-16-01012-001-PHX-SRB (D. Ariz.) (Dkt.
       No. 83) at 2–3. On July 31, 2017, Judge Susan R. Bolton found Mr. Arpaio guilty
       of criminal contempt of court. Arpaio, 2017 U.S. Dist. LEXIS 214888, at *26; see
       id. at *25 (explaining how Mr. Arpaio “flagrant[ly] disregard[ed]” Judge Snow’s
       order). On August 25, 2017, President Donald Trump pardoned Mr. Arpaio,
       thereby mooting Mr. Arpaio’s sentencing. United States v. Arpaio, No. CR-16-
       01012-001-PHX-SRB, 2017 U.S. Dist. LEXIS 182254, at *4 (D. Ariz. Oct. 19,
       2017).


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Arpaio I Mem. Op. 2, ECF No. 56. The Court described defendants’ conduct as follows:

        On November 13, 2018, Rolling Stone published an online article written by
        defendant Tessa Stuart (collectively “the Rolling Stone defendants”) about Kyrsten
        Sinema’s electoral victory over Martha McSally in the 2018 Arizona U.S. Senate
        race. The article referred to Mr. Arpaio as an “ex-felon” when explaining who
        Martha McSally defeated in the Arizona Republican primary. Within hours of the
        article’s publication, Rolling Stone revised the article and changed “ex-felon” to
        “presidential pardonee.” The revised article further clarified that Mr. Arpaio was
        convicted of a misdemeanor and the editor’s note contains an apology.

        ...

        On November 5, 2018, HuffPost published an online article written by defendant
        Kevin Robillard (collectively “the HuffPost defendants”) about Kyrsten Sinema’s
        record. The article mentioned Mr. Arpaio and erroneously stated that he had been
        sent to prison for his contempt of court conviction. Within two days, HuffPost
        explicitly corrected the mistake in the prior version of the article.

Id. at 4 (internal citations omitted).

        Although the Court held that the HuffPost and Rolling Stones defendants’ publications

were not substantially true, the Court dismissed the claims against them with prejudice because

plaintiff failed to allege facts of actual malice:

        Mr. Arpaio’s complaint does not come close to adequately pleading facts of actual
        malice. The complaint makes only two attempts to explain why defendants acted
        with actual malice. The first attempt alleges that “[d]efendants acted with actual
        malice insofar as they knew that the statements made against Plaintiff Arpaio were
        false and/or recklessly disregarded their falsity.” Compl. ¶ 40. This allegation is
        nothing more than a “[t]hreadbare recital[]” of the definition of actual malice. See
        Iqbal, 556 U.S. at 678; Sullivan, 376 U.S. at 280. As such, the Court can easily
        dismiss that allegation.

        The second attempt to allege facts of actual malice requires more elaboration. Mr.
        Arpaio alleges that defendants were motivated by “malice and leftist enmity” when
        they made their respective errors. Compl. ¶ 47. The Court understands that portion
        of his complaint to mean that allegations of differences in political opinions should
        satisfy the requirement to plead facts of actual malice. Even assuming the alleged
        “leftist enmity” is real, the motivations behind defendants’ communications—
        inspired by political differences or otherwise—do not impact whether defendants
        acted with actual malice as a matter of law. See Harte-Hanks Comm., Inc. v.
        Connaughton, 491 U.S. 657, 665 (1989) (“[A defendant’s] motive in publishing a


                                                     3
       story . . . cannot provide a sufficient basis for finding actual malice.”).
       Furthermore, “a media defendant’s ‘adversarial stance’ may be ‘fully consistent
       with professional, investigative reporting’ and is not ‘indicative of actual malice.’”
       Lohrenz, 223 F. Supp. 2d at 46 (quoting Liberty Lobby, Inc. v. Rees, 852 F.2d 595,
       601 (D.C. Cir. 1988)).

       The Court will not pry open the gates of discovery just because Mr. Arpaio believes
       the erroneous communications were motivated by differences in political opinions.
       Doing so would run afoul of the Supreme Court’s landmark ruling in New York
       Times Co. v. Sullivan. See 376 U.S. at 271–72 (noting that errors are inevitable
       when there is free debate and that they too must be protected to give breathing room
       to those exercising their freedom of expression). Allegations of “leftist enmity”
       cannot trump the guarantees of the First Amendment. Accordingly, the Court will
       grant defendants’ motions to dismiss pursuant to Rule 12(b)(6).

Id. at 9–10 (footnote omitted).

       Rather than appeal or otherwise challenge the Court’s October 31, 2019, ruling, plaintiff

filed this case on November 7, 2019. The Arpaio II complaint is largely the same as the Arpaio I

complaint and its claims arise from the same allegedly defamatory articles. See generally Arpaio

I Compl., ECF No. 1; Arpaio II Compl., ECF No. 1. But the Arpaio II complaint differs from the

Arpaio I complaint in some respects: (1) it excludes the three CNN defendants from Arpaio I; (2)

it adds two causes of action (general defamation and defamation by implication); and (3) it

attempts to cure the Arpaio I complaint’s deficiencies by adding a new subsection dedicated to

alleging facts of actual malice. See Arpaio II Compl. ¶¶ 4–7, 31–48, 65–71, 72–80.

       Defendants argue that plaintiff’s claims have already been litigated and are barred by res

judicata. But even if they are not, defendants argue that they must be dismissed nonetheless

because they fail to state a claim. The HuffPost Defendants also argue that plaintiff’s new case is

time-barred.

                                           Res Judicata

       “The preclusive effect of a judgment is defined by claim preclusion and issue preclusion,

which are collectively referred to as ‘res judicata.’” Taylor v. Sturgell, 553 U.S. 880, 892 (2008).


                                                 4
“Under the doctrine of claim preclusion, a final judgment forecloses ‘successive litigation of the

very same claim, whether or not relitigation of the claim raises the same issues as the earlier suit.’”

Id. (quoting New Hampshire v. Maine, 532 U.S. 742, 748 (2001)). Claim preclusion bars a

subsequent lawsuit “if there has been prior litigation (1) involving the same claims or cause of

action, (2) between the same parties or their privies, and (3) there has been a final, valid judgment

on the merits, (4) by a court of competent jurisdiction.’” Porter v. Shah, 606 F.3d 809, 813 (D.C.

Cir. 2010). “Issue preclusion, in contrast, bars ‘successive litigation of an issue of fact or law

actually litigated and resolved in a valid court determination essential to the prior judgment,’ even

if the issue recurs in the context of a different claim.” Taylor, 553 U.S. at 892 (quoting New

Hampshire v. Maine, 532 U.S. at 748–49). “By ‘precluding parties from contesting matters that

they have had a full and fair opportunity to litigate,’ these two doctrines protect against ‘the

expense and vexation attending multiple lawsuits, conserve judicial resources, and foster reliance

on judicial action by minimizing the possibility of inconsistent decisions.’” Id. (quoting Montana

v. United States, 440 U.S. 147, 153–54 (1979)).

       Regarding claim preclusion, the Court holds that the claims in Arpaio I are, for legal

purposes, the same as the claims in Arpaio II. Even though plaintiff added two causes of action in

Arpaio II (general defamation and defamation by implication), the Court sees no meaningful

distinction between the new causes of action and the old ones. See Montgomery v. Risen, 197 F.

Supp. 3d 219, 231, 266 (D.D.C. 2016) (dismissing general defamation, defamation per se, and

defamation by implication claims for failure to prove actual malice). Furthermore, plaintiff does

not explain why he could not have asserted all of these claims in Arpaio I. See U.S. ex rel Folliard

v. Synnex Corp., 798 F. Supp. 2d 66, 77–78 (D.D.C. 2011) (a plaintiff who attempts to assert new

claims in a second lawsuit based on the same nucleus of facts previously asserted and decided



                                                  5
violates res judicata principles). Plaintiff’s claims in Arpaio I and Arpaio II are based the same

nucleus of facts—defendants’ allegedly defamatory articles.

         Although plaintiff opted against suing the CNN defendants from Arpaio I again, the

remaining defendants form Arpaio I are the only defendants in this case, so Arpaio II involves the

same parties. Furthermore, the Court’s ruling in Arpaio I, which dismissed plaintiff’s claims

pursuant to Rule 12(b)(6), set forth a final, valid judgment on the merits. See Arpaio I Order, ECF

No. 55. For res judicata purposes, “dismissal for failure to state a claim under Federal Rule of

Civil Procedure 12(b)(6) is a ‘judgment on the merits.’” Federated Dep’t Stores, Inc. v. Moitie,

452 U.S. 394, 399 n.3 (1981). Finally, plaintiff does not contest that this Court is a court of

competent jurisdiction, so plaintiff’s claims must be barred by claim preclusion.

         Similarly, plaintiff’s claims are also barred by issue preclusion. As the Court stated above,

issue preclusion “bars ‘successive litigation of an issue of fact or law actually litigated and resolved

in a valid court determination essential to the prior judgment,’ even if the issue recurs in the context

of a different claim.” Taylor, 553 U.S. at 892 (quoting New Hampshire v. Maine, 532 U.S. at 748–

49). The question of whether defendants defamed plaintiff was actually litigated and resolved in

the Court’s dismissal of plaintiff’s claims in Arpaio I. So Arpaio II could be dismissed on these

grounds as well.

         Plaintiff’s argument that he should have been permitted to file an amended complaint in

Arpaio I does not save this case either.2 See Pl.’s Mem. Opp. HuffPost Defs.’ Mot. Dismiss 1–3,


2 During the Arpaio I oral arguments, the Court questioned whether public figure plaintiffs in defamation cases can
ever plead facts of actual malice sufficient to withstand a Rule 12(b)(6) motion without being able to get inside the
head of a defendant accused of defamation (and without discovery). See Arpaio I July 25, 2019 Tr. 16:1–12, ECF No.
50. Later on in the hearing, plaintiff’s counsel stated that “[plaintiff] clearly is not a felon. [Defendants] had reason
to know he is not a felon. They had reason to know he didn’t go to prison. They had reason to know what else we
allege. We have said that specifically in the complaint. But if Your Honor does not feel it is specific enough, I will
move to amend it with your leave in that regard.” Id. at 49:17–23. Plaintiff’s counsel also offered to submit a
supplemental brief regarding the Court’s ruling in Lohrenz v. Donnelly, 223 F. Supp. 2d 25 (D.D.C. 2002), see id. at
48:17–23, which he filed the day after oral arguments were held. See Arpaio I Notice of Bench Brief, ECF No. 49.

                                                           6
ECF No. 27. He claims that he prudently filed a new case because the Court erred in dismissing

Arpaio I with prejudice. See id. at 2–3. But plaintiff had at least two procedurally sound options

to challenge the Court’s ruling: either file a timely appeal or a motion to reconsider the Court’s

judgment.3 Plaintiff opted to file a new case instead—a decision that runs contrary to case law.

         Accordingly, the Court will grant defendants’ motions to dismiss plaintiff’s claims

pursuant to Rule 12(b)(6) because his claims are barred by res judicata.

                                                       Sanctions

         The HuffPost defendants moved to sanction plaintiff for filing and pursuing this case. In

addition to seeking dismissal of this case, they ask the Court to award them their costs and

attorneys’ fees.

         When a party presents a pleading or written motion to the Court, the attorney signing the

document certifies that “the claims, defenses, and other legal contentions are warranted by existing

law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for

establishing new law[.]” Fed. R. Civ. P. 11(b)(2). Rule 11(c) authorizes sanctions for violations

of Rule 11(b). See Rafferty v. NYNEX Corp., 60 F.3d 844, 852 (D.C. Cir. 1995). In Rafferty, the

D.C. Circuit held that “once the district court finds that a pleading is not well grounded in fact, not

warranted by existing law or a good faith argument for the extension, modification or reversal of

existing law, or is interposed for any improper purpose, ‘Rule 11 requires that sanctions of some

sort be imposed.’” Id. (emphasis in original) (quoting Westmoreland v. CBS, Inc., 770 F.2d 1168,


But plaintiff never filed a motion for leave to amend his complaint during the approximately three-month time period
between oral arguments and the Court’s ruling on the case. The Arpaio I defendants were deprived of any meaningful
opportunity to oppose leave to file an amended complaint because plaintiff failed to file such a motion.
3 Plaintiff admits that he did not appeal the Court’s ruling in Arpaio I because the D.C. Circuit is “a very liberal forum”
that is “likely not favorably disposed towards Plaintiff Sheriff Arpaio[.]” Pl.’s Mem. Opp. HuffPost Defs.’ Mot.
Dismiss 3. He also states that an appeal would have “been costly and delayed adjudication on the merits.” Id.
Plaintiff’s status as a public figure (“America’s Toughest Sheriff”) does not grant him special privileges—he cannot
circumvent the normal appeals process because of alleged philosophical disagreements with D.C. Circuit judges.

                                                            7
1174–75 (D.C. Cir. 1985)). If a party’s conduct warrants sanctions, courts have discretion to

impose monetary and/or non-monetary sanctions, including dismissal of the action. See Bus.

Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 554 (1991).4

         The HuffPost defendants argue that plaintiff filed a frivolous case for an improper purpose.

They compare this case to other cases within this Circuit where sanctions were imposed against

plaintiffs who repeatedly filed the same cases after disappointing results. See Reynolds v. U.S.

Capitol Police Bd., 357 F. Supp. 2d 19, 21–23, 27 (D.D.C. 2004) (granting sanctions against a

plaintiff and attorneys for filing a new complaint while the D.C. Circuit considered the dismissal

of the original complaint and then attempting to amend a complaint against the same defendant in

an unrelated case to include the rejected arguments after the D.C. Circuit affirmed the dismissal of

the original complaint); McLaughlin v. Bradlee, 602 F. Supp. 1412, 1413–14, 1420 (D.D.C. 1985)

(granting sanctions against a plaintiff who unsuccessfully attempted to advance the same case in

four different trial courts and four post-judgment motions to change the outcome of the final

dismissal).

         Although the Court agrees with the HuffPost defendants that this case is frivolous,

plaintiff’s decision to initiate Arpaio II is not as egregious as the plaintiffs’ actions in Reynolds

and McLaughlin. The Court is not convinced that plaintiff filed this case for an improper purpose.

Rather, the filing of this case seems to be the result of a legal miscalculation, which the Court

corrects today by dismissing the case. Accordingly, the Court will deny the HuffPost defendants’

motion for sanctions.




4 Rule 11 requires the party moving for Rule 11 sanctions to serve the sanctions motion at least twenty-one days prior
to filing it with the court, thus giving the other party a safe harbor window to withdraw the offending pleading or
motion. Fed. R. Civ. P. 11(c)(2). The HuffPost defendants have satisfied this requirement. See Mot. Sanctions 4,
ECF No. 24.

                                                          8
                                            Conclusion

       Plaintiff may feel slighted by the Court’s ruling in Arpaio I, but his filing of an entirely

new case was inappropriate. The Court has limited resources—including time—to dedicate to

each case before it, and it would be overwhelmed if disappointed plaintiffs could repackage and

refile their cases as soon as they are dismissed. Indeed, our entire judicial system depends on

parties following procedural rules and limits to endless litigation. And so, to be clear, nothing in

this opinion should be understood to be an invitation to refile this case.

       The Court GRANTS defendants’ motions to dismiss pursuant to Rule 12(b)(6) and

DENIES the HuffPost defendants’ motion for sanctions. A separate order follows.




Date: April 29, 2020                                                /s/
                                                      ________________________
                                                      Royce C. Lamberth
                                                      United States District Judge




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