Proud Boys Jury Consultant Suit Against Lawyers Revived

An order of the United States District Court for the District of Columbia (Chief Judge Boasberg)

In Lux Research and its owner, Lindsay Olson, sued the lawyers and law firms that represented a number of Proud Boys in a joint criminal trial connected to their involvement in the insurrection at the U.S. Capitol on January 6, 2021. Plaintiffs claimed that one of the defense lawyers, John Daniel Hull, allegedly acting on behalf of all the defense lawyers, hired In Lux Research to conduct a jury poll for a $30,000 fee but failed to pay up. Most Defendants — including Nayib Hassan, Sabino Jauregui, and their law firms — responded to the suit with motions to dismiss. The Court granted those motions in a Memorandum Opinion and separate Order issued two months ago.

Plaintiffs now seek to vacate the Order and to reinstate Hassan, Jauregui, and their law firms as Defendants, and they ask for leave to amend the Complaint to add a new claim against them. Because those Defendants offer no substantive opposition to amendment and no prejudice is evident, the Court finds that leave to amend is appropriate. It will thus vacate its Order in part — insofar as it dismissed Hassan, Jauregui, and their law firms — and permit amendment.

Reasoning

The circumstances here are unique in two ways significant to the Rule 54(b) analysis. First, Plaintiffs are not seeking to reinstate a previously dismissed claim against the Hassan and Jauregui Defendants, only to add a new cause of action against them. Vacating and amending the Court’s Order to permit Plaintiffs to do so would not, therefore, violate the “law of the case doctrine” or “require[]” the Hassan and Jauregui Defendants to “battle[] for the court’s decision” on any claim for the second time. Singh v. George Washington Univ., 383 F. Supp. 2d 99, 101 (D.D.C. 2005) (court’s discretion under Rule 54(b) is “limited by the law of the case doctrine and subject to the caveat that, where litigants have once battled for the court’s decision, they should neither be required, nor without good reason permitted, to battle for it again”). Second, as a procedural matter, Plaintiffs cannot amend their Complaint to add a new claim against those Defendants without vacatur — even if warranted under Rule 15(a) — because they are at this point no longer in the case.

Defendants position

With no bad faith, undue delay, or prejudice, things do not look good for the Hassan and Jauregui Defendants’ attempt to prevent amendment. Those Defendants previously tried another tack: in opposing a now-moot version of Plaintiffs’ Motion for Leave to Amend the Complaint,  they took the position that amendment would be futile. See ECF Nos. 66 (Superseded Mot. for Leave to Amend); 67 (Jauregui Opp. to Superseded Mot. for Leave to Amend), ¶¶ 10–13; 68 (Hassan Mot. to Join Jauregui Opp. to Superseded Mot. for Leave to Amend), ¶¶ 10–11. But Plaintiffs’ instant Motion for Leave to Amend the Complaint superseded its predecessor, and the Hassan and Jauregui Defendants’ instant Opposition has abandoned the futility argument. The Court, accordingly, need not assess at this stage whether the amended pleading would survive a motion to dismiss. See, e.g., Xingru Lin, 319 F.R.D. at 2. The Hassan and Jauregui Defendants are, of course, free to move to dismiss it, and, if they do, the Court will consider any Rule 12(b) arguments at that juncture. On this record, however, the Court finds that granting leave to amend is warranted.

(Mike Frisch)