Friday, December 19, 2014 by Jo Clifton

Zimmerman drops lawsuit, but case goes forward

On Thursday, after hearing from attorneys for District 6 City Council Member-elect Don Zimmerman and the Austin Bulldog about Zimmerman’s lawsuit against the website and its publisher, Ken Martin, Judge Amy Clark Meachum ruled in favor of the Bulldog on the question of whether the court has jurisdiction to hear the journalist’s motion for award of attorney’s fees and sanctions against Zimmerman.

Zimmerman filed suit against the Bulldog and Martin, alleging libel in an Oct. 9 article that reported allegations of child abuse as recited in Travis County court records. When Martin asked him about the allegations, Zimmerman denied them, and the Bulldog reported his statements.

On Tuesday night, after all the votes were counted and Zimmerman was declared the winner of the District 6 Council seat, his attorney, Stephen Casey, filed a motion electronically to dismiss the suit. However, the motion to dismiss includes the phrase “without prejudice,” which means that Zimmerman could file a similar suit within a year of the Bulldog’s publication of the article regarding his custody proceedings.

At the time the original Bulldog story was written, Zimmerman was one of six candidates for the District 6 Council seat. Martin noted in reading Zimmerman’s campaign materials that he referred to his “one remarkable teenage daughter.”

In the Martin/Bulldog motion to dismiss, Martin’s attorney, Pete Kennedy of Graves, Dougherty, Hearon and Moody writes, “What he does not say is that when his daughter accused him of repeated acts of mental and physical abuse, he agreed to relinquish custody without a fight. In fact, a final court order entered this year at Zimmerman’s request requires that he have ‘no possession or access’ whatsoever to his only child.”

Casey told the court that the Bulldog’s references to allegations in court documents from 2011 would be part of his showing of “malice,” on reporter Martin’s part. He said, “Something that happened in 2011 doesn’t have public concern.”

The 2011 proceedings were referenced in 2014 court documents. According to the defendant’s motion to dismiss, complaints about the Bulldog story amount to quibbles about the article’s wording.

Casey said that the filing of the motion to dismiss Zimmerman’s lawsuit represented his client saying “bygones” as related to the Bulldog story. Nevertheless, Casey still insisted after Thursday’s hearing that the daughter’s allegations were lies.

Kennedy argued that his clients are entitled to attorney’s fees and costs regardless of the dismissal under the Texas Citizens Participation Act, which is designed to discourage frivolous lawsuits against members of the public and journalists exercising their rights of free speech. The law is referred to as anti-SLAPP.

Before the filing of Zimmerman’s nonsuit motion, Kennedy had filed a motion to dismiss the case and award attorney’s fees and sanctions to the Bulldog. He also filed an affidavit requesting $22,708 in attorney’s fees and more than $500 in costs.

Arguing for Zimmerman, Casey disagreed. In fact, Casey noted that Martin and the Bulldog could seek sanctions against Zimmerman since the lawsuit has been dismissed. But he said Kennedy was misinterpreting the law when he argued in favor of the award of attorney’s fees and costs after dismissal.

Meachum noted that, under the Texas Citizens Participation Act, she has only 30 days in which to rule on the Bulldog’s motion to dismiss. The judge also indicated that Zimmerman’s attorney would be entitled to seek limited discovery, which must be done quickly. Meachum set Jan. 5 as the date for the hearing and gave Casey until 5 p.m. Friday Jan. 2 to file an answer to the motion to dismiss.

Zimmerman did not attend Thursday’s hearing. Attorney David Rogers introduced himself to the court and said he will be representing Zimmerman on Jan. 5 because Casey will be out of state on vacation.

(This story was updated Dec.19 to correct the date for the plaintiff to file a motion to dismiss.)

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Key Players & Topics In This Article

Don Zimmerman: Former Austin City Council Member for District 6 (2014-2016)

The Austin Bulldog: An independent, nonprofit local newspaper dedicated to investigative reporting.

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