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In some cases, a defendant in a civil law suit will retaliate against the plaintiff by filing a counter law suit, often of a dubious or spurious nature. For example, recently a photographer sued one of the major networks and the network reacted by suing the photographer.

When a defendant counter-sues in a clearly retaliatory way, are there legal grounds to ask the court to dismiss the suit because it is retaliatory or is that not a thing?

  • If you mean "this suit must necessarily be unfounded because it is retaliatory", then no, that's not a thing anywhere the court relies on logic. – Tim Lymington Nov 2 '17 at 16:03
  • It looks like this lawsuit is in New York State. I will tag the question appropriately. If I am mistaken about the jurisdiction referred to in your question, feel free to edit it to reflect the jurisdiction in question. The question asked is quite jurisdiction specific and does not have a general answer even within the United States. – ohwilleke Nov 2 '17 at 22:53
  • Related Q&A here – feetwet Nov 3 '17 at 3:05
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In the event that the suit is actually frivolous, the judge may sanction the attorney who filed it. The judge may do so sua sponte or at the request of opposing counsel.

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When a defendant counter-sues in a clearly retaliatory way, are there legal grounds to ask the court to dismiss the suit because it is retaliatory or is that not a thing?

The procedural facts aren't entirely clear from the question. It isn't clear which court that original lawsuit was filed in, whether the countersuit was a counterclaim in the same lawsuit or a different lawsuit, and if it was a different lawsuit, where that lawsuit was filed.

When a defendant is sued, the defendant is required by law to bring any claims that the defendant has against the plaintiff as a mandatory counterclaim if they are related to the case and is permitted to bring any claims the defendant has against the plaintiff for any reason as a permissive counterclaim.

So, a "retaliatory countersuit" in the same case is entirely ordinary and indeed often required by the rules of civil procedure. There is absolutely nothing improper with filing a countersuit as a "retaliatory" measure unless the countersuit itself (1) is not well grounded in fact (i.e. groundless), (2) is not supported by the law or a good faith argument that the law should be changed (i.e. frivolous), or (3) is vexatious (a term that is not easily defined).

If, instead of bringing counterclaims in the original lawsuit, the defendant brings a separate lawsuit against the plaintiff, the plaintiff could seek to either (1) consolidate the cases if they are filed in the same court system (i.e. a federal case and a federal case, or a New York State case and a New York State case), or (2) move to dismiss the new lawsuit because the claims were required to be brought in the original lawsuit as mandatory counterclaims, or (3) move to stay proceedings in the second lawsuit pending resolution of the first lawsuit, or (4) move to dismiss the claims in the second lawsuit on the merits if it is apparent from the face of the countersuit that it does not state a claim upon which relief can be granted or was filed in the wrong court.

As these myriad options suggest, the procedural steps to take when one party sues a defendant in one court system and the defendant sues the plaintiff in another court system are rather technical and involved (I've dealt with this a few times in the last several years).

New York State has an Anti-SLAPP statute, but it is a quite narrow one:

New York's anti-SLAPP laws, found at N.Y. Civ. Rights Law §§ 70-a, 76-a and N.Y. C.P.L.R. §§ 3211(g), 3212(h), offer protection against SLAPPs brought by individuals or entities seeking permits or applications from a government body (like zoning permits) over efforts of the defendant to report on, comment on, rule on, challenge, or oppose such application or permission. The statute does not protect "free speech" in the abstract; it only protects bloggers, non-traditional journalists, and other online publishers when they address this narrow class of issues (i.e., the granting or denial of a public permit or application).

It would be rare that a photographer would fall within the scope of New York's anti-SLAPP statute (SLAPP stands for "strategic lawsuit against public participation").

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  • Fascinating: I hadn't heard of compulsory counterclaims before, although I can imagine they might naturally stem from the principle of res judicata? – feetwet Nov 3 '17 at 3:11
  • @feetwet Compulsory counterclaims are closely associated with res judicata but I'm not sure that they actually flow from it. – ohwilleke Nov 3 '17 at 15:30
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Generally, there are Anti-SLAPP suits which are court filings that essentially say "They are using their legal power to silence my free speech". This forces the judge in the Jurisdiction that has these to immediately look at the merits of original case as a SLAPP (I can't recall the acronym) and if he finds that this is the case, will dismiss the entire original case outright.

Basically, this is to protect people who are exercising legal free speech and fair use rights from suffering legal burdens of fighting a case where the plaintiff alleges copyright or defamation charges against defendant when that is of extremely questionable grounds.

These are not in every jurisdiction, so check your local laws. In the United States, these are in states with a high media or political industry within them.

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