UPDATE, 10:35 AM: A day after the Empire co-creator and Empire State resident requested to have the Mystic River actor’s $10 million defamation lawsuit moved from state court to federal court, Sean Penn’s lawyer are saying no way. That’s no way to the “meritless” move because Lee Daniels lives in New York and the federal statute doesn’t let a civil action be shifted if the defendant lives in the state where the suit in question has been filed.
The request for removal was filed in both the NY Supreme Court and federal court yesterday by Daniels’ attorneys as their first response to Penn’s September 22 complaint based on an interview The Butler director gave implying the Oscar winner abused women. “But rather than contacting Penn to check his facts (which he could have easily done), Daniels chose to defame him, to serve his own agenda,” today’s letter to U.S. District Court Judge Edgardo Ramos said (read it here).
While not addressing Daniels’ contention that the “improper and legally-defective” removal should be permitted because the case exceeds $75,000, today’s letter from Penn attorney Mathew Rosengart also wants to talk about cash. “Penn respectfully requests that the Court grant him leave to move for remand and that the Court further award Penn his costs and attorneys’ fees and all other relief the Court deems just and proper,” the letter adds, citing the ability the court has at its discretion.
The Miami-based Stroock & Stroock & Lavan lawyers for Daniels did not respond to Deadline’s requests for comment on today’s letter.
PREVIOUS, OCT. 21 PM: Almost a month after Sean Penn went after Empire co-creator Lee Daniels for millions for remarks the latter made implying the former abused women, Daniels has a few words for the Oscar winner: you gotta move.
“Wherefore, defendant, Lee Daniels, files this Notice of Removal and respectfully requests that the Action now pending in the Supreme Court of the State of New York, County of New York, be removed and proceed in its entirety before the United States District Court for the Southern District of New York,” said lawyers for The Butler director Tuesday in filings (read here) in New York state court.
This is the first response by Daniels to Penn’s defamation lawsuit filed September 22 and comes days before any official answer to the actor’s $10 million complaint seeking damages is required.
While “Daniels denies any and all liability to Penn,” his attorneys James Sammataro and Jose Garcia-Tunon at the Miami office of Stroock & Stroock & Lavan press hard in the October 20 paperwork that the federal statute distinctly allows for such a removal request. Under the U.S.C., a case can be moved from state to federal court when the participants live in different states (Penn lives in California and Daniels in New York). A case can also be shifted from jurisdiction to jurisdiction when “there is a reasonable probability that the claim exceeds the sum or value of $75,000,” as is the case here.
Penn’s primary lawyer, Mathew Rosengart, had no comment on the request when contacted by Deadline.
This all started when Daniels “purportedly” — according to this week’s filings — made comments in an interview that Empire star Terrence Howard received an undue amount of attention due to domestic violence claims and past court appearances. Howard “ain’t done nothing different than Marlon Brando or Sean Penn, and all of a sudden he’s some f*ckin’ demon,” Daniels told the Hollywood Reporter. “That’s a sign of the time, of race, of where we are right now in America.”
While Penn has had run-ins with the law, he has “never been arrested, much less convicted, for domestic violence, as his ex-wives (including Madonna) would confirm and attest,” his defamation suit stated. The Mystic River actor took Daniels to court last month for no less than $10 million to “take a stand and correct the record,” his complaint adds. It should be noted that Madonna, who is currently touring, has not made any remarks about Penn’s past behavior, nor has ex-wife Robin Wright.
Defamation cases are much more than he said/he said once they get past the hoopla of a court filing. To prove the claim, Penn and his lawyers will have to show Daniels knew what he was saying was false — a hard legal hill to climb with the comments about the actor that have by his own admission been out there for years.
Next step is to see whether the New York courts go for moving the case.