RFK, Jr. and Bobby Barnes, Sittin' in a Tree...

L-I-T-I-G-A-T-I-N-G

In August of 2020, when Robert F. Kennedy, Jr. was only a danger to the human race because of his deranged anti-vaccination hysteria, an anonymous blogger under the name “DowneastDem” penned a post at the Daily Kos highlighting the political scion’s appearance at a rally in Berlin to protest Germany’s coronavirus lockdowns. Although the country’s public health measures had largely been repealed, Kennedy accused Angela Merkel of “totalitarianism” while ranting about Bill Gates and the evils of 5G networks.

The post was just 155 words long, and its central claim — that Kennedy spoke at a rally “including a large contingent of far-right groups and members identifying with the US-based right-wing conspiracy movement QAnon” — was confirmed by multiple outlets, including CNN, NBC, and The Guardian.

This made Kennedy so mad that he did nothing about it for almost three years until 2023, when he decided it would be fun to pretend to run for president of the United States as a Democrat. Maybe he was too busy defending free speech by suing Facebook, the FDA, and Senator Elizabeth Warren.

Unlike certain other major political parties, palling around with Neo-Nazis is generally viewed as a net negative on the Blue Team, so, to prove to the world that he’s definitely not the kind of guy who would appear alongside right-wing extremists, Kennedy hired right-wing extremist and former attorney for Alex Jones, Robert “Bobby” Barnes.

Barnes previously represented InfoWars in the Sandy Hook litigation, and was one of the three lawyers singled out by corporate representative Brittany Paz, who testified that the company was considering suing some of its prior counsel. When it came time to list actual malpractice claims that InfoWars intends to survive its bankruptcy and reorganization, however, the company listed just one of those lawyers: Bobby Barnes. In its proposed plan of reorganization, InfoWars expressly reserved all causes of action arising out of “Professional malpractice claims against Robert Barnes and Barnes Law, LLP.”

Just to be clear: InfoWars’s Texas attorney, Andino Reynal, mistakenly handed Alex Jones’s cellphone to opposing counsel and (separately) got sanctioned nearly $100,000 for making false statements, acting in bad faith, and “significantly interfer[ing] with the Court’s legitimate exercise of core functions.” Meanwhile, in Connecticut, Alex Jones replaced Barnes with stand-up lawyer Norm Pattis, who promptly steered Jones to a $1.4 billion loss and got himself sanctioned for misconduct along the way. Apparently, that’s par for the course. No, the only lawyer Alex Jones thinks might be incompetent is Bobby Barnes. So of course Kennedy hired him.

On Kennedy’s behalf, Barnes threatened to sue Daily Kos and the blogger in New York if they did not retract the 2020 post and pay his client damages.

To their credit, the blogger and the Daily Kos refused, after which, Kennedy did actually file a lawsuit claiming that his speech at a “protest for peace and freedom” could not possibly have been extremist because “there were Hare Krishna supporters dancing in the audience.”

But a funny thing happened on the way to the courthouse. Kennedy’s case wasn’t filed in New York. And it wasn’t filed in California, where Kennedy keeps a second home, either. In fact, it wasn’t filed in federal court at all. On August 28, 2023, exactly two years and 364 days after “DowneastDem” published his original story, Kennedy dodged a few bears, marched into the Rockingham County Courthouse in Brentwood, New Hampshire (pop. 4,710), and sued the blogger for libel.

And those two things are not a coincidence. Because even if he had been defamed — and he wasn’t! — the statute of limitations for defamation in any of the jurisdictions where Kennedy could plausibly have sued is one or two years. New Hampshire is one of the few states with a three-year statute of limitations on defamation, and so it is often a destination for defamation tourists whose claims are time-barred in their home jurisdiction. Rudy Giuliani tried this same trick in 2023 when he sued President Biden in New Hampshire for saying mean things about him in a 2020 debate in Tennessee.

Kennedy, who was represented in state court by an immigration lawyer named Jason Sullivan, claimed that the blogger had “targeted” him in New Hampshire, seeking to cause him “reputational impairment” among the goodly residents of the Granite State. Sullivan grudgingly acknowledged that Kennedy lives in New York and that the blogger (real name, David Vickrey) lives in Maine. But because Vickrey had at some point “worked for many years in Nashua, New Hampshire” and had “ties to the northeast, including Maine,” Sullivan claimed that was enough to establish personal jurisdiction over the parties. Noting that New Hampshire residents can read the Daily Kos website and gesturing vaguely in the direction of New Hampshire’s longarm statute, Kennedy demanded redress from that state’s courts for the “lie heard ‘round the world.”

Suing in New Hampshire wouldn’t have necessarily made the case timely in any event, since choice of law does not depend on where the case is filed. But more to the point, that’s not remotely how personal jurisdiction goes (even in New Hampshire), so Vickrey immediately removed the case to federal court and filed a motion to dismiss for lack of personal jurisdiction.

On January 22, Judge Steven McAuliffe granted Vickrey’s motion, since no party had any real connection to the state, and, no, alleging that someone in Rockingham County “must have” read the offending post wasn’t going to cut it. The judge also noted parenthetically that “there are several factual claims made in Kennedy’s various memoranda that are entirely unsupported by the citations he provides,” which is hardly a ringing endorsement of the lawyering in the case.

That should have been the end of the matter, but, amazingly, it was not. On February 22, 2024, Bobby Barnes loped into the United States Court of Appeals for the First Circuit demanding that Kennedy’s case be reinstated. But an even funnier thing happened on the way to the appeals court, because Rule 4.1(a)(1)(A) of the Federal Rules of Appellate Procedure allows parties “30 days after entry of the judgment or order appealed from” to note an appeal. And even in a leap year, February 22 is 31 days after January 22.

Vickrey promptly moved to strike Kennedy’s defective notice of appeal as untimely. In response, Barnes argued that his tux didn’t come back from the cleaners, there was an earthquake, a terrible flood, locusts, it definitely wasn’t his fault:

I experienced wifi connectively and other technical problems. I mistakenly believed at this time that I had at least five more hours to complete the filing. In so believing, I neglected to adequately consult the applicable local rules regarding the last day for documents submitted electronically. I thereby mistakenly believed that the deadline to file said Notice of Appeal was midnight on the day of the filing deadline, irrespective of the time zone of the filer.

That “irrespective of the time zone” bit has to do with the fact that Barnes lives in California, whereas the district court is located in New Hampshire. When Barnes filed at approximately 2:30 am Eastern Standard Time on the 22nd, it was still the 21st for a few more minutes out on the West Coast where he lives. Not that that matters — Local Rule 6.1 makes it clear that the deadline ends “at midnight local time,” not midnight “whatever time zone your lawyer happens to be in.”

Still, Judge McAuliffe had discretion to grant Bobby Barnes a little bit of leeway for missing his deadline by a few hours under the doctrine of “excusable neglect.” But he declined to do so, casting more than a few aspersions Bobby’s way:

It would seem that counsel is advancing two explanations for his late filing, either or both of which he believes is sufficient to excuse his untimely filing. The first - “wifi connect[ivity] and other technical problems” - is rather vague and insufficiently described to warrant the relief sought. Counsel does not identify the nature of those problems, nor does he describe any efforts he undertook to resolve them before the filing deadline or whether those issues were (or could have been) remedied before midnight eastern time. Indeed, counsel’s affidavit on that point seems almost intentionally indefinite.

“Fundamentally, then, counsel’s late filing was caused by his acknowledged lack of familiarity with both the Federal Rules of Civil Procedure and this court’s Local Rules and Administrative Procedures governing the timing of court filings,” Judge McAuliffe concluded, granting Vickrey’s motion to strike the appeal.

Ouch. As much as it pains me to say this, it seems that Alex Jones is right.

So, the bad news is that RFK, Jr. is a thin-skinned, anti-vax loon who’s trying to sabotage the 2024 election to return a criminally insane game show host to the White House. But the good news is that he’s got morons on his team.