A federal judge in New York dealt former President Donald Trump another setback in his effort to stop a suit by the woman who is accusing him of defamation after he denied raping her. His motions to add a new alternative defense and a counterclaim for violation of a New York law that protects free speech were denied in a harsh, 23-page rejection of the ex-president’s latest efforts to defend against the plaintiff’s charges.

In a memorandum opinion by U.S. District Judge Lewis A. Kaplan for the Southern District of New York on March 11, Trump’s motions to amend his answer and to assert an affirmative defense to charges by columnist E. Jean Carroll were denied. The judge said Trump’s claims were filed in a “bad faith” attempt to further delay a trial that began in October 2020.

Trump sought damages and additional relief for Carroll’s claims under New York State’s Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) law that protects against lawsuits that are filed to prevent people from exercising their First Amendment rights about matters of public concern.

The case began after Carroll published a book that contained a description of her rape by Trump in the dressing room of a New York department store. Trump, who was president at the time, accused her of making up the story, adding that he never met her. She sued him for defamation in state court in his “individual” capacity, seeking personal damages rather than compensation from the government. Trump tried to argue that he could not be sued because he was president.

He lost that argument and, in response, he successfully removed the case to federal court when the Attorney General argued that Trump’s statements to the press were part of his job as president. That tactic was defeated, with the court ruling that Trump was not an employee under the definition provided by the Federal Tort Claims Act, and even if he were, his comments were not made within the scope of his employment. The case remained in Federal court.

Kaplan’s opinion began by saying Trump agreed that his leave to amend could legally be denied if the court decided it could not survive a motion to dismiss, or if the court had a good reason to deny it, such as “futility, bad faith, undue delay, or undue prejudice to the opposing party.” These causes, Trump argued, must be proven legally sufficient before a trial could begin. Kaplan disagreed, saying the legal sufficiency of claims like Trump’s are routinely decided and, after citing several precedents, he went on to say that Trump’s arguments were “entirely without merit.”

The judge next discussed the futility of Trump’s proposed amendment based on the anti-SLAPP law. After discussing the original law and its subsequent amendments, Kaplan concluded that “nothing in the anti-SLAPP law would defeat her (Carroll’s) complaint. Thus, Trump’s anti-SLAPP defense would be “entirely futile.”

Next, Kaplan turned to Trump’s proposed counterclaim that was also based on the anti-SLAPP law. He began by explaining that federal, not state law, would govern his rulings regarding procedure. He then returned to the acceptable reasons for denying a motion for a leave to amend. These are undue delay, having a dilatory motive for the delay, bad faith, or causing prejudice to Carroll, the opposing party.

Because Trump’s motions have already caused a 14-month delay in the trial, he had the burden of explaining the reason for an additional delay. Judge Kaplan stated, “The defendant has not offered a satisfactory reason for the length of his delay in this case.” He tried to argue the delays were the result of his substituting counsel, and that he was a “sitting president” (albeit for only two months).

Similarly, Kaplan cited Carroll’s arguments that Trump “has slowed down his defenses, asserting or inventing a new one each time his prior effort to delay the case fails.” He described some of Trump’s tactics: trying to evade service; filing frivolous motions to dismiss, stay discovery, and deny personal jurisdiction; and arguing that the case should be delayed due to a pending appeal in another sexual conduct case filed by Summer Zervos, a contestant on Trump’s reality show The Apprentice.

Kaplan concluded, “Taken together, these actions demonstrate that defendant’s litigation tactics have had a dilatory effect and, indeed, strongly suggest that he is acting out of a strong desire to delay any opportunity plaintiff may have to present her case against him.”

He went on to describe other ways Trump has tried to “needlessly delay the case and drive up the cost of litigation.” He concluded by saying that the case is about a single count of defamation, and one that could have been “tried and decided – one way or another- long ago.”

With the denial of these motions, Trump loses another round. But Trump watchers can probably anticipate that he, like the child’s Joe Palooka punching-bag toy popular in the 1950s, is likely to keep bouncing back no matter how many times he is whacked down.