The neo-Nazi group Traditionalist Worker Party will remain a defendant in a federal lawsuit filed by a survivor of the 2017 Unite the Right car attack after a judge dismissed the group’s motion, but also directed the parties to attempt mediation.
The suit was filed last year on behalf of William “Bill” Burke in the Southern District of Ohio U.S. Court. Burke was among the dozens of people injured during a vehicular assault by James Alex Fields Jr., who has been convicted of first-degree murder and federal hate crimes.
Burke, who attended the rally to protest against racism, testified at both Fields’ state and federal sentencing hearings and shared about the physical, emotional and mental toll the rally and attack took on him.
In an Oct. 21 order, U.S. District Judge Michael Watson again denied TWP’s requests to dismiss the suit for improper venue but also found that most of Burke’s claims do not arise under federal law.
Watson similarly dismissed venue claims made by TWP attorney James Kolenich in a May order, which he wrote was directed at a prior version of Burke’s complaint that premised TWP as a nonresident defendant; a second amended complaint explicitly alleges that TWP is based in Cincinnati, Ohio.
Though the attack occurred in Charlottesville, Burke’s complaint alleges that much of the planning occurred in the Southern District of Ohio, specifically on the Daily Stormer, a racist blog frequented by white supremacists and neo-Nazis that is operated in Ohio.
“A reasonable inference to be drawn from plaintiff’s second amended complaint is that some of the defendant’s own pertinent actions also occurred in the Southern District of Ohio,” Watson wrote. “Defendant’s two-sentence argument offers no case law supporting its assertion that such allegations do not sufficiently allege that a substantial portion of the conspiracy occurred in this district.”
However, Watson wrote that state-law claims “predominate” federal claims in Burke’s lawsuit. Specifically, Watson wrote that statute of limitations argument made on behalf of TWP is an issue best directed to state-level courts first.
Burke has alleged that TWP was negligent in perpetrating acts of terrorism, incitement and violence which caused him physical injury and, in turn, mental and emotional distress.
Watson declined to rule on these issues and wrote that it was best to permit the state court to make legal determinations. Watson pointed to uncertainty in the state law as to whether or not intentional infliction of emotional damage is barred by the one-year statute of limitations when the defendant’s actions do not constitute battery and when further emotional distress is alleged that is not related to the attack.
Accordingly, Watson dismissed all but one count against TWP and wrote that he will not accept summary judgment motions until the parties have “engaged in good-faith settlement negotiations.”
In response to the ruling, Burke’s attorney, Michael Fradin, said that his client is committed to holding TWP accountable.
“[Burke] is relentlessly dedicated to standing up against racism, bigotry, antisemitism, and homophobia,” Fradin said. “With Judge Watson’s decision here, [Burke] can continue his efforts to dismantle the Traditionalist Worker Party.”
TWP and The National Policy Institute are the only remaining defendants in Burke’s case. NPI, a white supremacist think tank, was ruled to be in default earlier this year after failing to plead responses to Burke’s complaint in a timely manner, which means the court can proceed to offer a default judgment in the plaintiff’s favor.
In January, former Ku Klux Klan leader David Duke agreed to pay $5,000 to Burke after a judgment was entered against him. Michael Fradin, Burke’s attorney, claimed the settlement as a win for his client, though Duke also claimed the settlement as a victory.