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E. Jean Carroll to file 2nd lawsuit against Trump, her attorneys say

Eva Deitch/The Washington Post via Getty Images

(New York) -- Former Elle columnist E. Jean Carroll will file a new lawsuit against former President Donald Trump on Thanksgiving, the first day of New York's new Adult Survivors Act that allows adult victims of sexual assault to file civil lawsuits that would otherwise be barred due to the passage of too much time, her attorneys said during a court hearing Tuesday.

Carroll is already suing Trump for defamation in federal court after he denied her claim that he raped her in a department store dressing room in the mid-1990s, saying she was "not my type." The new lawsuit, also being filed in federal court, will include a new allegation of defamation and an allegation of battery.

Attorneys for Carroll asked the federal judge presiding over the original case to delay a trial date to account for the new lawsuit, but the judge declined.

"The second action is technically not before me today," Judge Lewis Kaplan said.

An attorney for Trump, Alina Habba, told the judge she didn't know if she would be representing Trump in the new suit.

"The complaint has not been filed. I have not been retained," Habba told the judge. "I don't know whether I'll be retained on that matter."

"Your client has known this is coming for months and he would be well advised to know who is representing him in it," Judge Kaplan replied.

Carroll's attorney, Roberta Kaplan, said she asked Trump about the second alleged incident of defamation during a recent deposition.

Whether Carroll's initial lawsuit can even proceed hinges on the outcome of a legal question before a different court.

Trump has argued the Justice Department should be substituted as the defendant in the case because as president, he was an employee of the federal government, which cannot be sued for defamation.

In September the 2nd U.S. Circuit Court of Appeals ruled that Trump was indeed a government employee under the terms of the Westfall Act, which shields federal employees from personal liability -- but it left to the D.C. Court of Appeals to determine whether Trump's denials fell within the scope of his employment.

The Court of Appeals, which retains jurisdiction over the conduct of federal government employees, has scheduled oral arguments for January to decide whether Trump was acting in his official capacity as president when he denied Carroll's rape claim and allegedly defamed her.

If the court decides in Trump's favor, any defamation suit would be void.

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