Sherrod Plaintiff Moves To Dismiss Breitbart Appeal

On the same day that the parties in the Lehan v. Fox case submitted supplemental briefs on the retroactivity issue, the plaintiff in the Sherrod v. Breitbart suit moved to dismiss the appeal filed by the anti-SLAPP movants there or, in the alternative, for summary affirmance.

As you may recall, on July 28, Judge Leon denied the anti-SLAPP motion with a minute order. On August 26, the moving parties filed their notice of appeal. To date, Judge Leon has not issued an opinion explaining why he denied the anti-SLAPP motion.

In her motion to dismiss/for summary affirmance filed today, Ms. Sherrod argues that the statute does not provide a right to immediate review of a denial of an anti-SLAPP motion and that the case is not within that narrow universe of cases from which an immediate right to interlocutory appeal exists. She argues that any appeal of the anti-SLAPP motion could, and should, wait until termination of the entire suit and that, as a result, the DC Circuit essentially lacks jurisdiction over the appeal.

Ms. Sherrod alternatively argues that, if the Circuit has jurisdiction, it should summarily affirm the District Court’s order. (For those unfamiliar with the somewhat unique procedure in the DC Circuit, it allows for “summary disposition” the Circuit to summarily affirm or reverse an order on appeal, without extensive briefing of the parties or argument. See DC Handbook of Practice and Internal Procedures at 35. The handbook notes, however, that “[p]arties should avoid requesting summary disposition of issues of first impression for the court”). Notwithstanding the foregoing, Ms. Sherrod argues that the DC Circuit should summarily affirm the District Court’s Order because the statute cannot be applied to her suit as its effective date came two months after she filed her claims.

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