While 3M and Lanny Davis were resolving their claims, the judge presiding over the district court portion of the case resurrected his February 2012 decision against another one of the defendants in that same case and held – again – that the DC anti-SLAPP statute does not apply in federal court.
In the 3M case, the plaintiff had sued Harvey Boulter, the director and CEO of two of the corporate defendants. It had difficulty serving him and did not do so until July 2012. On August 16, 2012, Mr. Boulter moved to dismiss the Complaint, arguing that there was no personal jurisdiction over him and, in any event, failed to state a claim against him. After 3M filed its opposition, 3M and Mr. Boulter reached an agreement on how to handle an anti-SLAPP motion Mr. Boulter intended to make.
On September 10, Mr. Boulter moved to dismiss the Complaint under the DC anti-SLAPP statute. In his motion, he relied exclusively on the arguments previously made by the other defendants and the District of Columbia by incorporation. Acknowledging that the district court had denied the prior anti-SLAPP motion, Mr. Boulter explained that he was moving “to preserve his rights under the Anti-SLAPP Act in the event that the D.C. Circuit modifies this Court’s earlier Anti-SLAPP Decision.”
Less than three weeks later, on September 27, Mr. Boulter and 3M filed a joint stipulation in which they agreed to hold Mr. Boulter’s anti-SLAPP motion in abeyance until the Davis appeal was resolved and until the district court ruled on the pending Boulter motion to dismiss. The parties further agreed that, if the DC Circuit affirmed the district court’s denial of the Davis anti-SLAPP motion, then Mr. Boulter’s anti-SLAPP motion would be denied by the district court. If, on the other hand, the DC Circuit reversed or vacated the denial, then Mr. Boulter and 3M would confer on a briefing schedule for resolution of his anti-SLAPP motion. The next day, the federal district court endorsed the joint stipulation.
On October 5, the district court made the following entry on the docket:
Minute Entry for proceedings held before Judge Robert L. Wilkins: Motion Hearing held and concluded on 10/5/2012 re Defendant’s 83 MOTION to Dismiss Amended Complaint; Argument Heard and motion GRANTED for reasons stated on the record in open court. (Court Reporter Rebecca Stonestreet) (tcb) (Entered: 10/05/2012)
On October 22, 3M and Davis advised the district court that they had resolved their dispute and that 3M was dismissing its claims against Davis. Given the court’s earlier docket entry, granting Mr. Boulter’s motion to dismiss, you would have thought that this ended the case.
You would be wrong. That same day, the district court acted on the anti-SLAPP motion filed by Mr. Boulter, and denied it. (The district court issued an amended opinion and order on October 24; the differences are not apparent to me, but the link is to the amended version). According to the court, it concluded that “to properly manage its docket, the motion should be ruled upon and closed rather than left pending for an indefinite period.” The court explained that, while it “recently granted Boulter’s motion to dismiss for lack of personal jurisdiction, the instant motion is not moot because the plaintiff may yet appeal that dismissal, which could result in a reinstatement of the claims against Boulter. In addition, while the Davis defendants have dismissed their interlocutory appeal, the District of Columbia’s appeal is still pending.”
The court then summarized and reiterated its prior opinion that Federal Rules of Civil Procedure 12 and 56 provide the exclusive means to resolve motions in federal court and that, because the DC anti-SLAPP statute contemplated a different procedure, it was irreconcilable with the Federal Rules, and thus inapplicable in federal court.
Then the court went further. Its February opinion had explained that “the District and Defendants in this case . . . argu[e] that the D.C. Anti-SLAPP statute has created substantive rights, such as immunity from suit. . . . This Court need not conclusively decide whether the D.C. Anti-SLAPP Act creates any substantive rights.” The district court’s October opinion, however, rejected this argument: “it is also clear that the District of Columbia Anti-SLAPP law is not a substantive protection that is akin to the defense of immunity, as Boulter claims.”
Although the Davis defendants/appellants have dismissed their appeal, Judge Wilkins’ decision will be addressed by the DC Circuit in Sherrod v. Breitbart, where the defendants/appellants have already argued that it was wrong.