I have learned that, last month, the DC Court of Appeals dismissed the appeal of an order denying an anti-SLAPP motion. The court held that there was no interlocutory review under the statute and that the order was not appealable under the Cohen collateral order doctrine. This order, and other rulings in the same suit, could have major ramifications for the Sherrod v. Breitbart appeal and the other pending anti-SLAPP motions.
A quick summary of how we got here. On May 12, 2011, Arthur Newmyer filed suit against The Sidwell Friends School and James Huntington. The suit received a lot of media attention (for example, see the New York Times article here, the Washington Post article here, and the Slate article here) because Newmyer alleged that Huntington, while employed by Sidwell as a psychologist, had an “open sexual relationship with” Newmyer’s wife, while, at the same time, allegedly treating Newmyer’s minor child, who attended the school. It alleges that this had a significant effect on the minor child.
Approximately 6½ months later, Huntington filed a counterclaim for defamation, false light, tortious interference with contract, and intentional infliction of emotional distress. Huntington alleged that Newmyer and his wife had agreed that they would live apart as if they were single and unmarried; that Newmyer’s wife was thus able to become involved with Huntington; that Huntington had never rendered care to Newmyer’s child; but that Newmyer had made the allegations against Huntington “for the purpose of annoying, harassing, interfering with and harming his estranged wife.”
Newmyer responded to the counterclaim by filing a Rule 12(b)(6) motion to dismiss, arguing that:
• the counterclaim was time barred because it was filed beyond the applicable statute of limitations;
• the defamation claim was not pled with the required specificity;
• the allegedly defamatory statements were privileged as a matter of law because they were made to the Sidwell Board of Trustees and licensing boards; and
• the allegedly defamatory statements were not capable of being proven true and thus could not support a defamation claim.
In a companion anti-SLAPP motion, Newmyer argued that the counterclaim was subject to the anti-SLAPP statute because it arose from an act in furtherance of the right of advocacy on issues of public interest. Newmyer specifically argued that the challenged statements were made in connection with “an issue under consideration or review by a legislative, executive, or judicial body, or other official proceeding authorized by law” because it involved issues that were now pending before the DC Superior Court. Newmyer argued that, independently, the statements were made to the public about an “issue of public interest,” which he described as a school’s protection of its students. Because Huntington could not show that he was likely to prevail on the merits (for the reasons in the 12(b)(6) motion), Newmyer argued that the court should grant the anti-SLAPP motion.
(Newmyer’s anti-SLAPP motion also stated that it “appears to be the D.C. Superior Court’s first opportunity to rule on the merits of” an anti-SLAPP motion. In fact, by February 2012, when the motion was made, the DC Superior Court had already granted the anti-SLAPP motion in Lehan v. Fox).
In response, Huntington argued that the anti-SLAPP motion was untimely because, while the counterclaim was filed on December 30, 2011; and the statute requires an anti-SLAPP motion to be made within 45 days, or February 13, 2012; Newmyer’s anti-SLAPP motion was not made until February 29, 2012. Huntington argued that this 45-day deadline could not be extended by the parties because it was jurisdictional. Huntington also argued that the counterclaim was not a SLAPP; that any disagreement between the parties was purely private and not an “issue of public interest”; and that he was likely to prevail on the merits. Huntington asked the Court to award fees and costs, which, under the statute, are available only if the court “finds that the motion was frivolous or is solely intended to cause unnecessary delay.”
Newmyer’s reply brief argued that the 45-day deadline was not jurisdictional and that his anti-SLAPP motion was timely because the deadline to respond to the counterclaim was twice extended by Huntington and the motion was filed before the expiration of the second extension. It then repeated the arguments from his opening brief about how the statute applied to the suit and why Huntington was unlikely to prevail on the merits.
Huntington’s surreply brief argued that, while he extended Newmyer’s time to file a responsive pleading, the anti-SLAPP motion was not a responsive pleading(!), but a “statutorily created substantive right” that “cannot be extended beyond the statutory time requirement by agreement of the parties.” Huntington also repeated the arguments he made in his opposition brief. He emphasized, again, that the suit was not the type contemplated by the DC Council when it enacted the anti-SLAPP statute:
it is clear that Dr. Huntington is not seeking to chill or repress constitutionally protected speech, but is simply seeking to redress wrongs created by the unfounded and hateful claim filed by Dr. Newmyer. . . . Unlike a traditional SLAPP suit, there is no economic bullying here, and Dr. Huntington is certainly not a “large private interest aiming to deter common citizens from exercising their political or legal rights.”
On May 22, 2012, the DC Superior Court denied the anti-SLAPP motion and awarded Huntington attorney fees. On the timeliness issue, the court held:
[t]he court agrees that this special motion to dismiss is untimely filed and can be denied for that reason alone. . . . Nevertheless, if the court viewed Dr. Huntington’s counter-suit as a purely strategic effort to silence Mr. Newmyer, or to punish him for exercising his right to bring his lawsuit, the court might very well conclude that the ameliorative purpose of the Act requires a more flexible interpretation of the forty-five day framework.
Much more relevantly, the court appeared to hold that the case was not subject to the anti-SLAPP statute because there was no evidence that it was brought for an improper purpose:
there is no other indication that this is a claim designed to silence or punish one for speaking out on issues of public importance. Without engaging in an analysis of whether Mr. Newmyer’s lawsuit extends to matters of importance to the public or whether Dr. Huntington is a public figure, it suffices to note that there is no economic bullying here by Dr. Huntington, and his claims are not likely to deter Mr. Newmyer from being heard on his contentions. . . .
Of course, the statute is available to any litigant, rich or poor, who can assert its substantive protection to shield against harassing lawsuits; however, it is incredulous that Mr. Newmyer would view Dr. Huntington’s defamation counter-claim as an offensive weapon of intimidation. It is not clear that the special motion to dismiss was filed for purposes of delay, but it is clear that the special motion is baseless and, therefore frivolous. Dr. Huntington may therefore submit a proposed order for attorney’s fees along with an accompanying memorandum that explains how the fee was calculated.
As you might expect, Newmyer appealed the denial of his anti-SLAPP motion to the DC Court of Appeals. (On June 6, the Superior Court granted and denied the 12(b)(6) motion to dismiss in part, finding that the defamation and false light claims were time barred, but holding that the tortious interference with contractual relations and intentional infliction of emotional distress counts were timely made and stated a claim).
On June 23, 2012, Huntington moved the DC Court of Appeals to dismiss the appeal as an inappropriate interlocutory action. Huntington argued that the Superior Court’s May 22, 2012 Order was not a final order capable of being appealed because it did not terminate all the proceedings in the Superior Court. He also argued that the Superior Court never certified its order for interlocutory review and that the collateral order doctrine did not provide a basis for the Court of Appeals to review the order.
Newmyer opposed the motion to dismiss. He argued that the Superior Court had inappropriately denied the anti-SLAPP motion by considering whether “Huntington’s subjective motives in filing the Counter Complaint were proper, and/or because Mr. Newmyer may prove difficult to intimidate.” Newmyer also argued that the Superior Court erred in deciding the anti-SLAPP motion without a hearing and that the 45-day deadline was not jurisdictional.
Newmyer argued that the appeal was appropriate under the Cohen collateral order doctrine. According to Newmyer, the issues to be resolved were distinct from the issues in the “main case”; the Superior Court’s Order could not be resolved after final judgment because the purpose of the anti-SLAPP act was to protect parties from the burdens of litigation; and the order implicated a substantial public interest.
On December 5, 2012, the DC Court of Appeals dismissed the appeal in a per curiam order:
ORDERED that appellee’s motion to dismiss is granted and this interlocutory appeal is hereby dismissed. The subject order is not appealable under the collateral order doctrine, see Cohen v. Beneficial Loan Corp., 357 U.S. 541, 546 (1947), and the District’s anti-SLAPP statute does not provide for interlocutory review. See, e.g., Englert v. MacDonnell, 551 F.3d 1099 (9th Cir. 2009).
Three issues in this case have potential consequences for the other anti-SLAPP motions that are pending. First, the question of whether an anti-SLAPP motion is timely made, when the time to respond has been extended by agreement, is pending before the DC Circuit in Sherrod v. Breitbart. In his Statement of Reasons, Judge Leon held that the motion there was not timely made, despite an agreement between the parties. With that decision and this one, parties need to make their motions in 45 days as there is a real possibility that any agreement to extend the deadline will not be sufficient.
Second, the Superior Court’s order appeared to deny the anti-SLAPP motion because it found that the counterclaim was not intended as “economic bullying.” Several other parties have recently argued, in response to anti-SLAPP motions, that their lawsuits are not “traditional” SLAPP suits; this argument appears to have been accepted by the Newmyer court. I would expect other parties to respond to anti-SLAPP motions with similar arguments, and it will be interesting to see if they gain any more traction from the courts.
Finally, and most notably, the issue of whether there is a right to immediately appeal the denial of anti-SLAPP motion is squarely teed up in Sherrod v. Breitbart. There, the appellants have also argued that the appellate court has jurisdiction pursuant to the Cohen collateral order doctrine. In fact, Breitbart’s brief in opposition to Sherrod’s motion to dismiss the appeal; Breitbart’s opening brief at the DC Circuit; and the District of Columbia’s brief in opposition to the motion to dismiss the Davis appeal all made similar arguments and cited similar decisions as cited by Newmyer. Now, however, the DC Court of Appeals has rejected that same argument. Whether this portends doom for the appellants in Breitbart, or whether the DC Circuit reaches a different conclusion, remains to be seen. It is, however, not a good development for the appellants in that case.