District of Columbia and Defendants File Response to 3M’s Motion to Strike Anti-SLAPP Motion

Both the District of Columbia and the Davis defendants today filed briefs in response to the motion to strike filed by the plaintiff in the 3M v. Boulter case last month.

The District of Columbia’s brief responds directly to the Home Rule and Erie arguments made by the plaintiff in its motion to strike the anti-SLAPP motion filed by the Davis defendants.

The brief explains that, in the District of Columbia, legislation is subject to review by Congress, so that the Court must be especially cautious and deferential in assessing its validity. It argues that the provision relied upon by 3M for its position that the anti-SLAPP violates the Home Rule Act applies only to changes on the organization and jurisdiction of the District of Columbia courts: “the exception was only meant to prevent the Council from passing laws that alter the core powers of the D.C. Courts. . . . Congress was not concerned with setting beyond the reach of the local legislature other aspects of the courts’ practice, like whether particular rules of civil procedure must remain effective in every context” (emphasis in original). Tracing the legislative history of the provision at issue, and citing to other decisions, the brief argues that the plaintiff’s position “would take the provision beyond what Congress intended in adopting the provision.”    

In the 3M brief in support of its motion to strike, it cited to a letter from the then-DC attorney general at the time the statute was under consideration, suggesting that the anti-SLAPP statute might violate the Home Rule. DC’s brief argues that this was a “preliminary concern” that “was raised prior to the Attorney General undertaking any ‘study in depth’ of the issue” and that “[u]pon the Council’s further analysis and considered judgment, the statute was passed.

The District of Columbia’s brief also responds to the Erie argument made by 3M by arguing that the anti-SLAPP statute does not conflict with, or substitute for, established rules of procedure, but instead creates a supplemental rule to provide added protections for certain suits. It relies on a recent First Circuit decision [this is the same decision that effectively overruled two Massachusetts district court decisions relied upon by Sherrod and Farah plaintiffs in their opposition briefs], which held that the protections afforded by Maine’s anti-SLAPP statute could be applied in federal court and did not violate Erie.

The Davis defendants’ opposition to the 3M motion to strike adopts DC’s arguments regarding the Home Rule and asserts that “[c]ases interpreting this provision make clear that the type of legislation that is prohibited is legislation contracting or expanding the jurisdiction of the local and federal courts in D.C.” Like the District of Columbia’s brief, it argues that nothing in the Act abolishes existing procedural rules and that there are no existing rules that prohibit the types of motions contemplated by the anti-SLAPP statute.

Essentially, argues the Davis defendants, the procedural provisions of the anti-SLAPP statute co-exist with the court’s existing procedural rules, and thus pose no problem: “[f]ederal courts have regularly applied state anti-SLAPP statutes to cases based on diversity jurisdiction, or otherwise based on state law, because such statutes not only do not ‘abolish’ the Federal Rules, but are not even inconsistent with the Federal Rules” (citations omitted).

Leslie Machado

About: Leslie Machado

Mr. Machado counsels and advises a diverse range of clients on various areas of law. He is also an experienced litigator, having tried cases to verdict in state and federal courts. View all posts by Leslie Machado
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