The DC Circuit today issued a per curiam order asking the judge who is presiding over the Sherrod v. Breitbart case, to explain why he denied an anti-SLAPP motion filed by the defendants. Last July, Judge Leon denied the motion in a minute order.
Today, the DC Circuit ordered “on the court’s own motion, that the record be remanded to the district court for a statement of reasons for the denial of appellants’ motion to dismiss pursuant to the District of Columbia’s Anti-Strategic Lawsuits Against Public Participation statute, D.C. Code § 16-5502.” After the district court issues its statement of reasons, the record is to be returned to the DC Circuit.
It will be interesting to see what reasons the district court gives for its decision. The plaintiff’s brief in opposition to the motion cited several reasons why it should be denied, including that the motion was not made within 45 days after service of the complaint, as required by the statute; that it was inapplicable in federal court under Erie; and that it does not apply to the lawsuit because the statute became effective six weeks after the suit was filed.
Of course, last week, another federal district judge in DC denied an anti-SLAPP motion in 3M v. Boulter, concluding that it was not applicable in federal court because the federal court was required to apply federal procedural rules under the Erie doctrine