Today, 3M moved to dismiss the appeal filed by the Davis defendants.
In its motion, 3M argues that the appeal of the district court’s opinion and order, denying the anti-SLAPP motion filed by the Davis defendants, must be dismissed because: (a) the district court’s order was not a final order within meaning of § 1291; (b) the district court’s order is not the type of § 1292 order from which an interlocutory appeal can be taken; (c) the Davis defendants did not obtain permission from the district court to certify the order for appeal; and (d) the order does not fall within the narrow class of cases from which an immediate right of appeal arises under the collateral order doctrine.
3M argues (correctly, in my view), that the Davis defendants are not contesting points (a)-(c) and, for this reason, spends most of its brief on the fourth point – that this case is not encompassed by the collateral order doctrine. It concentrates most of its brief on the argument that the anti-SLAPP decision is reviewable after the case is over, and thus falls outside the collateral order doctrine. While acknowledging that, District of Columbia law has been interpreted to allow immediate appeal of the denial of a motion for immunity, 3M argues that the anti-SLAPP act does not create immunity from suit, but only an expedited procedure for summary disposition.
And, argues 3M, while other federal courts have interpreted other anti-SLAPP statues to allow for immediate interlocutory review, this has been only where the statute’s text provides such a right or such a right can be found in the state law. Finding no basis in either the plain text of the DC anti-SLAPP statute or in DC law, 3M argues that no right to interlocutory appeal exists here and, as a result, the Davis defendants’ appeal must be dismissed.