DC Circuit Affirms Denial of anti-SLAPP Motion in Sherrod v. Breitbart on Timeliness Grounds

This morning, the DC Circuit issued a short opinion in which it affirmed the District Court’s ruling in Sherrod v. Breitbart, which had denied the defendants’ anti-SLAPP motion. 

Because the District Court’s ruling was not a final judgment ending the action, the DC Circuit first considered whether it even had jurisdiction to hear the appeal.  After canvassing decisions from other circuits and a “terse, unpublished order” from the DC Court of Appeals, the court sidestepped the question because it found that its precedent on another issue completely resolved the case.  In other words, the court assumed (without deciding) that it had appellate jurisdiction because it concluded that the outcome was dictated by its precedent on another issue.

That issue was the timeliness of the anti-SLAPP motion.  Under the statute, an anti-SLAPP motion must be made within 45 days of service.  In Sherrod, the parties agreed to two extensions of the defendants’ time to respond, so that, while they were served on February 12, 2011, their anti-SLAPP motion was not filed until April 18, 2011.

The DC Circuit holds that, under Circuit precedent, parties cannot enlarge statutory time limits:

The reason is apparent.  Rule 6(b) gives district courts wide discretion to modify the time limits set forth in the rules.  Statutory time limits are different.  Whether a statute of limitations may be tolled requires the court to engage in statutory interpretation.  This is not a matter of the court’s discretion.  The intent of the legislature is controlling.

* * *

It follows that the district court’s granting of the “Consent Motion” to extend time pursuant to Rule 6(b) could not have extended the D.C. statute’s 45-day limit.  The district court therefore properly denied as untimely defendants’ motion to dismiss under the District of Columbia’s anti-SLAPP Act. 

The fact that the court resolved the case on timeliness grounds means that the “Erie” issue will likely be decided by Farah v. Esquire.  No date for argument has been set in that case. 

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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