The DC Circuit’s decision in Farah v. Esquire Magazine turned out to be a dud from an anti-SLAPP perspective. The court affirmed the district court’s dismissal of Farah’s Complaint, but did so under Rule 12(b)(6), thus mooting any consideration of arguments made under the DC anti-SLAPP act.
The opinion is not a great surprise. In its brief to the DC Circuit, Esquire suggested that, because the Complaint was also dismissed under Rule 12(b)(6), the district court’s decision could be affirmed on this alternative basis. And the questions at oral argument (link here) did not focus on the anti-SLAPP act.
Nevertheless, the decision is notable for three reasons.
First, it means that the Abbas v. Foreign Policy Group appeal will decide the “Erie” question of whether the DC anti-SLAPP act applies in federal court. Because the district court in Abbas dismissed the Complaint in response to an anti-SLAPP motion, it held that the companion Rule 12(b)(6) motion was moot. The DC Circuit will thus be forced to confront the “Erie” issue and, in fact, the Abbas appellant has squarely teed up the issue in his Statement of Issues on Appeal. Making things more interesting, there is now a very public split in the Ninth Circuit over that court’s prior decisions holding that anti-SLAPP statutes apply in federal court, with four judges (including Chief Judge Kozinski) asserting that court should revisit that position.
Second, when it moved to dismiss Farah’s Complaint at the district court, Esquire attached “the WorldNetDaily website’s complete archive of articles on President Obama’s ineligibility to serve, including articles by Farah published online from September 2009 through August 2011, as well as samples of Esquire’s satirical publications” to its motion papers.
Because these documents were not attached to the Complaint, they arguably could not have been considered by the district court on a Rule 12(b)(6) motion. But, because Esquire’s motion was also made under the DC anti-SLAPP act, they could properly be submitted to, and considered by, the district court. The lesson here is that attacking a complaint under both Rule 12(b)(6) and the DC anti-SLAPP statute allows a moving party to include additional material for the district court’s consideration, even if the motion is later decided only under Rule 12(b)(6). (The DC Circuit also cited to and relied on the documents on the theory that they were “publicly available historical articles” of which it could take judicial notice).
Finally, the fact that the decision was affirmed under Rule 12(b)(6), and not the DC anti-SLAPP statute, likely moots the issue of attorneys fees. The parties had agreed to forego litigating the attorneys’ fees issue until the DC Circuit decided the appeal. Because there is no right to recover attorneys fees under Rule 12(b)(6), and that was the basis for the DC Circuit’s decision, that should end any disagreement over attorneys fees.