The DC Circuit’s Abbas decision, holding that the DC anti-SLAPP statute does not apply in a federal court diversity case, is beginning to have real-world consequences for litigants in the District of Columbia. Since the April 2015 decision, at least two libel cases have been filed in DC federal court. In both cases, the defendants are not able to move under the DC anti-SLAPP statute. And for defendants sued in DC Superior Court – who are able to remove the case to federal court because of diversity jurisdiction – the Abbas decision leaves them with a difficult decision.
Since the DC Circuit issued its Abbas decision, two new libel suits have been filed in DC federal court based upon diversity jurisdiction:
- In Rogers v. Secular Coalition for America, Inc., the plaintiff is suing her former employer and others for defamation and related torts arising out of her termination. (Disclosure: I am representing one of the individual defendants in this case).
- In Hourani v. PsyberSolutions LLC, the plaintiff (represented by three of the same attorneys who represented the Abbas plaintiff) alleges that the defendants defamed him by suggesting that he was complicit in the murder of a woman.
Because of the Abbas decision, none of the defendants in either case are able to move under the DC anti-SLAPP statute. If the cases were in DC Superior Court, the defendants could make an anti-SLAPP motion (assuming that they could show that the suit was based upon act or acts “in furtherance of the right of advocacy on issues of public interest”).
In an amicus brief filed in the Abbas case, the District of Columbia argued that the DC anti-SLAPP statute should apply in a federal court diversity case because “it would be inequitable to allow the use of a defense to parties subjected to a SLAPP in Superior Court, but deny them the use of that defense in federal court, especially since the choice of forum is, in large part, the province of the plaintiff” and because “if plaintiffs are subject to the heightened burden of proof set forth in the Act if they file their case in local court, but can avoid being subject to those standards if they file in federal court, that result will promote precisely the type of forum-shopping Erie was designed to avoid.” Until Congress passes a federal anti-SLAPP statute, or the DC Circuit or Supreme Court hold that anti-SLAPP statutes apply in federal court, smart plaintiffs will file their libel cases in federal court, if they can, knowing that they are avoiding a possible anti-SLAPP motion.
In the meantime, a defendant who is sued in Superior Court, but who has the ability to remove the case to federal court because of diversity jurisdiction, has a difficult choice. The deadline for removal is 30 days – not enough time to file an anti-SLAPP motion and get a ruling from the Superior Court. So that defendant must decide whether to remain in Superior Court, so that it can file an anti-SLAPP motion, or remove the case to federal court, knowing that it will not be able to file an anti-SLAPP motion.