For those hoping that, after the DC Court of Appeals’ Mann decision, DC federal district judges would again apply the DC anti-SLAPP statute in a diversity suit, as multiple judges had done before the DC Circuit’s Abbas decision, they are going to have to wait longer. A second DC federal district judge has now concluded that – despite Mann – the DC anti-SLAPP statute cannot apply in a DC federal court diversity case.
First was Judge Huvelle’s opinion last October in Deripaska v. Associated Press, which held the court was bound to follow Abbas, because the Mann decision did not “clearly and unmistakably” resolve the question of whether a federal court exercising diversity jurisdiction may apply the D.C. anti-SLAPP Act’s special motion to dismiss provision.
Now we have Judge Mehta’s decision in Libre by Nexus v. Buzzfeed, which builds upon the reasons cited by Judge Huvelle. (I wrote about the Libre by Nexus complaint and the various arguments back in January). In a comprehensive opinion issued last week, the court granted defendants’ motion to dismiss the complaint under Rule 12(b)(6), finding that Libre’s specific theory of defamation was not plausible in light of the factual allegations and the relevant article. The court allowed Libre leave to file an amended complaint.
Turning to the companion anti-SLAPP special motion to dismiss, the court first traced the reasoning behind the DC Circuit’s Abbas reasoning before turning to the DC Court of Appeals’ Mann decision. Like Judge Huvelle, Judge Mehta concludes that Mann does not “‘clearly and unmistakably’ compel the court to deviate from the Circuit’s holding in Abbas.” The Libre opinion explains that, despite the Mann court’s claim that the “likelihood of success standard does, in fact, ‘simply mirror the standards imposed by Federal Rule 56,’” there are fundamental differences that make the statute inapplicable in a federal court diversity case.
The court identifies two fundamental differences. First, under the DC anti-SLAPP statute, a plaintiff must produce or proffer evidence to survive a special motion to dismiss while, under Rule 12(b)(6), a plaintiff need only plead facts establishing a “plausible” defamation claim to survive a motion to dismiss. Second, the Libre court concludes, the DC anti-SLAPP statute’s burden-shifting framework (which allows the defendant, after making a prima facie showing, to shift the burden to the plaintiff to “put his evidentiary cards on the table” or face both dismissal and fees) “is anathema to the Rule 12(b)(6) standard, which places the burden squarely on the defendant to justify dismissal.” These differences lead the Libre court to conclude it must follow Abbas.
There are still anti-SLAPP special motions to dismiss pending in at least three other DC federal court diversity cases (although one is in a case before Judge Huvelle, who it reasonably can be expected will adhere to her conclusion in Deripaska). As always, stay tuned.