And now there are two…

In 2015, when the DC Circuit held the D.C. anti-SLAPP statute conflicts with the Federal Rules of Civil Procedure, and thus could not apply in a federal court diversity case, it became the first federal Court of Appeals to so hold. Now there are two.

First, some background. The Ninth Circuit has long held that anti-SLAPP statutes can be applied in federal court. Although several of the judges on that court have suggested it should revisit its prior holding, a majority of judges on the court have resisted this plea; as such, it remains the case that anti-SLAPP statutes can be applied in a federal district court in the Ninth Circuit. Similarly, the First Circuit has held that anti-SLAPP statutes do not conflict with the Federal Rules of Civil Procedure, and thus can apply in a federal court case.

The Fifth Circuit has also previously applied the Louisiana and Texas anti-SLAPP statutes, or assumed their applicability, in federal court (here and here), although it has never expressly decided the question. (That court is poised to do so in a case that has attracted an amicus brief from a bevy of First Amendment and media organizations). And the Second Circuit has twice applied anti-SLAPP statutes (here and here).

It was thus noteworthy when the DC Circuit, in a decision written by then-Judge Kavanaugh, held the D.C. anti-SLAPP statute could not apply in a federal diversity case because it conflicts with the Federal Rules of Civil Procedure. Since that decision, we have been waiting to see if Abbas is the outlier, or the beginning of a trend.

(Earlier this year, the Tenth Circuit held the New Mexico anti-SLAPP statute could not apply in a federal court diversity case, but that decision turned on unique language in that anti-SLAPP statute. Last month, a Kansas federal district court held the Kansas anti-SLAPP statute could apply in a federal court diversity case).

Last week, the Eleventh Circuit held the Georgia anti-SLAPP statute could not apply in federal court because the dismissal provisions of the statute conflict with the Federal Rules of Civil Procedure. The court explained that because Rules 8, 12 and 56 “provide a comprehensive framework governing pretrial dismissal and judgment” in federal court, and because the Georgia anti-SLAPP statute provides a different framework, the two conflict:

Rules 8, 12, and 56 express “with unmistakable clarity” that proof of probability of success on the merits “is not required in federal courts” to avoid pretrial dismissal, and that the evidentiary sufficiency of a claim should not be tested before discovery. But the relevant provisions of the Georgia anti-SLAPP statute explicitly require proof of a probability of success on the merits without the benefit of discovery. The result is a “direct collision” between the Federal Rules and the motion-to-strike provision of the Georgia statute.

The court rejected multiple arguments made by CNN and amici, arguing why the anti-SLAPP statute and Rules of Civil Procedure could co-exist. It also explained it was “not persuaded” by the decisions of the Ninth and First Circuits, instead finding the Abbas court’s reasoning “far more convincing.”

My two cents: earlier this month the Supreme Court denied a petition for certiorari filed by the defendant in the Tenth Circuit case, which asked the Court to decide “[w]hether a state anti-SLAPP provision requiring expedited disposition of dismissal motions applies in federal court, as the First and Fifth Circuits have concluded, in conflict with the D.C. Circuit and the Tenth Circuit below.” In 2016, the Court denied a petition for a writ of certiorari that wanted the Court to decide “[w]hether state anti-SLAPP statutes are properly applied in federal diversity cases, or whether doing so runs afoul of the Erie doctrine.” Whatever the Fifth Circuit decides, it’s going to add to the growing divide among the circuits. At this point, it’s no longer a question if the Court is going to take up the issue, but when. As always, stay tuned.

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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