Sherrod v. Breitbart

Sherrod v. Breitbart, 1:11-cv-00477-RJL (DC Federal Court)

Importance: The federal district court denied the anti-SLAPP motion for multiple reasons, including that it was filed too late. The DC Circuit avoided deciding whether the denial of an anti-SLAPP motion could be immediately appealed because it held that, even if an order denying an anti-SLAPP motion could be immediately appealed, the anti-SLAPP motion was filed too late because the 45-day statutory deadline could not be extended by the Court.

Summary: Sherrod sued the defendants, alleging that they deceptively edited a video to make her appear as a racist. The defendants filed an anti-SLAPP motion, which the federal district court denied without opinion. The defendants then noted an appeal to the DC Circuit. The DC Circuit ordered the federal district court to explain why it denied the anti-SLAPP motion. The federal district court issued a “Statement of Reasons” that identified three reasons why the motion was denied: (a) the anti-SLAPP statute is inapplicable in federal court under the Erie doctrine; the statute was not effective at the time the complaint was filed and was not retroactive; and defendants’ motion under the statute was untimely.

The DC Circuit avoided deciding whether the denial of an anti-SLAPP motion is immediately appealable. It instead assumed that it had appellate jurisdiction and held that, becuase the anti-SLAPP motion was made beyond the 45 days required by the statute and the “statutory time limit” could not be extended by the Court or the parties, the motion was made too late.

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