A SLAPP back on track: how Shady Grove prevents the application of anti-SLAPP laws in federal courts.

AuthorKimberly, Tyler J.
PositionStrategic lawsuits against public participation

CONTENTS INTRODUCTION I. WHAT IS AN "ANTI-SLAPP" LAW? A. The Problems That Created Anti-SLAPP Laws B. How an Anti-SLAPP Law Works II. FEELING THE TENSION BETWEEN THE FEDERAL RULES OF CIVIL PROCEDURE AND STATE LAWS A. What Shady Grove Actually Contributed and Took Away from the Erie Doctrine ... 1. The Evolution of REA Analysis Before Shady Grove 2. Giving the Federal Rules More Bite: Shady Grove B. How Shady Grove Has Been Applied in Federal Courts Examining Anti-SLAPP Statutes 1. Circuit Court Decisions 2. District Court Decisions III. HOW TO DETERMINE WHETHER ANTI-SLAPP STATUTES AND FEDERAL RULES DIRECTLY COLLIDE ACCORDING TO SHADY GROVE A. The Scope of Anti-SLAPP Motions to Dismiss B. Determining the Existence of a Direct Conflict Between the Federal Rules of Civil Procedure and Anti-SLAPP Statutes CONCLUSION INTRODUCTION

In 2011, WorldNetDaily.com and its CEO, Joseph Farah, posted more than sixty "internet items" and forty-seven articles questioning the validity of President Barak Obama's birth certificate. (1) Following the release of the President's long-form birth certificate, Farah and his company fanned the flames by advertising WolrdNetDaily.com's upcoming publication of a book by Dr. Jerome Corsi entitled, "Where's the Birth Certificate? The Case That Barak Obama Is Not Eligible to Be President." (2) Following the book's release, Esquire Magazine poked fun at the book and satirically claimed that Farah changed his mind because publishing the book would make him and his company look like "idiots." (3) Farah, not finding the humor in the matter, sued Esquire Magazine for "more than $100 million in actual and compensatory damages and more than $20 million in punitive damages," alleging, among other claims, defamation. (4) Esquire responded by moving to dismiss Farah's claim under the District of Columbia's anti-SLAPP law. (5)

The District Court for the District of Columbia applied the anti-SLAPP statute without question (6) and only inquired whether Esquire Magazine's blog post was protected speech under the statute. (7) Ultimately, the court concluded that Esquire's comments were the type of speech protected under the anti-SLAPP act and dismissed Farah's complaint. (8)

However, the court noted that "the rationale that applie[d] to the motion ... under the D.C. [a]nti-SLAPP Act also applie[d] to Defendants' motion to dismiss [for] failure to state a claim." (9) While the rationale for Rule 12(b)(6) and the anti-SLAPP motion to dismiss may have been similar, there are important differences between the two. Namely, the anti-SLAPP motion imposes a different burden of proof on both the defendant and the plaintiff. (10) Furthermore, a Rule 12(b)(6) motion considers the pleadings alone, whereas an anti-SLAPP motion allows a court to examine affidavits apart from the pleadings. This should have raised a red flag for the court to perform a conflict of law analysis to determine whether the anti-SLAPP statute motion to dismiss or Rule 12(b)(6) was appropriate. After all, presenting evidence and the burden of proof are important procedural rights. (11)

Unfortunately, the district court did not perform a conflict of law analysis. The court considered the anti-SLAPP statute's applicability in federal court as an afterthought, dismissing any conflict of law analysis in a footnote. (12) This could be taken as an indication that anti-SLAPP statutes are consistently applied by federal courts sitting in diversity; however, that is not the case. In fact, just four months before the decision in Farah, the same district court refused to apply the exact same anti-SLAPP statute due to a conflict with the Federal Rules of Civil Procedure in 3M Company v. Boulter. (13)

Much like in Farah, the plaintiff in 3M alleged the defendant engaged in a "campaign of harassment," and the defendant, Boulter, responded that the plaintiff's lawsuit was frivolous. (14) The district court in 3M resolved the issue by following the conflict of law analysis adopted by the Supreme Court's plurality in Shady Grove Orthopedic Associates v. Allstate Insurance Company. (15) The 3M court concluded that the District of Columbia's anti-SLAPP statute impermissibly conflicted with Federal Rules of Civil Procedure 12 and 56 and, therefore, did not apply in federal court. (16) What is even more interesting is that the defendants' 12(b)(6) motion to dismiss was subsequently denied by the district court. (17) The same motion to dismiss was not applied in Farah because the defamation claim was meritless under the District of Columbia's anti-SLAPP statute. (18) Unlike Farah, the court in 3M found not only that the plaintiff's claim had merit, but also that the plaintiff had actually stated a claim for which relief could be granted. However, if the plaintiff's claim in 3M had been considered under the anti-SLAPP statute, the motion would have been subject to a higher burden of proof and litigated with less evidence, likely resulting in the dismissal of the claim.

These conflicting opinions reflect the confusion of federal courts in determining whether anti-SLAPP statutes apply in federal court. In this context, the importance of Shady Grove, the most recent progeny of Erie Railroad v. Tompkins, (19) cannot be underestimated. The plurality in Shady Grove gave the Federal Rules of Civil Procedure increased prominence over a possibly conflicting state law. This Note seeks to identify and resolve the confusion that has perplexed federal courts when deciding whether anti-SLAPP statutes are preempted by the Federal Rules of Civil Procedure. Ultimately, because Shady Grove's plurality should be applied, anti-SLAPP statutes cannot apply in federal court as they conflict with the Federal Rules of Civil Procedure. Moreover, the conflict between the anti-SLAPP statute and federal rules is critical. Anti-SLAPP statutes require that in order to defeat a motion, a plaintiff satisfy a heightened standard of proof while simultaneously depriving the plaintiff of evidence available to meet that standard.

Part I of this Note will discuss the problems that led to anti-SLAPP statutes and evaluates their purpose and how they function. Part II of this Note will examine the evolution of conflict of law analysis under Erie, what role Shady Grove's plurality plays in that analysis, and how it has been applied by federal courts. Lastly, Part III observes what happens when federal courts follow the plurality in Shady Grove-, anti-SLAPP statutes cannot apply in federal court because they directly conflict with Federal Rules of Civil Procedure 12(d) and 56.

  1. WHAT IS AN "ANTI-SLAPP" LAW?

    This section gives some general insight into the purpose and function of anti-SLAPP laws before discussing the legal complexities surrounding their application in federal courts. First, this section looks at what a SLAPP is. Second, this section discusses how anti-SLAPP statutes solve that problem. Identifying the purpose and functions of anti-SLAPP statutes make the reasons why they may not apply in federal court evident.

    1. The Problems That Created Anti-SLAPP Laws

      A SLAPP is a "strategic lawsuit against public participation." (20) In a SLAPP, the plaintiff typically sues "without substantial merit ... to 'stop citizens from exercising their political rights or to punish them for having done so.'" (21) The plaintiffs goal is not win the lawsuit but to "foist[] upon the target the expenses of a defense." (22) The plaintiff does this by first filing a complaint or counterclaim against a party because of their communication to the general public on an issue that involves public interest. (23) The plaintiffs in SLAPPs rarely win in court but instead achieve their purpose by leaving the defendants "devastated and depoliticized" (24) and "chilling" the defendant's constitutional rights to freedom of speech and petition. (25) For the plaintiff, it is a simple cost-benefit analysis: the plaintiff can easily shoulder the cost of litigation and highly values an opportunity to silence the defendant; the defendant cannot easily bear the cost of litigation, so the threat of any suit is enough to deter her. (26)

      In response to the "disturbing increase" in SLAPPs, many state legislatures passed laws to "encourage continued participation in matters of public significance" and stop the "abuse of the judicial process." (27) These became known as anti-SLAPP statutes, and to date, twenty-eight states, the District of Columbia, and Guam have them. (28) Anti-SLAPP statutes give defendants an opportunity to dispose of litigation before it even starts by " screen[ing] merit less claims pursued to chill one's constitutional rights under the First Amendment." (29)

    2. How an Anti-SLAPP Law Works

      Although anti-SLAPP statutes are not exactly the same in every state, they do share characteristics that make them easy to identify. (30) In particular, anti-SLAPP statutes invariably protect the rights of litigants by creating a motion to dismiss a frivolous claim early in litigation. As discussed in this section, the anti-SLAPP statute protects those rights by (1) conferring immunity to the anti-SLAPP plaintiff under the First Amendment, (2) providing that immunity through a motion to dismiss the anti-SLAPP defendant's claim, and (3) shifting the burden to the anti-SLAPP defendant to show that her lawsuit is not frivolous. Federal courts determining whether federal rules preempt anti-SLAPP statutes have focused on all three aspects.

      Anti-SLAPP statutes aim to protect a defendant's rights under the First Amendment to petition and speak out for a public purpose. (31) The idea behind anti-SLAPP regimes is to allow a defendant to dismiss a case and become entirely immune from litigating the claim. (32) This permits would-be defendants to "continue[] participation in matters of public significance" by preventing the chilling effect of SLAPPs. (33) The anti-SLAPP statute typically embodies these goals in the text of the statute...

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