Thursday, March 15, 2012

District Courts Diverge over Application of State “Anti-SLAPP” Statutes in Federal Court

            Conflicting holdings issued by federal District Courts located in the Eastern District of Louisiana and the District of Columbia deepen a growing divide over the application of state “anti-SLAPP” statutes to claims before federal courts sitting in diversity.  The crux of the disagreement is whether the laws are “substantive” or “procedural” under the Supreme Court’s decision in Erie and, also, whether they conflict with the Federal Rules of Civil Procedure.

            In Louisiana Crisis Assistance Ctr. v. Marzano-Lesnevich, No. 11-2102, 2011 U.S. Dist. LEXIS 135374 (E.D. La. Nov. 23, 2011), the Court, following decisions of the First and Ninth Circuits, held that Louisiana’s Anti-SLAPP law was applicable in federal court.  See Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010); U.S. ex rel Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999).  The “primary thrust” of the argument that Louisiana’s Anti-SLAPP law could not apply in federal court, as identified in Marzano-Lesnevich, was that it placed a heightened burden on plaintiff opposing a special motion to strike above that required by either Rule 12 or Rule 56.  However, the Court held that the “vast majority” of authority suggested that “the burden imposed on a plaintiff opposing a special motion to strike is functionally equivalent to the burden imposed on the non-movant in a motion for summary judgment.”

            By contrast, in 3M Co. v. Boulter, No. 11-cv-1527, 2012 U.S. Dist. LEXIS 12860 (D.D.C. Feb. 2, 2012), the federal District Court for the District of Columbia found that D.C.’s anti-SLAPP law did “directly conflict” with the Federal Rules of Civil Procedure, rendering it inapplicable to actions before the Court sitting in diversity.  In so holding, Judge Wilkinson explained that D.C.’s Anti-SLAPP act “operates greatly to a defendant’s benefit by altering the procedure otherwise set forth in Rules 12 and 56…by setting a higher standard upon the plaintiff to avoid dismissal”.  Id. at *42-*43.  Indeed, the court determined that “that is the precise reason that the District enacted the statute and why Defendants so vigorously seek its protections.”  Id.  Concluding a “careful examination” of the Act, Judge Wilkinson held that “it squarely attempts to answer the same question that Rules 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity.”  Id.

While no Circuit Court has found a state anti-SLAPP law inapplicable in these circumstances, Judge Wilkinson’s decision is in accordance with decisions from district courts in the First, Seventh, and Eleventh Circuits.  See Stuborn Ltd. P’ship v. Bernstein, 245 F. Supp. 2d 312, 316 (D. Mass. 2003)(concluding that Massachusetts' anti-SLAPP statute directly conflicts with the Federal Rules 12 and 56); S. Middlesex Opportunity Council, Inc. v. Town of Framingham, CA No. 07-12018, 2008 U.S. Dist. LEXIS 85764, 2008 WL 4595369, at *11 (D. Mass. Sept. 30, 2008)(agreeing with the holding in Stuborn, Ltd. that Massachusetts' anti-SLAPP statute directly conflicts with Federal Rules 12 and 56); Satkar Hospitality Inc. v. Cook Cnty. Bd. of Review, No. 10 C 6682, 2011 U.S. Dist. LEXIS 61554, 2011 WL 2182106, *5 (N.D. Ill. June 2, 2011)(concluding that Illinois anti-SLAPP motion which allowed assertion of a defense in lieu of filing an answer directly conflicted with Federal Rule 12); 1524948 Alberta Ltd. v. Lee, No 1:10-cv-02735, 2011 U.S. Dist. LEXIS 77365, 2011 WL 2899385, at *3 (N.D. Ga. July 15, 2011)(holding that Georgia's anti-SLAPP statute directly conflicts with Rule 8).
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