Tarla Makaeff v. Trump University, LLC

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

TARLA MAKAEFF, on behalf of No. 11-55016

herself and all others similarly

situated, D.C. No.

Plaintiff-counter-defendant - 3:10-cv-00940-

Appellant, IEG-WVG

and

ORDER

BRANDON KELLER; ED OBERKROM; DENYING THE

PATRICIA MURPHY, PETITION FOR

Plaintiffs, REHEARING

EN BANC

v.

TRUMP UNIVERSITY, LLC, a New

York limited liability company,

AKA Trump Entrepreneur Initiative,

Defendant-counter-claimant -

Appellee,

and

DONALD J. TRUMP,

Defendant.

Appeal from the United States District Court

for the Southern District of California

Irma E. Gonzalez, Chief District Judge, Presiding

2 MAKAEFF V. TRUMP UNIVERSITY

Argued and Submitted

January 18, 2012—Irvine, California

Filed November 27, 2013

Before: Alex Kozinski, Chief Judge, Kim McLane

Wardlaw and Richard A. Paez, Circuit Judges.

Order;

Concurrence by Judges Wardlaw and Callahan;

Dissent by Judge Watford

SUMMARY*

California Anti-SLAPP Statute

The panel denied a petition for panel rehearing and denied

a petition for rehearing en banc on behalf of the court.

Concurring in the denial of rehearing en banc, Judge

Wardlaw and Callahan, joined by Judges W. Fletcher and

Gould, rejected the dissent’s assertions that the motion to

strike provision of California’s anti-SLAPP statute collides

with Federal Rules 12 and 56 and that this case needs to be

taken en banc to overrule United States ex rel. Newsham v.

Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.

1999), and Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003).

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

MAKAEFF V. TRUMP UNIVERSITY 3

Dissenting from the denial of rehearing en banc, Judge

Watford, joined by Chief Judge Kozinski and Judges Paez

and Bea, stated that California’s anti-SLAPP statute

impermissibly supplements the Federal Rules’ criteria for

pre-trial dismissal of an action. Judge Watford believes that

the court should have taken this case en banc to bring its line

of case law in line with Shady Grove Orthopedic Assocs.,

P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010), and the

Supreme Court’s decisions establishing the proper scope of

the collateral order doctrine.

ORDER

Chief Judge Kozinski and Judge Paez have voted to grant

the petition for rehearing en banc. Judge Wardlaw has voted

to deny the petition for rehearing en banc.

The full court was advised of the petition for rehearing en

banc. A judge requested a vote on whether to rehear the

matter en banc. The matter failed to receive a majority of the

votes of the nonrecused active judges in favor of en banc

consideration. Fed. R. App. P. 35(f).

Appellee’s petition for rehearing en banc, filed April 30,

2013, is denied. Judge Watford’s dissent from denial of en

banc rehearing, and Judges Wardlaw and Callahan’s

concurrence in the denial of en banc rehearing, are filed

concurrently with this Order.

IT IS SO ORDERED.

4 MAKAEFF V. TRUMP UNIVERSITY

WARDLAW and CALLAHAN, Circuit Judges, with whom

Judges FLETCHER and GOULD join, concurring in the

denial of rehearing en banc:

“En banc courts are the exception, not the rule.” United

States v. American-Foreign S.S. Corp., 363 U.S. 685, 689

(1960). They are “not favored,” Fed. R. App. P. 35, and

“convened only when extraordinary circumstances exist,”

American-Foreign S.S. Corp., 363 U.S. at 689. Because the

panel opinion faithfully follows our circuit’s precedent,

creates no inter-circuit split, does not present an issue of

exceptional importance, and because the contrary result

would create a circuit split, a call to rehear this appeal en

banc failed to gain the support of a majority of our active

judges. We concur.

Our dissenting colleagues urge us to overrule our

decisions in United States ex rel. Newsham v. Lockheed

Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999), and

Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003). In Newsham,

we held that the motion to strike and attorneys’ fees

provisions of California’s anti-SLAPP statute apply in

diversity cases; in Batzel, we held that the denial of an anti-

SLAPP motion is immediately appealable under the collateral

order doctrine. Newsham and Batzel were correctly decided.

Not only is the dissent’s desire to use this appeal as a vehicle

to change our circuit’s law based on a misreading of Supreme

Court precedent; it also distorts our standard for rehearing an

appeal en banc.

I.

The dissent asserts that the motion to strike provision of

California’s anti-SLAPP statute collides with Federal Rules

MAKAEFF V. TRUMP UNIVERSITY 5

12 and 56. This was exactly the argument advanced by the

SLAPP plaintiff in Newsham. There, we concluded that there

was no “direct collision” because the motion to strike and

attorneys’ fees provisions of the anti-SLAPP statute and

Rules 12 and 56 “‘can exist side by side . . . each controlling

its own intended sphere of coverage without conflict.’”

Newsham, 190 F.3d at 972 (ellipsis in original) (quoting

Walker v. Armco Steel Corp., 446 U.S. 740, 752 (1980)). We

reasoned that, under the anti-SLAPP statute, a SLAPP

defendant may bring a special motion to strike. If he is

successful, the SLAPP counterclaim will be dismissed and

the plaintiff-counter-defendant may be entitled to attorneys’

fees. If he is unsuccessful, he “remains free to bring a Rule

12 motion to dismiss, or a Rule 56 motion for summary

judgment.” Id.

The Supreme Court’s decision in Shady Grove

Orthopedic Associates v. Allstate Insurance Co., 559 U.S.

393 (2010), does not change this reasoning. There, the

Supreme Court addressed whether a New York statute that

precluded class actions in suits seeking penalties or statutory

minimum damages collided with Federal Rule of Civil

Procedure 23. The Court framed the “direct collision”

inquiry in a new way: it asked whether the state statute at

issue “attempts to answer the same question” as the Federal

Rule. Id. at 399. To determine the questions answered by

Rule 23, the Court looked to the plain language of the Rule,

which “states that ‘[a] class action may be maintained’ if two

conditions are met: The suit must satisfy the criteria set forth

in subdivision (a) (i.e., numerosity, commonality, typicality,

and adequacy of representation), and it also must fit into one

of the three categories described in subdivision (b).” Id. at

398 (alteration in original) (quoting Fed. R. Civ. P. 23(b)).

6 MAKAEFF V. TRUMP UNIVERSITY

Focusing on Rule 23’s use of the words “may be maintained,”

the Court continued:

By its terms this creates a categorical rule

entitling a plaintiff whose suit meets the

specified criteria to pursue his claim as a class

action. (The Federal Rules regularly use

“may” to confer categorical permission, see,

e.g., Fed. Rules Civ. Proc. 8(d)(2)-(3),

14(a)(1), 18(a)-(b), 20(a)(1)-(2), 27(a)(1),

30(a)(1), as do federal statutes that establish

procedural entitlements, see, e.g., 29 U.S.C.

§ 626(c)(1); 42 U.S.C. § 2000e–5(f)(1).)

Id. at 398–99. The Rule “provides a one-size-fits-all formula

for deciding the class-action question.” Id. at 399. The state

statute directly conflicted with Rule 23’s categorical rule

because it “states that Shady Grove’s suit ‘may not be

maintained as a class action’ (emphasis added) because of the

relief it seeks,” even if Shady Grove’s suit meets the

requirements of Rule 23. Id.

The dissent’s assertion that Rules 12 and 56 together

define a cohesive system for weeding out meritless claims

that is akin to Rule 23’s categorical rule turns Shady Grove’s

lens into a kaleidoscope. This assertion overlooks the Court’s

reliance on textual analysis in Shady Grove. Rule 23 states

that “[a] class action may be maintained” if certain

requirements are met. Therefore, Rule 23 provides a

categorical rule: if the requirements are met, then a plaintiff

is entitled to maintain his suit as a class action.

In contrast, Rules 12 and 56 do not provide that a plaintiff

is entitled to maintain his suit if their requirements are met;

MAKAEFF V. TRUMP UNIVERSITY 7

instead, they provide various theories upon which a suit may

be disposed of before trial. California’s anti-SLAPP statute,

by creating a separate and additional theory upon which

certain kinds of suits may be disposed of before trial,

supplements rather than conflicts with the Federal Rules.1

Rule 12 provides a mechanism to test the legal sufficiency

of a complaint. The question asked by Rule 12 is whether the

plaintiff has stated a claim that is plausible on its face and

upon which relief can be granted. California’s anti-SLAPP

statute does not attempt to answer this question; instead,

California Code of Civil Procedure § 430.10, the state

statutory analog of Rule 12, does. See Cal. Civ. Proc. Code

§ 430.10.2 That the California legislature enacted both an

1

Cf. Godin v. Schencks, 629 F.3d 79, 91 (1st Cir. 2010) (“Neither Rule

12 nor Rule 56 of the federal rules of procedure purport to be so broad as

to preclude additional mechanisms meant to curtail rights-dampening

litigation through the modification of pleading standards.”).

2

Section 430.10 provides:

The party against whom a complaint or cross-complaint

has been filed may object, by demurrer or answer as

provided in Section 430.30, to the pleading on any one

or more of the following grounds:

(a) The court has no jurisdiction of the subject of the

cause of action alleged in the pleading.

(b) The person who filed the pleading does not have the

legal capacity to sue.

(c) There is another action pending between the same

parties on the same cause of action.

(d) There is a defect or misjoinder of parties.

8 MAKAEFF V. TRUMP UNIVERSITY

analog to Rule 12 and, additionally, an anti-SLAPP statute is

strong evidence that the provisions are intended to serve

different purposes and control different spheres. Moreover,

the anti-SLAPP statute asks an entirely different question:

whether the claims rest on the SLAPP defendant’s protected

First Amendment activity and whether the plaintiff can meet

the substantive requirements California has created to protect

such activity from strategic, retaliatory lawsuits.

Furthermore, the contention that California Code of Civil

Procedure § 425.16 imposes a probability requirement at the

pleading stage ignores California Supreme Court precedent.

Although § 425.16 asks courts to determine whether “the

plaintiff has established that there is a probability that the

plaintiff will prevail on the claim,” (emphasis added), the

California Supreme Court has held that:

past [California state] cases interpreting this

provision establish that the Legislature did not

(e) The pleading does not state facts sufficient to

constitute a cause of action.

(f) The pleading is uncertain. As used in this

subdivision, “uncertain” includes ambiguous and

unintelligible.

(g) In an action founded upon a contract, it cannot be

ascertained from the pleading whether the contract is

written, is oral, or is implied by conduct.

(h) No certificate was filed as required by Section

411.35.

(i) No certificate was filed as required by Section

411.36.

MAKAEFF V. TRUMP UNIVERSITY 9

intend that a court . . . would weigh

conflicting evidence to determine whether it is

more probable than not that plaintiff will

prevail on the claim, but rather intended to

establish a summary-judgment-like procedure

available at an early stage of litigation that

poses a potential chilling effect on speech-

related activities.

Taus v. Loftus, 40 Cal. 4th 683, 714 (2007). In other words,

a reviewing court “should grant the motion if, as a matter of

law, the defendant’s evidence supporting the motion defeats

the plaintiff’s attempt to establish evidentiary support for the

claim.” Vargas v. City of Salinas, 46 Cal. 4th 1, 20 (2009)

(emphasis added). Thus, even if we were to conclude that

§ 425.16 and Rule 12 serve similar purposes, at worst, a

motion to strike functions merely as a mechanism for

considering summary judgment at the pleading stage as is

permitted under Rule 12(d). See Fed. R. Civ. P. 12(d).

California also has a state statutory equivalent to Rule 56.

See Cal. Civ. Proc. Code § 437c(c). (“The motion for

summary judgment shall be granted if all the papers

submitted show that there is no triable issue as to any material

fact and that the moving party is entitled to a judgment as a

matter of law.”). And as already explained, the test for legal

sufficiency embodied in § 425.16 conflicts with neither Rule

12 nor Rule 56.

The Supreme Court’s decision in Cohen v. Beneficial

Industrial Loan Corp., 337 U.S. 541 (1949), is instructive. In

Cohen, the Supreme Court determined that a New Jersey

statute that required certain plaintiffs to post a bond in

shareholder derivative suits could be enforced consistent with

10 MAKAEFF V. TRUMP UNIVERSITY

former Federal Rule 23 (now Rule 23.1). 337 U.S. at 557.

New Jersey enacted the statute at issue in Cohen to protect

against so called “strike suits,” that is, suits “brought not to

redress real wrongs, but to realize upon their nuisance value.”

Id. at 547–48. The Court recognized that former Rule 23

“deals with plaintiff’s right to maintain such an action in

federal court,” and places certain requirements on shareholder

derivative suits, including that the stockholder’s complaint be

verified by oath and show that the plaintiff was a stockholder

at the time of the transaction at issue, and that the action not

be dismissed without approval of the court and notice to all

parties. Id. at 556. However, former Rule 23, like current

Rule 23.1, did not provide that a shareholder derivative suit

“may be maintained” if the requirements were met. Instead,

it set forth minimum requirements that were prerequisites—

necessary, but not necessarily sufficient—to maintain a suit.

Despite the fact that the state statute created an additional and

indeed onerous requirement for the maintenance of a

shareholder derivative suit, the Court determined that the

state statute did not conflict with the requirements of Rule 23

and therefore should apply in federal court.

Just as the New Jersey statute in Cohen sought to limit

frivolous strike suits, California’s anti-SLAPP statute seeks

to limit frivolous suits brought primarily for the purpose of

chilling the valid exercise of First Amendment rights. And,

just as the state statute in Cohen did not conflict with former

Rule 23 even though it created supplemental, even onerous

requirements for certain plaintiffs, the motion to strike and

attorneys’ fees provisions of California’s anti-SLAPP statute

do not conflict with Rules 12 and 56 even though they create

supplemental requirements for certain plaintiffs.

MAKAEFF V. TRUMP UNIVERSITY 11

California’s interest in securing its citizens’ free speech

rights also cautions against finding a direct collision with the

Federal Rules. In Shady Grove, a majority of the justices

recognized that state interests are significant, even in

determining whether there is a conflict. 559 U.S. at 421 n.5

(Stevens, J., concurring in part and concurring in the

judgment) (indicating that he agreed with the four dissenting

justices that the Federal Rules must be interpreted in light of

considerations including “sensitivity to important state

interests”). Indeed, in Godin, the First Circuit thoroughly and

persuasively analyzed Shady Grove before concluding that

Maine’s anti-SLAPP law was enforceable in federal court.

629 F.3d at 86–91.

Where there is no direct collision between a Federal Rule

and a state statute, we must make the “typical, relatively

unguided Erie Choice.” Hanna v. Plumer, 380 U.S. 460, 471

(1965). Every circuit that has considered the issue has agreed

with our conclusion in Newsham that anti-SLAPP statutes

like California’s confer substantive rights under Erie.3 If we

3

See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 144–48

(2d Cir. 2013) (“[T]he aspects of California’s anti-SLAPP rule considered

substantive by federal law continue to apply in this case . . . . California’s

anti-SLAPP rule reflects a substantive policy favoring the special

protection of certain defendants from the burdens of litigation because

they engaged in constitutionally protected activity.”); Godin, 629 F.3d at

87–88 (“[W]e hold that the dual purposes of Erie are best served by

enforcement of [Maine’s anti-SLAPP statute] in federal court. . . . Maine

has not created a substitute to the Federal Rules, but instead created a

supplemental and substantive rule to provide added protections, beyond

those in Rules 12 and 56, to defendants who are named as parties because

of constitutional petitioning activities.”); Henry v. Lake Charles Am.

Press, L.L.C., 566 F.3d 164, 168–69 (5th Cir. 2009) (“Louisiana law,

including the nominally-procedural [Louisiana anti-SLAPP] statute,

governs this diversity case.” (citing Newsham, 190 F.3d at 972–73)).

12 MAKAEFF V. TRUMP UNIVERSITY

had taken this appeal en banc, and decided the other way (as

our colleagues advocate in their concurrences), we would

have created an inter-circuit split; a result at odds with Rule

35 of the Federal Rules of Appellate Procedure.

II.

Our colleagues also want us to overrule Batzel—not

because of any intervening Supreme Court decision or

conflicting circuit opinion, but because they find Batzel’s

reasoning “unpersuasive.”4 In Batzel, we held that the denial

of an anti-SLAPP motion to strike is immediately appealable

under the collateral order doctrine. 333 F.3d at 1024–26. For

the collateral order doctrine to apply, the order must (1)

“conclusively determine the disputed question,” (2) “resolve

an important issue completely separate from the merits of the

action,” and (3) “be effectively unreviewable on appeal from

a final judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006)

(internal quotation marks omitted). In the dissent’s view, the

denial of an anti-SLAPP motion to strike fails the second and

third prongs of the test.

4

Judge Paez’s concern over the “significant state-by-state variations

within the circuit” regarding whether the denial of an anti-SLAPP motion

is immediately appealable, Makaeff v. Trump Univ., LLC, 715 F.3d 254,

275 (9th Cir. 2013) (Paez, J., concurring, and Kozinski, C.J., concurring),

ignores our instruction that although the state “statutes have common

elements, there are significant differences as well, so that each state’s

statutory scheme must be evaluated separately,” Metabolic Research, Inc.

v. Ferrell, 693 F.3d 795, 799 (9th Cir. 2012). For instance, in Ferrell we

concluded that Nevada’s anti-SLAPP statute did not satisfy the collateral

order doctrine because “its underlying values and purpose are satisfied

without resort to an immediate appeal.” Id. at 800–01.

MAKAEFF V. TRUMP UNIVERSITY 13

In Batzel, we determined that a denial of an anti-SLAPP

motion resolves a question separate from the merits in that

the purpose of an anti-SLAPP motion is to determine whether

a party suffers harassment by the prosecution of a frivolous

lawsuit designed to chill otherwise constitutionally-protected

expressive conduct. 333 F.3d at 1024–25. In contrast, the

question on the merits is whether the defendant is ultimately

liable for defamation (or whatever the underlying claim might

be). Id. at 1025.

For example, here Tarla Makaeff sued Trump University

accusing it of, among other things, deceptive business

practices. Makaeff, 715 F.3d at 260. Trump University

counterclaimed, alleging that Makaeff’s letters and online

postings, written months prior to the filing of this action and

complaining of Trump University’s business practices,

constituted defamation. Id. Using California’s anti-SLAPP

law, Makaeff moved to strike Trump University’s defamation

counterclaim.5 Id. at 260, 270–71. Trump University’s

counterclaim was obviously designed to overwhelm Makaeff

by making it more burdensome and expensive for her to

pursue her deceptive business practices claims against Trump

University. Makaeff’s motion to strike concerned the

frivolity of Trump University’s allegation that her speech

about its deceptive business practices was defamatory; its

very purpose was to determine whether Trump University’s

counterclaim was designed to chill Makaeff’s valid exercise

5

We reversed the denial of the anti-SLAPP motion because the district

court erroneously concluded that Trump University was not a public

figure, and therefore was required to demonstrate actual malice. See New

York Times Co. v. Sullivan, 376 U.S. 254 (1964). Trump University may

ultimately demonstrate actual malice upon remand, however, this is a

demanding standard to meet.

14 MAKAEFF V. TRUMP UNIVERSITY

of her First Amendment rights.6 The issue adjudicated

through the mechanism of the motion to strike was not

whether Makaeff was liable for defamation because of her

statements condemning Trump University’s alleged deceptive

business practices—the question at the heart of Trump

University’s underlying counterclaim.7 Thus, while the

inquiry on the motion to strike may glance at the merits, its

central purpose is to provide an added statutory protection

from the burdens of litigation that is unavailable during the

ultimate merits inquiry.

The Supreme Court has held that issues concerning

immunity from suit are often separate from the merits of the

underlying dispute in the litigation, even though part of the

traditional inquiry touches on the merits: whether a particular

constitutional right was clearly established at the time of the

alleged governmental misconduct. See, e.g., Mitchell v.

Forsyth, 472 U.S. 511, 527–28 (1985) (noting that a claim of

6

Like in Batzel, the anti-SLAPP inquiry here tested whether the

defamation claim was “brought to deter common citizens from exercising

their political or legal rights or to punish them for doing so.” 333 F.3d at

1024. That was the ultimate question. Assessments of whether Makaeff’s

allegedly defamatory statements were protected activity under § 425.16

or whether Trump University had a reasonable probability of prevailing

on its defamation claim were merely intermediate steps used to answer

that core inquiry—was Trump University’s defamation counterclaim filed

to chill Makaeff’s speech.

7

While the original action was Makaeff’s deceptive business practices

suit, the underlying action for purposes of the separateness inquiry under

the collateral order doctrine is Trump University’s defamation

counterclaim. If, arguendo, we compared the district court’s order

denying Makaeff’s anti-SLAPP motion to the merits of Makaeff’s

deceptive business practices claim, the divide separating those two is even

greater.

MAKAEFF V. TRUMP UNIVERSITY 15

qualified immunity “is conceptually distinct from the merits

of the plaintiff’s claim”); Abney v. United States, 431 U.S.

651, 659 (1977) (holding that denial of a claim of double

jeopardy immunity is separate from the question of whether

the defendant is guilty of the charged crime). As the Fifth

Circuit reasoned in its separability analysis concerning an

analogous Louisiana anti-SLAPP statute:

The immunity decisions indicate that some

involvement with the underlying facts is

acceptable, as the Court has found the issue of

immunity to be separate from the merits of the

underlying dispute “even though a reviewing

court must consider the plaintiff’s factual

allegations in resolving the immunity issue.”

Henry, 566 F.3d at 175 (quoting Mitchell, 472 U.S. at 529).

In other words, an order can touch on the merits and still be

sufficiently separate from the merits to satisfy the

requirements of the collateral order doctrine. As we

concluded in Batzel, “[t]he purpose of an anti-SLAPP motion

is to determine whether the defendant is being forced to

defend against a meritless claim,” not to determine whether

the defendant actually committed the relevant tort. Batzel,

333 F.3d at 1025. The motion to strike thus “exists separately

from the merits of the defamation claim itself.” Id.

Furthermore, § 425.16 does not conflict with Johnson v.

Jones, 515 U.S. 304 (1995), because the “probability” inquiry

asks a purely legal question: “whether the facts alleged . . .

support a claim” that survives a motion to strike. Id. at 313

(internal quotation marks omitted). Unlike the sufficiency of

evidence inquiry at issue in Johnson, it does “not consider the

correctness of the plaintiff’s version of the facts.” Id.

16 MAKAEFF V. TRUMP UNIVERSITY

Finally, the policy animating the separability requirement

favors our determination in Batzel that the motion to strike

inquiry is separable. As the Fifth Circuit observed in Henry,

the separability requirement furthers the purpose of the final

order rule “by preventing appeals on issues that will be

definitively decided later in the case.” 566 F.3d at 176.

However, issues that are decided before trial and then not

normally revisited, such as immunity, do not implicate this

concern. The denial of an anti-SLAPP motion is similar:

“although an [anti-SLAPP] motion looks to the plaintiff’s

probability of success, the court decides it before proceeding

to trial and then moves on.” Id.

We recently reaffirmed the validity of Batzel in light of

the Supreme Court’s intervening decision in Mohawk

Industries, Inc. v. Carpenter, 558 U.S. 100 (2009). See DC

Comics v. Pac. Pictures Corp., 706 F.3d 1009 (9th Cir. 2013).

We remarked that Mohawk Industries redirected our focus

towards “whether delaying review would imperil a substantial

public interest or some particular value of a high order.” Id.

at 1015 (internal quotation marks and citations omitted).

Applying this rule, we held:

[T]he denial of a motion to strike made

pursuant to California’s anti-SLAPP statute

remains among the class of orders for which

an immediate appeal is available. This is

especially so given the particular public

interests that the anti-SLAPP statute attempts

to vindicate. It would be difficult to find a

value of a “high[er] order” than the

constitutionally-protected rights to free speech

and petition that are at the heart of

California’s anti-SLAPP statute. Such

MAKAEFF V. TRUMP UNIVERSITY 17

constitutional rights deserve particular

solicitude within the framework of the

collateral order doctrine. The California

legislature’s determination, through its

enactment of the anti-SLAPP statute, that

such constitutional rights would be imperiled

absent a right of interlocutory appeal deserves

respect. We must make particular efforts to

accommodate the substantive aims of states

when, as here, we entertain state law claims as

a federal court sitting in diversity.

Id. at 1015–16 (second alteration in original; citation

omitted).

III.

Through anti-SLAPP laws, the legislatures of Arizona,

California, Guam, Hawaii, Nevada, Oregon, and Washington

have decided to impose substantive limitations on certain

state law actions. See Thomas R. Burke, Anti-SLAPP

Litigation App. B (2013) (listing the text of each state’s anti-

SLAPP statute). Refusing to recognize these limitations in

federal court is bad policy. If we ignore how states have

limited actions under their own laws, we not only flush away

state legislatures’ considered decisions on matters of state

law,8 but we also put the federal courts at risk of being swept

8

Notably, under the Rules Enabling Act, the Federal Rules of Civil

Procedure cannot “abridge, enlarge or modify any substantive right.”

28 U.S.C. § 2072(b). The failure to enforce the anti-SLAPP laws would

arguably enlarge state law causes of action and abridge state law speech

protections. See Shady Grove, 559 U.S. at 416–17 (Stevens, J., concurring

in part and concurring in the judgment) (agreeing that “there are some

state procedural rules that federal courts must apply in diversity cases

18 MAKAEFF V. TRUMP UNIVERSITY

away in a rising tide of frivolous state actions that would be

filed in our circuit’s federal courts. Without anti-SLAPP

protections in federal courts, SLAPP plaintiffs would have an

incentive to file or remove to federal courts strategic,

retaliatory lawsuits that are more likely to have the desired

effect of suppressing a SLAPP defendant’s speech-related

activities.9 Encouraging such forum-shopping chips away at

“one of the modern cornerstones of our federalism.” Hanna,

380 U.S. at 474 (Harlan, J., concurring).

* * *

Newsham and Batzel were correctly decided. Every

circuit to consider these issues has agreed with our holdings

in these cases, concluding that similar anti-SLAPP provisions

apply in federal court and rulings on the motions are

immediately appealable. Our dissenting colleagues wanted

to take this case en banc to overrule Newsham, Batzel, and

their progeny, and, in so doing, create an inter-circuit split.

But our circuit has already held that citizens of the seven

jurisdictions within our circuit that have anti-SLAPP laws

should not be stripped of their state’s free speech protections

whenever they step inside a federal court.

En banc review is not an opportunity for us to dig through

our circuit’s trove of opinions and call cases that we would

because they function as part of the State’s definition of the substantive

rights and remedies”).

9

See, e.g., Eliza Krigman, Yelp Pushes for Federal Anti-SLAPP Laws,

Politico (Jan. 4, 2013, 4:40 AM), http://www.politico.com/story/2013/01/

yelp-pushes-for-federal-anti-slapp-laws-85737.html (noting that a lawsuit

was filed in Virginia instead of the District of Columbia because Virginia

had no anti-SLAPP law).

MAKAEFF V. TRUMP UNIVERSITY 19

have decided differently. “We must recognize that we are an

intermediate appellate court,” Miller v. Gammie, 335 F.3d

889, 900 (9th Cir. 2003) (en banc), and that we should only

invoke the en banc process to secure or maintain uniformity

of our decisions or because a question of exceptional

importance is involved. See Fed. R. App. Proc. 35. Supreme

Court precedent does not require us to change course and the

majority of active judges in our court wisely refused to grant

en banc consideration.

WATFORD, Circuit Judge, joined by KOZINSKI, Chief

Judge, and PAEZ and BEA, Circuit Judges, dissenting from

the denial of rehearing en banc:

In United States ex rel. Newsham v. Lockheed Missiles &

Space Co., 190 F.3d 963 (9th Cir. 1999), we held that

California’s anti-SLAPP statute must be applied in federal

court. Id. at 972–73. In Batzel v. Smith, 333 F.3d 1018 (9th

Cir. 2003), we compounded that mistake by holding that

litigants are entitled to take interlocutory appeals from rulings

on anti-SLAPP motions. Id. at 1024–26. Neither of those

decisions is consistent with controlling Supreme Court

precedent, and both warranted reexamination by the court

sitting en banc.

I

The Supreme Court has long held that federal courts may

not apply state statutes that interfere with the operation of the

Federal Rules of Civil Procedure. In Hanna v. Plumer,

380 U.S. 460 (1965), the Court established the governing test.

“When a situation is covered by one of the Federal Rules,” a

20 MAKAEFF V. TRUMP UNIVERSITY

federal court must apply the Federal Rule, notwithstanding

the existence of a conflicting state statute. Id. at 471. The

Federal Rule governs so long as it “trangresses neither the

terms of the [Rules] Enabling Act nor constitutional

restrictions.” Id.; see also Sibbach v. Wilson & Co., 312 U.S.

1, 14 (1941); 19 Charles Alan Wright, Arthur R. Miller &

Edward H. Cooper, Federal Practice and Procedure § 4510,

p. 293 (2d ed. 1996). Only if the Federal Rule is inapplicable

or invalid must the court “wade into Erie’s murky waters.”

Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co.,

559 U.S. 393, 398 (2010).

The Supreme Court’s recent decision in Shady Grove

sheds new light on how this conflict analysis should proceed.

That case concerned a challenge to a New York statute

precluding class certification of any action seeking penalties

or statutory minimum damages. Id. at 396–97 & n.1. The

Court held that the statute conflicted with Federal Rule of

Civil Procedure 23. The conflict arose because Rule 23 sets

out “a categorical rule entitling a plaintiff whose suit meets

the specified criteria to pursue his claim as a class action,”

while the New York statute “attempts to answer the same

question—i.e., it states that Shady Grove’s suit ‘may not be

maintained as a class action’ (emphasis added) because of the

relief it seeks.” Id. at 398–99. The Court found a conflict

between the two provisions because it viewed Rule 23 as

establishing an exclusive set of criteria governing class

certification that States may not supplement. See id. at

398–400.

Viewed through Shady Grove’s lens, California’s anti-

SLAPP statute conflicts with Federal Rules 12 and 56. Taken

together, those rules establish the exclusive criteria for testing

the legal and factual sufficiency of a claim in federal court.

MAKAEFF V. TRUMP UNIVERSITY 21

See Makaeff v. Trump Univ., LLC, 715 F.3d 254, 274 (9th

Cir. 2013) (Kozinski, C.J., concurring) (“The Federal Rules

aren’t just a series of disconnected procedural devices.

Rather, the Rules provide an integrated program of pre-trial,

trial and post-trial procedures . . . .”). California’s anti-

SLAPP statute impermissibly supplements the Federal Rules’

criteria for pre-trial dismissal of an action.

Let’s take the conflict with Rule 12 first. Rule 12

provides the sole means of challenging the legal sufficiency

of a claim before discovery commences. To survive a Rule

12(b)(6) motion to dismiss—the closest Rule 12 analog to an

anti-SLAPP motion to strike—the plaintiff must allege facts

stating a claim that is “plausible on its face.” Bell Atl. Corp.

v. Twombly, 550 U.S. 544, 570 (2007). This standard “does

not impose a probability requirement at the pleading stage.”

Id. at 556. Indeed, “a well-pleaded complaint may proceed

even if it strikes a savvy judge that actual proof of those facts

is improbable.” Id. (emphasis added); see also Ashcroft v.

Iqbal, 556 U.S. 662, 678 (2009) (“The plausibility standard

is not akin to a probability requirement . . . .” (internal

quotation marks omitted)).

Any attempt to impose a probability requirement at the

pleading stage would obviously conflict with Rule 12. Yet

that is exactly what California’s anti-SLAPP statute does. It

bars an action from proceeding beyond the pleading stage

“unless the court determines that the plaintiff has established

that there is a probability that the plaintiff will prevail on the

claim.” Cal. Civ. Proc. Code § 425.16(b)(1) (emphasis

added). By forcing the plaintiff to establish that success is

not merely plausible but probable, the anti-SLAPP statute

effectively stiffens the Rule 12 standard for testing the legal

sufficiency of a claim. Just as the New York statute in Shady

22 MAKAEFF V. TRUMP UNIVERSITY

Grove impermissibly barred class actions when Rule 23

would permit them, so too California’s anti-SLAPP statute

bars claims at the pleading stage when Rule 12 would allow

them to proceed.

Similar problems plague the interaction between

California’s anti-SLAPP statute and Rule 56. Motions to

strike almost invariably require consideration of matters

outside the pleadings, and in those circumstances the Federal

Rules state that “the motion must be treated as one for

summary judgment under Rule 56.” Fed. R. Civ. P. 12(d)

(emphasis added). Under Rule 56, a party is entitled to

summary judgment only “if the movant shows that there is no

genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). Conversely, to avoid summary judgment, the non-

movant need only “designate specific facts showing that there

is a genuine issue for trial.” Celotex Corp. v. Catrett,

477 U.S. 317, 324 (1986) (internal quotation marks omitted).

The anti-SLAPP statute eviscerates Rule 56 by requiring the

plaintiff to prove that she will probably prevail if the case

proceeds to trial—a showing considerably more stringent

than identifying material factual disputes that a jury could

reasonably resolve in the plaintiff’s favor.

Our decision in Metabolife International, Inc. v. Wornick,

264 F.3d 832 (9th Cir. 2001), further highlights the conflict

between the anti-SLAPP statute and Rule 56. California’s

anti-SLAPP statute mandates a stay of all discovery pending

the court’s resolution of a motion to strike. Cal. Civ. Proc.

Code § 425.16(g). In Metabolife, we held that “the

discovery-limiting aspects of § 425.16(f) and (g) collide with

the discovery-allowing aspects of Rule 56,” and we therefore

refused to apply the statute’s discovery provisions in federal

MAKAEFF V. TRUMP UNIVERSITY 23

court. Metabolife, 264 F.3d at 846 (internal quotation marks

omitted). At the same time, however, we allowed the motion-

to-strike regime to stand. As Chief Judge Kozinski has noted,

the resulting amalgamation of anti-SLAPP and Rule 56

procedures has “crippled” the anti-SLAPP statute, leaving us

with “a hybrid procedure where neither the Federal Rules nor

the state anti-SLAPP statute operate as designed.” Makaeff,

715 F.3d at 275 (Kozinski, C.J., concurring).

In short, California’s anti-SLAPP statute creates the same

conflicts with the Federal Rules that animated the Supreme

Court’s ruling in Shady Grove. That intervening decision

should have led us to revisit—and reverse—our precedent

permitting application of state anti-SLAPP statutes in federal

court.

II

Even if anti-SLAPP motions may be brought in federal

court, we should stop entertaining interlocutory appeals from

rulings on such motions. In Batzel, we held that interlocutory

appeals are authorized under the collateral order doctrine,

which applies only if three conditions are met. The order

must “[1] conclusively determine the disputed question, [2]

resolve an important issue completely separate from the

merits of the action, and [3] be effectively unreviewable on

appeal from a final judgment.” Will v. Hallock, 546 U.S. 345,

349 (2006) (internal quotation marks omitted); see also

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106 (2009).

Orders granting or denying anti-SLAPP motions don’t satisfy

the second condition of this test, because California’s anti-

SLAPP statute requires courts to assess the merits of the

action when ruling on a motion to strike.

24 MAKAEFF V. TRUMP UNIVERSITY

California’s anti-SLAPP statute states that a motion to

strike shall be granted “unless the court determines that the

plaintiff has established that there is a probability that the

plaintiff will prevail on the claim.” Cal. Civ. Proc. Code

§ 425.16(b)(1). In Batzel, we held that a ruling under this

provision involves a question completely separate from the

merits because “it merely finds that such merits may exist,

without evaluating whether the plaintiff’s claim will

succeed.” Batzel, 333 F.3d at 1025. Batzel’s reasoning on

this point is unpersuasive. A court cannot gauge the

probability of success on a claim without assessing the merits

of the claim itself. Such a predictive analysis may not

amount to deciding the claim on the merits, but there’s no

credible argument that it’s “completely separate from the

merits.” Will, 546 U.S. at 349 (emphasis added). For proof,

we need look no further than the panel’s opinion in this case,

which engages in an exhaustive analysis of the merits of

Trump University’s defamation claim. See Makaeff, 715 F.3d

at 261–71.

The absence of an issue completely separate from the

merits is sufficient, without more, to preclude application of

the collateral order doctrine, since all three of the doctrine’s

conditions must be met. But hold on, some have objected,

that can’t be right. California’s anti-SLAPP statute is

intended to afford an immunity from trial, not just from

liability, and without the ability to take an immediate appeal

that immunity may well be lost. However, even if

California’s anti-SLAPP statute provides an immunity from

trial, as we concluded in Batzel, 333 F.3d at 1025–26, that

doesn’t make anti-SLAPP rulings immediately appealable.

(As Judge Paez has noted, we’ve held that similar anti-

SLAPP statutes in other States do not afford immunity from

trial and thus do not trigger application of the collateral order

MAKAEFF V. TRUMP UNIVERSITY 25

doctrine. See Makaeff, 715 F.3d at 276 (Paez, J., concurring).

That has added yet another layer of incoherence to our

circuit’s anti-SLAPP jurisprudence.)

The Supreme Court has specifically resisted the notion

that all claims of a right to avoid trial satisfy the collateral

order doctrine’s requirements. In Will, the Court cautioned:

“Those seeking immediate appeal therefore naturally argue

that any order denying a claim of right to prevail without trial

satisfies the third condition. But this generalization is too

easy to be sound and, if accepted, would leave the final order

requirement of § 1291 in tatters.” 546 U.S. at 350–51. Thus,

even cases squarely presenting a claimed right not to stand

trial must be treated with skepticism. See Digital Equip.

Corp. v. Desktop Direct, Inc., 511 U.S. 863, 873 (1994).

We should be skeptical here. The Supreme Court has

permitted immediate appeals of immunity rulings in part

because immunity questions generally involve issues distinct

from the merits and don’t require extensive factual inquiry.

For example, the Court has allowed immediate appeals of

absolute and Eleventh Amendment immunity determinations,

both of which turn on the legal status of the defendant. See

P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc.,

506 U.S. 139, 142–47 (1993); Nixon v. Fitzgerald, 457 U.S.

731, 741–43 (1982).

Similarly, the Court has allowed immediate appeals of

many, but not all, qualified immunity determinations. Under

Harlow v. Fitzgerald, 457 U.S. 800 (1982), courts must

determine whether the law the defendant allegedly violated

was “clearly established.” Id. at 818. In holding that such

determinations are immediately appealable under the

collateral order doctrine, the Court stressed: “An appellate

26 MAKAEFF V. TRUMP UNIVERSITY

court reviewing the denial of the defendant’s claim of

immunity need not consider the correctness of the plaintiff’s

version of the facts, nor even determine whether the

plaintiff’s allegations actually state a claim. All it need

determine is a question of law . . . .” Mitchell v. Forsyth,

472 U.S. 511, 528 (1985) (plurality opinion) (emphasis

added).

In cases where the qualified immunity inquiry strays

beyond a purely legal question, however, the Court has

refused to entertain immediate appeals. In Johnson v. Jones,

515 U.S. 304 (1995), the Court held that defendants asserting

qualified immunity may not appeal “a fact-related

dispute”—sufficiency of the evidence—under the collateral

order doctrine. Id. at 307. The Court later explained that

Johnson’s holding is rooted in separability concerns: “[I]f

what is at issue in the sufficiency determination is nothing

more than whether the evidence could support a finding that

particular conduct occurred, the question decided is not truly

‘separable’ from the plaintiff’s claim . . . .” Behrens v.

Pelletier, 516 U.S. 299, 313 (1996).

This type of determination—“whether the evidence could

support a finding that particular conduct occurred”—is

exactly what California’s anti-SLAPP statute requires. To

assess the “probability that the plaintiff will prevail,” Cal.

Civ. Proc. Code § 425.16(b)(1), the reviewing court must

assess the strength of the evidence supporting the plaintiff’s

allegations. The statute clearly contemplates such a fact-

bound inquiry: “In making its determination, the court shall

consider the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense

is based.” § 425.16(b)(2). Indeed, in this very case the panel

characterized the anti-SLAPP inquiry as “inherently fact-

MAKAEFF V. TRUMP UNIVERSITY 27

intensive.” Makaeff, 715 F.3d at 271. Engaging in this

exercise under the collateral order doctrine is plainly at odds

with Johnson.

The Court recognized in Johnson that denying immediate

appeals of qualified immunity decisions “threatens to

undercut the very policy (protecting public officials from

lawsuits)” that would ordinarily justify immediate appellate

review. Johnson, 515 U.S. at 317. But the Court concluded

that when the immunity issues are not distinct from the

merits, “precedent, fidelity to statute, and underlying

policies” do not permit interlocutory appeals. Id. Thus, even

if California’s anti-SLAPP statute confers a right not to stand

trial, that fact alone is not enough to satisfy the collateral

order doctrine’s requirements.

* * *

Our circuit’s anti-SLAPP jurisprudence runs afoul of two

separate lines of Supreme Court precedent, both of which

involve matters fundamental to the operation of the federal

courts. We should have taken this case en banc to bring our

case law in line with Shady Grove and the Supreme Court’s

decisions establishing the proper scope of the collateral order

doctrine.