Planned Parenthood Federation v. Center for Medical Progress

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

PLANNED PARENTHOOD FEDERATION No. 16-16997

OF AMERICA, INC.; PLANNED

PARENTHOOD: SHASTA-DIABLO, D.C. No.

INC., DBA Planned Parenthood 3:16-cv-00236-

Northern California; PLANNED WHO

PARENTHOOD MAR MONTE, INC.;

PLANNED PARENTHOOD OF THE

PACIFIC SOUTHWEST; PLANNED OPINION

PARENTHOOD LOS ANGELES;

PLANNED PARENTHOOD/ORANGE

AND SAN BERNARDINO COUNTIES,

INC.; PLANNED PARENTHOOD OF

SANTA BARBARA, VENTURA AND

SAN LUIS OBISPO COUNTIES, INC.;

PLANNED PARENTHOOD PASADENA

AND SAN GABRIEL VALLEY, INC.;

PLANNED PARENTHOOD CENTER FOR

CHOICE; PLANNED PARENTHOOD OF

THE ROCKY MOUNTAINS; PLANNED

PARENTHOOD GULF COAST,

Plaintiffs-Appellees,

v.

CENTER FOR MEDICAL PROGRESS;

BIOMAX PROCUREMENT SERVICES,

LLC; DAVID DALEIDEN, AKA

Robert Daoud Sarkis; SANDRA

SUSAN MERRITT, AKA Susan

2 PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS

Tennenbaum; GERARDO ADRIAN

LOPEZ,

Defendants-Appellants,

and

TROY NEWMAN; PHILLIP S. CRONIN;

ALBIN RHOMBERG,

Defendants.

Appeal from the United States District Court

for the Northern District of California

William Horsley Orrick, District Judge, Presiding

Argued and Submitted November 17, 2017

San Francisco, California

Filed May 16, 2018

Before: Ronald M. Gould and Mary H. Murguia, Circuit

Judges, and Nancy Freudenthal, * Chief District Judge.

Opinion by Judge Gould;

Concurrence by Judge Gould

*

The Honorable Nancy Freudenthal, Chief United States District

Judge for the District of Wyoming, sitting by designation.

PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS 3

SUMMARY **

Anti-SLAPP Statute

The panel affirmed the district court’s denial of a motion

to dismiss claims under California’s Strategic Lawsuit

Against Public Participation statute, Cal. Civ. Proc. Code

§ 425.16.

Planned Parenthood and other plaintiffs alleged that the

defendants used fraudulent means to enter their conferences

and gain meetings with their staff for the purpose of creating

false and misleading videos that were disseminated on the

internet. To succeed on their anti-SLAPP motion, the

defendants had to show both that their claims arose from acts

to further their First Amendment speech rights and that the

plaintiffs had shown no probability of success on their

claims. The panel affirmed the district court’s conclusion

that the defendants failed to meet the second element.

In order to eliminate conflicts between California’s anti-

SLAPP law’s procedural provisions and the Federal Rules of

Civil Procedure, the panel held that anti-SLAPP motions to

strike are reviewed under different standards depending on

the motion’s basis. If a defendant makes an anti-SLAPP

motion to strike founded on purely legal arguments, then the

analysis is made under Fed. R. Civ. P. 8 and 12 standards; if

it is a factual challenge, then the motion must be treated as

though it were a motion for summary judgment and

discovery must be permitted.

**

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

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

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The panel held that the district court correctly applied a

Rule 12(b)(6) standard to defendants’ motion to strike

challenging the legal sufficiency of plaintiffs’ complaint,

and did not err in declining to evaluate the factual sufficiency

of the complaint at the pleading stage.

Concurring, Judge Gould, joined by Judge Murguia,

acknowledged that the court’s precedent allows an

interlocutory appeal of a denial of an anti-SLAPP motion.

Judge Gould wrote that this interlocutory appeal procedure

is incorrect, potentially conflicts with federal procedural

rules, and burdens the federal courts with unneeded

interlocutory appeals. Judge Gould suggested that the court

fix this error in its precedent with a call of the case en banc.

The panel addressed other issues in a

contemporaneously-filed memorandum disposition.

COUNSEL

Charles S. LiMandri (argued), Paul M. Jonna, Teresa L.

Mendoza, and Jeffrey M. Trissell, Freedom of Conscience

Defense Fund, Rancho Santa Fe, California; Horatio Mihet

(argued), Liberty Counsel, Orlando, Florida; Catherine W.

Short, Life Legal Defense Foundation, Ojai, California;

Thomas Breicha and Peter Breen, Thomas More Society,

Chicago, Illinois; Nicolaie Cocis, Law Office of Nic Cocis

and Associates, Murrieta, California; for Defendants-

Appellants.

Amy L. Bomse (argued), Stephanie Fine, Jee Young You,

Sharon D. Mayo, and Steven L. Mayer, Arnold & Porter

Kaye Scholer LLP, San Francisco, California; Beth H.

Parker, Planned Parenthood Affiliates of California,

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Sacramento, California; Helene T. Krasnoff, Planned

Parenthood Federation of America; Paul W. Rodney, Arnold

& Porter Kaye Scholer LLP, Denver, Colorado; John

Robinson, Arnold & Porter Kaye Scholer LLP, Washington,

D.C.; for Plaintiffs-Appellees.

OPINION

GOULD, Circuit Judge:

Plaintiffs 1 sued Defendants 2 in the federal district court

for the Northern District of California alleging that

Defendants had used fraudulent means to enter their

conferences and gain meetings with their staff for the

purpose of creating false and misleading videos that were

disseminated on the internet. Defendants moved to dismiss

Plaintiffs’ claims under Federal Rule of Civil Procedure

1

Plaintiffs are Planned Parenthood Federation of America, Inc.

(PPFA); Planned Parenthood: Shasta-Diablo, Inc., dba Planned

Parenthood Northern California (Planned Parenthood Northern

California or PPNC); Planned Parenthood Mar Monte, Inc. (PPMM);

Planned Parenthood of the Pacific Southwest (PPPSW); Planned

Parenthood Los Angeles (PPLA); Planned Parenthood/Orange and San

Bernardino Counties, Inc. (PPOSBC); Planned Parenthood of Santa

Barbara, Ventura & San Luis Obispo Counties, Inc. (PPSBVSLO);

Planned Parenthood Pasadena and San Gabriel Valley, Inc. (PPPSGV);

Planned Parenthood of the Rocky Mountains (PPRM); Planned

Parenthood Gulf Coast (PPGC); and Planned Parenthood Center For

Choice (PPCFC) (collectively Planned Parenthood).

2

Defendants are the Center for Medical Progress (CMP), BioMax

Procurement Services LLC (BioMax), David Daleiden (aka “Robert

Sarkis”) (Daleiden), Troy Newman (Newman), Albin Rhomberg

(Rhomberg), Phillip S. Cronin (Cronin), Sandra Susan Merritt (aka

“Susan Tennenbaum”) (Merritt), and Gerardo Adrian Lopez (Lopez).

6 PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS

12(b)(6) and under California’s Strategic Lawsuit Against

Public Participation (“anti-SLAPP”) statute. The district

court denied both motions, and Defendants appeal the denial

of the anti-SLAPP motion. We conclude that the district

court did not err by reviewing Defendants’ motion using a

Rule 12(b)(6) standard and did not err by denying

Defendants’ anti-SLAPP motion. 3 We affirm.

I

In the district court, Defendants the Center for Medical

Progress (CMP), BioMax Procument Services LLC

(BioMax), Daleiden, and Lopez moved to strike Plaintiffs’

claims under California Code of Civil Procedure § 425.16,

commonly known as the anti-SLAPP law. On their motion

to dismiss for failure to state a claim, Defendants argued that

Plaintiffs had not alleged enough factual content to state the

necessary elements for each of their named claims. On their

motion based on the anti-SLAPP law, Defendants argued

that Plaintiffs’ lawsuit is an attempt to silence and punish

CMP and other Defendants for gathering information and

publishing their findings. Defendants argued that Plaintiffs’

state law claims arise out of their undercover investigative

journalism, which falls within the scope of the anti-SLAPP

statute. They further argued that Plaintiffs did not have a

reasonable probability of prevailing on any of their state law

claims because Defendants were entitled to “judgment as a

matter of law.”

3

Defendants also argue that Plaintiffs did not sufficiently allege the

fifteen claims of their complaint. Those arguments and our conclusions

related thereto are addressed in a separate contemporaneously filed

memorandum disposition.

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The district court denied both Defendants’ motion to

strike under the anti-SLAPP law and their motion to dismiss

for failure to state a claim. Because Defendants appeal only

denial of their anti-SLAPP motion, we address only that

issue on this interlocutory appeal.

In ruling on and denying Defendants’ motion to strike,

the district court assumed that Plaintiffs’ lawsuit arose from

acts in furtherance of Defendants’ rights to free speech, but

found that Plaintiffs showed a probability of succeeding on

the merits. To succeed on their anti-SLAPP motion,

Defendants had to show both that their acts arose from

behavior aimed at furthering their First Amendment speech

rights, and also that Plaintiffs had shown no probability of

success on their claims. Because Defendants failed to

prevail on the second element, they lost their anti-SLAPP

motion.

The district court reasoned that “defendants repeat the

identical arguments they made on their motions to dismiss,”

and that Defendants made no evidentiary-based argument to

undermine Plaintiffs’ probability of success other than the

declaration from Daleiden. Daleiden’s declaration only

discusses his work as an investigative journalist. The district

court said that because Defendants attacked “pleading

deficiencies” and argued that Defendants were entitled to

“judgment as a matter of law,” it limited its review to the

adequacy of Plaintiffs’ pleadings. The district court

therefore denied Defendants’ motion to strike for the same

reasons it had denied Defendants’ motion to dismiss. The

district court also rejected the evidentiary-based arguments

Defendants made for the first time in their Reply brief

supporting their motion to strike.

The district court found that Merritt’s separate motion to

strike raised two evidence-based arguments: (1) that the

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location of the lunch meetings with Drs. Nucatola and Gatter

preclude a finding that the communications in those

meetings were “confidential” and (2) that Merritt is exempt

from liability for violations of California Penal Code §§ 632

and 634 because she reasonably believed that Plaintiffs were

committing crimes of violence against unborn babies. The

district court concluded that there were questions of fact

regarding whether there was a reasonable expectation of

privacy at the lunch meetings with Drs. Nucatola and Gatter.

The district court also concluded that Merritt’s exemption

defense was an affirmative defense and that the parties’

competing citations to Merritt’s deposition demonstrated

that there was a question of fact as to the reasonableness of

her beliefs. The district court denied Merritt’s anti-SLAPP

motion. This appeal timely followed.

II

We review dismissals under Federal Rule of Civil

Procedure 12(b)(6) and the district court’s conclusions of

law de novo. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,

1102 (9th Cir. 2003); Metabolife Intern., Inc. v. Wornick,

264 F.3d 832, 839 (9th Cir. 2001). We have jurisdiction to

review the denial of an anti-SLAPP motion under the

collateral order doctrine. Hilton v. Hallmark Cards,

599 F.3d 894, 900 (9th Cir. 2010).

III

Defendants argue that, once they had shown that

Plaintiffs’ suit arose from Defendants’ acts in furtherance of

their rights of petition or free speech, Plaintiffs were required

to demonstrate a probability of prevailing on the challenged

claims, and that Plaintiffs did not meet this burden because

they did not provide rebutting evidence. Plaintiffs argue that

for Defendants to succeed on their anti-SLAPP motion,

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Defendants had to show that Plaintiffs did not allege a

legally sufficient claim or that Plaintiffs did not produce

evidence showing a probability that Plaintiffs would prevail.

Plaintiffs contend that Defendants’ anti-SLAPP motion

challenged the legal sufficiency of Plaintiffs’ complaint and

was correctly denied on those grounds, using the Federal

Rule of Civil Procedure 12(b)(6) standard. Plaintiffs

specifically argue that for the anti-SLAPP requirement of

showing a probability of prevailing by evidence to apply,

Defendants had to challenge their complaint on factual

grounds.

In California, “[a] cause of action against a person

arising from any act of that person in furtherance of the

person’s right of petition or free speech under the United

States Constitution or the California Constitution in

connection with a public issue shall be subject to a special

motion to strike, 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). The district court, in making its decision,

considers the pleadings and supporting and opposing

affidavits stating the facts upon which the liability or defense

is based. Id. (b)(2). In discussing how to conduct this

analysis, we have held:

Once it is determined that an act in

furtherance of protected expression is being

challenged, the plaintiff must show a

“reasonable probability” of prevailing in its

claims for those claims to survive dismissal.

§ 425.16(b); Wilcox v. Superior Court,

27 Cal.App.4th 809, 33 Cal.Rptr.2d 446, 455

(1994). To do this, the plaintiff must

demonstrate that “the complaint is legally

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sufficient and supported by a prima facie

showing of facts to sustain a favorable

judgment if the evidence submitted by the

plaintiff is credited.” Wilcox, 33 Cal.Rptr.2d

at 454.

Metabolife, 264 F.3d at 840. We there concluded that a

defendant’s anti-SLAPP motion should be granted when a

plaintiff presents an insufficient legal basis for his or her

claims or when no sufficiently substantial evidence exists to

support a judgment for him or her. Id.

The degree to which the anti-SLAPP provisions are

consistent with the Federal Rules of Civil Procedure has

been hotly disputed. Metabolife emphasized that some

portions of California’s anti-SLAPP law have been found to

not conflict with the Federal Rules of Civil Procedure—such

as § 425.16(b) allowing a special motion and § 425.16(c)

providing fees and costs. 264 F.3d at 845. But, Metabolife

also explained that courts in our circuit have found that

§ 425.16(f), requiring filing 60 days after the complaint was

filed or later within the district court’s discretion, and

§ 425.16(g), issuing an automatic stay of discovery,

conflicted with the Federal Rules of Civil Procedure.

264 F.3d at 845–46 (comparing U.S. ex rel. Newsham v.

Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 970–73

(9th Cir. 1999) with Rogers v. Home Shopping Network, Inc.,

97 F.Supp.2d 973, 980 (C.D. Cal. 1999)). The Metabolife

court concluded that an automatic stay on discovery would

conflict with Federal Rule of Civil Procedure 56, and was

inapplicable in federal court. Id. at 846 (“the discovery-

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

discovery-allowing aspect of Rule 56” and therefore,

§ 425.16(f) and (g) could not apply in federal court.).

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In Z.F. v. Ripon Unified School District, a non-

precedential unpublished opinion, we stated: “If a defendant

makes an anti-SLAPP motion to strike founded on purely

legal arguments, then the analysis is made under Fed. R. Civ.

P. 8 and 12 standards; if it is a factual challenge, then the

motion must be treated as though it were a motion for

summary judgment and discovery must be permitted.”

482 F. App’x 239, 240 (9th Cir. 2012). Although we are not

bound by Z.F., we conclude that its reasoning is persuasive

and we hereby adopt it. In order to prevent the collision of

California state procedural rules with federal procedural

rules, we will review anti-SLAPP motions to strike under

different standards depending on the motion’s basis. Our

interpretation eliminates conflicts between California’s anti-

SLAPP law’s procedural provisions and the Federal Rules of

Civil Procedure. Id. Taken together, Metabolife and our

ruling today adopting the rule of Z.F. support the idea that if

Defendants’ anti-SLAPP motion was based on legal

deficiencies, Plaintiffs were not required to present prima

facie evidence supporting Plaintiffs’ claims. Requiring a

presentation of evidence without accompanying discovery

would improperly transform the motion to strike under the

anti-SLAPP law into a motion for summary judgment

without providing any of the procedural safeguards that have

been firmly established by the Federal Rules of Civil

Procedure. That result would effectively allow the state anti-

SLAPP rules to usurp the federal rules. We could not

properly allow such a result.

Before the district court, Defendants agreed that an anti-

SLAPP motion “may be premised on legal deficiencies

inherent in the plaintiff’s claim, analogous to a motion to

dismiss under Federal Rule of Civil Procedure 12(b)(6).” “If

a defendant makes a special motion to strike based on

alleged deficiencies in the plaintiff’s complaint, the motion

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must be treated in the same manner as a motion under Rule

12(b)(6) except that the attorney’s fee provision of

§ 425.16(c) applies.” Rogers v. Home Shopping Network,

Inc., 57 F. Supp.2d 973, 983 (C.D. Cal. 1999). We agree

with the reasoning and result in the district court’s Rogers

decision. Defendants’ Motion to Strike explicitly

incorporated by reference the arguments in Defendants’

Motion to Dismiss. Defendants must have understood that

the district court would be conducting a Rule 12(b)(6)

analysis and supported their motion with arguments

regarding Plaintiffs’ pleading. Plaintiffs responded in kind,

defending the legal sufficiency of their pleading.

In their reply before the district court, Defendants argued

for the first time that Plaintiffs had not met their burden of

presenting evidence showing that their claims have minimal

merit. Although we have never ruled on this issue, some

district courts have accepted Defendants’ view. See Carr v.

Asset Acceptance, LLC. No. CV F 11-0890 LJO GSA, 2011

WL 3568338, at *5–6 (E.D. Cal. Aug. 12, 2011) (“piercing”

the pleadings and requiring an evidentiary showing at the

pleading stage to survive an anti-SLAPP motion).

Conversely, some other district courts have gone the

opposite way, rejecting Defendants’ view that Plaintiffs had

to submit evidence showing the merit of their claims when

the challenge was only as to the sufficiency of the pleadings.

In any event, having now considered this issue in-depth, and

having carefully reviewed the record, we reject Defendants’

view. In defending against an anti-SLAPP motion, if the

defendants have urged only insufficiency of pleadings, then

the plaintiff can properly respond merely by showing

sufficiency of pleadings, and there’s no requirement for a

plaintiff to submit evidence to oppose contrary evidence that

was never presented by defendants.

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Echoing the point we made earlier in adopting the rule of

Z.F., we hold that, on the one hand, when an anti-SLAPP

motion to strike challenges only the legal sufficiency of a

claim, a district court should apply the Federal Rule of Civil

Procedure 12(b)(6) standard and consider whether a claim is

properly stated. And, on the other hand, when an anti-

SLAPP motion to strike challenges the factual sufficiency of

a claim, then the Federal Rule of Civil Procedure 56 standard

will apply. But in such a case, discovery must be allowed,

with opportunities to supplement evidence based on the

factual challenges, before any decision is made by the court.

A contrary reading of these anti-SLAPP provisions would

lead to the stark collision of the state rules of procedure with

the governing Federal Rules of Civil Procedure while in a

federal district court. In this context, if there is a contest

between a state procedural rule and the federal rules, the

federal rules of procedure will prevail. Hanna v. Plumer,

380 U.S. 460, 465 (1965) (“The broad command of Erie was

therefore identical to that of the Enabling Act: federal courts

are to apply state substantive law and federal procedural

law.”); Metabolife, 264 F.3d at 845 (“Procedural state laws

are not used in federal court if to do so would result in a

‘direct collision’ with a Federal Rule of Civil Procedure.”).

We conclude that the district court correctly applied a Rule

12(b)(6) standard to Defendants’ Motion to Strike

challenging the legal sufficiency of Plaintiffs’ complaint,

and the district court did not err in declining to evaluate the

factual sufficiency of the complaint at the pleading stage.

AFFIRMED.

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GOULD, Circuit Judge, with whom MURGUIA, Circuit

Judge, joins, concurring:

Although the procedure followed in this case to allow an

interlocutory appeal of a denial of an anti-SLAPP motion is

clearly permitted by our past precedent, Batzel v. Smith,

333 F.3d 1018, 1025–26 (9th Cir. 2003), I write separately

in this concurrence to challenge the appropriateness of our

court reviewing denials of anti-SLAPP motions to strike on

interlocutory appeal. I limit my comments in this separate

concurrence to the issue of the propriety of interlocutory

appeal upon a denial of an anti-SLAPP motion.

This case was delivered to us on interlocutory appeal.

Although I previously joined in Batzel, supra, which

permitted this interlocutory appeal procedure, I have since

receded from that opinion because I now believe the

interlocutory appeal of this issue is incorrect, potentially

conflicts with federal procedural rules, and burdens the

federal courts with unneeded interlocutory appeals. See

Travelers Cas. Ins. Co. of Am. v. Hirsch, 831 F.3d 1179,

1186 (9th Cir. 2016) (Gould, J., concurring). In a case such

as this, an interlocutory appeal should only occur if the

district court certifies the case for interlocutory appeal under

the normal federal rule standards. See 28 U.S.C. § 1292(b);

see Intercon Sols., Inc. v. Basel Action Network, 791 F.3d

729, 731 (7th Cir. 2015).

The allowance of an interlocutory appeal here leads to an

absurd result: We review denials of anti-SLAPP motions but

not grants of anti-SLAPP motions, although the grant of an

anti-SLAPP motion is arguably a more final decision by a

district court because it rids the case of the stricken claims.

See Hyan v. Hummeri, 825 F.3d 1043, 1047 (9th Cir. 2016)

(not permitting an interlocutory appeal of a grant of an anti-

SLAPP motion to strike because there is no loss of a right as

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accompanies a denial of an anti-SLAPP motion, the right to

be immune from suit). But see DC Comics v. Pacific

Pictures Corp., 706 F.3d 1009, 1015–16 (9th Cir. 2013)

(allowing an interlocutory appeal of the denial of a motion

to strike).

Denial of an anti-SLAPP motion does not meet the

normal collateral order standard. Collateral orders are a

“small class” of rulings that do not conclude litigation, but

that resolve claims separable from the action. Will v.

Hallock, 546 U.S. 345, 355 (2006) (denying review of an

immunity defense on interlocutory appeal because “[t]he

judgment bar at issue in this case has no claim to greater

importance than the typical defense of claim preclusion.”).

To meet the collateral order standard, the district court’s

decision being appealed must be (1) conclusive, (2) resolve

important questions completely separate from the merits,

and (3) render such questions effectively unreviewable on

appeal from a final judgment in the underlying action.

Batzel, 333 F.3d at 1024–25. These rules are stringent. Dig.

Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994).

The denial of an anti-SLAPP motion does not resolve

important questions completely separate from the merits, it

in fact requires the court to directly assess the merits of

Plaintiffs’ complaint. See Cal. Civ. Proc. Code § 425.16(b)

(requiring a “probability that the plaintiff will prevail” after

considering pleadings and affidavits); Makaeff v. Trump

Univ., LLC, 736 F.3d 1180, 1190–91 (9th Cir. 2013)

(Watford, J., dissenting) (“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.”). California procedure requires us to determine not

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only whether the facts alleged articulate a plausible claim,

but also whether there is probability of success based on

plaintiffs’ evidence. That question is inextricably

intertwined with the merits of the litigation.

Anti-SLAPP motions are hybrids of motions to dismiss

and motions for summary judgment. The denial of either of

these motions is generally unreviewable on interlocutory

appeal. See Hilton v. Hallmark Cards, 599 F.3d 894, 900

(9th Cir. 2010) (“Denials of motions to dismiss under Rule

12(b)(6) are ordinarily not appealable, even as collateral

orders.”); c.f. Swint v. Chambers County Com’n, 514 U.S.

35, 43 (1995) (concluding that the denial of summary

judgment was not immediately appealable). We should

similarly hold here that we will not permit interlocutory

appeals of denials of anti-SLAPP motions.

Not only does the denial of an anti-SLAPP motion to

strike not meet the collateral order doctrine and receive

special privileges compared to its federal procedural

counterparts, the use of anti-SLAPP procedure in federal

courts has been squarely rejected by three circuits, the D.C.

Circuit, the Seventh Circuit, and the Tenth Circuit. While I

do not advocate at this time for wholly removing anti-

SLAPP motions practice in federal court, one of the primary

drivers for allowing this practice to continue—prevention of

a circuit split—has occurred despite our best efforts. See

Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1184 (9th Cir.

2013) (“If we 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.”).

Compare Abbas v. Foreign Policy Grp., LLC, 783 F.3d

1328, 1333–37 (D.C. Cir. 2015); Intercon Sols., Inc. v. Basel

Action Network, 969 F. Supp. 2d 1026, 1042 (N.D. Ill. 2013),

PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS 17

aff’d, 791 F.3d 729 (7th Cir. 2015); and Los Lobos

Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659,

672–73 (10th Cir. 2018) with Cuba v. Pylant, 814 F.3d 701

(5th Cir. 2016). 1

The D.C. Circuit considered whether a federal court

exercising diversity jurisdiction could apply D.C.’s Anti-

SLAPP special motion to dismiss provision. See Abbas,

783 F.3d at 1333–37 (“A federal court exercising diversity

jurisdiction therefore must apply Federal Rules 12 and 56

instead of the D.C. Anti-SLAPP Act’s special motion to

dismiss provision.”). The D.C. Circuit reasoned that Rule

12 already provided an avenue for a plaintiff to overcome a

motion to dismiss. Id. at 1334. While not addressing the

precise question I raise here, it stands to reason that if Rule

12 provides the correct procedure for overcoming a motion

to dismiss, the collateral order rules we have for appealing

the denial of a motion to dismiss should also apply to

dismissing a California anti-SLAPP motion a fortiori.

Indeed, Abbas came to the D.C. Circuit after a grant of the

special motion to strike, which had ended the entire

litigation. Id. at 1331–32. Given its reasoning, I do not

believe that the D.C. Circuit would have reviewed the

district court’s order on interlocutory appeal.

A district court in the Northern District of Illinois

considered whether anti-SLAPP laws conflicted with the

Federal Rules of Civil Procedure. Intercon Sols., Inc.,

1

But even in the Fifth Circuit, there is disagreement about whether

Texas’s anti-SLAPP motion should apply. See Cuba, 814 F.3d at 720

(“[T]he TCPA [Texas’s anti-SLAPP statute] may not be applied as long

as Rules 12 and 56 do not violate the Rules Enabling Act.”) (J. Graves,

dissenting).

18 PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS

969 F. Supp. 2d at 1042. The court there held that “Section

525 [Washington’s anti-SLAPP statute] cannot be applied

by a federal court sitting in diversity because it is in direct

conflict with Federal Rules of Civil Procedure 12 and 56.”

This decision was upheld on appeal to the Seventh Circuit.

Intercon Sols., Inc., 791 F.3d at 729. 2 On appeal, the

Seventh Circuit noted that there was debate over whether

they could review the district court’s order on collateral

review. Id. at 731. The court there nevertheless reviewed

the case because the district court certified the order to them

for interlocutory review, and they accepted. Id.

The Tenth Circuit decided this year that New Mexico’s

anti-SLAPP statute was solely a procedural mechanism that

did not apply in federal court. Los Lobos Renewable Power,

LLC, 885 F.3d at 673. That court first considered whether

the district court’s decision not to apply the anti-SLAPP

provision at all was subject to collateral review. Id. at 664–

65. The Tenth Circuit reasoned that a decision not to apply

the statute at all was a decision separate and apart from the

merits, but that a decision to deny an anti-SLAPP motion

required the court to “determine whether the special motion

to dismiss is frivolous or available on its own terms” and that

those “determinations necessarily turn on the merits of the

lawsuit.” Id. at 665. Had the district court denied the anti-

SLAPP motion instead of not considering the motion at all,

the Tenth Circuit likely would not have reviewed the district

court’s decision on interlocutory appeal.

2

The Washington Supreme Court has since held Washington’s anti-

SLAPP statute to be unconstitutional because it established a preliminary

procedure for factual adjudication of claims without trial or summary

judgment procedure. Davis v. Cox, 351 P.3d 862, 867 (Wash. 2015).

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I find further support in a decision of the Second Circuit.

The Second Circuit considered whether it had jurisdiction to

review a district court’s denial of a Vermont-based anti-

SLAPP motion. Ernst v. Carrigan, 814 F.3d 116, 119 (2d

Cir. 2016). That court answered with a resounding “no,”

reasoning that the very process by which an anti-SLAPP

motion is resolved requires a review of the merits. Id. The

Ernst court noted that Vermont’s anti-SLAPP statute was

based on California’s anti-SLAPP statute and concluded that

even if the statute was meant to provide immunity, it does

not necessarily make the statute appealable. Id. at 121. The

court held that Johnson v. Jones, 515 U.S. 304, 314 (1995),

required that in order to meet the collateral order doctrine,

the order must be “completely separate from the merits,” and

that anti-SLAPP motions necessarily implicate the factual

support underlying the claims—they are “inextricably

intertwined”. Id. at 121–22.

Intercon Solutions is instructive here. Defendants do not

seek to challenge the district court’s decision not to review

its anti-SLAPP motion; they cannot. Instead, Defendants

challenge the district court’s decision to deny the anti-

SLAPP motion, a motion that required the court to peer into

the merits of the appeal. See Cal. Civ. Proc. Code

§ 425.16(b). Further Ernst, makes the point I make here,

denial of an anti-SLAPP motion is inextricably intertwined

with the merits of the underlying case. Such a decision is

not appropriate for interlocutory appeal.

I respectfully suggest that we should take this

opportunity to fix this error in our court’s precedent with a

call of the case en banc.