holding that Louisiana’s nearly identical anti-SLAPP3 statute was enforceable in a federal court sitting in diversity jurisdiction
How later courts described this case
- holding that Louisiana’s nearly identical anti-SLAPP3 statute was enforceable in a federal court sitting in diversity jurisdiction
- “This court has adopted the use of the statute [Article 971] in federal court under Erie.” (citing Henry, 566 F.3d at 168-69 )
Written by the judges who cited it.
The opinion
Case: 11-31080 Document: 00511860532 Page: 1 Date Filed: 05/18/2012
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 18, 2012
No. 11-31080 Lyle W. Cayce
Summary Calendar Clerk
WILLIAM E. BROWN,
Plaintiff - Appellant
v.
JESSE L. WIMBERLY, III; UNIDENTIFIED PARTIES; HECTOR R. LOPEZ,
Defendants - Appellees
Appeal from the United States District Court
for the Eastern District of Louisiana
USDC No. 2:11-CV-1169
Before DENNIS, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
William Brown appeals the dismissal of his defamation lawsuit against
Lawyers Jesse Wimberly and Hector Lopez. We AFFIRM the district court’s
dismissal of Brown’s claim.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
Case: 11-31080 Document: 00511860532 Page: 2 Date Filed: 05/18/2012
No. 11-31080
FACTS AND PROCEEDINGS
The district court correctly lays out the facts of the case. The plaintiff,
William Brown, is an attorney who represented Dr. Ralph Nix in a medical
malpractice suit in state court which Nix lost. On appeal, Nix hired another
attorney, Defendant Hector Lopez, to represent him. Nix also lost on appeal, and
hired another attorney, Jesse Wimberly, to sue Brown for legal malpractice and
professional negligence. Following discussions with Lopez, Wimberly filed
complaints that Lopez drafted. Although they were originally filed in state court,
Brown removed the malpractice actions to federal court where the claims were
ultimately settled.
After Wimberly filed the two lawsuits for Nix against Brown, Brown filed
suit in the Eastern District of Louisiana against Wimberly alleging defamation.
Brown claims that the allegations that Wimberly made in the legal malpractice
suits constitute defamation. He also claims that Hector Lopez took part in the
defamation since he helped draft the complaints for Nix before Nix engaged
Wimberly. Wimberly moved to dismiss Brown’s complaint and strike it under
Louisiana’s anti-SLAPP laws while Lopez moved to dismiss under Federal Rule
of Civil Procedure 12 (b) (6) or, alternatively, for summary judgment. The
district court granted the motion to strike and the motion to dismiss.
STANDARD OF REVIEW
This Court reviews the District Court’s grant of a Motion to Dismiss under
Fed. R. Civ. P. 12(b)(6) de novo, viewing the facts as pled in the light most
favorable to the non-moving party. This Court reviews the District Court’s grant
of summary judgment de novo, applying the same standard as the District
Court. Nickell v. Beau View of Biloxi, L.L.C., 636 F.3d 752, 754 (5th Cir. 2011).
Summary judgment is appropriate when the moving party can demonstrate that,
based on the pleadings and discovery, “there is no genuine dispute as to any
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No. 11-31080
material fact and the movant is entitled to judgment as a matter of law.” Fed.
R. Civ. P. 56(a).
DISCUSSION
As the district court properly concluded, Brown cannot make out a cause
of action for the allegedly defamatory statements made in the course of judicial
proceedings. Under Louisiana Code of Civil Procedure Article 971, the Anti-
SLAPP statute, a defendant can file a special motion to strike where the
defendant has been sued for exercising his constitutional rights. This court has
adopted the use of the statute in federal court under Erie. See Henry v. Lake
Charles Am. Press, LLC, 566 F.3d 164, 168-69 (5th Cir. 2009). Under the statute,
a plaintiff must show that he will probably succeed on his claim for defamation
or else it will be dismissed. Id., 170. To succeed on a defamation claim that arises
in the litigation context, a plaintiff must show “specific malice or an intent to
harm on the part of the attorney in persuading his client to initiate and continue
the suit.” Montalvo v. Sondes, 637 So.2d 127, 130 (La. 1994). To pass both the
heightened requirements of the Anti-SLAPP statute, and the pleading
requirements for defamation in the litigation context, Brown must plead facts
that show that the alleged defamatory statements were made with malice or
intent to harm, and that he has a greater probability of showing this at trial
than not. We agree with the district court’s conclusions that Brown cannot prove
this.
Louisiana law is not unique in this regard and the litigation privilege,
which offers protection to statements made in the course of a judicial proceeding,
is an important part of maintaining the adversarial process. Under Brown’s
theory of the case, malpractice claims against attorneys would be next to
impossible since anything said in such suits will ultimately have a bearing on
the attorney’s occupation and livelihood and be subject to retaliatory defamation
suits. But without affording some privilege to statements made by attorneys in
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No. 11-31080
the course of litigation, pleadings and motions could hardly proceed because of
fear of after-the-fact derivative suits claiming defamation. That is why
Louisiana, like others, requires that plaintiffs demonstrate actual malice in
statements made in judicial proceedings. Since Brown has not alleged actual
malice or intent to harm, he certainly can not exceed the higher standard
required by the Anti-SLAPP statute.
CONCLUSION
For the above reasons, we AFFIRM the ruling of the district court.
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