Metabolic Research, Inc. v. Scott Ferrell

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

METABOLIC RESEARCH, INC.,  No. 10-16209

Plaintiff-Appellee,

D.C. No.

v.

SCOTT J. FERRELL; MICHAEL A.  2:09-cv-02453-JCM-

PAL

CAMPOS; THOMAS HESS; SARA

ORDER AND

JORDAN,

OPINION

Defendants-Appellants.



Appeal from the United States District Court

for the District of Nevada

James C. Mahan, District Judge, Presiding

Argued and Submitted

June 17, 2011—San Francisco, California

Filed June 18, 2012

Before: Jay S. Bybee and Mary H. Murguia, Circuit Judges,

and James K. Singleton, Senior District Judge.*

Opinion by Judge Singleton

*The Honorable James K. Singleton, Senior District Judge for the U.S.

District Court for Alaska, sitting by designation.

7023

7026 METABOLIC RESEARCH v. FERRELL

COUNSEL

Bevin E. Allen, Khorrami Pollard & Abir LLP, Las Angeles,

California for the appellants.

Beverly Salhanick, Las Vegas, Nevada, for the appellee.

ORDER

The opinion filed on February 9, 2012, appearing at 668

F.3d 1100, is withdrawn.

OPINION

SINGLETON, District Judge:

In this decision, we determine whether an order denying a

pretrial special motion to dismiss under Nevada’s anti-SLAPP

statute,1 Nev. Rev. Stat. §§ 41.635-670, is immediately

1

“SLAPP” is an acronym for “strategic lawsuit against public participa-

tion.” United States ex rel. Newsham v. Lockheed Missiles & Space Co.,

190 F.3d 963, 965 n.2 (9th Cir. 1999). “A SLAPP lawsuit is characterized

as ‘a meritless suit filed primarily to chill the defendant’s exercise of First

Amendment rights.’ ” John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276,

1280 (Nev. 2009) (citation omitted). The hallmark of a SLAPP lawsuit is

that it is filed to obtain a financial advantage over one’s adversary by

increasing litigation costs until the adversary’s case is weakened or aban-

doned. Lockheed Missiles & Space Co., 190 F.3d at 970.

METABOLIC RESEARCH v. FERRELL 7027

appealable under the collateral order doctrine first recognized

in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,

546-47 (1949). We previously considered related issues under

Oregon law in Englert v. MacDonell, 551 F.3d 1099, 1103-07

(9th Cir. 2009), and California law in Batzel v. Smith, 333

F.3d 1018, 1025-26 (9th Cir. 2003). We find that Nevada’s

statute is similar to Oregon’s at the time we decided Englert,

and dismiss the appeal for lack of jurisdiction.

I. FACTUAL AND PROCEDURAL HISTORY

On October 20, 2009, Scott J. Ferrell, an attorney practic-

ing law in Orange County California, sent “demand letters” to

Metabolic Research, Inc. (“Metabolic”), at its address in Las

Vegas, Nevada, and to General Nutrition Centers, Inc.

(“GNC”), at its address in Pittsburgh, Pennsylvania. The

demand letters purported to notify the recipients that they had

violated California Civil Code §§ 1750-1756, the California

Consumer Legal Remedies Act (“CLRA”), by falsely adver-

tising the properties and potential benefits of a product named

Stemulite, which they marketed as a natural fitness supple-

ment. Ferrell represented that he was acting on behalf of

Michael Campos, Thomas Hess, and Sarah Jordan, all of

whom he alleged purchased Stemulite in California, in reli-

ance on the supposed false advertising, and had not received

the purported benefits. Ferrell further claimed that he was act-

ing on behalf of a purported class of similarly-situated per-

sons. In this decision, Ferrell, his clients, and his prospective

clients will be collectively referred to as “Ferrell,” unless oth-

erwise indicated.

In his demand letters, Ferrell set out what he contended

were representative false claims and summarized what he

contended constituted violations of the CLRA. Ferrell

demanded that Metabolic and GNC cease their false advertis-

ing of Stemulite, identify all consumers who purchased Ste-

mulite within the applicable limitations period, and provide

each of these consumers with an appropriate refund. In addi-

7028 METABOLIC RESEARCH v. FERRELL

tion, Ferrell demanded that Metabolic and GNC disgorge all

revenues from sales of Stemulite for consumers who could

not be identified and implement “an appropriate corrective

advertising campaign,” including a labeling “disclaimer.”

Ferrell concluded the letters with an offer to compromise

and allowed Metabolic and GNC thirty days from the date of

his letters to agree to an injunction “that include[d] an appro-

priate disclaimer” in which case, Ferrell agreed to take no fur-

ther action, except to enforce the injunction. However, if

Metabolic and GNC chose not to accept the offer, Ferrell

stated that he would file a lawsuit (presumably in California)

and seek all available relief.2

On November 19, 2009, Metabolic filed a lawsuit in

Nevada State Court against Ferrell, his putative class action

plaintiffs, and various “Does,” all identified as California resi-

dents, charging extortion. See Nev. Rev. Stat. § 207.470

(allowing treble damages for racketeering in aid of extortion).3

Metabolic’s complaint further charged racketeering based

upon multiple publications of the demand letter (to Metabolic,

to GNC and to GNC principals), conspiracy to engage in

racketeering, civil extortion, tortious interference with con-

tract, and tortious interference with prospective economic

relations, i.e., interfering with the agreement between Meta-

bolic and GNC. Metabolic sought declaratory relief and puni-

tive damages. Metabolic’s lawsuit directly referenced

Ferrell’s demand letter, which Metabolic characterized as an

2

Ferrell did not identify what provisions other than a disclaimer, if any,

would have to be included in the stipulated injunction in order to avoid lit-

igation. Metabolic interpreted the letter as requiring inclusion of all of Fer-

rell’s demands in the injunction, which would have, effectively, put it out

of business.

3

Nevada and California define extortion in the same way relevant to this

case: a threat to disclose criminal behavior coupled with a demand for

compensation to keep quiet. See Flately v. Mauro, 139 P.3d 2, 24 & n.16

(Cal. 2006) (citing Cal. Penal Code § 519); Nev. Rev. Stat. § 205.320; see

also Cal. Penal Code §§ 518-519.

METABOLIC RESEARCH v. FERRELL 7029

accusation of mail fraud, in violation of 18 U.S.C. §§ 1341,

1343. Metabolic, in apparent anticipation of an anti-SLAPP

motion by Ferrell, expressly relied upon Flatley v. Mauro,

which Metabolic characterized as holding that pre-litigation

communications are not “privileged” under California’s anal-

ogous anti-SLAPP statute, if the demands constitute extortion

or blackmail as a matter of law.

On December 30, 2009, Ferrell removed the case to the

United States District Court for the District of Nevada based

on complete diversity of citizenship. Ferrell filed an answer

on January 5, 2010, and on January 27, 2010, Ferrell filed a

special motion to dismiss based upon Nevada’s anti-SLAPP

statute. Nev. Rev. Stat. § 41.660; John, 219 P.3d at 1280-82.4

Metabolic filed a response to Ferrell’s special motion to

dismiss, and the district court held a hearing on April 21,

2010. At the conclusion of the hearing, the district court

denied the motion and directed Metabolic to prepare an

appropriate order.

In its order dismissing Ferrell’s motion, the district court

found that Ferrell had not established that the demand letter

to Metabolic constituted a good-faith communication in fur-

therance of the right to petition because it concluded that

Nevada’s anti-SLAPP legislation only protected communica-

tions made directly to a governmental agency and did not pro-

tect a demand letter sent to a potential defendant in litigation.

This appeal followed.

II. DISCUSSION

[1] Our jurisdiction is typically limited to “final decisions.”

28 U.S.C. § 1291; see also In re Korean Air Lines Co., 642

4

As neither party raised the issue in this appeal, we do not decide

whether the Nevada anti-SLAPP statute is available to litigants proceeding

in federal court. Cf. Lockheed Missiles & Space Co., 190 F.3d at 970-74.

7030 METABOLIC RESEARCH v. FERRELL

F.3d 685, 689 (9th Cir. 2011). Generally, a final judgment is

entered at the end of a case, permitting a single appeal to

address all issues. See Digital Equip. Corp. v. Desktop Direct,

Inc., 511 U.S. 863, 868 (1994). However, there is a narrow

class of decisions—termed collateral orders—that do not ter-

minate the litigation, but must “in the interest of achieving a

healthy legal system nonetheless be treated as final.” Id. at

867 (citation omitted) (internal quotation marks omitted). In

Cohen v. Beneficial Industrial Loan Corp., the Supreme Court

promulgated the collateral order doctrine, recognizing that

such orders should be subject to immediate appeal. 337 U.S.

541, 546 (1949). Whether the district court’s order qualifies

as an appealable collateral order under Cohen will determine

our subject-matter jurisdiction. Digital Equip., 511 U.S. at

869 n.3. We consider our jurisdiction de novo. Andersen v.

United States, 298 F.3d 804, 807 n.2 (9th Cir. 2002).

[2] A party pursuing an interlocutory appeal under the col-

lateral order doctrine must show that the order being appealed

meets three criteria. It 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. Hal-

lock, 546 U.S. 345, 349 (2006) (internal quotation marks

omitted). These requirements are applied strictly, in order to

avoid the collateral order doctrine swallowing up the final

judgment rule. See id. at 350 (“[A]lthough the Court has been

asked many times to expand the ‘small class’ of collaterally

appealable orders, we have instead kept it narrow and selec-

tive in its membership.”); Digital Equip., 511 U.S. at 868

(“[T]he ‘narrow’ exception should stay that way and never be

allowed to swallow the general rule that a party is entitled to

a single appeal, to be deferred until final judgment has been

entered . . . .” (citation omitted)). Additionally, we do not

limit our consideration to the single case before us. We must

instead identify the category of cases to which our case

belongs and consider a rule that will work for all cases in the

category, regardless of whether the order in question is cor-

METABOLIC RESEARCH v. FERRELL 7031

rect. Digital Equip., 511 U.S. at 868 (“[T]he issue of appeala-

bility under § 1291 is to be determined for the entire category

to which a claim belongs, without regard to the chance that

the litigation at hand might be speeded, or a particular injus-

tice averted by a prompt appellate court decision.” (citation

omitted) (internal quotation marks omitted)).

Applying this protocol, we must first identify the category

of cases which must be considered in determining the need for

immediate appeal. It might have been possible to look at all

the cases dealing with anti-SLAPP litigation within this cir-

cuit as constituting a single “category.” Indeed, it appears that

all of the anti-SLAPP statutes adopted by the states in the

Ninth Circuit have many components in common. However,

deeper inspection has persuaded us that, while all of the stat-

utes have common elements, there are significant differences

as well, so that each state’s statutory scheme must be evalu-

ated separately. Accordingly, we have reached different con-

clusions with respect to the applicability of the collateral

order doctrine after examining Oregon law in Englert v. Mac-

Donell, 551 F.3d 1099, 1106-07 (9th Cir. 2009) (denying an

immediate appeal of an anti-SLAPP motion to dismiss as a

collateral order),5 and California law in Batzel v. Smith, 333

F.3d 1018, 1025 (9th Cir. 2003) (granting an immediate

appeal of an anti-SLAPP motion to dismiss as a collateral

order). Therefore, we consider only whether the denial of a

special motion to dismiss brought under Nevada’s anti-

SLAPP statute qualifies as an immediately appealable order

under Cohen.

[3] Turning to that task, in Englert we found it unnecessary

to address the first two Cohen requirements because the order

5

Subsequent to our decision in Englert, Oregon amended its anti-

SLAPP statute. See Or. Rev. Stat. §§ 31.150(1), 31.152(4) (amended

2010). We express no opinion as to the effect those amendments would

have, if any, on the right to immediately appeal a denial of a special

motion to strike in federal court in Oregon.

7032 METABOLIC RESEARCH v. FERRELL

at issue did not satisfy the third—whether it would be effec-

tively unreviewable on appeal from a final judgment. ert, 551

F.3d at 1104; see Will, 546 U.S. at 349-55 (declining to

review the first and second Cohen factors because the third

had not been satisfied). The same is true here.

In recent years, the Supreme Court has expanded on how

the “effectively unreviewable” prong of the Cohen test should

be evaluated. In particular, it has emphasized that “[i]t is not

mere avoidance of a trial, but avoidance of a trial that would

imperil a substantial public interest, that counts when asking

whether an order is ‘effectively’ unreviewable if review is to

be left until later.” Will, 546 U.S. at 353. In making such an

assessment, “the decisive consideration is whether delaying

review until the entry of final judgment ‘would imperil a sub-

stantial public interest’ or ‘some particular value of a high

order.’ ” Mohawk Indus. Inc. v. Carpenter, 130 S. Ct. 599,

601 (2009) (quoting Will, 546 U.S. at 352-53).

The risks identified in the context of anti-SLAPP litigation

are: 1) there is a danger that men and women will be chilled

from exercising their rights to petition the government by fear

of the costs and burdens of resulting litigation; and 2) that

unscrupulous lawyers and litigants will be encouraged to use

meritless lawsuits to discourage the exercise of first amend-

ment rights. John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276,

1282 (Nev. 2009). Immediate appeal is therefore advanced as

necessary to prevent the chilling of the right to petition the

government and to discourage potential abusers of litigation.

As we acknowledged in Batzel and Englert, and reaffirm here,

the right to petition governmental agencies is an important

right, established by statute with constitutional underpinnings.

The fact, however, that we have concluded that a motion

brought pursuant to California’s anti-SLAPP statute is imme-

diately appealable in this circuit, while one brought under

Oregon’s at the time we decided Englert is not, demonstrates

that an anti-SLAPP statute does not in and of itself satisfy the

collateral order doctrine. In other words, we have recognized

METABOLIC RESEARCH v. FERRELL 7033

that an anti-SLAPP statute’s aim of protecting its citizens’

First Amendment rights can, in some circumstances, be ade-

quately protected without recourse to immediate appeal.

[4] Accordingly, in appraising whether an anti-SLAPP

statute satisfies the collateral order doctrine, we have consid-

ered whether the values underlying the particular anti-SLAPP

statute can be satisfied through the normal appellate process.

See Englert, 551 F.3d at 1106; Batzel, 333 F.3d at 1025. As

a practical matter, this analysis has focused on whether the

anti-SLAPP law in question functions as a right not to stand

trial, i.e., an immunity from suit. In Batzel, we held that the

denial of a motion to strike brought pursuant to California’s

anti-SLAPP statute satisfied the collateral order doctrine

because the purpose of the California law was to provide citi-

zens with a substantive immunity from suit. 333 F.3d at

1025-26. In reaching this conclusion, the court relied upon the

fact that California’s law provided for immediate appeal in

state court and legislative history demonstrating that “law-

makers wanted to protect speakers from the trial itself rather

than merely from liability.” Id. at 1025.

In contrast, Englert held that Oregon’s failure to provide

for an immediate appeal at that time indicated its legislature’s

belief that the normal appeal process was adequate to vindi-

cate the anti-SLAPP right, which it in turn described as “a

right to have the legal sufficiency of the evidence underlying

the complaint reviewed by a nisi prius judge before a defen-

dant is required to undergo the burden and expense of a trial.”

551 F.3d at 1105. The Englert court explained that “[i]t would

simply be anomalous to permit an appeal from an order deny-

ing a motion to strike when Oregon was satisfied that the val-

ues underlying the remedy could be sufficiently protected by

a trial judge’s initial review of the motion, followed by appel-

late review only after a final judgment in favor of the plaintiff.”6

Id. at 1105-06.

6

Englert is consistent with the holdings in Mohawk, Will, and Digital

Equipment that § 1291 requires courts of appeals to view claims of a

“right not to be tried” with “skepticism, if not a jaundiced eye.” Digital

Equip., 511 U.S. at 873.

7034 METABOLIC RESEARCH v. FERRELL

[5] The distinction our anti-SLAPP cases have drawn is

consistent with the Supreme Court’s command that collateral

effect should only be given to those orders that implicate a

significant public interest or value. A legislatively approved

immunity from trial, as opposed to a mere claim of a right not

to be tried, is imbued with a significant public interest. As the

Supreme Court explained in Digital Equipment Corp.,

“[w]hen a policy is embodied in a constitutional or statutory

provision entitling a party to immunity from suit (a rare form

of protection), there is little room for the judiciary to gainsay

its ‘importance.’ ” 511 U.S. at 879. In line with this principle,

we have recently held that “the availability of an [immediate]

appeal depends on whether, under state law, the immunity

functions as an immunity from suit or only as a defense to lia-

bility.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.

2011). Our review of Nevada’s law satisfies us that its under-

lying values and purpose are satisfied without resort to an

immediate appeal because, unlike California’s, it does not fur-

nish its citizens with immunity from trial.

[6] We turn first to the major distinguishing feature

between the Oregon and California laws—the right to an

immediate appeal in state court—and find that Nevada’s anti-

SLAPP statute is more like Oregon’s at the time we decided

Englert. In Nevada, “where no statutory authority to appeal is

granted, no right exists.” Taylor Constr. Co. v. Hilton Hotels

Corp., 678 P.2d 1152, 1153 (Nev. 1984). Nevada’s anti-

SLAPP statute does not expressly provide for an immediate

right to appeal. It does state, however, that a court shall stay

discovery pending “the disposition of any appeal from the rul-

ing on the [special motion to dismiss].” Nev. Rev. Stat.

§ 41.660(3)(b)(2). We are unpersuaded that the statute’s gen-

eralized reference to an appeal implicitly, or otherwise, con-

fers an immediate right to appeal. Nevada based its anti-

SLAPP statute on California’s law, and the legislature could

have mirrored California’s unequivocal language concerning

an immediate right to appeal had it intended to furnish one.

See John, 219 P.3d at 1281 (“Nevada’s anti-SLAPP statute

METABOLIC RESEARCH v. FERRELL 7035

was enacted in 1993, shortly after California adopted its stat-

ute, and both statutes are similar in purpose and language.”).

Furthermore, the California anti-SLAPP statute allows for

immediate appeal under California Code of Civil Procedure

§ 904.1, which lists judgments and orders that are appealable.

See Cal. Code Civ. Proc. § 425.16 (“An order granting or

denying a special motion to strike shall be appealable under

Section 904.1.”). Nevada’s counterpart to § 904.1, Nevada

Rule of Appellate Procedure 3(b), lists some appealable inter-

locutory orders but does not mention denial of an order under

Nevada Revised Statute § 41.650. We find, therefore, that the

statute’s mention of “appeal” refers to discretionary writs

available under Nevada law, not an appeal of right. See Nev.

Rev. Stat. § 34.170 (writ of mandamus); Nev. Rev. Stat.

§ 34.330 (writ of prohibition).7

7

In Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 178

(5th Cir. 2009), a Fifth Circuit panel addressed a Louisiana anti-SLAPP

statute with provisions similar to those discussed in Batzel and Englert.

The panel recognized that the Ninth Circuit placed emphasis on the avail-

ability in the relevant legislation of an immediate appeal in state court in

deciding whether to grant collateral order status to an order denying an

anti-SLAPP motion. Id. at 178 n. The court noted that Louisiana, like Ore-

gon, did not provide for an immediate appeal by statute, but concluded

that Louisiana appellate courts apparently uniformly and automatically

reviewed denials of anti-SLAPP motions under writs of supervision which

appear to be similar in purpose to writs of mandamus. Id.

If true, the uniform and automatic grant of a writ of supervision might

be the equivalent of a right to appeal, because it would operate in every

case in the appropriate category, and may raise the risk that failure to grant

an immediate appeal in federal court, in every case, might defeat the Erie

concern about encouraging court shopping. See Lockheed Missiles &

Space Co., 190 F.3d at 973 (enforcing California anti-SLAPP provisions

in federal court, in part to avoid encouraging shopping for a federal

forum). Ferrell has not cited any Nevada case granting a writ of manda-

mus or prohibition to review denial of an anti-SLAPP motion. As we

pointed out in Englert, the availability of discretionary writs, as opposed

to an appeal as a matter of right, provides no support for an argument that

a state statute providing for anti-SLAPP motions to dismiss was intended

by the legislature to provide a right not to be tried. Englert, 551 F.3d at

7036 METABOLIC RESEARCH v. FERRELL

[7] Further persuading us that the Nevada legislature did

not intend for its anti-SLAPP law to function as an immunity

from suit is the statute’s definition of the anti-SLAPP right.

Nevada’s law provides that “[a] person who engages in a

good faith communication in furtherance of the right to peti-

tion is immune from civil liability for claims based upon the

communication.” Nev. Rev. Stat. § 41.650 (emphasis added).

We must presume the legislature selected its words with pur-

pose, and immunity from “civil liability” is unquestionably

different than immunity from “suit” or “trial.” Liberal, 632

F.3d at 1074 (“A denial of summary judgment is immediately

appealable when the immunity is an immunity from suit, but

not when it is a mere defense to liability.”).

Finally, we note that in the run of the mill of anti-SLAPP

cases, prompt review by a district judge will provide adequate

protection against frivolous cases brought to chill the exercise

of rights. Generally, a trial judge faced with an anti-SLAPP

motion will decide it using “the routine application of settled

legal principles.” Mohawk Indus., 130 S. Ct. 607. In the rare

case where the district court erroneously denies such a special

motion to dismiss, Nevada has provided substantial protec-

tions through the award of costs and attorneys’ fees to make

the litigant whole after she prevails on the appeal from a final

judgment and has, in addition, given her the option to pursue

the unscrupulous litigator with an action for damages.8 See

1107. The only evidence we have of the views of the Nevada Supreme

Court is found in Wynn Las Vegas, LLC v. Francis, No. 55459, 2010 WL

3315625 (Nev. June 10, 2010). Wynn is an unpublished, non-precedential

decision that may not be cited as precedent or legal authority. Nev. Sup.

Ct. R. 123. We mention it only because the fact of the decision, without

regard to its rationale, proves that Nevada does not uniformly and auto-

matically review denials of anti-SLAPP motions prior to a final judgment.

Henry is distinguishable on this basis.

8

We also note that Federal Rule of Civil Procedure 11 authorizes a dis-

trict court to impose sanctions on attorneys and parties who bring frivo-

lous lawsuits in bad faith and for ulterior purposes. Nevada has similar

provisions. See, e.g., Nev. R. Civ. P. 11; see also Chambers v. NASCO,

Inc., 501 U.S. 32 (1991) (discussing at length the many arrows in the dis-

trict court’s quiver of statutes, rules and inherent power available to punish

bad faith litigation tactics).

METABOLIC RESEARCH v. FERRELL 7037

Nev. Rev. Stat. § 41.670. This further satisfies us that “the

class of claims, taken as a whole, can be adequately vindi-

cated by other means.” Mohawk Indus., 130 S. Ct. at 601.

[8] Accordingly, the absence of an immediate appeal pro-

vision, coupled with the law’s use of the phrase “immunity

from civil liability” and provision of other safeguards, includ-

ing attorneys’ fees, leads us to conclude that Nevada’s anti-

SLAPP statute is similar to the Oregon statute as we inter-

preted it in Englert. Like the Oregon law at that time, it

appears to be a mechanism that allows a citizen to obtain

prompt review of potential SLAPP lawsuits and have them

dismissed before she is forced to endure the burdens and

expense of the normal litigation process, not an immunity to

suit or right not to be tried. Therefore, we hold that the denial

of a pretrial special motion to dismiss under Nevada’s anti-

SLAPP statute does not satisfy the third prong of the collat-

eral order doctrine and is not, therefore, immediately appeal-

able.

[9] Finally, we should not leave this issue without noting

Mohawk’s directive that we consider alternates to an immedi-

ate appeal in connection with the Cohen rule. Mohawk Indus.,

130 S. Ct. at 607-09. If prompt review by an experienced trial

judge will correctly resolve the run of the mill anti-SLAPP

motions, there are two remedies apart from collateral order

appeal available to enable an appellate court to address partic-

ularly injurious or novel issues. First, a litigant in federal

court may ask the district court to certify and the court of

appeals to accept an interlocutory appeal pursuant to 28

U.S.C. § 1292(b) as involving controlling questions of law the

resolution of which will speed the termination of the litiga-

tion. Secondly, in truly extraordinary cases, a writ of manda-

mus is available. 28 U.S.C. § 1651(a) (the All Writs Act

codifying the common law writ of mandamus); Cheney v.

U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 377

(2004). We have had recourse to the writ of mandamus to pro-

tect first amendment rights where we feared that the Mohawk

7038 METABOLIC RESEARCH v. FERRELL

decision foreclosed collateral order appeals. See Perry v. Sch-

warzenegger, 591 F.3d 1147, 1154-56 (9th Cir. 2010). Ferrell

did not seek to avail himself of 28 U.S.C. § 1292(b), nor did

he seek mandamus in this Court. We, therefore, express no

opinion on how we might have decided such an appeal or

application had one been brought. We conclude that an imme-

diate appeal is not necessary to protect the rights in Nevada

Revised Statute § 41.660.

III. CONCLUSION

We are satisfied that the order in this case was not a collat-

eral order justifying an immediate appeal.

DISMISSED.