Petition for Writ of Certiorari — AmeriCulture, Inc., et al., Petitioners v. Los Lobos Renewable Power, LLC, et al.

Supreme Court briefJul 16, 2018

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IN THE

SUPREME COURT OF THE UNITED STATES

AMERICULTURE, INC., et al.,

Petitioners,

LOS LOBOS RENEWABLE POWER, LLC, et al.,

Respondents.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Tenth Circuit

PETITION FOR A WRIT OF CERTIORARI

SCOTT E. GANT

Counsel of Record

AARON E. NATHAN

BOIES SCHILLER FLEXNER LLP

1401 New York Avenue, NW

Washington, DC 20005

(202) 237-2727

sgant@bsfllp.com

Counsel for Petitioners

QUESTIONS PRESENTED

Like twenty-nine other states and the District of

Columbia, New Mexico has enacted a statute

specifically designed to deter SLAPP (“strategic

lawsuits against public participation”) lawsuits, which

unduly discourage speech and engagement about

matters of public concern.

New Mexico’s “anti-SLAPP” statute requires

expedited disposition of dismissal motions and an

award of attorneys’ fees and costs to a prevailing

defendant. In the decision below, the Tenth Circuit

held that those provisions are inoperative in federal

court—deepening an entrenched circuit split on the

applicability of state anti-SLAPP provisions in federal

court.

The questions presented are:

1. Whether a state anti-SLAPP provision requiring

an award of attorneys’ fees and costs to a prevailing

defendant applies in federal court—as the First,

Second, Fifth and Ninth Circuits have concluded, in

conflict with the D.C. Circuit and the Tenth Circuit

below.

2. Whether a state anti-SLAPP provision requiring

expedited disposition of dismissal motions applies in

federal court, as the First and Fifth Circuits have

concluded, in conflict with the D.C. Circuit and the

Tenth Circuit below.

PARTIES TO THE PROCEEDING

Petitioners are AmeriCulture, Inc., a New Mexico

corporation, and Damon Seawright, an individual,

defendants-appellants in the court below.

Respondents are Los Lobos Renewable Power, LLC,

and Lightning Dock Geothermal, HI-01, LLC, both

Delaware corporations, plaintiffs-appellees in the court

below.

iii

CORPORATE DISCLOSURE STATEMENT

Pursuant to Rule 29.6 of this Court, Petitioner

AmeriCulture, Inc. states that it has no parent

corporation, and no publicly held company owns 10%

or more of its stock. Petitioner Damon Seawright is an

individual.

TABLE OF CONTENTS

QUESTIONS PRESENTED ..................................... i

PARTIES TO THE PROCEEDING ......................... ii

CORPORATE DISCLOSURE STATEMENT ........ iii

TABLE OF AUTHORITIES ................................... vi

OPINIONS BELOW ................................................. 1

JURISDICTION ....................................................... 1

STATUTORY PROVISIONS INVOLVED ............. 1

INTRODUCTION ................................................... 2

STATEMENT OF THE CASE ................................ 4

Legal Background ................................. 4

Facts and Proceedings Below.............. 12

REASONS FOR GRANTING THE PETITION .... 17

There Is a Circuit Split on the

Applicability of State Anti-SLAPP FeeShifting Provisions in Federal Court .......... 17

Several Circuits Have Held That

Anti-SLAPP Fee-Shifting Provisions

Apply in Federal Court ....................... 18

Two Circuits Have Held That AntiSLAPP Fee-Shifting Provisions Are

Inapplicable in Federal Court............. 22

II.

There Is a Circuit Split on the

Applicability of State Anti-SLAPP

Expedited Motions in Federal Court .......... 24

III.

The Decision Below Was Incorrect ............. 25

IV.

Anti-SLAPP Fee-Shifting Provisions

Should Apply in Federal Court ........... 25

Anti-SLAPP

Provisions

for

Expedited Consideration of Motions

Should Apply in Federal Court ........... 29

This Case Is an Excellent Vehicle for

Resolving the Circuit Split Regarding the

Important Questions Presented.................. 31

CONCLUSION ...................................................... 34

APPENDIX A:

Opinion of the U.S. Court of Appeals for the

Tenth Circuit, Filed March 12, 2018 ............. 1a

APPENDIX B:

Memorandum Opinion and Order of the

United States District Court for the District

of New Mexico, Filed March 22, 2016 .......... 34a

APPENDIX C:

Memorandum Opinion and Order of the

United States District Court for the District

of New Mexico, Filed February 17, 2016 ..... 40a

APPENDIX D:

Statutes and Rules Involved ........................ 52a

TABLE OF AUTHORITIES

CASES

Abbas v. Foreign Policy Grp., LLC,

783 F.3d 1328 (D.C. Cir. 2015) ................ passim

Adelson v. Harris,

774 F.3d 803 (2d Cir. 2014) .................. 21-22, 33

Alyeska Pipeline Serv. Co. v. Wilderness Society,

421 U.S. 240 (1975) ................................... 17, 27

Block v. Tanenhaus,

867 F.3d 585 (5th Cir. 2017) ........................... 22

Chambers v. NASCO, Inc.,

501 U.S. 32 (1991) ................................ 17-18, 27

Cohen v. Beneficial Indus. Loan Corp.,

337 U.S. 541 (1949) ................................... 26, 29

Cordova v. Cline,

396 P.3d 159 (N.M. 2017) ................. 3, 11, 28-29

Cuba v. Pylant,

814 F.3d 701 (5th Cir. 2016) ..................... 22, 32

Davis v. Cox,

351 P.3d 862 (Wash. 2015) .............................. 20

Erie R.R. Co. v. Tompkins,

304 U.S. 64 (1938) .................................... passim

Felder v. Casey,

487 U.S. 131 (1988) ........................................... 2

Gardner v. Martino,

563 F.3d 981 (9th Cir. 2009) ........................... 20

vii

Garrison v. Louisiana,

379 U.S. 64 (1964) ............................................. 2

Gasperini v. Center for Humanities, Inc.,

518 U.S. 415 (1996) ..................................... 6, 30

Godin v. Schencks,

629 F.3d 79 (1st Cir. 2010) ....................... passim

Guaranty Trust Co. of N.Y. v. York,

326 U.S. 99 (1945) ..............................4, 5, 23, 27

Hanna v. Plumer,

380 U.S. 460 (1965) ................................. 4, 5, 26

Henry v. Lake Charles Am. Press, LLC,

566 F.3d 164 (5th Cir. 2009) ..................... 22, 25

Intercon Solutions, Inc. v. Basel Action

Network, 791 F.3d 729 (7th Cir. 2015) ........... 32

Khai v. Cnty. of L.A.,

--- Fed. App’x ---, 2018 WL 1476646 (9th

Cir. Mar. 27, 2018) .......................................... 19

Law Offices of Bruce Altschuld v. Wilson,

632 Fed. App’x 321 (9th Cir. 2015) ................. 19

Liberty Synergistics Inc. v. Microflo Ltd.,

718 F.3d 138 (2d Cir. 2013) ................. 21, 22, 27

Makaeff v. Trump Univ., LLC,

715 F.3d 254 (9th Cir. 2013) ........................... 19

Makaeff v. Trump Univ., LLC,

726 F.3d 1180 (9th Cir. 2013) ......................... 19

Medical Protective Co. v. Pang,

740 F.3d 1279 (9th Cir. 2013) .................... 25-26

viii

Metabolife Int’l, Inc. v. Wornick,

264 F.3d 832 (9th Cir. 2001) ........................... 34

Mitchell v. Hood,

614 Fed. Appx. 137 (5th Cir. 2015) ................. 32

Northon v. Rule,

637 F.3d 937 (9th Cir. 2011) ...................... 19-20

People of Sioux Cnty. v. Nat’l Surety Co.,

276 U.S. 238 (1928) ......................................... 17

Phoenix Trading, Inc. v. Loops LLC,

732 F.3d 936 (9th Cir. 2013) ........................... 20

Ragan v. Merchants Transfer & Warehouse Co.,

337 U.S. 530 (1949) ......................................... 30

Royalty Network, Inc. v. Harris,

756 F.3d 1351 (11th Cir. 2014) ....................... 34

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

Ins. Co., 559 U.S. 393 (2010) .................... passim

Sibbach v. Wilson & Co.,

312 U.S. 1 (1941) ............................................. 23

Steinmetz v. Coyle & Caron, Inc.,

862 F.3d 128 (1st Cir. 2017) ............................ 21

Travelers Casualty Ins. Co. of Am. v. Hirsh,

831 F.3d 1179 (9th Cir. 2016) ................... 31, 32

United States ex rel. Newsham v. Lockheed

Missiles & Space Co.,

190 F.3d 963 (9th Cir. 1999) ..................... 18, 19

Verizon Delaware, Inc. v. Covad Commc’ns Co.,

377 F.3d 1081 (9th Cir. 2004) .................... 33-34

Walker v. Armco Steel Corp.,

446 U.S. 740 (1980) ..................................... 4, 30

Wyeth v. Levine,

555 U.S. 555 (2009) ......................................... 30

STATUTES AND RULES

28 U.S.C. § 1254 ....................................................... 1

28 U.S.C. § 1292(b)................................................. 15

28 U.S.C. § 1332 ..................................................... 14

28 U.S.C. § 1367 ....................................................... 2

28 U.S.C. § 1652 ....................................................... 4

28 U.S.C. § 2072(b)................................................... 4

Fed. R. Civ. P. 11 .................................................... 34

Fed. R. Civ. P. 12 .................................................... 29

Fed. R. Civ. P. 23 .............................................. 6, 7, 9

Fed. R. Civ. P. 54 .................................................... 25

Fed. R. Civ. P. 56 .................................................... 29

Ariz. Rev. Stat. Ann. § 12-752 ......................... 17, 24

Ark. Code Ann. § 16-63-506(b)(1) .......................... 17

Ark. Code Ann. § 16-63-507(a)(2) .......................... 24

Cal. Civ. Proc. Code § 425.16 ..................... 17, 18, 24

Conn. Gen. Stat. § 52-196a .............................. 17, 24

Del. Code Ann. tit. 10, § 8138(a)(1) ....................... 17

D.C. Code § 16-5502(d)........................................... 24

D.C. Code § 16-5504(a)........................................... 17

Fla. Stat. § 768.295(4) ...................................... 17, 24

Ga. Code Ann. § 9-11-11.1 ......................... 17, 24, 34

Haw. Rev. Stat. § 634F-2 ................................. 17, 24

735 Ill. Comp. Stat. 110/20(a) ................................ 24

735 Ill. Comp. Stat. 110/25 .................................... 17

Ind. Code § 34-7-7-7 ............................................... 17

Ind. Code § 34-7-7-9(a)(2) ...................................... 24

Kan. Stat. Ann. § 60-5320 ...................................... 24

Kan. Stat. Ann. § 60-5329(g) ................................. 17

La. Code Civ. Proc. Ann. art. 971 .............. 17, 22, 24

Me. Rev. Stat. Ann. tit. 14, § 556 .........17, 20, 24, 25

Md. Code Ann., Cts. & Jud. Proc. § 5-807(d)(1) .... 24

Mass. Gen. Laws ch. 231, § 59(H) ............. 17, 21, 24

Minn. Stat. § 554.04(1) .......................................... 17

Mo. Rev. Stat. § 537.528 .................................. 17, 24

Neb. Rev. Stat. § 25-21,243(1) ............................... 17

Neb. Rev. Stat. § 25-21,245.................................... 24

Nev. Rev. Stat. § 41.660(3)(f) ................................. 24

Nev. Rev. Stat. § 41.670(1)(a) .......................... 17, 21

N.M. Stat. Ann. § 38-2-9.1 .............................. passim

N.M. Stat. Ann. § 38-2-9.2 ..................................... 11

N.Y. Civ. Rights Law § 70-a(1)(a) .......................... 17

Okla. Stat. tit. 12, §§ 1433(A)-(C) .......................... 24

Okla. Stat. tit. 12, § 1438(A)(1) ............................. 17

Or. Rev. Stat. § 31.152 ..................................... 17, 24

27 Pa. Cons. Stat. § 7707 ....................................... 17

R.I. Gen. Laws § 9-33-2(d) ..................................... 17

Tenn. Code Ann. § 4-21-1003(c) ............................. 17

Tex. Civ. Prac. & Rem. Code Ann. § 27.004(a)...... 24

Tex. Civ. Prac. & Rem. Code Ann. § 27.007(b)...... 24

Tex. Civ. Prac. & Rem. Code Ann. § 27.009(a)(1) . 17

Utah Code Ann. § 78B-6-1404(1)(b) ...................... 24

Utah Code Ann. § 78B-6-1405(1)(a) ...................... 17

Vt. Stat. Ann. tit. 12, § 1041 ............................ 17, 24

Va. Code Ann. § 8.01-223.2(B) ............................... 17

OTHER AUTHORITIES

6 Moore, Federal Practice 54.77(2)(2d ed. 1974)... 17

17A Moore’s Federal Practice–Civil

§ 124.07[3][b] (2008) ........................................ 27

10 Wright & Miller, Federal Practice &

Procedure § 2669 (3d ed. 2014) ................. 27, 28

19 Wright & Miller, Federal Practice &

Procedure § 4509 (3d ed. 2016) ....................... 32

Timothy D. Biché, Note, Thawing Public

Participation: Modeling the Chilling Effect

of Strategic Lawsuits Against Public

Participation and Minimizing Its Impact,

22 S. Cal. Interdisc. L.J. 421 (2013) ............... 10

xii

Penelope Canan & George W. Pring, Research

Note, Studying Strategic Lawsuits Against

Public Participation: Mixing Quantitative

and Qualitative Approaches, 22 L. & Soc’y

Rev. 385 (1988) .................................................. 9

Robert Post, Reply: Understanding the First

Amendment, 87 Wash. L. Rev. 549 (2012)...... 10

George W. Pring & Penelope Canan, “Strategic

Lawsuits Against Public Participation”

(“SLAPPs”): An Introduction for Bench, Bar

and Bystanders, 12 Bridgeport L. Rev. 937

(1992) ................................................................. 9

Colin Quinlan, Note, Erie and the First

Amendment: State Anti-SLAPP Laws in

Federal Court After Shady Grove, 114

Colum. L. Rev. 367 (2014) ............................... 10

Jeremy Rosen & Felix Shafir, Helping

Americans to Speak Freely, 18 Federalist

Soc’y Rev. 62 (2017) ......................................... 10

Frederick M. Rowe & Leo M. Romero, Resolving

Land-Use Disputes by Intimidation: SLAPP

Suits in New Mexico, 32 N.M. L. Rev. 217

(2002) ............................................................... 11

Katelyn E. Saner, Note, Getting SLAPP-ed in

Federal Court: Applying State Anti-SLAPP

Special Motions to Dismiss in Federal Court

After Shady Grove, 63 Duke L.J. 781 (2013) .. 10

xiii

William James Seidleck, Comment, AntiSLAPP Statutes and the Federal Rules:

Why Preemption Analysis Show They

Should Apply in Federal Diversity Suits,

166 U. Pa. L. Rev. 547 (2018) .......................... 32

David C. Thornton, Comment, Evaluating AntiSLAPP Protection in the Federal Arena: An

Incomplete Paradigm of Conflict, 27 Geo.

Mason U. Civ. Rts. L.J. 119 (2016) ................. 32

OPINIONS BELOW

The opinion of the United States Court of Appeals

for the Tenth Circuit (App. 1a-33a) is reported at 885

F.3d 659. The opinion of the United States District

Court for the District of New Mexico denying

Petitioners’ motion to dismiss is available at 2016 WL

8254920 and reproduced at App. 40a-51a. The opinion

of the District Court certifying its order for

interlocutory appeal is available at 2016 WL 8261743

and reproduced at App. 34a-39a.

JURISDICTION

The Court of Appeals entered judgment on March

12, 2018. On April 4, 2018, Justice Sotomayor

extended the time to file a petition for certiorari to and

including July 16, 2018 (No. 17A1064). This Court has

jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

The statutory provisions and rules relevant to this

petition, including the Rules of Decision Act, the Rules

Enabling Act, Federal Rule of Civil Procedure 12, New

Mexico’s anti-SLAPP statute, and the anti-SLAPP

statutes implicated in the other cases relevant to the

circuit splits discussed in this petition are reproduced

in the Appendix at 52a-78a.

INTRODUCTION

“[S]peech concerning public affairs is more than

self-expression; it is the essence of self-government.”

Garrison v. Louisiana, 379 U.S. 64, 74-75 (1964).

To protect their citizens’ rights to participate freely

in self-government, thirty states and the District of

Columbia have enacted “anti-strategic lawsuits against

public participation” (or “anti-SLAPP”) statutes to

deter lawsuits that chill speech and engagement about

matters of public concern.

The decision below

deepened a circuit split over whether such state antiSLAPP laws apply in federal courts exercising

jurisdiction over state law claims.1

New Mexico’s anti-SLAPP statute features two

mechanisms to protect against SLAPP suits: (1) it

requires “expedited” consideration of a defendant’s

motion to dispose of the case, and (2) it requires an

award of attorneys’ fees to a defendant who invokes the

statute as a defense and obtains dismissal. In the

decision below, the Tenth Circuit held—in conflict with

other circuits (and in accord with the D.C. Circuit)—

that those state anti-SLAPP protections are

inoperative in federal court.

1 While the plaintiffs in this case invoked the District Court’s

diversity jurisdiction, infra at n. 3, the questions presented here

can arise whenever federal courts exercise jurisdiction over state

law claims, such as pursuant to the supplemental jurisdiction

statute, 28 U.S.C. § 1367. See Felder v. Casey, 487 U.S. 131, 151

(1988).

The Tenth Circuit’s holding was incorrect. As

several other circuits have recognized when

confronting similar state anti-SLAPP provisions, those

provisions do not conflict with any federal rule, and are

part of the substantive “law of the state” that must

apply in federal court unless federal law says

otherwise.

The decision below also interferes with statecreated rights. New Mexico’s anti-SLAPP statute was

designed and enacted “to protect citizens who exercise

their right to petition from the financial burden of

having to defend against retaliatory lawsuits.”

Cordova v. Cline, 396 P.3d 159, 166 (N.M. 2017). That

objective was frustrated by the Tenth Circuit’s refusal

to apply the State’s anti-SLAPP law in federal court.

And, ironically, the decision below encourages

precisely the kind of forum-shopping the Erie doctrine

seeks to avoid—in at least two respects. The refusal to

give effect in federal court to state anti-SLAPP laws

will encourage the filing of SLAPP suits in federal

court. But the disagreement among courts of appeals

about the questions presented also means that a given

state’s anti-SLAPP law may be enforced in some

federal courts but not others—encouraging plaintiffs to

cherry-pick among federal courts to avoid application

of the statutes.

The Court should grant the petition to resolve the

circuit split regarding the important questions

presented.

STATEMENT OF THE CASE

A. Legal Background

1. The Erie/Hanna Doctrine

This case concerns an important, contemporary

application of the familiar and longstanding rule that

“roughly, . . . federal courts are to apply state

‘substantive’ law and federal ‘procedural’ law” when

adjudicating state law claims. Hanna v. Plumer, 380

U.S. 460, 471 (1965); see also Erie R.R. Co. v.

Tompkins, 304 U.S. 64, 77-79 (1938).

This Court has explained that a federal rule

governs the matters to which it applies, so long as the

rule is consistent with the Constitution, and with the

Rules Enabling Act, which requires that the federal

rules “shall not abridge, enlarge, or modify any

substantive right.” 28 U.S.C. § 2072(b). Where there

is no federal rule on point, the Rules of Decision Act

requires that federal courts apply the “law of the state”

within the meaning of that Act, as interpreted in Erie

and its progeny. See 28 U.S.C. § 1652; Walker v. Armco

Steel Corp., 446 U.S. 740, 749-52 (1980).

While familiar, this framework has occasionally

presented this Court with challenging questions. See

Walker, 446 U.S. at 744 (“The question whether state

or federal law should apply on various issues arising in

an action based on state law which has been brought in

federal court under diversity of citizenship jurisdiction

has troubled this Court for many years.”).

In Guaranty Trust Co. of N.Y. v. York, 326 U.S. 99

(1945), this Court set out what later became known as

the “outcome-determination” test for whether the Rules

of Decision Act and Erie make a state-law rule

applicable in federal court. The Court explained that

Erie’s intent “was to insure that, in all cases where a

federal court is exercising jurisdiction solely because of

the diversity of citizenship of the parties, the outcome

of the litigation in the federal court should be

substantially the same . . . as it would be if tried in a

State court. The nub of the policy that underlies Erie

R.R. Co. v. Tompkins is that for the same transaction

the accident of suit by a non-resident litigant in a

federal court instead of in a State court a block away,

should not lead to a substantially different result.” Id.

at 109. The Guaranty Trust Court accordingly

concluded that a New York statute of limitations

barring recovery in a suit if brought in state court

“bears on a State-created right vitally and not merely

formally or negligibly,” and that because the

consequences of the rule “so intimately affect recovery

or non-recovery,” it should apply in federal court. Id.

at 110.

In Hanna, 380 U.S. 460, the Court announced

another “pathmarking” decision, in which it explained

that Erie “command[s] the enforcement of state law”

only where there is “no Federal Rule which cover[s] the

point in dispute.” Id. Where a federal rule conflicts

with a state rule on the same point, Hanna held the

federal rule controls so long as it falls within

Congress’s “power to regulate matters which, though

falling within the uncertain area between substance

and procedure, are rationally capable of classification

as either.” Id. at 472.

As for the “outcomedetermination” test, the Hanna court explained it

should be read in light of “the twin aims of the Erie

rule: discouragement of forum-shopping and avoidance

of inequitable administration of the laws.” Id. at 468.

In Gasperini v. Center for Humanities, Inc., 518

U.S. 415 (1996), the Court addressed the application of

the Erie/Hanna doctrines to a New York statute that

permitted the state’s appellate courts “to order new

trials when the jury’s award ‘deviates materially from

what would be reasonable compensation.’” Id. at 418

(quoting N.Y. Civ. Prac. Law & Rules (CPLR)

§ 5501(c)). Recognizing that the provision at issue

contained “both ‘substantive’ and ‘procedural’” aspects,

the Court explained that the “dispositive question” was

“whether federal courts can give effect to the

substantive thrust of § 5501(c) without untoward

alteration of the federal scheme for the trial and

decision of civil cases.” Id. at 426. The Court

determined they could, holding: New York’s

substantive “deviates materially” standard applies in

federal court, but primary responsibility for its

application would be “lodge[d] in the district court, not

the court of appeals,” in light of the Seventh

Amendment’s constraint on appellate review of juryfound facts. Id. at 437-38.

More recently, this Court considered whether

Federal Rule of Civil Procedure 23 precluded the

application in federal court of a New York statute

barring “a suit to recover a ‘penalty’ from proceeding as

a class action.” Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393, 397 (2010).

Five Justices concurred in a judgment reversing the

court below, concluding that Rule 23 preempted the

New York law, but without agreeing on a single

rationale.

In the only section of any opinion to command a

majority of the Court, Justice Scalia explained that

because in that case the federal and state rules were in

conflict—Federal Rule of Civil Procedure 23 provided

that a class action like Shady Grove’s “may be

maintained,” while the New York statute provided that

a class action seeking penalty damages “may not be

maintained”—the state rule could not apply in federal

court unless the federal rule was invalid. Id. at 399.

The Court fractured on the next steps in the

analysis, however. Justice Scalia wrote that upon

finding a conflict between a federal and state rule—

where the rules “attempt[] to answer the same

question,” 559 U.S. at 399—the only remaining inquiry

is whether the federal rule is valid. Id. at 407-09. If

so, it controls. Id.

Justice Scalia explained that a federal rule

promulgated under the Rules Enabling Act is valid so

long as it governs “only the manner and the means by

which the litigants’ rights are enforced,” and does not

“alter[] the rules of decision by which the court will

adjudicate those rights.” Id. at 407. According to

Justice Scalia, a federal rule’s validity does not depend

on whether it affects a litigant’s state-created

substantive rights. Id. at 407, 408-410. A federal

procedural rule is either valid or invalid in all

jurisdictions and all cases. Id. at 409-10.

Justice Stevens, the fifth vote to reverse, agreed

there was a conflict between Rule 23 and the New York

law, but disagreed with the next steps in Justice

Scalia’s analysis. In Justice Stevens’s view, where

federal and state rules appear to conflict, the Rules

Enabling Act’s command that the Federal Rules “shall

not abridge, enlarge or modify any substantive right”

means “federal rules cannot displace a State’s

definition of its own rights or remedies.” Id. at 418.

Therefore, “federal rules must be interpreted with

some degree of sensitivity to important state interests

and regulatory policies, and applied to diversity cases

against the background of Congress’ command that

such rules not alter substantive rights and with

consideration of the degree to which the Rule makes

the character and result of the federal litigation stray

from the course it would follow in state courts.” Id. at

418-19.

Although Justice Stevens conceded this can be

“tricky” to implement,” he explained “the balance . . .

turns, in part, on the nature of the state law that is

being displaced by a federal rule.” Id. at 419. The

“nature of the state law,” meanwhile, “does not

necessarily turn on whether the state law at issue

takes the form of what is traditionally described as

substantive or procedural. Rather, it turns on whether

the state law actually is part of a State's framework of

substantive rights or remedies.” Id.

Justice Stevens laid out a two-step framework that,

in his view, this Court’s precedents require courts to

implement: “The court must first determine whether

the scope of the federal rule is sufficiently broad to

control the issue before the court, thereby leaving no

room for the operation of seemingly conflicting state

law,” including after the federal rule has been “fairly

construed, with sensitivity to important state interests

and regulatory policies.” Id. at 421.

Then—if the federal rule is “sufficiently broad to

control the issue before the Court, such that there is a

‘direct collision’” between the federal and state rule—

the court must decide whether the rule is a valid

exercise of the Court’s power to prescribe rules under

the Rules Enabling Act. Id. at 422. Here again, a

reviewing court has an obligation to construe the

federal rule narrowly, where possible, to avoid an

interpretation that would “abridge, enlarge, or modify

a substantive right,” including one cloaked in the guise

of a state procedural rule. Id. at 422-23. If such a

“saving construction” is impossible, “federal courts

cannot apply the rule.” Id. at 423.

In dissent, Justice Ginsburg and three other

Justices concluded that there was “no unavoidable

conflict” between Rule 23 and New York’s law, id. at

452, and that “[w]hen no federal law or rule is

dispositive of an issue, and a state statute is outcome

affective . . . the Rules of Decision Act commands

application of the State’s law in diversity suits,” id. at

456. The four dissenting Justices therefore would have

held that New York’s law applies in federal court. Id.

at 458.

2. Anti-SLAPP Statutes

Three decades ago, Professors George Pring and

Penelope Canan warned of a “new and very disturbing

trend”: “Americans by the thousands [were] being sued,

simply for . . . ‘speaking out’ on political issues.”

George W. Pring & Penelope Canan, “Strategic

Lawsuits Against Public Participation” (“SLAPPs”): An

Introduction for Bench, Bar and Bystanders, 12

Bridgeport L. Rev. 937, 938 (1992); see also Penelope

Canan & George W. Pring, Research Note, Studying

Strategic Lawsuits Against Public Participation:

Mixing Quantitative and Qualitative Approaches, 22 L.

& Soc’y Rev. 385, 386 (1988). To describe such

lawsuits, Professors Pring and Canan coined the term

“Strategic Lawsuits Against Public Participation,” or

“SLAPP.”

The “disturbing trend” identified by Professors

Pring and Canan thirty years ago persists—and,

according to some, has intensified. See Jeremy Rosen

& Felix Shafir, Helping Americans to Speak Freely, 18

Federalist Soc’y Rev. 62, 70 (2017) (“Each year, more

and more people across the country are sued for

speaking out”); Timothy D. Biché, Note, Thawing

Public Participation: Modeling the Chilling Effect of

Strategic Lawsuits Against Public Participation and

Minimizing Its Impact, 22 S. Cal. Interdisc. L.J. 421,

422-23 (2013) (“Over the past forty years, there has

been a surge in the number of lawsuits brought in

retaliation for a citizen’s exercise of his or her right to

petition.”); Katelyn E. Saner, Note, Getting SLAPP-ed

in Federal Court: Applying State Anti-SLAPP Special

Motions to Dismiss in Federal Court After Shady

Grove, 63 Duke L.J. 781, 789 (2013) (“[T]he advent of

the Internet as a new means for speaking out publicly

has greatly increased the number of SLAPP suits.”).

Seeking to deter SLAPP suits, thirty states and the

District of Columbia have enacted anti-SLAPP

statutes, “to give more breathing space for free speech

about contentious public issues.” Abbas v. Foreign

Policy Grp., LLC, 783 F.3d 1328, 1332 (D.C. Cir. 2015);

see also Robert Post, Reply: Understanding the First

Amendment, 87 Wash. L. Rev. 549, 550 (2012) (most

states have enacted anti-SLAPP statutes “tak[ing]

account of the transaction costs” and chilling effects “of

litigating First Amendment rights”); Colin Quinlan,

Note, Erie and the First Amendment: State AntiSLAPP Laws in Federal Court After Shady Grove, 114

Colum. L. Rev. 367, 370 (2014) (SLAPP suits “inhibit[]

the exercise of First Amendment rights, because even

targets who persevere and eventually prevail on the

merits must spend substantial time and money to do

so, and the experience deters them from speaking out

in the future.”).

Common anti-SLAPP provisions include expedited

consideration of motions to dismiss, modification of the

standard of proof on such a motion, a stay discovery

while an anti-SLAPP motion is pending, and award of

attorney’s fees for a prevailing defendant.

3. New Mexico’s Anti-SLAPP Statute

New Mexico enacted its anti-SLAPP statute in

2001. The original bill was the product of bipartisan

sponsorship in New Mexico’s House of Representatives,

and—hardly coincidentally, but appropriately given

the facts of this case—emerged in the wake of two

high-profile lawsuits designed to “intimidat[e] citizen

opposition in public forums to land development

projects,” which two scholars have described as “classic

SLAPP suits.” Frederick M. Rowe & Leo M. Romero,

Resolving Land-Use Disputes by Intimidation: SLAPP

Suits in New Mexico, 32 N.M. L. Rev. 217, 219 (2002);

see also id. at 226-27 (describing passage of the law).

New Mexico’s anti-SLAPP statute declares that “it

is the public policy of New Mexico to protect the rights

of its citizens to participate in quasi-judicial

proceedings before local and state governmental

tribunals.” N.M. Stat. Ann. § 38-2-9.2. Finding that

lawsuits frustrating these rights “have been filed,” the

statue provides they “should be subject to prompt

dismissal or judgment to prevent the abuse of the legal

process and avoid the burden imposed by such baseless

lawsuits.” Id.; see also Cordova, 396 P.3d at 166

(“[T]he purpose of the statute is to protect citizens who

exercise their right to petition from the financial

burden of having to defend against retaliatory

lawsuits.”). Accordingly, the statute’s Subsection A—its

expedited disposition provision—states:

Any action seeking money damages against a

person for conduct or speech undertaken or

made in connection with a public hearing or

public meeting in a quasi-judicial proceeding . . .

is subject to a special motion to dismiss . . . that

shall be considered by the court on a priority or

expedited basis to ensure the early consideration

of the issues raised by the motion and to prevent

the unnecessary expense of litigation.

N.M. Stat. Ann. § 38-2-9.1(A).

Subsection B, the fee-shifting provision, provides

that the statute may be raised “as an affirmative

defense,” and that where a defendant raises “the rights

afforded” by the statute and prevails on a motion to

dismiss, “the court shall award reasonable attorney

fees and costs incurred by the moving party in

defending the action.” Id. § 38-2-9.1(B).2

B. Facts and Proceedings Below

Petitioner Damon Seawright is co-founder and

President

Petitioner

AmeriCulture,

Inc.

(“AmeriCulture”), an aquaculture company specializing

in the farming of Nile tilapia.

Since 1995,

AmeriCulture has operated a tilapia farm on its 15acre property in southwestern New Mexico, rearing

Although the provision is not implicated here, New Mexico’s

anti-SLAPP statute also provides for an expedited appeal from a

trial court’s order disposing of an anti-SLAPP motion, or from a

trial court’s “failure to rule on the motion on an expedited basis.”

N.M. Stat. Ann. § 38-2-9.1(C).

tilapia on pure, naturally heated well water drawn

from the geothermal aquifer beneath the land.

Respondent Los Lobos Renewable Power Company,

LLC (“Los Lobos”) is the sole member of Respondent

Lightning Dock Geothermal HI-01, LLC (“LDG”). C.A.

App. 116 (Am. Compl. ¶ 1). LDG is the current lessee

of a geothermal resources lease from the Bureau of

Land Management. Id. at 118 (Am. Compl. ¶ 9). LDG

uses the underground resources for geothermal power

generation. Id.

Some of the geothermal resources included in LDG’s

federal lease underlie AmeriCulture’s land. When

AmeriCulture began operations in 1995, it entered into

a Joint Facilities Operating Agreement (“JFOA”) with

LDG’s predecessor on the federal lease, reconciling

each party’s rights in the geothermal resources under

AmeriCulture’s land. C.A. App. 138-145. In that

agreement, LDG’s predecessor granted AmeriCulture

the right to “drill and develop” any geothermal

resources under AmeriCulture’s land up to a depth of

1,000 feet, so long as AmeriCulture’s activity is

intended for uses other than electric generation, like

supplying heated water to AmeriCulture’s fish-farming

facilities. C.A. App. 140. LDG is now the successor to

the federal lease and assignee of its predecessor’s

rights and obligations under the JFOA. C.A. App. 11819.

The dispute giving rise to this case centers on

Petitioners’ participation in public proceedings related

to activities that Respondents planned to carry out on

land not covered by the JFOA. App. 3a-4a; C.A. App.

171. In 2011, AmeriCulture was among the dozens of

parties who filed protests with the New Mexico State

Engineer relating to Respondents’ application for a

permit relating to wells that would produce water for

use at their power plant. C.A. App. 41, 20104. Respondents also separately applied to the New

Mexico Oil Conservation Division for permits relating

to three shallow injection wells, all of which were off

the property covered by the JFOA. C.A. App. 4757. AmeriCulture also filed a protest to that

application. C.A. App. 58.

Six days after Petitioners filed their protest with

the Oil Conservation Division, Respondents

commenced a lawsuit in federal district court against

them, asserting claims based on their petitioning

activities, App. 3a-4a; C.A. App. 127-28 (Am. Compl.

¶ 44), and seeking declaratory, injunctive and

monetary relief. C.A. App. 129-136.3 Expressly

invoking their rights under New Mexico’s anti-SLAPP

statute, Petitioners moved to dismiss the complaint,

seeking both expedited dismissal and an award of

attorneys’ fees. App. 4a, 43a; C.A. App. 29-40.

Without reaching the substance of Petitioners’ antiSLAPP motion, the District Court denied it, holding

that “New Mexico’s Anti-SLAPP statute is a procedural

provision that does not apply in the courts of the

United States.” App. 35a, 43a. However, the District

Court “observe[d] disagreement among the courts of

appeals” about whether state anti-SLAPP provisions

apply in federal court. App. 46a; see id. at 46a-47a

Respondents invoked the District Court’s jurisdiction under 28

U.S.C. § 1332, alleging complete diversity among the parties, and

that the amount in controversy exceeds $75,000 excluding interest

and costs. App. 42a-43a.

(reviewing holdings of the First and Ninth Circuits in

conflict with that of the D.C. Circuit).

Petitioners sought leave to file an interlocutory

appeal to the Tenth Circuit. App. 35a. The District

Court granted that motion, holding that its order

denying the anti-SLAPP motion to dismiss was

immediately appealable under the collateral order

doctrine, App. 35a-37a, and separately certifying its

order for interlocutory appeal pursuant to 28 U.S.C.

§ 1292(b), App. 38a-39a. As the District Court

explained, it reached that latter conclusion because

“the applicability of state Anti-SLAPP statutes in

diversity cases is an important question of law about

which the circuits are divided.” App. 39a.

The Tenth Circuit affirmed.4 After noting that

“Justice Stevens’ concurrence in Shady Grove provides

the controlling analysis in the Tenth Circuit” on

questions of state-law application in federal diversity

suits, App. 17a n.3, the panel explained its view that

an “overriding consideration” in such cases is whether

the state provision at issue would be outcomedeterminative. App. 16a-17a. According to the panel,

“[t]his means that in a federal diversity action, the

district court applies state substantive law—those

rights and remedies that bear upon the outcome of the

suit—and federal procedural law—the processes or

modes for enforcing those substantive rights and

remedies.” App. 17a.

The panel held that it had appellate jurisdiction under the

collateral order doctrine, after concluding Petitioners had not

timely applied to the Tenth Circuit for permission to file an

interlocutory appeal under 28 U.S.C. § 1292(b). App. 8a-16a.

The panel observed that “distinguishing between

procedural and substantive law is not always a simple

task,” and that “[w]here the line between procedure

and substance is unclear, the Supreme Court has set

forth a multi-faceted analysis designed to prevent both

forum shopping and the inequitable administration of

the laws.” App. 17a-18a.

The panel, however, disclaimed the need for any

such analysis in the case of New Mexico’s anti-SLAPP

statute, calling it “hardly a challenging endeavor” to

determine whether the statute’s provisions should

apply in federal court, “assuming one is able to

read.” App. 18a.

The panel concluded that New Mexico’s anti-SLAPP

statute “is nothing more than a procedural mechanism

designed to expedite the disposal of frivolous

lawsuits” (App. 18a; see also App. 27a), and therefore

may not be applied in federal court. The panel also

determined the statute’s fee-shifting provision may not

be applied in federal court, calling the provision

“entirely meaningless absent” the expedited motion-todismiss provision,5 and merely a “sanction” “designed

not to compensate for legal services but to vindicate

First Amendment rights threatened by a kind of

unwarranted or specious litigation.” App. 23a.

The panel did not acknowledge or discuss the statute’s

severability provision, N.M. Stat. Ann. § 38-2-9.1(F). See App.

19a.

REASONS FOR GRANTING THE PETITION

I. There Is a Circuit Split on the Applicability of

State Anti-SLAPP Fee-Shifting Provisions in

Federal Court

Nearly every jurisdiction which has enacted an

anti-SLAPP statute has provided for an award of

attorneys’ fees to a prevailing defendant.6 Both before

and after Erie, this Court has made clear that a state

statute awarding attorneys’ fees to a prevailing party

“reflects a substantial policy of the state,” which

“should be followed” in diversity litigation unless it

“run[s] counter to a valid federal statute or rule of

court” which “usually it will not.” Alyeska Pipeline

Serv. Co. v. Wilderness Society, 421 U.S. 240, 259 n.31

(1975) (quoting 6 Moore, Federal Prac. 54.77(2), at

1712-13 (2d ed. 1974)); see People of Sioux Cnty. v.

Nat’l Surety Co., 276 U.S. 238, 243 (1928); see also

Chambers v. NASCO, Inc., 501 U.S. 32, 52 (1991) (“fee-

See Ariz. Rev. Stat. Ann. § 12-752(D); Ark. Code Ann. § 16-63506(b)(1); Cal. Civ. Proc. Code § 425.16(c)(1); Conn. Gen. Stat.

§ 52-196a(f); Del. Code Ann. tit. 10, § 8138(a)(1); D.C. Code § 165504(a); Fla. Stat. § 768.295(4); Ga. Code Ann. § 9-11-11.1(b.1);

Haw. Rev. Stat. § 634F-2(8)(B); 735 Ill. Comp. Stat. 110/25; Ind.

Code § 34-7-7-7; Kan. Stat. Ann. § 60-5329(g); La. Code Civ. Proc.

Ann. art. 971(b); Me. Rev. Stat. Ann. tit. 14, § 556; Mass. Gen.

Laws ch. 231 § 59(H); Minn. Stat. § 554.04(1); Mo. Rev. Stat.

§ 537.528; Neb. Rev. Stat. § 25-21,243(1); Nev. Rev. Stat.

§ 41.670(1)(a); N.M. Stat. Ann. § 38-2-9.1(B); N.Y. Civ. Rights Law

§ 70-a(1)(a); Okla. Stat. tit. 12, § 1438(A)(1); Or. Rev. Stat.

§ 31.152(3); 27 Pa. Cons. Stat. § 7707; R.I. Gen. Laws § 9-33-2(d);

Tenn. Code Ann. § 4-21-1003(c); Tex. Civ. Prac. & Rem. Code

§ 27.009(a)(1); Utah Code Ann. § 78B-6-1405(1)(a); Vt. Stat. Ann.

tit. 12, § 1041(f)(1); Va. Code Ann. § 8.01-223.2(B).

shifting rules . . . embody a [state] substantive policy”

when a statute “permits a prevailing party in certain

classes of litigation to recover fees”).

Consistent with that understanding, several

circuits have applied the fee-shifting provisions of antiSLAPP statutes. Two circuits, however, including the

Tenth Circuit in the decision below, have concluded

otherwise.

A. Several Circuits Have Held That AntiSLAPP Fee-Shifting Provisions Apply in

Federal Court

In United States ex rel. Newsham v. Lockheed

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

Ninth Circuit determined that certain provisions of the

California anti-SLAPP statute, Cal. Civ. P. Code

§ 425.16, must apply in federal court. Id. at 973.

Among those was Cal. Civ. P. Code § 425.16(c), which

provides that a defendant who prevails with an antiSLAPP motion “shall be entitled to his or her

attorney’s fees and costs.”

Cal. Civ. P. Code

§ 425.16(c). Newsham, 190 F.3d at 972-73. The Ninth

Circuit observed that the fee-shifting provision of

California’s anti-SLAPP statute did not conflict with

any federal rule. Id. Next, the court determined that

California’s anti-SLAPP law furthered substantive

interests, and that applying the law in federal court

advanced the “twin purposes” of Erie—discouraging

forum-shopping

and

avoiding

inequitable

administration of the law. Id. at 973. Unpreempted by

a valid federal law, California’s anti-SLAPP feeshifting provision therefore applied in federal court.

Id.

Since Newsham, the Ninth Circuit has “repeatedly

held that the [California] anti-SLAPP provisions

governing attorneys’ fees apply to state-law claims in

federal court.” Law Offices of Bruce Altschuld v.

Wilson, 632 Fed. App’x 321, 322 (9th Cir. 2015)

(affirming an anti-SLAPP fee award and citing cases);

see also Khai v. Cnty. of L.A., --- Fed. App’x ---, 2018

WL 1476646, at *2 (9th Cir. Mar. 27, 2018) (affirming

award of attorneys’ fees, which “are mandatory for a

successful anti-SLAPP motion”).7 And the Ninth

Circuit has extended its holding in Newsham to apply

to Oregon’s anti-SLAPP statute, including its feeshifting provision. See Northon v. Rule, 637 F.3d 937,

The Ninth Circuit subsequently reaffirmed Newsham while

declining to reconsider its holding en banc. See Makaeff v. Trump

Univ., LLC, 715 F.3d 254 (9th Cir. 2013), reh’g en banc denied,

736 F.3d 1180 (9th Cir. 2013). Concurring in the denial of

rehearing en banc, Judges Wardlaw and Callahan (joined by

Judges Fletcher and Gould) reaffirmed the reasoning of Newsham,

explaining it was unaltered by Shady Grove. 736 F.3d at 1181

(Wardlaw, J., and Callahan, J., concurring in the denial of

rehearing en banc). Judge Watford dissented from the court’s

denial of rehearing en banc, joined by then-Chief Judge Kozinski

and Judges Paez and Bea. In their view, Federal Rules of Civil

Procedure 12 and 56 together “establish the exclusive criteria for

testing the legal and factual sufficiency of a claim in federal

court.” Id. at 1188 (Watford, J., dissenting from denial of

rehearing en banc). But the dissent made no specific argument

that California’s anti-SLAPP fee-shifting provision should not

apply in federal court. Id. at 1188-92.

938-39 (9th Cir. 2011); Gardner v. Martino, 563 F.3d

981, 991 (9th Cir. 2009).8

Like the Ninth Circuit, the First Circuit has

determined that state anti-SLAPP fee-shifting

provisions apply in federal court.

In Godin v.

Schencks, 629 F.3d 79 (1st Cir. 2010), the court held

that Maine’s anti-SLAPP statute, Me. Rev. Stat. Ann.

§ 556, which includes a provision for attorneys’ fees to

prevailing defendants, “must be applied” in federal

court. Id. at 81. The Godin court concluded that

Federal Rules of Civil Procedure 12 and 56 were not

sufficiently broad “as to cover the issues within the

scope of” Maine’s anti-SLAPP statute, and that the

dual purposes of Erie—discouragement of forumshopping and avoidance of inequitable administration

of the laws—“are best served” by enforcement of the

anti-SLAPP statute in federal court. Id. at 87-88. The

court also observed that declining to apply Maine’s

statute would “result in an inequitable administration

of justice between a defense asserted in state court and

the same defense asserted in federal court,” specifically

noting that doing so would allow a plaintiff filing in

federal court to “circumvent any liability for a

defendant’s attorney’s fees or costs.” Id. at 92.

Although it concluded that the Maine anti-SLAPP

statute was “so intertwined with a state right or

The Ninth Circuit had also applied Washington’s anti-SLAPP

statute. See Phoenix Trading, Inc. v. Loops LLC, 732 F.3d 936,

941-42 (9th Cir. 2013). However, in 2015, the Washington

Supreme Court struck down the entire law because one of its

provisions violated the state’s constitutional guarantee of a trial

by jury, and the provision was not severable. Davis v. Cox, 351

P.3d 862, 864 (Wash. 2015).

remedy that it functions to define the scope of the

state-created right,” and that no properly interpreted

federal rule supplanted the Maine fee-shifting

provision, id. at 89, the First Circuit noted that “if

Rules 12(b)(6) and 56 were thought to preempt

application of all of Section 556, a serious question

might be raised under the Rules Enabling Act,” id. at

90.9

The Second Circuit too has found anti-SLAPP feeshifting provisions applicable in federal court. In

Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138

(2d Cir. 2013), the Second Circuit confronted

California’s anti-SLAPP statute and, like the Ninth

Circuit, held that it applies in federal court. The court

of appeals explained that “federal courts apply those

state rules of decision that are ‘substantive’ under Erie,

and are consistent with federal law.” Id. at 152.

Because the anti-SLAPP statute was “a substantive

policy favoring the special protection of certain

defendants from the burdens of litigation because they

engaged in constitutionally protected activity,” id. at

148, the court held that the district court erred in

concluding the anti-SLAPP rule did not apply, id. at

156. Then, in Adelson v. Harris, 774 F.3d 803 (2d Cir.

2014), the Second Circuit held that Nevada’s antiSLAPP fee-shifting provision, Nev. Rev. Stat § 41.670,

applies in federal court, calling its application

The First Circuit has extended Godin’s holding concerning

Maine’s anti-SLAPP statute to Massachusetts’s anti-SLAPP

statute—which also includes a fee-shifting provision. Steinmetz v.

Coyle & Caron, Inc., 862 F.3d 128 (1st Cir. 2017) (applying Mass.

Gen. Laws ch. 231, § 59H).

“unproblematic.”

Id. at 809

Synergistics, 718 F.3d at 153)).

(citing

Liberty

And, citing the Ninth Circuit’s holding in Newsham,

the Fifth Circuit has applied Louisiana’s anti-SLAPP

statute, La. Code Civ. P. art. 971, in federal court.

Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164,

168-69, 182-83 (5th Cir. 2009) (ordering dismissal of

plaintiff’s complaint based on the statute’s burdenshifting framework, and remanding the case “for a

determination of [defendant’s] entitlement to fees and

costs” under the anti-SLAPP law’s fee-shifting

provision).10

B. Two Circuits Have Held That Anti-SLAPP

Fee-Shifting Provisions Are Inapplicable in

Federal Court

Parting ways with several of their sister circuits,

the Tenth Circuit in the decision below joined the D.C.

Circuit in concluding that a state anti-SLAPP feeSeveral times since Henry the Fifth Circuit has applied a state

anti-SLAPP statute in deciding the case before it. See, e.g., Cuba

v. Pylant, 814 F.3d 701, 711 (5th Cir. 2016) (“The TCPA [Texas

Citizen Participation Act] applies to these claims”). In Cuba, the

court observed: “The Henry court reasoned that even though the

Louisiana anti-SLAPP statute was built around a procedural

device—a special motion to dismiss—it nonetheless applied in

federal court under the Erie doctrine because it was functionally

substantive.” Id. at 706 n.6. Noting a circuit split, Judge Graves

dissented in Cuba, arguing the TPCA should not apply in federal

court, citing the D.C. Circuit’s decision in Abbas. Id. at 719-20 &

n.1 (“Our sister circuits that have considered this issue have

split”). Some Fifth Circuit panels applying state anti-SLAPP laws

have assumed they apply without expressly deciding the question.

See, e.g., Block v. Tanenhaus, 867 F.3d 585, 589 (5th Cir. 2017).

shifting provision may not be applied in federal court.

See App. 16a-28a; see also supra at 16.

In Abbas, the D.C. Circuit held that the D.C. antiSLAPP statute may not be applied in federal court.

Abbas, 783 F.3d at 1333-37. Believing that the statute

and Federal Rules of Civil Procedure 12 and 56

“answer the same question,” id. at 1337, the Abbas

court proceeded to consider whether those federal rules

are valid. Noting that Shady Grove’s fractured

opinions failed to produce binding precedent regarding

the “test for whether a Federal Rule violates the Rules

Enabling Act,” id. at 1336-37, the Abbas court adopted

the approach described in Justice Scalia’s plurality

opinion, which “strictly followed” Sibbach v. Wilson &

Co., 312 U.S. 1, 14 (1941), under which “any federal

rule that ‘really regulates procedure’ is valid under the

Rules Enabling Act.” Abbas, 783 F.3d at 1337.

Concluding that Federal Rules of Civil Procedure 12

and 56 “really regulate[] procedure,” the Abbas court

determined they are “valid under the Rules Enabling

Act” and preempt state rules that attempt to answer

the “same question” differently. Id. at 1337 (citing

Sibbach, 312 U.S. at 14). The court accordingly found

that the district court had erred in granting an antiSLAPP motion to dismiss. Id. at 1337. And, even

though the D.C. Circuit affirmed dismissal of the

complaint on other grounds, the court refused to award

fees or costs to the prevailing defendant, which were

authorized by the D.C. anti-SLAPP law. Abbas, 783

F.3d at 1335 n.5. Instead, the court held that the feeshifting provision could only apply in federal court if

the other anti-SLAPP provision did as well. Abbas,

783 F.3d at 1335 n.3.

II. There Is a Circuit Split on the Applicability of

State Anti-SLAPP Expedited Motions in

Federal Court

Twenty-four of the thirty-one anti-SLAPP

jurisdictions have included provisions calling for some

form of expedited consideration of anti-SLAPP

motions.11 Two circuits, covering seven of the states

that have enacted such provisions, have determined

these expedited motion to dismiss provisions

harmonize (or can be harmonized) with the Federal

Rules of Civil Procedure and should apply in federal

court. Two circuits—including the Tenth Circuit, in

the decision below—covering five of the jurisdictions

that have enacted such provisions, have determined

they are inapplicable in federal court.

As detailed above (supra at 20-21), in Godin, 629

F.3d at 89-90, the First Circuit held that Maine’s antiSLAPP statute, Me. Rev. Stat. § 556, which calls for

expedited consideration of an anti-SLAPP motion,

applies in federal court. The Fifth Circuit reached the

See Ariz. Rev. Stat. Ann. § 12-752(A); Ark. Code Ann. § 16-63507(a)(2); Cal. Civ. Proc. Code § 425.16(f); Conn. Gen. Stat. § 52196a(e); D.C. Code § 16-5502(d); Fla. Stat. § 768.295(4); Ga. Code

Ann. § 9-11-11.1(d); Haw. Rev. Stat. § 634F-2(1); 735 Ill. Comp.

Stat. 110/20(a); Ind. Code § 34-7-7-9(a)(2); Kan. Stat. Ann. §§ 605320(d), (f); La. Code Civ. Proc. Ann. art. 971(C)(3); Me. Rev. Stat.

Ann. tit. 14, § 556; Md. Code Ann., Cts. & Jud. Proc. § 5-807(d)(1);

Mass. Gen. Laws ch. 231, § 59(H); Mo. Rev. Stat. § 537.528(1);

Neb. Rev. Stat. § 25-21,245; Nev. Rev. Stat. § 41.660(3)(f); N.M.

Stat. Ann. § 38-2-9.1(A); Okla. Stat. tit. 12, §§ 1433(A)-(C); Or.

Rev. Stat. § 31.152(1); Tex. Civ. Prac. & Rem. Code Ann.

§§ 27.004(a), 27.007(b); Utah Code Ann. § 78B-6-1404(1)(b); Vt.

Stat. Ann. tit. 12, § 1041(d).

same conclusion with regard to Louisiana’s antiSLAPP law, and its expedited motion-to-dismiss

provision, in Henry, 566 F.3d at 168-69.

The Tenth Circuit in the decision below, and the

D.C. Circuit, disagreed—as explained above (supra at

16, 23-24). See App. 19a-20a (“All subsection A

demands is expedited procedures designed to promptly

identify and dispose of [frivolous] lawsuits.”); Abbas,

783 F.3d at 1337 (D.C. Cir. 2015) (holding that the

District of Columbia’s expedited anti-SLAPP motion

does not apply in federal court).

III.

The Decision Below Was Incorrect

A. Anti-SLAPP

Fee-Shifting

Provisions

Should Apply in Federal Court

The Tenth Circuit’s refusal to apply New Mexico’s

anti-SLAPP fee-shifting provision was incorrect—and

can find little support in this Court’s precedents.

No federal rule or law even arguably conflicts with

New Mexico’s anti-SLAPP fee-shifting provision12—and

Although the Tenth Circuit did not cite Federal Rule of Civil

Procedure 54, it creates a default rule that prevailing federal

litigants are entitled to costs, but does not itself create an

entitlement to fees. See Fed. R. Civ. P. 54(d)(2)(B)(ii) (motion for

fees must “specify . . . statute, rule, or other grounds entitling

the movant to the award”); see also Medical Protective Co. v.

Pang, 740 F.3d 1279, 1283 (9th Cir. 2013) (“Rule 54 provides a

federal procedural mechanism for moving for attorney’s fees that

are due under state law.”).

the Tenth Circuit cited none.13 See Shady Grove

Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S.

393, 410 (2010) (Scalia, J.) (“the framework we apply

. . . requires first, determining whether the federal and

state rules can be reconciled”).

Because no federal rule answers the question

whether Petitioners may recover attorneys’ fees if they

prevail, New Mexico’s fee-shifting provision must

govern because it is part of the State’s substantive law.

Like other States’ analogous provisions, New

Mexico’s Subsection B “creates a new liability where

none existed before.” Cohen v. Beneficial Indus. Loan

Corp., 337 U.S. 541, 555 (1949). It does not regulate

“merely the manner and the means by which a right to

recover, as recognized by the State, is enforced”—it is a

The decision below made no attempt to argue that a federal

rule conflicts with the fee-shifting provision, and no federal rule

does. But even if there were an arguable conflict, the fee shifting

provision is “so intertwined with a state right or remedy that it

functions to define the scope of the state created right” and so

“cannot be displaced by” the federal rules. Godin, 629 F.3d at 89

(quoting Shady Grove, 559 U.S. at 423 (Stevens, J., concurring)).

“Further, if [the federal rules] were thought to preempt

application of” that provision, “a serious question might be raised

under the Rules Enabling Act,” id., as it is highly doubtful

whether the Act permits this Court to preempt a state’s

mandatory fee-shifting provision. Faced with a (hypothetical)

colorable argument that some federal rule did conflict with a

state’s fee-shifting provision, the proper course would be for this

Court to adopt a “saving construction” of the federal rule to

comport with the Rules Enabling Act’s command that the federal

rule “shall not abridge . . . or modify any substantive right”—

including substantive rights based on state law. Shady Grove,

559 U.S. at 422-23 (Stevens, J., concurring).

“right to recover.” Guaranty Trust, 326 U.S. at 109.

See also Chambers, 501 U.S. at 52 (“fee-shifting

rules . . . embody a [state] substantive policy” when a

statute “permits a prevailing party in certain classes of

litigation to recover fees”); 17A Moore’s Federal

Practice–Civil § 124.07[3][b] (2008) (“State law

generally governs a litigant’s entitlement to an award

of attorney’s fees because attorney fee statutes are

substantive state law.”) (citing Alyeska, 421 U.S. at 259

n.31); 10 Wright & Miller, Federal Practice &

Procedure § 2669 (3d ed. 2014) (“[C]ases holding state

law controlling . . . appear analytically sounder. . . .

[and] particularly appropriate . . . when state law

provides for the recovery of an attorney's fee as a part

of the claim being asserted.”).

As such, “the accident of suit by a non-resident

litigant in federal court instead of in a State court a

block away” cannot be allowed to determine New

Mexico’s prerogative to create and enforce that right to

recover. Guaranty Trust, 326 U.S. at 109. The First

Circuit correctly recognized this in Godin, when it

observed that declining to apply Maine’s anti-SLAPP

statute would “result in an inequitable administration

of justice between a defense asserted in state court and

the same defense asserted in federal court,” specifically

noting that doing so would allow a plaintiff filing in

federal court to “circumvent any liability for a

defendant’s attorney’s fees or costs.” 629 F.3d at 92.

Applying New Mexico’s fee-shifting provision in federal

court would advance Erie’s “twin aims”—

“discouragement of forum-shopping and avoidance of

inequitable administration of the laws.” Hanna, 380

U.S. at 468.14

The decision below “represent[s] a serious

encroachment on state-created rights in the absence of

a clear countervailing federal policy.” 10 Wright &

Miller, Federal Practice & Procedure § 2669 (3d ed.

2014); cf. Shady Grove Orthopedic Assocs., P.A. v.

Allstate Ins. Co., 559 U.S. 393, 443 (2010) (Ginsburg,

J., dissenting) (This Court’s “decisions instruct over

and over again that, in the adjudication of diversity

cases, state interests . . . warrant our respectful

consideration.”). The purpose of New Mexico’s antiSLAPP statute “is to protect citizens who exercise their

right to petition from the financial burden of having to

defend against retaliatory lawsuits.” Cordova, 396

P.3d at 165. That objective was frustrated by the

Tenth Circuit’s refusal to apply the statute’s feeshifting provision in federal court.15

The Tenth Circuit concluded that New Mexico intended

Subsection B as a “sanctions” provision, which the court therefore

viewed as “procedural.” App. 22a. The better reading is that

Subsection B is exactly what it says it is: a state-law provision

awarding attorneys’ fees to all prevailing defendants whose speech

or public participation has become the target of litigation. But in

any event, a proper analysis under Erie “looks not to

the labels but to the content of state rules of decision.” Liberty

Synergistics, 718 F.3d at 152.

The New Mexico Supreme Court has held that attorneys’ fees

and costs made available under the State’s anti-SLAPP statute

are available even when dismissal is based on federal law. See

Cordova, 396 P.3d at 162 (affirming dismissal based on the First

Amendment, but reversing lower court’s determination that antiSLAPP statute did not apply, and holding that “Petitioners are

statutorily entitled to an award of attorney fees”).

B. Anti-SLAPP Provisions for Expedited

Consideration of Motions Should Apply in

Federal Court

Subsection A of New Mexico’s anti-SLAPP statute

provides that a SLAPP suit “is subject to a special

motion to dismiss, motion for judgment on the

pleadings, or motion for summary judgment that shall

be considered by the court on a priority or expedited

basis to ensure the early consideration of the issues

raised by the motion and to prevent the unnecessary

expense of litigation.” N.M. Stat. Ann. § 38-2-9.1(A).

The Tenth Circuit held that Subsection A is

“procedural” as a matter of New Mexico law and

therefore inapplicable in federal court. But, as with its

assessment of the statute’s fee-shifting provision, the

court’s analysis and conclusion are both incorrect.

No federal statute or rule conflicts with the New

Mexico anti-SLAPP statute’s expedited motion to

dismiss provision.

Federal Rules of Civil Procedure 12 and 56, which

govern aspects of motions to dismiss and for summary

judgment in federal court, are silent about the timing

of a court’s consideration of such motions. Fed. R. Civ.

P. 12, 56. Unlike in Shady Grove, they do not answer

the “same question.” 559 U.S. at 399.

The panel’s contrary holding ignored this, focusing

entirely on the supposed “procedural” character of New

Mexico’s expedited motion to dismiss provision. But

“[r]ules which lawyers call procedural do not always

exhaust their effect by regulating procedure.” Cohen,

337 U.S. at 555. New Mexico’s expedited-motion-todismiss provision is “so intertwined with a state right

or remedy that it functions to define the scope of the

state created right,” and is appropriately viewed as

“substantive” for purposes of an Erie analysis. Shady

Grove, 559 U.S. at 423 (Stevens, J., concurring).

The Tenth Circuit’s refusal to give effect to the right

to expedited disposition conferred by New Mexico’s

anti-SLAPP statute also runs counter to wellestablished federal law that a federal court “cannot

give a [state-created claim] longer life in the federal

court than it would have had in the state court without

adding something to the cause of action.” Ragan v.

Merchants Transfer & Warehouse Co., 337 U.S. 530,

533-34 (1949).

In a closer case than this one, a federal rule of

procedure arguably in conflict with a state law

provision would have to be read with “sensitivity to

important state interests,” Shady Grove, 559 U.S. at

421 (Stevens, J., concurring)—to both faithfully

interpret the Rules Enabling Act, and avoid if possible

a reading that would render the federal rule invalid,

id. at 422-24. Those considerations, combined with the

longstanding presumption that federal law does not

“cavalierly” preempt state law, Wyeth v. Levine, 555

U.S. 555, 565 n.3 (2009), and the special force of that

presumption in the Rules Enabling Act area, reinforce

the conclusion that there is no conflict here.

In any event, reconciling Subsection A with Federal

Rule of Civil Procedure 12, so that both can apply, does

not present a serious problem. They “can exist side by

side, . . . each controlling its own intended sphere of

coverage without conflict.” Walker, 446 U.S. at 752. A

federal court can plainly “give effect to the substantive

thrust” of Subsection A “without untoward alteration of

the federal scheme” governing dispositive motions.

Gasperini, 518 U.S. at 426.

IV.

This Case Is an Excellent Vehicle for

Resolving the Circuit Split Regarding the

Important Questions Presented

The proliferation of anti-SLAPP statutes is one of

the most significant statutory developments affecting

speech and public debate in recent decades. And as

anti-SLAPP statutes have multiplied, so have cases

about them. See Travelers Casualty Ins. Co. of Am. v.

Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (Kozinski,

J., concurring) (reporting that anti-SLAPP “cases have

more than tripled over the last ten years”).

But the well-recognized divide among the courts of

appeals about their application in federal court16 is

promoting forum-shopping and undercutting the

efficacy of anti-SLAPP laws.

Given the prevalence of anti-SLAPP laws and their

impact on the exercise of First Amendment rights, the

See, e.g., 19 Wright & Miller, Federal Practice & Procedure

§ 4509 (3d ed. 2016) (discussing “divergent case law currently

surrounding statutes meant to curb the use of . . . SLAPP

lawsuits,” and observing that “[r]esolution of some of the

questions raised by anti-SLAPP statutes may require resolution

by the Supreme Court”); William James Seidleck, Comment, AntiSLAPP Statutes and the Federal Rules: Why Preemption Analysis

Show They Should Apply in Federal Diversity Suits, 166 U. Pa. L.

Rev. 547, 548 (2018) (“The anti-SLAPP circuit split now offers the

Supreme Court a unique opportunity to correct the broader

confusion over the relationship between the Federal Rules of Civil

Procedure and state laws.”); David C. Thornton, Comment,

Evaluating Anti-SLAPP Protection in the Federal Arena: An

Incomplete Paradigm of Conflict, 27 Geo. Mason U. Civ. Rts. L.J.

119, 121 (2016) (“circuit courts are divided in their determination

of whether state anti-SLAPP laws apply in federal courts”); see

also Travelers Casualty, 831 F.3d at 1183 (Kozinski, J.,

concurring) (Observing after Abbas was decided by the D.C.

Circuit: “Now we’ve got a circuit split, and we’re standing on the

wrong side.”); Cuba v. Pylant, 814 F.3d 701, 718 n.1 (5th Cir.

2016) (Graves, J., dissenting) (“Our sister circuits that have

considered this issue have split, with some deciding that federal

courts may apply Anti-SLAPP statutes.”); Mitchell v. Hood, 614

Fed. App’x. 137, 139 n.1 (5th Cir. 2015) (“there is disagreement

among courts of appeals as to whether state anti-SLAPP laws are

applicable in federal court at all”); Intercon Solutions, Inc. v. Basel

Action Network, 791 F.3d 729, 731 (7th Cir. 2015) (noting

“disagreement among appellate judges”); Abbas, 783 F.3d at 1335

(acknowledging contrary decisions by the First, Fifth and Ninth

Circuits).

disparate treatment of states by their home federal

circuits concerning application of their anti-SLAPP

statutes is sufficient to warrant this Court’s

intervention. But the problem is even more acute. A

California speaker can rely on the Ninth Circuit to

afford her the protection of her home state’s antiSLAPP law. But what if that California speaker is

sued in federal court in the Tenth Circuit or the

District of Columbia? Even if local choice-of-law rules

mandate the application of California law, local circuit

precedent holding anti-SLAPP provisions inapplicable

in federal court would deny her all the California law

to which she is entitled. Cf. Adelson, 774 F.3d at 809

(Second Circuit analyzing, independently and de novo,

the applicability of Nevada’s anti-SLAPP statute in

federal court, despite the Ninth Circuit’s earlier

resolution of the issue).

This case presents the Court with an opportunity to

consider the applicability in federal court of two

specific, but widely implemented, anti-SLAPP

provisions—without having to decide the applicability

in federal court of every feature of state anti-SLAPP

laws.17 Providing much-needed guidance to the lower

Some circuits have taken a piecemeal approach in evaluating

the applicability of particular anti-SLAPP provisions in federal

court. The Second Circuit has held that two provisions of

Nevada’s anti-SLAPP statute are applicable in federal court, but

explained that a third, which bars discovery upon filing of an antiSLAPP motion, “may present a closer question.” Adelson, 774

F.3d at 809. The Ninth Circuit has held that the California antiSLAPP statute’s fee-shifting and “special motion to strike”

provisions must apply in federal court, Verizon Delaware, Inc. v.

Covad Commc’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004), but has

separately held that the statute’s discovery-limiting provisions

courts will enable those courts to address disputes

about other anti-SLAPP provisions informed by, and

with the benefit of, this Court’s views about the

questions presented in this petition.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

SCOTT E. GANT

Counsel of Record

AARON E. NATHAN

BOIES SCHILLER FLEXNER LLP

1401 New York Avenue, NW

Washington, DC 20005

(202) 237-2727

sgant@bsfllp.com

JULY 2018

and limitations on amendment must not, id.; Metabolife Int’l, Inc.

v. Wornick, 264 F.3d 832, 845 (9th Cir. 2001). The Eleventh

Circuit has recognized the circuit splits discussed here, but held

that a different provision—the Georgia anti-SLAPP statute’s theneffective requirement that a complaint be accompanied by an

attorney’s “written verification under oath,” Ga. Code Ann. § 9-1111.1(b) (West 2015)—could not apply in federal court because it

was preempted by Federal Rule of Civil Procedure 11. Royalty

Network, Inc. v. Harris, 756 F.3d 1351, 1357-62 (11th Cir. 2014);

but see id. at 1362-63 (Jordan, J., concurring).

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