Petition for Writ of Certiorari — Thomas Christopher Retzlaff, Petitioner v. Jason Lee Van Dyke
Supreme Court briefMay 4, 2020
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No.
In the Supreme Court of the United States
THOMAS CHRISTOPHER RETZLAFF,
PETITIONER
v.
JASON LEE VAN DYKE
ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
PETITION FOR A WRIT OF CERTIORARI
JEFFREY L. DORRELL
HANSZEN LAPORTE
14201 Memorial Drive
Houston, Texas 77079
(713) 522-9444
jdorrell@hanszenlaporte.
com
DANIEL R. ORTIZ
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW
SUPREME COURT
LITIGATION CLINIC
580 Massie Road
Charlottesville, VA
22903
(434) 924-3127
dortiz@law.virginia.edu
I
QUESTION PRESENTED
Texas enacted the Texas Citizens Participation Act
(“TCPA”) to “encourage and safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government
to the maximum extent permitted by law and, at the
same time, protect the rights of a person to file meritorious lawsuits for demonstrable injury.” Tex. Civ.
Prac. & Rem. Code Ann. § 27.002 (West 2015). Like
other States’ anti-SLAPP (“Strategic Litigation
Against Public Participation”) statutes, it creates “a
speedy [way] for resolving litigation that may impinge
on a party’s exercise of th[ese] rights.” Klocke v. Watson, 936 F.3d 240, 244 (5th Cir. 2019). The question
presented is:
Whether under the doctrine of Erie Railroad Co. v.
Tompkins, 304 U.S. 64 (1938), state anti-SLAPP statutes apply in federal diversity cases, as the First, Second, and Ninth Circuits hold, or do not apply, as the
Fifth, Tenth, Eleventh, and D.C. Circuits hold.
II
RELATED PROCEEDINGS
1. Van Dyke v. Retzlaff, No. 18-2793-431 (Tex. 431st
D. Ct.). On March 28, 2018, plaintiff filed the original
proceeding in Texas District Court.
2. Van Dyke v. Retzlaff, No. 4:18-CV-247 (E.D. Tex.).
On July 24, 2018, the district court denied petitioner’s
motion to dismiss pursuant to the TCPA.
3. Van Dyke v. Retzlaff, No. 18-40710 (5th Cir.). On
October 22, 2019, the court of appeals affirmed the district court and remanded for further proceedings.
III
TABLE OF CONTENTS
Page
Question Presented................................................. I
Related Proceedings ............................................. II
Table Of Authorities ............................................ VI
Opinions Below ...................................................... 1
Jurisdiction ............................................................ 1
Relevant Statutory Provisions .............................. 1
Statement ............................................................... 1
A. Statutory Background ................................ 1
B. Procedural Background .............................. 4
Reasons For Granting The Petition ...................... 5
I. There Is A Deep And Acknowledged Conflict
Among The Circuits As To Whether State
Anti-SLAPP Laws Apply In Federal Diversity Actions ....................................................... 5
A. Three Circuits Hold That Federal Courts
Exercising Jurisdiction Over State Law
Claims Must Apply State Anti-SLAPP
Laws............................................................. 7
B. Four Circuits Hold That State AntiSLAPP Provisions Do Not Apply In
Federal Court ............................................ 11
II. The Decision Below Is Wrong ........................ 13
A. The TCPA Applies In Federal Court
Because It Does Not “Answer The Same
Question” As Any Federal Rule ................ 13
IV
TABLE OF CONTENTS
Page
B. Taken As A Whole, The TCPA Applies In
Federal Court ............................................ 14
1. The TCPA Can Operate Alongside The
Federal Rules Without Conflict .......... 15
2. The Fifth Circuit’s Overly Broad View
Of The Federal Rules Conflicts With
Supreme Court Precedent ................... 17
3. The Fifth Circuit Should Have
Analyzed The TCPA As An Affirmative
Defense Under Rule 8 .......................... 20
4. The State’s Important Interest In
Preventing SLAPP Suits Further
Counsels Against Reading The
Federal Rules Broadly To Find A
Conflict With The TCPA...................... 22
C. The TCPA’s Individual Provisions Apply
In Federal Court .................................. 23
1. The TCPA’s Fee-Shifting, BurdenShifting, And Monetary Deterrence
Provisions Apply In Federal Court ..... 24
2. The TCPA’s Discovery And Timing
Provisions Apply In Federal Court ..... 26
III. This Recurring Issue Is Of National Importance ......................................................... 30
IV. This Case Is An Ideal Vehicle For Resolving
The Split On The Applicability Of State
Anti-SLAPP Laws In Federal Court ............ 35
Conclusion ............................................................ 36
V
TABLE OF CONTENTS
Page
Appendix:
Van Dyke v. Retzlaff, No. 18-40710 (5th Cir. Oct.
22, 2019) (Summary Calendar) (opinion
affirming district court’s denial of motion to
dismiss under TCPA and remanding for
further proceedings) ....................................... 1a
Van Dyke v. Retzlaff, No. 4:18-CV-247 (E.D.
Tex. July 24, 2018) (Memorandum Opinion
and Order) (denying petitioner's motion to
dismiss action under TCPA) .......................... 4a
Van Dyke v. Retzlaff, No. 18-40710 (5th Cir.
Dec. 5, 2019) (denying petition for rehearing
en banc) ......................................................... 11a
Tex. Civ. Prac. & Rem. Code Ann. §§ 27.00127.011 (West 2015) ....................................... 13a
VI
TABLE OF AUTHORITIES
Page(s)
Cases:
Abbas v. Foreign Policy Grp., LLC, 783 F.3d
1328 (D.C. Cir. 2015) ..................................... 6, 11
Adelson v. Harris, 774 F.3d 803 (2d Cir.
2014)......................................................... 7, 10, 33
Alexander v. United States, 509 U.S. 544 (1993) ... 30
Alyeska Pipeline Serv. Co. v. Wilderness Soc’y,
421 U.S. 240 (1975) ........................................... 24
Anderson v. Creighton, 483 U.S. 635 (1987) .......... 27
Anderson v. Liberty Lobby, Inc., 477 U.S. 242
(1986) ................................................................. 15
Arbaugh v. Y & H Corp., 546 U.S. 500 (2006) ....... 25
Ashcroft v. Iqbal, 556 U.S. 662 (2009) ............. 15, 27
Browning-Ferris Indus. of Vt., Inc. v. Kelco Disposal, Inc., 492 U.S. 257 (1989) ........................ 26
Burlington N. R.R. Co. v. Woods, 480 U.S. 1
(1987) ............................................... 13, 14, 15, 16
Business Guides, Inc. v. Chromatic Commc’ns
Enters., Inc., 498 U.S. 533 (1991) ..................... 26
Carbone v. Cable News Network, Inc., 910 F.3d
1345 (11th Cir. 2018)................................... 11, 12
Clifford v. Trump, 339 F. Supp. 3d 915 (C.D.
Cal. 2018), appeal filed, No. 18-56351 (9th
Cir. Oct. 16, 2018).............................................. 33
Cohen v. Beneficial Indus. Loan Corp., 337 U.S.
541 (1949) .......................................................... 18
Connick v. Myers, 461 U.S. 138 (1983) .................. 31
VII
TABLE OF AUTHORITIES
Page(s)
Crampton v. Weizenbaum, 757 Fed. Appx. 357
(5th Cir. 2018) (per curiam) .............................. 21
Crawford-El v. Britton, 523 U.S. 574 (1998) ... 27, 28
Davenport v. Garcia, 834 S.W.2d 4 (Tex. 1992) ....... 3
Dick v. New York Life Ins., 359 U.S. 437
(1959) ............................................................24-25
District of Columbia v. Wesby, 138 S. Ct. 577
(2018) ................................................................. 17
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) .... I, 4
Estate of Barney v. PNC Bank, Nat’l Ass’n, 714
F.3d 920 (6th Cir. 2013) .................................... 21
Gallivan v. United States, 943 F.3d 291 (6th Cir.
2019)............................................................. 19, 34
Garcia v. Does, 779 F.3d 84 (2d Cir. 2015) ............ 29
Gasperini v. Center for Humanities, Inc., 518
U.S. 415 (1996) ............................................ 14, 22
Godin v. Schencks, 629 F.3d 79 (1st Cir.
2010)........................................................... passim
Gordon v. Marrone, 590 N.Y.S.2d 649 (N.Y. Sup.
Ct. 1992), aff’d, 616 N.Y.S.2d 98 (N.Y. App.
Div. 1994) ........................................................... 31
Hanna v. Plumer, 380 U.S. 460 (1965) .................. 17
Harlow v. Fitzgerald, 457 U.S. 800 (1982) ............ 27
Hunter v. Bryant, 502 U.S. 224 (1991)................... 29
In re Lipsky, 460 S.W.3d 579 (Tex. 2015) ................ 2
Intercon Sols., Inc. v. Basel Action Network, 791
F.3d 729 (7th Cir. 2015) ...................................... 6
VIII
TABLE OF AUTHORITIES
Page(s)
Intercon Sols., Inc. v. Basel Action Network, 969
F. Supp. 2d 1026 N.D. Ill. 2013) ....................... 33
Jones v. Bock, 549 U.S. 199 (2007)......................... 21
Klocke v. Watson, 936 F.3d 240 (5th Cir.
2019)........................................................... passim
Krasnicki v. Tactical Entm’t, LLC, 583 S.W.3d
279 (Tex. App. 2019) .......................................... 16
Lampo Grp., LLC v. Paffrath, No. 3:18-cv01402, 2019 WL 3305143 (M.D. Tenn. July 23,
2019)................................................................... 33
Lewis v. Bellows Falls Congregation of Jehovah’s Witnesses, No. 1:14-cv-205, 2015 WL
4603366 (D. Vt. July 30, 2015).......................... 28
Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659 (10th Cir.
2018)............................................................. 11, 12
Makaeff v. Trump Univ., LLC, 736 F.3d 1180
(9th Cir. 2013)................................................ 9, 36
Makaeff v. Trump Univ., LLC, 715 F.3d 254 (9th
Cir. 2013) ............................................................. 9
Mitchell v. Forsyth, 472 U.S. 511 (1985) ................ 29
Mitchell v. Hood, 614 Fed. Appx. 137 (5th Cir.
2015)..................................................................... 6
New York Times Co. v. Sullivan, 376 U.S. 254
(1964) ........................................................... 31, 32
Palmer v. Hoffman, 318 U.S. 109 (1943) ............... 25
Passmore v. Baylor Health Care Sys., 823 F.3d
292 (5th Cir. 2016)....................................... 19, 34
IX
TABLE OF AUTHORITIES
Page(s)
Paulsen v. Yarrell, 537 S.W.3d 224 (Tex. App.
2017)................................................................... 16
Phoenix Trading, Inc. v. Loops LLC, 732 F.3d
936 (9th Cir. 2013)............................................. 21
Riddle v. Bank of Am. Corp., 588 Fed. Appx. 127
(3d Cir. 2014) ..................................................... 28
Semtek Int’l Inc. v. Lockheed Martin Corp., 531
U.S. 497 (2001) ............................................ 14, 23
Shady Grove Orthopedic Assocs., P.A. v. Allstate
Ins. Co., 559 U.S. 393 (2010) ..................... passim
Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d
1179 (9th Cir. 2016)........................................... 31
United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.
1999)....................................................... 7, 8, 9, 10
Walker v. Armco Steel Corp., 446 U.S. 740
(1980) ..................................................... 14, 18, 23
Washington v. Glucksberg, 521 U.S. 702 (1997) .... 17
Wei v. University of Wyo. Coll. of Health Sch.
Pharmacy, 759 Fed. Appx. 735 (10th Cir.
2019)................................................................... 21
Whitney v. California, 274 U.S. 357 (1927) ........... 31
Wood v. Moss, 572 U.S. 744 (2014) ........................ 29
Woods v. Interstate Realty Co., 337 U.S. 535
(1949) ................................................................. 19
Statutes and Rules:
28 U.S.C. § 1652........................................................ 4
X
TABLE OF AUTHORITIES
Page(s)
28 U.S.C. § 2072............................................ 4, 22, 35
2011 Tex. Sess. Law Serv. Ch. 341 (West) ............... 2
2019 Tex. Gen. Laws 961.......................................... 2
Cal. Civ. Proc. Code § 425.16(a) (West 2015)..... 8, 32
Colo. Rev. Stat. § 13-20-1101 (2019) ...................... 32
Fed. R. Civ. P. 1 ...................................................... 30
Fed. R. Civ. P. 8(c)(1) .............................................. 20
Fed. R. Civ. P. 12 .................................................... 15
Fed. R. Civ. P. 26(b)(1)............................................ 28
Fed. R. Civ. P. 56 .................................................... 15
Fla. Stat. § 768.295(1) (2015) ................................. 32
Tex. Civ. Prac. & Rem. Code §§ 27.001-27.011
(West 2015) .......................................................1-2
Tex. Civ. Prac. & Rem. Code Ann. § 27.002
(West 2015) .................................................. 22, 32
Tex. Civ. Prac. & Rem. Code Ann. § 27.003
(West 2015) ................................................ passim
Tex. Civ. Prac. & Rem. Code Ann. § 27.004
(West 2015) .............................................. 3, 24, 29
Tex. Civ. Prac. & Rem. Code Ann. § 27.005
(West 2015) ................................................ passim
Tex. Civ. Prac. & Rem. Code Ann. § 27.006
(West 2015) ........................................ 3, 24, 27, 28
Tex. Civ. Prac. & Rem. Code Ann. § 27.009
(West 2015) .............................................. 4, 24, 26
Tex. R. Civ. P. 91a .................................................. 16
XI
TABLE OF AUTHORITIES
Page(s)
Tex. R. Civ. P. 166a ................................................ 16
Miscellaneous:
Roni A. Elias, Applying Anti-SLAPP Laws in Diversity Cases: How to Protect the Substantive
Public Interest in State Procedural Rules, 41
T. Marshall L. Rev. 215 (2016) ....................32-33
Benjamin Grossberg, Comment, Uniformity, Federalism, and Tort Reform: The Erie Implications of Medical Malpractice Certificate of
Merit Statutes, 159 U. Pa. L. Rev. 217 (2010) .. 34
Justin Jouvenal, Devin Nunes, Johnny Depp lawsuits seen as threats to free speech and press,
Wash. Post. (Dec. 22, 2019), https://tinyurl.com/yc5poky9 ............................................. 2
Media Law Res. Ctr., Anti-SLAPP Statutes and
Commentary, https://tinyurl.com/y6qwtg7h
(last visited April 21, 2020) ............................... 30
2 James Wm. Moore et al., Moore’s Federal Practice § 12.04 (2019) .............................................6-7
6 James Wm. Moore et al., Moore’s Federal Practice ¶ 54.77[2] (2d ed. 1974) .............................. 24
Heather Morton, Medical Liability/Malpractice
Merit Affidavits and Expert Witnesses, Nat’l
Conf. of State Legs. (June 24, 2014), https://tinyurl.com/vwa4qwn (last visited April 21,
2020)................................................................... 34
Mary-Rose Papandrea, Media Litigation in a
Post-Gawker World, 93 Tul. L. Rev. 1105
(2019) ................................................................... 7
XII
TABLE OF AUTHORITIES
Page(s)
Laura Lee Prather & Justice Jane Bland, The Developing Jurisprudence of the Texas Citizens
Participation Act, 50 Tex. Tech L. Rev. 633
(2018) ............................................................. 2, 22
George W. Pring, SLAPPs: Strategic Lawsuits
Against Public Participation, 7 Pace Envtl. L.
Rev. 3 (1989) ...................................................... 31
William James Seidleck, Comment, Anti-SLAPP
Statutes and the Federal Rules: Why Preemption Analysis Shows They Should Apply in
Federal Diversity Suits, 166 U. Pa. L. Rev. 547
(2018) ................................................................. 13
SLAPP’ED IN TEXAS.COM, Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in
Support.
(Mar. 28, 2011), https://tinyurl.com/y54npnjz ........................................... 23
SLAPP’ED IN TEXAS.COM, Examples of SLAPP
Suits In Texas, https://tinyurl.com/y8uhojty...... 2
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1271 (4th ed.
2019)..............................................................20-21
5 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 1272 (4th ed.
2019)................................................................... 25
5B Charles Alan Wright & Arthur R. Miller,
Federal Practice and Procedure § 1350 (4th
ed. 2019) ............................................................. 25
XIII
TABLE OF AUTHORITIES
Page(s)
19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4509 (4th ed.
2019)................................................................. 6, 7
1
PETITION FOR A WRIT OF CERTIORARI
OPINIONS BELOW
The opinion of the Court of Appeals (App., infra, 1a3a) is reported at 781 Fed. Appx. 368.
The
memorandum opinion of the district court (App., infra,
4a-10a) is unreported but is available at 2018 WL
4261193.
JURISDICTION
The judgment of the Court of Appeals was entered
on October 22, 2019. A petition for rehearing was denied on December 5, 2019 (App., infra, 11a-12a). On
February 21, 2020, Justice Alito extended the time
within which to file a petition for a writ of certiorari to
and including April 3, 2020. On March 19, 2020, this
Court extended “the deadline to file any petition for a
writ of certiorari due on or after the date of this order
* * * to 150 days from the date of the * * * order denying a timely petition for rehearing.” S. Ct. Order of
March 19, 2020. This Court’s jurisdiction is invoked
under 28 U.S.C. § 1254(1).
RELEVANT STATUTORY PROVISIONS
The relevant statutory provisions are set forth at
App., infra, 13a-20a.
STATEMENT
A. Statutory Background
In 2011, the Texas legislature enacted the Texas
Citizens Participation Act (“TCPA”) without dissent
and with immediate effect. Tex. Civ. Prac. & Rem.
2
Code §§ 27.001-27.011; 2011 Tex. Sess. Law Serv. Ch.
341 (West).1 The TCPA, like other anti-SLAPP laws,
is designed to “protect[ ] citizens who petition or speak
on matters of public concern from retaliatory lawsuits
that seek to intimidate or silence them.” In re Lipsky,
460 S.W.3d 579, 584 (Tex. 2015). They were enacted
in response to notable cases where plaintiffs filed unfounded lawsuits to silence critics. See Laura Lee Prather & Justice Jane Bland, The Developing Jurisprudence of the Texas Citizens Participation Act, 50 Tex.
Tech. L. Rev. 633, 637-639 (2018) (collecting cases);
and SLAPP’ED IN TEXAS.COM, Examples of SLAPP
Suits In Texas, https://tinyurl.com/y8uhojty (last visited May 1, 2020) (collecting Texas SLAPP cases before
enactment of TCPA). Texas resident Lance Armstrong, for example, admitted filing lawsuits to “bully”
many who accused him of using performance-enhancing drugs. Prather & Bland, 50 Tex. Tech. L. Rev. at
638. And today prominent politicians and celebrities
continue to bully critics in jurisdictions that provide
few SLAPP protections. See, e.g., Justin Jouvenal,
Devin Nunes, Johnny Depp lawsuits seen as threats to
free speech and press, Wash. Post. (Dec. 22, 2019),
https://tinyurl.com/yc5poky9
(describing
recent
SLAPP suits).
1 Texas amended the TCPA in 2019.
2019 Tex. Gen. Laws 961,
961-964. Since the amendments left all the relevant features of
the prior version in place and that version continues to apply to
this action, see id. at 964, citations and quotations refer to the
older version, Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011
(2015), which is reprinted in the appendix, see App., infra, 13a20a.
3
The TCPA protects against such suits by “effectuat[ing] a speedy process for resolving litigation that
may impinge on a party’s exercise of the rights to free
speech, petition, or association.” Klocke v. Watson, 936
F.3d 240, 244 (5th Cir. 2019). It reflects the Texas
Constitution’s “strong and longstanding commitment
to free speech,” Davenport v. Garcia, 834 S.W.2d 4, 7
(Tex. 1992), a commitment so strong that it “provides
greater rights of free expression than its federal equivalent,” id. at 10.
The TCPA provides defendants with four important protections. First, a defendant can move early on
to dismiss the action. Tex. Civ. Prac. & Rem. Code
Ann. § 27.003(a). If he shows that the action is “based
on, relates to, or is in response to” his exercise of certain listed rights, including free speech, petition, or assembly, id. § 27.005(b), the court must dismiss the action, ibid., unless the plaintiff “establishes by clear
and specific evidence a prima facie case for each essential element of the claim in question,” id. § 27.005(c).
And even if the plaintiff meets this burden, the court
must still dismiss the action if the defendant “establishes by a preponderance of the evidence each essential element of a valid defense” to the claim. Id.
§ 27.005(d). Second, until the court decides the motion, only discovery relevant to the motion itself can
proceed. Id. §§ 27.003(c), 27.006(b). Third, the court
must expedite a hearing on the motion to dismiss, id.
§ 27.004, and decide it no later than 30 days after the
hearing, id. § 27.005(a). Fourth, if the court grants the
motion, it must award the defendant the costs and reasonable attorney’s fees incurred in defending against
4
the action, id. § 27.009(a)(1), as well as whatever monetary award it believes necessary to deter the plaintiff
from filing similar actions in the future, id.
§ 27.009(a)(2).
In federal court, state anti-SLAPP statutes like the
TCPA operate against the background of two federal
statutes: the Rules of Decision Act and the Rules Enabling Act. The Rules of Decision Act requires federal
courts to apply state substantive law in diversity
cases. 28 U.S.C. § 1652; see Erie R.R. Co. v. Tompkins,
304 U.S. 64, 78 (1938). The Rules Enabling Act, by
contrast, authorizes the Supreme Court to “prescribe
general rules of practice and procedure” so long as
“such rules [do] not abridge, enlarge or modify any substantive right.” 28 U.S.C. § 2072. Thus, if a Federal
Rule “answer[s] the same question” as a state law, the
Federal Rule applies (so long as it was validly promulgated under the Rules Enabling Act) even if the state
law has a largely substantive effect and purpose.
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins.
Co., 559 U.S. 393, 399 (2010).
B. Procedural Background
1. Alleging that Retzlaff made several false defamatory remarks and publications about him, Van Dyke
sued in Texas state court for libel per se, intrusion on
seclusion, and tortious interference with contract.
App., infra, 4a-5a. He claimed “at least” $30 million in
compensatory and $70 million in punitive damages.
2d Am. Compl. ¶ 7.1(a)-(b), ECF 7.
2. Retzlaff removed the case to federal court on diversity grounds and moved to dismiss it under the
5
TCPA. App., infra, 2a. The district court, however,
denied his motion. Ibid. It held that “the TCPA, regardless if classified as procedural or substantive, does
not apply in federal court.” Id. at 9a.
3. Retzlaff filed an interlocutory appeal. While it
was pending, the Fifth Circuit held in a separate case
that the TCPA does not apply in diversity cases in federal court. See Klocke v. Watson, 936 F.3d 240, 242
(5th Cir. 2019). In particular, it held that since Rules
12 and 56 were both valid Federal Rules and “answer
the same question” as the TCPA—“what are the circumstances under which a court must dismiss a case
before trial?,” id. at 245—the TCPA’s additional
grounds for dismissal conflicted with both rules and
must yield. See id. at 247-249.
Finding Klocke dispositive, the Fifth Circuit affirmed the district court’s denial of Retzlaff’s TCPA
motion. App., infra, 3a. It later denied his timely filed
petition for panel rehearing and for rehearing en banc.
App., infra, 11a-12a.
REASONS FOR GRANTING THE PETITION
I. There Is A Deep And Acknowledged Conflict
Among The Circuits As To Whether State
Anti-SLAPP Laws Apply In Federal Diversity
Actions
The decision below deepens a clear split in the
courts of appeals: Whether early dismissal provisions
in state anti-SLAPP laws apply in federal court under
the Erie doctrine. The First, Second, and Ninth Circuits have held that these provisions do apply in diversity proceedings. In stark contrast, the Fifth, Tenth,
6
Eleventh, and D.C. Circuits have held that they do not.
Had the defendant been sued in the First, Second, or
Ninth Circuits, he would have been entitled to greater
speech protections. But his rights go unvindicated by
virtue of his being sued in the Fifth. This Court should
grant certiorari to resolve this clear split, which has
significant implications for state speech protections
nationwide.
Many federal courts of appeals have expressly
acknowledged the circuit split. See, e.g., Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1335 (D.C. Cir.
2015) (Kavanaugh, J.) (“[S]ome other courts * * * have
applied state anti-SLAPP acts’ pretrial dismissal provisions[.] * * * [T]hose decisions are ultimately not persuasive.”); Mitchell v. Hood, 614 Fed. Appx. 137, 139
n.1 (5th Cir. 2015) (“[T]here is disagreement among
courts of appeals as to whether state anti-SLAPP laws
are applicable in federal court.”); Intercon Sols., Inc. v.
Basel Action Network, 791 F.3d 729, 731 (7th Cir.
2015) (Easterbrook, J.) (noting that the application of
anti-SLAPP laws “has produced disagreement among
appellate judges”).
Leading treatises on federal procedure and commentators on the Erie doctrine have also recognized
the split. See, e.g., 19 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 4509 (4th
ed. 2019) (“The case law [from the courts of appeals]
bearing on whether anti-SLAPP statutes directly conflict with the[] Rules is in sharp disagreement.”); 2
James Wm. Moore et al., Moore’s Federal Practice
§ 12.04 (2019) (“[F]ederal courts [of appeals] have
splintered over * * * whether these state anti-SLAPP
7
laws apply at all under the Erie doctrine.”); Mary-Rose
Papandrea, Media Litigation in a Post-Gawker World,
93 Tul. L. Rev. 1105, 1134 (2019) (“[F]ederal courts disagree about whether state anti-SLAPP statutes apply
in federal diversity actions.”).
As a leading treatise has noted, “[r]esolution of * * *
the questions raised by anti-SLAPP statutes may require resolution by the Supreme Court.” 19 Wright &
Miller § 4509.
A. Three Circuits Hold That Federal Courts
Exercising Jurisdiction Over State Law
Claims Must Apply State Anti-SLAPP
Laws
The First, Second, and Ninth Circuits have held
that anti-SLAPP statutes apply in federal courts exercising jurisdiction over relevant state law claims.
Godin v. Schencks, 629 F.3d 79, 81 (1st Cir. 2010) (“We
hold the Maine anti-SLAPP statute must be applied.”);
Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014)
(“[T]he specific [Nevada] anti-SLAPP provisions applied by the district court—immunity from civil liability and mandatory fee shifting—seem to us unproblematic.”) (citations omitted); United States ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F.3d
963, 973 (9th Cir. 1999) (“[W]e hold that the district
court erred in finding that subsections (b) and (c) of
California’s Anti-SLAPP statute [providing for a special motion to dismiss and recovery of fees and costs]
could not be applied.”).
The First and Ninth Circuits have concluded that
anti-SLAPP early dismissal provisions do not “attempt
8
to answer the same question” as Federal Rules 12 and
56, because they address a narrow and substantive
state interest: the protection of free speech. Godin,
629 F.3d at 88 (quoting Shady Grove, 559 U.S. at 399);
see also Newsham, 190 F.3d at 973 (“The Anti-SLAPP
statute * * * is crafted to serve an interest not directly
addressed by the Federal Rules: the protection of ‘the
constitutional rights of freedom of speech and petition.’”) (quoting Cal. Civ. Proc. Code § 425.16(a) (West
2015)).
The First Circuit, for example, reasoned that
Maine’s anti-SLAPP law “serves the entirely distinct
function” from either Rule 12 or Rule 56. Godin, 629
F.3d at 89. The Federal Rules establish processes for
testing the legal “sufficiency of the complaint” generally and for resolving any case where “there are no disputed material issues of fact.” Ibid. An anti-SLAPP
motion, however, “protect[s] those specific defendants
that have been targeted with litigation on the basis of
their protected speech.” Ibid. Unlike the state statute
at issue in Shady Grove, the anti-SLAPP law did “not
seek to displace the Federal Rules or have [them] cease
to function.” Id. at 88. Instead, each “control[s] its
own intended sphere of coverage without conflict.” Id.
at 91. Rules 12 and 56, therefore, were not “sufficiently broad to control the issue before the court.” Id.
at 86 (citing Shady Grove, 559 U.S. at 422 (Stevens, J.,
concurring in part and concurring in the judgment)).
Maine’s anti-SLAPP law applied. Id. at 92.
Similarly, though writing prior to Shady Grove, the
Ninth Circuit in Newsham found “no ‘direct collision’”
between Federal Rules 8, 12, and 56 and California’s
9
anti-SLAPP statute. Newsham, 190 F.3d at 972. The
court acknowledged that “in some respects” the two
“serve similar purposes, namely the expeditious weeding out of meritless claims before trial.” Ibid. But it
found “no indication that Rules 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at [the dismissal of] meritless claims.”
Ibid. Thus, the anti-SLAPP statute’s limited purpose
of “protecti[ing] [free speech rights]” sufficiently distinguished it from the Federal Rules to avoid any conflict. Id. at 973.
The Ninth Circuit has continued to apply California’s anti-SLAPP law in federal court after Shady
Grove. Makaeff v. Trump Univ., LLC, 715 F.3d 254
(9th Cir. 2013). In a denial of rehearing en banc, four
judges clarified that California’s anti-SLAPP law differed from the New York law at issue in Shady Grove.
The New York law “directly conflicted” with Rule 23’s
“one-size-fits-all formula for deciding the class-action
question.” Makaeff v. Trump Univ., LLC, 736 F.3d
1180, 1181 (2013) (joint opinion of Wardlaw and Callahan, JJ., concurring in denial of rehearing en banc).
By contrast, “Rules 12 and 56 do not provide that a
plaintiff is entitled to maintain his suit if their requirements are met; instead, they provide various theories
upon which a suit may be disposed of before trial.” Id.
at 1182. Thus, California’s anti-SLAPP statute “supplements rather than conflicts with the Federal Rules”
“by creating a separate and additional theory upon
which certain kinds of suits may be disposed of before
trial.” Ibid.
10
The Second Circuit reached the same result as the
First and Ninth Circuits, noting that “[m]any courts
have held that [anti-SLAPP] statutes * * * are to be
applied federally [in diversity cases].” Adelson, 774
F.3d at 809. The court concluded that the immunity
and fee shifting provisions of Nevada’s anti-SLAPP
statute are “substantive within the meaning of Erie”
and “do[ ] not squarely conflict with a valid federal
rule.” Ibid.
The First, Second, and Ninth Circuits have further
reasoned that refusing to apply state anti-SLAPP
rules would be contrary to “the dual aims of Erie.”
Godin, 629 F.3d at 86-87; see Adelson, 774 F.3d at 809;
Newsham, 190 F.3d at 973. Each noted that the failure to apply anti-SLAPP laws would create obvious incentives for forum shopping: plaintiffs would simply
bring meritless SLAPP suits in federal rather than
state court. E.g., Godin, 629 F.3d at 92 (“[W]ere Section 556 not to apply in federal court, the incentives for
forum shopping would be strong.”); Newsham, 190
F.3d at 973 (“[I]f the anti-SLAPP provisions are held
not to apply in federal court, a litigant interested in
bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum.”). The
courts concluded that a refusal to apply anti-SLAPP
laws would “result in an inequitable administration of
justice,” Godin, 629 F.3d at 92, by placing “litigant[s]
otherwise entitled to the protections of the AntiSLAPP statute * * * [at a] considerable disadvantage
in a federal proceeding,” Newsham, 190 F.3d at 973.
11
B. Four Circuits Hold That State Anti-SLAPP
Provisions Do Not Apply In Federal Court
The Fifth, Tenth, Eleventh, and D.C. Circuits have
held that anti-SLAPP laws do not apply in federal
court. See, e.g., Klocke, 936 F.3d at 245 (“Because the
[Texas anti-SLAPP law’s] burden-shifting framework
imposes additional requirements * * * the state law
cannot apply in federal court.”); Los Lobos Renewable
Power, LLC v. Americulture, Inc., 885 F.3d 659, 673
(10th Cir. 2018) (“[T]he decision of the district court
denying the application of the New Mexico antiSLAPP statute in this federal diversity action is AFFIRMED.”); Carbone v. Cable News Network, Inc., 910
F.3d 1345, 1347 (11th Cir. 2018) (“[T]he special-dismissal provision of the Georgia anti-SLAPP statute
does not apply in federal court.”); Abbas, 783 F.3d at
1337 (“A federal court exercising diversity jurisdiction
therefore must apply Federal Rules 12 and 56 instead
of the D.C. Anti-SLAPP Act’s special motion to dismiss
provision.”).
The D.C., Fifth, and Eleventh Circuits have found
a direct conflict between state anti-SLAPP early dismissal provisions and the Federal Rules because, they
believe, they “answer the same question.” The D.C.
Circuit held in a decision by then-Judge Kavanaugh
that since “the D.C. Anti-SLAPP Act establishes the
circumstances under which a court must dismiss a
plaintiff’s claim before trial,” it conflicted with Federal
Rules 12 and 56 because they “answer the same question.” Abbas, 783 F.3d at 1333. Similarly, the Fifth
Circuit reasoned that a Federal Rule and state statute
12
“‘answer the same question’ when each specifies requirements for a case to proceed at the same stage of
litigation.” Klocke, 936 F.3d at 245. Because Texas’s
anti-SLAPP statute “imposes additional requirements” for a claim to proceed to trial “beyond those
found in Rules 12 and 56,” the Fifth Circuit concluded,
“the state law cannot apply in federal court.” Ibid.; see
also Carbone, 910 F.3d at 1352 (“Rules 8, 12, and 56
answer the question of sufficiency by requiring the
plaintiff to allege a claim that is plausible on its face[.]
* * * The Georgia anti-SLAPP statute answers the
same question.”).
The Tenth Circuit reached the same result but using different reasoning. Unlike the Fifth, Eleventh,
and D.C. Circuits, which viewed Justice Scalia’s plurality opinion in Shady Grove as controlling, the Tenth
Circuit viewed Justice Stevens’s concurrence as
“provid[ing] the controlling analysis.” Los Lobos, 885
F.3d at 668 n.3. The Tenth Circuit recognized that
state procedural rules “may in some instances become
so bound up with the state-created right or remedy
that it defines the scope of that substantive right or
remedy.” Id. at 668 (citing Shady Grove, 559 U.S. at
419-420 (Stevens, J., concurring in part and concurring in the judgment)). But those state laws “that
solely address procedure and do not function as a part
of the State’s definition of substantive rights and remedies are inapplicable in federal diversity actions.”
Ibid. (internal quotation marks omitted). After examining the text of the New Mexico anti-SLAPP statute,
the Tenth Circuit concluded that “the statute is procedural in all its aspects.” Id. at 673.
13
* * *
The courts of appeals are intractably split over
whether state anti-SLAPP laws apply in federal diversity actions. The Fifth Circuit’s rejection of the TCPA
in its entirety has deepened this pervasive uncertainty. The “ultimate resolution” of this circuit split
“may come only through Supreme Court review.” William James Seidleck, Comment, Anti-SLAPP Statutes
and the Federal Rules: Why Preemption Analysis
Shows They Should Apply in Federal Diversity Suits,
166 U. Pa. L. Rev. 547, 551 (2018).
II. The Decision Below Is Wrong
A. The TCPA Applies In Federal Court Because It Does Not “Answer The Same Question” As Any Federal Rule
Federal courts sitting in diversity apply state substantive law unless the state law “answers the same
question” as a valid Federal Rule. Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393,
399 (2010). The Shady Grove Court used “answers the
same question” as shorthand for the test in Burlington, which asks whether the scope of the Federal Rule
is “sufficiently broad to * * * leav[e] no room for the operation of [the state] law.” Burlington N.R.R. Co. v.
Woods, 480 U.S. 1, 4-5 (1987) (internal citation and
quotation marks omitted).2
2 All nine Justices in Shady Grove agreed that the unanimous
opinion in Burlington provides the proper test. See Shady Grove,
559 U.S. at 421 (Stevens, J., concurring in part and concurring in
the judgment) (quoting the same language in Burlington as the
majority); id. at 439 (Ginsburg, J., dissenting) (same).
14
The Supreme Court has long applied this test with
“sensitivity to important state interests.” Gasperini v.
Center for Humanities, Inc., 518 U.S. 415, 427 n.7
(1996); see, e.g., Semtek Int’l Inc. v. Lockheed Martin
Corp., 531 U.S. 497, 503-504 (2001) (rejecting an interpretation of Rule 41(b) that “would arguably * * * extinguish[ ] ” a substantive state right); Walker v. Armco
Steel Corp., 446 U.S. 740, 750-752 (1980) (upholding
state statute of limitations in face of potential conflict
with Rule 3 out of respect for important “policy determinations found in state law”). While federal courts
cannot “contort [a Rule’s] text * * * to avert a collision
with state law,” Shady Grove, 559 U.S. at 406, the
scope of the Federal Rule must be read narrowly to discourage forum shopping and “to avoid substantial variations [in outcomes] between state and federal litigation,” id. at 405 n.7 (citation omitted).
Thus, the TCPA applies in federal court unless the
Federal Rules, “fairly construed” with “sensitivity to
important state interests,” leave “no room for [its] operation.” Burlington, 480 U.S. at 4-5; Gasperini, 518
U.S. at 427 n.7.
B. Taken As A Whole, The TCPA Applies In
Federal Court
The TCPA applies in federal court because its text
and purpose do not conflict with any Federal Rule.
The Fifth Circuit’s holding to the contrary inappropriately broadens the reach of the Federal Rules, ignores
Supreme Court precedent, and disregards important
state interests.
15
1. The TCPA Can Operate Alongside The
Federal Rules Without Conflict
Federal Rules 12 and 56 answer different questions
than the TCPA. Rule 12(b)(6) concerns the level of factual detail and what content a complaint must contain
to avoid dismissal. It answers: “sufficient factual matter, accepted as true, to state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009) (citation omitted). Rule 56 addresses when
a lack of evidentiary support for a claim warrants dismissal. It answers: when “there are [no] genuine factual issues that * * * may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc.,
477 U.S. 242, 250 (1986). But the Federal Rules are
silent as to when the subject matter of litigation may
warrant dismissal. And so the Texas Legislature supplied a response: when “a legal action is based on * * *
a party’s exercise of the right of free speech, right to
petition, or right of association.” Tex. Civ. Prac. &
Rem. Code Ann. § 27.003 (West 2015). The Federal
Rules simply do not “control the issue before the
court,” leaving plenty of “room for the [TCPA’s] operation.” Burlington, 480 U.S. at 5.
Because the Federal Rules and the TCPA answer
different questions, the absence of any textual conflict
between them is unsurprising. Rule 12(b)(6) provides
that “a party may assert [as a defense] * * * [the opposing party’s] failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12. Rule 56 provides that “[a] party may move for summary judgment” and specifies under what circumstances “the
court shall grant” such judgment. Fed. R. Civ. P. 56.
16
No provision of the TCPA contradicts either of these
rules. Rather, § 27.003 of the TCPA establishes an additional circumstance under which “[a] party may file
a motion to dismiss,” Tex. Civ. Prac. & Rem. Code Ann.
§ 27.003 (West 2015), and § 27.005 defines the circumstances under which the court must grant such a motion, id. § 27.005. This case is thus readily distinguishable from Shady Grove, where the Court confronted a
New York state law that “flatly contradict[ed]” a Federal Rule. 559 U.S. at 405.
Texas’s own procedural rules further demonstrate
that the Federal Rules leave “room for the operation of
[the TCPA].” Burlington, 480 U.S. at 5. The Texas
Rules of Civil Procedure include provisions analogous
to both Federal Rules 12 and 56, authorizing a motion
to dismiss for failure to state a claim and a motion for
summary judgment. See Tex. R. Civ. P. 91a (“[A] party
may move to dismiss a cause of action on the grounds
that it has no basis in law.”); Tex. R. Civ. P. 166a
(“[Summary] judgment * * * shall be rendered forthwith if * * * there is no genuine issue as to any material fact and the moving party is entitled to judgment
as a matter of law.”). And Texas courts apply these
rules alongside the TCPA. See, e.g., Krasnicki v. Tactical Entm’t, LLC, 583 S.W.3d 279, 284 (Tex. App.
2019) (concluding that “[t]he TCPA was not meant to
take the place of ” summary judgment because the Act
applies to “only those lawsuits designed to chill First
Amendment rights”); see also Paulsen v. Yarrell, 537
S.W.3d 224, 231, 234 (Tex. App. 2017) (reviewing both
a motion for summary judgment and a motion under
17
the TCPA). There is no reason to think that application of equivalent Federal Rules would create a conflict
where none exists under state law.
2. The Fifth Circuit’s Overly Broad View
Of The Federal Rules Conflicts With Supreme Court Precedent
In determining whether the TCPA “answers the
same question” as the Federal Rules, the Fifth Circuit
adopted the broadest possible construction of the question, namely “what are the circumstances under which
a court must dismiss a case before trial?” Klocke, 936
F.3d at 245. Allowing judges to define the “question”
the Federal Rules answer at such a high level of generality risks violating the “twin aims of the Erie doctrine”: “discourage[ing] forum shopping and avoid[ing]
inequitable administration of the laws.” Hanna v.
Plumer, 380 U.S. 460, 468 (1965). Instead, courts
should refer to the most specific question the Federal
Rules answer, focused on the text of the Rules. Cf. District of Columbia v. Wesby, 138 S. Ct. 577, 590 (2018)
(“We have repeatedly stressed that courts must not define clearly established law [for qualified immunity
purposes] at a high level of generality.”) (citation and
quotation marks omitted); Washington v. Glucksberg,
521 U.S. 702, 721 (1997) (“[W]e have required in substantive-due-process cases a ‘careful description’ of the
asserted fundamental liberty interest.”) (citations
omitted).
In defining the question so broadly, the Fifth Circuit diverged from the text of Rules 12 and 56 and gave
them preemptive force that this Court has never rec-
18
ognized. See Klocke, 936 F.3d at 245 (The TCPA “answer[s] the same question” as Rules 12 and 56 because
“it imposes additional procedural requirements not
found in the federal rules.”). That logic runs counter
to Shady Grove, which recognized that state laws,
though they may touch on the same general subject
matter as the Federal Rules, are not preempted where
there is no direct conflict. The Court in Shady Grove,
for example, held that the state law and Rule 23 answered the same question “whether a class action may
proceed for a given suit,” but it did “not decide whether
a state law that limits the remedies available in an existing class action would conflict with Rule 23.” 559
U.S. at 401. The Court thus recognized the possibility
that Rule 23 leaves room for “a law that sets a ceiling
on damages (or puts other remedies out of reach) in
properly filed class actions.” Ibid. The clear implication is that states are not categorically barred from imposing additional requirements so long as the requirements do not “direct[ly] conflict” with the Federal
Rules. Walker, 446 U.S. at 752.
The Fifth Circuit’s rule also calls into doubt foundational Erie precedents. In Walker, the Court found
no conflict between Rule 3 and a state law requiring
dismissal if the summons was served outside of the
state statute of limitations. 446 U.S. at 750-752. Likewise, in Cohen v. Beneficial Indus. Loan Corp., the
Court found no conflict between then-Rule 23 and a
state statute requiring the plaintiff in a shareholder
derivative suit to post security as a condition of prosecuting the action. 337 U.S. 541, 544-545, 556-557
(1949). And in Woods v. Interstate Realty Co., this
19
Court applied a state law requiring foreign corporations to formally designate an agent for receiving service of process before suing in the state. 337 U.S. 535,
536-538 (1949). The Fifth Circuit’s approach would require the opposite result in each of these cases, since
each upheld a state law that identified “circumstances
under which a court must dismiss a case before trial.”
Klocke, 936 F.3d at 245.
The Fifth Circuit has already applied this approach
to invalidate other important state laws that require
pretrial dismissal. See Passmore v. Baylor Health
Care Sys., 823 F.3d 292, 297-298 (5th Cir. 2016) (holding certificate of merit law conflicted with Rules 26
and 37’s provisions for the submission of expert reports because the law imposed requirements not found
in the Federal Rules). And other courts adopting
equally broad tests have invalidated similar laws. See,
e.g., Gallivan v. United States, 943 F.3d 291, 293-294
(6th Cir. 2019) (invaliding state law that required affidavit to state claim for medical negligence because
“the Federal Rules provide a clear answer [that] no affidavit is required”).
The Court should reject this overly broad reading
of the scope and purpose of Rules 12 and 56. Each rule
serves a limited and clearly defined procedural function. Together, they provide mechanisms for a federal
court to dismiss suits in which further litigation would
waste judicial resources, either because no relief can
be granted or because no reasonable jury could find in
favor of the plaintiff. Neither Rule evinces any intent
to preempt laws allowing early dismissal on distinct
20
substantive grounds, such as state law grants of immunity from suit.
The TCPA is one such state law. Section 27.003
does not purport to be a “general * * * procedure[] governing all categories of cases.” See Godin, 629 F.3d at
88. Rather, Section 27.003 permits a motion to dismiss
only in response to a particular class of claims: ones
“based on * * * a party’s exercise of the right of free
speech, right to petition, or right of association.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.003 (West 2015).
The question for a court weighing a TCPA motion is
whether the movant has satisfied the statutorily defined requirements to secure dismissal of the challenged claim. See id. § 27.005. If so, the movant is
entitled to dismissal regardless of whether the claimant sufficiently pleaded a claim for relief or whether
the claimant would otherwise be entitled to summary
judgment.
3. The Fifth Circuit Should Have Analyzed The TCPA As An Affirmative Defense Under Rule 8
Instead of straining to find a conflict with Rules 12
and 56, the Fifth Circuit should have analyzed the
TCPA as an affirmative defense under Rule 8. Had it
done so, the absence of a conflict between the Federal
Rules and the TCPA would have been even clearer.
Rule 8 directs litigants to “affirmatively state any
avoidance or affirmative defense.” Fed. R. Civ. P.
8(c)(1). There can be no doubt that the TCPA provides
such a defense. See 5 Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1271 (4th
21
ed. 2019) (listing “a limitation or bar to the action in
state law” as an example of an affirmative defense);
see also Phoenix Trading, Inc. v. Loops LLC, 732 F.3d
936, 942 (9th Cir. 2013) (describing immunity under
anti-SLAPP statute as an affirmative defense). That
is because the Act conditions dismissal on a showing
that the movant has been sued for exercising First
Amendment rights, an issue that “cannot [be] raise[d]
by a simple denial in the answer” because it falls “outside of the plaintiff’s prima facie case.” 5 Wright &
Miller § 1271. Instead, a SLAPP defendant must “set
forth affirmatively” its defense. Ibid.
Like Rules 12 and 56, Rule 8 leaves more than
enough room for the TCPA to operate. It simply “identifies a nonexhaustive list of affirmative defenses that
must be pleaded” and allows statutes like the TCPA to
add to the list. Jones v. Bock, 549 U.S. 199, 212 (2007).
In fact, the TCPA’s alignment with Rule 8 further
shows its compatibility with Rules 12 and 56. Federal
courts regularly adjudicate affirmative defenses raised
in motions for summary judgment. See, e.g., Crampton v. Weizenbaum, 757 Fed. Appx. 357, 367-369 (5th
Cir. 2018) (per curiam) (affirming district court’s grant
of summary judgment on affirmative defense). They
also resolve affirmative defenses at the motion to dismiss stage. See, e.g., Wei v. University of Wyo. Coll. of
Health Sch. Pharmacy, 759 Fed. Appx. 735, 739 (10th
Cir. 2019) (“[A] defendant may raise an affirmative defense by a motion to dismiss for the failure to state a
claim.”) (citation and internal quotation marks omitted); accord Estate of Barney v. PNC Bank, Nat’l Ass’n,
714 F.3d 920, 925 (6th Cir. 2013). There is no reason
22
to treat the TCPA—a clear example of an affirmative
defense—any differently.
4. The State’s Important Interest In Preventing SLAPP Suits Further Counsels
Against Reading The Federal Rules
Broadly To Find A Conflict With The
TCPA
The absence of any conflict between the TCPA and
the Federal Rules is clear. But even if this case presented a closer Erie question, the Fifth Circuit disregarded this Court’s command to read the Federal
Rules with “sensitivity to important state interests,”
Gasperini, 518 U.S. at 427 n.7, and Congress’s command to avoid an interpretation that would “abridge,
enlarge, or modify any substantive right,” 28 U.S.C.
§ 2072(b). Needlessly expanding the scope of the Federal Rules to displace the TCPA undermines Texas’s
important interest in “encourag[ing] and safeguard[ing] the constitutional rights of persons to petition,
speak freely, associate freely, and otherwise participate in government.” Tex. Civ. Prac. & Rem. Code
Ann. § 27.002 (West 2015).
Prior to the TCPA, Texas was plagued with frivolous claims designed to discourage individuals from
exercising their First Amendment rights. See, e.g.,
Laura Lee Prather & Justice Jane Bland, The Developing Jurisprudence of the Texas Citizens Participation Act, 50 Tex. Tech L. Rev. 633, 637-638 (2018) (describing frivolous lawsuits filed in order to limit
speech). The Texas Legislature took testimony from
those who had been SLAPP-ed, including an author
sued by a real estate developer after writing a book on
23
eminent domain; a newspaper editor sued for publishing a photograph taken on a public beach and threatened with suit for publishing public records from state
agencies; and the president of an advocacy group sued
by a building company after organizing protests
against the company. SLAPP’ED IN TEXAS.COM,
Citizen Participation Act Takes Aim at Frivolous Lawsuits: Citizens, Journalists and Homeowners Testify in
Support.
(Mar.
28,
2011),
https://tinyurl.com/y54npnjz. In response to this degradation
of First Amendment rights, Texas passed the TCPA,
codifying its commitment to promoting free speech and
the marketplace of ideas.
Surely these important state interests deserve at
least as much protection as the policies behind state
preclusion principles and statutes of limitations that
counseled narrow readings of the Federal Rules in
Semtek, 531 U.S. at 503-504, and Walker, 446 U.S. at
751-752. Confining the TCPA’s reach to state-court litigation empowers unscrupulous parties to file meritless, retaliatory lawsuits whenever a federal forum is
available. Fortunately, that is an outcome that the
Federal Rules “can reasonably be interpreted to
avoid.” Shady Grove, 559 U.S. at 423 (Stevens, J., concurring in part and concurring in the judgment).
C. The TCPA’s Individual Provisions Apply
In Federal Court
The TCPA should apply in diversity actions because the Act as a whole does not conflict with the Federal Rules. Examining each of the TCPA’s provisions
individually bolsters this conclusion. The Act prevents
24
meritless litigation through five features—fee-shifting, burden-shifting, possible monetary deterrence
awards, discovery restrictions, and expedited timelines—each of which arise in the context of the special
motion to dismiss. Tex. Civ. Prac. & Rem. Code Ann.
§§ 27.003-.006, 27.009 (West 2015). Each of these components can apply in federal court without conflicting
with the Federal Rules because they do not “answer
the same question.” In fact, this Court has already approved the use of similar provisions in federal court.
1. The TCPA’s Fee-Shifting, Burden-Shifting, And Monetary Deterrence Provisions Apply In Federal Court
A defendant who secures dismissal under the
TCPA is entitled to “reasonable attorney’s fees.” Tex.
Civ. Prac. & Rem. Code Ann. § 27.009 (West 2015).
There can be no doubt that the TCPA’s grant of attorney’s fees applies in federal court. As this Court has
held, “state law denying the right to attorney’s fees or
giving a right thereto * * * reflects a substantial policy
of the state” and therefore “should be followed” in federal court. Alyeska Pipeline Serv. Co. v. Wilderness
Soc’y, 421 U.S. 240, 259 n.31 (1975) (quoting 6 James
Wm. Moore et al., Moore’s Federal Practice ¶ 54.77[2],
at 1712-1713 (2d ed. 1974)).
The TCPA’s burden-shifting mechanism also applies in federal court. See p. 3, supra. This Court and
Erie commentators agree that the burden of proof—
both the party bearing it and the appropriate quantum—is dictated by state law. See, e.g., Dick v. New
York Life Ins., 359 U.S. 437, 446 (1959) (“Under the
Erie rule, presumptions (and their effects) and burden
25
of proof are ‘substantive.’”) (internal citation omitted);
Palmer v. Hoffman, 318 U.S. 109, 117 (1943) (similar);
see also 5 Wright & Miller § 1272 (“The Erie doctrine
continues to dictate that * * * the ultimate burden of
proof on an issue is a substantive matter and is to be
governed by state law.”).
Overlooking this precedent, the Fifth Circuit refuses to apply the TCPA in diversity actions because
its “preponderance of the evidence” and “clear and specific evidence” requirements “demand judicial weighing of evidence.” Klocke, 936 F.3d at 246. But any concern that the TCPA’s early dismissal motion requires
judges to engage in pretrial fact-finding is overstated. Federal courts routinely examine facts and
weigh evidence prior to the start of trial. For instance,
courts regularly weigh evidence pretrial in assessing
diversity and personal jurisdiction. See, e.g., Arbaugh
v. Y & H Corp., 546 U.S. 500, 514 (2006) (“[I]f subjectmatter jurisdiction turns on contested facts, the trial
judge may be authorized to review the evidence and
resolve the dispute on her own.”); 5B Wright & Miller
§ 1350 (“The district court, not a jury, must weigh the
merits of what is presented on a Rule 12(b)(1) motion
to dismiss, including resolving any issues of fact, and
decide the question of subject matter jurisdiction.”)
(footnotes omitted). The TCPA does not require examination of evidence beyond what courts already conduct in the diversity and personal jurisdictional inquiries.
The TCPA also entitles a defendant who wins dismissal to a monetary award “sufficient to deter the
26
party who brought the legal action from bringing similar actions” in the future. Tex. Civ. Prac. & Rem. Code
Ann. § 27.009(a)(2) (West 2015). This provision also
poses no conflict with the Federal Rules, particularly
Rule 11. Sanctions under Rule 11, unlike TCPA deterrence awards, are retrospective and depend on the attorney’s behavior in the particular case. As this Court
has held, Rule 11 sanctions “are not tied to the outcome of litigation; the relevant inquiry is whether a
specific filing was, if not successful, at least well
founded.”
Business Guides, Inc. v. Chromatic
Commc’ns Enters., Inc., 498 U.S. 533, 553 (1991). Section 27.009(a)(2) awards, by contrast, are tied to the
outcome of the litigation, not to a particular attorney’s
misbehavior. They are available only upon a successful motion for TCPA relief and awardable only if necessary to deter similar filings in the future. In short,
they operate prospectively and resemble punitive damages more than Rule 11 sanctions. And, like punitive
damages, they supply the rule of decision in federal diversity actions. See Browning-Ferris Indus. of Vt., Inc.
v. Kelco Disposal, Inc., 492 U.S. 257, 278 (1989) (“In a
diversity action, * * * the propriety of an award of punitive damages * * * and the factors the jury may consider in determining their amount[ ] are questions of
state law.”).
2. The TCPA’s Discovery And Timing Provisions Apply In Federal Court
The TCPA’s discovery and timing provisions also
apply in federal court. To achieve the substantive aim
of protecting SLAPP defendants from the burdens of
27
litigation, the TCPA directs courts to suspend discovery after a special motion to dismiss has been filed.
Tex. Civ. Prac. & Rem. Code Ann. § 27.003(c) (West
2015). However, “[o]n a motion by a party or on the
court’s own motion[,] * * * the court may allow specified and limited discovery relevant to the motion” for
“good cause.” Id. § 27.006(b). These provisions are directly analogous to the discovery procedures routinely
employed by federal courts when ruling on qualified
immunity—procedures that this Court has applied
without any worry that they are inconsistent with or
“answer the same question” as the Federal Rules.
Like the TCPA, qualified immunity operates to free
those entitled to it “from the concerns of litigation, including ‘avoidance of disruptive discovery.’” Ashcroft
v. Iqbal, 556 U.S. 662, 685 (2009) (citation omitted).
And like the TCPA, qualified immunity doctrine instructs courts to “resolve th[e] threshold question” of
immunity “before permitting discovery.” Crawford-El
v. Britton, 523 U.S. 574, 598 (1998) (citing Harlow v.
Fitzgerald, 457 U.S. 800, 818 (1982)). When discovery
is necessary to resolve the immunity question, it
“should be tailored specifically to [that] question,” Anderson v. Creighton, 483 U.S. 635, 647 n.6 (1987), just
as discovery in the context of an anti-SLAPP motion
should be limited to matters “relevant to the motion.”
Tex. Civ. Prac. & Rem. Code Ann. § 27.006(b) (West
2015).
This Court has long recognized that federal courts
can apply qualified immunity discovery procedures
alongside the Federal Rules. See, e.g., Crawford-El,
28
523 U.S. at 597-598 (observing that qualified immunity procedures are consistent with a “‘firm application
of the Federal Rules’” because “Rule 26 vests the trial
judge with broad discretion to tailor discovery narrowly and to dictate the sequence of discovery”) (citation omitted). Insulating government officials from
the hardship of discovery is simply an application of
Rule 26’s directive to consider denying discovery when
“the burden or expense of the proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b)(1).
Likewise, the TCPA informs federal courts that the
burden of discovery in SLAPP suits will normally outweigh the likely benefit, unless good cause convinces
the court otherwise. See Tex. Civ. Prac. & Rem. Code
Ann. § 27.006(b) (West 2015). The Federal Rules leave
room for restricted discovery when ruling on an antiSLAPP motion, just as they leave room for restricted
discovery when ruling on qualified immunity.3
The TCPA’s timelines for ruling on an anti-SLAPP
motion are equally unproblematic. With some exceptions, a court considering a TCPA motion must hold a
hearing on the motion within sixty days of the date the
Federal courts have also restricted discovery to expedite
litigation in other contexts, including actions that may be barred
by the statute of limitations. See, e.g., Riddle v. Bank of Am.
Corp., 588 Fed. Appx. 127, 128-129 (3d Cir. 2014) (affirming
district court’s grant of summary judgment after it “ordered
expedited discovery solely on the statute of limitations”); Lewis v.
Bellows Falls Congregation of Jehovah’s Witnesses, No. 1:14-cv205, 2015 WL 4603366, at *1 (D. Vt. July 30, 2015) (compiling
cases where courts “limited early discovery to statute of
limitations issues when it appeared likely the case could be
ended”).
3
29
motion was served. Tex. Civ. Prac. & Rem. Code Ann.
§ 27.004 (West 2015). It then must rule on the motion
within thirty days of the hearing. Id. § 27.005. Qualified immunity again provides a useful analogy in considering why these provisions do not conflict with any
Federal Rule.
This Court has “repeatedly ‘stressed the importance of resolving [qualified] immunity questions
at the earliest possible stage [of] litigation.’” Wood v.
Moss, 572 U.S. 744, 755 n.4 (2014) (quoting Hunter v.
Bryant, 502 U.S. 224, 227 (1991) (per curiam)).
Courts, including this one, have exercised their inherent discretion to move up timelines without any concern that doing so conflicts with the Federal Rules.
See Hunter, 502 U.S. at 228 (declaring that
“[i]mmunity ordinarily should be decided by the court
long before trial” (citing Mitchell v. Forsyth, 472 U.S.
511, 527-529 (1985)); see also Garcia v. Does, 779 F.3d
84, 97 (2d Cir. 2015) (“[B]ecause qualified immunity
protects officials not merely from liability but from litigation, [it] should be resolved when possible on a motion to dismiss.”) (citing Mitchell, 472 U.S. at 526).
Federal courts should be similarly willing to apply
the timelines of the TCPA. Like qualified immunity,
the TCPA requires courts to resolve issues quickly to
protect eligible defendants from the burdens of litigation. While it is true that the Act establishes a decision
timeline with greater specificity than the “earliest possible stage of litigation” standard for qualified immunity, that is no reason to ignore the substantive immunity from suit afforded to SLAPP defendants by the
30
Texas legislature. At the very least, the TCPA’s timing provisions should be read to apply in the same way
as the timing procedures underlying qualified immunity—as a standard directing courts to resolve SLAPP
suits as quickly as possible.
Examined individually, the TCPA’s provisions do
not “answer the same question” as any Federal Rule.
This Court already recognizes that many of the
TCPA’s components apply in diversity actions. If no
individual provision conflicts with the Federal Rules,
then the TCPA as a whole cannot conflict with them
either. The Court should “reject [the] counterintuitive
conclusion * * * that the whole is greater than the sum
of the parts.” Alexander v. United States, 509 U.S. 544,
558 (1993).
* * *
The TCPA exists to protect substantive First
Amendment rights, whereas the Federal Rules exist
“to secure the just, speedy, and inexpensive determination of every action and proceeding.” Fed. R. Civ. P.
1. These rules seek two independent ends, and allowing one to preempt the other frustrates the purposes of
both. The Federal Rules do not prohibit states from
protecting First Amendment rights.
III. This Recurring Issue Is Of National Importance
Now that a majority of states have adopted antiSLAPP laws to protect speech and public debate, see
Media Law Res. Ctr., Anti-SLAPP Statutes and Commentary, https://tinyurl.com/y6qwtg7h (last visited
Apr. 10, 2020), federal courts are increasingly facing
31
the choice whether to apply them in diversity cases.
See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d
1179, 1182 (9th Cir. 2016) (Kozinski, J., concurring)
(noting that anti-SLAPP “cases have more than tripled
over the last ten years”). The disparate treatment by
the courts of appeals warrants this Court’s intervention.
Speech on public issues “is entitled to special protection” because it “occupies the ‘highest rung of the
hierarchy of First Amendment values.’” Connick v.
Myers, 461 U.S. 138, 145 (1983) (internal citation omitted). SLAPP suits strike at the freedom of public discourse, “a fundamental principle of the American government.” New York Times Co. v. Sullivan, 376 U.S.
254, 270 (1964) (quoting Whitney v. California, 274
U.S. 357, 375 (1927)). The resulting “ripple effect of
such suits in our society is enormous.” Gordon v. Marrone, 590 N.Y.S.2d 649, 656 (N.Y. Sup. Ct.
1992), aff’d, 616 N.Y.S.2d 98 (N.Y. App. Div. 1994).
They “send a clear message: that there is a ‘price’ for
speaking out politically.” George W. Pring, SLAPPs:
Strategic Lawsuits Against Public Participation,
7 Pace Envtl. L. Rev. 3, 6 (1989). Successfully defending against these suits “amounts merely to a pyrrhic
victory” because “[t]hose who lack the financial resources and emotional stamina to play out the ‘game’
face the difficult choice of defaulting despite meritorious defenses or being brought to their knees to settle.”
Gordon, 590 N.Y.S.2d at 656. “Short of a gun to the
head, a greater threat to First Amendment expression
can scarcely be imagined.” Ibid.
32
States adopted anti-SLAPP laws precisely to safeguard speech from these chilling effects. Anti-SLAPP
statutes reflect states’ “profound * * * commitment to
the principle that debate on public issues should be uninhibited, robust, and wide-open.” Sullivan, 376 U.S.
at 270. Many anti-SLAPP statutes, including the
TCPA, explicitly state that their purpose is to “encourage and safeguard the constitutional rights of persons
to petition, speak freely, associate freely, and otherwise participate in government.” Tex. Civ. Prac. &
Rem. Code Ann. § 27.002 (West 2015); Colo. Rev. Stat.
§ 13-20-1101 (2019) (adopting same language). “[T]his
participation should not be chilled through abuse of
the judicial process” because “it is in the public interest
to encourage continued participation in matters of
public significance.” Cal. Civ. Proc. Code § 425.16(a)
(West 2015). Prohibiting SLAPP suits “preserve[s] the
constitutional rights of persons * * * and assure[s] the
continuation of representative government.” Fla. Stat.
§ 768.295(1) (2015).
The well-recognized divide among the courts of appeals over the application of anti-SLAPP laws in federal court undercuts the efficacy of such laws and foments vertical forum shopping between states and federal courts. Whether a SLAPP suit can proceed depends entirely on the choice of forum. If federal courts
fail to apply state anti-SLAPP laws, they will become
the “forum of choice for well-heeled private parties who
wish to use marginally meritorious litigation to stifle
public criticism,” Roni A. Elias, Applying Anti-SLAPP
Laws in Diversity Cases: How to Protect the Substantive Public Interest in State Procedural Rules, 41 T.
33
Marshall L. Rev. 215, 238 (2016), and thus become
overwhelmed by dubious state-law actions designed to
chill citizens’ First Amendment rights.
Plaintiffs can further forum shop horizontally
across federal courts. Strategic plaintiffs will file
SLAPP suits in those courts that ignore anti-SLAPP
laws, which provides an end-run around even the federal courts that have correctly decided to apply them.
See, e.g., Adelson v. Harris, 774 F.3d 803, 809 (2d Cir.
2014) (analyzing on its own the applicability of Nevada’s anti-SLAPP statute in federal court, despite the
Ninth Circuit’s earlier conclusion that it was applicable); Lampo Grp., LLC v. Paffrath, No. 3:18-cv-01402,
2019 WL 3305143, at *1-*2 (M.D. Tenn. July 23, 2019)
(holding California’s anti-SLAPP statute does not apply in federal diversity actions even though Ninth Circuit held the opposite); Intercon Sols., Inc. v. Basel Action Network, 969 F. Supp. 2d 1026, 1041-1044 (N.D.
Ill. 2013) (holding same with respect to Washington
anti-SLAPP statute), aff’d on other grounds, 791 F.3d
729 (7th Cir. 2015); see also Clifford v. Trump, 339 F.
Supp. 3d 915 (C.D. Cal. 2018), appeal filed, No. 1856351 (9th Cir. Oct. 16, 2018) (considering whether
TCPA applies in Ninth Circuit after Fifth Circuit held
it inapplicable in Klocke v. Watson, 936 F.3d 240
(2019)). For instance, a California speaker can rely on
the Ninth Circuit to afford her the protection of California’s anti-SLAPP law. But if sued in the Fifth Circuit, she loses California’s protections even if choice-oflaw rules require the application of California law.
Allowing federal courts to misapply the Erie doctrine will not only lead to courts ignoring anti-SLAPP
34
laws, but will also imperil other important state substantive laws that use procedural tools to effectuate
state policy. As of 2014, for example, twenty-eight
States had certificate of merit (“COM”) requirements
in medical malpractice cases. Heather Morton, Medical Liability/Malpractice Merit Affidavits and Expert
Witnesses, Nat’l Conf. of State Legs. (June 24, 2014),
https://tinyurl.com/vwa4qwn.
These laws require
plaintiffs to certify that an expert has reviewed the
case and believes it meritorious before the case can
proceed past the pleadings. Benjamin Grossberg,
Comment, Uniformity, Federalism, and Tort Reform:
The Erie Implications of Medical Malpractice Certificate of Merit Statutes, 159 U. Pa. L. Rev. 217, 218, 222224 (2010). Like anti-SLAPP laws, COM requirements attempt to reduce “the incidence of frivolous
lawsuits,” as well as cut liability premiums. Id. at 221
(citation omitted). The Fifth Circuit’s broad reasoning
would reject application of these laws in federal court.
See Passmore v. Baylor Health Care Sys., 823 F.3d
292, 299 (5th Cir. 2016) (denying application of COM
law in federal court on ground that it conflicts with
Rules 26 and 37); see also Gallivan v. United States,
943 F.3d 291, 293 (6th Cir. 2019) (refusing to apply
state law requiring submission of special affidavit in
state claim for medical malpractice because “the Federal Rules provide a clear answer: no affidavit is required”).
The Fifth Circuit’s decision threatens a dramatic
incursion on state sovereignty. It ignores substantive
state decisions about how to best protect speech rights
35
and prevent litigants from weaponizing specious litigation. State speech protections would vanish in federal court, a result that is plainly inconsistent with
Congress’s intent in ensuring that the Federal Rules
do not “abridge, enlarge or modify any substantive
right.” 28 U.S.C. § 2072(b). Because the Fifth Circuit’s decision upsets Erie’s deference to states on substantive law and threatens fundamental speech, assembly, and petition rights, this Court should grant
certiorari.
IV. This Case Is An Ideal Vehicle For Resolving
The Split On The Applicability Of State
Anti-SLAPP Laws In Federal Court
This case presents an ideal vehicle for deciding this
important issue. The issue has sufficiently percolated
in the lower courts. Seven courts of appeals have decided it, they are nearly evenly split, and the opinions
on each side largely rely on the same reasoning. P. 513, supra. The arguments in the courts of appeals
have been exhausted. The issue is ripe for this Court’s
review and only this Court’s review can bring uniformity.
Further, there are no procedural or jurisdictional
issues counseling against review, and the case at this
stage concerns pure questions of law. Whether the
TCPA applies in federal court was fully briefed below
and decided by the Fifth Circuit.
The conflict over anti-SLAPPs’ application in federal court will not go away. The split is clear, and this
vehicle squarely presents the issue free from any
36
threshold questions or issues of fact. The issue warrants this Court’s immediate review.
* * *
A majority of states have enacted anti-SLAPP laws
in order to deter dubious state-law actions designed to
punish people for exercising their First Amendment
rights. Refusing to apply those provisions in federal
courts would “not only flush away state legislatures’
considered decisions on matters of state law, but * * *
also put the federal courts at risk of being swept away
in a rising tide of frivolous state actions.” Makaeff v.
Trump Univ., LLC, 736 F.3d 1180, 1187 (9th Cir. 2013)
(Wardlaw & Callahan, JJ., concurring in denial of petition for rehearing en banc).
CONCLUSION
The petition for a writ of certiorari should be
granted.
37
Respectfully submitted.
JEFFREY L. DORRELL
HANSZEN LAPORTE
14201 Memorial Drive
Houston, Texas 77079
(713) 522-9444
jdorrell@hanszenlaport
e.com
MAY 2020
DANIEL R. ORTIZ
Counsel of Record
UNIVERSITY OF VIRGINIA
SCHOOL OF LAW SUPREME COURT LITIGATION CLINIC
580 Massie Road
Charlottesville, VA
22903
(434) 924-3127
dortiz@law.virginia.edu
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.