Opposition Brief — Thomas Christopher Retzlaff, Petitioner v. Jason Lee Van Dyke

Supreme Court briefJul 7, 2020

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No. 19-1272

IN THE

Supreme Court of the United States

THOMAS CHRISTOPHER RETZLAFF,

Petitioner,

JASON LEE VAN DYKE,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF RESPONDENT

JASON LEE VAN DYKE IN OPPOSITION TO

PETITION FOR A WRIT OF CERTIORARI

MARC J. RANDAZZA

Counsel of Record

JAY M. WOLMAN

RANDAZZA LEGAL GROUP, PLLC

2764 Lake Sahara Dr., Suite 109

Las Vegas, NV 89117

(702) 420-2001

ecf@randazza.com

Counsel for Respondent

Jason Lee Van Dyke

QUESTION PRESENTED

Each state’s Anti-SLAPP statute is different.

Some have been held to permissibly apply in diversity

cases, others have not. There is no uniform statute

that gives rise to the differing issues when litigants

attempt to apply these statutes in federal court. Each

state invests its iteration with its own quirks in procedure, substantive protections, and verbiage. This

case is about one state’s variation, the Texas Citizens

Participation Act (“TCPA”) (Pet. App. 13a—20a),

which has been before federal courts only a few times.

The sole question presented to this Court is

whether the 2013 version of the TCPA applies to state

claims being heard in federal court. The only Circuit

Court of Appeals to address this statute is the Fifth

Circuit.

RELATED PROCEEDINGS

1. Van Dyke v. Retzlaff, Case No. 18-2793-431 (Tex.

431st D. Ct.) (Complaint filed Mar. 28, 2018).

2. Van Dyke v. Retzlaff, Case No. 4:18:cv-247 (E.D.

Tex. removed Apr. 10, 2018) (motion decided Jul.

24, 2018).

3. Van Dyke v. Retzlaff, Case No. 18-40710 (5th Cir.

Oct. 22, 2019) (affirming July 24, 2018 order)

4. Van Dyke v. Retzlaff, Case No. 4:20-mc-0091-ALM

(E.D. Tex. filed Jun. 22, 2020) (motion to quash by

non-party)

III

TABLE OF CONTENTS

QUESTION PRESENTED ....................................... I

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

STATEMENT ............................................................ 1

ARGUMENT .............................................................. 3

THERE IS NO OPERATIVE CIRCUIT SPLIT ............ 3

a. The Issue on Appeal is Only Whether the

2013 version of the TCPA Applied in

Diversity Cases, and There is No Circuit

Split on This Issue ......................................... 3

b. The Circuits that Have Applied Anti-SLAPP

Statutes in Diversity Cases Dealt with Laws

that Differ from the TCPA ............................. 5

The Circuits That Have Rejected Application

of Anti-SLAPP Statutes in Diversity Cases

Dealt with Laws Closer to the TCPA .......... 12

II. THE 2013 TCPA DID NOT APPLY IN

FEDERAL COURT ............................................... 14

a. The 2013 TCPA Directly Collided with

Federal Rules 8 and 12 ................................ 16

b. The 2013 TCPA Directly Collided with

Federal Rule 56 and the Right to a

Jury Trial ..................................................... 19

The 2013 TCPA Collided with Federal

Rule 26 and the Inherent Right of Federal

Courts to Manage Their Own Docket and

Regulate Discovery ....................................... 23

III. THE OPERATIVE VERSION OF THE TCPA NO

LONGER EXISTS ............................................... 26

CONCLUSION ........................................................ 29

TABLE OF AUTHORITIES

CASES:

Page(s)

Abbas v. Foreign Policy Group, LLC,

783 F.3d 1328 (D.C. Cir. 2015) ................. 13, 15, 16

Adelson v. Harris,

774 F.3d 803 (2d Cir. 2014) ............................. 6, 8, 9

Anderson v. Liberty Lobby, Inc.,

477 U.S. 242 (1986) ............................................... 20

Bearint v. Dorell Juvenile,

389 F.3d 1339 (11th Cir. 2004) ............................. 16

Bell Atlantic Corp. v. Twombly,

550 U.S. 544 (2007) ............................................... 16

Block v. Tanenhaus,

815 F.3d 218 (5th Cir. 2016) ................................. 21

Breitling Oil & Gas Corp. v. Petroleum Newspapers

of Alaska, LLC, No. 05-14-00299-CV, 2015 Tex.

App. LEXIS 3209, 2015 WL 1519667 (Tex. App.—

Dallas Apr. 1, 2015) ............................................... 22

Buckingham Senior Living Cmty., Inc. v.

Washington, No. 01-19-00374-CV, 2020 Tex. App.

LEXIS 4230 (Tex. App. June 4, 2020) .................. 12

Bus. Guides, Inc. v. Chromatic Communs. Enters.,

498 U.S. 533 (1991) ............................................... 16

Byrd v. Blue Ridge Rural Elec. Coop.,

356 U.S. 525 (1958) ............................................... 21

Carbone v. Cable News Network, Inc.,

910 F.3d 1345 (11th Cir. 2018) ......................... 5, 12

Celotex Corp. v. Catrett,

477 U.S. 317 (1986) ............................................... 20

CASES—continued:

Page(s)

Chamberlain v. Giampapa,

210 F.3d 154 (3rd Cir. 2000) ................................. 16

Clifford v. Trump,

339 F. Supp. 3d 915 (C.D. Cal. 2018) ................. 4, 5

Clifford v. Trump,

Case No. 2:18-cv-06893 (C.D. Cal. Oct. 2, 2018) .... 4

Clifford v. Trump,

Case No. 2:18-cv-06893 (C.D. Cal. Sept. 3, 2018) .. 4

Cordova v. Cline,

396 P.3d 159 (N.M. 2017) ...................................... 14

Crawford-El v. Britton,

523 U.S. 574 (1998) ............................................... 26

Cuba v. Pylant,

814 F.3d 701 (5th Cir. 2016) ........................... 15, 20

Davis v. Cox,

183 Wn.2d 269, 351 P.3d 862 (2015) .................... 19

Erie Railroad Co. v. Tompkins,

304 U.S. 64 (1938) ............................... 14, 15, 21, 23

Gardner v. Martino,

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

Gasperini v. Ctr. For Hum.,

518 U.S. 415 (1996) ......................................... 21, 23

Godin v. Schenks,

629 F.3d 79 (1st Cir. 2010) .................................. 7, 8

Henry v. Lake Charles Am. Press LLC,

566 F.3d 164 (5th Cir. 2009) ................................. 11

In re Lipsky,

460 S.W.3d 579 (Tex. 2015)................................... 10

CASES—continued:

Page(s)

Intercon Sols., Inc. v. Basel Action Network,

791 F.3d 729 (7th Cir. 2015) ....................... 3, 10, 19

Jones v. Bock,

549 U.S. 199 (2007) ............................................... 18

Kinney v. BCG Atty. Search, Inc., No. 03-12-00579CV, 2014 Tex. App. LEXIS 3998 (Tex. App. Apr.

11, 2014) ................................................................... 6

Klocke v. Watson,

936 F.3d 240 (5th Cir. 2019) ..........................passim

Landis v. N. Am. Co.,

299 U.S. 248 (1936) ............................................... 23

Leal v. McHugh,

731 F.3d 405 (5th Cir. 2013) ................................. 17

Leatherman v. Tarrant Cty. Narcotics Intelligence &

Coordination Unit, 507 U.S. 163 (1993) ............... 17

LegacyTexas Bank v. Harlan, No. 05-18-00039-CV,

2018 Tex. App. LEXIS 4134, 2018 WL 2926397

(Tex. App.—Dallas June 7, 2018) ......................... 22

Lexington Ins. Co. v. S.H.R.M. Catering Servs., Inc.,

567 F.3d 183 (5th Cir. 2009) ................................. 16

Liberty Synergistics Inc. v. Microflo Ltd.,

718 F.3d 138 (2d Cir. 2013) ..................................... 6

Little v. City of Seattle,

863 F.2d 681 (9th Cir. 1988) ................................. 23

Los Lobos Renewable Power, LLC v. AmeriCulture,

Inc., 885 F.3d 659 (10th Cir. 2018) ................. 13, 14

Makaeff v. Trump Univ., LLC,

715 F.3d 254 (9th Cir. 2013) ................................. 15

Metabolic Research, Inc. v. Ferrell,

693 F.3d 795 (9th Cir. 2012) ................................... 3

VII

CASES—continued:

Page(s)

Metabolife Int’l v. Wornick,

264 F.3d 832 (9th Cir. 2001) ........................... 10, 25

Mitchell v. Hood,

614 F. App’x 137 (5th Cir. 2015) ........................... 11

Phoenix Trading, Inc. v. Loops LLC,

732 F.3d 936 (9th Cir. 2013) ........................... 18, 19

Planned Parenthood Fed’n of Am. v. Ctr. For Med.

Progress, 890 F.3d 828 (9th Cir. 2018) ................... 9

Puckett v. United States,

556 U.S. 129 (2009) ............................................... 18

Rehak Creative Servs. v. Witt,

404 S.W. 3d 716 (Tex. App. Ct. 2013) ................... 10

Rosser v. Clyatt,

348 Ga. App. 40 (2018) .......................................... 12

Sarver v. Chartier,

813 F.3d 891 (9th Cir. 2016) ........................... 10, 25

Schoendorf v. U.D. Registry, Inc.,

97 Cal. App. 4th 227 (2002)..................................... 9

Schriro v. Summerlin,

542 U.S. 348 (2004) ............................................... 23

Serafine v. Blunt,

466 S.W.3d 352 (Tex. App. 2015) ...................... 6, 12

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

Co., 559 U.S. 393 (2010) .............................. 8, 11, 15

Shields v. Shields, No. 05-18-01539-CV, 2019 Tex.

App. LEXIS 7982 (Tex. App. Aug. 29, 2019) ........ 22

Steinmetz v. Coyle & Caron, Inc. (In re Steinmetz),

862 F.3d 128 (1st Cir. 2017) .................................... 7

VIII

CASES—continued:

Page(s)

Tobinick v. Novella,

848 F.3d 935 (11th Cir. 2017) ................................. 5

U.S. v. Colomb,

419 U.S. F.3d 292 (5th Cir. 2002) ......................... 23

United States ex rel. Newsham v. Lockheed Missiles

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

Van Dyke v. Retzlaff, 4:18-CV-247, 2018 U.S. Dist.

LEXIS 218669, 2018 WL 4261193 (E.D. Tex. Jul.

24, 2018) ................................................................... 1

Van Dyke v. Retzlaff,

781 Fed. Appx 368 (5th Cir. 2019) .......................... 1

Walker v. Armco Steel Corp.,

446 U.S. 740 (1980) ............................................... 16

Wallace v. McCubbin,

196 Cal. App. 4th 1169 (2011)................................. 9

Wilcox v. Superior Court,

27 Cal. App. 4th 809 (1994)................................... 10

STATUTES

14 M.R.S. § 556 ........................................................... 7

28 U.S.C. § 476 .......................................................... 24

Cal. Civ. Proc. Code § 425.16 ..................... 4, 9, 10, 25

D.C. Code § 16-5502 .............................................. 4, 13

La. C.C.P. Art. 971 .................................................... 21

Mass. Gen. Laws ch. 231, § 59H ................................ 7

N.M. Stat. Ann. § 38-2-9.1 .................................. 13, 14

NRS 41.660 ......................................................... 3, 8, 9

O.C.G.A. § 9-11-11.1 ................................................. 12

STATUTES—continued:

Page(s)

Tex. Civ. Prac. & Rem. Code § 27.001 et seq. ...passim

Tex. Gov’t Code § 311.032 ........................................ 25

Wash. Rev. Code Ann. §§ 4.24.510 ....................... 4, 19

Wash. Rev. Code Ann. §§ 4.24.525 ............................. 4

RULES

Fed. R. Civ. P. 11 ...................................................... 16

Fed. R. Civ. P. 12 ...............................................passim

Fed. R. Civ. P. 26 ................................................ 16, 24

Fed. R. Civ. P. 56 ...............................................passim

Fed. R. Civ. P. 8 ............................................ 12, 16, 17

OTHER AUTHORITIES

Acts 2011, 82nd Leg., R.S. Ch. 341 (H.B. 2973), Sec. 2,

eff. June 17, 2011..................................................... 2

Acts 2013, 83rd Leg., R.S. Ch. 1042 (H.B. 2935), Sec.

1-5, eff. June 14, 2013 ............................................. 2

Acts 2019, 86th Leg., R.S., Ch. 378 (H.B. 2730), Sec.

9, eff. September 1, 2019 ................................... 2, 26

Bryan A. Garner, et al.,

The Law of Judicial Precedent 581 (2016) ........... 21

IN THE

Supreme Court of the United States

NO. 19-1272

THOMAS CHRISTOPHER RETZLAFF,

Petitioner,

JASON LEE VAN DYKE,

Respondent.

On Petition for a Writ of Certiorari

to the United States Court of Appeals

for the Fifth Circuit

BRIEF OF RESPONDENT IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a–

3a) is reported at 781 Fed. Appx 368. The memorandum opinion of the district court (Pet. App. 4a–

10a) is unreported, but it is available at 2018 U.S.

Dist. LEXIS 218669 and 2018 WL 4261193.

STATEMENT

For purposes of this Petition, only the procedural

history of this case is relevant. On March 28, 2018,

Respondent Jason Lee Van Dyke filed suit against

Petitioner Thomas Retzlaff for defamation and

related claims. The action was removed to the U.S.

District Court for the Eastern District of Texas. (Pet.

App. 2a.) On May 22, 2018, Mr. Retzlaff filed a motion

to dismiss Mr. Van Dyke’s claims under the Texas

Citizens Participation Act (“TCPA”) (Tex. Civ. Prac. &

Rem. Code § 27.001 et seq.). (Pet. App. 2a.) The

District Court denied this motion on July 24, 2018,

finding that the then-applicable 2013 version of the

TCPA did not apply in federal court. (Pet. App. 4a.)

Mr. Retzlaff thereupon filed an interlocutory appeal

to the Fifth Circuit. (Pet. App. 2a.) While the appeal

was pending, the Fifth Circuit, in an unrelated

matter, held that the then-applicable version of the

TCPA did not apply in diversity cases in federal

court.1 See Klocke v. Watson, 936 F.3d 240, 242 (5th

Cir. 2019). After the parties submitted their briefs,

the Fifth Circuit requested supplemental briefs

discussing Klocke, which the parties filed on October

4 and 9, 2019. (Pet. App. 3a). The Fifth Circuit then

issued its decision on October 22, 2019, finding that in

light of Klocke, the 2013 TCPA did not apply in federal

diversity cases. (Pet. App. 1a.) Mr. Retzlaff sought

rehearing en banc, which the Fifth Circuit denied on

December 5, 2019. (Pet. App. 11a.)

The TCPA version at issue in this case was enacted in

2013 (the original was passed in 2011). See Acts 2011, 82nd Leg.,

R.S. Ch. 341 (H.B. 2973), Sec. 2, eff. June 17, 2011, and Acts

2013, 83rd Leg., R.S. Ch. 1042 (H.B. 2935), Sec. 1-5, eff. June 14,

2013. The TCPA was again overhauled in 2019. See Acts 2019,

86th Leg., R.S., Ch. 378 (H.B. 2730), Sec. 9, eff. September 1,

2019. The 2019 version is not applicable to this case, and is

operatively different from the 2011 and 2013 versions. See

Section III, infra.

ARGUMENT

THERE IS NO OPERATIVE CIRCUIT SPLIT

a. The Issue on Appeal is Only Whether the

2013 version of the TCPA Applied in

Diversity Cases, and There is No Circuit

Split on This Issue

Contrary to Mr. Retzlaff’s claim, there is no operative circuit split as to whether the TCPA applies in

federal court – much less one regarding the 2013

version of the law. Mr. Retzlaff attempts to broaden

the scope of this appeal by claiming that the actual

question before the Court is whether all Anti-SLAPP

statutes conflict with the Federal Rules of Civil

Procedure. But this is not the issue, nor could it be;

Anti-SLAPP statutes vary so much from state to state

that such a broad question could not possibly be before

this Court, or any court below. As the Ninth Circuit

recognized, each state’s statute has its own distinctive

features. See Metabolic Research, Inc. v. Ferrell, 693

F.3d 795, 799 (9th Cir. 2012) (finding that “deeper

inspection has persuaded us that, while all of the

[anti-SLAPP] statutes have common elements, there

are significant differences as well, so that each state’s

statutory scheme must be evaluated separately”);2 see

also Intercon Sols., Inc. v. Basel Action Network, 791

F.3d 729, 732 (7th Cir. 2015) (finding the Washington

Anti-SLAPP statute could not be applied, yet observing that the “resolution of questions about how the

In Metabolic Research, the Ninth Circuit expressly

avoided the Erie issue as to the applicability of the Nevada AntiSLAPP statute, NRS 41.660, in federal court. 693 F.3d at 798

n.4. In Gardner v. Martino, the Ninth Circuit expressly held the

Oregon Anti-SLAPP statute, Or. Rev. Stat. § 31.150, did not

collide with the Federal Rules. 563 F.3d 981, 990-91 (9th Cir.

2009).

procedural aspects of other states’ anti-SLAPP statutes work in federal court will have to await some

other case.”) Though those statutes serve similar

purposes, there are distinctions. Compare Wash. Rev.

Code Ann. §§ 4.24.510 & 4.24.525 and D.C. Code § 165502 with Cal. Civ. Proc. Code § 425.16.

With the question properly narrowed, the only

support for Mr. Retzlaff’s argument is Clifford v.

Trump, 339 F. Supp. 3d 915 (C.D. Cal. 2018), where

the Central District of California granted a motion to

dismiss brought under the 2013 version of the TCPA.

But the Central District of California engaged in no

analysis of the issue and made no conclusion about

the applicability of the 2013 TCPA in federal court.

Crucially, defendant Stephanie Clifford failed to

argue that the TCPA did not apply in federal court;3

rather, the contested issue was which state’s AntiSLAPP statute applied. Id. at 920–21. There was no

occasion for that court to address an uncontested

issue, and the application of the TCPA in that one case

does not represent a conflicting finding in the Ninth

Circuit that the TCPA applies in federal court.4

Clifford’s waiver of the argument that the 2013

TCPA did not apply in federal court is similar to what

Ms. Clifford, in her written opposition before the district

court, only argued that a motion under the TCPA must be

considered either as a Rule 12 motion or Rule 56 motion,

necessitating discovery if the latter. See Clifford v. Trump, Case

No. 2:18-cv-06893 (C.D. Cal. Sept. 3, 2018) (Memorandum in

Opposition at 7 & 11). She did not argue it could not apply at all.

See id. At oral argument, she asserted it should be construed as

a summary judgment motion. See Clifford v. Trump, Case No.

2:18-cv-06893 (C.D. Cal. Oct. 2, 2018) (Transcript of Hearing of

Sept. 24, 2018 at 15:13–18).

Ms. Clifford subsequently raised the issue for the first

time on appeal to the Ninth Circuit.

occurred in Tobinick v. Novella, 848 F.3d 935 (11th

Cir. 2017) cert. denied 138 S. Ct. 449 (2017). The

California plaintiff there appealed the grant of a

special motion to dismiss under California’s AntiSLAPP statute; the plaintiff raised the applicability

issue for the first time on appeal and was deemed to

have waived the issue. 848 F.3d at 943–45. The Eleventh Circuit subsequently deemed the affirmation of

the district court’s order in Tobinick as nonprecedential and, in Carbone v. Cable News Network,

Inc., held that Georgia’s Anti-SLAPP statute did not

apply in federal court. 910 F.3d 1345, 1347 (11th Cir.

2018). Should the Ninth Circuit affirm the district

court in Clifford, it will be under similar non-binding

circumstances and will not give rise to a circuit split

on the issue of whether the 2013 TCPA applies in

federal diversity cases.

As there are no courts outside the Fifth Circuit

that have engaged in a binding substantive analysis

as to whether the 2013 TCPA applies in diversity

cases, there is no circuit split, and the Court should

deny Mr. Retzlaff’s Petition.

b. The Circuits that Have Applied AntiSLAPP Statutes in Diversity Cases Dealt

with Laws that Differ from the TCPA

There is no reason for this Court to expand the

relevant question here to any general Anti-SLAPP

principle. Mr. Retzlaff identifies different Circuits

that have come to different conclusions about different state laws, but the courts have found that laws

similar to the TCPA do not apply.

It cannot be said that the 2013 version of the TCPA

at issue “is comparable to the California ‘anti-SLAPP’

law (or that of any other state) in all material

respects, nor that textually similar provisions must

necessarily be construed the same way.” Serafine v.

Blunt, 466 S.W.3d 352, 387 n.122 (Tex. App. 2015)

(Pemberton, J., concurring, distinguishing Kinney v.

BCG Atty. Search, Inc., No. 03-12-00579-CV, 2014

Tex. App. LEXIS 3998 (Tex. App. Apr. 11, 2014)).

Texas’s Anti-SLAPP statute was amended, effective

September 1, 2019, which amendments materially

changed many of its provisions. As Mr. Van Dyke

filed suit in 2018, prior to these amendments, the pre2019 version of the statute applies to this dispute and

will be cited throughout. Accord Adelson v. Harris,

774 F.3d 803 (2d Cir. 2014) (applying pre-2013 version

of Nevada Anti-SLAPP statute because suit was filed

under pre-2013 version).5

The 2013 version of the TCPA at issue allowed a

party to file a motion to dismiss a legal action that is

“based on, relates to, or is in response to a party’s

exercise of the right of free speech, right to petition, or

right of association . . . .” Tex. Civ. Prac. & Rem. Code

§ 27.003(a).6 The moving party bore the initial burden

of showing the plaintiff’s suit is “based on, relates to,

or is in response to” the defendant’s exercise of these

rights. Id. at § 27.005(b). If the moving party made

this showing, the burden then shifted to the non5

The Second Circuit in Adelson also focused on the issues

of immunity and fee shifting, rather than conflict with Rules 12

and 56. 774 F.3d at 809. In fact, it expressly avoided addressing

a potential collision between Nevada’s discovery stay and Rule

56(d). Id. Similarly, in utilizing the California Anti-SLAPP

statute, the Second Circuit did not address the collision issue.

Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 147–48

(2d Cir. 2013).

All citations to the statute are to the version as it stood

prior to the 2019 amendments except where otherwise

discussing those amendments.

moving party to “establish[ ] by clear and specific

evidence a prima facie case for each essential element

of the claim in question.” Id. at § 27.005(c). Even if

the plaintiff met this burden of proof, the court was

required to “dismiss a legal action against the moving

party if the moving party establishe[d] by a preponderance of the evidence each essential element of a

valid defense to the nonmovant’s claim.” Id. at

§ 27.005(d). In deciding a TCPA motion, a court was

required to consider “the pleadings and supporting

and opposing affidavits stating the facts on which the

liability or defense is based.” Id. at § 27.006(a). The

statute required courts to hear and decide a motion

under the TCPA within a specified time (id. at

§ 27.004, § 27.005(a)), the filing of a motion automatically stays all discovery (id. at § 27.003(c)), and the

court was required to award costs, reasonable

attorneys’ fees, and monetary sanctions to a prevailing movant in an amount the “court determines

sufficient to deter the party who brought the legal

action from bringing similar actions described in this

chapter.” Id. at § 27.009(a)(1)–(2).

The First, Second, and Ninth Circuits all dealt

with substantially different statutes. The First

Circuit, in Godin v. Schenks, found that Maine’s AntiSLAPP statute applied in diversity cases. 629 F.3d

79, 81 (1st Cir. 2010).7 Maine’s law, 14 M.R.S. § 556,

provides that a party may bring a special motion to

dismiss a claim “based on the moving party’s exercise

of the moving party’s right to petition . . . .” The non7

The applicability of the Massachusetts Anti-SLAPP

statute, Mass. Gen. Laws ch. 231, § 59H, was raised (specifically

as to the Seventh Amendment) before the First Circuit, but not

adjudicated. Steinmetz v. Coyle & Caron, Inc. (In re Steinmetz),

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

moving party must “show[ ] that the moving party’s

exercise of its right of petition was devoid of any

reasonable factual support or any arguable basis in

law and that the moving party’s acts caused actual

injury to the responding party.” Id. Maine’s statute

was found not to directly collide with or ask the same

questions as Federal Rules 12 and 56, because

Maine’s statute provided a substantive right, including burden of proof allocation and substantive legal

defenses “function[ing] to define the scope of the statecreated right.” 629 F.3d at 89–90 (quoting Shady

Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559

U.S. 393, 423 (2010) (Stevens, J., concurring)). This

is in contrast to the 2013 TCPA, whose “burdenshifting framework impose[d] additional requirements beyond those found in Rules 12 and 56 and

answer[ed] the same question as those rules.” Klocke

v. Watson, 936 F.3d 240, 245 (5th Cir. 2019).

The Second Circuit in Adelson found that Nevada’s

Anti-SLAPP statute could be partially applied in

federal diversity cases. 774 F.3d at 809. Specifically,

the Second Circuit found that the substantive statutory immunity from suit and mandatory fee shifting

were “unproblematic.” Id. The procedural question

in Adelson, regarding the availability of a stay of

discovery, was not decided under the Nevada AntiSLAPP statute, but rather under Rule 56. Id. The

Second Circuit did not confront the issue of a potential

collision between the operative statute,8 NRS 41.660,

and Rules 12 & 56. Further, the operative statute

provided specifically that a special motion to dismiss

In 2013 and 2015, Nevada’s Anti-SLAPP statute

underwent significant revisions that broadened its scope, among

other things. This suit was filed prior to 2013, and so this brief

will discuss the pre-2013 version of the statute.

under the statute was to be “[t]reat[ed] . . . as a motion

for summary judgment.” NRS 41.660(3)(a). This is

very different from the TCPA, which not only shifts

the burden to a plaintiff to establish his claims, unlike

in responding to a summary judgment motion, but

also to prove his claims with the higher standard of

“clear and specific” evidence. Thus, there is no split

between the decisions in Adelson and Klocke.

Finally, the Ninth Circuit has repeatedly held that

California’s Anti-SLAPP statute, Cal. Civ. Proc. Code

§ 425.16, applies in federal diversity cases. This

statute allows a defendant to file a special motion to

strike “[a] cause of action . . . arising from any act of

that person in furtherance of the person’s right of

petition or free speech under the United States

Constitution or the California Constitution in

connection with a public issue . . . .” Cal. Civ. Proc.

Code § 425.16(b)(1). In opposing a special motion to

strike, the plaintiff must “establish[ ] that there is a

probability that the plaintiff will prevail on the

claim.” In analyzing the merits of a plaintiff’s claim,

California courts use “a summary-judgment-like procedure.” Wallace v. McCubbin, 196 Cal. App. 4th

1169, 1180–81 (2011); see Schoendorf v. U.D. Registry,

Inc., 97 Cal. App. 4th 227, 236 (2002).

Ninth Circuit courts that have applied this statute

have treated it as providing a substantive right in the

context of either a motion to dismiss under Fed. R.

Civ. P. 12(b)(6) or a motion for summary judgment

under Rule 56, and they do not weigh the evidence.

See Planned Parenthood Fed’n of Am. v. Ctr. For Med.

Progress, 890 F.3d 828, 833 (9th Cir. 2018); see also

United States ex rel. Newsham v. Lockheed Missiles &

Space Co., 190 F.3d 963, 973 (9th Cir. 1999) citing

Wilcox v. Superior Court, 27 Cal. App. 4th 809, 819-

21, 33 Cal. Rptr. 2d 446, 452-53 (1994). Furthermore,

the Ninth Circuit has applied California’s law in only

a piecemeal fashion, determining that the procedural

aspects are severable. Contrast Intercon Sols., supra

at 732 (observing that Washington had declared that

the procedural aspects of its statute were not

severable). The Ninth Circuit has repeatedly held

that California’s purely procedural elements, such as

the stay on discovery and provisions regarding timing,

are not to be applied in federal court. See, e.g., Sarver

v. Chartier, 813 F.3d 891, 900 (9th Cir. 2016) (refusing

to apply time limit of Cal. Civ. Proc. Code § 425.16(f));

Metabolife Int’l v. Wornick, 264 F.3d 832, 845–46 (9th

Cir. 2001) (refusing to apply discovery-limiting

aspects of Cal. Civ. Proc. Code § 425.16(f) & (g)).

Just as with Nevada’s prior statute, the application of California’s Anti-SLAPP law differs significantly from the TCPA because of its summary

judgment standard. The Texas Supreme Court has

clarified that the “clear and specific evidence”

standard means “unambiguous, sure, or free from

doubt,” “explicit or relating to a particular named

thing,” and that supports a rational inference that the

alleged fact is true and lies somewhere between

Texas’ notice pleading standard and the evidentiary

standard to prevail at trial. In re Lipsky, 460 S.W.3d

579, 590–91 (Tex. 2015). This requires a court to

weigh evidence before trial both in support of and in

opposition to legal claims and defenses. See Rehak

Creative Servs. v. Witt, 404 S.W. 3d 716, 732 (Tex.

App. Ct. 2013) (determining that the “record [did] not

contain the minimum quantum of clear and specific

evidence”). Thus, at the beginning of the case, a

plaintiff must satisfy a burden that nears the evidentiary standard required to prevail at trial, well beyond

what would be required under Rule 56, let alone

under Rule 12.

The federal courts that have allowed Anti-SLAPP

statutes in diversity cases have either dealt with laws

that impose requirements completely apart from the

merits of a plaintiff’s claims (Maine), or that treat an

Anti-SLAPP motion as a motion for summary

judgment (Nevada and California).9 The 2013 TCPA

did neither. The statute does not impose burdens on

a plaintiff that are separate from the merits of his

claims; he is instead required to prove each essential

element of his claims with “clear and specific

evidence.” The 2013 TCPA’s evidentiary burden was

higher than that imposed on plaintiffs by Maine,

Nevada, or California’s laws, and its burden-shifting

framework is inconsistent with a motion to dismiss

under Federal Rule 12(b)(6) or a motion for summary

judgment under Rule 56. Mr. Retzlaff does not

identify any Circuit that has found application of a

law similar to the TCPA in federal court is

appropriate.

The Fifth Circuit itself had previously applied the

Louisiana Anti-SLAPP statute in Henry v. Lake Charles Am.

Press LLC, 566 F.3d 164 (5th Cir. 2009). However, in Klocke, the

Fifth Circuit distinguished Henry, noting that the earlier case

did not confront the conflict between state and federal law and

that it pre-dated this Court’s decision in Shady Grove. 936 F.3d

at 248-249. In Mitchell v. Hood, the Fifth Circuit opted to “not

decide whether Louisiana’s anti-SLAPP law is appropriately

asserted in a federal diversity case,” deciding the case on

alternate grounds. 614 F. App’x 137, 139 n.1 (5th Cir. 2015).

Thus, it did not render any precedential decision on the issue

until Klocke.

c. The Circuits That Have Rejected

Application of Anti-SLAPP Statutes in

Diversity Cases Dealt with Laws Closer to

the TCPA

The Texas courts have explained that the 2013

TCPA protected the rights of citizens to petition and

speak on matters of public concerns “by creating a ‘set

of procedural mechanisms[.]’” Buckingham Senior

Living Cmty., Inc. v. Washington, No. 01-19-00374CV, 2020 Tex. App. LEXIS 4230, at *4 (Tex. App. June

4, 2020) (quoting Serafine, supra at 369 (Pemberton,

J., concurring)). The Eleventh Circuit has found that

the motion-to-strike provision of Georgia’s AntiSLAPP statute, O.C.G.A. § 9-11-11.1, does not apply

in federal diversity cases. Carbone v. CNN, Inc., 910

F.3d 1345 (11th Cir. 2018). Though Georgia’s law

contained wording similar to California’s statute

regarding a plaintiff’s burden to show a probability of

prevailing on his claims, Georgia courts found that

the statute “contemplates a substantive, evidentiary

determination of the plaintiff’s probability of

prevailing on his claims.” Rosser v. Clyatt, 348 Ga.

App. 40, 43 (2018). The Carbone court reasoned that

the law conflicted with Federal Rules 8, 12, and 56

because the plaintiff’s “evidentiary burden is far more

demanding than one requiring him only to identify

material factual disputes that a jury could reasonably

resolve in his favor, and it requires the court to

consider whether the factual underpinnings of the

plaintiff’s claim are likely true.” Carbone, 910 F.3d at

1351. Just as Georgia’s Anti-SLAPP statute imposes

an evidentiary requirement beyond the Federal

Rules, so did the 2013 TCPA by forcing a plaintiff to

make a showing by “clear and specific evidence”

beyond what is required by the Federal Rules. The

2013 TCPA was even more explicit about imposing a

burden inconsistent with the Federal Rules.

The D.C. Circuit dealt with the District of

Columbia’s Anti-SLAPP law, D.C. Code § 16-5502.

Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328

(D.C. Cir. 2015). Similar to Georgia’s law, D.C.’s law

requires a plaintiff to oppose a special motion to

dismiss under the statute by “demonstrat[ing] that

the claim is likely to succeed on the merits, in which

case the motion shall be denied.” D.C. Code § 165502(b). Justice Kavanaugh, writing for the panel,

found the D.C. statute does not apply in federal court

and noted that a plaintiff’s burden under the law

conflicted with Federal Rules 12 and 56 because the

Rules “do not require a plaintiff to show a likelihood

of success on the merits in order to avoid pre-trial

dismissal.”

Abbas, 783 F.3d 1328 at 1334.

Importantly, the Abbas court observed that, unlike

with California’s statute, “the D.C. Court of Appeals

has never interpreted the D.C. Anti-SLAPP Act’s

likelihood of success standard to simply mirror the

standards imposed by Federal Rules 12 and 56.” Id.

at 1335. Again, a motion under the 2013 TCPA was

not treated as a motion for summary judgment, and

thus the 2013 TCPA was similar to D.C.’s law.

The Tenth Circuit found that New Mexico’s AntiSLAPP law, N.M. Stat. Ann. § 38-2-9.1, was purely

procedural and thus did not apply in federal diversity

cases. Los Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659, 669 (10th Cir. 2018) cert.

denied 139 S. Ct. 591 (2018). Unlike the other AntiSLAPP laws addressed by the other Circuits, New

Mexico’s law provided merely that a party could bring

“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). It also allowed for an award of costs and

fees if one of these types of motions were granted. Id.

at § 38-2-9.1(B). Because the New Mexico law did not

create a substantive right to immunity from certain

kinds of lawsuits, but instead created only a

procedural fast-track for qualifying cases, it was

merely procedural under Erie and did not apply in

federal diversity cases. AmeriCulture, 885 F.3d at

669. Instructive in this analysis was a decision by the

New Mexico Supreme Court emphasizing that the

protections of the statute were purely procedural. Id.

at 669–70 (citing Cordova v. Cline, 396 P.3d 159, 162

(N.M. 2017)). New Mexico’s statute is materially

different from the 2013 TCPA and all other AntiSLAPP laws considered by the Circuit Courts of

Appeals, and AmeriCulture does not support Mr.

Retzlaff’s argument that there is a circuit split

regarding Anti-SLAPP statutes.

II.

THE 2013 TCPA DID NOT APPLY IN FEDERAL

COURT

Even assuming an operative circuit split did exist,

the Fifth Circuit has correctly found that the 2013

TCPA did not apply in federal diversity cases because

it directly collided with multiple Federal Rules of Civil

Procedure. The Fifth Circuit’s decision in Klocke, as

applied in this case, below, is well-grounded.

Many states have enacted Anti-SLAPP statutes as

a means for “giving more breathing space for free

speech about contentious public issues” by “making it

easier to dismiss defamation suits at an early stage of

litigation.” Abbas v. Foreign Policy Groups, LLC, 783

F.3d 1328, 1332 (D.C. Cir. 2015); see also Cuba v.

Pylant, 814 F.3d 701, 707 (5th Cir. 2016). As noble

the intent, the 2013 TCPA does not have a place in the

federal courts.

Texas’s procedural requirements, if anything,

were like the California ones not applied by the Ninth

Circuit. Former Ninth Circuit judge Alex Kozinski

described these requirements as “exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied by the Federal Rules” that

federal courts have no business applying. Makaeff v.

Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013)

(Kozinski, J., concurring) reh’g en banc denied 736

F.3d 1180 (9th Cir. 2013). This inquiry is relevant

only if the state rules are substantive, rather than

procedural, under Erie Railroad Co. v. Tompkins, 304

U.S. 64 (1938). While the majority, if not the entirety,

of the 2013 TCPA was procedural, this distinction

does not matter because the Rules Enabling Act

precludes application of the 2013 TCPA in diversity

cases.

“A federal court exercising diversity jurisdiction

should not apply a state law or rule if (1) a Federal

Rule of Civil Procedure ‘answer[s] the same question’

as the state law or rule and (2) the Federal Rule does

not violate the Rules Enabling Act.” Abbas v. Foreign

Policy Group, LLC, 783 F.3d 1328, 1333 (D.C. Cir.

2015) (quoting Shady Grove Orthopedic Assocs., P.A.

v. Allstate Ins. Co., 559 U.S. 393, 398–99 (2010)).

Justice Stevens also noted in Shady Grove that a valid

Federal Rule controls where “the federal rule is ‘sufficiently broad to control the issue before the Court,’

such that there is a ‘direct collision.’” 559 U.S. at 422

(Stevens, J., concurring) (quoting Walker v. Armco

Steel Corp., 446 U.S. 740, 749–50 (1980)).

Federal Rules of Civil Procedure 8, 11, 12, 26, and

56 are valid under the Rules Enabling Act. See, e.g.,

Chamberlain v. Giampapa, 210 F.3d 154, 160 (3rd

Cir. 2000) (noting “[t]here is, of course, no contention

that Federal Rules 8 and 9 are beyond the scope of the

Rules Enabling Act . . . .”); Bus. Guides, Inc. v. Chromatic Communs. Enters., 498 U.S. 533, 552–54 (1991)

(Rule 11); Abbas, 783 F.3d at 1333 (Rules 12 and 56);

Bearint v. Dorell Juvenile, 389 F.3d 1339, 1353 (11th

Cir. 2004) (noting that portion of Rule 26 would

govern in diversity case even if inconsistent with

Florida law). Mr. Retzlaff does not argue otherwise.

Thus, the only question is whether there is a “direct

collision” between the 2013 TCPA and the Federal

Rules.

a. The 2013 TCPA Directly Collided with

Federal Rules 8 and 12

Mr. Retzlaff did not file his TCPA motion in a

manner invoking Rule 12 or any Federal rule—he

filed it six days before he filed his Rule 12 motion

(asserting lack of personal jurisdiction under Rule

12(b)(2)). A TCPA motion tests a complaint in a way

that Rule 12(b)(6) does not. To survive a Rule 12(b)(6)

motion, it is generally understood that a “complaint

must contain sufficient factual matter, accepted as

true, to state a claim to relief that is plausible on its

face.” Lexington Ins. Co. v. S.H.R.M. Catering Servs.,

Inc., 567 F.3d 183, 184 (5th Cir. 2009). “Asking for

plausible grounds . . . does not impose a probability

requirement at the pleading stage . . . .” Bell Atlantic

Corp. v. Twombly, 550 U.S. 544, 545 (2007). Thus, it

has been held that, under Rule 12(b)(6), “a well-

pleaded complaint may proceed even if it strikes a

savvy judge that actual proof of those facts is improbable,” and that recovery is remote and unlikely. Leal

v. McHugh, 731 F.3d 405, 413 (5th Cir. 2013).

Similarly, Rule 8 does not require a plaintiff to

provide anything beyond simple “notice pleading.”10

See, e.g., Leatherman v. Tarrant Cty. Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 168 (1993)

(rejecting a heightened pleading standard under

Section 1983). In fact, when a court decides to

consider extrinsic evidence in a motion to dismiss, it

must convert the motion to dismiss to a motion for

summary judgment. Fed. R. Civ. P. 12(d)).

In direct conflict with these rules, the 2013 TCPA

required a court to consider extrinsic evidence. To

defeat a TCPA motion, a plaintiff must present

extrinsic evidence. A court is required to “consider the

pleadings and supporting and opposing affidavits

stating the facts on which the liability or defense is

based.” Tex. Civ. Prac. & Rem. Code § 27.006(a).

A federal court applying the 2013 TCPA would thus

be required to disregard Rule 12(b)(6) and automatically treat all motions to dismiss as a motion for

summary judgment. This removes a district court’s

discretion to disregard extrinsic evidence in connection with a motion to dismiss, directly colliding with

Rule 12.

Mr. Retzlaff argues the 2013 TCPA did not directly

collide with or answer the same question as Rule 12

because it applies only to a specific subset of cases.

Mr. Retzlaff argues that the Fifth Circuit should have

treated his motion as an affirmative defense under Rule 8. This

issue is not ripe – Mr. Retzlaff never filed an answer and

affirmative defenses, but rather filed a Rule 12(b)(2) motion days

later.

But Rule 12 is broader than the 2013 TCPA, and by

necessity they answer the same question: under what

circumstances may a defendant in an alleged SLAPP

suit dismiss a plaintiff’s claims. This same reasoning

applies to the inquiry under Rule 56, as well.

Mr. Retzlaff argues that the 2013 TCPA could

have been reconciled with the Federal Rules by

treating the concept of immunity under the statute as

an affirmative defense. (Petition at 20–21.) This is

the first time Mr. Retzlaff has made this argument;

he did not raise it at the district court or before the

Fifth Circuit. Through his failure to make this

argument previously, he has forfeited and cannot

raise it for the first time here. See Puckett v. United

States, 556 U.S. 129, 135–36 (2009).

But even if it were not too late for him to make this

argument, it makes no sense and would not have

assisted him at the district court. Under Fed. R. Civ.

P. 12(b)(6), a district court must accept all well-pled

factual allegations as true. See, e.g, Jones v. Bock, 549

U.S. 199, 215 (2007). A court may grant a Rule

12(b)(6) motion based on an affirmative defense, but

only if the applicability of the defense is apparent on

the face of the complaint; the court does not consider

extrinsic evidence. See id. Yet the “affirmative

defense” of the TCPA’s immunity from suit required

consideration of extrinsic evidence, per the terms of

the TCPA itself. Tex. Civ. Prac. & Rem. Code

§ 27.006(a).

Mr. Retzlaff tries to bolster his affirmative defense

argument by reference to Phoenix Trading, Inc. v.

Loops LLC, but this case provides no assistance. 732

F.3d 936 (9th Cir. 2013). It discussed Washington’s

Anti-SLAPP statute, which explicitly provided that it

grants “immun[ity] from civil liability” for certain

qualifying statements.

Wash. Rev. Code Ann.

§ 4.24.510. The Ninth Circuit noted that Washington

courts described the statute’s protections as an

affirmative defense. Phoenix Trading, 732 F.3d at

942. This was not a litigated issue before the Ninth

Circuit and the collision issue never arose. However,

in its later decision interpreting its own law, the

Washington Supreme Court determined that the

statute violated the right to trial by jury; in so doing,

it held that the procedural portions were not

severable from the substantive. See Intercon Sols.,

791 F.3d at 732 (7th Cir. 2015) (citing Davis v. Cox,

183 Wn.2d 269, 275, 351 P.3d 862 (2015)). Not being

severable, the Washington statute’s procedural

provisions caused the entire statute to be in conflict

with the Federal rules. The assumptions made by the

Ninth Circuit in Phoenix Trading, in discussing the

Washington statute's parallels to the California AntiSLAPP statute, would not have survived post-Davis

scrutiny. 732 F.3d at 942 n.6. By extension, Mr.

Retzlaff could not file a 2013 TCPA motion without

colliding with the Federal Rules.

b. The 2013 TCPA Directly Collided with

Federal Rule 56 and the Right to a Jury

Trial

Mr. Retzlaff cannot avoid a collision with Rule 56

either. Rule 56 permits summary judgment “if the

movant shows that there is no genuine dispute as to

any material fact and the movant is entitled to

judgment as a matter of law.” Fed. R. Civ. P. 56(a).

Significantly, it is the moving party that bears the

initial burden. Opposing a motion under Rule 56 only

requires a party to show a genuine dispute of material

fact. See., e.g., Celotex Corp. v. Catrett, 477 U.S. 317,

323 (1986).

The 2013 TCPA, to the contrary, inverted these

burdens. The moving party does bear an initial

burden, but it is only to show that the “legal action is

based on, relates to, or is in response to” enumerated

types of speech-related conduct. Tex. Civ. Prac. &

Rem. Code § 27.005(b).11 Once the moving party

meets this burden, the burden shifts to the nonmoving party to show a prima facie case by “clear and

specific” evidence. Id. at § 27.005(c). Once the trial

court can reach the merits, the non-moving party

must perform all the legwork, which directly collides

with how burdens are allocated under Rule 56. Even

though the moving party bore an initial burden under

the TCPA to establish a defense or that the claims are

meritless, the statute would still directly collide with

Rule 56 because its “clear and specific evidence”

requirement exceeds anything a non-moving party

must show in a Rule 56 motion.

The Fifth Circuit in Klocke v. Watson acknowledged that this burden-shifting was an especially

problematic element of the 2013 TCPA, and it was

material to the court’s decision that the 2013 TCPA

did not apply in federal court. 936 F.3d 240, 248-49

(finding that “Texas imposes higher and more

The Fifth Circuit previously assumed, without deciding,

that the 2013 TCPA could be applied. See Cuba v. Pylant, 814

F.3d 701, 706 n.6 (5th Cir. 2016). In Cuba, the Fifth Circuit

relayed that the movant’s burden is under the “preponderance of

the evidence standard.” 814 F.3d at 711. Summary judgment

has a different formulation; it “asks whether reasonable jurors

could find by a preponderance of the evidence that the plaintiff

is entitled to a verdict.” Anderson v. Liberty Lobby, Inc., 477 U.S.

242, 252 (1986).

complex preliminary burdens on the motion to dismiss

process and imposes rigorous procedural deadlines”).

It compared this burdensome framework with

Louisiana’s Anti-SLAPP statute, La. C.C.P. Art. 971,

which was more compatible with the Federal Rules

because it only required a plaintiff to “establish[ ] a

probability of success on the claim” and that a nonmovant’s burden was “functionally equivalent to that

under Rule 56.” Id. at 248–49 (citing Block v.

Tanenhaus, 815 F.3d 218, 221 (5th Cir. 2016)).

The 2013 TCPA’s direct collision is not limited only

to Rule 56, but also to the right to a civil jury trial

under the Seventh Amendment.

The “Seventh

Amendment . . . assigns the decisions of disputed fact

to the jury.” Gasperini v. Ctr. For Hum., 518 U.S. 415,

432 (1996). That is important because this Court has

held that in the Erie doctrine context, courts should

not apply state law that conflicts with overriding

federal interests, such as the right to trial by jury for

disputed factual questions. See Byrd v. Blue Ridge

Rural Elec. Coop., 356 U.S. 525, 535 (1958) (finding

that Seventh Amendment rights overrode state

interests in allowing judge to determine factual

questions in workers’ compensation case). Justices

Gorsuch and Kavanaugh have previously expressed

support for this position. See Bryan A. Garner, Carlos

Bea, . . . Neil M. Gorsuch, . . . Brett M. Kavanaugh, et

al., The Law of Judicial Precedent 581 (2016) (stating

“a federal court will not apply a state’s law or

procedure that conflicts with an overriding federal

interest, such as the right to trial by jury guaranteed

by the Seventh Amendment”) (citing Gasperini, 518

U.S. at 426; Byrd, 356 U.S. at 537–40). Texas courts

themselves have avoided this issue. See, e.g., Shields

v. Shields, No. 05-18-01539-CV, 2019 Tex. App.

LEXIS 7982, at *9 n.6 (Tex. App. Aug. 29, 2019)

(abstaining on the issue of right to a jury trial where

matter decided on other grounds).

Mr. Retzlaff attempts to dismiss this conflict by

noting that federal courts routinely engage in factfinding and weighing of evidence in pre-trial proceedings such as disputes over diversity and personal

jurisdiction. (See Petition at 25.) There is a crucial

distinction between these proceedings; a TCPA

motion is dispositive in nature. To secure a plaintiff’s

right to a jury trial, Federal Rules 12(b)(6) and 56 do

not allow the weighing of evidence in assessing the

merits of the claim. Jurisdictional disputes, on the

other hand, do not typically result in dismissal with

prejudice. A successful TCPA motion dismisses a

complaint with prejudice. See LegacyTexas Bank v.

Harlan, No. 05-18-00039-CV, 2018 Tex. App. LEXIS

4134, 2018 WL 2926397, at *5 (Tex. App.—Dallas

June 7, 2018, no pet.) (mem. op.); Breitling Oil & Gas

Corp. v. Petroleum Newspapers of Alaska, LLC, No.

05-14-00299-CV, 2015 Tex. App. LEXIS 3209, 2015

WL 1519667, at *3 (Tex. App.—Dallas Apr. 1, 2015,

pet. denied) (mem. op.). Thus, it cannot be compared

to a motion to resolve a jurisdictional dispute.

Mr. Retzlaff also argues that the burden of proof

for a state law claim is dictated by state law, and thus

there is no conflict between the 2013 TCPA and the

Federal Rules. (Petition at 24.) This attempted

sleight-of-hand is logically faulty. A state obviously

may apportion the ultimate burdens of proof for a

state law claim. In fact, a plaintiff constitutionally

must bear the burden of proving the types of claims,

such as defamation, that would normally implicate

the TCPA. However, this burden of proof need only

be met at trial, not at the outset of litigation. A state

is not free to decide that a plaintiff must prove the

entirety of his case at the outset without the benefit

of discovery. Otherwise, the state would violate a

plaintiff’s constitutional right to a civil jury trial. In

arguing for a novel motion practice to resolve

substantive matters otherwise appropriate for trial,

Mr. Retzlaff unintentionally highlights that the 2013

TCPA was procedural, rather than substantive, and

should not be applied under the Erie doctrine. This

Court has previously held that “[re]allocat[ions] of

decisionmaking authority . . . are prototypical

procedural rules.” Schriro v. Summerlin, 542 U.S.

348, 353 (2004). Federal courts should apply federal

law in the face of this attempted reallocation. See

Gasperini, 518 U.S. at 427.

c. The 2013 TCPA Collided with Federal

Rule 26 and the Inherent Right of Federal

Courts to Manage Their Own Docket and

Regulate Discovery

District courts require substantial inherent

authority to manage the means and timing of judicial

process to effectively address the business of federal

courts. See, e.g., Landis v. N. Am. Co., 299 U.S. 248,

254 (1936); Little v. City of Seattle, 863 F.2d 681, 685

(9th Cir. 1988); U.S. v. Colomb, 419 U.S. F.3d 292, 299

(5th Cir. 2002). The TCPA interferes with this

authority.

First, the 2013 TCPA required that a motion under

the statute be heard no later than 90 days following

service of the motion, unless the court permits

discovery. Tex. Civ. Prac. & Rem. Code § 27.004.12

Even when discovery is permitted, the court must still

conduct a hearing within 120 days of the motion being filed. Id.

at § 27.004(c).

The court must then rule on the motion no later than

30 days following the hearing. Id. at § 27.005(a);

contrast 28 U.S.C. § 476(a)(1) (recognizing that

motions may be pending for more than six months).

The Federal Rules impose no such restriction, and

these time limits place TCPA motions on a fast-track

that is not supported by any Federal Rule or policy.

The mandatory hearing is also inconsistent with a

district court’s inherent authority, as courts are

ordinarily free to grant motions to dismiss or for

summary judgment without a hearing. The district

court effectively loses all control of its docket once a

TCPA motion, and only a TCPA motion, is filed.

Perhaps most egregiously, the filing of a TCPA

motion places an automatic complete stay on discovery. Id. at § 27.003(c). This directly collides with the

normal presumptions under a court’s inherent authority and Fed. R. Civ. P. 26, which governs the scope

of permitted discovery and the timing of initial disclosures and discovery conferences. The TCPA permits

a court to allow “specified and limited discovery relevant to the motion,” but only “[o]n a motion by a party

or on the court’s own motion and on a showing of good

cause.” Id. at § 27.006(b). The presumption that the

parties may take discovery is turned on its head and

a party must instead show that it is entitled to take

discovery. The scope of this “specified and limited

discovery” directly collides with the broad scope of

discovery allowed under Federal Rule 26(b). The time

period in which to conduct discovery is severely

constrained as well because the hearing on a TCPA

motion must take place within 120 days of the motion

being served. Tex. Civ. Prac. & Rem. Code § 27.004(c).

Even assuming a party moves for discovery immediately after being served with a TCPA motion and

demonstrates good cause, the TCPA mandates a

discovery period far shorter than normal to oppose a

motion that is at least as complicated as a motion for

summary judgment.

Even the Ninth Circuit, which has found that

California’s Anti-SLAPP statute generally applies in

federal diversity cases, has determined that elements

of that law concerned with timing and discovery do

not apply in federal court. See, e.g., Sarver v.

Chartier, 813 F.3d 891, 900 (9th Cir. 2016) (refusing

to apply time limit of Cal. Civ. Proc. Code § 425.16(f));

Metabolife Int’l v. Wornick, 264 F.3d 832, 845–46 (9th

Cir. 2001) (refusing to apply discovery-limiting

aspects of Cal. Civ. Proc. Code § 425.16(f) & (g)). The

2013 TCPA was silent as to severability. Under Tex.

Gov’t Code § 311.032(c), severability is permitted if

the invalidity does not “affect other provisions or

applications of the statute that can be given effect

without the invalid provision or application.” The

operative provisions of the TCPA depend upon the

ability to file the specific motion, and the invalidity of

one provision precludes the ability to give effect to the

others in their absence. See, e.g. Tex. Civ. Prac. &

Rem. Code § 27.009 (referring to “the moving party”).

Mr. Retzlaff does not suggest that, in contrast to

California’s law, any portion of the 2013 TCPA was

severable.

Mr. Retzlaff argues in his Petition that these

timing and discovery limitation requirements of the

TCPA are compatible with the Federal Rules and the

inherent authority of district courts because of the

doctrine of qualified immunity. (See Petition at 27–

30.) This is a wildly off-base analogy. Qualified immunity is a judge-made concept created by this very

court. There is no state law or rule colliding with a

Federal Rule. The doctrine of qualified immunity

does not command a court to alter how it manages its

cases. Courts are certainly encouraged to resolve the

issue of qualified immunity at the earliest possible

stage, but there is no mandate that they do so. The

main case Mr. Retzlaff cites for this proposition,

Crawford-El v. Britton, even states that a trial court

must “exercise its discretion” to protect the substance

of the qualified immunity defense and protect defendants from unnecessary discovery or trial proceedings. 523 U.S. 574, 598 (1998) (emphasis added). This

is completely different from a state statute mandating

the timing of motion practice and the course of

discovery.

III. THE OPERATIVE VERSION OF THE TCPA NO

LONGER EXISTS

A final reason to deny certiorari is that the version

of the TCPA that applies to this dispute was passed in

2013, but has been superseded. The TCPA was

enacted in 2011. The TCPA underwent significant

revisions that took effect on September 1, 2019. These

revisions changed a number of provisions relevant to

the question of whether it applies in federal court. See

Acts 2019, 86th Leg., R.S., Ch. 378 (H.B. 2730), Sec. 9,

eff. September 1, 2019.

First, the amendments changed the moving

party’s initial burden of proof. Previously, the moving

party had to show by a preponderance of the evidence

that the plaintiff’s suit was based on or in response to

protected conduct. Now, however, they need only

“demonstrate” this, without an attendant standard of

proof. Tex. Civ. Prac. & Rem. Code § 27.005(b). And

as to the burden of proof to establish a defense that

could defeat a plaintiff’s claims despite the plaintiff

meeting his evidentiary burden, the TCPA previously

required a defendant to establish “by a preponderance

of the evidence each essential element of a valid

defense to the nonmovant’s claim.” Now, however, the

defendant must “establish[ ] an affirmative defense or

other grounds on which the moving party is entitled

to judgment as a matter of law,” again without an

articulated standard of proof. Id. at § 27.005(d). This

apparent lowering of a defendant’s burden under the

statute, while keeping the nonmoving party’s burden

the same, raises new questions as to whether the law

directly collides with the Federal Rules.

The amendments modify the kinds of evidence a

court must consider in deciding a TCPA motion.

Previously, a court was required to consider “the

pleadings and supporting and opposing affidavits

stating the facts on which the liability or defense is

based.” The 2019 amendments added to these

categories “evidence a court could consider under Rule

166a, Texas Rules of Civil Procedure,” which is

Texas’s summary judgment rule. Id. at § 27.006(a).

As discussed above, forcing a court to consider and

weigh evidence at the initial stages of litigation

creates a direct collision with the Federal Rules, and

this change only strengthens this collision. In light of

these amendments, there is no need for this Court to

adjudicate the applicability of the superseded statute

in federal courts.

Finally, the amendments changed the mandatory

nature of a sanctions award for a successful AntiSLAPP movant. Previously, a court was required to

award sanctions if it granted a motion under the

TCPA. Now, however, a court has discretion as to

whether to award sanctions. Id. at § 27.009(a)(2).

This newfound discretion significantly changes the

analysis as to whether the TCPA directly collides with

the Federal Rules. In other words: Mr. Retzlaff seeks

certiorari on a law that was different from all other

Anti-SLAPP laws, which itself is now no longer in

place. This Court, rather than taking on an important

matter of national importance, would be simply

granting certiorari on a matter that would affect

merely two people – the litigants in this case alone.

CONCLUSION

In light of the foregoing, Respondent respectfully

requests this Court deny the petition for writ of

certiorari without further briefing or argument.

This case is not about Anti-SLAPP litigation in

federal courts leading to inconsistent outcomes.

Different Anti-SLAPP statutes, as legislated by the

varying states, treat these issues differently.

Texas passed a law that collided with the federal

rules. The Fifth Circuit saw this. However, even the

Texas legislature appears to have seen this, and it

may have solved the problem. Accordingly, this

petition does not seek to clear up a split in the circuits

– for only one circuit has ruled on the applicability of

the old Texas Anti-SLAPP law in federal court. The

amended law is not before this Court. There is neither

a split nor a matter of great importance to review

here.

Respectfully submitted.

Marc J. Randazza

Counsel of Record

Jay M. Wolman

RANDAZZA LEGAL GROUP, PLLC

Counsel for Respondent

Jason Lee Van Dyke

JULY 7, 2020.

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.