SLAPP-ing in the federal court


So last time I mentioned that I would blog on the First Circuit's ruling that Maine's Anti-SLAPP provisions apply in federal court:

In so ruling, our Court of Appeals lines up with the two others that have pondered the applicability of anti-SLAPP statutes on federal court proceedings.  Henry v. Lake Charles Am. Press, LLC, 566 F.3d 164 (5th Cir. 2009) (; United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) ( See also Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 845-47 (9th Cir. 2001) ( (limiting application of one anti-SLAPP provision where information was within exclusive control of the defendant).

The First Circuit's decision is like a law school exam answer to a really nasty essay question on federal jurisdiction. CJ Lynch plows through all the issues with formidable brainpower and refreshing clarity, so give her an A+.

The former principal in Machiasport sued the school board, union and 3 school employees.  One claim was a Section 1983 due process violation. [zing- federal question jurisdiction.]  Also included in the complaint was a state law claim for defamation. The school employees invoked Maine's Anti-SLAPP statute as to that state claim.   

When you file a motion to dismiss under Maine's anti-SLAPP statute (14 M.R.S. 556, the review process is to be expedited, and the motion granted "unless the party against whom the special motion is made shows 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." In assessing whether to grant the special motion, "the court shall consider the pleading and supporting and opposing affidavits stating the facts upon which the liability or defense is based."  A court may order discovery specific to the Section 556 motion for good cause shown. Evidence considered in reviewing a special motion to dismiss should be viewed "in the light most favorable to the moving party because the responding party bears the burden of proof when the statute applies." Morse Bros., Inc. v. Webster, 2001 ME 70, 772 A.2d 842, 849  (

The substantive question was whether these Maine statutory provisions were at odds with federal rules such that the federal rules trumped them. 

Before answering this question, the Court of Appeals first had to decide whether it had jurisdiction over the interlocutory appeal of the district court's order rejecting operation of the state provisions.  The answer was yes, under the collateral order exception.  (Apparently the Ninth Circuit has issued a string of decisions on this and 3 say the exception applies and 1 says it does not.  Unlike the First Circuit, the Ninth Circuit is so big it can disagree with itself.)  Note that only the issue of immediate appealability of a denial of application was decided, not whether one can interlocutorily appeal the merits application of an Anti-SLAPP statute - that question was left for another day.

And just to make things more complicated, the court had to deal with the preliminary jurisdictional question whether federal subject-matter jurisdiction exists over the state-law claims against the non-diverse individual defendants even though no federal claim has been brought against them (the answer was again yes under 28 U.S.C. 1367(a)).

Looking at the substantive question whether the anti-SLAPP provisions applied, the test is whether the federal rules are "sufficiently broad to control the issue before the court," and, if so, whether those rules complied with the Rules Enabling Act, 28 U.S.C. 2072.  (I told you this was like a law school exam; and, incidentally, this "broad control" test comes from a plurality decision of the Supreme Court and thus requires interpretation as to its scope and content.)  The Court of Appeals ruled that neither Rule 12(b)(6) nor Rule 56 was meant to control the particular issues under the Maine statute before the district court (and thus didn't have to deal with the Rules Enabling Act question, although it mentioned that there might be problems under the Act if the federal rules were deemed to preempt the state ones, so give CJ Lynch some extra credit points on that one).

But no, we're not done yet!  If a federal rule is not so broad as to control the issues raised, a federal court might nonetheless decline to apply state law if so declining would better advance the dual aims of Erie: "discouragement of forum-shopping and avoidance of inequitable administration of the laws."  So the Court went through that analysis as well.

In a nutshell, the Maine rule applies because "Maine has not created a substitute to the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities."