Planned Parenthood Federation v. Center for Medical Progress , 890 F.3d 828 ( 2018 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
PLANNED PARENTHOOD FEDERATION No. 16-16997
OF AMERICA, INC.; PLANNED
PARENTHOOD: SHASTA-DIABLO, D.C. No.
INC., DBA Planned Parenthood 3:16-cv-00236-
Northern California; PLANNED WHO
PARENTHOOD MAR MONTE, INC.;
PLANNED PARENTHOOD OF THE
PACIFIC SOUTHWEST; PLANNED OPINION
PARENTHOOD LOS ANGELES;
PLANNED PARENTHOOD/ORANGE
AND SAN BERNARDINO COUNTIES,
INC.; PLANNED PARENTHOOD OF
SANTA BARBARA, VENTURA AND
SAN LUIS OBISPO COUNTIES, INC.;
PLANNED PARENTHOOD PASADENA
AND SAN GABRIEL VALLEY, INC.;
PLANNED PARENTHOOD CENTER FOR
CHOICE; PLANNED PARENTHOOD OF
THE ROCKY MOUNTAINS; PLANNED
PARENTHOOD GULF COAST,
Plaintiffs-Appellees,
v.
CENTER FOR MEDICAL PROGRESS;
BIOMAX PROCUREMENT SERVICES,
LLC; DAVID DALEIDEN, AKA
Robert Daoud Sarkis; SANDRA
SUSAN MERRITT, AKA Susan
2 PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS
Tennenbaum; GERARDO ADRIAN
LOPEZ,
Defendants-Appellants,
and
TROY NEWMAN; PHILLIP S. CRONIN;
ALBIN RHOMBERG,
Defendants.
Appeal from the United States District Court
for the Northern District of California
William Horsley Orrick, District Judge, Presiding
Argued and Submitted November 17, 2017
San Francisco, California
Filed May 16, 2018
Before: Ronald M. Gould and Mary H. Murguia, Circuit
Judges, and Nancy Freudenthal, * Chief District Judge.
Opinion by Judge Gould;
Concurrence by Judge Gould
*
The Honorable Nancy Freudenthal, Chief United States District
Judge for the District of Wyoming, sitting by designation.
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SUMMARY **
Anti-SLAPP Statute
The panel affirmed the district court’s denial of a motion
to dismiss claims under California’s Strategic Lawsuit
Against Public Participation statute, Cal. Civ. Proc. Code
§ 425.16.
Planned Parenthood and other plaintiffs alleged that the
defendants used fraudulent means to enter their conferences
and gain meetings with their staff for the purpose of creating
false and misleading videos that were disseminated on the
internet. To succeed on their anti-SLAPP motion, the
defendants had to show both that their claims arose from acts
to further their First Amendment speech rights and that the
plaintiffs had shown no probability of success on their
claims. The panel affirmed the district court’s conclusion
that the defendants failed to meet the second element.
In order to eliminate conflicts between California’s anti-
SLAPP law’s procedural provisions and the Federal Rules of
Civil Procedure, the panel held that anti-SLAPP motions to
strike are reviewed under different standards depending on
the motion’s basis. If a defendant makes an anti-SLAPP
motion to strike founded on purely legal arguments, then the
analysis is made under Fed. R. Civ. P. 8 and 12 standards; if
it is a factual challenge, then the motion must be treated as
though it were a motion for summary judgment and
discovery must be permitted.
**
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
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The panel held that the district court correctly applied a
Rule 12(b)(6) standard to defendants’ motion to strike
challenging the legal sufficiency of plaintiffs’ complaint,
and did not err in declining to evaluate the factual sufficiency
of the complaint at the pleading stage.
Concurring, Judge Gould, joined by Judge Murguia,
acknowledged that the court’s precedent allows an
interlocutory appeal of a denial of an anti-SLAPP motion.
Judge Gould wrote that this interlocutory appeal procedure
is incorrect, potentially conflicts with federal procedural
rules, and burdens the federal courts with unneeded
interlocutory appeals. Judge Gould suggested that the court
fix this error in its precedent with a call of the case en banc.
The panel addressed other issues in a
contemporaneously-filed memorandum disposition.
COUNSEL
Charles S. LiMandri (argued), Paul M. Jonna, Teresa L.
Mendoza, and Jeffrey M. Trissell, Freedom of Conscience
Defense Fund, Rancho Santa Fe, California; Horatio Mihet
(argued), Liberty Counsel, Orlando, Florida; Catherine W.
Short, Life Legal Defense Foundation, Ojai, California;
Thomas Breicha and Peter Breen, Thomas More Society,
Chicago, Illinois; Nicolaie Cocis, Law Office of Nic Cocis
and Associates, Murrieta, California; for Defendants-
Appellants.
Amy L. Bomse (argued), Stephanie Fine, Jee Young You,
Sharon D. Mayo, and Steven L. Mayer, Arnold & Porter
Kaye Scholer LLP, San Francisco, California; Beth H.
Parker, Planned Parenthood Affiliates of California,
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Sacramento, California; Helene T. Krasnoff, Planned
Parenthood Federation of America; Paul W. Rodney, Arnold
& Porter Kaye Scholer LLP, Denver, Colorado; John
Robinson, Arnold & Porter Kaye Scholer LLP, Washington,
D.C.; for Plaintiffs-Appellees.
OPINION
GOULD, Circuit Judge:
Plaintiffs 1 sued Defendants 2 in the federal district court
for the Northern District of California alleging that
Defendants had used fraudulent means to enter their
conferences and gain meetings with their staff for the
purpose of creating false and misleading videos that were
disseminated on the internet. Defendants moved to dismiss
Plaintiffs’ claims under Federal Rule of Civil Procedure
1
Plaintiffs are Planned Parenthood Federation of America, Inc.
(PPFA); Planned Parenthood: Shasta-Diablo, Inc., dba Planned
Parenthood Northern California (Planned Parenthood Northern
California or PPNC); Planned Parenthood Mar Monte, Inc. (PPMM);
Planned Parenthood of the Pacific Southwest (PPPSW); Planned
Parenthood Los Angeles (PPLA); Planned Parenthood/Orange and San
Bernardino Counties, Inc. (PPOSBC); Planned Parenthood of Santa
Barbara, Ventura & San Luis Obispo Counties, Inc. (PPSBVSLO);
Planned Parenthood Pasadena and San Gabriel Valley, Inc. (PPPSGV);
Planned Parenthood of the Rocky Mountains (PPRM); Planned
Parenthood Gulf Coast (PPGC); and Planned Parenthood Center For
Choice (PPCFC) (collectively Planned Parenthood).
2
Defendants are the Center for Medical Progress (CMP), BioMax
Procurement Services LLC (BioMax), David Daleiden (aka “Robert
Sarkis”) (Daleiden), Troy Newman (Newman), Albin Rhomberg
(Rhomberg), Phillip S. Cronin (Cronin), Sandra Susan Merritt (aka
“Susan Tennenbaum”) (Merritt), and Gerardo Adrian Lopez (Lopez).
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12(b)(6) and under California’s Strategic Lawsuit Against
Public Participation (“anti-SLAPP”) statute. The district
court denied both motions, and Defendants appeal the denial
of the anti-SLAPP motion. We conclude that the district
court did not err by reviewing Defendants’ motion using a
Rule 12(b)(6) standard and did not err by denying
Defendants’ anti-SLAPP motion. 3 We affirm.
I
In the district court, Defendants the Center for Medical
Progress (CMP), BioMax Procument Services LLC
(BioMax), Daleiden, and Lopez moved to strike Plaintiffs’
claims under California Code of Civil Procedure § 425.16,
commonly known as the anti-SLAPP law. On their motion
to dismiss for failure to state a claim, Defendants argued that
Plaintiffs had not alleged enough factual content to state the
necessary elements for each of their named claims. On their
motion based on the anti-SLAPP law, Defendants argued
that Plaintiffs’ lawsuit is an attempt to silence and punish
CMP and other Defendants for gathering information and
publishing their findings. Defendants argued that Plaintiffs’
state law claims arise out of their undercover investigative
journalism, which falls within the scope of the anti-SLAPP
statute. They further argued that Plaintiffs did not have a
reasonable probability of prevailing on any of their state law
claims because Defendants were entitled to “judgment as a
matter of law.”
3
Defendants also argue that Plaintiffs did not sufficiently allege the
fifteen claims of their complaint. Those arguments and our conclusions
related thereto are addressed in a separate contemporaneously filed
memorandum disposition.
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The district court denied both Defendants’ motion to
strike under the anti-SLAPP law and their motion to dismiss
for failure to state a claim. Because Defendants appeal only
denial of their anti-SLAPP motion, we address only that
issue on this interlocutory appeal.
In ruling on and denying Defendants’ motion to strike,
the district court assumed that Plaintiffs’ lawsuit arose from
acts in furtherance of Defendants’ rights to free speech, but
found that Plaintiffs showed a probability of succeeding on
the merits. To succeed on their anti-SLAPP motion,
Defendants had to show both that their acts arose from
behavior aimed at furthering their First Amendment speech
rights, and also that Plaintiffs had shown no probability of
success on their claims. Because Defendants failed to
prevail on the second element, they lost their anti-SLAPP
motion.
The district court reasoned that “defendants repeat the
identical arguments they made on their motions to dismiss,”
and that Defendants made no evidentiary-based argument to
undermine Plaintiffs’ probability of success other than the
declaration from Daleiden. Daleiden’s declaration only
discusses his work as an investigative journalist. The district
court said that because Defendants attacked “pleading
deficiencies” and argued that Defendants were entitled to
“judgment as a matter of law,” it limited its review to the
adequacy of Plaintiffs’ pleadings. The district court
therefore denied Defendants’ motion to strike for the same
reasons it had denied Defendants’ motion to dismiss. The
district court also rejected the evidentiary-based arguments
Defendants made for the first time in their Reply brief
supporting their motion to strike.
The district court found that Merritt’s separate motion to
strike raised two evidence-based arguments: (1) that the
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location of the lunch meetings with Drs. Nucatola and Gatter
preclude a finding that the communications in those
meetings were “confidential” and (2) that Merritt is exempt
from liability for violations of California Penal Code §§ 632
and 634 because she reasonably believed that Plaintiffs were
committing crimes of violence against unborn babies. The
district court concluded that there were questions of fact
regarding whether there was a reasonable expectation of
privacy at the lunch meetings with Drs. Nucatola and Gatter.
The district court also concluded that Merritt’s exemption
defense was an affirmative defense and that the parties’
competing citations to Merritt’s deposition demonstrated
that there was a question of fact as to the reasonableness of
her beliefs. The district court denied Merritt’s anti-SLAPP
motion. This appeal timely followed.
II
We review dismissals under Federal Rule of Civil
Procedure 12(b)(6) and the district court’s conclusions of
law de novo. Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097,
1102 (9th Cir. 2003); Metabolife Intern., Inc. v. Wornick,
264 F.3d 832, 839 (9th Cir. 2001). We have jurisdiction to
review the denial of an anti-SLAPP motion under the
collateral order doctrine. Hilton v. Hallmark Cards,
599 F.3d 894, 900 (9th Cir. 2010).
III
Defendants argue that, once they had shown that
Plaintiffs’ suit arose from Defendants’ acts in furtherance of
their rights of petition or free speech, Plaintiffs were required
to demonstrate a probability of prevailing on the challenged
claims, and that Plaintiffs did not meet this burden because
they did not provide rebutting evidence. Plaintiffs argue that
for Defendants to succeed on their anti-SLAPP motion,
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Defendants had to show that Plaintiffs did not allege a
legally sufficient claim or that Plaintiffs did not produce
evidence showing a probability that Plaintiffs would prevail.
Plaintiffs contend that Defendants’ anti-SLAPP motion
challenged the legal sufficiency of Plaintiffs’ complaint and
was correctly denied on those grounds, using the Federal
Rule of Civil Procedure 12(b)(6) standard. Plaintiffs
specifically argue that for the anti-SLAPP requirement of
showing a probability of prevailing by evidence to apply,
Defendants had to challenge their complaint on factual
grounds.
In California, “[a] cause of action against a person
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 shall be subject to a special
motion to strike, unless the court determines that the plaintiff
has established that there is a probability that the plaintiff
will prevail on the claim.” Cal. Civ. Proc. Code
§ 425.16(b)(1). The district court, in making its decision,
considers the pleadings and supporting and opposing
affidavits stating the facts upon which the liability or defense
is based. Id. (b)(2). In discussing how to conduct this
analysis, we have held:
Once it is determined that an act in
furtherance of protected expression is being
challenged, the plaintiff must show a
“reasonable probability” of prevailing in its
claims for those claims to survive dismissal.
§ 425.16(b); Wilcox v. Superior Court,
27 Cal. App. 4th 809, 33 Cal. Rptr. 2d 446, 455
(1994). To do this, the plaintiff must
demonstrate that “the complaint is legally
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sufficient and supported by a prima facie
showing of facts to sustain a favorable
judgment if the evidence submitted by the
plaintiff is credited.” Wilcox, 33 Cal. Rptr. 2d
at 454.
Metabolife, 264 F.3d at 840. We there concluded that a
defendant’s anti-SLAPP motion should be granted when a
plaintiff presents an insufficient legal basis for his or her
claims or when no sufficiently substantial evidence exists to
support a judgment for him or her. Id.
The degree to which the anti-SLAPP provisions are
consistent with the Federal Rules of Civil Procedure has
been hotly disputed. Metabolife emphasized that some
portions of California’s anti-SLAPP law have been found to
not conflict with the Federal Rules of Civil Procedure—such
as § 425.16(b) allowing a special motion and § 425.16(c)
providing fees and costs. 264 F.3d at 845. But, Metabolife
also explained that courts in our circuit have found that
§ 425.16(f), requiring filing 60 days after the complaint was
filed or later within the district court’s discretion, and
§ 425.16(g), issuing an automatic stay of discovery,
conflicted with the Federal Rules of Civil Procedure.
264 F.3d at 845–46 (comparing U.S. ex rel. Newsham v.
Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 970–73
(9th Cir. 1999) with Rogers v. Home Shopping Network, Inc.,
97 F. Supp. 2d 973, 980 (C.D. Cal. 1999)). The Metabolife
court concluded that an automatic stay on discovery would
conflict with Federal Rule of Civil Procedure 56, and was
inapplicable in federal court. Id. at 846 (“the discovery-
limiting aspects of § 425.16(f) and (g) collide with the
discovery-allowing aspect of Rule 56” and therefore,
§ 425.16(f) and (g) could not apply in federal court.).
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In Z.F. v. Ripon Unified School District, a non-
precedential unpublished opinion, we stated: “If a defendant
makes an anti-SLAPP motion to strike founded on purely
legal arguments, then the analysis is made under Fed. R. Civ.
P. 8 and 12 standards; if it is a factual challenge, then the
motion must be treated as though it were a motion for
summary judgment and discovery must be permitted.”
482 F. App’x 239, 240 (9th Cir. 2012). Although we are not
bound by Z.F., we conclude that its reasoning is persuasive
and we hereby adopt it. In order to prevent the collision of
California state procedural rules with federal procedural
rules, we will review anti-SLAPP motions to strike under
different standards depending on the motion’s basis. Our
interpretation eliminates conflicts between California’s anti-
SLAPP law’s procedural provisions and the Federal Rules of
Civil Procedure. Id. Taken together, Metabolife and our
ruling today adopting the rule of Z.F. support the idea that if
Defendants’ anti-SLAPP motion was based on legal
deficiencies, Plaintiffs were not required to present prima
facie evidence supporting Plaintiffs’ claims. Requiring a
presentation of evidence without accompanying discovery
would improperly transform the motion to strike under the
anti-SLAPP law into a motion for summary judgment
without providing any of the procedural safeguards that have
been firmly established by the Federal Rules of Civil
Procedure. That result would effectively allow the state anti-
SLAPP rules to usurp the federal rules. We could not
properly allow such a result.
Before the district court, Defendants agreed that an anti-
SLAPP motion “may be premised on legal deficiencies
inherent in the plaintiff’s claim, analogous to a motion to
dismiss under Federal Rule of Civil Procedure 12(b)(6).” “If
a defendant makes a special motion to strike based on
alleged deficiencies in the plaintiff’s complaint, the motion
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must be treated in the same manner as a motion under Rule
12(b)(6) except that the attorney’s fee provision of
§ 425.16(c) applies.” Rogers v. Home Shopping Network,
Inc., 57 F. Supp. 2d 973, 983 (C.D. Cal. 1999). We agree
with the reasoning and result in the district court’s Rogers
decision. Defendants’ Motion to Strike explicitly
incorporated by reference the arguments in Defendants’
Motion to Dismiss. Defendants must have understood that
the district court would be conducting a Rule 12(b)(6)
analysis and supported their motion with arguments
regarding Plaintiffs’ pleading. Plaintiffs responded in kind,
defending the legal sufficiency of their pleading.
In their reply before the district court, Defendants argued
for the first time that Plaintiffs had not met their burden of
presenting evidence showing that their claims have minimal
merit. Although we have never ruled on this issue, some
district courts have accepted Defendants’ view. See Carr v.
Asset Acceptance, LLC. No. CV F 11-0890 LJO GSA, 2011
WL 3568338, at *5–6 (E.D. Cal. Aug. 12, 2011) (“piercing”
the pleadings and requiring an evidentiary showing at the
pleading stage to survive an anti-SLAPP motion).
Conversely, some other district courts have gone the
opposite way, rejecting Defendants’ view that Plaintiffs had
to submit evidence showing the merit of their claims when
the challenge was only as to the sufficiency of the pleadings.
In any event, having now considered this issue in-depth, and
having carefully reviewed the record, we reject Defendants’
view. In defending against an anti-SLAPP motion, if the
defendants have urged only insufficiency of pleadings, then
the plaintiff can properly respond merely by showing
sufficiency of pleadings, and there’s no requirement for a
plaintiff to submit evidence to oppose contrary evidence that
was never presented by defendants.
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Echoing the point we made earlier in adopting the rule of
Z.F., we hold that, on the one hand, when an anti-SLAPP
motion to strike challenges only the legal sufficiency of a
claim, a district court should apply the Federal Rule of Civil
Procedure 12(b)(6) standard and consider whether a claim is
properly stated. And, on the other hand, when an anti-
SLAPP motion to strike challenges the factual sufficiency of
a claim, then the Federal Rule of Civil Procedure 56 standard
will apply. But in such a case, discovery must be allowed,
with opportunities to supplement evidence based on the
factual challenges, before any decision is made by the court.
A contrary reading of these anti-SLAPP provisions would
lead to the stark collision of the state rules of procedure with
the governing Federal Rules of Civil Procedure while in a
federal district court. In this context, if there is a contest
between a state procedural rule and the federal rules, the
federal rules of procedure will prevail. Hanna v. Plumer,
380 U.S. 460, 465 (1965) (“The broad command of Erie was
therefore identical to that of the Enabling Act: federal courts
are to apply state substantive law and federal procedural
law.”); Metabolife, 264 F.3d at 845 (“Procedural state laws
are not used in federal court if to do so would result in a
‘direct collision’ with a Federal Rule of Civil Procedure.”).
We conclude that the district court correctly applied a Rule
12(b)(6) standard to Defendants’ Motion to Strike
challenging the legal sufficiency of Plaintiffs’ complaint,
and the district court did not err in declining to evaluate the
factual sufficiency of the complaint at the pleading stage.
AFFIRMED.
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GOULD, Circuit Judge, with whom MURGUIA, Circuit
Judge, joins, concurring:
Although the procedure followed in this case to allow an
interlocutory appeal of a denial of an anti-SLAPP motion is
clearly permitted by our past precedent, Batzel v. Smith,
333 F.3d 1018, 1025–26 (9th Cir. 2003), I write separately
in this concurrence to challenge the appropriateness of our
court reviewing denials of anti-SLAPP motions to strike on
interlocutory appeal. I limit my comments in this separate
concurrence to the issue of the propriety of interlocutory
appeal upon a denial of an anti-SLAPP motion.
This case was delivered to us on interlocutory appeal.
Although I previously joined in Batzel, supra, which
permitted this interlocutory appeal procedure, I have since
receded from that opinion because I now believe the
interlocutory appeal of this issue is incorrect, potentially
conflicts with federal procedural rules, and burdens the
federal courts with unneeded interlocutory appeals. See
Travelers Cas. Ins. Co. of Am. v. Hirsch, 831 F.3d 1179,
1186 (9th Cir. 2016) (Gould, J., concurring). In a case such
as this, an interlocutory appeal should only occur if the
district court certifies the case for interlocutory appeal under
the normal federal rule standards. See 28 U.S.C. § 1292(b);
see Intercon Sols., Inc. v. Basel Action Network, 791 F.3d
729, 731 (7th Cir. 2015).
The allowance of an interlocutory appeal here leads to an
absurd result: We review denials of anti-SLAPP motions but
not grants of anti-SLAPP motions, although the grant of an
anti-SLAPP motion is arguably a more final decision by a
district court because it rids the case of the stricken claims.
See Hyan v. Hummeri, 825 F.3d 1043, 1047 (9th Cir. 2016)
(not permitting an interlocutory appeal of a grant of an anti-
SLAPP motion to strike because there is no loss of a right as
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accompanies a denial of an anti-SLAPP motion, the right to
be immune from suit). But see DC Comics v. Pacific
Pictures Corp., 706 F.3d 1009, 1015–16 (9th Cir. 2013)
(allowing an interlocutory appeal of the denial of a motion
to strike).
Denial of an anti-SLAPP motion does not meet the
normal collateral order standard. Collateral orders are a
“small class” of rulings that do not conclude litigation, but
that resolve claims separable from the action. Will v.
Hallock, 546 U.S. 345, 355 (2006) (denying review of an
immunity defense on interlocutory appeal because “[t]he
judgment bar at issue in this case has no claim to greater
importance than the typical defense of claim preclusion.”).
To meet the collateral order standard, the district court’s
decision being appealed must be (1) conclusive, (2) resolve
important questions completely separate from the merits,
and (3) render such questions effectively unreviewable on
appeal from a final judgment in the underlying action.
Batzel, 333 F.3d at 1024–25. These rules are stringent. Dig.
Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868
(1994).
The denial of an anti-SLAPP motion does not resolve
important questions completely separate from the merits, it
in fact requires the court to directly assess the merits of
Plaintiffs’ complaint. See Cal. Civ. Proc. Code § 425.16(b)
(requiring a “probability that the plaintiff will prevail” after
considering pleadings and affidavits); Makaeff v. Trump
Univ., LLC, 736 F.3d 1180, 1190–91 (9th Cir. 2013)
(Watford, J., dissenting) (“Orders granting or denying anti-
SLAPP motions don’t satisfy the second condition of this
test, because California’s anti-SLAPP statute requires courts
to assess the merits of the action when ruling on a motion to
strike.”). California procedure requires us to determine not
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only whether the facts alleged articulate a plausible claim,
but also whether there is probability of success based on
plaintiffs’ evidence. That question is inextricably
intertwined with the merits of the litigation.
Anti-SLAPP motions are hybrids of motions to dismiss
and motions for summary judgment. The denial of either of
these motions is generally unreviewable on interlocutory
appeal. See Hilton v. Hallmark Cards, 599 F.3d 894, 900
(9th Cir. 2010) (“Denials of motions to dismiss under Rule
12(b)(6) are ordinarily not appealable, even as collateral
orders.”); c.f. Swint v. Chambers County Com’n, 514 U.S.
35, 43 (1995) (concluding that the denial of summary
judgment was not immediately appealable). We should
similarly hold here that we will not permit interlocutory
appeals of denials of anti-SLAPP motions.
Not only does the denial of an anti-SLAPP motion to
strike not meet the collateral order doctrine and receive
special privileges compared to its federal procedural
counterparts, the use of anti-SLAPP procedure in federal
courts has been squarely rejected by three circuits, the D.C.
Circuit, the Seventh Circuit, and the Tenth Circuit. While I
do not advocate at this time for wholly removing anti-
SLAPP motions practice in federal court, one of the primary
drivers for allowing this practice to continue—prevention of
a circuit split—has occurred despite our best efforts. See
Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1184 (9th Cir.
2013) (“If we had taken this appeal en banc, and decided the
other way (as our colleagues advocate in their concurrences),
we would have created an inter-circuit split; a result at odds
with Rule 35 of the Federal Rules of Appellate Procedure.”).
Compare Abbas v. Foreign Policy Grp., LLC, 783 F.3d
1328, 1333–37 (D.C. Cir. 2015); Intercon Sols., Inc. v. Basel
Action Network, 969 F. Supp. 2d 1026, 1042 (N.D. Ill. 2013),
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aff’d, 791 F.3d 729 (7th Cir. 2015); and Los Lobos
Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659,
672–73 (10th Cir. 2018) with Cuba v. Pylant, 814 F.3d 701
(5th Cir. 2016). 1
The D.C. Circuit considered whether a federal court
exercising diversity jurisdiction could apply D.C.’s Anti-
SLAPP special motion to dismiss provision. See Abbas,
783 F.3d at 1333–37 (“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. Circuit reasoned that Rule
12 already provided an avenue for a plaintiff to overcome a
motion to dismiss. Id. at 1334. While not addressing the
precise question I raise here, it stands to reason that if Rule
12 provides the correct procedure for overcoming a motion
to dismiss, the collateral order rules we have for appealing
the denial of a motion to dismiss should also apply to
dismissing a California anti-SLAPP motion a fortiori.
Indeed, Abbas came to the D.C. Circuit after a grant of the
special motion to strike, which had ended the entire
litigation. Id. at 1331–32. Given its reasoning, I do not
believe that the D.C. Circuit would have reviewed the
district court’s order on interlocutory appeal.
A district court in the Northern District of Illinois
considered whether anti-SLAPP laws conflicted with the
Federal Rules of Civil Procedure. Intercon Sols., Inc.,
1
But even in the Fifth Circuit, there is disagreement about whether
Texas’s anti-SLAPP motion should apply. See Cuba, 814 F.3d at 720
(“[T]he TCPA [Texas’s anti-SLAPP statute] may not be applied as long
as Rules 12 and 56 do not violate the Rules Enabling Act.”) (J. Graves,
dissenting).
18 PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS
969 F. Supp. 2d at 1042. The court there held that “Section
525 [Washington’s anti-SLAPP statute] cannot be applied
by a federal court sitting in diversity because it is in direct
conflict with Federal Rules of Civil Procedure 12 and 56.”
This decision was upheld on appeal to the Seventh Circuit.
Intercon Sols., Inc., 791 F.3d at 729. 2 On appeal, the
Seventh Circuit noted that there was debate over whether
they could review the district court’s order on collateral
review. Id. at 731. The court there nevertheless reviewed
the case because the district court certified the order to them
for interlocutory review, and they accepted. Id.
The Tenth Circuit decided this year that New Mexico’s
anti-SLAPP statute was solely a procedural mechanism that
did not apply in federal court. Los Lobos Renewable Power,
LLC, 885 F.3d at 673. That court first considered whether
the district court’s decision not to apply the anti-SLAPP
provision at all was subject to collateral review. Id. at 664–
65. The Tenth Circuit reasoned that a decision not to apply
the statute at all was a decision separate and apart from the
merits, but that a decision to deny an anti-SLAPP motion
required the court to “determine whether the special motion
to dismiss is frivolous or available on its own terms” and that
those “determinations necessarily turn on the merits of the
lawsuit.” Id. at 665. Had the district court denied the anti-
SLAPP motion instead of not considering the motion at all,
the Tenth Circuit likely would not have reviewed the district
court’s decision on interlocutory appeal.
2
The Washington Supreme Court has since held Washington’s anti-
SLAPP statute to be unconstitutional because it established a preliminary
procedure for factual adjudication of claims without trial or summary
judgment procedure. Davis v. Cox, 351 P.3d 862, 867 (Wash. 2015).
PLANNED PARENTHOOD V. CTR. FOR MED. PROGRESS 19
I find further support in a decision of the Second Circuit.
The Second Circuit considered whether it had jurisdiction to
review a district court’s denial of a Vermont-based anti-
SLAPP motion. Ernst v. Carrigan, 814 F.3d 116, 119 (2d
Cir. 2016). That court answered with a resounding “no,”
reasoning that the very process by which an anti-SLAPP
motion is resolved requires a review of the merits. Id. The
Ernst court noted that Vermont’s anti-SLAPP statute was
based on California’s anti-SLAPP statute and concluded that
even if the statute was meant to provide immunity, it does
not necessarily make the statute appealable. Id. at 121. The
court held that Johnson v. Jones, 515 U.S. 304, 314 (1995),
required that in order to meet the collateral order doctrine,
the order must be “completely separate from the merits,” and
that anti-SLAPP motions necessarily implicate the factual
support underlying the claims—they are “inextricably
intertwined”. Id. at 121–22.
Intercon Solutions is instructive here. Defendants do not
seek to challenge the district court’s decision not to review
its anti-SLAPP motion; they cannot. Instead, Defendants
challenge the district court’s decision to deny the anti-
SLAPP motion, a motion that required the court to peer into
the merits of the appeal. See Cal. Civ. Proc. Code
§ 425.16(b). Further Ernst, makes the point I make here,
denial of an anti-SLAPP motion is inextricably intertwined
with the merits of the underlying case. Such a decision is
not appropriate for interlocutory appeal.
I respectfully suggest that we should take this
opportunity to fix this error in our court’s precedent with a
call of the case en banc.