Metabolic Research, Inc. v. Scott Ferrell

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
METABOLIC RESEARCH, INC.,  No. 10-16209
Plaintiff-Appellee,
D.C. No.
v.
SCOTT J. FERRELL; MICHAEL A.  2:09-cv-02453-JCM-
PAL
CAMPOS; THOMAS HESS; SARA
ORDER AND
JORDAN,
OPINION
Defendants-Appellants.

Appeal from the United States District Court
for the District of Nevada
James C. Mahan, District Judge, Presiding
Argued and Submitted
June 17, 2011—San Francisco, California
Filed June 18, 2012
Before: Jay S. Bybee and Mary H. Murguia, Circuit Judges,
and James K. Singleton, Senior District Judge.*
Opinion by Judge Singleton
*The Honorable James K. Singleton, Senior District Judge for the U.S.
District Court for Alaska, sitting by designation.
7023
7026 METABOLIC RESEARCH v. FERRELL
COUNSEL
Bevin E. Allen, Khorrami Pollard & Abir LLP, Las Angeles,
California for the appellants.
Beverly Salhanick, Las Vegas, Nevada, for the appellee.
ORDER
The opinion filed on February 9, 2012, appearing at 668
F.3d 1100, is withdrawn.
OPINION
SINGLETON, District Judge:
In this decision, we determine whether an order denying a
pretrial special motion to dismiss under Nevada’s anti-SLAPP
statute,1 Nev. Rev. Stat. §§ 41.635-670, is immediately
1
“SLAPP” is an acronym for “strategic lawsuit against public participa-
tion.” United States ex rel. Newsham v. Lockheed Missiles & Space Co.,
190 F.3d 963, 965 n.2 (9th Cir. 1999). “A SLAPP lawsuit is characterized
as ‘a meritless suit filed primarily to chill the defendant’s exercise of First
Amendment rights.’ ” John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276,
1280 (Nev. 2009) (citation omitted). The hallmark of a SLAPP lawsuit is
that it is filed to obtain a financial advantage over one’s adversary by
increasing litigation costs until the adversary’s case is weakened or aban-
doned. Lockheed Missiles & Space Co., 190 F.3d at 970.
METABOLIC RESEARCH v. FERRELL 7027
appealable under the collateral order doctrine first recognized
in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541,
546-47 (1949). We previously considered related issues under
Oregon law in Englert v. MacDonell, 551 F.3d 1099, 1103-07
(9th Cir. 2009), and California law in Batzel v. Smith, 333
F.3d 1018, 1025-26 (9th Cir. 2003). We find that Nevada’s
statute is similar to Oregon’s at the time we decided Englert,
and dismiss the appeal for lack of jurisdiction.
I. FACTUAL AND PROCEDURAL HISTORY
On October 20, 2009, Scott J. Ferrell, an attorney practic-
ing law in Orange County California, sent “demand letters” to
Metabolic Research, Inc. (“Metabolic”), at its address in Las
Vegas, Nevada, and to General Nutrition Centers, Inc.
(“GNC”), at its address in Pittsburgh, Pennsylvania. The
demand letters purported to notify the recipients that they had
violated California Civil Code §§ 1750-1756, the California
Consumer Legal Remedies Act (“CLRA”), by falsely adver-
tising the properties and potential benefits of a product named
Stemulite, which they marketed as a natural fitness supple-
ment. Ferrell represented that he was acting on behalf of
Michael Campos, Thomas Hess, and Sarah Jordan, all of
whom he alleged purchased Stemulite in California, in reli-
ance on the supposed false advertising, and had not received
the purported benefits. Ferrell further claimed that he was act-
ing on behalf of a purported class of similarly-situated per-
sons. In this decision, Ferrell, his clients, and his prospective
clients will be collectively referred to as “Ferrell,” unless oth-
erwise indicated.
In his demand letters, Ferrell set out what he contended
were representative false claims and summarized what he
contended constituted violations of the CLRA. Ferrell
demanded that Metabolic and GNC cease their false advertis-
ing of Stemulite, identify all consumers who purchased Ste-
mulite within the applicable limitations period, and provide
each of these consumers with an appropriate refund. In addi-
7028 METABOLIC RESEARCH v. FERRELL
tion, Ferrell demanded that Metabolic and GNC disgorge all
revenues from sales of Stemulite for consumers who could
not be identified and implement “an appropriate corrective
advertising campaign,” including a labeling “disclaimer.”
Ferrell concluded the letters with an offer to compromise
and allowed Metabolic and GNC thirty days from the date of
his letters to agree to an injunction “that include[d] an appro-
priate disclaimer” in which case, Ferrell agreed to take no fur-
ther action, except to enforce the injunction. However, if
Metabolic and GNC chose not to accept the offer, Ferrell
stated that he would file a lawsuit (presumably in California)
and seek all available relief.2
On November 19, 2009, Metabolic filed a lawsuit in
Nevada State Court against Ferrell, his putative class action
plaintiffs, and various “Does,” all identified as California resi-
dents, charging extortion. See Nev. Rev. Stat. § 207.470(allowing treble damages for racketeering in aid of extortion).3
Metabolic’s complaint further charged racketeering based
upon multiple publications of the demand letter (to Metabolic,
to GNC and to GNC principals), conspiracy to engage in
racketeering, civil extortion, tortious interference with con-
tract, and tortious interference with prospective economic
relations, i.e., interfering with the agreement between Meta-
bolic and GNC. Metabolic sought declaratory relief and puni-
tive damages. Metabolic’s lawsuit directly referenced
Ferrell’s demand letter, which Metabolic characterized as an
2
Ferrell did not identify what provisions other than a disclaimer, if any,
would have to be included in the stipulated injunction in order to avoid lit-
igation. Metabolic interpreted the letter as requiring inclusion of all of Fer-
rell’s demands in the injunction, which would have, effectively, put it out
of business.
3
Nevada and California define extortion in the same way relevant to this
case: a threat to disclose criminal behavior coupled with a demand for
compensation to keep quiet. See Flately v. Mauro, 139 P.3d 2, 24 & n.16
(Cal. 2006) (citing Cal. Penal Code § 519); Nev. Rev. Stat. § 205.320; see
also Cal. Penal Code §§ 518-519.
METABOLIC RESEARCH v. FERRELL 7029
accusation of mail fraud, in violation of 18 U.S.C. §§ 1341,
1343. Metabolic, in apparent anticipation of an anti-SLAPP
motion by Ferrell, expressly relied upon Flatley v. Mauro,
which Metabolic characterized as holding that pre-litigation
communications are not “privileged” under California’s anal-
ogous anti-SLAPP statute, if the demands constitute extortion
or blackmail as a matter of law.
On December 30, 2009, Ferrell removed the case to the
United States District Court for the District of Nevada based
on complete diversity of citizenship. Ferrell filed an answer
on January 5, 2010, and on January 27, 2010, Ferrell filed a
special motion to dismiss based upon Nevada’s anti-SLAPP
statute. Nev. Rev. Stat. § 41.660; John, 219 P.3d at 1280-82.4
Metabolic filed a response to Ferrell’s special motion to
dismiss, and the district court held a hearing on April 21,
2010. At the conclusion of the hearing, the district court
denied the motion and directed Metabolic to prepare an
appropriate order.
In its order dismissing Ferrell’s motion, the district court
found that Ferrell had not established that the demand letter
to Metabolic constituted a good-faith communication in fur-
therance of the right to petition because it concluded that
Nevada’s anti-SLAPP legislation only protected communica-
tions made directly to a governmental agency and did not pro-
tect a demand letter sent to a potential defendant in litigation.
This appeal followed.
II. DISCUSSION
[1] Our jurisdiction is typically limited to “final decisions.”
28 U.S.C. § 1291; see also In re Korean Air Lines Co., 642
4
As neither party raised the issue in this appeal, we do not decide
whether the Nevada anti-SLAPP statute is available to litigants proceeding
in federal court. Cf. Lockheed Missiles & Space Co., 190 F.3d at 970-74.
7030 METABOLIC RESEARCH v. FERRELL
F.3d 685, 689 (9th Cir. 2011). Generally, a final judgment is
entered at the end of a case, permitting a single appeal to
address all issues. See Digital Equip. Corp. v. Desktop Direct,
Inc., 511 U.S. 863, 868 (1994). However, there is a narrow
class of decisions—termed collateral orders—that do not ter-
minate the litigation, but must “in the interest of achieving a
healthy legal system nonetheless be treated as final.” Id. at
867 (citation omitted) (internal quotation marks omitted). In
Cohen v. Beneficial Industrial Loan Corp., the Supreme Court
promulgated the collateral order doctrine, recognizing that
such orders should be subject to immediate appeal. 337 U.S.
541, 546 (1949). Whether the district court’s order qualifies
as an appealable collateral order under Cohen will determine
our subject-matter jurisdiction. Digital Equip., 511 U.S. at869 n.3. We consider our jurisdiction de novo. Andersen v.
United States, 298 F.3d 804, 807 n.2 (9th Cir. 2002).
[2] A party pursuing an interlocutory appeal under the col-
lateral order doctrine must show that the order being appealed
meets three criteria. It must “[1] conclusively determine the
disputed question, [2] resolve an important issue completely
separate from the merits of the action, and [3] be effectively
unreviewable on appeal from a final judgment.” Will v. Hal-
lock, 546 U.S. 345, 349 (2006) (internal quotation marks
omitted). These requirements are applied strictly, in order to
avoid the collateral order doctrine swallowing up the final
judgment rule. See id. at 350 (“[A]lthough the Court has been
asked many times to expand the ‘small class’ of collaterally
appealable orders, we have instead kept it narrow and selec-
tive in its membership.”); Digital Equip., 511 U.S. at 868(“[T]he ‘narrow’ exception should stay that way and never be
allowed to swallow the general rule that a party is entitled to
a single appeal, to be deferred until final judgment has been
entered . . . .” (citation omitted)). Additionally, we do not
limit our consideration to the single case before us. We must
instead identify the category of cases to which our case
belongs and consider a rule that will work for all cases in the
category, regardless of whether the order in question is cor-
METABOLIC RESEARCH v. FERRELL 7031
rect. Digital Equip., 511 U.S. at 868 (“[T]he issue of appeala-
bility under § 1291 is to be determined for the entire category
to which a claim belongs, without regard to the chance that
the litigation at hand might be speeded, or a particular injus-
tice averted by a prompt appellate court decision.” (citation
omitted) (internal quotation marks omitted)).
Applying this protocol, we must first identify the category
of cases which must be considered in determining the need for
immediate appeal. It might have been possible to look at all
the cases dealing with anti-SLAPP litigation within this cir-
cuit as constituting a single “category.” Indeed, it appears that
all of the anti-SLAPP statutes adopted by the states in the
Ninth Circuit have many components in common. However,
deeper inspection has persuaded us that, while all of the stat-
utes have common elements, there are significant differences
as well, so that each state’s statutory scheme must be evalu-
ated separately. Accordingly, we have reached different con-
clusions with respect to the applicability of the collateral
order doctrine after examining Oregon law in Englert v. Mac-
Donell, 551 F.3d 1099, 1106-07 (9th Cir. 2009) (denying an
immediate appeal of an anti-SLAPP motion to dismiss as a
collateral order),5 and California law in Batzel v. Smith, 333
F.3d 1018, 1025 (9th Cir. 2003) (granting an immediate
appeal of an anti-SLAPP motion to dismiss as a collateral
order). Therefore, we consider only whether the denial of a
special motion to dismiss brought under Nevada’s anti-
SLAPP statute qualifies as an immediately appealable order
under Cohen.
[3] Turning to that task, in Englert we found it unnecessary
to address the first two Cohen requirements because the order
5
Subsequent to our decision in Englert, Oregon amended its anti-
SLAPP statute. See Or. Rev. Stat. §§ 31.150(1), 31.152(4) (amended
2010). We express no opinion as to the effect those amendments would
have, if any, on the right to immediately appeal a denial of a special
motion to strike in federal court in Oregon.
7032 METABOLIC RESEARCH v. FERRELL
at issue did not satisfy the third—whether it would be effec-
tively unreviewable on appeal from a final judgment. ert, 551
F.3d at 1104; see Will, 546 U.S. at 349-55 (declining to
review the first and second Cohen factors because the third
had not been satisfied). The same is true here.
In recent years, the Supreme Court has expanded on how
the “effectively unreviewable” prong of the Cohen test should
be evaluated. In particular, it has emphasized that “[i]t is not
mere avoidance of a trial, but avoidance of a trial that would
imperil a substantial public interest, that counts when asking
whether an order is ‘effectively’ unreviewable if review is to
be left until later.” Will, 546 U.S. at 353. In making such an
assessment, “the decisive consideration is whether delaying
review until the entry of final judgment ‘would imperil a sub-
stantial public interest’ or ‘some particular value of a high
order.’ ” Mohawk Indus. Inc. v. Carpenter, 130 S. Ct. 599,
601 (2009) (quoting Will, 546 U.S. at 352-53).
The risks identified in the context of anti-SLAPP litigation
are: 1) there is a danger that men and women will be chilled
from exercising their rights to petition the government by fear
of the costs and burdens of resulting litigation; and 2) that
unscrupulous lawyers and litigants will be encouraged to use
meritless lawsuits to discourage the exercise of first amend-
ment rights. John v. Douglas Cnty. Sch. Dist., 219 P.3d 1276,
1282 (Nev. 2009). Immediate appeal is therefore advanced as
necessary to prevent the chilling of the right to petition the
government and to discourage potential abusers of litigation.
As we acknowledged in Batzel and Englert, and reaffirm here,
the right to petition governmental agencies is an important
right, established by statute with constitutional underpinnings.
The fact, however, that we have concluded that a motion
brought pursuant to California’s anti-SLAPP statute is imme-
diately appealable in this circuit, while one brought under
Oregon’s at the time we decided Englert is not, demonstrates
that an anti-SLAPP statute does not in and of itself satisfy the
collateral order doctrine. In other words, we have recognized
METABOLIC RESEARCH v. FERRELL 7033
that an anti-SLAPP statute’s aim of protecting its citizens’
First Amendment rights can, in some circumstances, be ade-
quately protected without recourse to immediate appeal.
[4] Accordingly, in appraising whether an anti-SLAPP
statute satisfies the collateral order doctrine, we have consid-
ered whether the values underlying the particular anti-SLAPP
statute can be satisfied through the normal appellate process.
See Englert, 551 F.3d at 1106; Batzel, 333 F.3d at 1025. As
a practical matter, this analysis has focused on whether the
anti-SLAPP law in question functions as a right not to stand
trial, i.e., an immunity from suit. In Batzel, we held that the
denial of a motion to strike brought pursuant to California’s
anti-SLAPP statute satisfied the collateral order doctrine
because the purpose of the California law was to provide citi-
zens with a substantive immunity from suit. 333 F.3d at
1025-26. In reaching this conclusion, the court relied upon the
fact that California’s law provided for immediate appeal in
state court and legislative history demonstrating that “law-
makers wanted to protect speakers from the trial itself rather
than merely from liability.” Id. at 1025.
In contrast, Englert held that Oregon’s failure to provide
for an immediate appeal at that time indicated its legislature’s
belief that the normal appeal process was adequate to vindi-
cate the anti-SLAPP right, which it in turn described as “a
right to have the legal sufficiency of the evidence underlying
the complaint reviewed by a nisi prius judge before a defen-
dant is required to undergo the burden and expense of a trial.”
551 F.3d at 1105. The Englert court explained that “[i]t would
simply be anomalous to permit an appeal from an order deny-
ing a motion to strike when Oregon was satisfied that the val-
ues underlying the remedy could be sufficiently protected by
a trial judge’s initial review of the motion, followed by appel-
late review only after a final judgment in favor of the plaintiff.”6
Id. at 1105-06.
6
Englert is consistent with the holdings in Mohawk, Will, and Digital
Equipment that § 1291 requires courts of appeals to view claims of a
“right not to be tried” with “skepticism, if not a jaundiced eye.” Digital
Equip., 511 U.S. at 873.
7034 METABOLIC RESEARCH v. FERRELL
[5] The distinction our anti-SLAPP cases have drawn is
consistent with the Supreme Court’s command that collateral
effect should only be given to those orders that implicate a
significant public interest or value. A legislatively approved
immunity from trial, as opposed to a mere claim of a right not
to be tried, is imbued with a significant public interest. As the
Supreme Court explained in Digital Equipment Corp.,
“[w]hen a policy is embodied in a constitutional or statutory
provision entitling a party to immunity from suit (a rare form
of protection), there is little room for the judiciary to gainsay
its ‘importance.’ ” 511 U.S. at 879. In line with this principle,
we have recently held that “the availability of an [immediate]
appeal depends on whether, under state law, the immunity
functions as an immunity from suit or only as a defense to lia-
bility.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir.
2011). Our review of Nevada’s law satisfies us that its under-
lying values and purpose are satisfied without resort to an
immediate appeal because, unlike California’s, it does not fur-
nish its citizens with immunity from trial.
[6] We turn first to the major distinguishing feature
between the Oregon and California laws—the right to an
immediate appeal in state court—and find that Nevada’s anti-
SLAPP statute is more like Oregon’s at the time we decided
Englert. In Nevada, “where no statutory authority to appeal is
granted, no right exists.” Taylor Constr. Co. v. Hilton Hotels
Corp., 678 P.2d 1152, 1153 (Nev. 1984). Nevada’s anti-
SLAPP statute does not expressly provide for an immediate
right to appeal. It does state, however, that a court shall stay
discovery pending “the disposition of any appeal from the rul-
ing on the [special motion to dismiss].” Nev. Rev. Stat.
§ 41.660(3)(b)(2). We are unpersuaded that the statute’s gen-
eralized reference to an appeal implicitly, or otherwise, con-
fers an immediate right to appeal. Nevada based its anti-
SLAPP statute on California’s law, and the legislature could
have mirrored California’s unequivocal language concerning
an immediate right to appeal had it intended to furnish one.
See John, 219 P.3d at 1281 (“Nevada’s anti-SLAPP statute
METABOLIC RESEARCH v. FERRELL 7035
was enacted in 1993, shortly after California adopted its stat-
ute, and both statutes are similar in purpose and language.”).
Furthermore, the California anti-SLAPP statute allows for
immediate appeal under California Code of Civil Procedure
§ 904.1, which lists judgments and orders that are appealable.
See Cal. Code Civ. Proc. § 425.16 (“An order granting or
denying a special motion to strike shall be appealable under
Section 904.1.”). Nevada’s counterpart to § 904.1, Nevada
Rule of Appellate Procedure 3(b), lists some appealable inter-
locutory orders but does not mention denial of an order under
Nevada Revised Statute § 41.650. We find, therefore, that the
statute’s mention of “appeal” refers to discretionary writs
available under Nevada law, not an appeal of right. See Nev.
Rev. Stat. § 34.170 (writ of mandamus); Nev. Rev. Stat.
§ 34.330 (writ of prohibition).7
7
In Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 178
(5th Cir. 2009), a Fifth Circuit panel addressed a Louisiana anti-SLAPP
statute with provisions similar to those discussed in Batzel and Englert.
The panel recognized that the Ninth Circuit placed emphasis on the avail-
ability in the relevant legislation of an immediate appeal in state court in
deciding whether to grant collateral order status to an order denying an
anti-SLAPP motion. Id. at 178 n. The court noted that Louisiana, like Ore-
gon, did not provide for an immediate appeal by statute, but concluded
that Louisiana appellate courts apparently uniformly and automatically
reviewed denials of anti-SLAPP motions under writs of supervision which
appear to be similar in purpose to writs of mandamus. Id.If true, the uniform and automatic grant of a writ of supervision might
be the equivalent of a right to appeal, because it would operate in every
case in the appropriate category, and may raise the risk that failure to grant
an immediate appeal in federal court, in every case, might defeat the Erie
concern about encouraging court shopping. See Lockheed Missiles &
Space Co., 190 F.3d at 973 (enforcing California anti-SLAPP provisions
in federal court, in part to avoid encouraging shopping for a federal
forum). Ferrell has not cited any Nevada case granting a writ of manda-
mus or prohibition to review denial of an anti-SLAPP motion. As we
pointed out in Englert, the availability of discretionary writs, as opposed
to an appeal as a matter of right, provides no support for an argument that
a state statute providing for anti-SLAPP motions to dismiss was intended
by the legislature to provide a right not to be tried. Englert, 551 F.3d at7036 METABOLIC RESEARCH v. FERRELL
[7] Further persuading us that the Nevada legislature did
not intend for its anti-SLAPP law to function as an immunity
from suit is the statute’s definition of the anti-SLAPP right.
Nevada’s law provides that “[a] person who engages in a
good faith communication in furtherance of the right to peti-
tion is immune from civil liability for claims based upon the
communication.” Nev. Rev. Stat. § 41.650 (emphasis added).
We must presume the legislature selected its words with pur-
pose, and immunity from “civil liability” is unquestionably
different than immunity from “suit” or “trial.” Liberal, 632
F.3d at 1074 (“A denial of summary judgment is immediately
appealable when the immunity is an immunity from suit, but
not when it is a mere defense to liability.”).
Finally, we note that in the run of the mill of anti-SLAPP
cases, prompt review by a district judge will provide adequate
protection against frivolous cases brought to chill the exercise
of rights. Generally, a trial judge faced with an anti-SLAPP
motion will decide it using “the routine application of settled
legal principles.” Mohawk Indus., 130 S. Ct. 607. In the rare
case where the district court erroneously denies such a special
motion to dismiss, Nevada has provided substantial protec-
tions through the award of costs and attorneys’ fees to make
the litigant whole after she prevails on the appeal from a final
judgment and has, in addition, given her the option to pursue
the unscrupulous litigator with an action for damages.8 See
1107. The only evidence we have of the views of the Nevada Supreme
Court is found in Wynn Las Vegas, LLC v. Francis, No. 55459, 2010 WL
3315625 (Nev. June 10, 2010). Wynn is an unpublished, non-precedential
decision that may not be cited as precedent or legal authority. Nev. Sup.
Ct. R. 123. We mention it only because the fact of the decision, without
regard to its rationale, proves that Nevada does not uniformly and auto-
matically review denials of anti-SLAPP motions prior to a final judgment.
Henry is distinguishable on this basis.
8
We also note that Federal Rule of Civil Procedure 11 authorizes a dis-
trict court to impose sanctions on attorneys and parties who bring frivo-
lous lawsuits in bad faith and for ulterior purposes. Nevada has similar
provisions. See, e.g., Nev. R. Civ. P. 11; see also Chambers v. NASCO,
Inc., 501 U.S. 32 (1991) (discussing at length the many arrows in the dis-
trict court’s quiver of statutes, rules and inherent power available to punish
bad faith litigation tactics).
METABOLIC RESEARCH v. FERRELL 7037
Nev. Rev. Stat. § 41.670. This further satisfies us that “the
class of claims, taken as a whole, can be adequately vindi-
cated by other means.” Mohawk Indus., 130 S. Ct. at 601.
[8] Accordingly, the absence of an immediate appeal pro-
vision, coupled with the law’s use of the phrase “immunity
from civil liability” and provision of other safeguards, includ-
ing attorneys’ fees, leads us to conclude that Nevada’s anti-
SLAPP statute is similar to the Oregon statute as we inter-
preted it in Englert. Like the Oregon law at that time, it
appears to be a mechanism that allows a citizen to obtain
prompt review of potential SLAPP lawsuits and have them
dismissed before she is forced to endure the burdens and
expense of the normal litigation process, not an immunity to
suit or right not to be tried. Therefore, we hold that the denial
of a pretrial special motion to dismiss under Nevada’s anti-
SLAPP statute does not satisfy the third prong of the collat-
eral order doctrine and is not, therefore, immediately appeal-
able.
[9] Finally, we should not leave this issue without noting
Mohawk’s directive that we consider alternates to an immedi-
ate appeal in connection with the Cohen rule. Mohawk Indus.,
130 S. Ct. at 607-09. If prompt review by an experienced trial
judge will correctly resolve the run of the mill anti-SLAPP
motions, there are two remedies apart from collateral order
appeal available to enable an appellate court to address partic-
ularly injurious or novel issues. First, a litigant in federal
court may ask the district court to certify and the court of
appeals to accept an interlocutory appeal pursuant to 28
U.S.C. § 1292(b) as involving controlling questions of law the
resolution of which will speed the termination of the litiga-
tion. Secondly, in truly extraordinary cases, a writ of manda-
mus is available. 28 U.S.C. § 1651(a) (the All Writs Act
codifying the common law writ of mandamus); Cheney v.
U.S. Dist. Court for the Dist. of Columbia, 542 U.S. 367, 377
(2004). We have had recourse to the writ of mandamus to pro-
tect first amendment rights where we feared that the Mohawk
7038 METABOLIC RESEARCH v. FERRELL
decision foreclosed collateral order appeals. See Perry v. Sch-
warzenegger, 591 F.3d 1147, 1154-56 (9th Cir. 2010). Ferrell
did not seek to avail himself of 28 U.S.C. § 1292(b), nor did
he seek mandamus in this Court. We, therefore, express no
opinion on how we might have decided such an appeal or
application had one been brought. We conclude that an imme-
diate appeal is not necessary to protect the rights in Nevada
Revised Statute § 41.660.
III. CONCLUSION
We are satisfied that the order in this case was not a collat-
eral order justifying an immediate appeal.
DISMISSED.