The ability to launch a preemptive strike against suits attacking speech or petitioning rights shouldn’t depend on which federal circuit has jurisdiction over the district court action. Yet that is how it stands right now when it comes to state law anti-SLAPP statutes deployed in federal diversity actions. At some point the United States Supreme Court will need to resolve the circuit split.

As it stands, the First, Fifth, and Ninth Circuits have allowed anti-SLAPP motions to be brought in federal court. The D.C. Circuit, however, has rejected them. The remainder of the circuits have not yet weighed in, leaving the district courts below them to decide the issue in the first instance. This could mean that a defendant is stripped of anti-SLAPP protection if an action is filed in federal court.

The circuits allowing anti-SLAPP motions tend to view them as coexisting with the federal rules. For example, almost 20 years ago, the Ninth Circuit held that California anti-SLAPP motions can be brought in federal court. United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). In Newsham, the Ninth Circuit found no conflict between the Federal Rules of Civil Procedure governing pretrial dismissal motions and the state law anti-SLAPP statute. In essence, the Ninth Circuit held that the state law anti-SLAPP statute was not precluded by the federal rules. The First and Fifth Circuits have also held that state law anti-SLAPP statutes apply in federal diversity actions.

In stark contrast, the D.C. Circuit has rejected state law anti-SLAPP statutes. Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (D.C. Cir. 2015). Reversing a district court’s grant of an anti-SLAPP motion in a defamation case, the D.C. Circuit held that state law anti-SLAPP statutes are precluded by Federal Rules 12 (motions to dismiss) and 56 (summary judgment). According to Abbas, a plaintiff in federal court need only state a plausible claim for relief in order to move forward, whereas under the state law anti-SLAPP statute, the burden is much more onerous—with the need to show a probability of prevailing before discovery commences. As Abbas puts it, since Congress has not seen fit to add such additional barriers, state law anti-SLAPP statutes conflict with the federal rules.

It’s never a good thing when the law encourages forum shopping and inequitable results within the same legal system. The free speech values animating the enactment of anti-SLAPP statutes in a majority of states ought not to be lost depending on whether an action is filed in state or federal court. But until the Supreme Court resolves the circuit split, anti-SLAPP motions will be subject to unequal treatment in diversity actions.

Gary A. Watt on Linkedin
Gary A. Watt
Partner at Hanson Bridgett
Gary, a State Bar certified appellate specialist, serves as the Chair of Hanson Bridgett’s Appellate Practice. He is on the faculty at U.C. Hastings College of the Law and is also Chair of the Contra Costa County Bar Association’s appellate practice section. He is a frequent contributor to the Daily Journal and The Recorder.