The DC Circuit held this morning that the DC anti-SLAPP statute does not apply in a federal court diversity case because “Federal Rules 12 and 56 answer the same question as the Anti-SLAPP Act’s special motion to dismiss provision” (the Erie issue).  This is obviously big news as it provides an obvious opportunity for forum shopping, with plaintiffs filing suit in federal court, where the statute is now inapplicable, instead of Superior Court, where the statute applies.

According to the DC Circuit’s opinion, Federal Rules of Civil Procedure 12 and 56 address “the circumstances under which a court must dismiss a case before trial,” meaning that the DC anti-SLAPP statute, which imposes a higher burden, cannot apply:

Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment.  But the DC Anti-SLAPP Act nullifies that entitlement in certain cases.  Under the D.C. Anti-SLAPP Act, the plaintiff is not able to get to trial just by meeting those Rule 12 and 56 standards.  The D.C. Anti-SLAPP Act, in other words, conflicts with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.

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In short, unlike the D.C. Anti-SLAPP Act, the Federal Rules do not require a plaintiff to show a likelihood of success on the merits in order to avoid pre-trial dismissal.  Under Shady Grove, therefore, we may not apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision.

Although the defendants argued that the standard under the anti-SLAPP act mirrors Rule 56, so that the anti-SLAPP statute does not conflict with the Federal Rules, the DC Circuit rejects this argument as contrary to the intent of the DC Council, and the language of the statute.  The Court also rejects the defendants’ argument that the statute is akin to qualified immunity, holding that principle does not change the fact that the “procedural mechanism” for resolving the motion is different, and thus barred.

Most notably, the DC Circuit acknowledges that other courts, including the First, Fifth, and Ninth Circuits, have all held that anti-SLAPP statutes apply in federal court, notwithstanding Rules 12 and 56.  It disagrees with these decisions, explaining that they are “not persuasive.”

Notwithstanding the DC Circuit’s agreement with Abbas that the DC anti-SLAPP statute does not apply in a federal court diversity case, the Court affirms dismissal of the Complaint on the basis that the questions posed in the article were not factual representations.  It thus dismisses the Complaint under Rule 12(b)(6) – a motion that the defendants made below, but which the District Court held was moot when it granted the anti-SLAPP motion.

Takeaways:  from a practical standpoint, as stated above, any defamation plaintiff that has the ability to file suit in DC federal court should do so because it will not be faced with an anti-SLAPP motion.  This is a troubling concept, as we are likely to see more forum shopping of the type that we have already seen in other cases.