I have previously explained that Yasser Abbas’s appeal from the district court’s decision, granting the defendants’ anti-SLAPP motion, will likely force the DC Circuit to decide whether the DC anti-SLAPP statute applies in federal court (“the Erie issue”) because, unlike the Sherrod appeal (which also involved timeliness issues) and the Farah appeal (in which the motion to dismiss was also granted under Rule 12(b)(6)), the Abbas complaint was dismissed only under the DC anti-SLAPP statute and there are no other potentially dispositive issues (e.g., timeliness).

As such, the threshold question of whether the statute applies in federal court might be outcome determinative.  For this reason, Abbas’s opening brief squarely attacks the proposition that the statute applies in federal court, arguing that it can not because it directly conflicts with the Federal Rules of Civil Procedure. 

The defendants/appellees’ opposition brief, while strenuously (and persuasively) arguing that the DC anti-SLAPP statute applies in federal court, nevertheless provides the DC Circuit with a way to avoid deciding this issue.  The brief repeatedly makes the point that they also moved under Rule 12(b)(6), that each of the arguments made in their (successful) anti-SLAPP motion were incorporated from the companion Rule 12(b)(6) motion, and that the Abbas complaint could not survive that motion:

  • “Defendants’ Anti-SLAPP motion argued that Abbas was not likely to succeed on the merits ‘[f]or each of the reasons set forth in Defendants’ Motion to Dismiss,’ and incorporated by reference the legal arguments made in support of their Rule 12(b)(6) motion.”
  • “The [District] Court then turned to the merits of the Anti-SLAPP motion, which had incorporated by reference the arguments made in support of the Rule 12(b)(6) motion.”
  • “Although the district court’s legal rulings established that the Complaint had failed to state a claim upon which relief can be granted, the Court chose not to rule on the merits of the Rule 12(b)(6) motion. . .”.
  • “Those legal conclusions, made without reference to anything other than the text of the Commentary, supported dismissal under Rule 12(b)(6).  Those same legal determinations also supported dismissal pursuant to the D.C. Anti-SLAPP Act, as the district court concluded.”
  • “In sum, for the reasons stated by the district court, and for the additional reason that the Complaint did not plausibly allege fault, the Complaint in this case did not state a claim upon which relief can be granted.  It was therefore subject to dismissal under Rule 12(b)(6).  And for the reasons stated below, it was also subject to dismissal under the Anti-SLAPP Act.”

Thus, argue the defendants/appellees, “the judgment of dismissal may be affirmed based on Rule 12(b)(6) alone even if the Court were to hold the Anti-SLAPP Act inapplicable.”

The defendants/appellee’s brief thus raises the interesting question of whether the DC Circuit can avoid deciding the Erie issue by holding that dismissal would also have been appropriate under Rule 12(b)(6).  The DC Circuit has previously held that, “because [it] reviews the district court’s judgment, not its reasoning, [the Court] may affirm on any ground properly raised,” EEOC v. Aramark Corp., 208 F.3d 266, 268 (D.C. Cir. 2000).  That scenario, however, typically involves affirming for a different reason/argument than that relied upon by the district court.  Here, we are talking about a different procedural vehicle.

On the other hand, there is precedent supporting the defendants/appellees’ suggestion, although not directly on point.  In Dunn v. North Memorial Health Care, 739 F.3d 417 (8th Cir. 2014), the defendants moved to dismiss a False Claims Act complaint on the basis that it failed under both Rule 12(b)(6) and under Rule 9.  The district court dismissed the complaint under Rule 12(b)(6).  The appellate court affirmed the district court’s dismissal of the complaint but under Rule 9.  The defendants/appellees’ suggestion that the DC Circuit could affirm the dismissal of the Abbas complaint under Rule 12(b)(6) is thus interesting, to say the least.

Abbas’s reply brief disagrees that the DC Circuit could affirm under Rule 12(b)(6), arguing that, because the defendants/appellees did not cross-appeal from the denial of their Rule 12(b)(6) motion, the “only question before the Court is whether the district court properly granted Defendants’ anti-SLAPP motions.”  Abbas also disputes the argument of the defendants/appellees and amici (their briefs discussed below) that the DC anti-SLAPP statute and the Federal Rules can exist side-by-side, arguing that the two procedural vehicles are very different.  According to Abbas:

  • the DC anti-SLAPP statute requires a plaintiff to show a “likelihood of success” at the pleading stage, while the Federal Rules require only a claim that is “plausible”;
  • the DC anti-SLAPP statute allows a court to consider matters beyond the pleadings, while Rule 12 does not; and
  • the DC anti-SLAPP stays discovery, while discovery is provided under the Federal Rules.

To date, there have been two amicus brief filed in the Abbas case, both arguing that the DC anti-SLAPP statute applies in federal court.

The District of Columbia’s amicus brief is very similar to the briefs it filed in the Abbas case when it was pending at the district court and in the Adelson case, when it was pending in the New York district court.

According to DC’s brief, under Supreme Court and Circuit precedent, only “truly unavoidable conflicts” between state procedural law and federal procedural rules are problematic.  This is not one of those rare situations, argues DC’s amicus brief, because the DC anti-SLAPP statute and Federal Rules of Civil Procedure “can readily be harmonized . . . [and] can operate in tandem and without conflict.”

According to the District of Columbia, the DC anti-SLAPP statute and the Federal Rules operate in different space, with the anti-SLAPP statute providing immunity against only a specific type of lawsuit: one arising from conduct in furtherance of the right of advocacy on issues of public interest where a plaintiff cannot show it is likely to succeed on the merits.  The amicus brief argues that there is no federal rule that addresses this precise question.

As further support for the proposition that the DC anti-SLAPP statute and the Federal Rules of Civil Procedure can peacefully co-exist, the District’s amicus brief points to the DC federal court’s decision in 3M Co. v. Boulter. There, it notes, the court denied the anti-SLAPP motion, but nevertheless dismissed all but one count under Rule 12(b)(6).  This shows, according to DC, that there is no “unavoidable conflict” between the DC anti-SLAPP statute and the Federal Rules of Civil Procedure.  And, to the extent there is any ambiguity whether Federal Rules 12 or 56 permit application of the DC anti-SLAPP statute in federal court, DC argues that the Court should interpret the Federal Rules to avoid conflict.

The remainder of the District’s amicus brief argues that the 3M decision – which held that the DC anti-SLAPP statute does not apply in federal court – was wrongly decided, and that applying the anti-SLAPP statute in federal court will avoid forum shopping, which is exactly what Erie was designed to avoid.

The other brief was filed by “31 leading news organizations and trade organizations” that “gather and disseminate news across the country, including in Washington, D.C.”  It is very similar to the amicus brief filed by many of the same organizations in the Sherrod appeal.

The media amicus brief argues that the DC anti-SLAPP statute, like all other anti-SLAPP statutes, is grounded in the recognition that potentially non-meritorious defamation actions threaten the First Amendment and should be dismissed at the earliest possible juncture.  Like the DC amicus brief, the media amicus brief argues that the protection afforded by the DC anti-SLAPP statute comfortably sits side-by-side with Federal Rules 12 and 56 because, unlike the Federal Rules, the anti-SLAPP statute applies only to a narrow class of cases.  The brief also summarizes their experience under the DC anti-SLAPP statute in Boley, Farah, Dean, Snyder, Lehan, Sherrod, Mann and Doe.

To date, the DC Circuit has not set a date for argument nor has it announced the panel.