In its Abbas decision, the DC Circuit held that, because it believed the standard contemplated by the DC anti-SLAPP statute conflicted with the standards required under Federal Rules of Civil Procedure 12 and 56, the statute could not apply in a federal court diversity case. Although the DC Court of Appeals in Mann then stated that “the standard to be employed by the court in deciding whether to grant the motion” “is substantively the same” as that under the Federal Rules, two DC federal district judges have nevertheless held the DC anti-SLAPP statute still cannot apply in a federal court diversity case (discussed here and here).

A reader recently brought another opinion to my attention: issued in January in Democracy Partners v. Project Veritas Action Fund. There, Democracy Partners sued various defendants for allegedly infiltrating its offices through misrepresentations, stealing confidential documents, and secretly recording hours of conversations.

In January, Judge Huvelle denied defendants’ motion to dismiss the complaint. The court’s opinion also denied a companion anti-SLAPP special motion to dismiss filed by the same defendants. While that, by itself, is not particularly notable (because, as the opinion notes, Judge Huvelle had already held that Abbas foreclosed applying the anti-SLAPP statute in a federal court diversity case, even after Mann), the opinion is noteworthy because jurisdiction in the Democracy Partners case was based on federal question, and not diversity of citizenship. As the court’s opinion explained, “[d]efendants contend that this distinction is significant, asserting that the Abbas decision is ‘not controlling where the court’s jurisdiction [over a state law claim] is based on the presence of a valid federal question.’”

The Democracy Partners opinion finds this distinction to be without a difference. The court explained that, in its Abbas decision, the DC Circuit applied the Supreme Court’s Shady Grove opinion, which has not been limited to diversity jurisdiction cases. Thus, the court concludes that Shady Grove and, by extension, Abbas, apply to a case based on federal question jurisdiction in the same way they apply to a case based on diversity jurisdiction.

The Democracy Partners opinion explains that “any other conclusion would create an irrational distinction in the treatment of identical state law claims.” Of course, one could argue that, by refusing to apply the DC anti-SLAPP statute in federal court, although it applies to the same claims in Superior Court, the DC Circuit has “create[d] an irrational distinction in the treatment of identical state law claims”! Anyway, the DC federal district court, for the first time I believe, holds the DC anti-SLAPP statute does not apply to those DC claims brought in a federal court case grounded in federal question jurisdiction.