Can an anti-SLAPP Motion Be Filed In Federal Court?

Posted on August 6, 2010 by Adrianos Facchetti

This is a question that comes up quite frequently and appears to be a source of some confusion. The law is that motions to strike a state law claim are proper in California Federal courts, e.g., libel, slander, intentional interference with prospective economic advantage. This is so because there is no conflict between the Federal rules and Code of Civil Procedure 425.16(b). Plus, it furthers the purposes of the Erie doctrine.

However, there are some important limitations of note. First, a court may not strike a federal question under the anti-SLAPP statute.

Second, the discovery limiting aspects of 425.16(f) and (g) may not apply.

There is a bit of a split of authority on this issue. Some courts have held that (f) and (g) directly collide with Rule 56 and others have not. For example, the Central District held that there was no collision between Rule 56 and (f) and (g), whereas the Eastern District believed there was. In fact, the Eastern District announced a test to determine whether a court could apply (f) and (g) where either of the three scenarios applied: (1) the factual basis of the case has been developed through discovery or similar prior proceedings to the extent a motion for summary judgment would be appropriate; or (2) the parties agree that further discovery is not necessary, or (3) the only issue presented by the motion is an issue of law and the motion is suitable for decision as a motion to dismiss pursuant to Rule 12(b)(6).

This information is important alike to SLAPPers (defendants) and SLAPPfeasors (plaintiff) for obvious strategic reasons.

Choose your forum carefully, if you have the option to do so.

 

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Exception To The Discovery Stay Under the anti-SLAPP Statute

Posted on August 3, 2010 by Adrianos Facchetti

As I've mentioned in previous posts numerous times before, upon the filing of an anti-SLAPP motion, "all discovery proceedings" are stayed. However, there is an exception where the Plaintiff can show good cause:

(g) All discovery proceedings in the action shall be stayed upon
the filing of a notice of motion made pursuant to this section. The
stay of discovery shall remain in effect until notice of entry of the
order ruling on the motion. The court, on noticed motion and for
good cause shown, may order that specified discovery be conducted
notwithstanding this subdivision.

(Emphasis added).

Now whether "good cause" exists will depend upon the specific circumstances of the case. Some factors courts may consider are: (1) whether the discovery is necessary for the Plaintiff make out a claim; (2) whether the evidence is solely in the possession of the party opposing the requested discovery; and (3) whether the discovery requested is narrowly tailored, or amounts to a "fishing expedition."

Things to look out for and consider:

  • Plaintiffs should file an ex parte application for an order shortening time as soon as they get hit with an anti-SLAPP motion and determine that they need discovery. If you simply make an ex parte application seeking to lift the discovery ban under CCP 425.16(g), the court may deny your request because the statute requires a "noticed motion."
  • Plaintiffs should only ask for limited discovery, otherwise the court may be inclined to deny your request.
  • Defendants should consider stipulating to Plaintiff's requested discovery when it makes sense. If you do not stipulate, make sure you are aware of all the cases that support your position. On the plaintiff's side, I have won a number of ex parte applications to lift the discovery ban because I had a greater command of the law than opposing counsel. In at least one of those instances, had I been on the other side, I believe I could have changed the result by distinguishing a key case.

 

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New Civil Discovery Law Protects Online Speech

Posted on November 5, 2008 by Adrianos Facchetti

Internet defamation attorneys and bloggers listen up!  A new law will take effect in California on January 1, 2009, which allows online speakers to obtain attorney's fees if they successfully oppose a subpoena to obtain their personally identifying information in California involving out-of-state litigation.


AB2433 was signed into law by Governor Arnold Schwarzenegger on September 30, 2008.  It amends Civil Code of Procedure sections 1987.1 and 1987.2.

Section 1987.2 reads:

(b) If a motion is filed under Section 1987.1 for an order to quash or modify a subpoena from a court of this state for personally identifying information, as defined in subdivision (b) of Section 1798.79.8 of the Civil Code, for use in an action pending in another state, territory, or district of the United States, or in a foreign nation, and that subpoena has been served on any Internet service provider, or on the provider of any other interactive computer service, as defined in Section 230(f)(2) of Title 47 of the United States Code, if the moving party prevails, and if the underlying action arises from the moving party's exercise of free speech rights on the Internet and the respondent has failed to make a prima facie showing of a cause of action, the court shall award the amount of the reasonable expenses incurred in making the motion, including reasonable attorney's fees."

Notice the attorney's fees clause is mandatory.  That means if the "moving party prevails" the court is required to award the moving party attorney's fees.  But what does the term "prevails" mean?  What if the moving party simply seeks a modification of the subpoena request?  Would that mean the moving party had prevailed?

This new law is also important because it addresses a loophole created in the Tendler decision, which held that subpoenas are not subject to an anti-SLAPP motion because they do not constitute a "cause of action."  This allowed litigants to file a claim (perhaps frivolous in some instances) out of state and request a subpoena in California with virtual impunity.  Not anymore.  AB2433 closes this loophole.

This law will affect the way internet defamation claims are litigated in California, nationwide, and perhaps even the world.  It's significance cannot be overstated.
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