Substantive or procedural? This age-old conceptual “split” lies at the heart of the Erie Doctrine, which we tackle here in our first post. The issue: when a state law imposes procedural requirements on litigants so as to advance a substantive policy goal, do those requirements apply in federal court? We have seen two circuit splits on this problem, so—befittingly—we have “split” our first post into two parts.
The Rule 12/Rule 56 Split
A major circuit split is developing on the Erie problem of whether state anti-SLAPP laws conflict with Federal Rules of Civil Procedure 12 and 56. SLAPP’s, or “Strategic Lawsuits Against Public Participation,” occur when someone is sued for defamation just for exercising her right to petition or speak out in public. The plaintiff—a company, for example—hopes the cost and stress of defending the lawsuit will stop the defendant—perhaps a recently fired employee— from speaking.
To deter these suits and preserve a robust First Amendment, twenty-eight states, plus D.C. and Guam, have passed anti-SLAPP laws. Though these laws have a substantive purpose (protecting free speech), they often take procedural form, providing SLAPP defendants with a “special motion to dismiss” that they can bring as soon as they are sued. Unfortunately for SLAPP defendants, Erie problems result if special motions to dismiss conflict with the Federal Rules of Civil Procedure.
The Erie Doctrine at its simplest has two steps: under Hanna v. Plumer, if a state law conflicts with a valid federal rule, the federal rule controls. If there is no conflict, then under Erie, the court should apply state rules that are substantive enough to affect the outcome of the case. Here’s how anti-SLAPP laws can conflict with the Rules.
First, Rule 12 allows defendants to move to dismiss, but defendants must choose from among the seven grounds for dismissal listed in 12(b)—“I’ve been slapped with a SLAPP” is not listed. As the D.C. Circuit has noted (see below), anti-SLAPP laws may “conflict with the Federal Rules by setting up an additional hurdle a plaintiff must jump over to get to trial.”
Second, if a “special motion to dismiss” counts as a 12(b)(6) motion to dismiss for failure to state a claim, anti-SLAPP laws may conflict with Rule 56. Rule 12(d) provides that, “If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the court, the motion must be treated as one for summary judgment under Rule 56.” But anti-SLAPP laws, such as Maine’s, flip the burden of proof required on summary judgment, putting it not on the SLAPP defendant, but on the SLAPP plaintiff—the nonmoving party.
The Ninth Circuit first considered whether anti-SLAPP laws conflict with Federal Rules 8, 12, and 56 in United States ex rel. Newsham v. Lockheed Missiles and Space Company (1999). The court found no conflict between the California anti-SLAPP law and the Federal Rules, under Hanna:
[T]here is no indication that Rules 8, 12, and 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims. . . . The Anti-SLAPP statute, moreover, is crafted to serve an interest not directly addressed by the Federal Rules: the protection of ‘the constitutional rights of freedom of speech and petition for redress of grievances.’
The Fifth Circuit seemed to ratify this reasoning in Henry v. Lake Charles American Press (2009), applying Louisiana’s anti-SLAPP statute in federal court without Erie analysis. And the following year, the First Circuit agreed with Newsham and Henry, applying Maine’s anti-SLAPP statute in federal court and finding no conflict under Hanna with the Federal Rules:
Federal Rules 12(b)(6) and 56 are addressed to different (but related) subject-matters. . . . Maine has not created a substitute for the Federal Rules, but instead created a supplemental and substantive rule to provide added protections, beyond those in Rules 12 and 56, to defendants who are named as parties because of constitutional petitioning activities.
Judge Alex Kozinski of the Ninth Circuit, however, argued in a concurrence in Makaeff v. Trump University, LLC (2013), that Newsham was wrongly decided on two grounds. First, state procedural rules cannot apply in federal court, even absent a conflict:
Newsham‘s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive. It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights.
And second, Judge Kozinski disagreed with Newsham and Godin, finding that anti-SLAPP laws do conflict with the Federal Rules:
The Federal Rules …provide an integrated program of pre-trial, trial and post-trial procedures designed to ensure “the just, speedy, and inexpensive determination of every action and proceeding.” . . . The California anti-SLAPP statute cuts an ugly gash through this orderly process. . . . Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.
The D.C. Circuit, citing Judge Kozinski’s concerns, narrowly avoided creating a circuit split with Newsham, Henry, and Godin in Abbas v. Foreign Policy Group, LLC (2015), when it granted dismissal of a lawsuit based on 12(b)(6) but argued in dicta that the D.C. anti-SLAPP statute should not apply in federal court:
Federal Rules 12 and 56 answer the same question as the D.C. Anti-SLAPP Act, and those Federal Rules are valid under the Rules Enabling Act. A federal court exercising diversity jurisdiction therefore must apply Federal Rules 12 and 56 instead of the D.C. Anti-SLAPP Act’s special motion to dismiss provision.
It seems only a matter of time before another Court of Appeals adopts Judge Kozinski’s opinion and Abbas’s dicta into a holding and creates a circuit split with Newsham, Godin, and Henry. The Supreme Court spectacularly failed to clarify the Erie Doctrine in its 2010 case Shady Grove Orthopedic Associates v. Allstate Insurance Co., when the Justices split 4-1-4 with no majority opinion. But with Justice Scalia—author of the Shady Grove plurality—and Justice Stevens—author of the concurrence in judgment—no longer on the Court, we expect the Erie Doctrine to appear again at the high court.