Resolving a longstanding uncertainty in federal district courts, the Fifth Circuit has held that the Texas Citizens Participation Act (TCPA) conflicts with federal procedural rules and therefore does not apply in diversity cases.
The TCPA is an anti-SLAPP statute (Strategic Litigation Against Public Participation). It is intended to provide a speedy process to resolve litigation that would impinge on First Amendment rights, typically defamation suits filed against those who speak out. If a movant shows that the action is based on the movant’s exercise of First Amendment rights, the case will be dismissed unless the non-movant establishes by “clear and specific evidence” a prima facie case for each element of the claim. The movant may rebut the non-movant’s evidence by establishing, with a preponderance of the evidence, the essential elements of a defense. Most discovery is stayed while a TCPA motion is pending. The Act sets specific time limits and provides a mandatory award of attorney fees to the movant if the case is dismissed.
In Klocke v. Watson, No. 17-11320, Klocke alleged that his son committed suicide after false charges of homophobic harassment were made by Defendant Watson. Klocke sued Watson for defamation and defamation per se. Watson moved to dismiss the defamation claims under the TCPA. Klocke asserted that the TCPA was inapplicable in federal court and did not respond on the merits. The district court overruled the objection and granted the motion to dismiss. On appeal, Klocke argued that the TCPA’s provisions conflict with federal rule 12(b)(6) governing motions to dismiss and rule 56 governing summary judgments.
The Fifth Circuit had previously hinted that anti-SLAPP statutes would apply in federal court. It had applied Louisiana’s anti-SLAPP statute in Henry v. Lake Charles American Press, LLC, 566 F.3d 164 (5th Cir. 2009). The First, Second, and Ninth Circuits had each upheld the use of state anti-SLAPP statutes in federal courts. Godin v. Schencks, 629 F.3d 79, 86–87 (1st Cir. 2010); Adelson v. Harris, 774 F.3d 803, 809 (2d Cir. 2014); United States ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 973 (9th Cir. 1999).
But in Klocke the Fifth Circuit disagreed both with its own holding in Henry and with the other circuits. It cited Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398–99 (2010), which held unenforceable in federal court a New York statute that precluded class action suits seeking penalties or statutory recoveries. The Supreme Court held that the state law limited the reach of federal class actions under Rule 23 and therefore conflicted with federal procedural rules. The Klocke panel found most persuasive the reasoning of Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015), which held that a federal court exercising diversity jurisdiction should not apply a state law or rule if (1) a Federal Rule of Civil Procedure ‘answer[s] the same question’ as the state law or rule and (2) the Federal Rule does not violate the Rules Enabling Act.
In this case, the court held that TCPA’s burden-shifting framework imposed additional requirements beyond those found in Rules 12 and 56 and answered the same question as those rules. Rule 12(b)(6) requires a court to accept all well-pleaded factual allegations as true and no evidence is required. Rule 56 only requires a non-movant to show a genuine dispute as to a material fact, and unlike the TCPA the judge does not weigh the evidence to determine the truth of the matter. The TCPA imposes additional requirements that demand judicial weighing of evidence and thus imposes requirements not found in the Federal Rules.
The court held that Henry was not binding despite the Fifth Circuit’s rule of orderliness. It reasoned that Henry interpreted a different statute, that Texas’ law imposes more complex burdens, the panel in Henry did not consider the potential conflict between the Louisiana anti-SLAPP provision and the federal rules, and the Henry panel did not have the benefit of the Supreme Court’s decision in Shady Grove. It concluded that “this panel is not bound by a non-argued, undecided issue in another case interpreting another state’s dissimilar statute.”
The court’s opinion in Klocke v. Watson may be found here.