Coomer v. Make Your Life Epic LLC

98 F.4th 1320

Eric COOMER, Ph.D., Plaintiff - Appellee, v. MAKE YOUR LIFE EPIC LLC, d/b/a ThriveTime Show;Clayton Thomas Clark, Defendants - Appellants.

No. 23-1109

United States Court of Appeals, Tenth Circuit

FILED April 23, 2024

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CV-03440-WJM-KLM)

Thomas B. Quinn, Gordon Rees Scully Mansukhani LLP, Denver, Colorado (John R. Mann and Melissa A. Weise, Gordon Rees Scully Mansukhani LLP, with him on the briefs), for Defendants-Appellants.

Zachary H. Bowman, Cain & Skarnulis PLLC, Austin, Texas (Charles J. Cain, Bradley A. Kloewer, and David E. Jennings, Cain & Skarnulis PLLC, Salida, Colorado, with him on the brief), for Plaintiffs-Appellees.

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges.

PHILLIPS, Circuit Judge.

Soon after the 2020 presidential election, Make Your Life Epic LLC (doing business as ThriveTime Show) and its podcast host, Clayton Clark (collectively, "Epic"), began publishing and repeating false claims about Dr. Eric Coomer, the then-director of product strategy and security at Dominion Voting Systems (an election-tech company).¹ Epic claimed that Dr. Coomer was a member of "Antifa" and had rigged the election in favor of Joseph R. Biden and against Donald J. Trump. App. vol. I, at 10 ¶ 5.

Dr. Coomer filed this diversity action in the District of Colorado against Epic asserting claims for defamation, intentional infliction of emotional distress, and civil conspiracy. Epic filed a "special motion to dismiss" the lawsuit under the provisions of Colorado's anti-SLAPP (Strategic Lawsuit Against Public Participation) statute. Colo. Rev. Stat. § 13-20-1101. The district court denied this motion after determining that Dr. Coomer would likely prevail on the merits of all three of his claims.

Epic appealed, asking us to reverse the district court's order. In response, Dr. Coomer moved to dismiss Epic's appeal for lack of appellate jurisdiction. We hold that the proposed interlocutory appeal falls outside of the collateral-order doctrine, so we dismiss Epic's appeal for lack of appellate jurisdiction.

BACKGROUND

I. Factual Background

Days after Joseph Biden defeated Donald Trump in the 2020 presidential election, Joe Oltmann began publicly accusing Dr. Coomer of rigging the election in favor of Biden and against Trump. Oltmann claimed—initially on his own podcast and then on other forums—that in September 2020 he had "infiltrated an Antifa conference call" and overheard someone referred to as "Eric" and as the "Dominion guy" state: "Don't worry about the election, Trump is not gonna win. I made f-ing sure of that. Hahahaha." App. vol. I, at 23-24 ¶ 29. Oltmann claimed that he had later identified "Eric" as Dr. Coomer, the then-director of product strategy and security at Dominion Voting Systems. Id. at 24.

Oltmann repeated these accusations about Dr. Coomer on Epic's podcast, the ThriveTime Show. Oltmann appeared as Clark's guest on the ThriveTime Show in December 2020, June 2021, and October 2021. During the December podcast episode, Clark introduced Oltmann as "a whistleblower about Eric Coomer" and stated: "He joins us today to expose the truth, that the Director of Strategy and Security for Dominion Voting Systems is in fact a member of Antifa. Yes, I repeat, the Director of Strategy, I can't make this up, the Director of Security for Dominion Voting Systems is in fact a member of Antifa." Id. at 34 ¶ 48, 35 ¶ 50. Epic published the December episode with this title: "Exposing the Treasonous Eric Coomer[,] the ANTIFA Member and the Director of Strategy and Security at DOMINION Voting Systems." Id. at 9 ¶ 3. The episode's accompanying "Show Notes" listed several questions including these: "What does every American need to know about Eric Coomer and DOMINION?"; "How did you first discover the ANTIFA loving nature of Eric Coomer?"; "What happened to the VOTING systems in Georgia, and what was Eric Coomer's role in this?"; and "What do we do with people that commit treason, sedition and subversive activities?" Id. at 40-41 ¶ 57. The final question included a link to a government website identifying the punishment for treason as death. The June and October podcast episodes kept to the same script: Clark introduced Oltmann to speak about Dr. Coomer and the 2020 election, and Oltmann repeated his false claims.

Clark also invited Oltmann to be a featured speaker at Epic's live ReAwaken America Tour events in Anaheim, California; Grand Rapids, Michigan; Colorado Springs, Colorado; San Antonio, Texas; and Dallas, Texas.² At these events, which Epic also broadcast online, Oltmann again proclaimed that "[t]he election on November 3, 2020, was stolen" and blamed Dr. Coomer. Id. at 47 ¶ 72.

Dr. Coomer alleges that by publishing and repeating Oltmann's false claims, Epic cost him his job, damaged his nationwide reputation, engendered near-daily death threats, and resulted in his being clinically diagnosed with anxiety and depression.

II. Procedural Background

Dr. Coomer filed suit in the District of Colorado against Epic for defamation, intentional infliction of emotional distress, and civil conspiracy.³ Soon after, Epic filed a special motion to dismiss Dr. Coomer's claims as provided for in Colorado's anti-SLAPP statute.

In enacting its anti-SLAPP statute, the Colorado legislature had two aims: to "safeguard the constitutional rights of persons to petition, speak freely, associate freely, and otherwise participate in government . . . and, at the same time, to protect the rights of persons to file meritorious lawsuits for demonstrable injury." Colo. Rev. Stat. § 13-20-1101(1)(b); see also Salazar v. Pub. Tr. Inst., 522 P.3d 242, 246 (Colo. App. 2022). To balance these competing interests, the statute permits a defendant to file a "special motion to dismiss" (also called an "anti-SLAPP motion") so that the district court can "make an early assessment about the merits" of the lawsuit. Salazar, 522 P.3d at 246-47 (citing § 13-20-1101(3)(a)).

In making this assessment, courts employ the two-step burden-shifting process given by the statute. L.L.S. v. S.A.P., 523 P.3d 1280, 1285 (Colo. App. 2022). At the first step, the defendant has the burden to make a "threshold showing that the conduct underlying the plaintiff's claim falls within the scope of the anti-SLAPP statute—that is, that the claim arises from an act 'in furtherance of the defendant's right of petition or free speech in connection with a public issue.' " Id. (quoting § 13-20-1101(3)(a)) (cleaned up). At the second step, assuming the defendant has met its initial burden, the burden shifts to the plaintiff to "establish[ ]" a "reasonable likelihood [of] prevail[ing] on the claim." § 13-20-1101(3)(a); see also L.L.S., 523 P.3d at 1285-86. There, courts "consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based." § 13-20-1101(3)(b); see also L.L.S., 523 P.3d at 1285-86; Salazar, 522 P.3d at 248.

Employing this framework, the district court determined at step one that the conduct described in Dr. Coomer's claims arose from Epic's "right of petition or free speech . . . in connection with a public issue." Coomer v. Make Your Life Epic LLC, 659 F. Supp. 3d 1189, 1199-1200 (D. Colo. 2023) (quoting § 13-20-1101(3)(a)). Then at step two, after reviewing the pleadings, the affidavits, and "extensive evidence," the court concluded that Dr. Coomer was likely to prevail on the merits of his claims. Id. at 1204-07. That being so, the court denied Epic's special motion to dismiss. Id. at 1207-08. Discovery remained ongoing in the district court, despite Epic's request to stay it. See Coomer v. Make Your Life Epic LLC, 671 F.Supp.3d 1222, 1228-29 (D. Colo. 2023) (denying Epic's motion to stay pending appeal). Epic now appeals the order denying the special motion to dismiss.⁴

DISCUSSION

On appeal, Epic contends that the district court erred in ruling that Dr. Coomer had met his burden to show a reasonable likelihood of prevailing on the merits of his claims. Dr. Coomer has moved to dismiss Epic's appeal on the ground that we lack appellate jurisdiction under 28 U.S.C. § 1291. Epic counters that this court has appellate jurisdiction under the collateral-order doctrine. For the reasons given below, we reject Epic's argument and dismiss this appeal for lack of appellate jurisdiction.

I. The Collateral-Order Doctrine

Congress has generally limited our appellate jurisdiction to "final decisions of the district courts." 28 U.S.C. § 1291. A decision is "not final, ordinarily, unless it ends the litigation on the merits and leaves nothing for the [district] court to do but execute the judgment." Cunningham v. Hamilton Cnty., 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999) (cleaned up).

One exception to this rule is the collateral-order doctrine, which provides appellate jurisdiction over "a small class of collateral rulings that, although they do not end the litigation, are appropriately deemed final." Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 106, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009) (cleaned up). Under this doctrine, an interlocutory district-court order may be appealed if three conditions are met: (1) the order is "conclusive" on the question it decides, (2) the order "resolve[s] important questions separate from the merits," and (3) the order is "effectively unreviewable" if not presented in an interlocutory appeal. Id. (citation omitted) (restating the three requirements announced in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545-46, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949)). But this test is "stringent." Digit. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 867 (1994).

We are mindful of the Supreme Court's repeated admonitions that the class of collaterally appealable orders must remain "narrow and selective in its membership." Mohawk Indus., 558 U.S. at 113, 130 S.Ct. 599 (citation omitted); see also...