The Ninth Circuit issued an opinion last week clarifying the standards applicable to anti-SLAPP motions in federal court, which is accompanied by a concurrence inviting the court to revisit its decision to hear anti-SLAPP appeals immediately. See Planned Parenthood Federation of America v. Center for Medical Progress, No. 16-16997 (9th Cir. May 16, 2018), http://cdn.ca9.uscourts.gov/datastore/opinions/2018/05/16/16-16997.pdf.
In Planned Parenthood, the plaintiff alleged that the defendants had used fraudulent means to enter the plaintiff’s conferences and obtain meetings with the organization’s staff to create false and misleading videos. The defendants filed a motion to dismiss the claims under Federal Rule of Civil Procedure 12(b)(6) and a special motion to strike the complaint under California’s anti-SLAPP statute, Cal. Civ. Code § 425.16. Under that statute, if the defendant can show the lawsuit targets protected activity, the plaintiff must show a “reasonable probability” of prevailing on its claims. Defendants can attack either the legal sufficiency of the complaint or present evidence demonstrating why the plaintiff cannot prevail.
The district court denied the anti-SLAPP motion. Because the defendants’ arguments under Rule 12 were identical to those in the anti-SLAPP motion, the district court concluded that it need only assess the sufficiency of the plaintiff’s complaint. When the defendants raised factual defenses, the district court held questions of fact precluded dismissal.
The Ninth Circuit affirmed the district court’s decision, and clarified the standards applicable to anti-SLAPP motions in federal courts. Adopting the holding from a previously unpublished decision, the court held that if the anti-SLAPP motion attacks the legal sufficiency of the plaintiff’s complaint, a court evaluates the motion using the standard under Rule 12 and Rule 8. Slip. Op. at 11 (discussing Z.F. v. Ripon Unified School District, 482 F. App’x 239, 240 (9th Cir. 2012)). If, on the other hand, a defendant’s motion attacks the factual sufficiency of the claim, “then the motion must be treated as though it were a motion for summary judgment and discovery must be permitted.” Id. (quoting Z.F., 482 F. App’x at 240).
The panel emphasized the apparent inconsistencies between California’s anti-SLAPP statute and the Federal Rules of Civil Procedure, holding that a contrary reading “would lead to the stark collision of the state rules of procedure with the...
