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It’s Official: The Texas Citizens Participation Act Will Not Apply in Diversity Cases in Federal Court (For Now)

By: Shabaz Nizami

The Legislature enacted the Texas Citizens Participation Act (“TCPA”), also known as Texas’s Anti-SLAPP statute, in 2011 to provide an early and expedited process for defendants to seek dismissal of defamation and other claims. The purpose of the TCPA is to provide protection for Texas litigants against meritless lawsuits filed in retaliation against persons who are lawfully exercising their First Amendment rights.[1]

For years, federal district courts within the Fifth Circuit, as well as other federal courts of appeals across the country, have been split regarding the applicability of state anti-SLAPP statutes in federal court. However, on August 23rd, 2019, in what reasonably can be perceived as a setback for Texas anti-SLAPP defendants, the Fifth Circuit held that the TCPA will not apply to diversity cases in federal court. 

In Klocke v. Watson,[2] a college student named Thomas Klocke had committed suicide after he was refused graduation, due to allegations that he engaged in homophobic harassment. Klocke’s father sued the university for violation of Title IX and Nicholas Watson, the individual who made the harassment claims, for defamation. Watson moved to dismiss the defamation claims under the TCPA, and the U.S. District Court for the Northern District of Texas granted the motion. Klocke’s family appealed the case to the Fifth Circuit, arguing that the TCPA should not apply in federal court because its procedural requirements conflict with the Federal Rules of Civil Procedure and, consequently, should not apply in federal court.[3]

While the appeals court did acknowledge that, under the Erie doctrine,[4] substantive state law must be applied in federal courts in diversity cases like this one, it also pointed out that state procedural law yields to the applicable federal rules. Under this premise, the court concluded that the TCPA is a merely procedural device offered to litigants as opposed to a substantive right. Therefore, it agreed with Klocke’s argument that the TCPA should not apply in federal court because of its conflict with the Federal Rules of Civil Procedure, specifically rules 12 and 56 (which govern dismissal and summary judgment motions, respectively).

In agreeing with Klocke’s position, the court relied on a 2015 D.C. Circuit opinion (penned by now Supreme Court Justice Brett Kavanaugh) which held that the D.C. anti-SLAPP law does not apply in federal court.[5] That case, Abbas v. Foreign Policy Group LLC, held that “a federal court exercising diversity jurisdiction should not apply a state law or rule if … a Federal Rule of Civil Procedure answers the same question as the state law or rule….”[6] Accordingly, the court concluded that Federal Rules of Civil Procedure 12 and 56 “answer the same question” as the TCPA does, which is: “what are the circumstances under which a court must dismiss a case before trial?” The court further held that, because the TCPA imposes an additional procedural requirement when compared to Federal Procedure Rules 12 and 56 (i.e., the TCPA’s burden-shifting framework imposes additional evidentiary weighing requirements beyond those found in Federal Rules 12 and 56), a conflict arises between the state and federal procedural rules.  As a result, the state TCPA law cannot apply in federal court.

In reaching this conclusion, the Fifth Circuit in Klocke disagreed with the basis of the holding in an earlier First Circuit opinion, which held that the Maine anti-SLAPP statute did apply in federal court because “it does not seek to displace the Federal Rules or have Rules 12(b)(6) and 56 cease to function.”[7] Rather, the Fifth Circuit held that “the test of whether a conflict between the Federal Rules and a state statute exists is not whether it is logically possible for a court to comply with the requirements of both, but whether the Federal Rules in question are sufficiently broad to control the issue before the court” and that “the Federal Rules impose comprehensive, not minimum, pleading requirements.” In the Klocke case, the Fifth Circuit believes the Federal Rules are broad enough to create a conflict with the TCPA. 

This decision creates a disparity between the tools available for Texas state court anti-SLAPP defendants and their counterparts in federal court. Accordingly, at least for the time being, it may be reasonable to anticipate defamation plaintiffs will file suit in federal court more often than state court, where possible.

With that said, it is worth noting that, in this past legislative session, the Texas Legislature reformed the TCPA by narrowing its scope and applicability, including changing the statutory language on some of its evidentiary requirements. These changes take effect as of September 1, 2019. It will be interesting to see what impact these legislative changes will have (if any) on the TCPA’s applicability in federal court.

 


[1] Tex. Civ. Prac. & Rem. Code § 27.001-.011

[2]Klocke v. Watson, No. 17-11320, 2019 WL3977545 (5th Cir., Aug. 23, 2019).

[3] Id.

[4] Erie R.R. v. Tompkins, 304 U.S. 64, 78 (1938)

[5] Abbas v. Foreign Policy Group LLC 783 F.3d 1328 (D.C. Cir. 2015) (Kavanaugh, J.) (holding that D.C. anti-SLAPP statute did not apply in federal court).

[6] Id. at 1333.

[7] Godin v. Schencks, 629 F.3d 79, 88-92 (1st Cir. 2010)

 


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