Cite as
2005 DJDAR 3088Published
Jun. 19, 2005Filing Date
Mar. 14, 2005Summary
9th U.S. Circuit Court of Appeals
In his lawsuit against Fry's Electronics, Steve Thomas moved to strike Fry's counterclaims as a strategic lawsuit against public participation (SLAPP). The district court hearing the case ruled that according to recent U.S. Supreme Court authority, California's anti-SLAPP statute conflicted with the Federal Rules of Civil Procedure (FRCP) and was not be available to litigants in federal court. Thomas appealed, challenging the court's denial of his motion.
Reversed and remanded. In United States ex rel. Newsham v. Lockheed Missiles & Space Co., this court determined that California anti-SLAPP motions to strike, as well as entitlement to fees and costs, are available to litigants in federal court. U.S. Supreme Court authority on the matter merely states that federal courts may not impose a heightened pleading requirement which conflicts with the FRCP. Since there is no conflict between the provisions adopted by this court and that of the FRCP, Thomas's case must be remanded to the district court for a decision on the merits of his anti-SLAPP motion and his motion for attorney fees and costs.
— Brian Cardile
No. 03-56306 D.C. No. CV-02-1831 TJW/JFS United States Court of Appeals Ninth Circuit Filed March 15, 2005
Appeal from the United States District Court for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted March 8, 2005* Pasadena, California
Before: Thomas G. Nelson, Barry G. Silverman, and Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
COUNSEL Scott A. McMillan, The McMillan Law Firm, La Mesa, California, for the appellant.
James D. Claytor and William H. Curtis, Foley McIntosh Frey & Claytor, Lafayette, California, for the appellee.
OPINION PER CURIAM:
Steve Thomas brings this interlocutory appeal challenging the district court's denial of his antiStrategic Lawsuit Against Public Purpose1 ("antiSLAPP") special motion to strike state law counterclaims brought by Fry's Electronics in Thomas's declaratory relief action. We have jurisdiction pursuant to 28 U.S.C. § 1292(b). The district court ruled that in light of recent Supreme Court authority, California's antiSLAPP statute is in conflict with the Federal Rules of Civil Procedure and thus is unavailable to litigants in federal court. After reviewing the district court's decision de novo, see Vess v. CibaGeigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003), we reverse and remand.
The district court ruled that the Supreme Court's decision in Swierkiewicz v. Sorema, 534 U.S. 506 (2002), undermines our decision in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). In Lockheed, we determined that California antiSLAPP motions to strike and entitlement to fees and costs are available to litigants proceeding in federal court, and that these provisions do not conflict with the Federal Rules of Civil Procedure. 190 F.3d at 970-73. Swierkiewicz merely stands for the proposition that federal courts may not impose a heightened pleading requirement in derogation of federal notice pleading rules. It is instructive in the pleading context, but does not support the district court's ruling here. Swierkiewicz did not abrogate Lockheed.
Because the district court erroneously concluded that the antiSLAPP statute was unavailable in federal court, it did not reach the merits of Thomas's motion to strike or the motion for attorney's fees and costs. We remand to the district court so that it may rule on these issues.
REVERSED and REMANDED.
* The panel unanimously finds this case suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2).
1 Cal. Civ. P. Code § 425.16
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