Decision of Interest: Erie and Donald Trump in the Ninth Circuit

Yesterday the U.S. Court of Appeals for the Ninth Circuit decided Makaeff v. Trump University, __ F.3d __, 2013 WL 1633097, No. 11-55016. As the opinion explains, “California law provides for the pre-trial dismissal of certain actions, known as Strategic Lawsuits Against Public Participation, or SLAPPs, that ‘masquerade as ordinary lawsuits’ but are intended to deter ordinary people ‘from exercising their political or legal rights or to punish them for doing so.’” [Slip Op. 10] Ms. Makaeff invoked California's anti-SLAPP statute and moved to strike Trump University’s defamation counterclaim against her. The district court denied her motion, but the Ninth Circuit reverses and remands for the district court to apply California’s anti-SLAPP law and to consider whether Trump had shown “a reasonable probability of proving, by clear and convincing evidence, that Makaeff made her critical statements with actual malice.” [Slip Op. 32-33]

Two judges on the three-judge panel—Judge Kozinski and Judge Paez—author concurring opinions questioning whether California’s anti-SLAPP statute properly applies in federal court under the Erie doctrine. Here are some excerpts from Judge Kozinski’s concurrence [Slip Op. 32-37]:

I join Judge Wardlaw’s fine opinion because it faithfully applies our law, as announced in United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir. 1999), and its progeny. But I believe Newsham is wrong and should be reconsidered.

Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938), divided the law applicable to diversity cases into two broad categories. Overruling Swift v. Tyson, 41 U.S. 1 (1842), it held that state law, rather than federal common law, applies to matters of substance. Erie, 304 U.S. at 78–79. But when it comes to procedure, federal law governs. See Gasperini v. Ctr. for Humanities, Inc., 518 U.S. 415, 427 & n.7 (1996); see also Hanna v. Plumer, 380 U.S. 460, 473 (1965) (“Erie and its offspring cast no doubt on the long-recognized power of Congress to prescribe housekeeping rules for federal courts . . . .”).

In most cases, it’s easy enough to tell whether a rule is substantive or procedural. Whether a defendant is liable in tort for a slip-and-fall, or has a Statute of Frauds defense to a contract claim, is controlled by state law. Just as clearly, the time to answer a complaint, the manner in which process is served, the methods and time limits for discovery, and whether the jury must be unanimous are controlled by the Federal Rules of Civil Procedure. The latter is true, even though such procedural rules can affect outcomes and, hence, substantive rights. See Hanna, 380 U.S. at 471.

But the distinction between substance and procedure is not always clear-cut. While many rules are easily recognized as falling on one side or the other of the substance/procedure line, there are some close cases that call for a more nuanced analysis. See, e.g., Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1437 (2010); Gasperini, 518 U.S. at 428.…

Most of Newsham’s analysis was devoted to showing that there’s no “conflict” between California’s anti-SLAPP statute and the Federal Rules of Civil Procedure and, therefore, the two regimes can operate side-by-side in the same lawsuit. But the question of a conflict only arises if the state rule is substantive; state procedural rules have no application in federal court, no matter how little they interfere with the Federal Rules. Newsham’s mistake was that it engaged in conflict analysis without first determining whether the state rule is, in fact, substantive.

It’s not. The anti-SLAPP statute creates no substantive rights; it merely provides a procedural mechanism for vindicating existing rights. The language of the statute is procedural: Its mainspring is a “special motion to strike”; it contains provisions limiting discovery; it provides for sanctions for parties who bring a non-meritorious suit or motion; the court’s ruling on the potential success of plaintiff’s claim is not “admissible in evidence at any later stage of the case”; and an order granting or denying the special motion is immediately appealable. See Cal. Civ. Proc. Code § 425.16. The statute deals only with the conduct of the lawsuit; it creates no rights independent of existing litigation; and its only purpose is the swift termination of certain lawsuits the legislators believed to be unduly burdensome. It is codified in the state code of civil procedure and the California Supreme Court has characterized it as a “procedural device to screen out meritless claims.” See Kibler v. N. Inyo Cnty. Local Hosp. Dist., 138 P.3d 193, 198 (Cal. 2006).

Federal courts must ignore state rules of procedure because it is Congress that has plenary authority over the procedures employed in federal court, and this power cannot be trenched upon by the states. See Erie, 304 U.S. at 78 (“[T]he law to be applied in any [diversity] case is the law of the State” except for “matters governed by the Federal Constitution or acts of Congress . . . .” (emphasis added)); see also 28 U.S.C. § 2072. To me, this is the beginning and the end of the analysis. Having determined that the state rule is quintessentially procedural, I would conclude it has no application in federal court.

Judge Kozinski concludes [Slip Op. 40]:

Newsham was a big mistake. Two other circuits have foolishly followed it. See Godin v. Schencks, 629 F.3d 79, 81, 85–91 (1st Cir. 2010); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168–69 (5th Cir. 2009). I’ve read their opinions and find them no more persuasive than Newsham itself. It’s time we led the way back out of the wilderness. Federal courts have no business applying exotic state procedural rules which, of necessity, disrupt the comprehensive scheme embodied in the Federal Rules, our jurisdictional statutes and Supreme Court interpretations thereof.… [I]f this or another case were taken en banc, we could take a fresh look at the question. I believe we should.

 --A