Media Law Prof Blog

Editor: Christine A. Corcos
Louisiana State Univ.

Friday, May 15, 2009

Fifth Circuit Reverses Lower Court Denial of Motion To Strike Under La. Anti-Slapp Statute In Defamation Case

In Henry v. Lake Charles American Press, the Fifth Circuit has reversed a lower court ruling denying defendants' motion to strike under Louisiana's anti-SLAPP statute, La. Code Civ. Proc. art. 971.

Henry was the owner and president of Chennault Jet Center, Inc. (“CJC”) from 1995 to 2005. CJC operated out of the Chennault International Airport in Lake Charles, Louisiana, and had contracted with the Defense Logistics Agency to refuel military aircraft. In February 2005, the government notified CJC that it was initiating an investigation into whether CJC had sold contractually noncompliant fuel for use in military aircraft. In April 2005, the government terminated the Defense Logistics Agency’s contract with CJC.

From May 2005 to January 2006, American Press published a series of articles describing the investigation of CJC’s fueling practices. Henry asserts that these articles contained several defamatory statements, but focuses primarily on reports that CJC provided “contaminated fuel” to military aircraft that may have caused them to flame out.

On May 10, 2006, Henry sued American Press for defamation in Texas state court. American Press removed the case to the Southern District of Texas on the basis of diversity and later successfully moved to transfer the case to the Western District of Louisiana. On August 20, 2007, the district court determined that Louisiana substantive law governed the dispute and permitted American Press to file a special motion to strike pursuant to Article 971 of the Louisiana Code of Civil Procedure (“Article 971”). As discussed further below, Article 971 provides a mechanism whereby plaintiffs bringing certain tort claims must show a probability of success on their claim before proceeding. The district court initially denied American Press’s Article 971 motion, and American Press requested reconsideration. The district court granted reconsideration and again denied American Press’s motion in a more detailed opinion. American Press then filed a notice of appeal from the district court’s order denying its Article 971 motion.

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The threshold issue in this appeal is whether a district court’s denial of an Article 971 motion is immediately appealable under 28 U.S.C. § 1291. “[S]ince appeals of right have been authorized by Congress . . . , there has been a firm congressional policy against interlocutory or ‘piecemeal’ appeals and courts have consistently given effect to that policy.” Abney v. United States , 431 U.S. 651, 656 (1977). Section 1291 is part of that policy. Under § 1291, this court has “jurisdiction of appeals from all final decisions of the district courts of the United States.” 28 U.S.C. § 1291. “For purposes of [§ 1291], a final judgment is normally deemed not to have occurred ‘until there has been a decision by the District Court that ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’” Midland Asphalt Corp. v. United States , 489 U.S. 794, 798 (1989) (quoting Van Cauwenberghe v. Biard , 486 U.S. 517, 521 (1988)). Thus, as a general rule, parties must litigate all issues in the trial court before appealing any one issue. “Appeal is thereby precluded from any decision which is tentative, informal or incomplete, as well as from any fully consummated decisions, where they are but steps towards final judgment in which they will merge.” P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc. , 506 U.S. 139, 142 (1993) (quotation marks omitted).

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We must first determine whether the denial of an Article 971 motion is conclusive. Conclusivity does not merely require that the specific issue be conclusively determined; were that the case, any issue on which a district court has rendered a decision would be conclusive. See Goodman , 443 F.3d at 468. Instead, for an order to be conclusive, it should not be subject to later review or revision in the district court. See Coopers & Lybrand , 437 U.S. at 469 (noting that the denial of a request for class certification is not conclusive under the collateral order doctrine because “such an order is subject to revision in the District Court”); Baldridge v. SBC Commc’ns., Inc. , 404 F.3d 930, 931 (5th Cir. 2005) (noting that the denial of a request for certification for a Fair Labor Standards Act collective action is not conclusive under the collateral order doctrine because it “is subject to revision before the district court addresses the merits”). The mere power to revisit an order, however, is insufficient to preclude a finding of conclusivity; it should be unlikely that the district court will revisit the order. See 15A Wright et al., supra , § 3911, at 333 (“So long as there is a plain prospect that the trial court may itself alter the challenged ruling, there is little justification for immediate appellate intrusion. The bare fact that the court has power to change its ruling, however, does not preclude review. It is enough that no further consideration is contemplated.” (citations omitted)). That is, the order should be one that a district court rarely, if ever, revisits.   An order denying an Article 971 motion satisfies any concerns regarding conclusivity. A district court’s denial of an Article 971 motion is conclusive as to whether Article 971 mandates dismissal of the suit. The motion freezes a suit while the court determines whether the plaintiff’s claim has merit. If a trial court grants an Article 971 motion, the litigation ceases and the case is dismissed. If a trial court denies an Article 971 motion, then the case proceeds as it normally would. There is also no indication that a trial court would revisit an earlier decision on an Article 971 motion. We therefore conclude that an order denying an Article 971 motion is conclusive for the purposes of the collateral order doctrine.

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Second, we must determine whether an Article 971 motion resolves an issue completely separate from the merits of the case. Issues are not separate “where they are but steps towards [a] final judgment in which they will merge.” Cohen , 337 U.S. at 546. Moreover, where the issues raised in an interlocutory appeal “involve[] considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action,’” the order is often found not to be separate. Coopers & Lybrand , 437 U.S. at 469 (quoting Mercantile Nat’l Bank v. Langdeau , 371 U.S. 555, 558 (1963)).

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At first blush, an order denying an Article 971 motion seems to clearly decide an issue separate from the merits; it determines only the issue of whether Article 971 requires dismissal of a suit. Our inquiry should not end here, however, as further consideration raises several concerns. First, the Article 971 determination requires an assessment of the plaintiff's probability of success. This risks involving an appellate court in the factual and legal issues underlying the plaintiff's claim. Indeed, the Article 971 determination is an assessment of the merits of a plaintiff's claim, and this court has previously suggested that such an inquiry might weigh against a finding of separability.... Second--assuming for the sake of argument that Article 971's evidentiary provision would apply in federal court--Article 971 allows plaintiffs to introduce a trial court's denial of a special motion to strike as evidence at trial....Thus, although an Article 971 motion does not necessarily involve issues that arise later in the trial, issues that arise later in the trial might involve an Article 971 motion. This also weighs against a finding of separability....

These potential entanglements, however, are insufficient to forestall a finding of separability. First, Article 971 has a purpose distinct from that of the underlying suit. As the Ninth Circuit reasoned in addressing the appealability of a similar California statute, an anti-SLAPP motion "resolves a question separate from the merits in that it merely finds that such merits may exist, without evaluating whether the plaintiff's claim will succeed." Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). Moreover, "[t]he purpose of an anti-SLAPP motion is to determine whether the defendant is being forced to defend against a meritless claim," not to determine whether the defendant actually committed the relevant tort. Id. Article 971 thus "exists separately from the merits of the defamation claim itself." Id.

Further, the policy behind the collateral order doctrine militates in favor of finding separability. The final order rule limits appeals to encourage the aggregation of all necessary issues for one appeal and to provide for efficient adjudication. The separability requirement furthers this purpose by preventing appeals on issues that will be definitively decided later in the case. In this way, one might characterize separability as a way of ensuring that a movant is not attempting to have an appellate court preemptively resolve a disputed issue still pending in the district court. Thus, in Pan Eastern Exploration Co., discussed above, the issue of whether interests of international comity warranted dismissal of the suit was dependent upon the interests in proceeding with the litigation, and the district court would balance these interests as the trial progressed.... In contrast, issues of immunity are decided prior to trial and then not normally revisited. Consequently, even where the immunity determination looks to the facts underlying the dispute, the immunity determination is tangential to the merits of the underlying case. Similarly, although an Article 971 motion looks to the plaintiff's probability of success, the court decides it before proceeding to trial and then moves on. Immediate appellate review would thus determine an issue separate from any issues that remain before the district court.

Finally, the mere fact that a trial court's decision denying an Article 971 motion is admissible at trial does not change our conclusion. Article 971(A)(3), as originally enacted, provided,

If the court determines that the plaintiff has established a probability of success on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the proceeding, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

1999 La. Acts 734. The Louisiana legislature amended this provision in 2004 to allow a trial court's denial of an Article 971 motion to be admissible at trial. See 2004 La. Acts 232 (amending Article 971(A)(3) to read, "If the court determines that the plaintiff has established a probability of success on the claim, that determination shall be admissible in evidence at any later stage of the proceeding."). The purpose of this change is unclear, but this provision appears to strike a balance between the costs and benefits of filing an Article 971 motion. That is, defendants should be hesitant to file a frivolous Article 971 motion, as an adverse decision can then be used against them at trial.

We must also determine whether a district court's denial of an Article 971 motion is effectively unreviewable on appeal....

The denial of an Article 971 motion satisfies the unreviewability condition. The purpose of Article 971 is to free defendants from the burden and expense of litigation that has the purpose or effect of chilling the exercise of First Amendment rights. Article 971 thus provides a right not to stand trial, as avoiding the costs of trial is the very purpose of the statute. In other words, Article 971 does not provide a defense to liability; defendants remain liable for actual acts of defamation and other torts. But it does provide defendants the right not to bear the costs of fighting a meritless defamation claim. If an Article 971 motion is erroneously denied and unappealable, then the case proceeds to trial and this right is effectively destroyed. And in line with the Supreme Court's observation in Midland Asphalt, Article 971 provides an explicit statutory guarantee of a right not to stand trial.


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