this year twenty eighteen judges aunt of the eastern district of texas joined a growing number of courts in texas confronted with dismissal motions under the t c p and he actually decided to cases in classified as substantive or perceived or real and one of the important things i think for purposes of today's argument and having heard a question asked by judge barksdale on another case yesterday judge doesn't remind us that while these this issue with regard to the applicability of the team c p a in federal court proceedings usually arises under an eerie analysis in diversity cases in the thoroughbred venters case he  recognize that that the same type of eerie analysis applies in supplemental jurisdiction cases which this is this is a case involving a defamation claim that was asserted under its supplemental jurisdictional grounds so in this instance judge judge as the record is invited to answer the unanswered question and the question is whether this court is going to have to answer that question in accordance with the sound reasoning and analysis of one of its members already and the only opinion that talks about the applicability of the statute which is the judge graves dissent in cuba versus pilot  and and whether it's going to resolve the split among the different district courts in texas as to the applicability question in this case we believe that the court is not confronted with any type of waiver issues that historically have caused the court to sidestep the question due to a failure to preserve the question or raise the the issue of the applicability the statute in federal court cases and in looking at p issue given the requirements and timing requirements of that the statute in preparing for this argument you know i really had originally intended to focus only on the fact that there is this collision  and not focus so much on the question of whether the t c p is procedural or substantive but in looking at some cases it dawned on me and i think it's important for this court to know that that this court can and should under the texas impacts of that under the t c p s a and what's important about that is that that tells us that the t c p can only be procedural because it was substantive the application of substantive texas law the t c t a if it were substantive to address a federal claim would violate supremacy clause and i think the court can glean from that that that the statute the t c p a should not be construed as violating the supremacy clause and thus it's procedural and i read the district court's opinion he never really got to that question in our case that's correct and what what let's go step by step through what the district court did because time so confuse here there as were we well the facts and what you identify are extremely compelling but at the same time it seems to me the test on understand the procedure that you followed in the district court because they filed a motion to dismiss correct thought of this and to dismiss under a particular statute which is not as it doesn't matter what they filed it under because in the federal i mean there's no way you're not under the federal rules right twelve b six i mean that can call it whatever they want to but and your problem was that you responded and you one of the judge to be more precise of course you should have known that this particular judge  lawyers ask him to do he does what he wants and and you did not even file that within the days sought by the local required by the local rules of the northern district of texas did you ever file a verified complaint about your allegations we did not file verified complaint in the case for an affidavit of any sort filed along with the petition or materials that were before the district court and wasn't the only thing that i can tell the court in terms of verified information in the complaint was that we had taken some precede depositions on the authorization of a state district  to engage in a in an extensive entry presentation and analysis but most importantly in this particular case as as judge the sant recently wrote in the  fact the statute applies in in federal court cases then than in this and this court agrees then in reality the outcome of this case should be that this course of find that the motion to dismiss was overruled by operation of law and the reason for that is because the underlying statute the t c p a which is the enabling legislation giving rise to this particular type of motion not not terribly different different than the motion that that this court considered in the past more versus baylor case which was the expert witness report requirement under another texas of oppression remedy provision which was in the medical liability arena there if there is a particular type of response  doing anything that events as an opportunity to actually to respond to the to the motion and here what we did was kind of face the hobson's choice and as as judge jones you've observed in a in a case in front of a  somewhat difficult judge who had never written one way or the other on the anti slapp issue procedurally or substantively we looked at the law that we were confronted with at the time including  the opinion by judge boyle in the northern district that had come out earlier in the insurance safety consultant versus nation case judge judge boyle had concluded that the that the c p a doesn't apply in federal court proceedings although respectfully judge mcbride disagreed although i think he didn't read the opinion accurately so we had that as the law in the district that we were in we had clearly questions concerning how do you that that are that are impossible procedurally to meet and substantive i'm not sure about i don't quite understand because the judge ruled on a pretty narrow basis here and he did say that you had an obligation to comply to file something he said that you did what he says is watson says he isn't titled to have plaintiffs claims dismissed because they are based on this exercise and his right to free speech plaintiff does not disagree plaintiff has not made any attempt to establish each essential element of his defamation claims and then it says a valid defense under the texas d m a plaintiff does not dispute he did not comply with the d m a and finally so in other words if you just take those basic things as being the core of the statute that is supposed to provide an expeditious defense in this kind of case then you sort of waived all of it so so we didn't wait a bit and i would disagree with that i mean what we did was we said to the court look we don't think this statute applies in federal court and here we believe that you need to resolve that antecedent question by resolving our properly filed in time without objection which was not ignoring the motion let me ask let me but it was in fact in response to you do say that there were other students present in the in the classroom who disagreed with what watson says he was saying right  o we did not say that i thought there was something about the investigation that went forward and one of the people at the university and said we don't have enough information to go after mr clocking absolutely and there was disputed statements about what the what watson said yes and to be clear in response to your question what we did say in arabic in our papers and in the record is that there was nobody who witnessed or heard what was said there were aspects of the exchange between the two students that were witnessed but nobody verified one way or the other but that there were written documents during the investigation where young mr c himself had disputed saying any of the things that were attributed to him so i just want to make sure the that the court is clear about what the record did provide and so you're saying that as a practical matter you had no access to evidence to support your claim at the motion but we we did not access that because we asked the court what procedure the court was going to apply in determining the motions so as to among other things then in turn asked the court under the t c p a if the court found that it applied to allow us the opportunity to obtain that information through discovery which was otherwise prohibited under rule twenty six given the temporal status of the case at the time and so we could have gone after some evidence and would have found some we we're stuck in a quagmire which is why we asked that were to tell us a are you going to apply the statute notwithstanding our objection and then having preserve that then we'll go ahead and and figure out together what procedure we have to follow retaliation for expression of their first amendment rights and this court has repeatedly held that those protections are substantive not only with respect to the lazy any louisiana any slap statute in the henry case but also this court resulted from the substantive nature of the t c p yet and so as this court is this court in c d r stated that right is not simply the right to avoid alternate liability in a slap case but rather it is the right to avoid trial in the first instance and in fact they compare their rights in an protections of the t c p a to a type of immunity and that that immunity is clearly something that's very substantive and important and i don't  correct so what is that creature that's a very interesting question and i why couldn't you have filed it under twelve b six i could have in retrospect i could have filed it in the alternative  substantive defense then you would have said and we're title do attorneys fees that is a possibility or that is not the way that i did it but it could have been done that way because i'm not quite sure how the issues are posturing before us frankly i mean you know in a sense this reifies what he said which is that it posits the direct question of the conflict between the substantive law and theory well this court has repeatedly struggle in in the in that balance where there is a potential conflict this court has repeatedly held that the state's subsets of law can work in conjunction with federal rules of civil procedure so for instance if you look at the all plaintiff's case where the court was asked to determine whether or not rule twenty three governed the distribution of a class on the funds or the texas unclaimed property act governed the court found a way to combine those two and work have them work in conjunction such that the the district court was allowed even though the rule twenty three in david court this report discretion that's not true twelve i agree with you it's not real twelve hundred one in the circle just answer my question tell me how if you had taken another course and you had found it on the route well how would you have gotten the protection of the p c p s consistent with ruth wel issue of whether or not qualified immunity plots and that is a very similar way in which the t c p a can work in this instance you file a motion to dismiss they say hey i need discovery and that you could then have a very limited narrow i think that's a very that would be a way in which these two things could work together such as the substance of state law applies but you also are following the federal civil laws for some maybe we ought to vacate in remand to do that i think that would be a potentially appropriate solution i would prefer of course than to affirm the district court's decision in judgment but that's certainly i would think not an unreasonable approach to figuring out a way to make these two things work together  judge judge mcbride says ignoring the irony he says is so apparently overlooking the irony plaintiff does argue that watson's motion to dismiss his son timely the motion was filed within so i think this recall court also says that he did not file or response timely within the rules of the northern district and that's correct and the district court within sort of melding them together i think that's correct the district court took the c p a as a separate motion and allowed what i did to be a separate motion and did not look to the procedural aspect of state law and brought those in with a motion and did not did not apply well twelve fifty six and that is something that other courts have done as well and then another approached could be to bring in the substantive in going back to your question judge barksdale right and so twelve c does not dictate when you can bring in twelve the motion right and so you have what it says it looks to twelve scene would then look to state law to say if you're bringing a motion to dismiss to show it to state law we can make those two things work together somewhere yes you can make them work together but again you're getting out of the question of the state while procedure compelling a different result on the federal rules and would otherwise be required there's no that is repeated levite based on state law in federal court and so i think but certainly both of those two aspects the fundamental aspects of putting the burden on the plaintiffs to bring forth evidence to de that's correct you're making it sound like there are some rule about call upon immunity that's procedural and it's it's and it's the federal rules that work in harmony with other federal rules were separate here we're talking about a state procedural rules not federal but the state rules are also substantive in this court has repeatedly found ways to to to protect those substantive rights in the context of if the federal courts don't acknowledge that and follow that in some respect then there is a clear this totally violate theory because there will be every opportunity to form shop those cases into federal  sigh a right that any defendant who subject to one of these frivolous any slap statutes has the right to under texas state law and if this court which is to say that the t c p doesn't apply that right would be to be rendered meaning asking about abandons this court's practice as shown in the plainest and the douglas case with that i would like to point out this is the douglas case seventy nine eleven twenty eight a case from this court where it was asked to determine whether the federal civil procedure thirty nine the required mandatory counterclaims applied or whether the texas state law regarding mandatory counter cames claims applied in the context was a borrower brought a declaratory judgment action in federal court to say that the note secured note was not a forcible and under texas law lender secure lenders have the right to determine whether or not to seek nontraditional or judicial foreclosure auctions and the in the let me ask you a question about the precise posture of the subpoena which about which i'm still confused because society stand you file your motion to dismiss not allegedly twelve b six and they file a response and requests for clarification and the judge says why would you think he's his opinion is saying why would you think this law does not apply you didn't meet your burden and therefore he grant truly funder the t c p i can see their notice of appeal applying and say well ok so what they're appealing is an adverse judgment that the t c p allowed him to challenge attorney's fees but when he's made no attempt to comply with the t c p  at all or to set forth anything it's based on twelve that would have four for the offended off a twelve b motion i'm not quite sure exactly what before us but i think arguably the only issue before you and the only issue that he even arguably preserved was whether the c p a applies in federal court i will admit that in his first response which he called an objection then was not an opposition or right it was called against dismissal by stand by rather than did discussing dismissal he argued about the applicability of the law in court it's unclear to me i have to admit but i think that's the only issue he arguably preserved and that is why waived since it wasn't open dress in his opening brief and the only issue he weighs or he addresses is this potential conflict he doesn't really address here either he only addresses the conflict under the shady grove analysis what does the supreme court's decision there's a rule and if that rule arguably touches upon the ed what's at issue that will governance and the state law never that i don't have to look at the state law it's a relevant the rule applies to very very harsh interpretation and i would argue an incorrect interpretation of the rules and enabling act because it ignores section twenty eight u s c twenty seventy two besides a class action suit just a procedural device that's exactly true in the court and did not even have to go to that because it did not determine that the underlying rule at issue was substantive at all this court has already helped that the t c p a and similar any  substantive that creates substantive rights therefore the court must go to that second step in shady grove and determine whether or not the application of the federal rule of bridges modifies or enlarges the substan they would apply to federal claims in texas state courts that would mean that all of a sudden any federal claim brought in a court of general jurisdiction within texas would be subject to the t c p yet i don't think that's the correct answer i think the t c p is substantive and that it applies to taxes state law claims regardless of whether they where they exist and  significance and meaning of the henry case to this question and in particular to this question as framed by the texas and i slam statute versus louisiana statute in and most notably there is language written by a different in the block case recognizing the importance of of the unresolved question being answered suggesting that we noted piling and we noted in pylea at that henry did not address whether under the erie doctrine the of state procedural rules surrounding anti slot motions to dismiss you know what i mean i just have to say again judge graves wrote a dissent the dissent is not a law by definition the dissen something that the majority disagreed with no question and well it i don't know that i would agree with the with the with the conclusory statement that they disagreed with the dissents findings because in fact as as this footnote in block is that the court never reached the question of whether the statute applies and as was true in culberson versus likers in the n c r case previously when they talked about the when the court talked about the applicability statute the court found well that wasn't an issue that had been preserved by objection in the underlying proceedings and therefore work it need not be reachin so the court assumed without deciding the applicability of the statute that the statute apply leaving open the question for a case where the issue was properly the procedural aspects of the end i slap statute in a federal court proceeding of the district court seem to reconcile them by saying that you filed your response to the motion to late under the rules case like henry the publication apparently felt confident that it could bear its burden on the on the defense and the fact more known and as a legal matter the the publication was entitled the dismissal period in other words the plaintiff didn't argue that i was prevented from making my case by virtue of the any swap law and  are we arguing that here what we're arguing it because you didn't try to even respond with what the law requires in the district court but we we did respond we objected to the applicability of the statute which at that objection was valid as we contend that it is we would have been required to respond to the t c p a motion substantively at all which is why we asked for aniseed ruling on the objection so as to avoid a waiver that this court continuously fin i don't know what waivers are in federal court but a waiver is something it's knowledge from an it's doing one thing inconsistent with another position well you could have preserved your objection and sad and we need access to whatever evidence so that we can make our point that we have a claim here and that's in effect what we did we did not take place you said i did you didn't ask for discovery i'm sorry but to be clear judge i just i respectfully stricken the motion for being on time or not being properly filed we we had the concern that judge barksdale has raised today which is how do you reconcile a response under the federal rules of civil procedure opportunity to respond substantively if you overrule or objection and if you're going to overrule the objection then tell us procedurally because we didn't know are we supposed to comply with a local rule motion response provision when  allow us an opportunity to go ahead and try to proceed under the t c p if we could we didn't know how so we asked him ok and we believe that under the all rich doctrine he was he had a motion before him that he properly could counsel in the amount of time counseling out of time i'm really out so quick i thought i was answering your questions ok ok thank you very closely thank you court will be in recess