14-3937 Liberty Synergistics Inc. v. Microflo LTD 

## UNITED STATES COURT OF APPEALS FOR THE SECOND CIRCUIT 

# SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDEN TIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 200 7, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABA SE (WITH THE NOTATION “SUMMARY ORDER” ). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL. At a stated term of the United St ates Court of Appeals for the Second Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York, on the 2 nd day of March, two thousand sixteen. PRESENT: ROBERT A. KATZMANN, Chief Judge , DENNIS JACOBS, RICHARD C. WESLEY, Circuit Judges

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LIBERTY SYNERGISTICS INC., a California Corporation, Plaintiff-Counter Defendant- Appellee , v. No. 14-3937 MICROFLO LTD, EDWARD MALKIN, ECOTECH LIMITED, a Cayman Islands Company Defendants-Counter Claimants-Appellants

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For Plaintiff-Counter Defendant-Appellee: T RACY G RAVES W OLF , Lewis Brisbois Bisgaard & Smith LLP, Dallas, TX (Peter T. Shapiro, Lewis Brisbois Bisgaard & Smith LLP, Dallas, TX, and Harold A. Ducote, Jr.,2 Ducote Law Corp., P.C., Indianapolis, IN, on the brief ). For Defendants-Counter Cl aimants-Appellants: D ENNIS H. S ABOURIN (Eugenie F. Temmler, on the brief ), Rabner Allcom Baumgart & Ben-Asher, P.C., Upper Montclair, NJ.
Appeal from a judgment of the United States District Court for the Eastern District of New York (Brodie, J. ). UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction. Defendants-Counter Claimants- Appellants Microflo LTD, Edward Malkin, and Ecotech Limited (the “Microflo defendants”) appeal th e September 25, 2014 decision of the United States District Court for the Eastern Di strict of New York (Brodie, J. ) denying their motion to strike Plaintiff-Counter Defendant-A ppellee Liberty Synergistics Inc.’s (“Liberty”) complaint under California’s anti-Strategic Lawsuit Against Publ ic Participation (“SLAPP”) statute, Cal. Civ. Proc. Code § 425.16. We assume the parties’ fam iliarity with the underlyi ng facts, procedural history, and issues on appeal. California’s anti-SLAPP statute a llows a defendant to strike a plaintiff’s complaint if the defendant can show that the pl aintiff brought suit in response to the defendant’s conduct in furtherance of its rights of petition or free speech and the plaintiff fails to show a probability of success on the merits of its claim. See Cal. Civ. Proc. Code § 425.16(b)(1). Applying this statute to Liberty’s claim for malicious prosecution, the district court de nied the Microflo defendants’ motion because it concluded that Liberty had sh own a probability of success on the merits. Microflo appealed that denial under the coll ateral order doctrine, which requires that the appealed order must (1) conclusively determine the disputed question, (2) resolve an important3 issue completely separate from the merits of the action, and (3) be eff ectively unreviewable on appeal from a final judgment. See, e.g. , Liberty Synergistics Inc. v. Microflo Ltd. , 718 F.3d 138, 146 (2d Cir. 2013). Unlike the earlier appeal in this case, the Microf lo defendants’ present appeal fails under the second requirement: Our review is not completely separate fr om the merits of the action as it will require us to examine Liberty’s allegations and the parties’ competing evidence. See Ernst v. Carrigan , No. 14-3925-cv(L), 2016 U.S. App. LEXIS 3024, at *14–16 (2d Cir. Feb. 22, 2016). 1 Accordingly, we lack appellate ju risdiction to hear this appeal. For the reasons stated herein, the appeal is DISMISSED for lack of appellate jurisdiction.
FOR THE COURT: Catherine O’Hagan Wolfe, Clerk

1 As in Ernst , “[b]ecause we conclude that we lack appellate jurisdiction, we do not reach the issue of whether [California’s] anti-SLAPP statut e is applicable in fe deral court.” 2016 U.S. App. LEXIS 3024, at *8 n.1 ( comparing Abbas v. Foreign Policy Grp., LLC , 783 F.3d 1328, 1333–37 (D.C. Cir. 2015), with U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc. , 190 F.3d 963, 973 (9th Cir. 1999)); see also Makaeff v. Trump Univ., LLC , 736 F.3d 1180, 1181– 84 (9th Cir. 2013) (Wardlaw and Callahan, JJ., concurring in de nial of rehearing en banc ); id. at 1188–90 (Watford, J., dissenting from the denial of rehearing en banc ). We further note that, despite the district court’s and the parties’ a pparent assumption that ou r decision in the prior appeal of this case answered this question in the affirmative, our prior decision expressly declined to reach it. See Liberty Synergistics , 718 F.3d at 153 (“In sum, if state conf lict-of-law principles call for a rule of d ecision (1) that would apply to th e suit if it were brought in state court, (2) that is ‘substantive’ within the meaning [o]f Erie , and (3) that is not displaced by a valid federal law or rule governi ng the same issue, then the Rule s of Decision Act . . . requires the federal court sitting in divers ity to apply the state rule, irresp ective of whether that rule is understood to be ‘procedural’ or ‘substantive’ as a matter of st ate law. We address below the first of these issues, which is the only one contested by the parties.” (emphasis added)).