Fighting SLAPPS in Federal Court: Erie, the Rules Enabling Act, and the Application of State anti-SLAPP Laws in Federal Diversity Actions

INTRODUCTIONIn 1989, the CBS program 60 Minutes aired a segment exposing the harmful effects of the chemical alar, often used in apple growing.1 Following the 60 Minutes report, apple growers' profits dwindled, and a group of Washington State apple growing companies filed a disparagement and defamation suit against the show.2 Despite the factual accuracy of the 60 Minutes account and the baseless character of the apple growers' claims, the case took almost four years to wade through pre-trial litigation before being dismissed on summary judgment.3Like 60 Minutes, Sausalito, California resident John M. Moses was also haled to court for activity in connection with an issue of public interest: in 1995 Moses was sued by his landlord after reporting code violations to his city's government concerning the building in which he lived.4 Also like the 60 Minutes case, the claims against Moses were meritless.5 In contrast, however, the case against Moses was dismissed within six months.6The difference in duration lies in the availability of a state anti-SLAPP statute. 7 A strategic lawsuit against public participation-or SLAPP-is brought not with the goal of securing a judgment but rather to intimidate, harass, and burden a defendant's speech or petitioning.8 Lawsuits like those brought against 60 Minutes and Moses are prototypical SLAPPs.9 The SLAPPing party seeks not to secure a favorable judgment, but rather to engage in a retaliatory legal battle to stifle speech and mire a defendant in costly litigation.10 Such suits, by definition, are meritless.11Defending even a meritless lawsuit, however, can be highly expensive, time-consuming, and oppressive. 12 Legislatures of twenty-seven states, the District of Columbia, and Guam have enacted anti-SLAPP statues to protect citizens from these frivolous lawsuits.13 The goal of these statutes is manifestly substantive: to shield defendants who engage in protected speech and petitioning activity from abusive litigation.14 The mechanism for enforcing these goals, however, is procedural: the statutes achieve this objective primarily through a special motion to dismiss, which defendants may utilize to quickly extricate themselves from frivolous suits.15 Moses filed such a motion, and swiftly put his landlord's harassing lawsuit behind him.16 60 Minutes was not so lucky.17When a SLAPP is brought in a federal court sitting in diversity and the controlling state law features an anti-SLAPP statute, the court must decide whether it will apply.18 Federal courts sitting in diversity apply federal procedural law and state substantive law.19 Because anti-SLAPP laws achieve their substantive goals through a special motion procedure that may conflict with the Federal Rules of Civil Procedure, courts have struggled to determine whether the laws should apply in the federal setting.20 Three U.S. Courts of Appeals have held that these statutes can be given effect in federal diversity actions. 21 In Circuits where the issue has not reached the appellate level, however, lower courts have come to conflicting conclusions.22 Further complicating matters, judges in the Ninth Circuit have recently questioned that Circuit's settled precedent holding that special motions to dismiss under antiSLAPP statutes would apply in diversity.23This Note argues that because anti-SLAPP laws do not conflict with the Federal Rules, and because displacing the laws in a given case would violate the Rules Enabling Act of 1934 ("REA"), the statutes should be given effect in federal fora.24 Part I examines states' responses to the phenomenon of SLAPP litigation and provides an overview of the Erie doctrine, highlighting two important areas that remain unresolved.25 Part II examines the differing conclusions courts have reached when deciding whether to apply state anti-SLAPP laws in federal courts exercising diversity jurisdiction.26 Finally, Part III argues that courts should favor applying anti-SLAPP statutes in federal courts and offers two analytical bases for this stance: either these laws do not conflict with a properly moderate reading of the Federal Rules, or, if a direct conflict is found in a given case, supplanting the state law would violate the REA. …