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Court Holds Kansas Anti-SLAAP Law Applies in Federal Court

By Eric Weslander

In the first decision applying Kansas' relatively new anti-SLAPP statute in federal court, Judge Carlos Murguia of the U.S. District Court for the District of Kansas concluded in a Memorandum and Order issued November 26, 2018 that the statute does apply in a federal diversity action in the District of Kansas, in light of the dual aims of the Erie doctrine to discourage forum-shopping and inequitable administration of the laws.

Emphasizing "the practical effects of not applying [anti-SLAPP] statutes in federal court," the decision followed the approach of the U.S. Court of Appeals for the First Circuit in its decision in Godin v. Schencks, 629 F.3d 79, 86 (2010) which held Maine's anti-SLAPP act to apply in federal court, instead of the approach taken by the D.C. Circuit in Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328 (2015).

Whereas the Abbas decision (authored by then-judge Brett Kavanaugh) characterized the District of Columbia's anti-SLAPP act as conflicting with Federal Rules 12 and 56, the new District of Kansas decision, like the Godin decision, held that the SLAPP act at issue "des not substitute Rules 12 and 56, it merely supplements them for a narrow category of cases."

The suit in Caranchini v. Peck, No. 18-2249-CM-TJJ, was a 147-page complaint filed by a pro se Plaintiff (a former attorney who, the decision notes, has been disbarred in numerous jurisdictions and does not have an active law license) against Defendants, a then-married couple.  Plaintiff was involved in an extramarital affair with the Defendant husband, according to the decision, and filed suit after both Defendants sought a restraining order against her.   Plaintiff then brought three defamation counts against Defendants, claiming they made false statements in connection with an application for a temporary restraining order and a report of telephone harassment charges.

Defendants moved to strike the claims pursuant to K.S.A. § 60-5320, Kansas' "Public Speech Protection Act," which was enacted in 2016 to "encourage and safeguard the constitutional rights of a person to petition, and speak freely and associate freely, in connection with a public issue or issues of public interest... while, at the same time, protecting the rights of a person to file meritorious lawsuits for demonstrable injury."  K.S.A. 60-5320(b).  The Act provides for a special motion to strike if a claim is "based on, relates to or is in response to a party's exercise of the right of free speech, right to petition or right of association."  K.S.A. 60-5320(d).  The Act provides for the special motion to be brought early in litigation, i.e., within 60 days of service of the complaint, and requires a hearing on the motion not more than 30 days after service of the motion.  The statute requires discovery to be stayed until the motion is decided.

There was no real question that Defendants' alleged statements—in addition to being privileged under a traditional defamation-law analysis   -- by nature fell within the scope of the types of statements the Kansas anti-SLAPP Act was designed to protect, given that the Act broadly defines the right of free speech and the right to petition to include statements related to safety and community well-being as well as statements communicated during judicial proceedings.

The decision primarily focused, therefore, on the issue of whether the Act applied in a federal diversity action, a question of first impression in the District of Kansas -- and one which the Plaintiff did not address in her response in opposition to the anti-SLAPP motion.  In addressing this issue, Judge Murguia first gave an overview of the Erie doctrine and its maxim that federal courts sitting in diversity apply state substantive law and federal procedural law, citing Justice Stevens' concurring opinion in Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 419 (2010), which noted that "the line between procedural and substantive law is hazy" and that in some situations, "procedure and substance are so interwoven that rational separation become[s] well-nigh impossible."  559 U.S. at 419.  Regardless of whether a law is characterized as procedural or substantive, the Judge wrote, the overriding consideration in the Erie analysis is whether "in a suit for the enforcement of state created rights the outcome would be 'substantially the same, so far as legal rules determine the outcome of a litigation, as it would be if tried in state court.'" (citing Berger v. State Farm Mut. Auto Ins. Co., 291 F.2d 666, 668 (10th Cir. 1961).

Judge Murguia then distinguished the recent ruling by the U.S. Court of Appeals for the Tenth Circuit holding that New Mexico's anti-SLAPP statute was entirely procedural in nature.  That decision, Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659 (2018), was not controlling, Murguia wrote, because of the unique features of New Mexico's statute which made it unlike many other states' anti-SLAPP acts.

Turning to the question of whether the Kansas act is substantive or procedural, the decision concluded that the act "seems to govern both substance and procedure," given that it sets forth a substantive purpose – to encourage and safeguard First Amendment rights – but that the Kansas Court of Appeals has concluded that the "heart" of the Act is to provide a procedural remedy early in litigation.  See T& T Fin. of Kansas City, LLC v. Taylor, No. 117,624, 2017 WL 6546634, at *4 (Kan. Ct. App. Dec. 22, 2017).   For guidance, Murguia then turned to the conflicting decisions of other U.S. Circuit Courts of Appeal, ultimately concluding that the First Circuit's analysis in the Godin decision is more in line with the purposes of the Erie doctrine than the analysis used by the D.C. Circuit in Abbas, (which was recently followed by the Eleventh Circuit in its decision in Carbone matter).  Murguia concluded, "This court is more persuaded by the First Circuit's more detailed analysis, particularly in regard to the practical effects of not applying the Act in federal court... In passing the Act, the Kansas Legislature promulgated additional rules for parties bringing lawsuits under Kansas defamation law.  In Kansas courts, the Act would require both parties to meet, essentially, heightened pleading standards.  If this court declined to apply the Act, it would be ignoring the Kansas Legislature's desire to protect individuals against defamation lawsuits that infringe on First Amendment rights."

Declining to apply the law, Murguia wrote, would defeat the purposes of the Erie doctrine in that "A plaintiff could, and would, choose to file her defamation suit in federal court – so long as diversity exists – in order to avoid the heightened standards set forth by the Act in state court... The court would be applying Kansas defamation laws without the additional protections the Kansas legislature chose to enact."  The Court gave a nod to the Abbas decision, stating that it found the D.C. Circuit's reasoning to be persuasive as far as anti-SLAPP acts being procedural in nature, but concluded that (a) the Kansas act fit Justice Stevens' characterization of a rule that is undeniably procedural in nature yet "may exist to influence substantive outcomes, and may in some instances become so bound up with the state-created right or remedy that it defines the scope of that substantive right or remedy."  Shady Grove, 559 U.S. at 419-20; and (b) that "the D.C. Circuit did not discuss the practical effects of not applying these statutes in federal court. And this court finds that applying the Act in federal court is the result that is most consistent with the purposes of the Erie doctrine."

The Court also cited dicta in the Los Lobos decision --  which emphasized that some anti-SLAPP acts, unlike the New Mexico act, "shift substantive burdens of proof or alter substantive standards" – as an indication that the Tenth Circuit would likely agree that the Kansas act applied in federal court.   The Court declined to strike the Plaintiff's additional causes of action for harassment and conspiracy, although those counts were subsequently dismissed pursuant to a Rule 12(b)(6) Motion.    Finally, the Court denied Defendants' request for attorneys' fees under the anti-SLAPP act for the time being, but stated it would entertain such a motion later in the case.

Eric Weslander is a partner at Stevens & Brand LLP in Lawrence, KS, a former print, TV & online news reporter, and a past co-chair of the annual "Media & the Law" seminar in Kansas City, MO.

 
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