         Case: 13-12460   Date Filed: 07/10/2014   Page: 1 of 26


                                                                   [PUBLISH]



          IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT
                     ________________________

                           No. 13-12460
                     ________________________

                 D.C. Docket No. 1:12-cv-03133-RLV

THE ROYALTY NETWORK, INC.,
FRANK LIWALL,
STEVEN WEBER,

                                                         Plaintiffs-Appellees,

                                versus

CARL HARRIS,
d.b.a. Phat Groov Music,
PHAT GROOV MUSIC,
PHAT GROOV MUSIC LLC,
WWW.ROYALTYNETWORK.COM LLC,
.COM,WWW.ROYALTYNETWORK, LLC,
WWW.ROYALTYNETWORK.COM,

                                                     Defendants-Appellants.

                     ________________________

              Appeal from the United States District Court
                 for the Northern District of Georgia
                    ________________________

                            (July 10, 2014)
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Before WILSON, JORDAN and BLACK, Circuit Judges.

BLACK, Circuit Judge:

      Appellants Carl Harris and his company, Phat Groov Music, appeal the

district court’s order denying their motion to dismiss a complaint filed by

Appellees The Royalty Network, Frank Liwall, and Steven Weber. Harris sought

to dismiss the complaint because the Appellees failed to comply with Georgia’s

anti-SLAPP (Strategic Lawsuits Against Public Participation) statute by not filing

verifications with their complaint, as required by O.C.G.A. § 9-11-11.1(b). The

district court denied the motion, and Harris pursued this interlocutory appeal. We

conclude we have appellate jurisdiction under the collateral order doctrine and we

affirm the district court’s order because § 9-11-11.1 does not apply in federal court

in a diversity action.

                                I. BACKGROUND

      The Royalty Network, Inc. is a New York corporation involved in music

publishing and administration. Liwall is the president of The Royalty Network and

Weber is the company’s west coast director. Harris, a Georgia resident, provided

consulting services to The Royalty Network and would recruit songwriters, music

artists, and producers on behalf of the corporation. The record indicates Harris

worked for The Royalty Network since at least 2005, but the parties’ relationship

ended in January 2011 when Liwall terminated Harris’s consulting agreement.


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Harris disputed the termination, and, following several communications between

the parties, The Royalty Network filed a lawsuit in New York state court on May

12, 2011, alleging various causes of action and seeking a declaratory judgment that

the consulting agreement had been terminated.

      On May 27, 2011, Harris filed a complaint in the Fulton County Superior

Court in Georgia, alleging causes of action against The Royalty Network and

Liwall related to the company’s alleged failure to pay him under the consulting

agreement. On August 26, 2011, the Fulton County Superior Court stayed Harris’s

action pending resolution of the New York lawsuit.

      In September 2011, Harris, acting through Phat Groov Music LLC, created

and activated the website “www.theroyaltynetwork.com” (the website). The

website contains numerous statements denouncing the Appellees and their

litigation tactics and providing copies of documents as well as commentary about

documents filed in the lawsuits between the parties.

      On December 22, 2011, the New York trial court dismissed The Royalty

Network’s lawsuit for lack of personal jurisdiction over Harris. Subsequently, on

February 21, 2012, Appellees filed a complaint against Harris in the U.S. District

Court for the District of Arizona alleging causes of action stemming from Harris’s

statements on the website.




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      On May 31, 2012, a state appellate court affirmed the trial court’s dismissal

of Appellees’ New York lawsuit. In August 2012, the Arizona federal district

court dismissed Appellees’ lawsuit for lack of personal jurisdiction.

      On September 6, 2012, Appellees filed the instant complaint against Harris

and his company in the U.S. District Court for the Northern District of Georgia. In

the complaint, Appellees alleged that Harris and Phat Groov Music published false

and defamatory statements on the website and that they intended to prevent others

from doing business with the company. Appellees asserted causes of action for

libel per se, “injurious falsehood,” and intentional infliction of emotional distress.

Appellees requested damages of not less than $1 million, punitive damages of $3

million, and an injunction requiring Harris to take down the website.

      Harris filed a pro se motion to dismiss the complaint because it did not

contain the verifications required by O.C.G.A. § 9-11-11.1(b).

Section 9-11-11.1(b) requires that for any claim relating to an act that could be

construed as having been done in furtherance of the right of free speech or the right

to petition the government, both a plaintiff and plaintiff’s counsel must file a

written verification certifying that the claim is well grounded in fact, is warranted

under existing law, and that the claim is not made for an improper purpose.

O.C.G.A. § 9-11-11.1(b).




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      The district court denied Harris’s motion to dismiss, finding in pertinent part

that the statute did not apply to the case. Harris filed a counseled motion for

reconsideration, arguing the district court was wrong on the merits or,

alternatively, urging the district court to either certify its order for interlocutory

review by this Court or to certify a question to the Georgia Supreme Court. The

next day, Harris filed a notice of appeal from the district court’s order denying his

motion to dismiss.

      The district court denied Harris’s motion for reconsideration and also

declined to certify the appeal for interlocutory review by this Court or to certify a

question to the Georgia Supreme Court. The district court stayed further

proceedings pending this Court’s resolution of Harris’s appeal.

                            II. STANDARD OF REVIEW

      We review de novo questions concerning our jurisdiction. Weatherly v. Ala.

State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013). We also review de novo

federal-versus-state choice of law questions, Adventure Outdoors, Inc. v.

Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008), as well as the district court’s

interpretation and application of a statute, Williams v. Sec’y, U.S. Dep’t of

Homeland Sec., 741 F.3d 1228, 1231 (11th Cir. 2014).

                                  III. DISCUSSION




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      This case comes to us on interlocutory review and we must first consider

whether we have appellate jurisdiction to consider the appeal. We conclude we

have jurisdiction to consider the case under the collateral order doctrine, and hold

that § 9-11-11.1(b)’s verification requirement conflicts with Federal Rule of Civil

Procedure 11 and therefore does not apply in federal cases arising under the district

court’s diversity jurisdiction. Accordingly, we affirm the district court’s decision

denying Harris’s motion to dismiss.

A. Collateral Order Doctrine

      It is by now axiomatic that this Court has jurisdiction over an order of the

district court only if the order is final within the meaning of 28 U.S.C. § 1291, or if

it falls into a small class of orders that are otherwise made appealable by statute or

“jurisprudential exception.” See CSX Transp., Inc. v. City of Garden City, 235

F.3d 1325, 1327 (11th Cir. 2000); see also 28 U.S.C. § 1291. The collateral order

doctrine is one such exception. The Supreme Court articulated the collateral order

doctrine in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S. Ct.

1221 (1949), based on its recognition that § 1291 must be given a “practical rather

than a technical construction.” Id. at 546, 69 S. Ct. at 1226. In Cohen the Court

held that “the statute encompasses not only judgments that terminate an action, but

also a small class of collateral rulings that, although they do not end the litigation,

are appropriately deemed ‘final.’” Mohawk Indus., Inc. v. Carpenter, 558 U.S.


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100, 106, 130 S. Ct. 599, 605 (2009) (internal quotation marks omitted). “To come

within the small class of decisions excepted from the final-judgment rule by

Cohen, the order must [1] conclusively determine the disputed question, [2] resolve

an important issue completely separate from the merits of the action, and [3] be

effectively unreviewable on appeal from a final judgment.” Miccosukee Tribe of

Indians of Fla. v. S. Fla. Water Mgmt. Dist., 559 F.3d 1191, 1198 (11th Cir. 2009)

(internal quotation marks omitted).

      The Supreme Court has emphasized that the collateral order doctrine is

narrow and has cautioned that each prong of the Cohen test is stringent. See Will v.

Hallock, 546 U.S. 345, 349-50, 126 S. Ct. 952, 957 (2006); Digital Equip. Corp. v.

Desktop Direct, Inc., 511 U.S. 863, 868, 114 S. Ct. 1992, 1996 (1994). Thus, the

doctrine “must never be allowed to swallow the general rule that a party is entitled

to a single appeal, to be deferred until final judgment has been entered.”

Carpenter, 558 U.S. at 106, 130 S. Ct. at 605 (internal quotation marks omitted).

With these principles in mind, we conclude the district court’s order determining

that § 9-11-11.1(b) conflicts with the federal rules falls within the small class of

orders excepted from the final judgment rule via the collateral order doctrine and is

therefore immediately appealable.

      The district court’s order satisfies the first Cohen prong because it

conclusively determined the disputed question of whether § 9-11-11.1(b)’s


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verification requirement applies in federal court. The district court’s order

answered that question in the negative, finding § 9-11-11.1(b) does not apply in a

diversity action because it conflicts with the Federal Rules of Civil Procedure and

was “procedural” within the meaning of Erie Railroad Co. v. Tompkins, 304 U.S.

64, 58 S. Ct. 817 (1938). The court’s order finally settled the question and did not

leave anything open, unfished, or inconclusive. See Doe v. Stegall, 653 F.2d 180,

183 (5th Cir. Unit A Aug. 1981) (explaining an order was appealable under the

collateral order doctrine because it “disposed of the . . . issue, leaving nothing

open, unfinished, or inconclusive” (internal quotation marks omitted)). 1

       The district court’s order also satisfies the second and third prongs of the

collateral order doctrine. Both prongs require a sufficiently strong justification for

an immediate appeal to overcome the ordinary preference for a single appeal

following the end of litigation. Carpenter, 558 U.S. at 107, 130 S. Ct. at 605;

Plaintiff A v. Schair, 744 F.3d 1247, 1254 (11th Cir. 2014) (“The importance of the

right asserted is a significant part of the collateral order doctrine.” (internal

quotation marks and brackets omitted)). In deciding whether an issue is important

enough to justify immediate appeal, we do not “engage in an individualized

jurisdictional inquiry.” Carpenter, 558 U.S. at 107, 130 S. Ct. at 605 (internal


       1
          In Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir. 1981) (en banc), this
Court adopted as binding precedent all decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981.
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quotation marks omitted). Rather, our inquiry focuses “on the entire category to

which a claim belongs.” Id. (internal quotation marks omitted). We have

explained that “[t]o date, an interlocutory order has been deemed important enough

to justify Cohen review only where some particular value of a high order . . . was

marshaled in support of the interest in avoiding trial and the appellate court

determined that denying review would imperil that interest.” Schair, 744 F.3d at

1254 (internal quotation marks omitted).

      The denial of a motion to dismiss for failure to comply with Georgia’s

anti-SLAPP statute implicates significant constitutional guarantees and values of

an exceptionally high order; specifically, the right to freedom of speech and the

right to petition the government for redress of grievances. See U.S. Const. amend.

I. The Supreme Court has repeatedly extolled the importance of the freedom of

speech, explaining that the First Amendment expresses “a profound national

commitment to the principle that debate on public issues should be uninhibited,

robust, and wide-open,” New York Times Co. v. Sullivan, 376 U.S. 254, 270, 84

S. Ct. 710, 721 (1964), and that “speech concerning public affairs is more than

self-expression; it is the essence of self-government. Accordingly, speech on

public issues occupies the highest rung of the hierarchy of First Amendment

values, and is entitled to special protection,” Snyder v. Phelps, 131 S. Ct. 1207,

1215 (2011) (citation and internal quotation marks omitted); see also DC Comics v.


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Pac. Pictures Corp., 706 F.3d 1009, 1015-16 (9th Cir. 2013) (“It would be difficult

to find a value of a higher order than the constitutionally-protected rights to free

speech and petition that are at the heart of California’s anti-SLAPP statute.”

(brackets and internal quotation marks omitted)). Furthermore, in codifying

§ 9-11-11.1, the Georgia legislature provided:

      [I]t is in the public interest to encourage participation by the citizens
      of Georgia in matters of public significance through the exercise of
      their constitutional rights of freedom of speech and the right to
      petition government for redress of grievances. The General Assembly
      of Georgia further finds and declares that the valid exercise of the
      constitutional rights of freedom of speech and the right to petition
      government for a redress of grievances should not be chilled through
      abuse of the judicial process.

O.C.G.A. § 9-11-11.1(a). Thus, the First Amendment values at the heart of

Georgia’s anti-SLAPP statute militate strongly in favor of immediate appellate

review.

      In addition to implicating important public values, the district court’s order

regarding the applicability of § 9-11-11.1(b) in federal court meets the second

Cohen prong because it is entirely separate from the merits of the case. In their

complaint, Appellees pled causes of action for defamation and related torts. The

determination that § 9-11-11.1(b)’s verification requirement is a state procedural

rule that does not apply in federal court does not turn on the underlying facts in the

complaint nor does it involve the merits of the Appellees’ claims. See Liberty

Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 149-50 (2d Cir. 2013) (holding
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that a district court order regarding the applicability of a state anti-SLAPP statute

in federal court was completely separate from the merits).

      The third Cohen prong is satisfied in this case because the district court’s

conclusion that § 9-11-11.1(b)’s verification requirement does not apply in federal

court is effectively unreviewable on appeal from a final judgment. The Supreme

Court has indicated that “the decisive consideration [under the third Cohen prong]

is whether delaying review until the entry of final judgment would imperil a

substantial public interest or some particular value of a high order.” Carpenter,

558 U.S. at 107, 130 S. Ct. at 605 (internal quotation marks omitted). Georgia’s

anti-SLAPP statute is intended to protect its citizens from having their important

First Amendment rights to free speech and to petition the government chilled by

the threat of being dragged into onerous judicial proceedings by improper or

abusive tort claims. See Atlanta Humane Soc’y v. Harkins, 603 S.E.2d 289, 292

(Ga. 2004) (“[T]he purposes of Georgia’s anti-SLAPP statute are to encourage

citizen participation in matters of public significance through the exercise of the

right of free speech and the right to petition the government for redress of

grievances, and to prevent their valid exercise from being chilled through abuse of

the judicial process.”). Forcing a defendant to wait until the conclusion of such

proceedings to appeal the denial of a § 9-11.11.1(b) motion to dismiss would

subject defendants to the very judicial process and chilling effects the state


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legislature intended to curtail, thus imperiling the important First Amendment

interests at the heart of the statute. Cf. Elrod v. Burns, 427 U.S. 347, 373, 96 S. Ct.

2673, 2690 (1976) (“The loss of First Amendment freedoms, for even minimal

periods of time, unquestionably constitutes irreparable injury.”). Accordingly, we

are persuaded that the denial of a motion to dismiss for failure to comply with

Georgia’s anti-SLAPP statute imperils a substantial public interest and value of a

particularly high order, and is effectively unreviewable following entry of a final

judgment. Because the district court’s order concluding § 9-11-11.1(b) does not

apply in federal court satisfies all three prongs of the collateral order doctrine, we

possess jurisdiction to consider Harris’s appeal.

B. Conflict with the Federal Rules of Civil Procedure

      Harris contends the district court erred by finding § 9-11-11.1(b)’s

verification requirement is a procedural rule that does not apply in federal court. It

is well established that when a federal court considers a case that arises under its

diversity jurisdiction, the court is to apply state substantive law and federal

procedural law. Hanna v. Plumer, 380 U.S. 460, 465, 85 S. Ct. 1136, 1141 (1965).

We have explained that to aid courts in determining whether a law is substantive or

procedural, “the Supreme Court developed a two-part test in Hanna.” Burke v.

Smith, 252 F.3d 1260, 1265 (11th Cir. 2001) (citation omitted). “Under the Hanna

test, when the federal law sought to be applied is a congressional statute or Federal


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Rule of Civil Procedure, the district court must first decide whether the statute is

sufficiently broad to control the issue before the court.” Id. (internal quotation

marks omitted). “If the federal procedural rule is sufficiently broad to control the

issue and conflicts with the state law, the federal procedural rule applies instead of

the state law.” Id. (internal quotation marks omitted). A federal rule applies in the

face of a conflicting state rule, however, only if the federal rule comports with the

Rules Enabling Act, 28 U.S.C. § 2072, and the Constitution. Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415, 427 n.7, 116 S. Ct. 2211, 2219 n.7 (1996)

(“Concerning matters covered by the Federal Rules of Civil Procedure . . . [i]t is

settled that if the Rule in point is consonant with the Rules Enabling Act, and the

Constitution, the Federal Rule applies regardless of contrary state law.” (citation

omitted)).

      If the federal rule is not sufficiently broad to cover the issue or does not

directly conflict with the state law, the district court should then proceed to the

second prong of the Hanna test, which requires the district court to apply Erie and

its progeny to determine “whether failure to apply the state law would lead to

different outcomes in state and federal court and result in inequitable

administration of the laws or forum shopping.” Burke, 252 F.3d at 1265 (internal

quotation marks omitted); see also Shady Grove Orthopedic Assocs., P.A. v.




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Allstate Ins. Co., 559 U.S. 393, 398, 130 S. Ct. 1431, 1437 (2010) (“We do not

wade into Erie’s murky waters unless the federal rule is inapplicable or invalid.”).

       Accordingly, we first consider whether the Federal Rules of Civil Procedure

are sufficiently broad to control the issue of whether a complaint must be verified.

In the federal system, Rule 11 provides the general rule regarding verifications and

representations to the court.2 In pertinent part, Rule 11(a) states that “[u]nless a

rule or statute specifically states otherwise, a pleading need not be verified or

accompanied by an affidavit.” Fed. R. Civ. P. 11(a). Rule 11(b) provides:

       By presenting to the court a pleading, written motion, or other
       paper—whether by signing, filing, submitting, or later advocating it—
       an attorney or unrepresented party certifies that to the best of the
       person’s knowledge, information, and belief, formed after an inquiry
       reasonable under the circumstances:

       (1) it is not being presented for any improper purpose, such as to
       harass, cause unnecessary delay, or needlessly increase the cost of
       litigation;

       (2) the claims, defenses, and other legal contentions are warranted by
       existing law or by a nonfrivolous argument for extending, modifying,
       or reversing existing law or for establishing new law;

       (3) the factual contentions have evidentiary support or, if specifically
       so identified, will likely have evidentiary support after a reasonable
       opportunity for further investigation or discovery; and



       2
         Although the district court concluded § 9-11-11.1(b)’s verification requirement is
inconsistent with Federal Rule of Civil Procedure 8(a), we may affirm the district court’s
decision on any ground supported by the record, even if that ground was not relied on or
considered by the district court. Kernel Records Oy v. Mosley, 694 F.3d 1294, 1309 (11th Cir.
2012).
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      (4) the denials of factual contentions are warranted on the evidence or,
      if specifically so identified, are reasonably based on belief or a lack of
      information.

Fed. R. Civ. P. 11(b). Rule 11(c) authorizes the district court to impose

appropriate sanctions on an attorney, law firm, or party for violations of the rule.

Fed. R. Civ. P. 11(c).

      Section 9-11-11.1(b) addresses the same subjects, i.e., whether a complaint

must be accompanied by a verification or affidavit, what certifications must be

made, and sanctions. Specifically, the Georgia statute provides:

      For any claim asserted against a person or entity arising from an act
      by that person or entity which could reasonably be construed as an act
      in furtherance of the right of free speech or the right to petition
      government for a redress of grievances under the Constitution of the
      United States or the Constitution of the State of Georgia in connection
      with an issue of public interest or concern, both the party asserting the
      claim and the party’s attorney of record, if any, shall be required to
      file, contemporaneously with the pleading containing the claim, a
      written verification under oath . . . . Such written verification shall
      certify that the party and his or her attorney of record, if any, have
      read the claim; that to the best of their knowledge, information, and
      belief formed after reasonable inquiry it is well grounded in fact and is
      warranted by existing law or a good faith argument for the extension,
      modification, or reversal of existing law; that the act forming the basis
      for the claim is not a privileged communication . . . and that the claim
      is not interposed for any improper purpose such as to suppress a
      person’s or entity’s right of free speech or right to petition
      government, or to harass, or to cause unnecessary delay or needless
      increase in the cost of litigation. If the claim is not verified as
      required by this subsection, it shall be stricken unless it is verified
      within ten days after the omission is called to the attention of the party
      asserting the claim. If a claim is verified in violation of this Code
      section, the court, upon motion or upon its own initiative, shall impose
      upon the persons who signed the verification, a represented party, or
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      both an appropriate sanction which may include dismissal of the claim
      and an order to pay to the other party or parties the amount of the
      reasonable expenses incurred because of the filing of the pleading,
      including a reasonable attorney’s fee.

O.C.G.A. § 9-11-11.1(b).

      Based on the plain text of the state law and the federal rule, it is apparent

that the federal rule is broad enough to cover the issue and that the two directly

conflict. The federal rule explicitly provides that a pleading need not be verified or

accompanied by an affidavit and allows parties discretion in deciding whether to

verify pleadings. The Georgia statute, by comparison, mandates that a complaint

or pleading asserting a claim must be accompanied by a verification making

specific representations. See Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 7, 107

S. Ct. 967, 970 (1987) (concluding a state statute providing for a mandatory

affirmance penalty conflicted with Federal Rule of Appellate Procedure 38 which

affords courts of appeals discretion to assess damages for frivolous appeals and

stating that “the Rule’s discretionary mode of operation unmistakably conflicts

with the mandatory provision of Alabama’s affirmance penalty statute”). Rule 11,

moreover, provides the rule regarding representations to the district court, stating

that any presentation of a document to the district court in any form carries with it

a certification from the attorney or unrepresented party submitting the document.

See Fed. R. Civ. P. 11(b). Section 9-11-11.1(b) addresses this same subject but

requires specific averments in writing from both the represented party and his
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counsel. The Georgia law’s requirements for filing a complaint or pleading

directly conflict with the procedure for filing a pleading specified in the federal

rule, and the two may not peacefully co-exist or operate in the same case. Cf.

Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 26 n.4, 108 S. Ct. 2239, 2242 n.4

(1988) (explaining that to directly conflict, federal and state law need not be

“perfectly coextensive and equally applicable to the issue at hand”).

      We acknowledge that Rule 11 states a pleading need not contain a

verification “[u]nless a rule or statute specifically states otherwise.” Fed. R. Civ.

P. 11(a). The rule’s reference to other rules or statutes, however, means other

federal rules or statutes. We long ago held in Follenfant v. Rogers, 359 F.2d 30, 32

n.2 (5th Cir. 1966), that “state rules requiring verified pleadings . . . are wholly

inapposite [in federal court]” in light of Rule 11, and that holding remains binding

and is applicable in the instant case. See also Farzana K. v. Ind. Dep’t of Educ.,

473 F.3d 703, 705 (7th Cir. 2007) (explaining that Rule 11’s reference to other

rules or statutes “means federal rule or federal statute, because state requirements

for pleading do not apply in federal litigation”).

      Because § 9-11-11.1(b)’s verification requirement conflicts with Rule 11, we

must apply the federal rule unless it is invalid under the Rules Enabling Act or the

Constitution. Alexander Proudfoot Co. World Headquarters L.P. v. Thayer, 877

F.2d 912, 917 n.11 (11th Cir. 1989). Regarding the constitutionality of the federal


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rules, the Supreme Court has held that “[r]ules regulating matters indisputably

procedural are a priori constitutional,” and further, “[r]ules regulating matters

which, though falling within the uncertain area between substance and procedure,

are rationally capable of classification as either, also satisfy this constitutional

standard.” Woods, 480 U.S. at 5, 107 S. Ct. at 970 (internal quotation marks

omitted). Rule 11’s regulation of verifications is “indisputably procedural” and

thus “a priori constitutional,” but even if it were not, the rule is at least “rationally

capable of classification” as procedural and is therefore constitutional. See id.

      Rule 11 is also valid under the Rules Enabling Act. That act authorized the

Supreme Court to promulgate rules of procedure for cases in the federal district

courts and courts of appeals. 28 U.S.C. § 2072(a); Woods, 480 U.S. at 5 n.3, 107

S. Ct. at 969 n.3. But to be valid under the Rules Enabling Act, the federal rule at

issue must not “abridge, enlarge or modify any substantive right.” 28 U.S.C.

§ 2072(b); Woods, 480 U.S. at 5, 107 S. Ct. at 970. The Supreme Court has stated

that “any Rules Enabling Act challenge to Rule 11 has a large hurdle to get over”

because it can “succeed only if the Advisory Committee, [the Supreme Court], and

Congress erred in their prima facie judgment that the Rule transgresses neither the

terms of the Enabling Act nor constitutional restrictions.” Bus. Guides, Inc. v.

Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 552, 111 S. Ct. 922, 933 (1991)




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(internal quotation marks and alteration omitted) (addressing a challenge to the

imposition of Rule 11 sanctions against a represented party).

      Rule 11 does not abridge, enlarge, or modify any substantive rights simply

because application of that rule instead of § 9-11-11.1(b) will mean that the

Appellees’ lawsuit will go forward against Harris. In Hanna, the Supreme Court

confronted a similar situation when it held that the federal rule governing service

of process applied to a lawsuit rather than the contrary Massachusetts rule under

which the lawsuit would not have been properly commenced. See Hanna, 380

U.S. at 463-64, 85 S. Ct. at 1140. The Court explained that it had previously held

“[t]he fact that the application of Rule 4(f) will operate to subject [the] petitioner’s

rights to adjudication by the [federal] district court . . . will undoubtedly affect [the

petitioner’s] rights. But it does not operate to abridge, enlarge or modify the rules

of decision by which that court will adjudicate [the petitioner’s] rights.” Id. at 465,

85 S. Ct. at 1140 (internal quotation marks omitted). Although following Rule

11’s dictate that a pleading need not be verified will subject Harris’s rights to

adjudication by the district court, the rule does not operate to abridge, enlarge, or

modify the rules of decision by which the district court will adjudicate the

Appellees’ claims.

      In addition, it is irrelevant to our Rules Enabling Act analysis that

§ 9-11-11.1 may have been enacted for substantive or important purposes, such as


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safeguarding First Amendment rights or deterring abusive filings, because the state

legislature’s objectives “cannot override the statute’s clear text.” Shady Grove,

559 U.S. at 403, 130 S. Ct. at 1440; see also Sibbach v. Wilson & Co., 312 U.S. 1,

14, 61 S. Ct. 422, 426 (1941) (“If we were to adopt the suggested criterion of the

importance of the alleged right we should invite endless litigation and confusion

worse confounded. The test must be whether a rule really regulates procedure.”).

Even if § 9-11-11.1(b) is directed toward a substantive aim, it achieves its goal

through the mechanism of requiring a party and his counsel to file a verification or

affidavit. That requirement conflicts with a valid federal rule of civil procedure,

and we cannot rewrite either the rule or the state law to avoid a collision. Shady

Grove, 559 U.S. at 403, 405-06, 130 S. Ct. at 1440-42.

      Furthermore, because the Georgia anti-SLAPP statute seeks to achieve its

objectives through a verification requirement, the instant case is distinguishable

from the cases considered by other circuits that have found state anti-SLAPP laws

applicable in federal court. For instance, in United States ex rel. Newsham v.

Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-73 (9th Cir. 1999), the

Ninth Circuit held California’s anti-SLAPP statute did not conflict with Federal

Rules of Civil Procedure 8, 12, or 56, because the state law and federal rules

operated in different spheres, and, further, that the state law was “substantive” for

Erie purposes and therefore applied in federal court. As explained by the Ninth


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Circuit, California’s anti-SLAPP law authorizes a defendant to file a special

motion to strike and requires the defendant to make a prima facie showing that the

lawsuit arises from his right to petition or to free speech. Id. at 971. The burden

then shifts to the plaintiff to establish a reasonable probability he will prevail on

the merits. Id.; see also Cal. Civ. Proc. Code § 425.16(b)(1).

      In Henry v. Lake Charles American Press, LLC, 566 F.3d 164, 168-69, 182

(5th Cir. 2009), the Fifth Circuit dismissed a claim under Louisiana’s anti-SLAPP

statute, stating without elaboration that Louisiana law, including the state’s

anti-SLAPP provision, governed that diversity case. Louisiana’s anti-SLAPP

statute, like the California statute, authorizes a defendant to file a special motion to

strike claims arising from an act in furtherance of the right to free speech or to

petition. Id. at 170. After a defendant files a motion to strike and demonstrates the

anti-SLAPP law applies to the activity giving rise to the suit, the plaintiff must

establish a probability of success on the merits. Id.; see also La. Code Civ. Proc.

Ann. art. 971(A)(1).

      In Godin v. Schencks, 629 F.3d 79, 86-87 (1st Cir. 2010), the First Circuit

concluded that Maine’s anti-SLAPP statute applied in federal diversity cases

notwithstanding Federal Rules of Civil Procedure 12(b)(6) and 56 because the

federal rules were not broad enough to cover the same issues as the state law.

According to the First Circuit, Maine’s anti-SLAPP statute “creates a special


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process by which a defendant may move to dismiss any claim that arises from the

defendant’s exercise of the right of petition under either the United States

Constitution or the Constitution of Maine.” Id. at 82. The law specifically

provides that once a defendant brings a special motion to dismiss and demonstrates

the plaintiff’s claims are based on his petitioning activity, the trial court must grant

the motion unless the plaintiff shows the defendant’s “exercise of its right of

petition was devoid of any reasonable factual support or any arguable basis in law

and that the moving party’s acts caused actual injury to the responding party.” Id.

(internal quotation marks omitted); see also Me. Rev. Stat. tit. 14, § 556. The First

Circuit held that the Maine statute was not preempted by Rules 12(b)(6) and 56

because the state law and the federal rules addressed different issues, and the

statute did not create a substitute for the rules. Godin, 629 F.3d at 88-89. The First

Circuit also concluded that Maine’s anti-SLAPP law applied in federal court

because application of the state law furthered Erie’s twin aims of discouraging

forum shopping and avoiding inequitable administration of the law. Id. at 91-92.

      Georgia’s anti-SLAPP statute is distinct from the anti-SLAPP statutes of

California, Louisiana, and Maine in that it attempts to effectuate its deterrent

purpose through a verification requirement. The California, Louisiana, and Maine

provisions do not require a complaint to be verified, and the courts of appeals

considering those statutes were therefore not presented with a potential conflict


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between the state laws and Rule 11. Compare Cal. Civ. Code § 425.16, and La.

Code Civ. Proc. Ann. art. 97, and Me. Rev. Stat. tit. 14, § 556, with O.C.G.A.

§ 9-11-11.1. Accordingly, the First, Fifth, and Ninth Circuits had no occasion to

address the question we consider in this case. In addition, unlike the First and

Ninth Circuits, because we conclude a valid federal rule controls the question

before us, we do not reach the second Hanna prong and thus do not wade into

Erie’s murky waters. See Shady Grove, 559 U.S. at 398, 130 S. Ct. at 1437.

      In sum, Rule 11’s discretionary rule regarding the verification of pleadings

answers the question in this case, does not transgress either the terms of the Rules

Enabling Act or the Constitution, and is valid and controlling in federal cases

arising under the district court’s diversity jurisdiction.

                                 IV. CONCLUSION

      For the foregoing reasons, we conclude we have jurisdiction to consider

Harris’s appeal, and we hold that O.C.G.A. § 9-11-11.1(b)’s verification

requirement does not apply in diversity cases in federal court. Accordingly, the

district court’s order is AFFIRMED.




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JORDAN, Circuit Judge, concurring.

      I concur in Parts I, II, and III.A of Judge Black’s opinion for the Court. As

to Part III.B, I concur in the judgment because we are bound by Follenfant v.

Rogers, 359 F.2d 30, 32 n.2 (5th Cir. 1966) (holding that “state rules requiring

verified pleadings . . . are wholly inapposite” in federal diversity actions). I write

to explain why I believe Follenfant was wrongly decided.

      The “initial step” in “resolving conflicts between state law and the Federal

Rules” is to “determine whether, when fairly construed, the scope of [the] Federal

Rule . . . is ‘sufficiently broad’ to cause a ‘direct collision’ with the state law or,

implicitly, ‘control the issue’ before the court, leaving no room for the operation of

that law.” Burlington Northern R. Co. v. Woods, 480 U.S. 1, 4-5 (1987) (citations

omitted). “If no conflict exists, . . . the analysis need proceed no further, for the

court can apply state and federal law harmoniously to the issue at hand.” Esfeld v.

Costa Crociere, S.P.A., 289 F.3d 1300, 1307 (11th Cir. 2002). In my view, there is

no “direct collision” between O.C.G.A. § 9-11-11-.1(b) and Rule 11 of the Federal

Rules of Civil Procedure.

      In relevant part, Rule 11(a) provides that “[u]nless a rule or statute

specifically states otherwise, a pleading need not be verified or accompanied by an

affidavit.” The text of Rule 11(a) is not confined to federal rules or statutes that

require verification, and “it is the Rule itself, not the Advisory Committee’s


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description of it, that governs.” Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541,

2559 (2011). Given that § 9-11-11.1(b) is a “statute [that] specifically states

otherwise,” Rule 11(a) permits its application in a diversity action in federal court.

See Business Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 544

(1991) (declining to read the phrase “attorney or party” in Rule 11 as “attorney or

unrepresented party”).

      But even if Rule 11(a) were ambiguous—because it is arguably unclear

whether the phrase “a rule or statute” refers only to federal rules and statutes or to

both federal and state rules and statutes—the result would be the same. The

Supreme Court has said that “we should read an ambiguous Federal Rule to avoid

‘substantial variations [in outcomes] between state and federal litigation.’” Shady

Grove Orthopedic Associates, P.A. v. Allstate Ins. Co., 559 U.S. 393, 405 n.7

(2010) (majority opinion) (citation omitted and alteration in original). By reading

Rule 11(a)’s text to refer to federal and state rules and statutes, we avoid a conflict

with § 9-11-11.1(b). See Business Guides, 498 U.S. at 542 (explaining that the

language now found in Rule 11(a) “acknowledges that in some situations

represented parties are required by rule or statute to verify pleadings or sign

affidavits”).

      In sum, I agree with Judge Fitzpatrick’s conclusion in Int’l Brominated

Solvents Association v. American Conference of Governmental Industrial


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Hygienists, Inc., No. 5:04 CV 394(DF), 2005 WL 1220850, at *2 n.3 (M.D. Ga.

May 20, 2005), that the “similarities” between § 9-11-11.1(b) and Rule 11 do not

create a conflict because “compliance with each can be simultaneously achieved.”

Were it not for the broad sweep of Follenfant, I would reverse and direct that the

complaint be dismissed due to the plaintiffs’ failure to comply with § 9-11-

11.1(b)’s verification requirement.




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