                           UNITED STATES DISTRICT COURT
                           FOR THE DISTRICT OF COLUMBIA

3M COMPANY,

                      Plaintiff,

                      v.                         Civil Action No. 11-cv-1527 (RLW)

BOULTER, et al.

                      Defendants.


                  AMENDED MEMORANDUM OPINION AND ORDER

       This matter is before the Court on the Special Motion to Dismiss Pursuant to the District

of Columbia Anti-SLAPP Act filed by Harvey Boulter (Dkt. No. 87). The parties had previously

stipulated that this motion be held in abeyance pending a decision of the interlocutory appeal

filed by defendants Lanny J. Davis, Lanny J. Davis & Associates, PLLC, Davis-Block LLC, and

intervenor the District of Columbia. (Dkt. No. 89). The Court initially agreed to hold the motion

in abeyance (Dkt. No. 90), but upon further review, the Court finds that to properly manage its

docket, the motion should be ruled upon and closed rather than left pending for an indefinite

period.1

       As explained in this Court’s prior opinion, the District of Columbia Anti-SLAPP statute

may not apply in federal court if a federal rule “answers the question in dispute.” 3M Co. v.

Boulter, 842 F. Supp. 2d 85, 94 (D.D.C. 2012) (quoting Shady Grove Orthopedic Assocs. v.

Allstate Ins. Co., 130 S.Ct. 1431, 1437 (2010) (citation omitted)). After a thorough examination

of the history and text of Rules12(d) and 56 of the Federal Rules of Civil Procedure, the advisory
1
  While the Court recently granted Boulter’s motion to dismiss for lack of personal jurisdiction,
the instant motion is not moot because the plaintiff may yet appeal that dismissal, which could
result in a reinstatement of the claims against Boulter. In addition, while the Davis defendants
have dismissed their interlocutory appeal, the District of Columbia’s appeal is still pending.
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committee notes to those rules and the precedent of this Circuit, this Court held

                that the text and structure of Rules 12 and 56 were intended to
                create a system of federal civil procedure requiring notice pleading
                by plaintiffs, whereby a federal court may dismiss a case when the
                plaintiff fails to plead sufficiently detailed and plausible facts to
                state a valid claim, but a federal court may not dismiss a case
                without a trial based upon its view of the merits of the case after
                considering matters outside of the pleadings, except in those
                instances where summary judgment under Rule 56 is appropriate.
                These are bedrock principles of the Federal Rules of Civil
                Procedure.

3M Co. v. Boulter, 842 F. Supp. 2d at 106. Put another way, “[a] motion for summary judgment

is the only pretrial motion that allows the court to consider evidence outside the pleadings (a

‘speaking’ motion) in evaluating the merits of the case.” William W. Schwarzer, A. Wallace

Tashima & James M. Wagstaffe, RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE

BEFORE TRIAL, § 14:24 (The Rutter Group 2012). The Supreme Court has made it quite clear

that Rule 56 sets the outer boundary for dismissing claims on the merits based upon a pretrial

evaluation of the evidence; to go further infringes upon the Seventh Amendment right to a jury

trial. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627-28 (1944) (“the purpose of [Rule

56] is not to cut litigants off from their right of trial by jury if they really have issues to try”; this

is so even if “[i]t may well be that the weight of the evidence would be found on a trial to be with

defendant”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (on summary judgment,

“the judge must ask himself not whether he thinks the evidence unmistakably favors one side or

the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence

presented.”); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (noting similarities between

summary judgment and a motion for a directed verdict, citing Anderson v. Liberty Lobby). Thus,

Rule 56 provides the answer to the question in dispute, and applying a local statute that requires

dismissal unless the trial court finds that the plaintiff “demonstrates that the claim is likely to

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succeed on the merits” (D.C. Code § 16-5502(b)) is irreconcilable with Rule 56 or the precedent

from the Supreme Court and this Circuit construing it.

       Just as it is clear that the federal rules answer the question in dispute, it is also clear that

the District of Columbia Anti-SLAPP law is not a substantive protection that is akin to the

defense of immunity, as Boulter claims. In this case, the plaintiff brought common law claims of

Intimidation/Blackmail and tortious interference with existing and prospective business

advantage, and all of the defendants contended or conceded that both of these claims were

governed by the laws of the United Kingdom. See Dkt. No. 9 at 36-38; Dkt. No. 31-3 at 27-30;

Dkt. No. 50 at 17; Dkt. No. 51-2 at 6-7, 8-9. Nonetheless, the defendants and the District of

Columbia Attorney General contend that the local Anti-SLAPP statute applies to these English

law claims, even though it is blackletter law that if foreign law applies to define the scope of the

tort, then the same foreign law also defines the scope of the defenses to that tort. RESTATEMENT

(SECOND) OF CONFLICT OF LAWS § 161 (“The law selected by application of § 145 [the tort

conflict of laws rule2] determines what defense to the plaintiff's claim may be raised on the

merits.”); 16 AM. JUR. 2d Conflict of Laws § 129 (“the law selected by application of the section

of the Restatement which sets forth the general principles applicable in tort actions determines

which defenses may be raised on the merits”) (footnotes omitted). The defendants and the

Attorney General never explain how the local Anti-SLAPP law is “a means of defining the scope

of substantive rights or remedies[,]” Shady Grove, 130 S.Ct. at 1450 (Stevens, J., concurring), for

the common law Intimidation/Blackmail and tortious interference causes of action, when they

concede that English law defines the scope of substantive rights and remedies of those claims.

The Court is certainly not aware of any logical explanation for such a result.
2
  Section 145 of the Restatement is followed in the District of Columbia. See, e.g., Doe v.
Exxon Mobil Corp., 654 F.3d 11, 69 (D.C. Cir. 2011).

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       Nonetheless, even if the Anti-SLAPP law could be fairly construed as a state law creating

a substantive immunity to be decided by the trial judge, it is well settled that “the right to a jury

trial in the federal courts is to be determined as a matter of federal law in diversity [cases],” even

if “the substantive dimension of the claim asserted finds its source in state law,” because the

“federal policy favoring jury trials is of [such] historic and continuing strength.” Simler v.

Conner, 372 U.S. 221, 222 (1963) (per curiam) (holding that state statute defining issue as an

equitable one to be decided by the judge was inapplicable in a federal diversity action due to the

federal right to a jury trial). Accordingly, the Supreme Court has held that a state statute

mandating that a state-created immunity be decided by the judge, rather than the jury, was

inapplicable in a federal diversity action. Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S.

525 (1958). See generally, 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and

Procedure § 2303, 103-13 (3d ed.2008). Rule 56 simply trumps any state Anti-SLAPP law that

requires a trial judge to resolve disputed factual issues and decide a case on the merits prior to

trial, because “[a]n essential characteristic of [the federal] system is the manner in which, in civil

common-law actions, it distributes trial functions between judge and jury and, under the

influence—if not the command—of the Seventh Amendment, assigns the decisions of disputed

questions of fact to the jury.” Byrd, 356 U.S. at 537.

       IT IS THEREFORE ORDERED that the Special Motion to Dismiss Pursuant to the

District of Columbia Anti-SLAPP Act filed by Harvey Boulter (Dkt. No. 87) is DENIED.
                                                                         Digitally signed by Judge Robert L.
SO ORDERED.                                                              Wilkins
                                                                         DN: cn=Judge Robert L. Wilkins,
                                                                         o=U.S. District Court, ou=Chambers
                                                                         of Honorable Robert L. Wilkins,
                                                                         email=RW@dc.uscourt.gov, c=US
Date: October 24, 2012                                                   Date: 2012.10.24 09:34:51 -04'00'

                                                      ROBERT L. WILKINS
                                                      United States District Judge




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