     Case: 18-40710      Document: 00515168965         Page: 1    Date Filed: 10/22/2019




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                    No. 18-40710                      October 22, 2019
                                  Summary Calendar
                                                                       Lyle W. Cayce
                                                                            Clerk
JASON LEE VAN DYKE,

              Plaintiff - Appellee

v.

THOMAS CHRISTOPHER RETZLAFF, also known as Dean Anderson, doing
business as BV Files, ViaView Files, L.L.C., and ViaView Files,

              Defendant - Appellant




                   Appeal from the United States District Court
                        for the Eastern District of Texas
                             USDC No. 4:18-CV-247


Before WIENER, HAYNES, and COSTA, Circuit Judges.
PER CURIAM:*
       Plaintiff Jason Lee Van Dyke sued Defendant Thomas Retzlaff, alleging
various causes of action based upon allegedly false and harassing statements
Retzlaff made about Van Dyke in state court; Retzlaff removed the case to
federal court on diversity jurisdiction grounds. The district court opinion ably
explains the facts of the case but, suffice it to say, Retzlaff moved to dismiss


       * Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH
CIR. R. 47.5.4.
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                                        No. 18-40710
the claims based upon the Texas Citizens Participation Act (TCPA) 1, which is
an “anti-SLAPP” 2 statute. The district court denied the motion to dismiss,
concluding that the relevant portions of the TCPA did not apply in federal
court. Retzlaff filed an interlocutory appeal to our court.
      We first examine whether we have jurisdiction of this interlocutory
appeal. The parties agree that the collateral order doctrine applies to this
appeal. Based upon precedent, we agree that we have jurisdiction to address
whether the Texas anti-SLAPP statute applies here. Diamond Consortium,
Inc. v. Hammervold, 733 F. App’x 151, 154 (5th Cir. 2018) (per curiam); NCDR,
L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 747–48 (5th Cir. 2014). That
jurisdiction is limited; we cannot address the underlying merits of the case
outside the anti-SLAPP question. See Mauze & Bagby, 745 F.3d at 747 (“[T]he
collateral order doctrine can confer limited appellate jurisdiction.” (emphasis
added)).
      The next question, then, is whether the district court correctly denied
the motion to dismiss based upon the TCPA. At the time that the district court
ruled, the application of the Texas anti-SLAPP statute in a federal court
exercising diversity jurisdiction was an open question in our circuit. However,
by the time the appeal was ripe for decision, we had decided the issue. See
Klocke v. Watson, 936 F.3d 240, 242 (5th Cir. 2019). We determined that “the
TCPA does not apply to diversity cases in federal court.” Id.
      After allowing the parties to submit supplemental briefing on this point,
we conclude that Klocke is dispositive. In his supplemental brief, Retzlaff tries
to distinguish the two cases by pointing out lapses in the defendant’s briefing
in Klocke that are different from Retzlaff’s robust briefing. But the core of



      1    TEX. CIV. PRAC. & REM. CODE ANN. § 27.001.
      2   “SLAPP” is short for Strategic Litigation Against Public Participation.
                                               2
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                                 No. 18-40710
Klocke does not rest on such lapses, so we are bound by the rule of orderliness
to follow its holding. See Jacobs v. Nat’l Drug Intelligence Ctr., 548 F.3d 375,
378 (5th Cir. 2008). Retzlaff’s other procedural arguments are beyond the
scope of this interlocutory appeal. We express no opinion on the ultimate
merits of the case; nor do we opine on the validity of a motion to dismiss or for
summary judgment based on arguments other than the TCPA.
      AFFIRMED; the case is REMANDED for further proceedings in the
district court.




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