                                                                            FILED
                               NOT FOR PUBLICATION                           MAY 22 2012

                                                                         MOLLY C. DWYER, CLERK
                        UNITED STATES COURT OF APPEALS                    U .S. C O U R T OF APPE ALS




                               FOR THE NINTH CIRCUIT



Z. F.; et al.,                                     No. 11-15377

                 Plaintiffs,                       D.C. No. 2:10-cv-00523-GEB-
                                                   JFM
  v.

RIPON UNIFIED SCHOOL DISTRICT;                     MEMORANDUM *
et al.,

                 Defendants,

  and

VALLEY MOUNTAIN REGIONAL
CENTER; et al.,

                 Counter-claimants-Appellees,

  v.

M. A. F.; et al.,

                 Counter-defendants -
Appellants.



                       Appeal from the United States District Court
                          for the Eastern District of California


        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
                      Garland E. Burrell, District Judge, Presiding

                              Submitted May 14, 2012 **
                               San Francisco, California

Before: THOMAS, McKEOWN, and W. FLETCHER, Circuit Judges.

      M.A.F., J.A., and Special Needs Advocates for Understanding (collectively,

Plaintiffs) appeal the district court’s denial of their anti-SLAPP 1 motion to strike.

We have jurisdiction under 28 U.S.C. § 1291,2 and we affirm. Because the parties

are familiar with the factual and procedural history of this case, we need not

recount it here.

                                            I

      The district court applied the proper analysis to the motion to strike. Federal

court adjudication of a state law anti-SLAPP motion implicates the Erie doctrine.

Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845 (9th Cir. 2001). Specifically,

“[p]rocedural state laws are not used in federal court if to do so would result in a

          **
             The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
      1
          SLAPP denotes a “strategic lawsuit against public participation.”
      2
        Defendants contend we lack appellate jurisdiction because of an allegedly
defective Notice of Appeal. Federal Rule of Appellate Procedure 3(c) requires that
the Notice of Appeal state the party taking the appeal, the order being appealed,
and the court to which the appeal is taken. The Plaintiffs complied with these
requirements, and we have jurisdiction over all Defendants.


                                           -2-
‘direct collision’ with a Federal Rule of Civil Procedure.” Id. (quoting Walker v.

Armco Steel Corp., 446 U.S. 740, 749-50 (1980)). Accordingly, we have held that

certain procedural provisions of California’s anti-SLAPP statute 3 conflict with the

Federal Rules of Civil Procedure and cannot be applied in federal court. Id. at 846.

      These actual and potential conflicts between California’s anti-SLAPP

procedural provisions and the federal rules result in a threshold inquiry: whether to

consider the instant anti-SLAPP motion under a summary judgment standard or a

motion to dismiss standard. Id. If a defendant makes an anti-SLAPP motion to

strike founded on purely legal arguments, then the analysis is made under Fed. R.

Civ. P. 8 and 12 standards; if it is a factual challenge, then the motion must be

treated as though it were a motion for summary judgment and discovery must be

permitted.

      Here, Plaintiffs’ anti-SLAPP motion was based on alleged legal deficiencies,

and not a failure of proof or evidence. Plaintiffs did make an incidental reference

to the facts, but the factual material was attached to the counter-complaint, and


      3
         California’s anti-SLAPP statute provides: “A cause of action against a
person arising from any act of that person in furtherance of the person’s right of
petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue shall be subject to a special motion
to strike, unless the court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” Cal. Code Civ. Proc. §
425.16(b)(1).

                                           -3-
thus properly the subject of a motion attacking the sufficiency of the counter-

complaint under Rule 12. See Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th

Cir. 2001) (“[A] court may consider ‘material which is properly submitted as part

of the complaint’ on a motion to dismiss without converting the motion to dismiss

into a motion for summary judgment.” (citation omitted)).

      Therefore, the district court properly applied the Rule 12 standard to the

motion.

                                          II

      The district court also properly concluded that the Defendants were not

“limited purpose public figures,” requiring a higher pleading standard. Limited

purpose public figures are “those classed as public figures [who] have thrust

themselves to the forefront of particular public controversies in order to influence

the resolution of the issues involved.” Gertz v. Robert Welch, Inc., 418 U.S. 323,

345 (1974). As the district court properly concluded, Plaintiffs failed to show that

Defendants had thrust themselves into the forefront of the issues involved in the

allegedly defamatory statements. Although the underlying agreements and their

implementation may well have been a public issue, “[a] private individual is not

automatically transformed into a public figure just by becoming involved in or

associated with a matter that attracts public attention.” Wolston v. Reader’s Digest


                                         -4-
Ass’n, Inc., 443 U.S. 157, 167 (1979). Thus, the Plaintiffs “must show more than

mere newsworthiness to justify application of the demanding burden of [pleading

the heightened actual malice standard].” Id. at 167-68. They did not do so. The

district court correctly determined that the Defendants did not qualify as limited

purpose public figures, and correctly denied the motion to strike.




      AFFIRMED.




                                         -5-
