      14-3937
      Liberty Synergistics Inc. v. Microflo LTD


                               UNITED STATES COURT OF APPEALS
                                   FOR THE SECOND CIRCUIT

                                             SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER
FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING TO A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

                     At a stated term of the United States Court of Appeals for the Second
      Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the
      City of New York, on the 2nd day of March, two thousand sixteen.

      PRESENT:
                         ROBERT A. KATZMANN,
                              Chief Judge,
                         DENNIS JACOBS,
                         RICHARD C. WESLEY,
                              Circuit Judges.


      LIBERTY SYNERGISTICS INC., a California
      Corporation,

                                   Plaintiff-Counter Defendant-
                                   Appellee,

                         v.                                                     No. 14-3937

      MICROFLO LTD, EDWARD MALKIN,
      ECOTECH LIMITED, a Cayman Islands Company

                                   Defendants-Counter
                                   Claimants-Appellants.


      For Plaintiff-Counter Defendant-Appellee:                   TRACY GRAVES WOLF, Lewis Brisbois
                                                                  Bisgaard & Smith LLP, Dallas, TX (Peter T.
                                                                  Shapiro, Lewis Brisbois Bisgaard & Smith
                                                                  LLP, Dallas, TX, and Harold A. Ducote, Jr.,
                                                       Ducote Law Corp., P.C., Indianapolis, IN,
                                                       on the brief).

For Defendants-Counter Claimants-Appellants:           DENNIS H. SABOURIN (Eugenie F. Temmler,
                                                       on the brief), Rabner Allcom Baumgart &
                                                       Ben-Asher, P.C., Upper Montclair, NJ.


       Appeal from a judgment of the United States District Court for the Eastern District of

New York (Brodie, J.).

       UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.

       Defendants-Counter Claimants-Appellants Microflo LTD, Edward Malkin, and Ecotech

Limited (the “Microflo defendants”) appeal the September 25, 2014 decision of the United States

District Court for the Eastern District of New York (Brodie, J.) denying their motion to strike

Plaintiff-Counter Defendant-Appellee Liberty Synergistics Inc.’s (“Liberty”) complaint under

California’s anti-Strategic Lawsuit Against Public Participation (“SLAPP”) statute, Cal. Civ.

Proc. Code § 425.16. We assume the parties’ familiarity with the underlying facts, procedural

history, and issues on appeal.

       California’s anti-SLAPP statute allows a defendant to strike a plaintiff’s complaint if the

defendant can show that the plaintiff brought suit in response to the defendant’s conduct in

furtherance of its rights of petition or free speech and the plaintiff fails to show a probability of

success on the merits of its claim. See Cal. Civ. Proc. Code § 425.16(b)(1). Applying this statute

to Liberty’s claim for malicious prosecution, the district court denied the Microflo defendants’

motion because it concluded that Liberty had shown a probability of success on the merits.

Microflo appealed that denial under the collateral order doctrine, which requires that the

appealed order must (1) conclusively determine the disputed question, (2) resolve an important



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issue completely separate from the merits of the action, and (3) be effectively unreviewable on

appeal from a final judgment. See, e.g., Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138,

146 (2d Cir. 2013). Unlike the earlier appeal in this case, the Microflo defendants’ present appeal

fails under the second requirement: Our review is not completely separate from the merits of the

action as it will require us to examine Liberty’s allegations and the parties’ competing evidence.

See Ernst v. Carrigan, No. 14-3925-cv(L), 2016 U.S. App. LEXIS 3024, at *14–16 (2d Cir. Feb.

22, 2016).1 Accordingly, we lack appellate jurisdiction to hear this appeal.

        For the reasons stated herein, the appeal is DISMISSED for lack of appellate

jurisdiction.

                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




1
  As in Ernst, “[b]ecause we conclude that we lack appellate jurisdiction, we do not reach the
issue of whether [California’s] anti-SLAPP statute is applicable in federal court.” 2016 U.S.
App. LEXIS 3024, at *8 n.1 (comparing Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328,
1333–37 (D.C. Cir. 2015), with U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc.,
190 F.3d 963, 973 (9th Cir. 1999)); see also Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1181–
84 (9th Cir. 2013) (Wardlaw and Callahan, JJ., concurring in denial of rehearing en banc); id. at
1188–90 (Watford, J., dissenting from the denial of rehearing en banc). We further note that,
despite the district court’s and the parties’ apparent assumption that our decision in the prior
appeal of this case answered this question in the affirmative, our prior decision expressly
declined to reach it. See Liberty Synergistics, 718 F.3d at 153 (“In sum, if state conflict-of-law
principles call for a rule of decision (1) that would apply to the suit if it were brought in state
court, (2) that is ‘substantive’ within the meaning [o]f Erie, and (3) that is not displaced by a
valid federal law or rule governing the same issue, then the Rules of Decision Act . . . requires
the federal court sitting in diversity to apply the state rule, irrespective of whether that rule is
understood to be ‘procedural’ or ‘substantive’ as a matter of state law. We address below the first
of these issues, which is the only one contested by the parties.” (emphasis added)).
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