UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

SHIRLEY SHERROD, )
)
Plaintiff, )
)
) Civil Case No. 11-477 (RJL)
v )
)
)
ANDREW BREITBART, LARRY )
O’CONNOR, and JOHN DOE, )
, FILEn
Defendants. ) FEB 1 5 2012
C|erk, U.S. District & Bankruptcy
STATEMENT OF REASONS Gourts forthe District of Co|umbia

(February]_{, 2012)
Shirley Sherrod ("plaintiff"), former Georgia State Director for Rural

Development for the U.S. Department of Agriculture, has filed an action for defamation,
false light, and intentional infliction of emotional distress against bloggers Andrew
Breitbart and Larry O’Connor ("defendants"). The defendants filed a joint Motion to
Dismiss pursuant to the Anti-SLAPP Act of 2010 on April 18, 201l, even though that
statute had not gone into effect when the plaintiffs filed their suit in February 201 l. That

motion was not ripe for oral argument until June 3, 201 l.] Oral argument was held on

' Unfortunately when defendants’ motion was finally ripe on June 3m for
consideration and oral argument, the Court was already in the fourth week of an eight
week four defendant Foreign Corrupt Practices Act ("F`CPA") trial. And by the time that
trial ended on July 7, 2011, the Court had already started and was in the middle of a two
week legal malpractice jury trial that did not end until July 13, 201 1. Nevertheless, on
July ll, 2011, two days before the jury retumed its verdict in the malpractice case, the
Court scheduled the oral argument in the Sherrod case for July 19, 201 1.

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July 19, 201 l, and this Court dismissed defendants’ motion on July 28, 2011.2 ln
response to the Court’s decision, defendants filed a Notice of Appeal on August 26, 201 l.
On February 6, 2012, our Court of Appeals remanded the record to this Court for a
statement of reasons for the denial of defendants’ Motion to Dismiss. ln compliance with
the Court of Appeals’ remand order, the Court issues the following Statement of Reasons
in support of its denial of defendants’ Motion to Dismiss.
STATEMENT OF REASONS

Defendants moved to dismiss plaintiffs complaint under the District of Columbia
Anti-SLAPP Act of 2010 ("D.C. Anti-SLAPP Act"), D.C. Law 18-351 (March 3 l, 2011),
which provides that a defendant who makes a showing that the claim at issue arises from
an act in furtherance of the right to free speech related to an issue of public concern may
file a special motion to dismiss. Defendants’ motion to dismiss pursuant to this statute,
however, fails for three reasons.

First, although plaintiff filed the complaint on February 1 l, 2011, the D.C. Anti-

SLAPP Act did not become effective until March 31, 201 l-over one month after this

2 Believing that the parties would want a ruling as soon as possible on the
defendants’ "novel" Anti-SLAPP motion, and fully appreciating that our Court of
Appeals would be reviewing de novo any ruling of this Court if an interlocutory appeal
were taken, the Court issued its denial of the motion via minute order on July 28, 2011~
nine days after the oral argument. Unfortunately, drafting a memorandum opinion at that
time, even though the Federal Rules of Civil Procedure do not require a written opinion
when a motion to dismiss is denied, was not a realistic option because the Court was
about to start an eighteen week six defendant FCPA trial in September and there was a
myriad of legal issues that had to be addressed in the weeks leading up to that trial.
Undaunted, defendants predictably filed an "interlocutory appeal" of this Court’s order
on August l9, 2011, hoping to convince our Court of Appeals, inter alia, to somehow
apply the Anti-SLAPP statute retroactively.

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case was filed. See Complaint ("Compl."), Ex. B to Notice of Removal, Mar. 4, 2011;
Defs.’ Mem. in Support of Mot. to Dismiss under D.C. Anti-SLAPP Act ("Defs.’ Mot.")
at 1, Apr. 18, 201 1. The D.C. Court ofAppeals, let alone our Circuit Court, has never
held~nor have defendants cited any cases from any jurisdiction that hold_-that the D.C.
Anti-SLAPP Act is retroactive.

To the contrary, the D.C. Court of Appeals has held that only statutes that are
purely procedural can be applied retroactively, whereas statutes that are not readily
categorized as either procedural or substantive, or would have substantive consequences,
cannot without a clear legislative showing of retroactive intent. See Bank of Am., N.A. v.
Grijj‘z`n, 2 A.3d l070, 1076 (D.C. 2010); Mo*ntgomery v. District ofCo/u)nbia, 598 A.2d
162, 166 (D.C. 1991); Wolfv. District of Columbia Rental Accornoa'ations Comm ’n_, 414
A.2d 878, 880 n.8 (D.C. 1980). Here, defendants’ own briefs and the legislative history
make clear that the D.C. Anti-SLAPP Act is substantive. Defendants quote from the
report of the Council on the District of Columbia Committee on Public Safety and the
Judiciary, Report on Bill 18-893, Anti-SLAPP Act of 2010 (Nov. 18, 2010) (the
"Committee Report") that the D.C. Anti-SLAPP Act is designed, in part, to "incorporate
substantive rights that allow a defendant to more expeditiously, and more equitably,
dispense of a SLAPP." Defs.’ Mot. at 6. Indeed, the first sentence of the Committee
Report emphasizes the legislative intent to create new substantive rights for defendants in
SLAPP suits: "Bill 18-893, the Anti-SLAPP of 2010, incorporates substantive rights
vvith regard to a defendant’s ability to fend off lawsuits filed by one side of a political or

public policy debate aimed to punish or prevent the expression of opposing points of

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view."3 Committee Report at 1. Because the statute is substantive-or at the very least,
has substantive consequences_and there is no clear legislative intent of retroactivity,
defendants’ motion must be denied.4

Second, even if defendants could show that the D.C. Anti-SLAPP Act is purely
procedural, the Erie doctrine bars its application in federal court. The Erie doctrine
requires federal courts sitting in diversity to apply state substantive law and federal
procedural law, thus barring the application ofthe D.C. Anti-SLAPP Act in this Court.$
See Erie v. Tomkins, 304 U.S. 64 (l938). As the plaintiff has astutely pointed out, by

bringing a motion based on a statute that was not in effect at the time of the filing of this

3 Indeed, although only informative, the Ninth Circuit has recognized California’s
ami-SLAPP statute-a "well-developed Anti-SLAPP statute, see Defs.’ Mot. at 2_to be
substantive. See Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003).

4 Further, the statutory text of the D.C. Anti-SLAPP Act supports the conclusion
that the statute is substantive. At the motion to dismiss stage, the statute shifts the burden
of proof to the plaintiff to show her claims are likely to succeed. See D.C. Law 18-351 §
3(b); Defs.’ Mot. at 7 ("Unlike in the Rule l2(b)(6) Motion-where Sherrod is entitled to
certain inferences~here, Sherrod bears the burden of demonstrating that her claims are
likely to succeed."). Other courts have found that the allocation of the burden of proof is
substantive. See Godin v, Schencks, 629 F.3d 79, 89 (lst Cir. 2010) ("And it is long
settled that the allocation of burden of proof is substantive in nature and controlled by
state law."). Further, where a statue provides provisions for attorneys’ fees and costs for
the prevailing party-as the D.C. Anti-SLAPP provides_other courts have held that
such statutory provisions are substantive in nature. See ia’. at 85 n.10; Unitea’ States ex
rel. Newsham v. Lockheea’ Missiles & Space Co., 190 F.3d 963, 971-72 (9th Cir. l999).

5 Indeed, courts that have found other states’ anti-SLAPP statutes to be purely
procedural have not applied the statutes when sitting in diversity. See Turkowitz v. T own
ofProvincetown, No. l0-l0643-NMG, 2010 WL 55831l9, at *2 (D. Mass. Dec. 1, 2010)
(holding that a purely procedural act does not apply in federal courts); The Saint
Consulting Group, 1nc. v. Litz, No. 10-l0990-RGS, 2010 WL 2836792, at *1 (D. Mass.
July 19, 2010) ("[T]he Anti-SLAPP Statute is procedural in nature and therefore does not
apply in a federal court proceeding."). '

case, defendants "have created a Catch-22 for themselves: either the statute is partially
substantive (or has substantive consequences) and is therefore not retroactive under D.C.
law or it is purely procedural and inapplicable in federal court under Erie." Pl.’s Mem. in
Support of Opp’n to Defs.’ Mot. to Dismiss Under D.C. Anti-SLAPP Act ("Pl.’s Mot.")
at 2, May 19, 201l.

Finally, even assuming arguendo that defendants could show that the D.C. Anti-
SLAPP is both retroactive and applicable in federal court, this type of special motion is
barred under the plain language of the statute. Under the statute, "[a] party may file a
special motion to dismiss any claim arising from an act in furtherance of the right of
advocacy on issues of public interest within 45 days after service ofthe claim." D.C,
Law 18-351 § 3(b). Here, the complaint was filed on February 1 l, 201 1, and served on
February 12, 201 1. See Pl.’s Mot. at 13. Thus, defendants had until March 30, 2011-
forty-five days after service of the claim-to file their special motion to dismiss.
Defendants, however, did not timely file this motion. lnstead, defendants filed the
motion on April 18, 201 l-more than two weeks after the deadline. See Defs.’ Mot.
Defendants’ motion is untimely and, therefore, procedurally defaulted. See Blumenthal v.
Drua’ge, Civ.A. 97-1968, 2001 WL 587860 (D.D.C. Feb. 13, 2001) (holding that
defendant’s special motion to dismiss under the California anti-SLAPP statute to be
procedurally defaulted because it was not filed within the 60-day deadline provided in the
statute).

Accordingly, for all of the above reasons, the Court DENIED defendants’ Motion

to Dismiss Under the D.C. Anti-SLAPP Act. Regrettably, it appears that the defendants

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will not be satisfied with this Court’s ruling until a considerable amount of additional

judicial and litigant resources are expended on its "novel," if not overreaching, motion.

/€ii'w¢??~.»t/

RicHARD L,u§oN
United States District Judge

