We recently discussed the Supreme Court’s decision in Berk v. Choy and the possibility that federal procedural rules can make it easier for some plaintiffs to pursue state-law claims in federal court than in state court. A recent Fifth Circuit decision illustrates Berk’s effect in lower courts and the increasingly difficult choices facing plaintiffs’ lawyers.
In Sahs v. Loyola University New Orleans, a former Loyola student sued the university for defamation and other claims in federal court. Loyola responded with a special motion to strike under Louisiana’s anti-SLAPP statute. Anti-SLAPP laws—named for “Strategic Lawsuits Against Public Participation”—are intended to prevent litigation from being used to chill speech on matters of public concern. Louisiana’s law provides a mechanism for early dismissal when a claim arises from protected speech. Once a defendant makes the required initial showing, the plaintiff must demonstrate a probability of success on their underlying claim. The statute also generally stays discovery while the motion is pending and allows a party filing a motion to dismiss to recover attorney’s fees and costs.
The Fifth Circuit held that this procedure does not apply in federal court. The court’s reasoning follows directly from Berk. There, the Supreme Court considered a Delaware law requiring plaintiffs alleging medical malpractice to submit an expert affidavit with their complaint. The Court held that Federal Rule of Civil Procedure 8 displaced the state requirement because both addressed what a plaintiff must provide concerning the merits of a claim at the beginning of litigation, but Delaware demanded more than the Federal Rules. As we noted previously, that meant an out-of-state plaintiff able to invoke diversity jurisdiction could avoid a procedural hurdle faced by a plaintiff proceeding in Delaware state court.
Sahs applied the same reasoning to Louisiana’s anti-SLAPP law. The Fifth Circuit concluded that Article 971 and Federal Rules 12 and 56 answer the same basic question: when may a lawsuit be dismissed before trial? But Article 971 adds procedures not contained in the Federal Rules. Most importantly, its burden-shifting framework requires less from a defendant before forcing a plaintiff to produce evidence supporting the claim, and its general stay of discovery conflicts with the Federal Rules’ approach to pretrial adjudication. Because Rules 12 and 56 validly regulate procedure, the Fifth Circuit held that the Federal Rules control. Louisiana’s anti-SLAPP procedure therefore applies in Louisiana state court but not in a federal diversity action.
Put Berk and Sahs together, and an interesting complication emerges for lawyers deciding where to litigate. Berk made federal court potentially more attractive to some plaintiffs by eliminating a state-law screening requirement. Sahs may do something similar for plaintiffs bringing claims that could face an anti-SLAPP motion in state court. Some observers perceive that federal courts enforce more aggressive summary judgment and pleading standards than many state courts do. To the extent plaintiffs’ lawyers share that view, that leaves them to decide whether state laws or federal procedures present a greater obstacle to advancing their clients’ interests.
Marcus Gadson, Academic Program Consultant