Godin v. Schencks

United States Court of Appeals
For the First Circuit

No. 09-2324

PAT GODIN,

Plaintiff, Appellee,

v.

PATTY SCHENCKS, JOLEEN NICELY, and DONNA METTA,

Defendants, Appellants,

SCHOOL UNION #134 and MACHIASPORT SCHOOL DEPARTMENT BOARD OF
DIRECTORS,

Defendants.

APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MAINE

[Hon. John A. Woodcock, Jr., U.S. District Judge]

Before

Lynch, Chief Judge,
Torruella and Howard, Circuit Judges.

John B. Lucy, with whom Richardson Whitman Large & Badger was
on brief, for appellant Joleen Nicely.
John M. R. Paterson, Eben Albert-Knopp, and Bernstein Shur on
brief for appellant Patty Schencks.
David A. Strock and Fisher & Phillips, LLP on brief for
appellant Donna Metta.
Sandra Hylander Collier for appellee.

December 22, 2010
 LYNCH, Chief Judge. Pat Godin, the former principal of

the Fort O'Brien Elementary School in Machiasport, Maine, brought

suit against the Machiasport School Department Board of Directors

("Machiasport") and School Union No. 134 in March 2009, alleging a

violation of her due process rights under 42 U.S.C. § 1983. She

also sued three individual school system employees who had

separately stated in meetings with officials their views that Godin

had acted abusively toward students at the school. Plaintiff

brought state-law claims that these allegations were defamatory and

led the school system to terminate her employment; the school

system says her job was terminated due to budgetary shortfalls.

Many states have enacted special statutory protections

for individuals, like the individual school system employees in

this case, named as defendants as a result of the exercise of their

constitutional rights to petition the government. These anti-

"SLAPP" ("strategic litigation against public participation") laws

provide such defendants with procedural and substantive defenses

meant to prevent meritless suits from imposing significant

litigation costs and chilling protected speech. The two federal

appellate courts that have addressed whether they must enforce

these state anti-SLAPP statutes in federal proceedings have

concluded that they must. See Henry v. Lake Charles Am. Press,

LLC, 566 F.3d 164 (5th Cir. 2009); United States ex rel. Newsham v.

Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999). See

-2-
also Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 845-47 (9th

Cir. 2001) (limiting application of one anti-SLAPP provision where

information was within exclusive control of the defendant). This

question, here as it applies to Maine's anti-SLAPP statute, is one

of first impression for this court, and lies at the center of this

appeal. We hold the Maine anti-SLAPP statute must be applied.

I.

Basic background facts set the stage. Shortly after

Godin began working as a teacher and principal at the Fort O'Brien

Elementary School in August 2006, Machiasport began receiving

complaints from other employees concerning her conduct toward

students, including complaints from the three individual

defendants, Patty Schencks, Joleen Nicely, and Donna Metta.1

Machiasport conducted an investigation of Godin's conduct in May

2008. The June 4, 2008 investigation report concluded that the

allegations that Godin's conduct was abusive and inappropriate were

not supported.

Two days after the report was issued, Godin received

notice from the Superintendent of Machiasport Schools that her

1
Nicely offered statements to both the Superintendent of
Schools and the School Board that she felt Godin's treatment of an
eight-year-old child, which Nicely observed first hand, was
"inappropriate and abusive." Schencks reported to Maine's
Department of Health and Human Services and the Maine State Police
her observation of Godin's December 2007 treatment of a four-year-
old child. Metta informed the Machiasport School Board that, on
two occasions in January 2007, she observed Godin treat a student
in a manner that in her view was abusive.

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employment contract, which would have expired in 2011, was being

terminated due to budgetary constraints caused by "significant

subsidy loss." Godin was told that her position would be filled by

a "teaching principal," which occurred on August 12, 2008.

On March 2, 2009, Godin brought suit in federal court,

asserting a federal claim under 42 U.S.C. § 1983 against the Union

and Machiasport, and a number of state claims, including claims

against the individual defendants for interference with

advantageous contractual relationships and defamation.2

The individual defendants filed a special motion to

dismiss under Maine's anti-SLAPP statute, which creates a special

process by which a defendant may move to dismiss any claim that

arises from the defendant's exercise of the right of petition under

either the United States Constitution or the Constitution of

Maine.3 Me. Rev. Stat. tit. 14, § 556 ("Section 556"). Godin does

not dispute that her claims against the individual defendants are

2
Godin's other state claims include a breach of contract
claim against the Union and Machiasport and a claim for punitive
damages against all defendants.
3
The federal Constitution provides: "Congress shall make
no law . . . abridging the freedom of speech, or of the press; or
the right of the people peaceably to assemble, and to petition the
Government for a redress of grievances." U.S. Const. amend. I.
The Maine Constitution provides: "The people have a right
at all times in an orderly and peaceable manner to assemble to
consult upon the common good, to give instructions to their
representatives, and to request, of either department of the
government by petition or remonstrance, redress of their wrongs and
grievances." Me. Const. art. 1, § 15.

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based on conduct that falls within the statute's broad definition

of "a party's exercise of its right of petition." Me. Rev. Stat.

tit. 14, § 556.

The statute provides that once a defendant brings such a

"special motion to dismiss" and demonstrates that the claims in

question are based on the defendant's petitioning activity, the

court "shall advance [the motion] so that it may be heard and

determined with as little delay as possible." Id. The court shall

grant the special motion "unless the party against whom the special

motion is made shows that the moving party's exercise of its right

of petition was devoid of any reasonable factual support or any

arguable basis in law and that the moving party's acts caused

actual injury to the responding party." Id. In assessing whether

to grant the special motion, "the court shall consider the pleading

and supporting and opposing affidavits stating the facts upon which

the liability or defense is based." Id. A court may order

discovery specific to the Section 556 motion for good cause shown.

Id. Evidence considered in reviewing a special motion to dismiss

should be viewed "in the light most favorable to the moving party

because the responding party bears the burden of proof when the

statute applies." Morse Bros., Inc. v. Webster, 772 A.2d 842, 849

(Me. 2001).

The district court denied the individual defendants'

special motion under Section 556, holding that Section 556

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conflicts with Fed. R. Civ. P. 12 and 56 and so does not apply in

federal court.

This interlocutory appeal raises issues of first

impression within this circuit, namely: (1) whether, under the

collateral order doctrine, this court has appellate jurisdiction

over an interlocutory appeal from an order denying a special motion

to dismiss brought under Section 556 on the basis that Section 556

cannot be reconciled with federal procedure; and (2) whether

Section 556 applies in federal court proceedings. We hold on the

facts here that we have appellate jurisdiction and that the

district court erred in not applying Maine's anti-SLAPP statute,

Me. Rev. Stat. tit. 14, § 556. We reverse and remand for further

proceedings, including proceedings under Section 556.

II.

We address two preliminary jurisdictional issues: (1)

whether federal subject-matter jurisdiction exists over the state-

law claims against the non-diverse individual defendants even

though no federal claim has been brought against them, and (2)

whether this court has appellate jurisdiction over the individual

defendants' interlocutory appeal by virtue of the collateral order

doctrine.

A. Federal Subject-Matter Jurisdiction: The Supplemental
Jurisdiction Doctrine

Although the parties have not questioned subject-matter

jurisdiction over the claims at issue, "a court has an obligation

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to inquire sua sponte into its subject matter jurisdiction, and to

proceed no further if such jurisdiction is wanting." In re

Recticel Foam Corp., 859 F.2d 1000, 1002 (1st Cir. 1988).

In her complaint, Godin asserts federal question

jurisdiction pursuant to 28 U.S.C. § 1343 et seq. as to the claims

against the school system, and that there exists a common nucleus

of operative facts between the state claims and her federal claims

sufficient to establish supplemental jurisdiction under 28 U.S.C.

§ 1367.

With certain exceptions not applicable here, a federal

court may exercise supplemental jurisdiction over state-law claims

"that are so related to claims in the action within [a court's]

original jurisdiction that they form part of the same case or

controversy under Article III of the United States Constitution."4

28 U.S.C. § 1367(a). While it might be questioned whether Godin's

state-law claims that her job termination was caused by defamatory

comments from the individual defendants arise out of the same

4
Section 1367(a) further provides that "[s]uch
supplemental jurisdiction shall include claims that involve the
joinder or intervention of additional parties." 28 U.S.C. §
1367(a). That § 1367(a) confers on federal courts jurisdiction
over state-law claims against non-diverse parties--often termed
"pendent party jurisdiction"--is particularly clear in light of
that statute's origins. See 13D Wright & Miller, Federal Practice
and Procedure § 3567, at 320-23 (3d ed. 2008) (describing § 1367's
enactment as directly responsive to the Supreme Court's holding in
Finley v. United States, 490 U.S. 545 (1989), that the Federal Tort
Claims Act does not allow for the assertion of pendent jurisdiction
over additional parties).

-7-
transaction as her federal claim that the schools did not afford

due process in reaching the termination decision, that is not the

test. See Global NAPs, Inc. v. Verizon New England Inc., 603 F.3d

71, 88 (1st Cir. 2010) ("No Supreme Court case had ever established

the same transaction-or-occurrence test as the boundary of Article

III case-or-controversy requirement." (citing United Mine Workers

of America v. Gibbs, 383 U.S. 715, 725 (1966))). We conclude it

would not offend the Constitution to assert supplemental

jurisdiction over Godin's state-law claims.5 Accordingly,

supplemental jurisdiction exists over Godin's state-law claims

under § 1367(a).

B. Appellate Jurisdiction: The Collateral Order
Doctrine

Godin objects that we lack appellate jurisdiction,

arguing that the order denying application of Section 556 does not

meet the requirements of the collateral order doctrine. "The

burden of establishing jurisdiction rests with the party who

asserts its existence," here the three individual defendants.

Campbell v. Gen. Dynamics Gov't Sys. Corp., 407 F.3d 546, 551 (1st

Cir. 2005).

5
Because the issue is one of whether there is subject-
matter jurisdiction based on the pleadings, we reach this
conclusion having accepted as true the well-pleaded facts of
Godin's complaint and assessed them in the light most favorable to
her theory of liability. See United States ex rel. Duxbury v.
Ortho Biotech Prods., L.P., 579 F.3d 13, 20 (1st Cir. 2009).

-8-
 The collateral order doctrine "allows courts to hear

appeals from judgments that are not complete and final if they

'fall in that small class which finally determine claims of right

separable from, and collateral to, rights asserted in the action,

too important to be denied review and too independent of the cause

itself to require that appellate consideration be deferred until

the whole case is adjudicated.'" Nieves-Marquez v. Puerto Rico,

353 F.3d 108, 123 n.13 (1st Cir. 2003) (quoting Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541, 546 (1949)). For the collateral

order doctrine to apply, the interlocutory order must present: (1)

a conclusive decision, (2) distinct from the merits of the action,

(3) on an important issue, (4) which would effectively be

unreviewable on appeal from a final judgment. Awuah v. Coverall N.

Am. Inc., 585 F.3d 479, 480 (1st Cir. 2009); see also Will v.

Hallock, 546 U.S. 345, 349 (2006).

Three federal circuit decisions hold there is appellate

jurisdiction over an order denying an anti-SLAPP motion to dismiss,

Hilton v. Hallmark Cards, 580 F.3d 874, 880 (9th Cir. 2009), Henry,

566 F.3d at 181, and Batzel v. Smith, 333 F.3d 1018, 1024-26 (9th

Cir. 2003), while one, also from the Ninth Circuit, holds to the

contrary, see Englert v. MacDonnell, 551 F.3d 1099 (9th Cir. 2009).

The issue here is narrower and concerned only with the

immediate appealability of an order that a state anti-SLAPP statute

does not apply at all to federal court proceedings due to Federal

-9-
Rules 12 and 56. We defer to another day resolution of the

question of whether an order addressed to the merits of a ruling

under an anti-SLAPP statute is immediately appealable.

We have appellate jurisdiction. First, the order

conclusively decides that relief under Maine's Section 556 is

unavailable to the individual defendants. The relevant inquiry for

collateral order doctrine purposes is whether the order is

conclusive as to "the disputed question," not the action as a

whole. Will, 546 U.S. at 349 (quoting Puerto Rico Aqueduct & Sewer

Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144 (1993)).

Second, the issue of whether a defendant can utilize

Section 556 in federal court is distinct from the merits of Godin's

action. The legal issue before us is not so intertwined with

factual issues as to make it "highly unlikely to affect, or even be

consequential to, anyone aside from the parties." Lee-Barnes v.

Puerto Ven Quarry Corp., 513 F.3d 20, 26 (1st Cir. 2008).

Third, this appeal raises an important issue of law

because the issue raised is "weightier than the societal interests

advanced by the ordinary operation of final judgment principles."6

Id. (quoting Gill v. Gulfstream Park Racing Ass'n Inc., 399 F.3d

391, 399 (1st Cir. 2005)) (internal quotation marks omitted). The

seminal Supreme Court case of Cohen v. Beneficial Industrial Loan

6
Because of the important public interests at stake, Will
v. Hallock, 546 U.S. 345, 353 (2006), contrary to Godin's
arguments, reinforces our conclusion.

-10-
Corp. itself involved an interlocutory appeal from a district

court's determination that a state statute was not applicable to a

state-law claim brought in federal court.7 337 U.S. at 546. The

Cohen court permitted interlocutory review, and in so doing, carved

out the collateral order doctrine. Likewise, the parallel question

of whether this state anti-SLAPP statute applies to a state-law

claim brought in federal court qualifies as "too important to be

denied review." Id.

Finally, the order appealed from would be effectively

unreviewable on appeal from a final judgment. It is relevant, but

not conclusive, that the Maine Supreme Court's interpretation of

Section 556 has led it to permit interlocutory appeals of orders

denying special motions to dismiss in its own courts, because "a

failure to grant review of these decisions at this stage would

impose additional litigation costs on defendants, the very harm the

statute seeks to avoid, and would result in a loss of defendants'

substantial rights." Schelling v. Lindell, 942 A.2d 1226, 1229-30

(Me. 2008); see also Maietta Const., Inc. v. Wainwright, 847 A.2d

1169, 1173 (Me. 2004) (discussing purpose of Section 556).

7
The New Jersey statute at issue in Cohen made the
plaintiff in a stockholder's derivative action "liable for all
expenses, including attorney's fees, of the defense" and required
"security for their payment as a condition of prosecuting the
action." Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 543
(1949).

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 That is relevant not because state law determines the

availability of appellate review here--it does not--but rather

because "lawmakers wanted to protect speakers from the trial itself

rather than merely from liability." Batzel, 333 F.3d at 1025; see

also Englert, 551 F.3d at 1107 (whether state anti-SLAPP statute

provides for interlocutory appeals is significant to whether

interlocutory appeals should be permitted in federal courts).8

There is a "crucial distinction between a right not to be tried and

a right whose remedy requires the dismissal of charges." Midland

Asphalt Corp. v. United States, 489 U.S. 794, 801 (1989) (quoting

United States v. Hollywood Motor Car Co., 458 U.S. 263, 269 (1982)

(internal quotation marks omitted)). We conclude that the order at

issue here involves "an asserted right the legal and practical

value of which would be destroyed if it were not vindicated before

trial." Lauro Lines s.r.l. v. Chasser, 490 U.S. 495, 499 (1989)

(quoting Midland Asphalt Corp., 489 U.S. at 799) (quotation mark

omitted).

8
Godin's reliance on Englert is thus misplaced. There, in
dismissing the defendants' consolidated interlocutory appeals on
the basis that an order denying an anti-SLAPP motion could be
effectively reviewed after final judgment, the Ninth Circuit found
it important that Oregon's anti-SLAPP statute did not itself make
interlocutory appeals available in state-court proceedings.
Englert v. MacDonnell, 551 F.3d 1099, 1106-07 (9th Cir. 2009).
Englert, with its heavy reliance on the view of Oregon law
regarding the availability of interlocutory appeals, cuts against
Godin's position given the availability of such appeals in this
context under Maine law.

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 III.

The district court's order rests on a determination of

law, which we review de novo. See Levin v. Dalva Bros. Inc., 459

F.3d 68, 73 (1st Cir. 2006). It is often said that a federal court

sitting in diversity jurisdiction9 applies the state's substantive

law and the federal procedural rules. See Gasperini v. Ctr. for

Humanities, Inc., 518 U.S. 415 (1996); Erie R. Co. v. Thompson, 304

U.S. 64 (1938); Hoyos v. Telecorp. Comm., Inc., 488 F.3d 1, 5 (1st

Cir. 2007); Servicios Comerciales Andinos, S.A. v. General Elec.

Del Caribe, Inc., 145 F.3d 463, 478 (1st Cir. 1998).10 At the same

time, there is what we have called "an enduring conundrum--the line

between substance and procedure." United States v. Poland, 562

F.3d 35, 40 (1st Cir. 2009). What are matters of substance and

what are matters of procedure is difficult to distinguish, and the

two are not mutually exclusive categories. Shady Grove Orthopedic

Assocs., P.A. v. Allstate Ins. Co., 130 S. Ct. 1431, 1450 (2010)

(Stevens, J., concurring).

9
Our analysis regarding this pendent state-law claim
proceeds as it would were this a state-law claim brought in federal
court by virtue of diversity jurisdiction. See Doty v. Sewall, 908
F.2d 1053, 1063 (1st Cir. 1990).
10
We have held that a nominally procedural state rule
authorizing an award of attorney's fees as a sanction for obstinate
litigation is substantive for purposes of Erie analysis. Servicios
Comerciales Andinos, S.A. v. Gen. Elec. Del Caribe, Inc., 145 F.3d
463, 478 (1st Cir. 1998). State conflict of laws rules are also
considered substantive. Day & Zimmermann, Inc. v. Challoner, 423
U.S. 3, 4 (1975).

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 Here, the issue falls into the special category

concerning the relationship between the Federal Rules of Civil

Procedure and a state statute that governs both procedure and

substance in the state courts. The issue is whether Federal Rules

of Civil Procedure 12(b)(6) and 56 preclude application of Section

556 in federal court. This is not the classic Erie question.

Compare Erie R. Co., 304 U.S. 64, with Hanna v. Plumer, 380 U.S.

460 (1965).

Until the last several decades, federal courts addressing

similar issues posed the relevant question, as articulated in

Walker v. Armco Steel Corp., 446 U.S. 740 (1980), as whether there

was a "direct conflict" between a state law and a federal rule of

civil procedure. Id. at 752. That is no longer the initial

question. See Stewart Org., Inc., v. Ricoh Corp., 487 U.S. 22, 26

& n.4 (1988).11 In getting at the potential rub in the relationship

between a Federal Rule of Procedure and the state law, courts now

ask if the federal rule is "sufficiently broad to control the issue

before the court." Shady Grove, 130 S. Ct. at 1451 (Stevens, J.,

concurring) (quoting Walker, 446 U.S. at 749-50). If so, then the

11
This shift was described in our opinion in Gil de Rebollo
v. Miami Heat Ass'ns, Inc., 137 F.3d 56, 65 n.5 (1st Cir. 1998).
One concern motivating the shift was the fact that it "would make
no sense for the supremacy of federal law to wane precisely because
there is no state law directly on point." Stewart Org., Inc. v.
Ricoh Corp., 487 U.S. 22, 26 n.4 (1988). Another concern may well
be that the supremacy of the Federal Rules should not depend only
on whether there is a direct conflict.

-14-
federal rule must be given effect despite the existence of

competing state law so long as the rule complies with the Rules

Enabling Act, 28 U.S.C. § 2072.12 Id.

We conclude that neither Fed. R. Civ. P. 12(b)(6) nor

Fed. R. Civ. P. 56, on a straightforward reading of its language,

was meant to control the particular issues under Section 556 before

the district court. Given this result we do not reach the next

level question as to whether Rules 12(b)(6) and 56 comply with the

Rules Enabling Act.

Our conclusion that Rules 12 (particularly Rule 12(b)(6))

and 56 do not control Section 556 proceedings does not end the

analysis. If a federal rule is not so broad as to control the

issues raised, a federal court might nonetheless decline to apply

state law if so declining would better advance the dual aims of

Erie: "discouragement of forum-shopping and avoidance of

inequitable administration of the laws." Hanna, 380 U.S. at 468;

see also Shady Grove, 130 S. Ct. at 1437; Walker, 446 U.S. at 752-

53. As to this prong of the analysis, we hold that the dual

purposes of Erie are best served by enforcement of Section 556 in

federal court.

12
The caveat exists because "[t]he [Federal] Civil Rules
cannot roam at will." McCoy v. Massachusetts Inst. of Tech., 950
F.2d 13, 21 (1st Cir. 1991). They must relate to practice or
procedure, 28 U.S.C. § 2072(a), and may not "abridge, enlarge, or
modify any substantive right," 28 U.S.C. § 2072(b).

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A. Federal Rules of Civil Procedure 12 and 56 are not
Sufficiently Broad to Control Section 556 Proceedings

The test of whether a federal rule is "sufficiently broad

to control the issue before the court," Walker, 446 U.S. at 749-50,

was most recently examined by the Supreme Court in Shady Grove, 130

S. Ct. 1431. The question presented was whether a New York Rule,

N.Y.C.P.L.R. § 901(b), which prevents parties from bringing class

action lawsuits on claims seeking the minimum measure of recovery

imposed by statute, was preempted by Fed. R. Civ. P. 23 in

diversity cases. Writing for a five member majority, Justice

Scalia concluded that, because § 901(b) "attempts to answer the

same question" as Rule 23, namely, the categorical question of when

a class action may be brought, § 901(b) could not be applied to bar

class actions in federal diversity cases, so long as Rule 23

complies with the Rules Enabling Act. Id. at 1437.

Joined only by three other Justices, Justice Scalia went

on to reason that Rule 23's validity under the Rules Enabling Act

depends entirely on whether it "really regulate[s] procedure,"

which he concluded it did. Id. at 1442 (plurality opinion)

(quoting Sibbach v. Wilson & Co., 312 U.S. 1, 14 (1941)). This

conclusion was reached without any inquiry into whether § 901(b)

was procedural or substantive, as in his view that question "makes

no difference" for Rules Enabling Act purposes. Id. at 1444.

Justice Stevens joined the Court's narrow holding that

Rule 23 was sufficiently broad to preempt § 901(b), and that Rule

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23 complied with the Rules Enabling Act. Id. at 1448 (Stevens, J.,

concurring). But in a concurring opinion, joined in relevant part

by four other Justices, he held that whether a Federal Rule is

valid under the Rules Enabling Act depends not on the Federal Rule

alone, but also on the nature of the state rule it seeks to

displace. Id. at 1452-53. The critical question is not "whether

the state law at issue takes the form of what is traditionally

described as substantive or procedural," but rather "whether the

state law actually is part of a State's framework of substantive

rights or remedies." Id. at 1449. Justice Stevens also noted that

this inquiry under the Rules Enabling Act "may well bleed back"

into the inquiry of whether a Federal Rule is sufficiently broad to

control the issue before the court. Id. at 1452. This is so

because a Federal Rule "cannot govern a particular case in which

the rule would displace a state law that is procedural in the

ordinary use of the term but is so intertwined with a state right

or remedy that it functions to define the scope of the

state-created right." Id. To avoid such a result, the concurrence

concludes, "[w]hen a federal rule appears to abridge, enlarge, or

modify a substantive right, federal courts must consider whether

the rule can reasonably be interpreted to avoid that impermissible

result." Id.

The Court's fractured holding regarding when a Federal

Rule is "sufficiently broad" to control an issue of state law is

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given content by other language used by the Court. The concepts of

congruence, co-extensiveness, difference, and direct or indirect

conflict continue to play a role in the analysis. Shady Grove uses

the language of "potential conflict," "compatible" and "collision

with state law." Id. at 1440-42 (majority opinion). The plurality

also characterizes the first step of the analysis as "determining

whether the federal and state rules can be reconciled (because they

answer different questions)". Id. at 1445 (plurality opinion); see

also id. at 1451 (Stevens, J., concurring) (stating the first step

of the analysis asks whether the federal rule leaves "no room for

the operation of seemingly conflicting state law."). Our own case

law also provides guidance. See Morel v. DaimlerChrysler AG, 565

F.3d 20, 24 (1st Cir. 2009) (asking whether the state rule is

"inconsistent"); Gil de Rebollo v. Miami Heat Ass'ns, Inc., 137

F.3d 56, 65 n.5 (1st Cir. 1998) (asking about "potential

conflict"). And we give the federal rules a literal reading. See

Walker, 556 U.S. at 750 n.9.

We also take some guidance from history. Fed. R. Civ. P.

23.1, which governs shareholder derivative suits, is not so broad

as to cover some state bond requirements for such suits. Cohen,

337 U.S. at 555-57. But the class action Rule 23 is broad enough

to preclude state prohibitions on certain class actions seeking

penalties or statutory minimum damages. Shady Grove, 130 S. Ct. at

1431. It is also commonly accepted that in diversity cases state

-18-
statutes of limitations apply.13 Guaranty Trust Co. v. York, 326

U.S. 99, 110 (1945). And Fed. R. Civ. P. 15(c), governing the

relation back of complaints, displaces an inconsistent state rule.

Morel, 565 F.3d at 24.

Applying these principles to the case before us, we

conclude that Fed. R. Civ. P. 12(b)(6),14 which governs motions to

dismiss on the pleadings, and Fed. R. Civ. P. 56, which governs

motions for summary judgment, are not so broad as to cover the

issues within the scope of Section 556. To use the language of

Shady Grove, Rules 12 and 56 do not "attempt[] to answer the same

question," Shady Grove, 130 S. Ct. at 1437, nor do they "address

the same subject," id. at 1440, as Section 556.

Federal Rules 12(b)(6) and 56 are addressed to different

(but related) subject-matters. Section 556 on its face is not

addressed to either of these procedures, which are general federal

procedures governing all categories of cases. Section 556 is only

addressed to special procedures for state claims based on a

13
As a consequence, state rules that are integral to the
state statute of limitations usually apply in federal court;
federal rules are not so broad as to cover these state rules. See
17A J. Moore et al., Moore's Federal Practice § 124.03[2][a] (3d
ed. 2009). For example, Fed. R. Civ. P. 3, which concerns
commencing an action in federal court, is not broad enough to
control state laws integral to the limitations issue. See Walker,
446 U.S. at 751-52.
14
Our analysis with regard to Rule 12(b)(6) applies with
equal force to Rule 12(c), which Godin also asserts preempts
Section 556. See Fed. R. Civ. P. 12(c).

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defendant's petitioning activity. In contrast to the state statute

in Shady Grove, Section 556 does not seek to displace the Federal

Rules or have Rules 12(b)(6) and 56 cease to function. Cf. Morel,

565 F.3d at 24. In addition, Rules 12(b)(6) and 56 do not purport

to apply only to suits challenging the defendants' exercise of

their constitutional petitioning rights. Maine itself has general

procedural rules which are the equivalents of Fed. R. Civ. P.

12(b)(6) and 56. See Me. R. Civ. P. 12; Me. R. Civ. P. 56. That

fact further supports the view that Maine has not created a

substitute to the Federal Rules, but instead created a supplemental

and substantive rule to provide added protections, beyond those in

Rules 12 and 56, to defendants who are named as parties because of

constitutional petitioning activities.

Rule 12(b)(6) serves to provide a mechanism to test the

sufficiency of the complaint. See Iqbal v. Ashcroft, 129 S. Ct.

1937, 1949 (2009). Section 556, by contrast, provides a mechanism

for a defendant to move to dismiss a claim on an entirely different

basis: that the claims in question rest on the defendant's

protected petitioning conduct and that the plaintiff cannot meet

the special rules Maine has created to protect such petitioning

activity against lawsuits.

The federal summary judgment rule, Rule 56, creates a

process for parties to secure judgment before trial on the basis

that there are no disputed material issues of fact, and as a matter

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of law, one party is entitled to judgment. Inherent in Rule 56 is

that a fact-finder's evaluation of material factual disputes is not

required. But Section 556 serves the entirely distinct function of

protecting those specific defendants that have been targeted with

litigation on the basis of their protected speech. When

applicable, Section 556 requires a court to consider whether the

defendant's conduct had a reasonable basis in fact or law, and

whether that conduct caused actual injury. Fed. R. Civ. P. 56

cannot be said to control those issues.

Section 556 has both substantive and procedural aspects.

One of the substantive aspects of Section 556 shifts the burden to

plaintiff to defeat the special motion. Section 556 also

determines the scope of plaintiff's burden, requiring plaintiff to

demonstrate that the defendant's activity "(1) was without

'reasonable factual support,' and (2) was without an 'arguable

basis in law.'" Schelling, 942 A.2d at 1229 (quoting Me. Rev.

Stat. tit. 14, § 556). Further, Section 556 substantively alters

the type of harm actionable--that is, plaintiff must show the

defendant's conduct "resulted in 'actual injury' to the plaintiff."

Id. (quoting Me. Rev. Stat. tit. 14, § 556).15

15
In addition, Section 556 allows courts to award
attorney's fees and costs to a defendant that successfully brings
a special motion to dismiss, a statutory element we have previously
determined to be substantive. See Servicios Comerciales Andinos,
S.A., 145 F.3d at 478.

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 Neither Fed. R. Civ. P. 12(b)(6) nor Fed. R. Civ. P. 56

determines which party bears the burden of proof on a state-law

created cause of action. See, e.g., Coll v. PB Diagnostic Syst.,

Inc., 50 F.3d 1115, 1121 (1st Cir. 1995). And it is long settled

that the allocation of burden of proof is substantive in nature and

controlled by state law. Palmer v. Hoffman, 318 U.S. 109, 117

(1943); Am. Title Ins. Co. v. E. W. Fin. Corp., 959 F.2d 345, 348

(1st Cir. 1992).

Further, Section 556 provides substantive legal defenses

to defendants and alters what plaintiffs must prove to prevail. It

is not the province of either Rule 12 or Rule 56 to supply

substantive defenses or the elements of plaintiffs' proof to causes

of action, either state or federal.16

Because Section 556 is "so intertwined with a state right

or remedy that it functions to define the scope of the

state-created right," it cannot be displaced by Rule 12(b)(6) or

Rule 56. Shady Grove, 130 S. Ct. at 1452 (Stevens, J.,

concurring). Further, if Rules 12(b)(6) and 56 were thought to

16
The similarities between Section 556 and Rules 12 and 56
as mechanisms to efficiently dispose with meritless claims before
trial occurs does not resolve the issue. Such an abstracted
framing of the breadth of the Federal Rules is inappropriate. See
Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 130 S.
Ct. 1431, 1441 n.7 (2010) (embracing the suggestion that Federal
Rules should be read "to avoid 'substantial variations [in
outcomes] between state and federal litigation'") (alteration in
original) (quoting Semtek Int'l Inc., v. Lockheed Martin Corp., 531
U.S. 497, 504 (2001)).

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preempt application of all of Section 556, a serious question might

be raised under the Rules Enabling Act. Id. In light of our

conclusion that Section 556 is not displaced, we need not reach

this issue.

Given that neither Fed. R. Civ. P. 12(b)(6) nor Fed. R.

Civ. P. 56 is so broad as to encompass the special Section 556

proceedings, we might go no further. We do acknowledge the

district court's concern about some differences in the mechanics,

particularly as to the record on which the motion is evaluated.

Whether the procedures outlined in Section 556 will in fact depart

from those of Rule 12 and Rule 56 will depend on the particulars in

a given case of the claim and defense. Some Section 556 motions,

like Rule 12(b)(6) motions,17 will be resolved on the pleadings.

In other cases, Section 556 will permit courts to look beyond the

pleadings to affidavits and materials of record, as Rule 56 does.

In this way, some Section 556 motions, depending on the particulars

of a case, will be resolved just as summary judgment motions under

Fed. R. Civ. P. 56 are.

Godin emphasizes that Section 556 has the potential in a

particular case to give the individual defendants a dispositive

ruling without affording discovery, thus bringing Section 556 in

17
Even in assessing 12(b)(6) motions, the scope of
materials considered depends somewhat on the particular case. For
example, courts can take account of materials outside the pleadings
if they are undisputed matters of public record. See In re
Colonial Mortg. Bankers Corp., 324 F.3d 12, 19 (1st Cir. 2003).

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conflict with Fed. R. Civ. P. 56. Cf. Metabolife, 264 F.3d at 845-

47. Godin has not shown any actual conflict. While Section 556

provides that discovery proceedings are stayed upon the filing of

a special motion to dismiss, the statute also provides that a court

may, upon good cause shown, order that specific discovery be

conducted. Me. Rev. Stat. tit. 14, § 556. The Maine statute, in

imposing on the opponent of the motion the burden of justifying

discovery, is consistent with the allocation of burdens under Rule

56(d), formerly Rule 56(f).18 If a federal court would allow

discovery under Fed. R. Civ. P. 56(d) then, in our view, that would

constitute good cause under the Maine statute.

The limiting effect that Section 556 has on discovery is

not materially different from the effect of Rule 12 proceedings

and, in some instances, Rule 56 proceedings. Neither Rule 12 nor

Rule 56 of the federal rules of procedure purport to be so broad as

to preclude additional mechanisms meant to curtail rights-dampening

litigation through the modification of pleading standards. The

Private Securities Litigation Reform Act of 1995 ("PSLRA"), Pub. L.

No. 104-67, 109 Stat. 737, is a federal version of such an

additional mechanism to the Federal Rules, meant to apply to a

discrete category of cases. "Designed to curb perceived abuses of

18
Fed. R. Civ. P. 56 was amended, effective December 1,
2010. The substance of the rule has not materially changed. We
find it just and practicable to cite the new rule. See Silva v.
Witschen, 19 F.3d 725, 727-29 (1st Cir. 1994); Freund v. Fleetwood
Enters., Inc., 956 F.2d 354, 363 (1st Cir. 1992).

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the § 10(b) private action," the PSLRA created a higher standard

for pleading scienter in any § 10(b) claim.19 Tellabs, Inc. v.

Makor Issues & Rights, Ltd., 551 U.S. 308, 320, 321 (2007). We

recognize that the fact that Congress may create special procedures

in addition to those under the Federal Rules does not itself mean

that the Federal Rules would not displace a similar state-law

special procedure. See Shady Grove, 130 S. Ct. at 1438. Still,

the existence of the PSLRA provides some support to our conclusion

that Congress, in approving Rules 12 and 56, did not intend to

preclude special rules designed to make it more difficult to bring

certain types of actions where state law defines the cause of

action.

In sum, "there is no indication that Rules . . . 12 and

56 were intended to 'occupy the field' with respect to pretrial

procedures aimed at weeding out meritless claims." Newsham, 190

F.3d at 972; see also Henry, 566 F.3d at 169-70 (enforcing

Louisiana's anti-SLAPP statute in federal court). Rather, Rules 12

and 56 "can exist side by side" with Section 556, "each controlling

its own intended sphere of coverage without conflict." Newsham,

19
"Under the PSLRA's heightened pleading instructions, any
private securities complaint alleging that the defendant made a
false or misleading statement must: (1) 'specify each statement
alleged to have been misleading [and] the reason or reasons why the
statement is misleading' . . . and (2) 'state with particularity
facts giving rise to a strong inference that the defendant acted
with the required state of mind.'" Tellabs, Inc., 551 U.S. at 321
(citing 15 U.S.C. § 78u-4(b)).

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190 F.3d at 972 (quoting Walker, 446 U.S. at 752) (internal

quotation marks omitted).

B. Declining to Apply Section 556 in Federal Court Would
Disserve the Dual Aims of Erie

Here, application of Section 556 would best serve the

"'twin aims of the Erie rule: discouragement of forum shopping and

inequitable administration of the laws.'" Commercial Union Ins.

Co. v. Walbrook Ins. Co., 41 F.3d 764, 773 (quoting Stewart, 487

U.S. at 27 n.6 (1988)). "If application of federal law would

disserve these two policies, state law applies." Id.

Plainly, Section 556 substantively alters Maine-law

claims that are based on a defendant's protected petitioning

activity by shifting the burden to the plaintiff and altering the

showing the plaintiff must make. Me. Rev. Stat. tit. 14, § 556.

Section 556 also allows courts to award attorney's fees to

prevailing defendants, and alters the traditional common-law rule

that, in libel cases, a plaintiff need not demonstrate specific

damages to recover on a claim, as alleging "damages per se" does

not satisfy Section 556's actual injury standard. See Schelling,

942 A.2d at 1232 (citing Restatement (Second) of Torts § 569, cmt.

b (1977)).

Declining to apply Section 556 in federal court would

thus result in an inequitable administration of justice between a

defense asserted in state court and the same defense asserted in

federal court. See Commercial Union Ins. Co., 41 F.3d at 773.

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Likewise, were Section 556 not to apply in federal court, the

incentives for forum shopping would be strong: electing to bring

state-law claims in federal as opposed to state court would allow

a plaintiff to avoid Section 556's burden-shifting framework, rely

upon the common law's per se damages rule, and circumvent any

liability for a defendant's attorney's fees or costs.

IV.

Because neither Fed. R. Civ. P. 12(b)(6) nor Fed. R. Civ.

P. 56 is sufficiently broad to control the issues raised by the

individual defendants' Section 556 special motion, we conclude the

district court erred in denying the motion on the basis that

Section 556 was displaced. Holding to the contrary would deprive

the individual defendants of Section 556 protection solely on

account of the fact that they are joined as defendants in this

litigation with Machiasport and the Union, against whom federal

claims are raised. Such an outcome would directly contravene

Erie's aims.

We reverse the district court's order, and remand so that

the district court may consider the merits of the individual

defendants' special motion to dismiss under Section 556 in the

first instance. No costs are awarded

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