FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
GREENSPRINGS BAPTIST CHRISTIAN
FELLOWSHIP TRUST,
Plaintiff-Appellee,
v. No. 09-16924
JAMES P. CILLEY; MARK A. D.C. No.
3:09-cv-01054-SC
SCHMUCK, individuals; TIMMERMAN
CILLEY & KOHLMANN LLP, a OPINION
California limited liability
partnership,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of California
Samuel Conti, District Judge, Presiding
Argued and Submitted
October 8, 2010—San Francisco, California
Filed December 27, 2010
Before: Stephen Reinhardt and Marsha S. Berzon, Circuit
Judges, and Louis H. Pollak, Senior District Judge.*
Opinion by Judge Pollak
*The Honorable Louis H. Pollak, Senior United States District Judge
for the Eastern District of Pennsylvania, sitting by designation.
20653
GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY 20655
COUNSEL
Carleton L. Briggs (argued), Law Offices of Carleton L.
Briggs, Santa Rosa, California, and James E. Rice, Caldwell,
Idaho, for the plaintiff-appellee.
Daniel W. Hager (argued) and Russell S. Roeca, Roeca Haas
Hager LLP, San Francisco, California, for the defendants-
appellants.
OPINION
POLLAK, District Judge:
This diversity case traces back to 2000 when gifts were
sought to be made by Elsie Terchen to Greensprings Baptist
Christian Fellowship Trust (“Greensprings”) and also to two
20656 GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY
daughters of Barbara and Robert Miller. Conveyances of cer-
tain properties were made to Greensprings, but the planned
gift of a house to the Miller daughters was not accomplished
prior to Terchen’s death on December 10, 2000. In the years
that followed, the Millers and Greensprings became adversar-
ies with respect to the Millers’ claim that they were entitled
to $500,000 from Greensprings. The details of the ensuing
controversy have no bearing on the issues to be addressed in
this opinion. Suffice it to say that the first stage of the current
litigation commenced in 2007 in the form of a suit com-
menced by the Millers against Greensprings in a California
state court and then removed by Greensprings to the United
States District Court for the Northern District of California.
Miller v. Greensprings Baptist Christian Fellowship Trust,
No. 07-cv- 4776 (N.D. Cal. 2008). The Miller suit was dis-
missed.
Thereupon Greensprings brought the current suit—a suit
for malicious prosecution—against the Millers and the attor-
neys who had represented the Millers in Miller v. Green-
springs (“Attorney defendants”). The Millers and the
Attorney defendants moved to strike Greensprings’s com-
plaint pursuant to California’s statute providing for a special
motion to strike so-called strategic lawsuits against public
participation. See Cal. Civ. Proc. Code § 425.16 (the “anti-
SLAPP” statute). Portions of that statute apply in federal
diversity actions. See United States ex rel. Newsham v. Lock-
heed Missiles & Space Co., 190 F.3d 963, 973 (9th Cir.
1999); Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845-46
(9th Cir. 2001). The district court granted the anti-SLAPP
motion to dismiss the complaint, finding that Greensprings
did not offer sufficient evidence that the Millers and the
Attorney defendants had subjective malice towards Green-
springs. However, “in light of the policy favoring liberal
amendment of claims embodied by Rule 15(a) of the Federal
Rules of Civil Procedure,” the district court granted Green-
springs “leave to amend its complaint if it believes that it can
make a successful showing of malice.”
GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY 20657
Appellants in this court are solely the Attorney defendants;
the Millers have arrived at a settlement with Greensprings and
have therefore been dismissed. The Attorney defendants argue
that the district court erred by granting Greensprings leave to
amend its complaint pursuant to Rule 15(a). We do not reach
the merits of their argument, because we hold that we lack
jurisdiction to entertain this appeal.1
1
We note that the Attorney defendants’ contention on the merits appears
to have already been rejected by this court. The Attorney defendants argue
that the federal courts should follow California law, which generally pro-
hibits granting the plaintiff leave to amend its complaint following the
grant of an anti-SLAPP motion, rather than Rule 15(a). In Verizon Del.
Inc. v. Covad Commc’ns Co., we held that “granting a defendant’s anti-
SLAPP motion to strike a plaintiff’s initial complaint without granting the
plaintiff leave to amend would directly collide with Fed. R. Civ. P. 15(a)’s
policy favoring liberal amendment.” 377 F.3d 1081, 1091 (9th Cir. 2004).
In Steel Co. v. Citizens for a Better Environment, the Supreme Court
explained that federal courts ordinarily may not sidestep a difficult juris-
dictional question on the ground that the party alleging the existence of
jurisdiction would, if jurisdiction existed, lose on the merits. 523 U.S. 83,
93-95 (1998). Some circuits have read Steel Co. as acknowledging the
existence of some exceptions to its general rule, among them that courts
may pretermit a difficult jurisdictional question if squarely controlling pre-
cedent would, if jurisdiction existed, “foreordain” the decision on the mer-
its against the party alleging the existence of jurisdiction. See Ctr. for
Reprod. Law & Policy v. Bush, 304 F.3d 183, 194-95 (2d Cir. 2002); Seale
v. I.N.S., 323 F.3d 150, 154-57 (1st Cir. 2003); Starkey v. Boulder Cnty.
Soc. Servs., 569 F.3d 1244, 1260-62 (10th Cir. 2009); see also Steel Co.,
523 U.S. at 98-101 (acknowledging that the Supreme Court’s own prece-
dents have “diluted” the “purity” of the rule that jurisdiction is always an
antecedent question, including in some cases where the ultimate resolution
of the merits question would be “foreordained” if jurisdiction existed).
The Ninth Circuit appears not to have addressed the existence or the
scope of such an exception to the general rule that jurisdictional questions
must be decided first. We need not do so now: Nothing in Steel Co. bars
a court from addressing a thorny threshold jurisdictional question, even if
the merits question lends itself to straightforward resolution.
We further note that Greensprings argues that this appeal is now moot
because an amended complaint and renewed motion to strike have now
been filed in the district court. However, after Greensprings’s brief was
filed, the district court denied the renewed motion without prejudice and
stayed the action pending the resolution of this appeal. Thus, there is still
a live controversy concerning the district court’s order.
20658 GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY
I.
A.
[1] By statute, we have jurisdiction to review “final deci-
sions” on the merits entered by the district courts. 28 U.S.C.
§ 1291; Cassirer v. Kingdom of Spain, 616 F.3d 1019, 1024
(9th Cir. 2010). Under the collateral order doctrine, we may
also review “a ‘small class’ of rulings, not concluding the liti-
gation, but conclusively resolving ‘claims of right separable
from, and collateral to, rights asserted in the action.’ ” Will v.
Hallock, 546 U.S. 345, 349 (2006) (quoting Behrens v. Pelle-
tier, 516 U.S. 299, 305 (1996)). Immediate appeals of such
orders “do not go against the grain of § 1291, with its object
of efficient administration of justice in the federal courts.”
Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863,
868 (1994) (citing Richardson-Merrell, Inc. v. Koller, 472
U.S. 424 (1985)).
[2] The Supreme Court has identified three requirements
for collateral order appeal: the order must “ ‘[1] conclusively
determine the disputed question, [2] resolve an important
issue completely separate from the merits of the action, and
[3] be effectively unreviewable on appeal from a final judg-
ment.’ ” Will, 546 U.S. at 349 (quoting Puerto Rico Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993)). All three requirements must be met for a court to
exercise jurisdiction under the collateral order doctrine. McEl-
murry v. U.S. Bank Nat’l Ass’n, 495 F.3d 1136, 1140 (9th Cir.
2007) (citing Stringfellow v. Concerned Neighbors in Action,
480 U.S. 370, 375 (1987)). These conditions are “stringent,”
and the Supreme Court has “repeatedly stressed that the ‘nar-
row’ exception should stay that way and never be allowed to
swallow the general rule . . . that a party is entitled to a single
appeal, to be deferred until final judgment has been entered.”
Digital Equip., 511 U.S. at 868 (quoting Richardson-Merrell,
472 U.S. at 436); see also Will, 546 U.S. at 350 (“[W]e have
GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY 20659
not mentioned applying the collateral order doctrine recently
without emphasizing its modest scope.”).
[3] We have not previously addressed the jurisdictional
question presented in this case: whether an order granting a
motion to strike under California’s anti-SLAPP statute with
leave to amend is immediately appealable under the collateral
order doctrine. In Batzel v. Smith, however, this court
answered the related question of whether the denial of an anti-
SLAPP motion to strike is immediately appealable as a collat-
eral order. 333 F.3d 1018 (9th Cir. 2003). In Batzel, we found
that all three conditions for collateral appeal were satisfied
because the denial of an anti-SLAPP motion (1) is “conclu-
sive as to whether the anti-SLAPP statute required dismissal
of Batzel’s suit”; (2) “resolves a question separate from the
merits in that it merely finds that such merits may exist, with-
out evaluating whether the plaintiff’s claim will succeed”; and
(3) forces a defendant “to incur the cost of a lawsuit before
having his or her right to free speech vindicated.” Id. at 1025.
Accordingly, we held that we possessed jurisdiction.
After Batzel, the Supreme Court decided Will v. Hallock,
which held that the collateral order doctrine does not apply to
a defendant’s claim that a district court failed to enforce the
judgment bar to further litigation under the Federal Tort
Claims Act. 546 U.S. 345 (2006). In the wake of Will, we
have continued to rely upon Batzel for the proposition that we
have jurisdiction over appeals of denials of motions to strike
under California’s anti-SLAPP statute. See Mindys Cosmetics,
Inc. v. Dakar, 611 F.3d 590, 595 (9th Cir. 2010); Hilton v.
Hallmark Cards, 599 F.3d 894, 900 (9th Cir. 2010); Zamani
v. Carnes, 491 F.3d 990, 994 (9th Cir. 2007). At the same
time, we have also recently held that the collateral order doc-
trine does not apply to the denial of a motion to strike brought
under Oregon’s anti-SLAPP statute. Englert v. MacDonell,
551 F.3d 1099, 1107 (9th Cir. 2009).2
2
In distinguishing Batzel, Englert focused on the fact that—unlike Cali-
fornia’s anti-SLAPP statute—Oregon’s anti-SLAPP statute does not pro-
20660 GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY
[4] The Attorney defendants argue that the rule in Batzel
should be extended to provide for jurisdiction in this case.
Greensprings urges this court to reconsider Batzel, suggesting
that “even if Batzel was correctly decided, it is likely incon-
sistent” with Will’s analysis of the third (“effectively unre-
viewable”) prong of the collateral order test. Appellee’s Br. at
22. But even if Will “undercut the theory or reasoning under-
lying [Batzel] in such a way that the cases are clearly irrecon-
cilable,” see Miller v. Gammie, 335 F.3d 889, 900 (9th Cir.
2003) (en banc), this three-judge panel could still not overrule
Batzel because, as we have noted, this court has repeatedly
relied on and applied Batzel’s central holding since the
Supreme Court’s decision in Will. In any case, whether Will
is inconsistent with Batzel is beside the point: we need not
reach the portion of Batzel allegedly inconsistent with Will
(the third prong of the collateral order doctrine test), because
we conclude that this appeal—from an order granting a defen-
dant’s anti-SLAPP motion but permitting the plaintiff leave to
amend its complaint—fails the first prong of the collateral
order test, which requires that an order “conclusively deter-
mine the disputed question.” Will, 546 U.S. at 349.
B.
An order dismissing a case with leave to amend may not be
appealed as a final decision under § 1291. WMX Techs., Inc.
vide for collateral appeal:
The failure of the Oregon Legislature to provide for an appeal
from the denial of a special motion to strike provides compelling
evidence that, unlike their California counterparts, Oregon law-
makers did not want “to protect speakers from the trial itself,” as
much as they wanted to have in place a process by which a nisi
prius judge would promptly review the evidence underlying the
defamation complaint to determine whether it had sufficient merit
to go forward.
Id. at 1106 (quoting Batzel, 333 F.3d at 1025). Thus, Englert concluded
that the Oregon anti-SLAPP statute was “comparable to a motion for sum-
mary judgment,” the denial of which is “not generally appealable under
the collateral order doctrine.” Id. at 1105 (citing Digital Equip., 511 U.S.
at 873).
GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY 20661
v. Miller, 104 F.3d 1133, 1136-37 (9th Cir. 1997) (en banc);
Santoro v. CTC Foreclosures Svcs. Corp., 193 F.3d 1106,
1107 (9th Cir. 1999). However, under certain limited circum-
stances we have found that orders granted with leave to
amend may be appealed immediately under the collateral
order doctrine. See Does I thru XXIII v. Advanced Textile
Corp., 214 F.3d 1058 (9th Cir. 2000) (permitting immediate
appeal of district court order dismissing complaint brought by
anonymous plaintiffs and granting them leave to amend with
their true names). In this case, we consider whether we pos-
sess jurisdiction to entertain an appeal from an order granting
a plaintiff leave to amend its complaint following the granting
of a defendant’s anti-SLAPP motion.
In analyzing whether an order “conclusively determined the
disputed question,” the Supreme Court has distinguished two
types of non-final orders: those that are “ ‘inherently tenta-
tive’ ” and those that “although technically amendable, are
‘made with the expectation that they will be the final word on
the subject addressed.’ ” Gulfstream Aerospace Corp. v.
Mayacamas Corp., 485 U.S. 271, 277 (1988) (quoting Moses
H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1,
12 n.14 (1983)). Although all interlocutory orders are techni-
cally amendable under Rule 54(b),3 an order will not be con-
sidered “inherently tentative” for purposes of collateral order
analysis unless “a district court ordinarily would expect to
reassess and revise such an order in response to events occur-
ring ‘in the ordinary course of litigation.’ ” Id. (quoting Cone
Mem’l Hosp., 460 U.S. at 13 n.14).
[5] Batzel held that the denial of an anti-SLAPP motion to
strike is “conclusive as to whether the anti-SLAPP statute
require[s] dismissal.” 333 F.3d at 1025. In the language of
3
See Fed. R. Civ. P. 54(b) (providing that “any order . . . that adjudi-
cates fewer than all the claims or the rights and liabilities of fewer than
all the parties . . . may be revised at any time before the entry of a judg-
ment adjudicating all the claims”).
20662 GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY
Gulfstream, the denial of an anti-SLAPP motion is expected
to be “the final word” on whether the statute’s requirements
are met. 485 U.S. at 277. By contrast, the grant of an anti-
SLAPP motion with leave to amend is not “made with the
expectation that [it] will be the final word” on the applicabil-
ity of the statute. Id. In this case, for example, by granting
leave to amend, the district court invited Greensprings to sub-
mit additional evidence that the Attorney defendants were
motivated by malice—evidence which would, in turn, permit
the court to reassess the propriety of granting the anti-SLAPP
motion.
The Attorney defendants attempt to get around the inherent
tentativeness of an order granted with leave to amend by char-
acterizing the order as one that “conclusively determined the
disputed question of whether, after being found to have
brought a meritless SLAPP suit, Greensprings is nevertheless
entitled to . . . an opportunity to amend.” Appellants’ Br. at
7. On this view, the “disputed question” in the district court’s
order was not whether the anti-SLAPP statute requires dis-
missal of the malicious prosecution action, but instead
whether granting leave to amend is itself appropriate.
This attempt to re-characterize the order as conclusive by
shifting the focus from the order’s subject—whether the anti-
SLAPP statute applies—to the order’s form—whether leave
to amend is appropriate—is unconvincing and inconsistent
with our precedents. In Does, which the Attorney defendants
attempt to invoke for support, anonymous plaintiffs, who
feared retaliation if they revealed their true names, appealed
an order granting a motion to dismiss their case with leave to
amend their complaint to include their true names pursuant to
Fed. R. Civ. P. 10(a). This court held that it had jurisdiction
to hear their appeal under the collateral order doctrine, find-
ing, with respect to conclusiveness, that “nothing in the dis-
trict court’s order suggests that the district court will
reconsider its ruling that plaintiffs may not litigate this case
under fictitious names.” 214 F.3d at 1066. Thus, in Does the
GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY 20663
disputed question on appeal was whether the plaintiffs could
sue anonymously, not simply whether the district court could
grant leave to amend.
Moreover, as a practical matter, the district court’s decision
in Does was final: plaintiffs faced the prospect of either
amending their complaint to include their true names or
allowing a final judgment to be entered against them from
which they could appeal the anonymity issue—a strategy that,
if unsuccessful, would forfeit their right to file a case under
their real names. In the present case, by contrast, the Attorney
defendants do not face any similar “Catch-22,” id. at 1067,
since they were the successful party on the motion below and
appellee Greensprings is the party that must amend its com-
plaint.
The Attorney defendants’ focus on an order’s form rather
than its substance is likewise inconsistent with how our prece-
dents have characterized the “disputed question” at issue in
other collateral order appeals. See, e.g., Confederated Salish
v. Simonich, 29 F.3d 1398, 1403 (9th Cir. 1994) (“Here, the
district court refused to abstain under [Younger v. Harris, 401
U.S. 37 (1971)]. This was a conclusive determination of the
particular issue in dispute—whether to abstain under Youn-
ger.”).
The Attorney defendants point to no precedent in which the
only disputed question for purposes of collateral order appeal
was the propriety of granting leave to amend. We have been
unable to locate any such precedent from our own caselaw or
that of our sister circuits, and we decline to embrace an inter-
pretation of the first prong of the collateral order test so at
odds with the Supreme Court’s strong emphasis on the “strin-
gent” nature of the test. Will, 546 U.S. at 349 (quoting Digital
Equip., 511 U.S. at 868).
II
[6] Accordingly, we hold that we lack jurisdiction under
the collateral order doctrine to entertain an appeal from the
20664 GREENSPRINGS BAPTIST CHRISTIAN v. CILLEY
portion of a district court’s order granting a defendant’s anti-
SLAPP motion which gives a plaintiff leave to amend her
complaint. We do not reach the merits of the Attorney defen-
dants’ claim that the district court erred by applying Rule
15(a) rather than California state law.
DISMISSED AND REMANDED.