UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
3M COMPANY,
Plaintiff,
v. Civil Action No. 11-cv-1527 (RLW)
BOULTER, et al.
Defendants.
AMENDED MEMORANDUM OPINION AND ORDER
This matter is before the Court on the Special Motion to Dismiss Pursuant to the District
of Columbia Anti-SLAPP Act filed by Harvey Boulter (Dkt. No. 87). The parties had previously
stipulated that this motion be held in abeyance pending a decision of the interlocutory appeal
filed by defendants Lanny J. Davis, Lanny J. Davis & Associates, PLLC, Davis-Block LLC, and
intervenor the District of Columbia. (Dkt. No. 89). The Court initially agreed to hold the motion
in abeyance (Dkt. No. 90), but upon further review, the Court finds that to properly manage its
docket, the motion should be ruled upon and closed rather than left pending for an indefinite
period.1
As explained in this Court’s prior opinion, the District of Columbia Anti-SLAPP statute
may not apply in federal court if a federal rule “answers the question in dispute.” 3M Co. v.
Boulter, 842 F. Supp. 2d 85, 94 (D.D.C. 2012) (quoting Shady Grove Orthopedic Assocs. v.
Allstate Ins. Co., 130 S.Ct. 1431, 1437 (2010) (citation omitted)). After a thorough examination
of the history and text of Rules12(d) and 56 of the Federal Rules of Civil Procedure, the advisory
1
While the Court recently granted Boulter’s motion to dismiss for lack of personal jurisdiction,
the instant motion is not moot because the plaintiff may yet appeal that dismissal, which could
result in a reinstatement of the claims against Boulter. In addition, while the Davis defendants
have dismissed their interlocutory appeal, the District of Columbia’s appeal is still pending.
1
committee notes to those rules and the precedent of this Circuit, this Court held
that the text and structure of Rules 12 and 56 were intended to
create a system of federal civil procedure requiring notice pleading
by plaintiffs, whereby a federal court may dismiss a case when the
plaintiff fails to plead sufficiently detailed and plausible facts to
state a valid claim, but a federal court may not dismiss a case
without a trial based upon its view of the merits of the case after
considering matters outside of the pleadings, except in those
instances where summary judgment under Rule 56 is appropriate.
These are bedrock principles of the Federal Rules of Civil
Procedure.
3M Co. v. Boulter, 842 F. Supp. 2d at 106. Put another way, “[a] motion for summary judgment
is the only pretrial motion that allows the court to consider evidence outside the pleadings (a
‘speaking’ motion) in evaluating the merits of the case.” William W. Schwarzer, A. Wallace
Tashima & James M. Wagstaffe, RUTTER GROUP PRACTICE GUIDE: FEDERAL CIVIL PROCEDURE
BEFORE TRIAL, § 14:24 (The Rutter Group 2012). The Supreme Court has made it quite clear
that Rule 56 sets the outer boundary for dismissing claims on the merits based upon a pretrial
evaluation of the evidence; to go further infringes upon the Seventh Amendment right to a jury
trial. Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627-28 (1944) (“the purpose of [Rule
56] is not to cut litigants off from their right of trial by jury if they really have issues to try”; this
is so even if “[i]t may well be that the weight of the evidence would be found on a trial to be with
defendant”); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986) (on summary judgment,
“the judge must ask himself not whether he thinks the evidence unmistakably favors one side or
the other but whether a fair-minded jury could return a verdict for the plaintiff on the evidence
presented.”); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986) (noting similarities between
summary judgment and a motion for a directed verdict, citing Anderson v. Liberty Lobby). Thus,
Rule 56 provides the answer to the question in dispute, and applying a local statute that requires
dismissal unless the trial court finds that the plaintiff “demonstrates that the claim is likely to
2
succeed on the merits” (D.C. Code § 16-5502(b)) is irreconcilable with Rule 56 or the precedent
from the Supreme Court and this Circuit construing it.
Just as it is clear that the federal rules answer the question in dispute, it is also clear that
the District of Columbia Anti-SLAPP law is not a substantive protection that is akin to the
defense of immunity, as Boulter claims. In this case, the plaintiff brought common law claims of
Intimidation/Blackmail and tortious interference with existing and prospective business
advantage, and all of the defendants contended or conceded that both of these claims were
governed by the laws of the United Kingdom. See Dkt. No. 9 at 36-38; Dkt. No. 31-3 at 27-30;
Dkt. No. 50 at 17; Dkt. No. 51-2 at 6-7, 8-9. Nonetheless, the defendants and the District of
Columbia Attorney General contend that the local Anti-SLAPP statute applies to these English
law claims, even though it is blackletter law that if foreign law applies to define the scope of the
tort, then the same foreign law also defines the scope of the defenses to that tort. RESTATEMENT
(SECOND) OF CONFLICT OF LAWS § 161 (“The law selected by application of § 145 [the tort
conflict of laws rule2] determines what defense to the plaintiff's claim may be raised on the
merits.”); 16 AM. JUR. 2d Conflict of Laws § 129 (“the law selected by application of the section
of the Restatement which sets forth the general principles applicable in tort actions determines
which defenses may be raised on the merits”) (footnotes omitted). The defendants and the
Attorney General never explain how the local Anti-SLAPP law is “a means of defining the scope
of substantive rights or remedies[,]” Shady Grove, 130 S.Ct. at 1450 (Stevens, J., concurring), for
the common law Intimidation/Blackmail and tortious interference causes of action, when they
concede that English law defines the scope of substantive rights and remedies of those claims.
The Court is certainly not aware of any logical explanation for such a result.
2
Section 145 of the Restatement is followed in the District of Columbia. See, e.g., Doe v.
Exxon Mobil Corp., 654 F.3d 11, 69 (D.C. Cir. 2011).
3
Nonetheless, even if the Anti-SLAPP law could be fairly construed as a state law creating
a substantive immunity to be decided by the trial judge, it is well settled that “the right to a jury
trial in the federal courts is to be determined as a matter of federal law in diversity [cases],” even
if “the substantive dimension of the claim asserted finds its source in state law,” because the
“federal policy favoring jury trials is of [such] historic and continuing strength.” Simler v.
Conner, 372 U.S. 221, 222 (1963) (per curiam) (holding that state statute defining issue as an
equitable one to be decided by the judge was inapplicable in a federal diversity action due to the
federal right to a jury trial). Accordingly, the Supreme Court has held that a state statute
mandating that a state-created immunity be decided by the judge, rather than the jury, was
inapplicable in a federal diversity action. Byrd v. Blue Ridge Rural Elec. Co-op., Inc., 356 U.S.
525 (1958). See generally, 9 Charles Alan Wright & Arthur R. Miller, Federal Practice and
Procedure § 2303, 103-13 (3d ed.2008). Rule 56 simply trumps any state Anti-SLAPP law that
requires a trial judge to resolve disputed factual issues and decide a case on the merits prior to
trial, because “[a]n essential characteristic of [the federal] system is the manner in which, in civil
common-law actions, it distributes trial functions between judge and jury and, under the
influence—if not the command—of the Seventh Amendment, assigns the decisions of disputed
questions of fact to the jury.” Byrd, 356 U.S. at 537.
IT IS THEREFORE ORDERED that the Special Motion to Dismiss Pursuant to the
District of Columbia Anti-SLAPP Act filed by Harvey Boulter (Dkt. No. 87) is DENIED.
Digitally signed by Judge Robert L.
SO ORDERED. Wilkins
DN: cn=Judge Robert L. Wilkins,
o=U.S. District Court, ou=Chambers
of Honorable Robert L. Wilkins,
email=RW@dc.uscourt.gov, c=US
Date: October 24, 2012 Date: 2012.10.24 09:34:51 -04'00'
ROBERT L. WILKINS
United States District Judge
4