14‐3925‐cv(L)
Ernst v. Carrigan
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
August Term, 2015
(Argued: November 9, 2015 Decided: February 22, 2016)
Docket Nos. 14‐3925‐cv(L); 14‐4025(XAP); 14‐4171(CON)
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BARBARA ERNST, BARBARA SUPENO,
Plaintiffs‐Appellees‐Counter‐
Defendants‐Cross‐Appellants
‐ v.‐
JOHN CARRIGAN, LINDA CARRIGAN,
Defendants‐Appellants‐
Cross‐Appellees,
JEFF KAUFFMAN, BARBARA KAUFFMAN,
Defendants‐Appellants‐
Counter‐Claimants‐
Cross‐Appellees,
TOWN OF ADDISON,
Defendant.
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Before: JACOBS, LEVAL, and LYNCH, Circuit Judges.
Feuding over local governance matters in Addison, Vermont led two
couples to write, distribute, and vocalize allegedly defamatory statements about
a third couple. A suit for defamation (among other claims) was countered by
special motions to strike under Vermont’s anti‐SLAPP statute, which the district
court granted in part and denied in part. The threshold issue is whether we
have appellate jurisdiction over the district court’s order passing on the merits of
the defendants’ special motions to strike under Vermont’s anti‐SLAPP statute.
We conclude that interlocutory appeals of such orders do not fall within the
collateral order doctrine, and accordingly determine that we lack jurisdiction
over this appeal.
Dismissed for lack of appellate jurisdiction.
DAVID BOND, Law Office of David Bond,
PLLC, Burlington, VT, for Plaintiffs‐
Appellees‐Counter‐Defendants‐Cross‐
Appellants.
JOHN A. SERAFINO, Ryan, Smith &
Carbine, Ltd., Rutland, VT, for
Defendants‐Appellants‐Cross‐Appellees.
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MICHAEL J. TIERNEY (William Ellis,
McNeil, Leddy & Sheahan & Sheahan, PC,
Burlington, VT; Andrew C. Box, Ellis, Boxer
& Blake, PLLC, Springfield, VT, on the
brief), Wadleigh, Starr & Peters, PLLC,
Manchester, NH, for Defendants‐
Appellants‐Counter‐Claimants‐Cross‐
Appellees.
DENNIS JACOBS, Circuit Judge:
Feuding over local governance matters in Addison, Vermont led two
couples – John and Linda Carrigan (the “Carrigans”) and Jeff and Carol
Kauffman (the “Kauffmans”) – to make allegedly defamatory statements about a
third couple, Barbara Ernst and Barbara Supeno. Ms. Ernst and Ms. Supeno
sued for defamation (among other claims) and the Carrigans and Kauffmans
responded by filing special motions to strike under Vermont’s anti‐SLAPP
statute. The suit, originally filed in state court, was removed by the defendants
to the United States District Court for the District of Vermont (Crawford, J.)
because the plaintiffs included a federal claim under 42 U.S.C. § 1983. The
district court granted the motions in part and denied in part. The threshold
issue is whether we have appellate jurisdiction over the district court’s order
passing on the merits of the defendants’ special motions to strike under
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Vermont’s anti‐SLAPP statute. We conclude that interlocutory appeals of such
orders do not fall within the collateral order doctrine, and accordingly dismiss
for lack of appellate jurisdiction.
Things got out of hand in April 2011, when (it is alleged) the defendants
wrote and circulated a defamatory letter to numerous Addison residents, and
made defamatory statements (and presented a defamatory document) to the
town’s Selectboard (a local governing body). Pursuant to Vermont’s
anti‐SLAPP statute, defendants filed special motions to strike plaintiffs’ claims.
SLAPP is an acronym for a “strategic lawsuit against public participation,” which
is a suit that is brought primarily to chill the valid exercise of a defendant’s right
to free speech, and Vermont’s anti‐SLAPP statute is designed to provide for early
dismissal of such lawsuits.
The district court concluded that the circulation of the April 2011 letter was
not covered by Vermont’s anti‐SLAPP statute because it did not concern an issue
of public interest, but that the statements and document presented at the
Selectboard meeting were covered because they were made at a legislative
proceeding. Ernst v. Kauffman, 50 F. Supp. 3d 553, 563‐65 (D. Vt. 2014). The
district court further determined that Ms. Ernst and Ms. Supeno did not sustain
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their burden of showing that the document and statements were “devoid of any
reasonable factual support” or “any arguable basis in law,” 12 V.S.A.
§ 1041(e)(1)(A).
The parties cross‐appealed. Because we conclude that interlocutory
appeals from such orders do not fall within the collateral order doctrine, we
dismiss for lack of appellate jurisdiction.
BACKGROUND
Ms. Ernst and Ms. Supeno have been embroiled in multiple zoning
disputes with their neighbors. They allege that several of their neighbors,
including the Carrigans, are hostile to them because they are a same‐sex couple;
that this hostility has been encouraged by several town officials, including Jeff
Kauffman, who is the chairman of the Addison Selectboard and was the town’s
zoning and planning administrator; and that Mr. Kauffman and Addison have for
that reason discriminated against them in zoning decisions.
On April 11, 2011, an anonymous nine‐page letter was sent to numerous
Addison residents, including all members of the Selectboard, school board,
planning board, and development review board, as well as local newspapers.
Entitled “The TRUTH About the BARBARAS,” the letter contained information
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drawn from police reports and court records that supposedly demonstrated that
Ms. Ernst and Ms. Supeno were “masters at falsifying information, using
harassment as a crutch whenever confronted in their demonical schemes, lying
openly, distorting facts, and using the court system for extortion.” Ernst, 50 F.
Supp. 3d at 557. The letter further asserted that Ms. Ernst and Ms. Supeno were
“felons who are running scams” who do not pay their creditors or taxes. Id.
It is alleged that Carol Kauffman wrote the letter with information
provided to her by Linda Carrigan and Jeff Kauffman, that John Carrigan
distributed copies of the letter to Addison residents from April 11‐14, 2011, that
Carol Kauffman read aloud from the letter at Selectboard meetings during the
summer of 2011, that John Carrigan presented a document summarizing the letter
to the Selectboard in November 2011, and that Carol Kauffman sent a separate
letter to Ms. Ernst and Ms. Supeno’s attorney (purporting to be from them) that
implied he would not be paid for his services.
Ms. Ernst and Ms. Supeno filed suit against the Kauffmans, Carrigans, and
Addison in Vermont state court. The complaint included, inter alia, state‐law
claims for defamation, false‐light invasion of privacy, and tortious interference
against the Kauffmans and Carrigans. After the case was removed to federal
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court, the Carrigans and Kauffmans filed special motions to strike Ms. Ernst and
Ms. Supeno’s claims pursuant to Vermont’s anti‐SLAPP statute, 12 V.S.A. § 1041.
The motions sought to strike allegations relating to: (i) the April 2011 letter, (ii) the
statements made before the Selectboard, (iii) the document presented to the
Selectboard, and (iv) the letter to the lawyer for Ms. Ernst and Ms. Supeno. The
district court granted the motions to strike allegations (ii) and (iii), but denied the
motions to strike (i) and (iv). After the district court declined to certify the
opinion for interlocutory appeal, the parties cross‐appealed.
As relevant here, the Kauffmans and Carrigans appeal the denial of their
motion to strike the claims arising out of the April 2011 letter, and Ms. Ernst and
Ms. Supeno appeal the grant of the Kauffmans’ and Carrigans’ motions to strike
statements made before the Selectboard and the document presented to that
body.
DISCUSSION
Our appellate jurisdiction over district court rulings is limited to “final
decisions.” 28 U.S.C. § 1291. The Supreme Court has long construed “final
decisions” to include judgments that “terminate an action” as well as a “small
class” of collateral rulings that are deemed “final” despite not ending the
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litigation. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 545‐56 (1949).
This “small class” resolves “claims of right separate from, and collateral to, rights
asserted in the action” that are “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.” Will v. Hallock, 546 U.S. 345, 349 (2006).
Such an 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 judgment.” Id. The
limited scope of the collateral order doctrine stems from “a healthy respect for
the virtues of the final‐judgment rule[;]” so the “justification for immediate
appeal must . . . be sufficiently strong to overcome the usual benefits of deferring
appeal until litigation concludes.” Mohawk Indus. Inc. v. Carpenter, 558 U.S.
100, 106 (2009).
I
Vermont’s anti‐SLAPP statute creates a two‐step process for determining
whether statements or conduct is protected by the statute. First, the defendant
must show that the case arises from defendant’s exercise of “the right to freedom
of speech or to petition the government” and that the speech or petition is “in
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connection with a public issue.” 12 V.S.A. § 1041(a). If the defendant does
that, the burden shifts to the plaintiff to show that the defendant’s conduct or
statement was “devoid of any reasonable factual support” or “any arguable basis
in law” and “caused actual injury to the plaintiff.” Id. § 1041(e)(1); see, e.g.,
Felis v. Downs Rachlin Martin, PLLC, 2015 VT 129, ¶ 32 (2015). To decide such
motions, courts look to the “pleadings and supporting and opposing affidavits.”
12 V.S.A. § 1041(e)(2).
The question is whether district court orders ruling on the merits of special
motions to strike filed under Vermont’s anti‐SLAPP statute fall within the
collateral order doctrine. We conclude that they do not.1
A
An appeal from an order passing on the merits of a special motion to strike
filed under Vermont’s anti‐SLAPP statute does not fulfill the second requirement
for an appealable collateral order: that it “resolve an important issue completely
separate from the merits of the action.” Will, 546 U.S. at 349 (emphasis added).
1 Because we conclude that we lack appellate jurisdiction, we do not reach the issue of
whether Vermont’s anti‐SLAPP statute is applicable in federal court. Compare Abbas v.
Foreign Policy Grp., LLC, 783 F.3d 1328, 1333‐37 (D.C. Cir. 2015) (holding that a state anti‐SLAPP
statute is inapplicable), with U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190
F.3d 963, 973 (9th Cir. 1999) (holding that a state anti‐SLAPP statute is applicable).
9
An issue is “completely separate from the merits” if it is “significantly different”
and “conceptually distinct” from the “fact‐related legal issues that likely underlie
the plaintiff’s claim on the merits.” Johnson v. Jones, 515 U.S. 304, 314 (1995).
Courts necessarily evaluate in detail the merits of a plaintiff’s claim when
considering a defendant’s special motion to strike. The anti‐SLAPP statute
instructs the court to consider the “pleadings and supporting and opposing
affidavits” when weighing whether the plaintiff has shown that the defendant’s
conduct or statement was “devoid of any reasonable factual support” or “any
arguable basis in law” and “caused actual injury to the plaintiff.” 12 V.S.A.
§ 1041(e). Such analysis is entangled in the facts, and plainly is not “completely
separate from the merits” of a plaintiff’s action. Will, 546 U.S. at 349 (emphasis
added).
Consider the defamation claim in this case. Under Vermont law, Ms.
Ernst and Ms. Supeno must establish: (i) a false and defamatory statement; (ii)
negligence; (iii) publication; (iv) lack of privilege; (v) special damages unless the
statement is actionable per se; and (vi) actual harm to warrant compensatory
damages. See Stone v. Town of Irasburg, 2014 VT 43, ¶ 61 (2014). To decide
the anti‐SLAPP motions, the district court had to decide whether Ms. Ernst and
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Ms. Supeno had shown that the defendants’ statements or conduct were “devoid”
of “any arguable basis in law,” “devoid” of “any reasonable factual support”
based on the “pleadings and supporting and opposing affidavits,” and had
“caused actual injury.” 12 V.S.A. § 1041(e). In deciding the anti‐SLAPP
motions, the district court properly looked at “the filings” of the parties and
“accompanying affidavits” to determine what defamatory statements were in fact
made at the Selectboard meeting, reviewed “specific allegations” in the complaint
to determine which portions of the April 2011 letter were read aloud, and
considered the “affidavits attached to [Ms. Ernst and Ms. Supeno’s] opposition
memorandum” to determine whether the April 2011 letter was wholly false.
Ernst, 50 F. Supp. 3d at 563‐64. Based on its review of the record evidence, the
district court concluded that the April 2011 letter “as a whole contains a mixture
of true statements, false statements, and editorial characterization” such that it is
not “entirely false,” and that Ms. Ernst and Ms. Supeno therefore had not
sustained their burden of showing that the statements made at the Selectboard
meeting were “devoid of factual support.” Id.
The district court’s analysis was inescapably intertwined with the
“fact‐related legal issues” underlying the defamation claims. Johnson, 515 U.S.
11
at 314. Determining whether the Carrigans’ and Kauffmans’ statements were
“devoid of any reasonable factual support” (as Vermont’s anti‐SLAPP statute
requires) is by no means “conceptually distinct” and “significantly different”
from whether the statements were false (as Vermont defamation law requires).
The same goes for consideration of whether the statements lacked “any arguable
basis in law” and whether the statements were unprivileged. The requirement
of the anti‐SLAPP statute that the statements “caused actual injury” is
indistinguishable from the last element of a defamation claim: actual harm
suffered by reason of the defamatory statements. In sum, a special motion to
strike under Vermont’s anti‐SLAPP statute “involves considerations that are
enmeshed in the factual and legal issues comprising the plaintiff’s cause of
action.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 469 (1978) (quotation
marks omitted).
Other courts to consider the question have concluded otherwise. For
example, the Ninth Circuit, in Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), held
the separability condition was met because an order denying an anti‐SLAPP
motion “merely finds that such merits may exist, without evaluating whether the
plaintiff’s claim will succeed.” Batzel, 333 F.3d at 1025; see also Henry v. Lake
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Charles Am. Press, L.L.C., 566 F.3d 164, 175, 177 (5th Cir. 2009); DC Comics v.
Pacific Pictures Corp., 706 F.3d 1009, 1013 (9th Cir. 2013); NCDR, L.L.C. v. Mauze
& Bagby, P.L.L.C., 745 F.3d 742, 749 (5th Cir. 2014). True, an anti‐SLAPP motion
does not decide the merits; but the test is whether it is completely separate from the
merits. In effect, Batzel holds that “completely separate from the merits” means
“not exactly the same.” We prefer to follow the Supreme Court’s holding in
Johnson that “completely separate from the merits” means what it says, that is,
“conceptually distinct” and “significantly different.”
“But hold on, some have objected, that can’t be right. [Vermont’s]
anti‐SLAPP statute is intended to afford an immunity from trial, not just from
liability.” Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1190 (9th Cir. 2013)
(Watford, J., dissenting from the denial of rehearing en banc). The question
becomes whether an appeal from an anti‐SLAPP ruling is an analog or subset of
appeals from the denial of immunity from trial. See Will, 546 U.S. at 350‐51
(discussing absolute immunity, qualified immunity, Eleventh Amendment
immunity, and double jeopardy immunity). For example, appeals from the
denial of qualified immunity are accepted under the collateral order doctrine,
“even though part of the traditional inquiry touches on the merits.” Makaeff,
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736 F.3d at 1185 (Wardlaw and Callahan, JJ., concurring in the denial of
rehearing en banc); see also Henry, 566 F.3d at 175. Thus Batzel classified
anti‐SLAPP protection as one of those immunities from trial. Batzel, 333 F.3d at
1025‐26 (noting the “purpose of an anti‐SLAPP motion is to determine whether
the defendant is being forced to defend against a meritless claim”); see also
Henry, 566 F.3d at 175. We disagree.
While anti‐SLAPP statutes have much in common with immunity statutes,
the California courts have ruled that the California statute (upon which the
Vermont statute is based) does not provide a “a substantive immunity from
suit.” See Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 148 n.9 (2d Cir.
2013) (discussing Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 738 (2003)).
Even if the Vermont anti‐SLAPP statute does provide immunity from trial, it does
not follow that rulings on motions to strike are immediately appealable. Not
every adverse ruling on a “right not to stand trial” automatically is subject to
interlocutory review. See Will, 546 U.S. at 350‐51; Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 871‐73 (1994). “[T]his generalization is too
easy to be sound and, if accepted, would leave the final order requirement of
§ 1291 in tatters.” Will, 546 U.S. at 351.
14
The analogy to qualified immunity does not hold together. The denial of
a claim to qualified immunity falls within the collateral order doctrine because
an appellate court reviewing such an order “need not consider the correctness of
the plaintiff’s version of the facts, nor even determine whether the plaintiff’s
allegations actually state a claim[;]” rather, the court only determines a “question
of law” that is distinct from whether the allegations state a claim under the law at
the time of the suit. Mitchell v. Forsyth, 472 U.S. 511, 528 (1985). But even in
the qualified immunity context, a “fact‐related dispute about . . . whether or not
the evidence in the pretrial record was sufficient to show a genuine issue of fact
for trial,” Johnson, 515 U.S. at 307, is not immediately appealable because when
the issue is “whether the evidence could support a finding that particular
conduct occurred, the question is not truly ‘separable’ from the plaintiff’s claim.”
Behrens v. Pelletier, 516 U.S. 299, 313 (1996) (discussing Johnson, 515 U.S. at
313‐18). The Supreme Court has also noted that when a denial of qualified
immunity turns only on the sufficiency of the evidence, “considerations of delay,
comparative expertise of trial and appellate courts, and wise use of appellate
resources” further counsel against immediate appellate review. Johnson, 515
U.S. at 317.
15
Resolution of anti‐SLAPP motions turn on just such fact‐based
determinations. Vermont’s anti‐SLAPP statute requires a determination of
whether the defendants’ statements were “devoid” of “any reasonable factual
support” based on the “pleadings and supporting and opposing affidavits.” 12
V.S.A. § 1041(e). The Supreme Court has ruled that “consider[ing] the
correctness of the plaintiff’s version of the facts,” Mitchell, 472 U.S. at 528, by
“reading a vast pretrial record, with numerous conflicting affidavits, depositions,
and other discovery materials,” Johnson, 515 U.S. at 316, involves the court in
potentially duplicative inefficiencies. We conclude, as Mitchell and Johnson
make clear, that we lack appellate jurisdiction to consider the district court’s
order passing on the merits of the defendants’ anti‐SLAPP motions to strike.
B
This Court has touched on a similar issue before. Liberty Synergistics
presented to us an appeal under the collateral order doctrine: a denial of an
anti‐SLAPP motion on the ground that California’s anti‐SLAPP statute did not apply
because the case had been transferred from California to New York. Liberty
Synergistics, 718 F.3d at 147. We held that such an order satisfied the
separability requirement because the “legal question presented in th[e]
16
appeal – namely, whether the forum transfer made the anti‐SLAPP rule
inapplicable” – was “predicated on a source of law that did not apply to the suit.”
Id. at 149, 151. Moreover, the district court “did not consider the underlying
facts in the complaint, much less the ‘merits’ of the malicious prosecution claim”
in rendering its opinion on the matter under interlocutory review. Id. at 149.
The “neat abstract issues of law” presented in Liberty Synergistics differ in kind
from the “fact‐related legal issues” underlying this appeal. Johnson, 515 U.S. at
314, 317.
Liberty Synergistics itself recognized the operative distinction. We first
emphasized the narrowness of our Liberty Synergistics decision: it is “concerned
only with the immediate appealability of an order that a state anti‐SLAPP statute
does not apply at all to a federal diversity case where the suit is transferred to a
federal court in another state and the cause of action is governed by that other
state’s law.” 718 F.3d at 150 n.11 (quotation marks omitted). Then we noted
that while the Ninth Circuit in Batzel had ruled on whether an order passing on
the merits of an anti‐SLAPP motion is immediately appealable under the
collateral order doctrine, we took care to say: “[w]e need not address that issue.”
17
Id. Now we do address that issue, and conclude that orders passing on the
merits of an anti‐SLAPP motion do not fall within the collateral order doctrine.
CONCLUSION
For the foregoing reasons, we dismiss the appeal and cross‐appeal for lack
of appellate jurisdiction.
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