Farmland Partners v. Fortunae

FILED
United States Court of Appeals
Tenth Circuit

January 6, 2021
UNITED STATES COURT OF APPEALS
Christopher M. Wolpert
Clerk of Court
TENTH CIRCUIT

FARMLAND PARTNERS, INC.,

Plaintiff - Appellee,

v. No. 19-1011
(D.C. No. 1:18-CV-02351-KLM)
ROTA FORTUNAE, whose true name is (D. Colo.)
unknown, and JOHN/JANE DOES 2-10,
whose true names are unknown,

Defendant - Appellant.

ORDER AND JUDGMENT *

Before BRISCOE, HOLMES, and EID, Circuit Judges.

The central merits issue in this appeal is whether the Texas Citizens

Participation Act (“TCPA”), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011

(West 2019), applies in federal court in our circuit. “The TCPA is an anti-SLAPP

statute that allows a claim to be dismissed when the defendant can show that the

claim was brought to chill the exercise of First Amendment rights.” NCDR,

L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 746 (5th Cir. 2014) (footnote

*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Federal Rule of Appellate
Procedure 32.1 and 10th Circuit Rule 32.1.
omitted). 1 Because we conclude that we lack jurisdiction over this appeal, we do

not reach the merits of this question. Specifically, we hold that we lack

jurisdiction because the district court’s order does not satisfy the collateral order

doctrine. We therefore DISMISS this appeal and REMAND the case to the trial

court for further proceedings consistent with this order and judgment.

I

A

Farmland Partners Inc. (“FPI”) is “a publicly traded real estate investment

trust” with farmland holdings throughout North America. Aplt. App., Vol. I, at

121 (Compl., filed July 23, 2018). Rota Fortunae (“RF”), Latin for “wheel of

fortune,” is a pseudonym used by “a resident and citizen of the State of Texas”

who published an article about FPI. Id. at 61 (Decl. of Matthew Mitzner). RF

allegedly opined (among other things) that FPI faced a risk of insolvency and that

directors and an officer of FPI had left the company. RF published the article

anonymously on SeekingAlpha.com, a New York-based internet outlet focusing

on stock market analysis. FPI’s stock dropped approximately thirty-nine percent

soon after the article appeared on the website. At the same time, RF allegedly

had taken a short position, essentially betting that FPI’s stock price would

1
“SLAPP is an acronym for ‘strategic litigation against public
participation.’” NCDR, 745 F.3d at 746 n.3.

2
decrease. FPI characterizes RF’s alleged efforts as a “short and distort scheme.”

Id. at 122.

FPI then brought claims against RF based upon the publication of the

article and related comments on Twitter. These included claims of defamation,

disparagement, intentional interference with prospective business relations, unjust

enrichment, deceptive trade practices under Colorado’s Consumer Protection Act

(“CCPA”), and civil conspiracy. The conspiracy charge also included nine

unnamed defendants (“Doe Defendants”), whom FPI claims assisted RF in

connection with disseminating false and misleading statements in the article and

on Twitter.

FPI served RF in state court by substitute service through a person alleged

to be RF’s former counsel. Further, the state court granted FPI’s request to serve

the Doe Defendants through substitute service on a different attorney. That

attorney later reported that he had no knowledge of the existence of the Doe

Defendants. Relatedly, RF sought reconsideration of the state court’s ruling of

substitute service for the Doe Defendants.

Before the state court ruled on that motion for reconsideration, RF removed

the action to federal court on September 14, 2018. 2 FPI then filed a motion to

2
RF removed the action, pursuant to 28 U.S.C. §1332(a), to the United
States District Court for the District of Colorado because the parties were alleged
to be diverse. FPI was alleged to be a Colorado citizen—with its headquarters
(continued...)

3
remand to state court because the Doe Defendants had not joined or consented to

the removal under 28 U.S.C. § 1446(b)(2)(A). As an alternative to removal, FPI

sought limited discovery to determine the Doe Defendants’ citizenship.

B

RF filed two motions to dismiss. On October 5, 2018, RF filed its first

motion to dismiss for lack of personal jurisdiction and failure to state a claim

under Federal Rule of Civil Procedure 12(b)(6). More relevant for our purposes,

just ten days later, RF filed a second motion to dismiss based on the TCPA

(“TCPA Motion”). On October 31, 2018, RF requested a hearing to address the

TCPA Motion. FPI opposed this request.

With a magistrate judge presiding, the district court held an initial

conference on December 20, 2018. 3 There, the court vacated the scheduling order

in light of the pending motion to remand. The court also noted its jurisdictional

concerns. The court said the following:

I have a duty to ascertain my jurisdiction, especially in light
of the fact that the removal statute must be strictly construed
and all doubts must be resolved in favor of remand. Minimal
discovery may determine whether any John or Jane Does

2
(...continued)
and principal place of business in Colorado—and RF was alleged to be a citizen
of Texas.
3
Pursuant to 28 U.S.C. § 636 and D. Colo. Local Civ. Rule 40.1(c),
the parties here consented to proceedings in the case being conducted by a
magistrate judge.

4
 exist, a fact which is central to the arguments regarding
remand made by both sides . . . . I further want to avoid any
possibility that I will consider and grant either or both of the
motions to dismiss and never find out whether my jurisdiction
had a factual basis. Simply stated, I decline to go forward
until jurisdiction is settled.

Aplt.’s App., Vol. IV, at 101–02 (Sched. Conf., Dec. 20, 2018). The court

ordered RF to answer limited discovery-related interrogatories to facilitate the

court’s determination of its diversity jurisdiction. Id.

The court then denied all other motions, including the TCPA

Motion—notably, without prejudice. Id. at 102. The court explained:

It is further ordered that the motion to dismiss [filed at
document] Number 18 on the electronic docket, [the] motion
to dismiss under the Texas Citizens Participation Act [filed at
docket] Number 22, [the] motion for hearing on the motion to
dismiss under the Texas Citizens Participation Act [filed at
docket] Number 32, and the motion for default judgment,
[filed at document] Number 37, are denied without prejudice.
If it is determined that the Court possesses subject matter
jurisdiction, those motions may be refiled as appropriate.

Id. at 102–03 (emphases added).

C

On January 4, 2019, RF filed a motion to reconsider the court’s order that

obliged RF to answer discovery-related interrogatories. On January 9, the court

granted this motion, in part, and permitted RF to respond to half of the

jurisdictional interrogatories by January 10, 2019.

5
 On January 9, 2019, RF filed the instant appeal from the district court’s

December 20, 2018, order. As relevant here, RF expressly challenged the district

court’s decision to deny RF’s TCPA Motion and its motion for a TCPA hearing.

The parties appeared before the court for a status conference on January 11, 2019.

There, RF’s counsel insisted that the notice of appeal divested the district court of

jurisdiction and effected an automatic stay of the entire action until the Tenth

Circuit ruled. The district court disagreed, explaining that, in its view, “[t]here is

no stay in this case” and, specifically, that “discovery orders are not appealable

under the Cohen collateral order doctrine.” Aplee.’s Suppl. App. at 39 (Tr. of

Status Conf., Jan. 11, 2019) (italics added) (referring to Cohen v. Beneficial

Indus. Loan Corp., 337 U.S. 541 (1949)). RF’s counsel voiced his objection,

noting in particular that the TCPA Motion was immediately appealable under “the

collateral order doctrine . . . because of the First Amendment interplay.” Id. 40.

The court rejected this concern, noting that the TCPA Motion had been

“dismissed without prejudice.” Id.

Ultimately, over RF’s continued objections, the court ordered RF to comply

with its order—that is, to file responses to the jurisdictional interrogatories within

three days and warned, “I am very likely to hold you [counsel for RF] in

contempt.” Id. at 42. Reacting to this advisement, on January 14, 2019, RF

submitted responses to the interrogatories that—as the court reasoned—were

relevant to the question of its subject-matter jurisdiction.

6
 Around the same time, RF had filed a motion to stay all district court

proceedings pending the resolution of this appeal. The court did not immediately

resolve that motion, however. After over six months of litigation pertaining to

the court’s jurisdiction, the court concluded that, though the existence of the Doe

Defendants remained “a factual question which is likely to be the subject of

formal discovery in this case,” there was not a proper foundation for the state

court’s order of substituted service and, more specifically, that RF’s contention

that “such service was not reasonably calculated to result in actual notice to the

Doe Defendants is well-taken.” Dist. Ct. Order, Doc. No. 83, at 11–12 (filed,

June 11, 2019).

Accordingly, the court vacated the state court order that had granted FPI’s

request for substitute service on the Doe Defendants and struck FPI’s proof of

service of process relating to the Doe Defendants. The upshot was that the matter

that had caused the court to harbor doubts concerning its subject-matter

jurisdiction—relating the citizenship of the Doe Defendants—was effectively

removed from the field and rendered of no consequence by this set of rulings.

Given these orders, the court put the case back on track for litigation of the

merits, setting a scheduling conference to meet with the parties. At that time, in

July 2019, the court denied RF’s motion for stay—concluding that it was not

divested of jurisdiction by RF’s filing of its January 2019 appeal and specifying

7
at length its view that the court’s December 20 order denying RF’s TCPA Motion

was not an appealable collateral order.

Following this ruling, RF refiled its TCPA Motion to dismiss, specifically

in August 2019. However, recognizing the pendency of this appeal, the district

court again denied the TCPA Motion without prejudice, expressly noting that

insofar as RF’s August TCPA Motion “was filed to preserve rights under the

TCPA, this was unnecessary as RF’s rights were preserved through its initial

[TCPA] motion.” Dist. Ct. Minute Order, Doc. 127, at 2 (Mar. 9, 2020). 4

II

A

Federal appellate courts “have jurisdiction of appeals from all final

decisions of the district courts.” 28 U.S.C. § 1291. Typically, a final decision is

“one which ends the litigation on the merits and leaves nothing for the court to do

but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233 (1945). It

is undisputed that the district court’s December 20 order is not a final order in

that sense. However, “final decisions” include not only judgments that “terminate

an action” but also a “small class” of prejudgment orders that are “collateral to”

the merits of an action and “too important” to be denied immediate review.

4
On April 8, 2020, RF filed another notice of appeal with respect to
this denial without prejudice of its renewed TCPA Motion. That appeal has been
assigned No. 20-1141. On April 27, 2020, a panel of this court granted the
parties’ joint motion to abate that appeal pending the resolution of this one.

8
Cohen, 337 U.S. at 545–46. At issue here is whether the court’s December 20

order is a final appealable order under Cohen’s rubric.

A party asserting jurisdiction under Cohen’s collateral order doctrine must

show that the district court’s order: (1) “conclusively determine[d] the disputed

question,” (2) “resolve[d] an important issue completely separate from the merits

of the action,” and (3) is “effectively unreviewable on appeal from a final

judgment.” Will v. Hallock, 546 U.S. 345, 349 (2006) (quoting Puerto Rico

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

accord United States v. Wampler, 624 F.3d 1330, 1334 (10th Cir. 2010);

Stubblefield v. Windsor Capital Grp., 74 F.3d 990, 997 (10th Cir. 1996). “Under

the third Cohen factor, we examine whether ‘the entire category of rulings to

which the claim belongs can be adequately vindicated on review of a final

judgment or by other means,’ not whether the particular circumstances warrant

review.” United States v. Copar Pumice Co., 714 F.3d 1197, 1204–05 (10th Cir.

2013) (quoting In re Motor Fuel Temperature Sales Practices Litig., 641 F.3d

470, 482–83 (10th Cir. 2011)).

The Supreme Court has described these conditions as “stringent,” Will, 546

at 349 (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868

(1994)). They are designed to protect against “overpower[ing] the substantial

finality interests § 1291 is meant to further.” Id. at 350; see also Wampler, 624

F.3d at 1334 (noting that Cohen must “never be allowed to swallow the general

9
rule that a party is entitled to a single appeal, to be deferred until final judgment

has been entered” (quoting Digital Equip. Corp., 511 U.S. at 868)); Mesa Oil, Inc.

v. United States, 467 F.3d 1252, 1255 (10th Cir. 2006) (discussing how the Cohen

doctrine promotes “judicial efficiency by restricting the application of the

collateral order doctrine and limiting our acceptance of cases where future,

successive appeals are possible”).

B

In our view, RF’s appeal inexorably fails with respect to the first of these

requirements—the conclusive-determination condition. And we need not go

further in concluding that we have no jurisdiction over RF’s interlocutory appeal.

See State of Utah ex rel. Utah State Dep’t of Health v. Kennecott Corp., 14 F.3d

1489, 1492 (10th Cir. 1994) (“Unless all three requirements are met, jurisdiction

is not available under the collateral order doctrine.”); In re Magic Circle Energy

Corp., 889 F.2d 950, 954 (10th Cir. 1989) (“Because a party seeking to appeal on

this [collateral order] basis must show that all three requirements of the doctrine

are satisfied, we need not address each if any one is not met.”); see also Harris v.

Kellogg Brown & Root Servs., Inc., 618 F.3d 398, 401 (3d Cir. 2010) (holding

that the conclusive-determination condition was not satisfied and, “[t]herefore,

the Cohen test is not satisfied, and we need not address the other two prongs of

the test”).

10
 First, the district court’s denial of RF’s TCPA Motion was without

prejudice and expressly left the door open for RF to refile. Recall that the court

held a hearing with several motions pending, including RF’s TCPA Motion and

FPI’s motion for remand. The district court expressed jurisdictional concerns

related to the ostensible presence of the Doe Defendants in the action who

allegedly had not consented to removal of the case to federal court. Those

concerns were heightened by the fact that RF’s counsel resisted responding to

interrogatories concerning those supposed defendants.

Therefore, until it could be assured as to the propriety of its subject matter

jurisdiction, the district court dismissed RF’s TCPA Motion without prejudice and

expressly informed RF that it would be permitted to refile that motion at a later

time. Specifically, the court explained,

I want to satisfy myself regarding my jurisdiction before
proceeding further, in order to avoid . . . the unpleasant mid-
case revelation that I have been proceeding in the absence of
subject matter jurisdiction . . . I further want to avoid any
possibility that I will consider and grant either or both of the
motions to dismiss and never find out whether my jurisdiction
had a factual basis. Simply stated, I decline to go forward
until jurisdiction is settled. . . . It is further ordered that the
motion to dismiss. . . under the [TCPA] . . . and motion for
hearing on the motion to dismiss under the [TCPA] . . . are
denied without prejudice. If it is determined that the court
possesses subject matter jurisdiction, those motions may be
refiled as appropriate.

Aplt.’s App., Vol. IV, at 102–03 (emphases added). In light of the district court’s

denial without prejudice of RF’s TCPA Motion—which was, practically speaking,

11
simply a postponement of a ruling on the motion’s merits—and its explicit

authorization for RF to refile the motion, nothing about the court’s order could be

deemed, in practical terms, a conclusive determination of the TCPA issues

presented in that motion.

Indeed, in the ensuing period of approximately six months, the parties’

discovery and related litigation pertained to the court’s inquiry concerning its

subject-matter jurisdiction and not the merits of FPI’s substantive claims. And

once the district court allayed its concerns regarding its subject-matter

jurisdiction, it took no steps to preclude RF from availing itself of the opportunity

that it had expressly conferred on RF in its December 20 order—that is, the

opportunity to refile the TCPA Motion to dismiss. Indeed, on August 14, 2019,

RF actually filed such a motion. Therefore, we are hard pressed to see how the

court’s December 20 ruling on RF’s initial TCPA Motion constituted a conclusive

determination of the issues presented in that motion.

To drive the point home, compare the circumstances here to those present

in our decision in Los Lobos Renewable Power, LLC v. Americulture, Inc., 885

F.3d 659 (10th Cir. 2018), where we concluded that “the first condition of the

collateral order doctrine”—the conclusive-determination condition—was

“satisfied.” Id. at 665. There, the district court reached the merits of the anti-

SLAPP motion and “held that New Mexico’s anti-SLAPP statute does not apply

in federal court,” and we determined that this ruling was conclusive because “it is

12
not subject to later review or revision by the district court.” Id. 5 This case stands

in stark contrast to Los Lobos. Here, it is undisputed that the district court did not

reach any conclusion concerning the applicability of the anti-SLAPP statute (i.e.,

the TCPA). And it expressly indicated that its ruling was without prejudice and

open to later review and modification.

While we have recognized that “[a] case dismissed without prejudice may

or may not be a final appealable order, depending upon the circumstances,”

Coffey v. Whirlpool Corp., 591 F.2d 618, 620 (10th Cir. 1979), the circumstances

of the district court’s order here hardly bespeak a conclusive determination of the

TCPA’s applicability in federal diversity litigation—which would be necessary

for the order to satisfy the first condition of the collateral-order doctrine. See

Cohen, 337 U.S. at 546 (“The effect of the statute [28 U.S.C. § 1291] is to

disallow appeal from any decision which is tentative, informal or incomplete. . . .

So long as the matter remains open, unfinished or inconclusive, there may be no

intrusion by appeal.”); Southern Ute Indian Tribe v. Amoco Prod. Co., 2 F.3d

5
Other circuits have reached a similar conclusion where the district
court resolved an anti-SLAPP motion on the merits. See NCDR, 745 F.3d at 748
(holding that the conclusive-determination condition was satisfied, where the
district court resolved a TCPA motion to dismiss on the merits, and “[t]here is
also no indication that a trial court would revisit [its earlier TCPA decision]”
(quoting Henry v. Lake Charles Am. Press, 566 F.3d 164, 174 (5th Cir. 2009)));
DC Comics v. Pac. Pictures Corp., 706 F.3d 1009, 1013 (9th Cir. 2013) (noting
that, under Ninth Circuit precedent, “[a] decision on an anti-SLAPP motion is
conclusive as to whether the anti-SLAPP statute requires dismissal of the suit”).
But those circumstances are unquestionably not present here.

13
1023, 1029 (10th Cir. 1993) (“We have described above the process whereby the

district court signed the prepared case management order and the supplemental

order at the April 24 hearing. The court declared that it was doing so

preliminarily and would enter a more detailed written order, which it did on June

24. Given this scenario, we hold that the April 24 order was not the final cost

allocation order for purposes of appeal. As we have said, an order is not final

under the collateral order doctrine if it is incomplete or if the matter remains open

or unfinished.”); 15A Charles A. Wright, Arthur R. Miller, & Edward H. Cooper,

F EDERAL P RACTICE & P ROCEDURE : J URISDICTION § 3911, Westlaw (database

updated Oct. 2020) (“So long as there is a plain prospect that the trial court may

itself alter the challenged ruling, there is little justification for immediate

appellate intrusion.”); see also United States v. City of Milwaukee, 144 F.3d

528–29, n.7 (7th Cir. 1998) (noting that, to be “truly final,” an order denying

intervention “must rule definitively on the party’s participation in the litigation

before the district court,” and the court’s order here was not final in that it was a

dismissal “without prejudice,” and “[t]he district court plainly expressed its intent

not to reach the merits of the motion to intervene until it was properly presented”

and “specifically invited [the movant] to file a second motion for intervention

accompanied by a proper pleading”); cf. Henry v. Lake Charles Am. Press, 566

F.3d 164, 173–74 (5th Cir. 2009) (in finding the conclusive-determination

condition satisfied with respect to a district court’s order denying a motion to

14
strike (i.e., effectively a motion to dismiss) under Louisiana’s anti-SLAPP statute,

stating the following: “[F]or an order to be conclusive, it should not be subject to

later review or revision in the district court. The mere power to revisit an order,

however, is insufficient to preclude a finding of conclusivity; it should be

unlikely that the district court will revisit the order. That is, the order should be

one that a district court rarely, if ever, revisits.” (citations omitted)).

Consistent with this weight of authority, the Third Circuit’s analogous

decision in Harris is instructive. See 618 F.3d at 400–04. There, the court

considered the district court’s denial of a motion to dismiss without prejudice.

The district court had noted that the defendant was not entitled to immunity under

the combat-activities exception “at this time” but had emphasized that its decision

was informed by the fact that only “limited discovery” had been conducted to

date. Id. at 400 (quoting the district court’s order). The court underscored that it

would entertain a renewed motion, if one were warranted in light of the facts

obtained through further discovery. In the interim, however, it thought Plaintiffs

“should have the opportunity to conduct merits discovery . . . without the delay

that an appeal would inevitably cause.” Id. The defendant filed an interlocutory

appeal and argued that the district court’s order—a dismissal without

prejudice—satisfied Cohen’s conclusive-determination condition.

The Third Circuit, however, dismissed the defendant’s appeal for lack of

appellate jurisdiction. It explained that the district court’s order at issue “did not

15
conclusively determine the disputed issues in the case,” id. at 402, because it was

“nothing resembling a ‘complete, formal, and . . . final rejection’ of the

[defendant’s] position.” Id. (citing Abney v. United States, 431 U.S. 651, 659

(1977)). Indeed, the court noted that—in at least two instances—the district court

judge “made clear that her rejection [of the defendant’s position] was not

necessarily her ‘final disposition’ of these issues.” Id. (quoting Cohen, 337 U.S.

at 546). The Third Circuit distinguished the circumstances before it from those

where, practically speaking, “it was clear that the district court had rendered its

final disposition of the disputed issues, notwithstanding the ‘without prejudice’

designation,” noting that in the instant case, “[t]he District Court explicitly

invited the parties to revisit the disputed issues as the factual record developed.”

Id. at 403. Accordingly, the court dismissed the appeal, concluding that the

district court’s order “did not conclusively determine the disputed issues in this

case.” Id. at 404.

Harris is analogous to this case, but here we have an even stronger basis

for concluding that the district court’s order does not satisfy the conclusive-

determination condition. As in Harris, in denying RF’s TCPA Motion without

prejudice, the district court here expressly indicated that it was prepared to

consider a renewed TCPA motion—specifically, after it had assured itself that it

properly had subject-matter jurisdiction over the case. The court’s December 20

order was crystalline on this point: it expressly stated that the TCPA Motion was

16
dismissed without prejudice and “may be refiled as appropriate.” Aplt. App., Vol.

IV, at 103. Practically speaking, the court’s order was a far cry from any “final

word on the subject addressed.” Digital Equip. Corp., 511 U.S. at 868 (quoting

Desktop Direct, Inc. v. Digital Equip. Corp., 993 F.2d 755, 757 (10th Cir. 1993).

Indeed, RF was not precluded from renewing its TCPA motion in August 2020,

after the court determined that it had subject-matter jurisdiction. The only reason

the court did not reach the merits of that motion then—and denied it without

prejudice—was because of the pendency of this appeal.

Moreover, it bears highlighting that this case provides an even stronger

foundation for a conclusion that Cohen’s conclusive-determination condition is

not satisfied than Harris. That is because in Harris, even though the district court

expressly left open the door to reconsidering its merits decision on the

applicability of immunity under the combat-activities exception, it did in fact

opine on the merits of that issue. Here, by contrast, the district court never

opined on the merits of the TCPA Motion—provisionally or otherwise. 6 Through

6
This is a more compelling case than Harris for determining that the
district court’s order was not a conclusive determination under Cohen in another
noteworthy way. Specifically, unlike in Harris, the district court did not permit
merits-based discovery to proceed after it provisionally denied the motion.
Rather, the court here did not permit such discovery to proceed until after it had
satisfied itself concerning the propriety of its subject-matter jurisdiction. And, at
that point, RF was authorized to—and did—renew its TCPA motion. Therefore,
in our view, there is not a persuasive argument here that the practical effect of the
district court’s denial of the TCPA Motion was to conclusively deprive RF of any
(continued...)

17
its without-prejudice denial, the court simply declined to consider the motion’s

merits until it could satisfy itself as to the propriety of its subject-matter

jurisdiction. Accordingly, there is even a stronger argument here than in Harris

that the court’s without prejudice denial of the TCPA Motion did not amount to a

conclusive determination of the motion’s merits under Cohen.

In sum, as in Harris—and guided by the weight of authority explicated

supra—we conclude that the district court’s December 20 order denying without

prejudice RF’s TCPA Motion does not satisfy the conclusive-determination

condition of the collateral-order doctrine. Consequently, the December 20 order

is not a final appealable order.

C

In closing, we observe that our conclusive-determination holding is entirely

consonant with the well-settled policy of finality that has historically restricted

the scope of the collateral order doctrine. In particular, the Supreme Court tells

us to resist the “temptation to generalize” areas that fall within the collateral

order doctrine. Will, 546 U.S. at 350.

6
(...continued)
purported right that the TCPA confers to avoid the burdens of merits-based
pretrial litigation. To the contrary, the practical effect of the district court’s
denial of the TCPA Motion was to simply hit the pause button on the litigation of
the merits of the action—including merits-based discovery—until the
jurisdictional question was resolved. And, once that question was resolved, RF
remained in essentially the same posture as before the denial—able to invoke its
purported rights under the TCPA, which it did.

18
 The Court has relatedly adopted a restrictive approach toward the doctrine.

Id. at 350 (“[W]e have not mentioned applying the collateral order doctrine

recently without emphasizing its modest scope.”); id. (“And we have meant what

we have said; although the Court has been asked many times to expand the ‘small

class’ of collaterally appealable orders, we have instead kept it narrow and

selective in its membership.”). “In case after case in year after year, the Supreme

Court has issued increasingly emphatic instructions that the class of cases capable

of satisfying this ‘stringent’ test [of the collateral order doctrine] should be

understood as ‘small,’ ‘modest,’ and ‘narrow.’” Wampler, 624 F.3d at 1334

(quoting Digital Equip. Corp., 511 U.S. at 868 (“stringent”); Swint v. Chambers

Cnty. Comm’n, 514 U.S. 35, 42 (“small”); Will, 564 U.S. at 350 (“modest”);

Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100, 113 (2009) (“narrow”)).

Ultimately, the district court’s December 20 order denying the TCPA

Motion without prejudice is not an appealable order under Cohen. We decline to

put this type of order within such a narrow and restricted category of appealable

orders. To do otherwise, in our view, would allow for exactly the kind of

piecemeal appellate process that the Supreme Court’s narrowly defined

boundaries on the collateral order doctrine are designed to prevent.

III

Accordingly, for the foregoing reasons, we hold that this court lacks

19
jurisdiction. We therefore DISMISS this appeal and REMAND the case to the

trial court for further proceedings consistent with this order and judgment.

ENTERED FOR THE COURT

Jerome A. Holmes
Circuit Judge

20
No. 19-1011, Farmland Partners, Inc. v. Rota Fortunae, et. al.
BRISCOE, Circuit Judge, concurring.

I concur in the result, which directs a remand to the district court. However, there

are (or at least were) good arguments to be made in support of our having collateral order

jurisdiction over the category of order at issue here. The district court improperly

postponed or failed to rule on the applicability of the TCPA, an anti-SLAPP statute,

resulting in the arguable loss or diminishment of important rights.

The district court order that is the subject of this appeal was entered on December

20, 2018 and included, among other rulings, a denial of a TCPA motion to dismiss filed

by Rota Fortunae (RF). The district court denied RF’s TCPA motion to dismiss without

prejudice stating it was first concerned with resolving whether the inclusion of Doe

defendants destroyed its diversity jurisdiction. The district court noted that RF could

refile its TCPA motion once the court determined it had diversity jurisdiction.

The December 20, 2018 order at issue arises in the context of an anti-SLAPP

defense that is kindred in some respects to a qualified immunity defense. Inappropriately

postponing or refusing to adjudicate a qualified immunity motion is “conclusive” in the

sense that it forces the defendant in the short term to stand trial or “face the other burdens

of litigation.” Mitchell v. Forsyth, 472 U.S. 511, 526 (1985); see also Workman v.

Jordan, 958 F.2d 332, 335–36 (10th Cir. 1992). Inappropriately postponing or refusing to

adjudicate an anti-SLAPP motion also forces a defendant to face discovery or other

litigation burdens, creating a risk that free expression will be chilled. See Los Lobos

Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 666–67 (10th Cir. 2018)

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(discussing how the New Mexico anti-SLAPP statute, “similar to a protection from

standing trial,” aims to “reduce the ordinary time and expense of litigation,” which

interest dissipates once “burdensome legal process has already been brought to bear”

(emphasis in original)).

Were we to assume jurisdiction here, I would conclude that the district court’s

actions were unauthorized and contrary to law in these specific ways: first, the parties

were admittedly diverse, and under the applicable federal statute and our caselaw, the

citizenship of Doe defendants is irrelevant. 28 U.S.C. § 1441(b)(1); Australian Gold, Inc.

v. Hatfield, 436 F.3d 1228, 1235 (10th Cir. 2006). Therefore, there was no question that

diversity jurisdiction existed at the time of removal. Second, the district court’s

jurisdiction under the federal removal statute did not depend on the consent of the Doe

defendants, who were never properly served, because only properly served defendants are

required to consent. See 28 U.S.C. § 1446(b)(2)(A). Third and finally, the district court

ignored the procedures spelled out by this court for addressing the scenario when, after

removal, a Doe defendant is revealed not to be diverse. See McPhail v. Deere & Co., 529

F.3d 947, 951–52 (10th Cir. 2008). Contrary to McPhail, the district court did not seek or

receive a motion to substitute, did not apply Federal Rules of Civil Procedure 15 and 19,

and did not apply any part of 28 U.S.C. § 1447.

That said, given the lengthy pendency of this appeal and the ongoing litigation

activity in the district court, the potential guidance our rulings could have provided offer

no solace to RF, who has in the interim faced the burdens of litigation including lengthy

discovery and now preparation for trial scheduled for July 26, 2021 to July 30, 2021.

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Dist. Ct. Dkt. # 145. Indeed, RF refiled its TCPA motion in September 2019, which the

district court denied in March 2020 without prejudice due to the pendency of this appeal.

Id. Dkt. # 98, 110, 112, 127. In the meantime, RF has litigated two attempts by Farmland

Partners, Inc. (FPI) to obtain a default judgment against the Doe defendants. Id. Dkt.

# 36–38, 70, 85. The parties have litigated general and specific requests for protective

orders and to stay, quash, or compel discovery. Id. Dkt. # 56, 67–68, 79–81, 91, 105, 108,

113, 115–19, 122–23. RF has been ordered to provide responses to FPI’s first set of

interrogatories and document requests. Id. Dkt. # 137. The parties have litigated RF’s

refiled motion to dismiss on grounds other than the TCPA. Id. Dkt. # 97, 110–11, 136.

FPI has filed a First Amended Complaint, which RF has answered. Id. Dkt. # 155, 157.

Fact discovery closed September 24, 2020, and expert discovery closed December 19,

2020. Id. Dkt. # 141. When viewed in this context, our review of the district court’s

December 20, 2018 order would come too late to be of any benefit to the parties.

I nevertheless agree with the majority that remand to the district court is the proper

result here. Even in those qualified immunity cases where we concluded we had

jurisdiction, we rarely decided the merits of those interlocutory appeals when the

qualified immunity issue had not been expressly adjudicated by the district court. Rather,

we typically remand the matter so the district court can address the issue on the merits

and provide a reasoned opinion for review. See, e.g., Workman, 958 F.2d at 336–37

(remanding to the district court to consider qualified immunity because “as a general rule,

a federal appellate court does not consider an issue not passed upon below”).

Accordingly, I agree remand is the proper result.

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