Think Twice Before Removing California SLAPP Cases To Federal Court

Co-written by Gialisa Whitchurch

Unless there is a compelling reason to remove a case to federal court, defendants who plan to file a special motion to strike under California's anti-SLAPP statute, C.C.P. 425.16, should stay in state court. Defendants can file anti-SLAPP motions in federal court, but for a variety of reasons defendants should strongly consider keeping SLAPP cases in state court:

Unlike state court, there is no automatic stay of discovery once a special motion to strike is filed in federal court.

The federal courts have not addressed whether the automatic right to appeal exists if a special motion to strike is denied.

According to one federal court, Section 425.16 cannot be used to strike federal question claims in federal court.

A federal judge may not have prior experience with the objectives of Section 425.16.

It is uncertain whether, in federal court, defendants have a full 60 days from service of the complaint to file a special motion to strike without leave of court.

No Discovery Stay in Federal Court

California's anti-SLAPP statute (California Code of Civil Procedure 425.16) was enacted to assure prompt dismissal of lawsuits that would chill one's right to free speech through costly, time-consuming litigation. This statute permits a special motion to strike any cause of action arising from any act of the person in furtherance of his "right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." C.C.P. 425.16(b). In 1997, reacting to court rulings that did not go far enough to quash lawsuits that targeted free speech rights, the Legislature amended the statute to ensure that it "shall be construed broadly."1

Due to a recent Ninth Circuit opinion, Metabolife Int'l., Inc. v. Wornick, 264 F.3d 832 (9th Cir. 2001), it is especially important for SLAPP defendants to pause before removing to federal court. The Ninth Circuit adopted a lower court's decision that the early-filing provision and automatic discovery stay of California's anti-SLAPP statute directly conflict with the right of discovery available under Federal Rule of Civil Procedure 56.

When a defendant meets its initial burden under Section 425.16(b) of showing that the anti-SLAPP statute applies to a plaintiff's complaint, the statute requires dismissal unless the plaintiff can show by competent and admissible evidence that he probably will prevail on his claims.2 As an additional deterrent to filing lawsuits that would chill a person's right to free speech, a prevailing defendant will recover fees and costs under section 425.16(c). Consistent with the intent to protect defendants from burdensome legal expenses to defend meritless lawsuits, a special motion to strike can be brought without leave of court, early in the lawsuit (60 days after service of the complaint), and all discovery is stayed upon filing of the motion unless good cause for discovery is demonstrated.

In light of the Ninth Circuit decision in Metabolife, however, the subsection of the anti-SLAPP statute that stays discovery - probably the most effective mechanism for limiting a...