In Coomer v. Make Your Life Epic LLC, No. 23-1109 (10th Cir. Apr. 23, 2024), the Tenth Circuit dismissed an attempted appeal of an order denying a “special motion to dismiss” under a state anti-SLAPP statue, holding that it did not fit within the confines of the collateral-order doctrine.
Many jurisdictions have anti-SLAPP (Strategic Lawsuit Against Public Participation) statutes that give defendants special protection against civil lawsuits thought to interfere with or retaliate against protected speech activities. Colorado has one such statute that provides, among other things, for a “special motion to dismiss” (also called an “anti-SLAPP motion”) so that the district court can “make an early assessment about the merits” of the lawsuit. If a lawsuit is found to arise from an act “in furtherance of the defendant’s right of petition or free speech in connection with a public issue,” then the court must decide whether the plaintiff has “reasonable likelihood [of] prevail[ing] on the claim.”
In this case, the plaintiff was a director of Dominion Voting Systems, who was the subject of an alleged smear campaign by a podcast, in which the host claimed that plaintiff was a member of “Antifa” and had “rigged the election in favor of Joseph R. Biden and against Donald J. Trump.” Plaintiff sued for defamation and other state torts. The defendant filed an anti-SLAPP motion, but the district court held that the plaintiff was likely to prevail on the merits. The defendant then took an immediate appeal from the denial of the motion.
The Tenth Circuit dismisses the appeal for lack of appellate jurisdiction. Because there was no final judgment, the defendant based the appeal on the collateral-order doctrine. “Under this doctrine, an interlocutory district-court order may be appealed if three conditions are met: (1) the order is ‘conclusive’ on the question it decides, (2) the order ‘resolve[s] important questions separate from the merits,’ and (3) the order is ‘effectively unreviewable’ if not presented in an interlocutory appeal.”
The panel raised doubt about whether the anti-SLAPP motion could even be brought in federal court: “Dr. Coomer did not raise an Erie challenge to the procedural framework of Colorado’s anti-SLAPP statute. So we consider that issue waived and do not decide it. We do note that plaintiffs have prevailed on this ground elsewhere,” citing cases from the D.C., Seventh, and Eleventh Circuits.
Nevertheless, the panel holds that denial of an anti-SLAPP motion fails to trigger collateral-order jurisdiction because it is not “separate from the merits.” Indeed, evaluation of the merits are a central part of the anti-SLAPP framework. “To succeed on his defamation claim under Colorado law, Dr. Coomer has to prove: (1) a defamatory statement; (2) that was materially false; (3) concerning Dr. Coomer; (4) published to a third party; (5) with actual malice; and (6) that caused actual or special damages . . . . In deciding Epic’s motion, the district court scrutinized Dr. Coomer’s ‘submitted evidence’ and ‘declarations’ against each of these six elements, before concluding that Dr. Coomer was likely to succeed in proving the merits of his defamation claim.”
The defendant argued, though, that anti-SLAPP statutes were akin to immunity from litigation: “As Epic sees it, if Colorado’s anti-SLAPP statute provides an immunity from trial, then it follows that denials of such orders decide an issue distinct from the merits. So, they posit, orders denying anti-SLAPP motions are immediately appealable for the same reasons that orders denying qualified or absolute immunity are.”
“To start, we question Epic’s premise that Colorado’s anti-SLAPP statute provides defendants an immunity from trial. True, some courts have treated other states’ anti-SLAPP statutes as providing a semblance of immunity. But no court has interpreted Colorado’s anti-SLAPP statute in this way. In fact, Colorado courts have consistently described Colorado’s anti-SLAPP statute as merely providing defendants with procedural expediency . . . . “
“Moreover, appellate review here would infringe on a principal purpose of the separability requirement: preventing piecemeal appellate review . . . . Say we were to recognize appellate jurisdiction and affirm the district court’s order, and on remand Dr. Coomer were to prove his claims at trial. Then, in a future appeal, we might be forced to decide the ‘actual merit’ of Dr. Coomer’s claims despite having already considered their ‘potential merit’ now.”
The panel finally notes a split of circuit authority on the issue, finding that the Second Circuit agrees there is no collateral-order jurisdiction, while the First, Fifth, and Ninth Circuit have ruled the other way.
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