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Tuesday, May 05, 2015

The next Erie/Hanna issue for SCOTUS?

The applicability of state anti-SLAPP provisions (specifically those that allow for a special motion to dismiss, in which a plaintiff must show a likelihood of success on the merits) in federal court. Last week, the D.C. Circuit held that such measures do not apply in federal court. The court held that two Federal Rules--FRCP 12 and 56--form an "integrated program" for granting pre-trial judgment onto which state law cannot add.

This creates a circuit split--at least three circuits (1st, 5th, and 9th) hold that state law does apply in federal court under an "unguided Erie analysis," while four judges from the Ninth Circuit (including Kozinski) reached the same conclusion as the D.C. Circuit in dissenting from denial of rehearing en banc.

Posted by Howard Wasserman on May 5, 2015 at 09:31 AM in Civil Procedure, First Amendment, Howard Wasserman | Permalink


Law made by the local DC government is not treated as federal law, particularly the rules of procedure for the DC courts (as opposed to the US District Court for the District of the District of Columbia).

Posted by: Howard Wasserman | May 5, 2015 2:45:04 PM

Why is Erie even implicated in a case involving a law in the District of Columbia? All law there is federal law. Erie involves state law.

Posted by: zack | May 5, 2015 2:04:28 PM

The application of Marks to Shady Grove is interesting too.

Posted by: Asher | May 5, 2015 11:44:24 AM

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