Shirley Sherrod vs. Andrew Breitbart Appeal
Presented for review and discussion without comment.
United States Court of Appeals for the District of Columbia Circuit
Filed October 21, 2011.
…Although Defendants-Appellants Andrew Breitbart and Larry O’Connor concede that this Court lacks jurisdiction to review the District Court’s interlocutory order denying their Rule 12(b)(6) motion to dismiss, they nonetheless contend that the collateral-order doctrine allows them to appeal anyway simplybecause they asserted the very same grounds for dismissal in a ‘special’ Anti-SLAPP motion to dismiss. On this basis, Defendants informed the District Court that it had lost jurisdiction over all aspects of his case and refused to participate inongoing discovery proceedings. Because Defendants are wrong on each of thesescores, Plaintiff-Appellee Shirley Sherrod moves to dismiss this appeal for lack of jurisdiction so that this case—and discovery—can properly resume below…
…The point here is straightforward. When Plaintiff filed her Complaint on February 11, 2011, she had no threshold obligation to demonstrate that her claims were ‘likely to succeed on the merits’ before discovery began. D.C. Code § 16-5502(b). Rather, she only had to allege ‘a short and plain statement of [her] claim[s],’ which she did. See Fed. R. Civ. P. 8(a)(2). Nor did she face the prospect of paying Defendants’ ‘costs of litigation, including reasonable attorney fees,’ if the District Court concluded that her claims lacked merit. See D.C. Code § 16-5504(a). The Anti-SLAPP Act changed that, and in doing so, it substantively altered the consequences of Plaintiff’s decision to file her Complaint. Because the Act does not clearly state that it should have this retroactive effect, it does not apply to this case. Accordingly, the District Court properly denied Defendants’ Anti-SLAPP motion to dismiss on retroactivity grounds—just as it properly rejected the ‘opinion’ defense identically asserted in both threhold motions to dismiss. The District Court’s Anti-SLAPP order thus should be affirmed.
For the foregoing reasons, this appeal should be dismissed for lack of jurisdiction or, in the alternative, the District Court’s order should be affirmed.