Friday, March 9, 2012

Appealability of SLAPP orders in Federal Court under collateral order doctrine depends on state law

If you file a SLAPP motion in federal court these days and that motion is denied, do you have an immediate appeal right under the collateral order doctrine first set forth in Cohen v. Beneficial Industrial Loan Corp. (1949)? More recently, Batzel v. Smith (9th Cir. 2003) 333 F.3d 1119 was the first SLAPP case to reach the 9th Circuit, address this question, and apply the collateral order doctrine to the immediate appeal provision set forth in California's anti-SLAPP law. The 9th Circuit, however, reached an opposite conclusion in Englert v. MacDonell (2009) and held that the collateral order doctrine did not apply to Oregon's anti-SLAPP law. In Metabolic Research v. Ferrel (9th Cir 2012) 2012 DJDAR 1862, the 9th Circuit reached a similar conclusion holding that the collateral order doctrine did not make orders denying SLAPP motions under Nevada law appealable. The key to each of these decisions is the plain language of each state's respective anti-SLAPP statutes. Because California law has the biggest and baddest anti-SLAPP statute, with limited exceptions, it will be applied to pendent state law claims in federal court just as it is in California Court. Conversely, because Oregon and Nevada have more wimpy anti-SLAPP statutes that do not provide for an immediate appeal for a losing SLAPP defendant, the collateral order doctrine is not going to create an immediate appeal right in federal court.