Kentucky UPEPA declared unavailable in federal court in Peach case

The case of Peach vs. Hagerman, 2024 WL 1748443 (WDKy. April 23, 2024), is from a Kentucky social employee who filed a grievance about possible child abuse. The person against whom the lawsuit was filed prevailed and defended the fees at a hearing. She then sued the social employee for malicious prosecution, defamation, and other matters arising from the social employee’s grievance. The social employee filed a motion to dismiss the lawsuit under Kentucky’s recent Uniform Public Expression Protection Act (UPEPA), asserting the social employee’s protected right to file her grievance.

But now we come to the inevitable downside: The lawsuit was not filed in Kentucky state court, but within the U.S. District Court for the Western District of Kentucky. Even before the UPEPA special strike motion might be heard, there was a preliminary query as as to whether Kentucky’s UPEPA even applied in federal court.

The United States, in fact, has a bifurcated legal system of federal and state courts. However, a federal court with diversity jurisdiction must apply the state law of the district by which the federal court is positioned. However, federal courts have their very own procedural rules, that are embodied within the Federal Rules of Civil Procedure (FRCP). What happens if the FRCP conflicts with state law?

The rule established by the U.S. Supreme Court states that when the FRCP answers a matter pending before the district court, the FRCP shall move to resolve that query to the exclusion of state law on the contrary. The query before the district court here is whether or not the Kentucky UPEPA should apply to present the social employee a likelihood at early dismissal of the plaintiff’s defamation case, or whether the FRCP should apply as usual in cases to permit the plaintiff to conduct investigations allow for severe dismissal before the court.

The district court noted that the U.S. appeals courts’ rulings varied. The U.S. districts which have decided that the FRCP applies in lieu of a state’s anti-SLAPP laws (which would come with UPEPA) are the 2nd, fifth, tenth, eleventh, and DC Districts. However, the first and ninth Circuits have taken the alternative approach and ruled that every state’s anti-SLAPP laws should apply as a substitute of the FRCP. Kentucky sits within the sixth Circuit, which has not yet decided the problems, although the district court noted that an appeal by Tennessee on the matter has been filed before the sixth Circuit. So what to do?

The district court held here that the FRCP essentially provides a procedure for dismissing a lawsuit through a motion for summary judgment (FRCP 56), and that this motion could also be made on the outset of litigation through an FRCP 12(b). (6) Motion to Dismiss. Therefore, for the reason that FRCP has already resolved the problem, the FRCP there would apply as a substitute of the Kentucky UPEPA.

After determining that Kentucky’s UPEPA wouldn’t apply since the FRCP allows for early dismissal of a lawsuit, the court subsequently held that summary judgment mustn’t normally be granted until the parties have accomplished discovery, which was not the case on this case. Therefore, the social employee’s application was rejected.

ANALYSIS

Although anti-SLAPP laws (including UPEPA) are procedural laws, they’re as a substitute substantive laws that provide individuals with a substantive right to relief from extensive litigation based on the lawful exercise of their right be sued for freedom of expression. The preliminary remark to UPEPA states:

“At its core, an anti-SLAPP law is one by which a legislature compels an external change to judicial procedure in the tacit recognition that the judiciary itself has not changed its own procedures to deal with this particular type of abuse To deal with litigation, these laws protect your business material rightsand therefore have material effects. Therefore, it should come as no surprise that each of the 34 legislative decrees has been implemented into law –none are achieved through civil procedural regulations.”

Comment 2 to UPEPA § 2 states:

“Although the law works at a procedural level—particularly by modifying the typical procedure that parties follow at the start of litigation—the law… right The law certainly protects in terms of content in the nature. See US ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972-973 (9th Cir. 1999) (applying California’s anti-SLAPP law to diversity lawsuits in federal court because the law was “designed to serve an interest not directly enforced by the federal rules are addressed: the protection of “the constitutional rights of freedom of speech and petition for redress of grievances.”). In other words, the law’s procedural features are intended to stop material consequences: the impairment of First Amendment rights and the time and expense of defending against litigation that has no demonstrable merit. Williams v. Cordillera Comms., Inc., No. 2:13–CV–124, 2014 WL 2611746, at *1 (SD Tex. June 11, 2014). As a California court noted: “[t]“The point of the anti-SLAPP law is that you have the right not to be dragged to court for exercising your constitutional rights.” People ex rel. Lockyer vs. Brar, 115 Cal. App. 4. 1315, 1317 (4th Dist. 2004).”

The complete disregard of this point by a few of the U.S. district courts has resulted in defamation plaintiffs in these districts engaging in forum shopping by filing in federal court what would otherwise be a purely federal lawsuit solely to handle state anti- To circumvent SLAPP laws. How the Sixth Circuit will ultimately handle these cases is unclear, but ultimately the U.S. Supreme Court may have to sort out the division inside the districts, assuming Congress doesn’t take the matter into its own hands.

If you might be interested by how the Federal Rules of Civil Procedure come into being, here is the Rules Enabling Act of 1934 (28 USC § 2071, and seq.) authorizes the U.S. Supreme Court to adopt court rules or procedures. However, our Supreme Court delegates this function to the Judicial Conference to develop these rules. The Judicial Conference is made up of — you guessed it — U.S. District Court and District Court judges. The judges’ conference subsequently consists of precisely those judges who haven’t managed to take motion against the issue of so-called SLAPP lawsuits. “There’s nothing to see here, ma’am, now please just move on.”

Ideally, the Judicial Conference would amend FRCP 12, the rule that enables certain cases to be dismissed before litigation really gets underway, to raised protect free speech defendants from meritless litigation, but they’ve not done so. As just discussed, federal judges have historically been reluctant to confess that there’s a problem with anything, and so the likelihood of that occuring is slim. So if anything were to occur with anti-SLAPP within the federal courts, congressional motion will likely be required to make it occur.

Anti-SLAPP laws has been introduced now and again in various sessions of Congress, but these introductions have gone nowhere, as have so many good legislative proposals on this highly dysfunctional institution. This is strange because, no less than on the state level, anti-SLAPP laws has proven to be the rare breed that’s popular with each political parties. Still, pressure for federal laws will proceed to mount as anti-SLAPP laws has now been passed by a transparent majority of states, and I expect we’ll at some point see a President sign it into law.

Meanwhile, the appliance of anti-SLAPP laws on the federal level is a multitude, as this case shows.