El Paso Federal Court Dismisses SLAPP suit
A federal judge in El Paso granted several motions to dismiss in a “SLAPP” suit in federal court this week.
The lawsuit, filed by night club owner David Cooper against the Cielo Vista neighborhood association, the City of El Paso and several individual defendants (a total of 12 defendants) alleged defamation and tortuous interference. The neighborhood association and several neighbors had spoken out against Cooper’s plans to bring a nightclub into the area and the City of El Paso supported the neighbors. The association also protested a liquor license application. KFOX Channel 14 posted a story about the lawsuit on its website.
Defendants filed several motions to dismiss on various grounds, including based on the Texas Citizens Participation Act, Texas’ new anti-SLAPP law. As one of the motions stated, “CVNA is being sued for encouraging its City Representatives to act!”
Defendant Irene Borunda said, “All that the neighbors and the association did was to file a protest against his liquor license.” Borunda said that the Plaintiff was seen on television expressly stating that the defendants should learn their lesson and not protest his liquor license. Borunda expressed gratitude for Judge Briones’ decision.
In a two-page order granting several motions to dismiss, one of which had included anti-SLAPP arguments, Senior U.S. District Judge David Briones issued an order Tuesday finding that “the Plaintiff’s claims are frivolous, without merit, and made only to stifle opposition and quiet the neighborhood.” The court also wrote that it would “give strong consideration to any motions for attorneys’ fees the Parties may file.” Monaco Entertainment Group, LLC and David Cooper v. City of El Paso, et. al., 3:11-cv-00561-DB (W.D.Tex-El Paso, order issued April 3, 2012). Attorneys fees are mandatory under the statute. According to the order, a memorandum opinion is forthcoming and we will post when it is available.
A related state law case was also dismissed recently under the Anti-SLAPP law. See Three Legged Monkey, et., al vs. Irene Borunda, Robert Borunda, John Billingslea, Anna Nazario, John Cook, Case No. 2012-DCV00099 (327th District Court, El Paso County, Tex., filed 1/3/2012).
First Amendment attorney Laura Prather, who drafted the statute and led a coalition to support its passage in the state legislature last year, and who has recently argued and won multiple anti-SLAPP motions in Texas state courts, said the ruling was “a win for all Texans. This precedent will pave the way for others sued in federal court to be able to get early dismissals under the anti-SLAPP statute.”
In an amended complaint filed in February, the Plaintiffs had argued that the anti-SLAPP law is unconstitutional because it deprives them of the right to file a lawsuit that the court has clearly found to be frivolous, and that it deprived them of the right to have their frivolous lawsuit heard by a jury. Similar arguments that anti-SLAPP laws are unconstitutional have been widely rejected by state appellate courts across the country. The plaintiffs also asserted that the law should not apply to this suit because some of the actions in the lawsuit took place before the effective date of the Act. However, the Citizens’ Participation Act clearly states that the act applies to lawsuits that are filed after June 17, 2012, regardless of when the complained-of acts occurred. See 2011 Tex. Sess. Law Serv. Ch. 341, Sec. 3-4 (H.B. 2973) (West).
There is a split among federal courts in applying state anti-SLAPP laws. Several jurisdictions, including California, have applied state anti-SLAPP laws to state claims brought in federal court but not all jurisdictions have followed suit. Recently federal courts in the District of Columbia declined to apply D.C’s new anti-SLAPP law. Conditions are favorable for using the law in Texas federal courts for two reasons—first, the language of the Texas statute is similar to California’s thus providing ample precedent, and second the Fifth Circuit Court of Appeals, which is precedential in Texas, has already upheld application of Louisiana’s Anti-SLAPP law in federal court. Courts general decide whether or not to apply state anti-SLAPP laws to federal cases based on the Erie doctrine, and whether or not the state law is determined to be substantive or procedural.
At least one other anti-SLAPP motion is pending in a Texas federal court, in the case of Ward v. Rhode, No. 6:11-cv-00531 (Southern Dist. Tex., filed Oct. 7, 2011).
Click here to download the order granting the motions to dismiss.
Slapped In Texas 
Doesn’t anyone have a problem with the idea of a public entity (City of El Paso) using a statute designed and intended to protect citizen rights as a means to stop a citizen from exercising their rights (petitioning for redress of grievances in the courts) and to penalize the citizen’s exercise of their right with an award of the government agency’s attorney’s fees?
It is one thing to balance a citizen’s right to access to justice through the courts against another citizen’s right to be free of unmeritorious lawsuits. But government has no rights and should not be able to penalize the unsuccessful exercise of rights unless the lawsuit is clearly demonstrated to be a “sham” – which is not what the statute requires and not what the facts showed here.