L. Lobos Renewable Power, LLC v. AmeriCulture, Inc., 885 F.3d 659

Background

LDG (Lightning Dock Geothermal) and its affiliate LLRP sued Americulture and its New Mexico resident director in federal court (diversity) alleging state-law claims tied to permit objections and misrepresentations that impeded LDG’s geothermal project.
Americulture filed a “special motion to dismiss” under New Mexico’s anti‑SLAPP statute (N.M. Stat. §§ 38‑2‑9.1, 38‑2‑9.2), arguing the statute grants expedited procedures (and effectively immunity from the burdens of litigation) when speech-related conduct before quasi‑judicial bodies is challenged.
The district court refused to apply the New Mexico anti‑SLAPP statute in federal diversity court, treating it as procedural and thus inapplicable; it certified the question under 28 U.S.C. § 1292(b).
Defendants failed to seek permission to appeal under § 1292(b) and instead filed a notice of appeal. The panel therefore first addressed whether the collateral order doctrine supplied appellate jurisdiction.
The court (majority) held it had collateral‑order jurisdiction because (1) the district court’s Erie determination was conclusive, (2) the applicability of the anti‑SLAPP statute is an issue separate from the merits, and (3) denial of the statute would be effectively unreviewable after final judgment because the statute’s benefit—avoiding litigation burden—would be lost.
On the merits (unanimous panel), the court held New Mexico’s anti‑SLAPP statute is procedural (expedited procedures, sanctions, interlocutory appeals) and does not create substantive immunity or change substantive standards, so it does not apply in federal diversity cases under Erie.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether this court has appellate jurisdiction via the collateral order doctrine over district court’s refusal to apply New Mexico anti‑SLAPP law	Plaintiffs: No — defendants should have petitioned under § 1292(b); collateral‑order doctrine does not apply	Defendants: Yes — order conclusively resolves important separable right (expedited process/avoidance of trial burden) and would be effectively unreviewable	Held: Yes. Majority: collateral order doctrine applies; order meets Cohen factors (conclusive, separate from merits, effectively unreviewable). Dissent: would deny jurisdiction.
Whether New Mexico’s anti‑SLAPP statute is substantive (thus binding federal courts in diversity) or procedural (inapplicable)	Plaintiffs: Statute is procedural; does not create substantive rights or immunity and therefore not applied in federal court	Defendants: Statute confers a right not to stand trial (immunity‑like protection) and grants substantive protections that federal courts must honor	Held: Statute is procedural. It prescribes expedited procedures, fee/ sanctions mechanics, and interlocutory appeal; it does not alter substantive defenses or standards, so it does not apply in federal diversity actions under Erie.
Whether New Mexico’s anti‑SLAPP statute supplies substantive immunity that would justify immediate interlocutory review	Plaintiffs: No; immunity is not in the statute’s text; substantive immunity must be created explicitly	Defendants: The statute functions like immunity (protects from burdens of trial) and therefore warrants immediate review	Held: No substantive immunity in statute. New Mexico Supreme Court (Cordova) treats anti‑SLAPP as procedural and looks outside statute (e.g., Noerr‑Pennington) for substantive defenses.
Whether federal procedural tools suffice to protect against SLAPPs absent state anti‑SLAPP application	Plaintiffs: Federal rules and sanctions (Rules 11, 12, 16, 56; inherent authority) can vindicate similar interests	Defendants: State statutory procedures provide unique, legislatively mandated expedited relief that federal courts may not replicate	Held: Court notes federal tools exist but focuses Erie: state anti‑SLAPP is procedural and thus not applied in federal diversity suits; defendants must rely on substantive defenses recognized outside the statute or federal procedural remedies.

Key Cases Cited

Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949) (establishing collateral order doctrine and reviewing state statute applicability in diversity)
Will v. Hallock, 546 U.S. 345 (2006) (limits collateral order doctrine; identifies categories typically appealable)
Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938) (governs conflict between state substantive law and federal procedure in diversity cases)
Shady Grove Orthopedic Assoc. v. Allstate Ins. Co., 559 U.S. 393 (2010) (discusses distinction between substantive and procedural rules for Erie purposes)
Sibbach v. Wilson & Co., 312 U.S. 1 (1941) (federal courts apply state substantive law and federal procedural law)
Mitchell v. Forsyth, 472 U.S. 511 (1985) (discusses immunity and effective unreviewability under collateral order doctrine)
Mohawk Indus., Inc. v. Carpenter, 558 U.S. 100 (2009) (cautioning that collateral order doctrine must remain narrow)
Coopers & Lybrand v. Livesay, 437 U.S. 463 (1978) (sets elements for collateral order appealability)
Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014) (holding district court’s anti‑SLAPP applicability ruling collaterally appealable)
Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) (treating anti‑SLAPP applicability in federal court as separable from merits)
Liberty Synergistics, Inc. v. Microflo Ltd., 718 F.3d 138 (2d Cir. 2013) (analysis of anti‑SLAPP applicability and procedural versus substantive effects)