Metabolic Research, Inc. v. Scott Ferrell
2012 U.S. App. LEXIS 12280
| 9th Cir. | 2012Background
- Ferrell sent prelitigation demand letters in California on behalf of clients alleging CLRA violations by Metabolic and GNC regarding Stemulite; letters sought injunction, refunds, disgorgement, and corrective advertising; Ferrell claimed to represent a class of similarly situated individuals.
- Metabolic filed a Nevada state court action alleging extortion, racketeering, civil extortion, tortious interference, and related claims, seeking declaratory relief and punitive damages, referencing Ferrell’s demand letters.
- Ferrell removed the case to federal court on grounds of complete diversity; Ferrell moved to dismiss under Nevada’s anti-SLAPP statute Nev. Rev. Stat. § 41.660.
- District court denied Ferrell’s anti-SLAPP motion, concluding Nevada’s statute only protected communications to governmental agencies, not pre-litigation demand letters.
- Nevada’s anti-SLAPP framework lacks an express right to an immediate appeal; question presented is whether the denial qualifies as an immediately appealable collateral-order under Cohen v. Beneficial Industrial Loan Corp. and related precedent.
- The Ninth Circuit ultimately held that Nevada’s statute functions as a prompt review mechanism rather than immunity from suit, so the denial is not a collateral-order appealable immediately.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the denial of a pretrial special motion to dismiss under Nevada’s anti-SLAPP statute is an appealable collateral order. | Ferrell argues denial creates immediate appellate right. | Metabolic argues no immediate right under Nevada law. | No; denial is not an immediately appealable collateral order. |
| Whether Nevada’s anti-SLAPP statute provides immunity from suit or merely a defense to liability, affecting collateral-order status. | Nevada’s immunity from civil liability mirrors immunity from suit. | Statute provides immunity from civil liability, not immunity from suit. | Statute provides immunity from civil liability, not immunity from suit, supporting non-appealability. |
| Whether the absence of an express immediate-appeal provision in Nevada law, and Nevada’s use of discretionary writs, indicates non-appealability under collateral-order doctrine. | Emergency appeal is warranted to protect First Amendment rights. | Statutory structure does not confer right to immediate appeal. | Nevada lacks a right-to-appeal provision; collateral-order appeal not appropriate. |
Key Cases Cited
- Englert v. MacDonell, 551 F.3d 1099 (9th Cir. 2009) (anti-SLAPP collateral-order appeal varies by state law; Oregon example used for comparison)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (California anti-SLAPP provides immunity from suit; collateral-order appeal allowed)
- Will v. Hallick, 546 U.S. 345 (U.S. 2006) (tests for collateral order appeal: conclusive, separable, reviewable later)
- Digital Equipment Corp. v. Desktop Direct, Inc., 511 U.S. 863 (U.S. 1994) (collateral order doctrine limited to a narrow class)
- Mohawk Indus. v. Carpenter, 130 S. Ct. 599 (U.S. 2010) (limits on interpreting collateral-order framework; consider public-interest implications)
- John v. Douglas County School Dist., 219 P.3d 1276 (Nev. 2009) (Nevada anti-SLAPP context; public-interest considerations)
- Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164 (5th Cir. 2009) (discussed writs vs. appeals in absence of right to immediate appeal)