Sherrod v. Breitbart
843 F. Supp. 2d 83
D.D.C.2012Background
- Sherrod sues Breitbart and O'Connor for defamation, false light, and intentional infliction of emotional distress in D.D.C.
- Defendants move to dismiss under the D.C. Anti-SLAPP Act, though the Act became effective after the suit was filed.
- Court denied the motion on July 28, 2011, and defendants timely appealed; appellate remand followed for a statement of reasons.
- Court analyzes three grounds: retroactivity/substantive vs procedural, Erie doctrine, and timeliness of the motion.
- Court concludes the DC Anti-SLAPP Act is not retroactively applicable, Erie bars its application in federal court, and the motion was untimely, so the motion to dismiss is denied.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Retroactivity of the D.C. Anti-SLAPP Act | Sherrod argues the Act is substantive and retroactivity should be recognized | Defendants contend the Act is retroactive and substantive, or at least has substantive consequences | Act not retroactive; retroactivity not clearly intended; denial based on substantive effects and lack of retroactive intent |
| Erie doctrine applicability in federal court | Sherrod argues state substantive law governs in diversity; Act may apply | Defendants argue Erie requires applying federal procedural law, excluding the DC Act | Erie bars applying the DC Act in federal court |
| Timeliness of filing the special motion to dismiss | Sherrod argues timely filing within 45 days | Defendants filed April 18, 2011, after March 30, 2011 deadline | Motion untimely; procedurally defaulted |
Key Cases Cited
- Bank of Am., N.A. v. Griffin, 2 A.3d 1070 (D.C. 2010) (retroactivity and substantive vs procedural considerations in DC law)
- Montgomery v. District of Columbia, 598 A.2d 162 (D.C. 1991) (retroactivity analysis under DC law)
- Wolf v. District of Columbia Rental Accommodations Comm'n, 414 A.2d 878 (D.C. 1980) (retroactivity and procedural-substantive distinctions)
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (anti-SLAPP statute substantive considerations in federal context)
- Godin v. Schencks, 629 F.3d 79 (1st Cir. 2010) (burden-shifting provisions as substantive in nature)
- United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999) (statutory provisions for fees and costs treated as substantive)