Yaroslav Lozovyy v. Richard Kurtz
813 F.3d 576
| 5th Cir. | 2015Background
- Lozovyy, a CAMD LSU research assistant from 2001–2012, was terminated when CAMD chose not to renew his renewable contract in 2012.
- Dowben, a University of Nebraska–Lincoln professor, collaborated with Lozovyy and interceded with LSU on Lozovyy’s behalf.
- During a 2012 conference call with Dowben, Kurtz, Klei, and others, Lozovyy allegedly was told he had stolen or destroyed CAMD data.
- Lozovyy filed a defamation suit on July 1, 2013, asserting Kurtz and Klei made the defamatory statements.
- Defendants moved for a special motion to strike under Louisiana Code of Civil Procedure Article 971, supported by affidavits denying the statements were made.
- The district court granted the motion in January 2015, concluding Article 971 required weighing credibility and finding no genuine dispute of material fact.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Timeliness of the special motion to strike and hearing | Lozovyy argues motion/hearing untimely under 971 | Defendants argue discretionary late filing/hearing allowed | Timeliness doctrine discretionary; not barred by timing provisions |
| Proper application of Article 971’s probability of success standard | Louisiana law forbids weighing credibility; genuine disputes preclude dismissal | Article 971 allows weighing evidence to show no probability of success | Article 971 does not permit credibility weighing; remand for proper application of standard |
| Erie/Rule 56 compatibility of Article 971 | Article 971 may conflict with Rule 56 if used as summary-judgment-like tool | Henry permits Article 971 in federal diversity case; policy considerations apply | Court assumes Article 971 applies; does not decide Erie conflict; reversal on interpretation of standard |
| Rule on credibility assessments and material facts | Cannot resolve disputes of material fact by credibility findings | Dispute resolution permitted under 971 when credibility is at issue | Louisiana law would not permit weighing credibility to resolve disputed facts; reversal warranted |
Key Cases Cited
- Thomas v. City of Monroe, 833 So.2d 1282 (La. App. 2d Cir. 2002) (broad construction of Article 971 provisions)
- Aymond v. Dupree, 928 So.2d 721 (La. Ct. App. 3d Cir. 2006) (scheduling of hearing allowed on same date for efficiency)
- Henry v. Lake Charles American Press, 566 F.3d 164 (5th Cir. 2009) (describes burden-shifting and probability of success under 971)
- Sassone v. Elder, 626 So.2d 345 (La. 1993) (discusses defamation standard and summary judgment approach)
- Kennedy v. Sheriff of East Baton Rouge, 935 So.2d 669 (La. 2006) (summary judgment standard aligned with modern practice)
- Bradford v. Judson, 12 So.3d 974 (La. Ct. App. 2d Cir. 2009) (treats Article 971 standard as interchangeable with summary judgment in some respects)
- Baxter v. Scott, 847 So.2d 225 (La. Ct. App. 2d Cir. 2003) (California-like anti-SLAPP analysis cited in Louisiana context)
- GetFugu, Inc. v. Patton Boggs LLP, 162 Cal. Rptr.3d 831 (Cal. Ct. App. 2d Dist. 2013) (California anti-SLAPP standard—no weighing of credibility at threshold)
- D’Arrigo Bros. of Cal. v. United Farmworkers, 169 Cal. Rptr.3d 171 (Cal. Ct. App. 6th Dist. 2014) (California standard applied to anti-SLAPP context)