CHRISTOPHER BARNETT v. HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C.; J. KEVIN HAYES, Special Administrator of the Estate of John Patrick Cremin; JOHNATHAN L. ROGERS; UNIVERSITY OF TULSA, a private university
No. 18-5090, 18-5091, 18-5092
United States Court of Appeals for the Tenth Circuit
April 20, 2020
HARTZ, BALDOCK, and EID, Circuit Judges.
PUBLISH
Appeal from the United States District Court for the Northern District of Oklahoma (D.C. No. 4:18-CV-00064-TCK-FHM)
John David Lackey, Tulsa, OK (Phil R. Richards, Tulsa, OK, on the briefs) on behalf of Appellees/Cross-Appellants.
Plaintiff Christopher Barnett appeals the judgment of the United States District Court for the Northern District of Oklahoma dismissing with prejudice his federal civil-rights claims for failure to state a claim and dismissing with prejudice his state-law claims because they do not survive the restrictions imposed by the Oklahoma Citizens Participation Act (OCPA),
We affirm the dismissal of the federal-law claims, agreeing with the district court that the complaint does not adequately allege that any of the Defendants acted under color of state law. But we reverse the judgment on the state-law claims and remand to the district court with instructions to dismiss the claims without prejudice or remand them to the state court. Our reversal is in keeping with the regular practice in this circuit of dismissing without prejudice state-law claims for which the district court has only supplemental, rather than original, jurisdiction when the federal-law claims to which they are supplemental are dismissed early in the litigation. Because of the reversal, we have no occasion to consider the merits of Defendants’ cross-appeal on attorney fees.
Barnett‘s complaint bases his claims on an incident on January 4, 2018, related to a hearing in Oklahoma state court on an open-records case he had brought against Tulsa Community College. According to Barnett, two lawyers in the firm of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., (Hall Estill)— namely, J. Patrick Cremin and
Barnett filed suit in state court the next day against Cremin, Rogers, Hall Estill, and Tulsa University (TU), alleging federal civil-rights claims under
Shortly after removal, Defendants moved to dismiss the federal and state claims, and Barnett moved to recuse the district-court judge. The district court denied Barnett‘s
In the same order dismissing the federal claims, the district court applied the OCPA and dismissed with prejudice the state claims. Before summarizing the district court‘s ruling, a further description of the state statute will be useful. The OCPA is one of a number of state laws throughout the country that are designed to reduce the frequency of what are called SLAPP lawsuits. (SLAPP is an acronym for “Strategic Lawsuit Against Public Participation.” Krimbill v. Talarico, 417 P.3d 1240, 1245 (Okla. Civ. App. 2017)). As the Oklahoma Court of Civil Appeals has explained: “Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against legitimate critics, with the intent to silence those critics by burdening them with the time, stress, and cost of a legal action. To [curb such lawsuits], anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed in order to weed out meritless suits early in the litigation process.” Id.; see Anagnost v. Tomecek, 390 P.3d 707, 709–10 (Okla. 2017) (“The stated purpose of the [OCPA] is to encourage and safeguard the constitutional rights of persons to ‘petition, speak freely, associate freely and otherwise participate in government to the maximum extent permitted by law and, at the same time, protect the rights of a person to file a meritorious lawsuit for a demonstrable injury.’ It accomplishes this goal by allowing parties to file motions to dismiss legal actions if the legal action relates or is in response to free speech.” (quoting
Although this court had held in Los Lobos Renewable Power, LLC v. Americulture, Inc., 885 F.3d 659, 673 (10th Cir.), cert. denied, 139 S. Ct. 591 (2018), that the New Mexico anti-SLAPP statute does not apply in federal court, the district court did not believe itself bound by our precedent. The district court correctly understood Los Lobos to be “carefully limited to the New Mexico law it addresses.” Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., No. 18-cv-00064-TCK-FHM, 2018 WL 4038117, at *3 (N.D. Okla. Aug. 23, 2018). Our prior opinion was “based on the text of the New Mexico law and distinguish[ed] it from other anti-SLAPP statutes . . . ‘that shift substantive burdens of proof, or alter substantive standards.‘” Id. (quoting Los Lobos, 885 F.3d at 670). The district court reasoned that the
Applying the OCPA framework, the district court first ruled that Barnett‘s state-law claims related to Defendants’ exercise of the right to free speech because the communication alleged by the complaint (a report of a threat) was related to health or safety, which is a matter of public concern under the OCPA. The burden then fell on Barnett to establish by clear and specific evidence his prima facie case. The district court walked through the elements of each of his state-law claims and concluded that he had presented no evidence to support them. It dismissed with prejudice the state-law claims.
I. DISCUSSION
We address in turn (1) the dismissal of the federal
A. Section 1983 Claims
We review de novo the dismissal of a complaint under
Defendants are all private actors. Barnett argues that they nevertheless acted under color of state law because their actions satisfied the tests for joint action and symbiotic relationship with the AG‘s office. We disagree.
The first test is whether the private party was “a willful participant in joint action with the State or its agents.” Gallagher, 49 F.3d at 1453. Barnett contends that his complaint establishes joint action because it alleges that Defendants conspired with state officers. See Sigmon v. CommunityCare HMO, Inc., 234 F.3d 1121, 1126 (10th Cir. 2000) (“[O]ne way to prove willful joint action is to demonstrate that the public and
But Barnett failed to adequately allege a conspiracy. His claim of a conspiracy is conclusory, devoid of allegations of specific facts in support. See Beedle v. Wilson, 422 F.3d 1059, 1073 (10th Cir. 2005) (“[T]he plaintiff must specifically plead facts tending to show agreement and concerted action.” (internal quotation marks omitted)). All he alleges is that Defendants filed a false threat report with officials in the AG‘s office. But “furnishing information to law enforcement officers, without more, does not constitute joint action under color of state law.” Schaffer v. Salt Lake City Corp., 814 F.3d 1151, 1157 (10th Cir. 2016). “Rather, joint action arises only when an officer‘s decision to initiate an arrest or a prosecution was not independent of a private party‘s influence.” Id. The complaint contains no factual allegations to support a plausible inference that the AG‘s office acted under Defendants’ influence beyond their being a source of information.
Barnett‘s argument under the symbiotic-relationship test fares no better. That test has rarely been applied, see Gallagher, 49 F.3d at 1451, and has been limited to substantial, intimate long-term relationships, see Burton v. Wilmington Parking Authority, 365 U.S. 715, 725 (1961) (public parking authority that leased space to segregated restaurant on which the parking facility was financially dependent had “so far insinuated itself into a position of interdependence with [the restaurant] that it must be recognized as a joint participant in the [racially discriminatory] activity“); Milo v. Cushing Municipal Hosp., 861 F.2d 1194, 1196 (10th Cir. 1988) (city “substantially participated in the funding, creation, and financial structure of the Hospital,” and three city commissioners were trustees that oversaw the hospital).
The situation alleged here is a far cry from what has been held to be a symbiotic relationship. There are no factual allegations regarding any past relationship whatsoever between Defendants and the AG‘s office; and there is certainly no indication that either is dependent on the other. We reject Barnett‘s suggestion that the isolated incident described in the complaint could establish a symbiotic relationship.
To salvage his claims, Barnett makes two cursory procedural arguments. He says that the district court erred by (1) denying him leave to amend his complaint, and (2) sua sponte dismissing the federal claims as to Hall Estill. Both can be disposed of quickly. The first fails on two grounds. One is that he did not request leave to amend at any time in district court. See Burnett v. Mortg. Elec. Registration Sys., Inc., 706 F.3d 1231, 1238 n.4 (10th Cir. 2013) (“Where a plaintiff does not move for permission to amend the complaint, the district court commits no error by not granting such leave.“). He excuses his failure on the ground that he was awaiting a ruling on the motion to dismiss before trying to cure any possible defects. But cases are not to be litigated piecemeal. The court should not have to address repeated “improvements” to the complaint. When a party faces a motion to dismiss and it believes that it can overcome objections with an amendment to the pleading, it should seek leave to amend at that time. Efficient adjudication of disputes requires that the party present its best effort to state a claim before the court addresses the motion to dismiss. See Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir. 2003) (“[W]e have
Similarly, we will not reverse the sua sponte dismissal of the federal claims against Hall Estill because Barnett offers no argument to support the claims, or possible amended claims, against the firm. See McKinney v. Okla. Dep‘t of Human Servs., 925 F.2d 363, 365 (10th Cir. 1991) (sua sponte dismissal “is not reversible error when it is patently obvious that the plaintiff could not prevail on the facts alleged . . . and allowing him an opportunity to amend his complaint would be futile” (internal quotation marks omitted)).
We therefore affirm the district court‘s dismissal of Barnett‘s
B. State Claims
The district court dismissed Barnett‘s state claims under the dismissal procedure of the OCPA. It applied that state statute because it saw no conflict between it and the Federal Rules of Civil Procedure for two reasons: First, it said that “the OCPA is a statement of the substantive policy of the State of Oklahoma,” whereas the Federal Rules “do not provide any policy goals, nor any burden shifting and changes to substantive standards to enact these goals.” Barnett, 2018 WL 4038117 at *4. Second, it said that a
We are not so sure. We recognize that our decision in Los Lobos, 885 F.3d at 673 n.8, which rejected the application in federal court of the New Mexico anti-SLAPP statute, is not controlling. In that case we simply held that the Federal Rules governed because the state law was strictly procedural (merely requiring that standard procedures be expedited). See id. at 668–72. Nevertheless, we did say that it was “very much debatable” whether the New Mexico statute could operate alongside the Federal Rules without conflict. Id. at 673 n.8.2
More closely in point is the persuasive reasoning of the D.C. Circuit in an opinion by then-Judge Kavanaugh holding that the District of Columbia anti-SLAPP statute could not apply in federal district court. See Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328 (D.C. Cir. 2015). Relying on Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), the circuit court adopted a more expansive view than that expressed by the district court here of when state law conflicts with a Federal Rule. It
Perhaps there is in practice no real difference between the OCPA and the Federal Rules because the same analysis is to be used for both application of the OCPA dismissal standards and the Federal Rules for dismissal for failure to state a claim and summary judgment.4 If there is a difference, however, an analysis under the Federal Rules Enabling Act,
The Supreme Court has encouraged the practice of dismissing state claims or remanding them to state court when the federal claims to which they are supplemental have dropped out before trial. See, e.g., Carnegie–Mellon Univ. v. Cohill, 484 U.S. 343, 350 n.7 (1988) (“[I]n the usual case in which all federal-law claims are eliminated before trial, the balance of factors to be considered under the pendent jurisdiction doctrine—judicial economy, convenience, fairness, and comity—will point toward declining to exercise jurisdiction over
In this case the district court resolved the federal-law claims at a very early stage of the litigation. This in itself counsels dismissal without prejudice of the state-law claims at the same time. In addition, there is a novel issue of state law regarding attorney-fee awards under the OCPA. The OCPA provides that “the court shall award to
We therefore reverse the dismissal of the state claims under the OCPA and remand with instructions to dismiss them without prejudice or remand them to state court. Because of our disposition of this issue, we need not address Barnett‘s remaining challenges to the OCPA.
C. Recusal
Barnett challenges the district judge‘s denial of his motion to recuse. A district judge “shall disqualify himself in any proceeding in which his impartiality might
On appeal Barnett argues two grounds for recusal. First, he contends that financial contributions made by the district judge‘s spouse to TU, her alma mater, created an appearance of impropriety. The district judge had been previously asked to recuse himself in an unrelated case, see Ross v. Univ. of Tulsa, No. 14-CV-00484-TCK-PJC, 2017 U.S. Dist. LEXIS 38650, at *1 (N.D. Okla. Mar. 17, 2017), where he explained the nature of the contributions. In 2011 his spouse purchased a life-insurance policy for $16,000. Under the policy TU would receive $100,000 upon her death to endow a scholarship for student athletes in her name. In its announcement of the scholarship, TU attributed the contributions to both the district judge and his spouse. The policy, however, was purchased with her separate funds, and the donation does not appear on the district judge‘s tax returns.
In our view, the district judge properly rejected the motion for recusal. Three features of the contribution combine to compel this conclusion. To begin with, this is not a case where the judge (or a family member) has a financial interest in the litigation. The contribution was not an investment. The contribution could imply bias only by showing
The second important feature of the contribution is that it is not specifically tied to activity related to the litigation. The contribution was for scholarships for student athletes. The litigation has no apparent connection to TU‘s athletic program. See Chalenor, 291 F.3d at 1049–50 (in Title IX suit by student wrestlers against university, judge‘s ties to university were “immaterial, unless the facts indicated a specific and particular interest in the wrestling program or some other particularly relevant problem“); Nackman, 145 F.3d at 1070, 1076 (in suit against physicians at university‘s school of medicine, judge‘s connections were with law school, whose relationship to the case was “virtually nonexistent“). This is quite different from contributing to an advocacy organization that presents that advocacy in litigation before the judge. Cf. Guide to Judiciary Policy, Vol. 2B, Ch. 2, Published Advisory Opinion No. 40 (2009) (acknowledging the propriety of judicial participation in nonprofit civic, charitable, education, religious and social organizations, but advising that a judge should not participate in organizations “if it is likely that the organization will either be engaged in proceedings that would ordinarily come before the judge or will be regularly engaged in adversary proceedings in any court.“).
Finally, and perhaps most importantly, the contribution was distinctly made by the judge‘s spouse, not the judge himself. The enthusiasm was that of the spouse and should
Barnett‘s second argument for recusal is that the district judge was biased against him after being apprised by Defendants of his abusive and threatening behavior toward the court. Ordinarily, however, recusal for bias cannot be based on a judge‘s reaction, or potential reaction, to events during the course of the litigation. Thus, it is well settled that “a motion to recuse cannot be based solely on adverse rulings.” Willner, 848 F.2d at 1028. But the principle extends beyond that specific application. For example, a judge is not
In this case, there is no reason to think that the district judge was influenced in his merits rulings by the reports of Barnett‘s misconduct communicated to the court by Defendants’ counsel or by a totally inappropriate vulgar message left by Barnett on the court‘s voicemail. The district judge‘s order rejecting the recusal motion was a model of propriety. The district judge did not abuse his discretion in declining to recuse himself.
II. CONCLUSION
We REVERSE the dismissal of the state-law claims and REMAND them with instructions either to remand them to state court or to dismiss them without prejudice. We DENY as moot Defendants’ cross-appeal request for attorney fees, costs, expenses, and sanctions under the OCPA.