DC COMICS, Plaintiff-Appellee, v. PACIFIC PICTURES CORPORATION; IP Worldwide, LLC; IPW, LLC; Marc Toberoff; Mark Warren Peary, as personal representative of the Estate of Joseph Shuster; Laura Siegel Larson, individually and as personal representative of the Estate of Joanne Siegel; Jean Adele Peavy, Defendants-Appellants.
No. 11-56934
United States Court of Appeals, Ninth Circuit
January 10, 2013
706 F.3d 1009
However, there is nothing in the Wyoming Wilderness Act showing that Congress “declined” to incorporate the Idaho acres into wilderness. The Court is not sure what the agency meant by this statement, but there are other reasons in the record explaining the agency‘s action. Even when an agency explains its decision “with less than ideal clarity,” courts will not upset the decision on that account “if the agency‘s path may reasonably be discerned.” Alaska, 540 U.S. at 497, 124 S.Ct. 983 (2004). Here, the record reveals that the State of Idaho wanted to assign Winegar Hole to the Primitive theme, AR 73 at 33, and that the Forest Service “coordinated with the State of Wyoming on the Winegar Hole Roadless Area” AR FS 860 at R-65. In addition, as the Forest Service points out in its briefing, the agency received no objections during the public comment period to assigning Winegar Hole to the Primitive theme.
The agency‘s statement about the Wyoming Wilderness Act may fall short of “ideal clarity” but the agency‘s path may “reasonably be discerned” from the record. Alaska, 540 U.S. at 497, 124 S.Ct. 983 (2004). The record reveals that the Forest Service did not arbitrarily or capriciously assign the Winegar Hole area to the Primitive theme.
Conclusion
The Court finds the FWS did not violate the ESA in preparing the Biological Opinion. The Court also finds that the Forest Service did not violate NEPA in relying on the Biological Opinion or in preparing the FEIS and ROD approving the Idaho Roadless Rule. For these reasons, the Court will grant the defendants’ motions for summary judgment and deny plaintiffs’ motion for summary judgment. The Court will issue a separate Judgment as required by Rule 58(a).
DATED: January 29, 2011
Honorable B. Lynn Winmill
Chief U.S. District Judge
Filed Jan. 10, 2013.
Richard B. Kendall (argued) and Laura W. Brill, Kendall Brill & Klieger LLP, Los Angeles, CA, for Defendants-Appellants Pacific Pictures Corporation; IP Worldwide, LLC; IPW, LLC; and Marc Toberoff.
Jonathan D. Hacker, O‘Melveny & Myers LLP, Washington, D.C.; Daniel M. Petrocelli, Matthew T. Kline (argued), and Cassandra L. Seto, O‘Melveny & Myers LLP, Los Angeles, CA, for Plaintiff-Appellee.
Before: STEPHEN REINHARDT and SIDNEY R. THOMAS, Circuit Judges, and JOHN W. SEDWICK, District Judge.*
* The Honorable John W. Sedwick, Senior United States District Judge for the District of Alaska, sitting by designation.
OPINION
REINHARDT, Circuit Judge:
This case arises from the district court‘s denial of defendants’ motion, pursuant to California‘s anti-SLAPP statute, to strike certain of DC Comics’ state law claims. In Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003), we held that the collateral order doctrine permits a party to take an interlocutory appeal of an order denying such a motion. We must determine whether our decision in Batzel remains good law after the Supreme Court‘s intervening decision in Mohawk Industries v. Carpenter, 558 U.S. 100, 130 S.Ct. 599, 175 L.Ed.2d 458 (2009). For the reasons stated below, we conclude that it does, and therefore that we have jurisdiction over this interlocutory appeal.1
I. BACKGROUND
Jerome Siegel and Joseph Shuster jointly created the character Superman in the mid-1930s, and thereafter began seeking a publisher for comic strips featuring the new superhero. Eventually, Detective Comics, the predecessor of plaintiff DC Comics (collectively, “DC“) expressed interest, and, on March 1, 1938, Siegel and Shuster conveyed exclusive rights in Superman to DC in exchange for a flat fee; Siegel and Shuster also were paid for each page of Superman comics that they wrote and illustrated, and that DC published. DC issued the first comic book featuring a Superman story, Action Comics No. 1, later that year. Since then, Superman has appeared in comic books, in newspaper strips, on the radio, in television shows, and in numerous successful motion pictures. He is known worldwide for his super-human abilities: “faster than a
Yet for all of his incredible abilities, and his commitment to creating a more peaceful world,2 Superman has generated bitter financial disputes and frequent litigation. Siegel, Shuster, and their heirs (including defendants Peary, Larson, and Peavy) have been contesting DC‘s ownership of various aspects of the Superman copyrights on and off since the 1940s. The current case is one of many stemming from the heirs’ efforts, pursuant to the 1976 Copyright Act, to terminate the transfer of copyright to DC and thereby reclaim title to the early Superman works written and illustrated by his co-creators. See
In this lawsuit, DC brings claims under California law against the heirs, Toberoff, and his companies for intentional interference with contractual relations, intentional interference with prospective economic advantage, and violation of California‘s unfair competition law,
Defendants filed a motion to strike DC‘s intentional interference and unfair competition claims pursuant to California‘s anti-SLAPP statute,
II. DISCUSSION
A.
Federal appellate jurisdiction is generally limited to review of “final decisions of the district courts of the United States.”
Here, we are asked whether an order denying a motion to strike made pursuant to California‘s anti-SLAPP statute meets these criteria. California‘s legislature enacted the anti-SLAPP statute in order to deter “strategic lawsuit[s] against public participation“—that is, lawsuits “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.”
We held in Batzel v. Smith that we have jurisdiction, under the collateral order doctrine, over interlocutory appeals from the denial of a motion to strike made pursuant to California‘s anti-SLAPP statute. 333 F.3d 1018, 1025-26 (9th Cir. 2003). We determined that the first two criteria—that the order be conclusive and that it resolve a question separate from the merits—were clearly satisfied. Id. at 1025. A decision on an anti-SLAPP motion is conclusive as to whether the anti-SLAPP statute requires dismissal of the suit. Further, we concluded, the denial of that motion resolves a question separate from the merits, as it “merely finds that such merits may exist, without evaluating whether the plaintiff‘s claim will succeed.” Id.
Regarding the third criterion, upon which the parties here concentrate their arguments, we held in Batzel that the denial of an anti-SLAPP motion would “effectively be unreviewable on appeal from a final judgment.” Id. That decision was based on two determinations. First, we held that California‘s anti-SLAPP statute was in the nature of an immunity from suit, and not simply a defense against liability. Id. at 1025-26. Our analysis began with the statute itself, which explicitly provides for immediate appeals of the denial of an anti-SLAPP motion. Id. at 1025 (citing
Without [the right of immediate appeal], a defendant will have to incur the cost of a lawsuit before having his or her right to free speech vindicated.... [W]hen a meritorious anti-SLAPP motion is denied, the defendant, under current law, has only two options. The first is to file a writ of appeal, which is discretionary and rarely granted. The second is to defend the lawsuit. If the defendant wins [after having been unable to take an immediate appeal], the anti-SLAPP law is useless and has failed to protect the defendant‘s constitutional rights.
Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm. Rep. on A.B. 1675, at 4) (all alterations but last in original) (emphasis added). We then held that it was clear that California‘s anti-SLAPP statute was “in the nature of immunity.” Id.
Second, we concluded that the denial of an immunity from suit is effectively unreviewable on appeal from a final judgment. We noted that the Supreme Court had held that orders pertaining to immunities created by federal law ought to be immediately appealable via the collateral order doctrine. Id. at 1026 (citing Mitchell v. Forsyth, 472 U.S. 511, 525-27 (1985)). We held that that rule should apply equally to immunities created by state law, and therefore that the denial of an anti-SLAPP motion should be immediately appealable via the collateral order doctrine. Id. at 1025-26 (citing Erie R.R. Co v. Tompkins, 304 U.S. 64 (1938)).6
Subsequently, the Supreme Court addressed the collateral order doctrine in Mohawk Industries, in which it held that the doctrine does not permit an interlocutory appeal of a discovery order requiring production of documents over which a party asserts attorney-client privilege. 558 U.S. 100, 130 S.Ct. 599, 606 (2009). The Court based its decision on its conclusion that such orders did not satisfy the third criterion, effective unreviewability. It noted that “[courts] routinely require litigants to wait until after final judgment to vindicate valuable rights, including rights central to our adversarial system,” and stated that the correct consideration in determining whether a judgment is effectively unreviewable is whether “delaying review until the entry of final judgment ‘would imperil a substantial public interest’ or ‘some particular value of a high order.‘” Id. at 605-06 (quoting Will v. Hallock, 546 U.S. 345, 352-53 (2006)). Only if “deferring review until final judgment so imperils the interest as to justify the cost of allowing immediate appeal of the entire class of relevant orders” should the order be deemed effectively unreviewable. Id. at 606. The Court concluded that, as to discovery orders involving claims of attorney-client privilege, “deferring review until final judgment does not meaningfully reduce the ex ante incentives for full and frank consultations between clients and counsel,” and thus held that such an order should not be immediately appealable via the collateral order doctrine. Id. at 607.
DC here urges us to reconsider our decision in Batzel, contending, inter alia, that Mohawk Industries—and, in particular, its articulation of when an order is effectively unreviewable—has effectively overruled Batzel. Defendants maintain
B.
We affirm the validity of Batzel‘s holding, and reject the suggestion that the Supreme Court‘s decision in Mohawk Industries has overturned it.
In Mohawk Industries, the Supreme Court did not address the first two criteria for applying the collateral order doctrine—that the order be conclusive and resolve a question distinct from the merits. 130 S.Ct. at 606. Thus, our conclusion in Batzel that appeals from the denial of an anti-SLAPP motion satisfy both of these criteria remains intact. See Miller v. Gammie, 335 F.3d 889, 900 (9th Cir. 2003) (en banc). As to the third criterion, effective unreviewability on appeal from a final judgment, our conclusion in Batzel that California‘s anti-SLAPP statute functions as an immunity from suit, and not merely as a defense against liability, is not affected by the Supreme Court‘s decision in Mohawk Industries. The statutory text and legislative history we found persuasive in Batzel remain equally compelling today, and we are aware of no intervening change in the law that would undermine that conclusion. DC‘s challenge to our jurisdiction thus turns on whether the Supreme Court‘s holding in Mohawk Industries that our inquiry should focus on whether delaying review ” ‘would imperil a substantial public interest’ or ‘some particular value of a high order,’ ” 130 S.Ct. at 605 (quoting Will, 546 U.S. at 352-53), has undermined our rule that the denial of an immunity from suit—whether created by state or federal law—is an immediately appealable collateral order.
We conclude that it has not. In cases taking into account the Supreme Court‘s guidance in Mohawk Industries, we have affirmed that an immunity from suit is different than a defense against liability, in that an immunity from suit is “imbued with a significant public interest” that is not always present with regard to a defense against liability. Metabolic Research, Inc. v. Ferrell, 693 F.3d 795, 800 (9th Cir. 2012). “[W]hen a policy is embodied in a constitutional or statutory provision entitling a party to immunity from suit (a rare form of protection), there is little room for the judiciary to gainsay its importance.” Id. (quoting Digital Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 879 (1994)) (internal quotations omitted). Further, unlike a defense against liability, an immunity from suit would be significantly imperiled if we did not permit an immediate appeal, in that it is “effectively lost if a case is erroneously permitted to go to trial.” Liberal v. Estrada, 632 F.3d 1064, 1074 (9th Cir. 2011) (quoting Mitchell, 472 U.S. at 526). Accordingly, we have held that whether an immunity created by state law functions “as an immunity from suit or merely a defense from liability” is dispositive in determining whether an immediate appeal of an order denying an immunity should be available. Id. (collecting cases from other circuits applying the same distinction).
Applying this rule, we hold that the denial of a motion to strike made pursuant to California‘s anti-SLAPP statute remains among the class of orders for which an immediate appeal is available. This is especially so given the particular public interests that the anti-SLAPP statute attempts to vindicate. It would be difficult to find a value of a “high[er] order” than the constitutionally-protected rights to free
Our holding in no way conflicts with our prior holdings addressing the availability of an immediate appeal pursuant to Oregon and Nevada‘s anti-SLAPP statutes. See Metabolic Research, Inc. v. Ferrell, 693 F.3d 795 (9th Cir. 2012) (Nevada); Englert v. MacDonell, 551 F.3d 1099 (9th Cir. 2009) (Oregon). As we held in those decisions, the availability of an immediate appeal pursuant to the collateral order doctrine may depend on the particular features of each state‘s law. Metabolic Research, 693 F.3d at 800-01; Englert, 551 F.3d at 1106-07. At the time of our prior decisions, the Oregon and Nevada anti-SLAPP statutes were more akin to defenses against liability than immunities from suit, in that they did not provide for any
Further, we note that our holding comports with the conclusions of other circuits to have addressed this issue. The First Circuit has held that an immediate appeal is available from the denial of a motion made pursuant to Maine‘s anti-SLAPP statute. Godin v. Schencks, 629 F.3d 79, 84-85 (1st Cir. 2010). The Fifth Circuit has held similarly with respect to Louisiana‘s anti-SLAPP statute. Henry v. Lake Charles Am. Press LLC, 566 F.3d 164, 178 (5th Cir. 2009).
III. CONCLUSION
We hold that our decision in Batzel remains good law, and that an order denying a motion to strike pursuant to California‘s anti-SLAPP statute remains immediately appealable pursuant to the collateral order doctrine. We therefore have jurisdiction over this interlocutory appeal, and decide the merits in a memorandum disposition filed concurrently herewith.