United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF THE UNITED STATES
W. AUSTIN, UNITED STATES MAGISTRATE JUDGE
HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE
the Court are Defendant's Motion to Dismiss, for Fees and
Sanctions, Pursuant to the Texas Citizen's Participation
Act (Dkt. No. 8); Plaintiff's Response (Dkt. No. 12); and
Defendant's Reply (Dkt. No. 13). The undersigned submits
this Report and Recommendation to the United States District
Court pursuant to 28 U.S.C. § 636(b) and Rule 1(h) of
Appendix C of the Local Court Rules of the United States
District Court for the Western District of Texas.
Rudkin sues his former employer, Roger Beasley Imports, Inc.,
for sex discrimination in violation of Title VII, breach of
contract, invasion of privacy-public disclosure of private
facts, invasion of privacy-intrusion on seclusion, and
intentional infliction of emotional distress. The case was
originally filed in Travis County District Court on August 1,
2017, and was removed to this court on August 31, 2017, based
onfederal question and supplemental jurisdiction. According
to the petition filed in state court, Rudkin began working at
Roger Beasley, a car dealership, in February 2015. Dkt. No. 1
at 8. He states that he is a transgender man and presented
himself as male at all times relevant to the lawsuit.
Id. As noted, among other claims, Rudkin sues Roger
Beasley for invasion of privacy, based on allegations that
Roger Beasley management openly discussed his status as a
transgender male, which he contends was a private matter, was
not a matter of public concern, and that the discussions
would have been highly offensive to a reasonable person.
Beasley moves to dismiss the two invasion of privacy claims
based on the Texas Citizen's Participation Act. Tex. Civ.
Prac. & Rem. Code §§ 27.001-27.011. This
statute is “an anti-SLAPP (“Strategic Lawsuit
Against Public Participation”) statute that allows the
filing of an early motion to dismiss, “designed to
protect the defendant from having to litigate meritless cases
aimed at chilling First Amendment expression.”
NCDR, LLC v. Mauze & Bagby, PLLC, 745 F.3d 742,
751 (5th Cir. 2014). The Texas Supreme Court has noted that
the TCPA “protects citizens who petition or speak on
matters of public concern from retaliatory lawsuits that seek
to intimidate or silence them, ” by creating “a
special motion for an expedited consideration of any suit
that appears to stifle the defendant's communication on a
matter of public concern.” In re Lipsky, 460
S.W.3d 579, 584 (Tex. 2015). Based on the TCPA, Roger Beasley
moves to dismiss Rudkin's invasion of privacy claims.
Rudkin responds that the TCPA is not applicable in federal
court, and even if it were, Roger Beasley has failed to meet
its initial burden under the TCPA.
Whether the TCPA is applicable to this litigation.
courts apply state common law but federal procedural rules.
Gasperini v. Ctr. for Humanities, Inc., 518 U.S.
415, 427 (1996); Foradori v. Harris, 523 F.3d 477,
486 (5th Cir. 2008). If there is a conflict between a state
substantive law and a federal procedural rule, federal courts
apply the federal rule and do not apply the substantive state
law. All Plaintiffs v. All Defendants, 645 F.3d 329,
333 (5th Cir. 2011). Thus, before applying the TCPA here, the
Court must determine whether it is substantive or procedural,
and, if substantive, whether it conflicts with the Federal
Rules of Civil Procedure. See Erie R.R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938).
recent case, the Fifth Circuit noted that it had not yet
decided this question: “[t]he applicability of state
anti-SLAPP statutes in federal court is an important and
unresolved issue in this circuit.” Block v.
Tanenhaus, 867 F.3d 585, 589 (5th Cir. 2017). See
also Cuba v. Pylant, 814 F.3d 701, 706 (5th Cir. 2016)
(“[W]e first review the TCPA framework, which we
assume-without deciding-controls as the state substantive law
in these diversity suits.”); Culbertson v.
Lykos, 790 F.3d 608, 631 (5th Cir. 2015) (“We have
not specifically held that the TCPA applies in federal court;
at most we have assumed without deciding its
applicability.”). As noted, in Cuba the court
assumed that the TCPA was a state substantive statute and
thus controlled. Judge Graves dissented from that assumption,
and argued that the panel instead should have begun by
following Erie and determining whether the statute
was in fact substantive. In his well-reasoned dissent, he
the TCPA is procedural and must be ignored. The TCPA is
codified in the Texas Civil Practice and Remedies Code,
provides for a pre-trial motion to dismiss claims subject to
its coverage, establishes time limits for consideration of
such motions to dismiss, grants a right to appeal a denial of
the motion, and authorizes the award of attorneys' fees
if a claim is dismissed. This creates no substantive rule of
Texas law; rather, the TCPA is clearly a procedural mechanism
for speedy dismissal of a meritless lawsuit that infringes on
certain constitutional protections. Because the TCPA is
procedural, I would follow Erie's command and
apply the federal rules.
Cuba, 814 F.3d at 720 (citations
omitted). The D.C. Circuit recently concluded that
an anti-SLAPP statute does not govern in federal court.
Abbas v. Foreign Policy Grp., LLC, 783 F.3d 1328,
1333-34 (D.C.Cir.2015). But see, United States ex rel.
Newsham v. Lockheed Missiles & Space Co., 190 F.3d
963 (9th Cir.1999), critisized by Makaeff v. Trump
University, LLC, 715 F.3d 254, 272-276 (9th
Cir.2013) (Paez, Kozinski, concurring). Judge Graves further
concluded that even if the TCPA were substantive, it
conflicts with Federal Rules 12 and 56, and is therefore
inapplicable in federal court. This is because when there is
a “direct collision” between a state substantive
law and a federal procedural rule within Congress's
rulemaking authority, federal courts apply the federal rule
and do not apply the substantive state law. All
Plaintiffs, 645 F.3d at 333. Judge Graves concluded:
In sum, the TCPA is procedural and we may not apply it when
sitting in diversity. Even if, however, it could be said that
the TCPA is substantive, then there is no doubt that it must
yield to the Federal Rules of Civil Procedure because it