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Rudkin v. Roger Beasley Imports, Inc.

United States District Court, W.D. Texas, Austin Division

December 28, 2017

BRADLEY RUDKIN
v.
ROGER BEASLEY IMPORTS, INC.

          REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN, UNITED STATES MAGISTRATE JUDGE

         TO: THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE

         Before 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.

         I. GENERAL BACKGROUND

         Bradley 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.

         Roger 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.

         II. ANALYSIS

         A. Whether the TCPA is applicable to this litigation.

         Federal 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).

         In a 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.”).[1] 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 concluded that

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).[2] 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 directly ...

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