814 F.3d 701 (5th Cir. 2016), 15-10212, Cuba v. Pylant

Docket Nº:15-10212, 15-10213
Citation:814 F.3d 701
Opinion Judge:JERRY E. SMITH, Circuit Judge:
Party Name:DONALD CUBA, Plaintiff-Appellee, v. JULIA PYLANT, DONALD PYLANT, AND LESLIE PYLANT, Defendants-Appellants. JULIA PYLANT, Plaintiff-Appellant, v. DONALD CUBA, Defendant-Appellee
Attorney:For DONALD CUBA, Plaintiff - Appellee (3:13-CV-3670): Michael Patrick Kelly, Attorney, Law Offices of Michael P. Kelly, Richardson, TX. For JULIA PYLANT, Defendant - Appellant (3:13-CV-3670): Jeffrey Wallace Hellberg, Jr., Wick Phillips Gould & Martin, L.L.P., Dallas, TX. For DONALD PYLANT, LESLI...
Judge Panel:Before SMITH, WIENER, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting. JAMES E. GRAVES, JR., Circuit Judge, dissenting.
Case Date:February 23, 2016
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit
 
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Page 701

814 F.3d 701 (5th Cir. 2016)

DONALD CUBA, Plaintiff-Appellee,

v.

JULIA PYLANT, DONALD PYLANT, AND LESLIE PYLANT, Defendants-Appellants.

JULIA PYLANT, Plaintiff-Appellant,

v.

DONALD CUBA, Defendant-Appellee

Nos. 15-10212, 15-10213

United States Court of Appeals, Fifth Circuit

February 23, 2016

Page 702

[Copyrighted Material Omitted]

Page 703

Appeals from the United States District Court for the Northern District of Texas.

For DONALD CUBA, Plaintiff - Appellee (3:13-CV-3670): Michael Patrick Kelly, Attorney, Law Offices of Michael P. Kelly, Richardson, TX.

For JULIA PYLANT, Defendant - Appellant (3:13-CV-3670): Jeffrey Wallace Hellberg, Jr., Wick Phillips Gould & Martin, L.L.P., Dallas, TX.

For DONALD PYLANT, LESLIE PYLANT, Defendants - Appellants (3:13-CV-3670): Charles William Gameros, Jr., Hoge & Gameros, L.L.P., Dallas, TX.

For JULIA PYLANT, Plaintiff - Appellant (3:14-CV-745): Jeffrey Wallace Hellberg, Jr., Wick Phillips Gould & Martin, L.L.P., Dallas, TX.

For DONALD CUBA, Defendant - Appellee (3:14-CV-745): Michael Patrick Kelly, Attorney, Dallas, TX.

Before SMITH, WIENER, and GRAVES, Circuit Judges. JAMES E. GRAVES, JR., Circuit Judge, dissenting.

OPINION

Page 704

JERRY E. SMITH, Circuit Judge:

These consolidated appeals stem from two parallel suits between Donald Cuba, an individual accused (but later acquitted) of rape, and Julia Pylant (" Julia" ), his purported victim. In No. 15-10212, Cuba sued Julia and her parents Donald and Leslie Pylant (collectively " the Pylants" ) for malicious prosecution, defamation, and tortious interference with contractual relations. In No. 15-10213, Julia sued Cuba for assault and battery and intentional infliction of emotional distress (" IIED" ), and Cuba counterclaimed with causes of action substantially identical to those in his suit. In both suits, the Pylants moved to dismiss Cuba's claims under the Texas Citizens' Participation Act (" TCPA" ) (Texas's anti-SLAPP1 statute).

The district court failed to issue a ruling on the dismissal motions within the TCPA's time limits. In its eventual rulings on the dismissal motions in both

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cases, the court concluded that because it had not ruled by the deadline, the motions had already been denied by operation of law, as specified by the statute. It therefore denied the motions as moot. The Pylants took an interlocutory appeal in both cases. We vacate and remand.

I.

Julia Pylant and Donald Cuba were students at Southern Methodist University (" SMU" ). On February 13, 2012, Julia told SMU authorities that Cuba had sexually assaulted her a few days earlier. An SMU disciplinary board held a hearing on March 27 and two days later found that Cuba was " responsible" for violating university prohibitions on irresponsible conduct, sexual misconduct, and sexual assault. But after Cuba appealed to the university's disciplinary body, the charges were dismissed on the grounds that there were prejudicial procedural irregularities and that the evidence in the initial hearing was not sufficient to support the findings.

In response to the dismissal, Julia's parents wrote to SMU President Gerald Turner on August 7, asking him to reverse the disciplinary board's dismissal and send the matter back for further consideration; Turner agreed to that request and notified the Pylants on August 17 that he was reinstating the disciplinary charges and submitting them for further consideration. At about that time, Cuba was informed that there would be a new round of hearings.

Julia testified before a state grand jury on September 4. The grand jury issued an indictment two days later charging Cuba with rape. Cuba took a medical leave of absence from SMU on September 17, putting the university disciplinary processes on hold. He was acquitted in a state-court trial in May 2013.

On September 12, 2013, Cuba sued the Pylants. His amended complaint of December 8, the operative pleading in these appeals, asserted claims for malicious prosecution, defamation, and tortious interference with contract, stemming from statements made by the Pylants to SMU and the prosecuting authorities. SMU held another disciplinary hearing on September 18 at which Cuba was found " not responsible" for the disciplinary violations.

In January 2014, Julia sued Cuba for assault and battery and IIED; Cuba asserted counterclaims identical to those in his own suit--malicious prosecution, defamation, and tortious interference--as well as IIED.2

In both cases, the Pylants moved to dismiss Cuba's claims and counterclaims on various grounds, including Rule 12(b)(6) of the Federal Rules of Civil Procedure and, as relevant in this appeal, the TCPA. The elder Pylants filed their initial TCPA motions in Cuba's suit on October 8, 2013; Julia filed her initial TCPA motion on November 18. On November 20, counsel for the Pylants filed a letter with the court, asking it to take the TCPA's scheduling rules into consideration. That letter outlined the relevant deadlines and requested a timely hearing and decision.3 Cuba filed an amended pleading, so the Pylants filed

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a new round of TCPA motions on December 30. In the Pylants' suit, Julia filed her TCPA motion on March 7, 2014.

The district court did not schedule a hearing or rule on the TCPA motions within the state statutory deadlines. But when it did eventually rule--on March 6, 2015--it held that the motions were moot because they had already been denied by operation of law.4 The court reasoned that, to the extent it was permitting the motion to be brought under the TCPA at all, it was also bound by the TCPA's timing requirement. Because it had not scheduled a hearing or ruled on the motion--and under Texas caselaw the court has no discretion to extend the deadline--it held that it was bound to reject the motions as moot because the state procedural deadlines had run.5

II.

As a general matter, this court has jurisdiction over an interlocutory appeal from an order denying a TCPA motion to dismiss. NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 748 (5th Cir. 2014). Cuba urges, however, that we lack jurisdiction over these appeals because the Pylants did not timely appeal. Cuba reasons that the 30-day clock to file a notice of appeal under Rule 4 of the Federal Rules of Appellate Procedure started to run when the TCPA motions to dismiss were denied by operation of law under the state statute: 120 days after they were filed. Thus, by Cuba's account, these appeals became time-barred 150 days after the TCPA motions were filed--meaning that the appeals has been untimely since the summer of 2014.

The Pylants contend, to the contrary, that NCDR stands for the proposition that the TCPA's scheduling rules are not binding in federal court. Therefore, the Pylants claim, their appeals are timely because the TCPA motion was not denied until the district court formally rejected it and they timely filed a notice of appeal thereafter. In the alternative, the Pylants aver that because the court never held a hearing on the TCPA motion, the 30-day countdown for a decision never began.

To decide whether the appeals are timely, we first review the TCPA framework, which we assume--without deciding--controls as state substantive law in these diversity suits.6 Second, we review the parties'

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positions. We ultimately agree with the Pylants' alternative argument, viz., that, under the TCPA framework, the 30-day deadline before a motion is deemed denied by operation of law runs only from the date of the hearing on the motion. But, because no such hearing was held in these cases, the TCPA motion was not denied by operation of law. The operative date from which the 30-day clock under Rule 4 ran was March 6, 2015, the date of the order denying the motion, so the appeals are timely.

A.

" The purpose of the TCPA 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 meritorious lawsuits for demonstrable injury.'" NCDR, 745 F.3d at 746 (quoting TEX. CIV. PRAC. & REM. CODE ANN. § 27.002 (West 2013)). " To achieve this, the TCPA provides a means for a defendant, early in the lawsuit, to seek dismissal of certain claims in the lawsuit. If a legal action is based on, relates to, or is in response to a party's exercise of the right of free speech, right to petition, or right of association, that party may file a motion to dismiss the legal action." Id. (citations omitted).

The TCPA fleshes out this dismissal mechanism in a variety of ways. It provides that the filing of a TCPA dismissal motion stops discovery in the action until the court has ruled, save for limited discovery relevant to the motion. Tex. Civ. Prac. & Rem. Code Ann. § § 27.003(c), 27.006(b) (West 2011). The statute further provides for an accelerated timetable for resolving the asserted TCPA defense: The court must set a hearing on the motion within 60 days of service (90 or 120 days in certain exceptional cases involving crowded dockets, good cause, or TCPA-related discovery), id. § 27.004, and the court must rule on the motion within 30 days after the hearing, id. § 27.005. If it fails to do that, the motion is deemed denied by operation of law, and the defendant may appeal. Id. § 27.008(a). Courts have no discretion to extend the time to issue a decision--an out-of-time ruling is a legal nullity.7

Applying these rules as it understood them, the district court held that the motion had been denied by operation of law 120 days after it was filed, so any ruling on the motion...

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