Abbas v. Foreign Policy Group, LLC, 042415 FEDDC, 13-7171

Docket Nº:13-7171
Opinion Judge:KAVANAUGH, CIRCUIT JUDGE:
Party Name:Yasser Abbas, Appellant v. Foreign Policy Group, LLC and Jonathan Schanzer, Appellees
Attorney:Louis G. Adolfsen argued the cause for appellant. With him on the briefs was S. Dwight Stephens. Kevin T. Baine argued the cause for appellees. With him on the brief were Adam R. Tarosky, James M. McDonald, Nathan E. Siegel, Seth D. Berlin, and Shaina J. Ward. Irvin B. Nathan, Attorney General, O...
Judge Panel:Before: Kavanaugh and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.
Case Date:April 24, 2015
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
SUMMARY

Yasser Abbas is the son of current Palestinian leader Mahmoud Abbas. In 2012, the Foreign Policy Group published an article on its website about Yasser and his brother Tarek, asking: “Are the sons of the Palestinian president growing rich off their father’s system?” and “Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?” Yasser filed suit, alleging... (see full summary)

 
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Yasser Abbas, Appellant

v.

Foreign Policy Group, LLC and Jonathan Schanzer, Appellees

No. 13-7171

United States Court of Appeals, District of Columbia Circuit

April 24, 2015

Argued October 20, 2014

Appeal from the United States District Court for the District of Columbia (No. 1:12-cv-01565)

Louis G. Adolfsen argued the cause for appellant. With him on the briefs was S. Dwight Stephens.

Kevin T. Baine argued the cause for appellees. With him on the brief were Adam R. Tarosky, James M. McDonald, Nathan E. Siegel, Seth D. Berlin, and Shaina J. Ward.

Irvin B. Nathan, Attorney General, Office of the Attorney General for the District of Columbia, Ariel B. Levinson-Waldman, Senior Counsel to the Attorney General, Todd S. Kim, Solicitor General, Loren L. AliKhan, Deputy Solicitor General, and Rebecca P. Kohn, Assistant Attorney General, were on the brief for the District of Columbia as amicus curiae in support of the District of Columbia Anti-SLAPP Act's applicability in federal diversity cases.

Laura R. Handman, Alison Schary, Thomas R. Burke, Richard A. Bernstein, Kevin M. Goldberg, Karen Kaiser, Jonathan Bloom, Randy L. Shapiro, Jonathan D. Hart, Mark H. Jackson, Jason P. Conti, Jacob P. Goldstein, Oscar Grut, David Giles, Susan E. Seager, Barbara W. Wall, Jonathan Donnellan, Kristina Findikyan, Karole Morgan-Prager, Juan Cornejo, Sandra S. Baron, Kathleen A. Hirce, Charles D. Tobin, Mickey H. Osterreicher, Greg Lewis, Denise Leary, Ashley Messenger, Susan Weiner, David E. McCraw, Mark H. Jackson, Kurt Wimmer, Richard J. Tofel, Bruce D. Brown, Gregg P. Leslie, Gail Gove, Bruce W. Sanford, Laurie A. Babinski, Karen H. Flax, Julie Xanders, Ed Lazarus, John B. Kennedy, and James A. McLauglin were on the brief for amici curiae Media Organizations in support of appellees.

Before: Kavanaugh and Srinivasan, Circuit Judges, and Edwards, Senior Circuit Judge.

OPINION

KAVANAUGH, CIRCUIT JUDGE:

Yasser Abbas is the son of current Palestinian leader Mahmoud Abbas. In 2012, the Foreign Policy Group published an article on its website about Yasser Abbas and his brother Tarek. At the outset, the article asked two questions: "Are the sons of the Palestinian president growing rich off their father's system?" and "Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?"

In response to the questions posed in the article, Yasser Abbas filed suit in the U.S. District Court for the District of Columbia against the Foreign Policy Group and the article's author, Jonathan Schanzer. Abbas alleged defamation under D.C. law. But the D.C. Anti-Strategic Lawsuits Against Public Participation Act of 2010 (known as the Anti-SLAPP Act) requires courts, upon motion by the defendant, to dismiss defamation lawsuits that target political or public advocacy, unless the plaintiff can show a likelihood of success on the merits. Applying the D.C. Anti-SLAPP Act, the District Court dismissed Abbas's defamation complaint.

Abbas now appeals. He contends that a federal court exercising diversity jurisdiction may not apply the D.C. Anti-SLAPP Act's special motion to dismiss provision. In Abbas's view, the D.C. provision makes it easier for defendants to obtain dismissal of a case before trial than the more plaintiff-friendly standards in Rules 12 and 56 of the Federal Rules of Civil Procedure. Citing the Supreme Court's decision in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393 (2010), Abbas says we must follow the Federal Rules, not the D.C. Anti-SLAPP Act, in this federal court proceeding. We agree with Abbas on that point. But we affirm the District Court's judgment on an alternative ground: Under Federal Rule 12(b)(6), Abbas's allegations do not suffice to make out a defamation claim under D.C. law.

I

A

Many States have enacted anti-SLAPP statutes to give more breathing space for free speech about contentious public issues. Those statutes "try to decrease the 'chilling effect' of certain kinds of libel litigation and other speech-restrictive litigation." Eugene Volokh, The First Amendment and Related Statutes 118 (5th ed. 2014). The statutes generally accomplish that objective by making it easier to dismiss defamation suits at an early stage of the litigation.

Like the various States' anti-SLAPP laws, the D.C. Anti-SLAPP Act makes it easier for defendants sued for defamation and related torts to obtain quick dismissal of harassing lawsuits. The D.C. Council passed the Act in 2010 in response to what the Council described as an upsurge in "lawsuits filed by one side of a political or public policy debate aimed to punish or prevent the expression of opposing points of view." Council of the District of Columbia, Committee on Public Safety and the Judiciary, Report on Bill 18-893, at 1 (Nov. 18, 2010).

Under the Act as relevant here, a defendant may file a special motion to dismiss "any claim arising from an act in furtherance of the right of advocacy on issues of public interest." D.C. Code § 16-5502(a). To obtain dismissal, the defendant first must make a "prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest." Id. § 16-5502(b). If the defendant makes that prima facie showing, then the plaintiff must demonstrate that "the claim is likely to succeed on the merits." Id. If the plaintiff makes that showing, the defendant's special motion to dismiss must be denied. Otherwise, the special motion to dismiss must be granted. See id. (As we will see, that likelihood of success requirement is important to this case.) While a special motion to dismiss is pending, discovery is stayed except for limited purposes. Id. § 16-5502(c). A defendant who prevails on a special motion to dismiss may recover the costs of litigation, including reasonable attorney's fees. Id. § 16-5504(a).

B

Yasser Abbas is the son of Palestinian leader Mahmoud Abbas and is a businessman with substantial commercial interests in the Middle East. Yasser Abbas and his brother Tarek were featured in "The Brothers Abbas, " an article by Jonathan Schanzer published by Foreign Policy Group on its website.

Schanzer's article addresses the Abbas brothers' wealth and its possible sources. The article's subtitle poses a question: "Are the sons of the Palestinian president growing rich off their father's system?" The first paragraph asks a similar question: "Have they enriched themselves at the expense of regular Palestinians – and even U.S. taxpayers?"

The article recounts allegations of corruption that a former economic advisor to Yasir Arafat made against Mahmoud Abbas. It then describes the "conspicuous wealth" of Yasser and Tarek Abbas. Noting that the brothers' success "has become a source of quiet controversy in Palestinian society, " the article describes their credentials and business ventures in some detail. In discussing Yasser Abbas, the article acknowledges that the "president's son is certainly entitled to do business in the Palestinian territories. But the question is whether his lineage is his most important credential – a concern bolstered by the fact that he has occasionally served in an official capacity for the Palestinian Authority." Finally, the article notes that "the Abbas brothers have largely dropped out of sight, " but that Palestinians continue to whisper about the source of the brothers' success.

In response to the article, Yasser Abbas filed a D.C.-law defamation suit in the U.S. District Court for the District of Columbia against the Foreign Policy Group and Schanzer. Abbas's defamation claims rest on the two questions posed at the outset of the article. See Compl. ¶¶ 46-94.

The Foreign Policy Group and Schanzer moved to dismiss the complaint under the special motion to dismiss provision of the D.C. Anti-SLAPP Act. They also moved to dismiss under Federal Rule of Civil Procedure 12(b)(6). The District Court granted the defendants' special motion to dismiss under the D.C. Anti-SLAPP Act, dismissed Abbas's complaint with prejudice, and denied the defendants' Rule 12(b)(6) motion as moot. Abbas v. Foreign Policy Group, LLC, 975 F.Supp.2d 1, 20 (D.D.C. 2013). Abbas promptly appealed.

II

The first issue before the Court is whether a federal court exercising diversity jurisdiction may apply the D.C. Anti-SLAPP Act's special motion to dismiss provision. The answer is no. Federal Rules of Civil Procedure 12 and 56 establish the standards for granting pre-trial judgment to defendants in cases in federal court. A federal court must apply those Federal Rules instead of the D.C. Anti-SLAPP Act's special motion to dismiss provision.

A

A federal court exercising diversity jurisdiction should not apply a state law or rule if (1) a Federal Rule of Civil Procedure "answer[s] the same question" as the state law or rule and (2) the Federal Rule does not violate the Rules Enabling Act. Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., 559 U.S. 393, 398-99 (2010) (majority opinion) (citing Hanna v. Plumer, 380 U.S. 460, 463-64 (1965)).1

For the category of cases that it covers, the D.C. Anti-SLAPP Act establishes the circumstances under which a court must dismiss a plaintiff's claim before trial – namely, when the court concludes that the plaintiff does not have a likelihood of success on the merits. But Federal Rules of Civil Procedure 12 and 56 "answer the same question" about the circumstances under which a court must dismiss a case before trial. And those Federal Rules answer that question differently: They do not require a plaintiff to show a likelihood of success on the merits.2

That difference matters. Under the Federal Rules, a plaintiff is generally entitled to trial if he or she meets the Rules 12 and 56 standards to overcome a motion to dismiss or for summary judgment. But the D.C. Anti-SLAPP Act nullifies that entitlement in certain cases. Under the...

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