Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.

• Citation: 956 F.3d 1228
• Decision Date: 20 April 2020
• Docket Number: No. 18-5090, No. 18-5091, No. 18-5092,18-5090
• Parties: Christopher BARNETT, Plaintiff - Appellant/Cross-Appellee, v. HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Johnathan L. Rogers ; University of Tulsa, a private university, Defendants - Appellees/Cross-Appellants. Christopher Barnett, Plaintiff - Appellee, v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Johnathan L. Rogers, Defendants - Appellants, and University of Tulsa, Defendant. Christopher Barnett, Plaintiff - Appellee, v. University of Tulsa, Defendant - Appellant, and Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Jonathan L. Rogers, Defendants.
• Court: United States Courts of Appeals. United States Court of Appeals (10th Circuit)

956 F.3d 1228

Christopher BARNETT, Plaintiff - Appellant/Cross-Appellee,
v.
HALL, ESTILL, HARDWICK, GABLE, GOLDEN & NELSON, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Johnathan L. Rogers ; University of Tulsa, a private university, Defendants - Appellees/Cross-Appellants.

Christopher Barnett, Plaintiff - Appellee,
v.
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Johnathan L. Rogers, Defendants - Appellants,
and
University of Tulsa, Defendant.

Christopher Barnett, Plaintiff - Appellee,
v.
University of Tulsa, Defendant - Appellant,
and
Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C.; J. Kevin Hayes, Special Administrator of the Estate of John Patrick Cremin; Jonathan L. Rogers, Defendants.

No. 18-5090
No. 18-5091
No. 18-5092

United States Court of Appeals, Tenth Circuit.

FILED April 20, 2020

Brendan M. McHugh, Route 66 Attorneys, L.L.C., Claremore, OK (Dana Jim, Route 66 Attorneys, L.L.C., Claremore, OK, on the briefs) on behalf of Appellant/Cross-Appellee.

John David Lackey, Tulsa, OK (Phil R. Richards, Tulsa, OK, on the briefs) on behalf of Appellees/Cross-Appellants.

Before HARTZ, BALDOCK, and EID, Circuit Judges.

HARTZ, Circuit Judge.

Plaintiff Christopher Barnett appeals the judgment of the United States District Court for the Northern District of Oklahoma dismissing with prejudice his federal civil-rights claims for failure to state a claim and dismissing with prejudice his state-law claims because they do not survive the restrictions imposed by the Oklahoma Citizens Participation Act (OCPA), Okla. Stat. tit. 12, §§ 1430 –40. Defendants cross-appeal the district court’s denial of attorney fees under the OCPA, contending that an award of attorney fees is mandatory. Exercising jurisdiction under 28 U.S.C. § 1291, we affirm in part and reverse in part.

We affirm the dismissal of the federal-law claims, agreeing with the district court that the complaint does not adequately allege that any of the Defendants acted under color of state law. But we reverse the judgment on the state-law claims and remand to the district court with instructions to dismiss the claims without prejudice or remand them to the state court. Our reversal is in keeping with the regular practice in this circuit of dismissing without prejudice state-law claims for which the district court has only supplemental, rather than original, jurisdiction when the federal-law claims to which they are supplemental are dismissed early in the litigation. Because of the reversal, we have no occasion to consider the merits of Defendants’ cross-appeal on attorney fees.

Barnett’s complaint bases his claims on an incident on January 4, 2018, related to a hearing in Oklahoma state court on an open-records case he had brought against Tulsa Community College. According to Barnett, two lawyers in the firm of Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C., (Hall Estill)—namely, J. Patrick Cremin and Jonathan Rogers—falsely reported to the office of the state attorney general (AG) that Barnett had made a threat. (When, where, or to whom it was allegedly directed are not disclosed in the complaint.) The AG’s office then relayed this report to the county sheriff. When Barnett arrived at the courtroom for the hearing, the state-court judge instructed him to

956 F.3d 1233

speak with a deputy sheriff. After Barnett denied making any threat, the deputy told him to stay inside the courtroom until he received permission to leave. At some point the AG’s office arrived with its own security detail. When the proceedings began, the state-court judge discussed the report in open court.

Barnett filed suit in state court the next day against Cremin, Rogers, Hall Estill, and Tulsa University (TU), alleging federal civil-rights claims under 42 U.S.C. § 1983 and state tort claims because he had been unlawfully seized when he was forbidden to leave the courtroom, had been cast in a false light by the public airing of the alleged threat, and had been retaliated against by Defendants for his exercise of his rights to free speech and access to the courts. (TU is not mentioned in the complaint except to say that Hall Estill is representing TU in a state-court lawsuit brought against it by Barnett’s husband and that Barnett has criticized TU in "numerous public forums." Aplt. App. at 2.) Defendants removed the case to federal court under 28 U.S.C. § 1441(a) based on the federal district court’s original jurisdiction over claims under § 1983. The district court then had jurisdiction over the state-law claims under the court’s supplemental jurisdiction. See 28 U.S.C. § 1367(a).

Shortly after removal, Defendants moved to dismiss the federal and state claims, and Barnett moved to recuse the district-court judge. The district court denied Barnett’s motion to recuse. And it dismissed with prejudice the federal claims under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim because the allegations of the complaint would not support a finding that Defendants acted under color of state law.

In the same order dismissing the federal claims, the district court applied the OCPA and dismissed with prejudice the state claims. Before summarizing the district court’s ruling, a further description of the state statute will be useful. The OCPA is one of a number of state laws throughout the country that are designed to reduce the frequency of what are called SLAPP lawsuits. (SLAPP is an acronym for "Strategic Lawsuit Against Public Participation." Krimbill v. Talarico , 417 P.3d 1240, 1245 (Okla. Civ. App. 2017) ). As the Oklahoma Court of Civil Appeals has explained: "Anti-SLAPP legislation appears to be the result of an increasing tendency by parties with substantial resources to file meritless lawsuits against legitimate critics, with the intent to silence those critics by burdening them with the time, stress, and cost of a legal action. To [curb such lawsuits], anti-SLAPP acts typically provide an accelerated dismissal procedure, available immediately after a suit is filed in order to weed out meritless suits early in the litigation process." Id. ; see Anagnost v. Tomecek , 390 P.3d 707, 709–10 (Okla. 2017) ("The stated purpose of the [OCPA] 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 a meritorious lawsuit for a demonstrable injury.’ It accomplishes this goal by allowing parties to file motions to dismiss legal actions if the legal action relates or is in response to free speech." (quoting Okla. Stat. tit. 12, § 1430 )).

Under the OCPA, if a defendant shows that the plaintiff’s claim relates to the defendant’s exercise of the right to free

956 F.3d 1234

speech¹ , to petition, or of association, then the plaintiff must show by "clear and specific evidence a prima facie case for each essential element" of the claim. Krimbill , 417 P.3d at 1245 (quoting § 1434(C)). If the plaintiff carries that burden, the defendant can avoid further proceedings by proving "by a preponderance of the evidence" a valid defense to the plaintiff’s claims. Id. (quoting § 1434(D)). If the plaintiff fails to show by clear and specific evidence a prima facie case, or if the defendant proves a valid defense by a preponderance of the evidence, the court must dismiss the plaintiff’s case. See Okla. Stat. tit. 12, § 1434. The OCPA also provides for attorney fees to prevailing defendants. See id. § 1438.

Although this court had held in Los Lobos Renewable Power, LLC v. Americulture, Inc. , 885 F.3d 659, 673 (10th Cir.), cert. denied , ––– U.S. ––––, 139 S. Ct. 591, 202 L.Ed.2d 427 (2018), that the New Mexico anti-SLAPP statute does not apply in federal court, the district court did not believe itself bound by our precedent. The district court correctly understood Los Lobos to be "carefully limited to the New Mexico law it addresses." Barnett v. Hall, Estill, Hardwick, Gable, Golden & Nelson, P.C. , No. 18-cv-00064-TCK-FHM, 2018 WL 4038117, at *3 (N.D. Okla. Aug. 23, 2018). Our prior opinion was "based on the text of the New Mexico law and distinguish[ed] it from other anti-SLAPP statutes ... ‘that shift substantive burdens of proof, or alter substantive standards.’ " Id. (quoting Los Lobos , 885 F.3d at 670 ). The district court reasoned that the OCPA was different, because it "employs ... substantive standards." Id. And unlike the New Mexico courts, which have held that the New Mexico law was procedural, an Oklahoma court has "indicate[d] that the OCPA is not merely procedural." Id. (citing Steidley v. Cmty. Newspaper Holdings, Inc. , 383 P.3d 780, 785–87 (Okla. Civ. App. 2016) ).

Applying the OCPA framework, the district court first ruled that Barnett’s state-law claims related to Defendants’ exercise of the right to free speech because the communication alleged by the complaint (a report of a threat) was related to health or safety, which is a matter of public concern under the OCPA. The burden then fell on Barnett to establish by clear and specific evidence his prima facie case. The district court walked through the elements of each of his state-law claims and concluded that he had presented no evidence to...