Carbone v. Cable News Network, Inc., 121318 FED11, 17-10812

Docket Nº:17-10812
Party Name:DAVIDE M. CARBONE, Plaintiff-Appellee, v. CABLE NEWS NETWORK, INC., Defendant-Appellant.
Judge Panel:Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, District Judge.
Case Date:December 13, 2018
Court:United States Courts of Appeals, Court of Appeals for the Eleventh Circuit

DAVIDE M. CARBONE, Plaintiff-Appellee,


CABLE NEWS NETWORK, INC., Defendant-Appellant.

No. 17-10812

United States Court of Appeals, Eleventh Circuit

December 13, 2018

Appeal from the United States District Court for the Northern District of Georgia No. 1:16-cv-01720-ODE

Before TJOFLAT and WILLIAM PRYOR, Circuit Judges, and MURPHY, [*] District Judge.


This interlocutory appeal requires us to decide whether the motion-to-strike procedure of the Georgia anti-SLAPP (Strategic Lawsuits Against Public Participation) statute, O.C.G.A. § 9-11-11.1, applies in federal court. Davide Carbone filed a complaint against Cable News Network for publishing a series of allegedly defamatory news reports about him and the medical center he administered. CNN moved to strike the complaint under the Georgia anti-SLAPP statute or, in the alternative, to dismiss the complaint for failure to state a claim for relief under Federal Rule of Civil Procedure 12(b)(6). The district court denied that motion. It ruled that the special-dismissal provision of the anti-SLAPP statute does not apply in federal court because it conflicts with Rule 12(b)(6) and that Carbone's complaint states a claim for relief. CNN challenges both rulings. We agree with the district court that the special-dismissal provision of the Georgia anti-SLAPP statute does not apply in federal court, but we lack pendent appellate jurisdiction to review whether Carbone's complaint states a claim for relief. We affirm in part and dismiss in part.


Carbone alleges that while he served as chief executive officer of St. Mary's Medical Center in West Palm Beach, Florida, CNN published "a series of false and defamatory news reports, articles, and social media posts" asserting that the mortality rate for pediatric open-heart surgery at St. Mary's was 12.5 percent- more than three times the national average of 3.3 percent. Carbone alleges that CNN intentionally misrepresented the national average mortality rate for open-heart pediatric surgeries by using a figure based on the total number of pediatric heart surgeries. As he puts it in his complaint, "[i]nstead of reporting the St. Mary's program's mortality rate based on all pediatric heart surgeries it performed (both open and closed heart surgeries) and comparing that number to the national average of the same computation," CNN reported "the St. Mary's program's mortality rate for the most inherently risky surgeries (open heart) and then compared it to the national rate for all surgeries (including the less risky closed heart surgeries)." The total "risk-adjusted mortality rate for St. Mary's Pediatric Cardiac program was 5.3%, and that figure had a 95% confidence interval that encompassed" the "national average 3.4% mortality rate," which meant that there was "no statistically significant difference between the St. Mary's program's mortality rate and the national average." Carbone alleges that, as a result of this reporting, St. Mary's discontinued its pediatric cardiology program and he was forced to resign as chief executive officer.

CNN moved to strike Carbone's complaint under the Georgia anti-SLAPP statute, O.C.G.A. § 9-11-11.1, or, in the alternative, to dismiss it under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim. The anti-SLAPP statute applies to claims brought against "a person or entity arising from any act . . . which could reasonably be construed as an act in furtherance of the person's or entity's right of petition or free speech under the Constitution of the United States or the Constitution of the State of Georgia in connection with an issue of public interest or concern." O.C.G.A. § 9-11-11.1(b)(1). If this condition is satisfied, the statute provides a special procedural mechanism for the defendant to move to strike the claim. That provision requires the claim to be struck "unless the court determines that the nonmoving party has established that there is a probability that the nonmoving party will prevail on the claim." Id.

Discovery is halted during the pendency of a motion to strike, id. § 9-11-11.1(d), with two exceptions. First, "if there exists a claim that the nonmoving party is a public figure plaintiff, then the nonmoving party shall be entitled to discovery on the sole issue of actual malice whenever actual malice is relevant to the court's determination." Id. § 9-11-11.1(b)(2). Second, "[t]he court, on noticed motion and for good cause shown, may order that specified discovery or other hearings or motions be conducted." Id. § 9-11-11.1(d). And "a prevailing moving party on a motion to strike shall be granted the recovery of attorney's fees and expenses of litigation related to the action in an amount to be determined by the court based on the facts and circumstances of the case." Id. § 9-11-11.1(b.1).

The district court denied CNN's motion. It ruled that the special dismissal procedure created by Georgia's anti-SLAPP statute does not apply in federal court and that Carbone's complaint states a claim for relief under Rule 12(b)(6). The district court determined that Rule 12(b)(6) "directly conflicts with Georgia's anti-SLAPP statute" because the latter creates "a Rule 12(b)(6) 'plus' standard for cases with a First Amendment nexus." The district court reasoned that this conflict arises because "Rule 12(b)(6) requires 'plausibility' on the face of the complaint" but "Section 9-11-11.1(b)(1) requires a probability of prevailing." The district court ruled that Carbone's complaint contained plausible factual allegations that, if true, would prove liability for defamation.


We review de novo federal-versus-state choice-of-law questions, Adventure Outdoors, Inc. v. Bloomberg, 552 F.3d 1290, 1294 (11th Cir. 2008), and questions concerning our jurisdiction, Weatherly v. Ala. State Univ., 728 F.3d 1263, 1269 (11th Cir. 2013).


We divide our discussion in two parts. First, we consider whether the motion-to-strike procedure created by the Georgia anti-SLAPP statute applies in a federal court sitting in diversity jurisdiction. Second, we address whether we have pendent appellate jurisdiction to review the denial of the motion to dismiss under Rule 12(b)(6).

A. The Motion-to-Strike Provision of Georgia's Anti-SLAPP Statute Conflicts with Rules 8, 12, and 56.

CNN argues that we have already held that motion-to-strike provisions of state anti-SLAPP statutes apply in federal court in two decisions, Royalty Network, Inc. v. Harris, 756 F.3d 1351 (11th Cir. 2014), and Tobinick v. Novella, 848 F.3d 935 (11th Cir. 2017), but CNN is mistaken. In Harris, we held that a separate provision of an earlier version of Georgia's anti-SLAPP statute, which required a complaint asserting a claim covered by the statute to be "accompanied by a verification making specific representations," conflicted with Federal Rule 11(a) and did not apply in federal court. 756 F.3d at 1359. We addressed the motion-to-strike procedure only to clarify that our holding did not conflict with the decisions of our sister circuits holding that such procedures apply in federal court. Id. at 1361-62. And in Novella, we affirmed the dismissal of certain state-law claims based on California's anti-SLAPP statute. But we did so because the plaintiff-appellants in that appeal "waived their challenge to the district court's application of California's anti-SLAPP statute based on the Erie doctrine," not because we concluded that the statute applies in federal court. Novella, 848 F.3d at 944. To be sure, we stated that "[t]he district court acted reasonably in applying California's anti-SLAPP statute," id., but that observation was not part of our holding. See Bryan A. Garner et al., The Law of Judicial Precedent § 4, at 44 (2016) ("[D]igressions speculating on how similar hypothetical cases might be resolved" are dicta and do not "bind future courts.").

The framework for resolving this question is familiar. A federal court exercising diversity jurisdiction will not apply a state statute if a Federal Rule of Civil Procedure "answers the question in dispute." Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393, 398 (2010) (majority opinion). If a Federal Rule is "sufficiently broad to control the issue before the Court," Walker v. Armco Steel Corp., 446 U.S. 740, 749-50 (1980), "it governs . . . unless it exceeds statutory authorization" under the Rules Enabling Act or "Congress's rulemaking power" under the Constitution, Shady Grove, 559 U.S. at 398. If no Federal Rule answers the question in dispute, we undertake an "unguided Erie" inquiry to decide whether to apply the state statute or federal common law. Hanna v. Plumer, 380 U.S. 460, 471 (1965). That choice-of-law...

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