Farmland Partners, Inc. v. Fortunae
| Decision Date | 06 January 2021 |
| Docket Number | No. 19-1011,19-1011 |
| Parties | FARMLAND PARTNERS, INC., Plaintiff - Appellee, v. ROTA FORTUNAE, whose true name is unknown, and JOHN/JANE DOES 2-10, whose true names are unknown, Defendant - Appellant. |
| Court | U.S. Court of Appeals — Tenth Circuit |
(D. Colo.)
ORDER AND JUDGMENT*Before BRISCOE, HOLMES, and EID, Circuit Judges.
The central merits issue in this appeal is whether the Texas Citizens Participation Act ("TCPA"), Tex. Civ. Prac. & Rem. Code Ann. §§ 27.001-27.011 (West 2019), applies in federal court in our circuit. "The TCPA is an anti-SLAPP statute that allows a claim to be dismissed when the defendant can show that the claim was brought to chill the exercise of First Amendment rights." NCDR, L.L.C. v. Mauze & Bagby, P.L.L.C., 745 F.3d 742, 746 (5th Cir. 2014) (footnoteomitted).1 Because we conclude that we lack jurisdiction over this appeal, we do not reach the merits of this question. Specifically, we hold that we lack jurisdiction because the district court's order does not satisfy the collateral order doctrine. We therefore DISMISS this appeal and REMAND the case to the trial court for further proceedings consistent with this order and judgment.
Farmland Partners Inc. ("FPI") is "a publicly traded real estate investment trust" with farmland holdings throughout North America. Aplt. App., Vol. I, at 121 (Compl., filed July 23, 2018). Rota Fortunae ("RF"), Latin for "wheel of fortune," is a pseudonym used by "a resident and citizen of the State of Texas" who published an article about FPI. Id. at 61 (Decl. of Matthew Mitzner). RF allegedly opined (among other things) that FPI faced a risk of insolvency and that directors and an officer of FPI had left the company. RF published the article anonymously on SeekingAlpha.com, a New York-based internet outlet focusing on stock market analysis. FPI's stock dropped approximately thirty-nine percent soon after the article appeared on the website. At the same time, RF allegedly had taken a short position, essentially betting that FPI's stock price woulddecrease. FPI characterizes RF's alleged efforts as a "short and distort scheme." Id. at 122.
FPI then brought claims against RF based upon the publication of the article and related comments on Twitter. These included claims of defamation, disparagement, intentional interference with prospective business relations, unjust enrichment, deceptive trade practices under Colorado's Consumer Protection Act ("CCPA"), and civil conspiracy. The conspiracy charge also included nine unnamed defendants ("Doe Defendants"), whom FPI claims assisted RF in connection with disseminating false and misleading statements in the article and on Twitter.
FPI served RF in state court by substitute service through a person alleged to be RF's former counsel. Further, the state court granted FPI's request to serve the Doe Defendants through substitute service on a different attorney. That attorney later reported that he had no knowledge of the existence of the Doe Defendants. Relatedly, RF sought reconsideration of the state court's ruling of substitute service for the Doe Defendants.
Before the state court ruled on that motion for reconsideration, RF removed the action to federal court on September 14, 2018.2 FPI then filed a motion toremand to state court because the Doe Defendants had not joined or consented to the removal under 28 U.S.C. § 1446(b)(2)(A). As an alternative to removal, FPI sought limited discovery to determine the Doe Defendants' citizenship.
RF filed two motions to dismiss. On October 5, 2018, RF filed its first motion to dismiss for lack of personal jurisdiction and failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). More relevant for our purposes, just ten days later, RF filed a second motion to dismiss based on the TCPA ("TCPA Motion"). On October 31, 2018, RF requested a hearing to address the TCPA Motion. FPI opposed this request.
With a magistrate judge presiding, the district court held an initial conference on December 20, 2018.3 There, the court vacated the scheduling order in light of the pending motion to remand. The court also noted its jurisdictional concerns. The court said the following:
I have a duty to ascertain my jurisdiction, especially in light of the fact that the removal statute must be strictly construed and all doubts must be resolved in favor of remand. Minimal discovery may determine whether any John or Jane Doesexist, a fact which is central to the arguments regarding remand made by both sides . . . . I further want to avoid any possibility that I will consider and grant either or both of the motions to dismiss and never find out whether my jurisdiction had a factual basis. Simply stated, I decline to go forward until jurisdiction is settled.
Aplt.'s App., Vol. IV, at 101-02 (Sched. Conf., Dec. 20, 2018). The court ordered RF to answer limited discovery-related interrogatories to facilitate the court's determination of its diversity jurisdiction. Id.
The court then denied all other motions, including the TCPA Motion—notably, without prejudice. Id. at 102. The court explained:
It is further ordered that the motion to dismiss [filed at document] Number 18 on the electronic docket, [the] motion to dismiss under the Texas Citizens Participation Act [filed at docket] Number 22, [the] motion for hearing on the motion to dismiss under the Texas Citizens Participation Act [filed at docket] Number 32, and the motion for default judgment, [filed at document] Number 37, are denied without prejudice. If it is determined that the Court possesses subject matter jurisdiction, those motions may be refiled as appropriate.
Id. at 102-03 (emphases added).
On January 4, 2019, RF filed a motion to reconsider the court's order that obliged RF to answer discovery-related interrogatories. On January 9, the court granted this motion, in part, and permitted RF to respond to half of the jurisdictional interrogatories by January 10, 2019.
On January 9, 2019, RF filed the instant appeal from the district court's December 20, 2018, order. As relevant here, RF expressly challenged the district court's decision to deny RF's TCPA Motion and its motion for a TCPA hearing. The parties appeared before the court for a status conference on January 11, 2019. There, RF's counsel insisted that the notice of appeal divested the district court of jurisdiction and effected an automatic stay of the entire action until the Tenth Circuit ruled. The district court disagreed, explaining that, in its view, "[t]here is no stay in this case" and, specifically, that "discovery orders are not appealable under the Cohen collateral order doctrine." Aplee.'s Suppl. App. at 39 (Tr. of Status Conf., Jan. 11, 2019) (italics added) (referring to Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949)). RF's counsel voiced his objection, noting in particular that the TCPA Motion was immediately appealable under "the collateral order doctrine . . . because of the First Amendment interplay." Id. 40. The court rejected this concern, noting that the TCPA Motion had been "dismissed without prejudice." Id.
Ultimately, over RF's continued objections, the court ordered RF to comply with its order—that is, to file responses to the jurisdictional interrogatories within three days and warned, "I am very likely to hold you [counsel for RF] in contempt." Id. at 42. Reacting to this advisement, on January 14, 2019, RF submitted responses to the interrogatories that—as the court reasoned—were relevant to the question of its subject-matter jurisdiction.
Around the same time, RF had filed a motion to stay all district court proceedings pending the resolution of this appeal. The court did not immediately resolve that motion, however. After over six months of litigation pertaining to the court's jurisdiction, the court concluded that, though the existence of the Doe Defendants remained "a factual question which is likely to be the subject of formal discovery in this case," there was not a proper foundation for the state court's order of substituted service and, more specifically, that RF's contention that "such service was not reasonably calculated to result in actual notice to the Doe Defendants is well-taken." Dist. Ct. Order, Doc. No. 83, at 11-12 (filed, June 11, 2019).
Accordingly, the court vacated the state court order that had granted FPI's request for substitute service on the Doe Defendants and struck FPI's proof of service of process relating to the Doe Defendants. The upshot was that the matter that had caused the court to harbor doubts concerning its subject-matter jurisdiction—relating the citizenship of the Doe Defendants—was effectively removed from the field and rendered of no consequence by this set of rulings.
Given these orders, the court put the case back on track for litigation of the merits, setting a scheduling conference to meet with the parties. At that time, in July 2019, the court denied RF's motion for stay—concluding that it was not divested of jurisdiction by RF's filing of its January 2019 appeal and specifyingat length its view that the court's December 20 order denying RF's TCPA Motion was not an appealable collateral order.
Following this ruling, RF refiled its TCPA Motion to dismiss, specifically in August 2019. However, recognizing the pendency of this appeal, the district court again denied the TCPA Motion without prejudice, expressly noting that insofar as RF's August TCPA Motion "was filed to preserve rights under the TCPA, this was unnecessary as RF's rights were preserved through its initial [TCPA] motion." Dist. Ct. Minute Order, Doc. 127, at 2 (Mar. 9, 2020).4
Federal appellate courts "have jurisdiction of appeals from all final decisions of the district courts." 28 U.S.C. § 1291. Typically, a final decision is "one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945). It is...
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