Klocke v. Watson, 082319 FED5, 17-11320

Docket Nº:17-11320
Opinion Judge:EDITH H. JONES, Circuit Judge.
Party Name:WAYNE M. KLOCKE, Independent Administrator of the Estate of Thomas Klocke, Plaintiff - Appellant v. NICHOLAS MATTHEW WATSON, Defendant-Appellee
Judge Panel:Before JONES, BARKSDALE, and WILLETT, Circuit Judges.
Case Date:August 23, 2019
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

WAYNE M. KLOCKE, Independent Administrator of the Estate of Thomas Klocke, Plaintiff - Appellant



No. 17-11320

United States Court of Appeals, Fifth Circuit

August 23, 2019

Appeal from the United States District Court for the Northern District of Texas

Before JONES, BARKSDALE, and WILLETT, Circuit Judges.

EDITH H. JONES, Circuit Judge.

The critical issue in this appeal is whether, or to what extent, the Texas Citizens Participation Act ("TCPA"), Tex. Civ. Prac. & Rem. Code §§ 27.001- .011, which is a type of anti-SLAPP statute, 1 applies in a diversity suit in federal court. The district court held it applicable as a "substantive" matter and accordingly granted appellee Nicholas Watson's motion to dismiss and awarded attorney's fees pursuant to the TCPA. Resolving an issue that has brewed for several years in this circuit, we conclude that the TCPA does not apply to diversity cases in federal court and therefore REVERSE and REMAND for further proceedings.


Appellant Wayne Klocke's son, Thomas, was a student at the University of Texas at Arlington who tragically committed suicide in June 2016 after being refused permission to graduate. Thomas was allegedly the victim of appellee Watson's false charge of homophobic harassment, for which the University administered its severe punishment after allegedly violating Title IX procedures designed to achieve due process.

As administrator of his son's estate, Klocke sued the University for Title IX violations and Watson for common law defamation and defamation per se. Watson moved to dismiss the defamation claims under the TCPA.

Klocke responded in a document titled "Plaintiff's Objection to Defendant Watson's Motion to Dismiss; in the alternative, Motion for Protective Order and Request for Procedural Clarification from the Court and Brief in Support." The response asserted that the TCPA is inapplicable in federal court, but it did not substantively address Watson's arguments based on the requirements of the TCPA. The objection noted that the Fifth Circuit had not explicitly held whether the TCPA applied in federal court and asked the district court to clarify "whether and how it will entertain Defendant Watson's TCPA motion to dismiss in this case . . . and what procedures and deadlines will apply." Klocke also requested the district court to clarify whether he must file a reply pursuant to the Northern District of Texas's Local Rules or at the motion hearing prescribed in the TCPA.2 Alternatively, Klocke moved for discovery and further time to respond substantively to the TCPA motion if the court held that the TCPA was applicable.

The district court overruled the objection to applying the TCPA and concluded that Klocke waived any "substantive" TCPA arguments by failing to make them within twenty-one days pursuant to Local Rule 7.1(e). The district court denied his other requests and accordingly granted Watson's motion to dismiss. Later, the court awarded Watson $25, 000 in attorney's fees, $3, 000 in expenses, and a $1.00 sanction, all pursuant to the TCPA. The district court entered a "Final Judgment as to Certain Party."3 Klocke timely appealed.[4]


This court reviews de novo a decision applying state law in federal court. See Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391, 395 (5th Cir. 2003). The court reviews "the district court's administrative handling of a case, including its enforcement of the local rules and its own scheduling orders, for abuse of discretion." Macklin v. City of New Orleans, 293 F.3d 237, 240 (5th Cir. 2002). Abuse of discretion is also the test on appeal of a "court's decision to limit discovery…." Crosby v. La. Health Serv. and Indem. Co., 647 F.3d 258, 261 (5th Cir. 2011).


On appeal, Klocke principally contends that the TCPA's essentially "procedural" provisions conflict with federal procedural rules and therefore do not apply in federal court. He also argues that the district court erred by enforcing its local rules and not allowing him to respond to Watson's TCPA motion and by denying him an opportunity to move for discovery under the TCPA.

A. Applying the TCPA in federal court?

The TCPA is an anti-SLAPP (Strategic Litigation Against Public Participation) statute designed 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." Tex. Civ. Prac. & Rem. Code § 27.002. Other states have passed similar anti-SLAPP statutes because they "have expressed concerns over the use (or abuse) of lawsuits that have the purpose or effect of chilling the exercise of First Amendment rights." Henry v. Lake Charles American Press, L.L.C., 566 F.3d 164, 169 (5th Cir. 2009). In Henry, this court held that Louisiana's "nominally procedural" anti-SLAPP statute applies in federal court pursuant to the Erie doctrine. Id. at 168-69; see LA. CODE CIV. PROC. art. 971. This court has, however, passed several times on deciding whether, or to what extent, the TCPA applies in federal court. Cuba v. Pylant, 814 F.3d 701, 706 & n.6 (5th Cir. 2016); but see id. at 719 (Graves, J., dissenting) (arguing that the TCPA cannot apply because the state statute conflicts with the Federal Rules); Block v. Tanenhaus, 867 F.3d 585, 589 n.2 (5th Cir. 2017) (collecting cases). In this appeal, we are required to confront the question directly. And we generally agree with Judge Graves's conclusion.

Codified in the Texas Civil Practice and Remedies Code, the TCPA effectuates a speedy process for resolving litigation that may impinge on a party's exercise of the rights to free speech, petition, or association. See Tex. Civ. Prac. & Rem. Code § 27.003(a). Under the statutory burden-shifting framework, if a movant for TCPA relief shows "by a preponderance of the evidence" that the action is based on the movant's exercise of the listed rights, a court must dismiss the case. Id. at § 27.005(b)(1)-(3). But if the non-movant "establishes by clear and specific evidence a prima facie case for each element of the claim in question," the court may not dismiss. Id. at § 27.005(c). The movant...

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