Louisiana Crisis Assistance Ctr. v. Marzano–Lesnevich, Civil Action No. 11–2102.

• Decision Date: 23 November 2011
• Docket Number: Civil Action No. 11–2102.
• Citation: 40 Media L. Rep. 1113,827 F.Supp.2d 668
• Parties: LOUISIANA CRISIS ASSISTANCE CENTER d/b/a Louisiana Capital Assistance Center v. Alexandria MARZANO–LESNEVICH.
• Court: U.S. District Court — Eastern District of Louisiana

40 Media L. Rep. 1113

827 F.Supp.2d 668

LOUISIANA CRISIS ASSISTANCE CENTER d/b/a Louisiana Capital Assistance Center

v.Alexandria MARZANO–LESNEVICH.

Civil Action No. 11–2102.

United States District Court, E.D. Louisiana.

Nov. 23, 2011.

Harry Simms Hardin, III, Christopher Daniel Cazenave, Mark Aaron Cunningham, Jones Walker, New Orleans, LA, for Plaintiff.

Loretta G. Mince, Alysson L. Mills, Fishman Haygood, New Orleans, LA, for Defendant.

ORDER AND REASONS

CARL J. BARBIER, District Judge.

Before the Court is Defendant's Special Motion to Strike (Rec. Doc. 4), Plaintiff's Opposition (Rec. Doc. 15), and Defendant's Reply (Rec. Doc. 18). The motion is before the Court on supporting memoranda, without oral argument.

PROCEDURAL HISTORY AND BACKGROUND FACTS

Alexandria Marzano–Lesnevich served as an unpaid summer law clerk at the Louisiana Capital Assistance Center (“LCAC”) while she was a law student at Harvard University in 2003. LCAC is a nonprofit organization providing legal representation to indigent capital defendants. As a summer law clerk, she investigated the facts of assigned cases, conducted case analysis, drafted memoranda, managed client correspondence, and attended meetings where attorneys discussed case strategies for specific clients.

After graduating from law school, Ms. Marzano–Lesnevich pursued a career as a journalist and writer in lieu of a legal career. Nonetheless, her legal training has informed her writing, as she has published several essays relating to her experiences and dealing with the death penalty and sex crimes. Among her published works is an essay titled In the Fade, which was published in the Spring 2010 issue of a journal called The Bellingham Review, ¹ and an essay entitled Longtermer's Day, which was published in a nonfiction periodical entitled Fourth Genre in 2010.² Ms. Marzano–Lesnevich also published copies of these works, along with several other fictional works, on her personal website.³ In the Fade is a creative nonfictional description of the criminal prosecution of an LCAC client named Ricky Langley for the sexual assault and murder of a six-year old boy in Calcasieu Parish, Louisiana. Longtermer's Day is a stylistically similar account of the author's experience visiting Angola Prison and conversing with prisoners. It is these works, along with a forthcoming but yet uncompleted novel, which are at issue in this suit.

The director of LCAC, Richard Bourke, first discovered the existence of these works in 2010. Believing that they contained confidential client information, he directed his staff to contact Ms. Marzano–Lesnevich and request that she withdraw her works from publication, as well as to cease from disclosing any other confidential information relating to LCAC clients. In the meantime, he also contacted the Bellingham Review to request removal of the essay In the Fade from its website. It complied with this request in an effort to avoid litigation. These efforts eventually led to a conference call with Ms. Marzano–Lesnevich and her retained counsel. During the conference call, Ms. Marzano–Lesnevich informed LCAC that she did not believe that any of the information in her published essays was confidential. She also informed Mr. Bourke and LCAC that she was in the process of writing a novel relating to her experiences as a LCAC law clerk and planned to seek publication upon the work's completion.⁴

LCAC subsequently filed suit in Civil District Court for Orleans Parish, Louisiana on July 26, 2011, alleging breach of fiduciary duty and breach of contract, and seeking injunctive relief prohibiting Ms. Marzano–Lesnevich from future disclosure or dissemination of confidential or privileged information obtained in the course of her summer clerkship, as well as other information relating to LCAC clients which disadvantages or prejudices those clients. Defendant removed the case to federal court on August 24, 2011 and filed the instant Special Motion to Strike the same day. Plaintiff filed its Opposition on September 9, 2011, and the Defendant filed a Reply four days later on September 13, 2011.

PARTIES' ARGUMENTS

Defendant Marzano–Lesnevich seeks to dismiss Plaintiff's claims for injunctive relief pursuant to Louisiana Code of Civil Procedure article 971, Louisiana's “anti-SLAPP” statute. Article 971 involves a burden-shifting procedure under which a defendant must first make a prima facie showing that the action against her arises out of an exercise of First Amendment rights with regards to a public issue. This shifts the burden to the plaintiff to demonstrate a probability of success on the merits of his claim. The Defendant raises several arguments in support of her in support of her Special Motion to Strike. First, she argues that the publication of a literary work is an exercise of the right of free speech, and because her essays and forthcoming novel explore issues surrounding the death penalty and sexual abuse, two important social issues, she insists that she has made the required prima facie showing.

Next, she contends Plaintiff cannot and has not sustained its burden of demonstrating a probability of success on the merits of its claim for several reasons. First, she argues that the issuance of the prayed-for injunction would constitute an unconstitutional prior restraint in violation of the First Amendment. She relies on several cases in which federal courts have denied similar requests for injunctive relief against publication of allegedly harmful material. Next, she urges that she owes no fiduciary or contractual duties to the Plaintiff, as it has not established the existence of a contract or that the Rules of Professional Conduct apply to her as a non-lawyer. She also adds that the disputed disclosures in this case are either publicly known information or her own personal opinions, neither of which she would be required to keep confidential. Third, she argues that LCAC has failed to demonstrate irreparable harm, as required to obtain an injunction. She urges that LCAC's claims that her writings “may” influence jurors, district attorneys, and LCAC clients are wholly speculative. Finally, she argues that the injunction sought by LCAC does not comport with Rule 65(d) of the Federal Rules of Civil Procedure because it is facially overbroad.

In response, LCAC first argues that article 971 is inapplicable in federal court in the first instance because it “directly collides” with the Federal Rules of Civil Procedure. While acknowledging that the Fifth Circuit seems to have assumed that it was, LCAC urges that it never directly held that article 971 was applicable in federal court. Next, even if article 971 is applicable, LCAC argues that Defendant has not carried her initial burden of showing that the instant dispute arises from an act in furtherance of her First Amendment rights because there is no First Amendment right to disclose information in breach of a duty of confidentiality.

In any case, it argues that it has demonstrated a probability of success on the merits of its claim for injunctive relief. LCAC contends that it has shown all necessary elements for claims for breach of fiduciary duty and breach of contract under Louisiana law through the Declarations of LCAC's officials that were attached to its opposition to the Defendant's motion. Additionally, it submits that injunctive relief is proper to prevent disclosure of confidential information. LCAC also argues it has shown a continuing threat of irreparable harm because Defendant expresses an intention to continue to publish confidential information in the future. Finally, to the extent that the injunction it seeks is overbroad, it argues that the Court may tailor the injunction to the specific violations proved.

DISCUSSION

A. Louisiana Code of Civil Procedure Article 971

Article 971 was enacted in 1999 after the Legislature found “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.” La.Code Civ. P. art. 971, Legislative Findings. These lawsuits are commonly referred to as “strategic lawsuits against public participation, or more succinctly “SLAPPs.” ” In keeping with this nomenclature, legislative enactments designed to combat these lawsuits and to encourage public participation in matters of public significance have been dubbed “anti-SLAPP” or “SLAPP back” statutes. Over twenty five states have enacted such anti-SLAPP statutes. Guam Greyhound, Inc. v. Brizill, No. 07–021, 2008 WL 4206682, at *2 (Guam Terr. Sep. 11, 2008).

To achieve these goals, article 971 provides defendants targeted by SLAPP suits with “a procedural device to be used early in legal proceedings to screen meritless claims,” called a special motion to strike. Lee v. Pennington, 2002–0381, p. 4 (La.App. 4 Cir. 10/16/02), 830 So.2d 1037, 1041. Essentially, the statute operates as a two-part burden-shifting framework. When a special motion to strike is filed, the court is required to stay all discovery in the proceedings, and the defendant must make a prima facie showing that the claims asserted against her arise from an act in furtherance of the exercise of her right of petition or free speech under the Louisiana or United States Constitution in connection with a public issue.⁵ Carr v. Abel, 10–CA–835, p. 9 (La.App. 5 Cir. 3/29/11), 64 So.3d 292, 297. After the defendant makes this showing, the burden shifts to the plaintiff to demonstrate a probability of success on the merits of his claim. Id. If the plaintiff fails to demonstrate a probability of success, his claims will be dismissed, and the prevailing defendant will be entitled to recover attorney's fees and costs. La.Code Civ. P. art. 971(B). If the plaintiff successfully defeats the motion, however, he can recover his own attorney's fees and costs, and the court's ruling denying the motion is admissible as substantive evidence later in the...