Lozovyy v. Kurtz

• Decision Date: 29 December 2015
• Docket Number: No. 15–30086.,15–30086.
• Citation: 813 F.3d 576
• Parties: Yaroslav LOZOVYY, Plaintiff–Appellant v. Richard L. KURTZ; Thomas R. Klei, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

813 F.3d 576

Yaroslav LOZOVYY, Plaintiff–Appellant

v.Richard L. KURTZ; Thomas R. Klei, Defendants–Appellees.

No. 15–30086.

United States Court of Appeals, Fifth Circuit.

Dec. 29, 2015.

Scott Damon Wilson (argued), Baton Rouge, LA, for Plaintiff–Appellant.

Michael A. Patterson, Susan Brooke Barnett–Bernal, Sharon S. Whitlow (argued), Long Law Firm, L.L.P., Baton Rouge, LA, for Defendants–Appellees.

Before BENAVIDES, DENNIS, and COSTA, Circuit Judges.

FORTUNATO P. BENAVIDES, Circuit Judge:

This appeal involves the application of Louisiana Code of Civil Procedure Article 971, the state's "anti-SLAPP" statute, which provides a procedural mechanism for dismissing certain defamation claims early in litigation unless the plaintiff can establish a "probability of success." Plaintiff–Appellant Yaroslav Lozovyy sued Richard Kurtz and Thomas Klei for allegedly stating during a conference call that he destroyed and/or stole research data, and the district court granted Kurtz and Klei's special motion to strike the claim under Article 971. Lozovyy now appeals, arguing that the court erred in granting the motion despite the existence of a genuine dispute of material fact. We agree; accordingly, we REVERSE the judgment of the district court and REMAND for further proceedings.

I. BACKGROUND

From 2001 to 2012, Plaintiff–Appellant Yaroslav Lozovyy ("Lozovyy") was employed by Louisiana State University at the J. Bennett Johnston Sr. Center for Advanced Microstructures & Devices ("CAMD") on an annual renewable-contract basis. Lozovyy worked as a research assistant, contributing to CAMD's study and development of potential alternative energy sources. During the course of Lozovyy's employment at CAMD, he had considerable contact with Peter Dowben ("Dowben"), a physics and astronomy professor at the University of Nebraska–Lincoln. Dowben and Lozovyy frequently collaborated on academic papers, publishing over two dozen together, and they often corresponded via email to share strategies for navigating inter-office politics. Dowben also wrote to CAMD representatives on Lozovyy's behalf several times; for instance, in 2010 Dowben wrote a long email to CAMD's interim director Richard L. Kurtz ("Kurtz") about the apparent "poor quality" of recent CAMD research, arguing that it was "not a problem that [could] be laid at the feet of Yaroslav Lozovyy specifically." Another time, Dowben wrote to an LSU professor and CAMD collaborator about Lozovyy's various contributions to CAMD's work, noting that Lozovyy had been going above and beyond his job description "as a good citizen" without "any appreciable benefits."

In April of 2012, a decision was made not to renew Lozovyy's contract with CAMD, effectively terminating his employment at LSU. Lozovyy sent an email on June 28, 2012 suggesting that he had heard a "rumor ... at LSU" that he "stole" CAMD data and "Dr. Kurtz was forced to fire" him as a result. Dowben subsequently contacted Kurtz and demanded an explanation for Lozovyy's termination, insisting that Lozovyy be allowed to return. In July of 2012, a conference call was held at Dowben's request to discuss Lozovyy's termination, among other things. The participants in the call were Dowben, Kurtz, LSU Vice Chancellor for Research and Economic Development Thomas R. Klei ("Klei"), Associate Vice Chancellor Kalliat T. Valsaraj ("Valsaraj"), CAMD Scientific Director John Scott ("Scott"), and Prem Paul and Greg Snow of the University of Nebraska–Lincoln. Lozovyy alleges that during the conference call, Kurtz and Klei falsely stated that Lozovyy had been terminated for stealing and/or destroying CAMD data.

Based on the statements allegedly made during the conference call, Lozovyy sued Kurtz and Klei (collectively, "Defendants") for defamation on July 1, 2013. After conducting discovery for over a year and twice having joint motions to extend discovery deadlines denied by a magistrate judge, Defendants filed a special motion to strike under Louisiana Code of Civil Procedure Article 971 on July 18, 2014. In support of their motion, Defendants submitted their own affidavits and affidavits from Valsaraj and Scott averring that none of the participants in the conference call had stated that Lozovyy stole or destroyed CAMD data. In response to Defendants' motion, Lozovyy submitted an affidavit from Dowben asserting in relevant part that "Kurtz and Klei specifically stated that Dr. Lozovyy had stolen and destroyed data."¹ Defendants countered with numerous affidavits and exhibits attacking Dowben's credibility, including the aforementioned emails and statements regarding actions taken by Dowben on Lozovyy's behalf.

On July 24, 2014, the district court issued a notice to the parties that the special motion to strike would be converted to a motion for summary judgment, and Defendants would have 14 days to supplement their motion as appropriate for one for summary judgment. Defendants supplemented their motion on August 7, 2014, maintaining in the alternative that a special motion to strike was available to them under Louisiana law. On December 17, 2014, the district court issued another notice to counsel indicating that, upon reconsideration, Defendants' motion would be treated as a special motion to strike under Louisiana Code of Civil Procedure Article 971. The court asked for additional briefing and held a hearing on January 15, 2015, ultimately granting Defendants' motion on January 26, 2015.

In the court's written order, it first noted that Article 971 could properly be applied in federal court, although "neither party ha[d] raised the issue." The court then based its decision to grant the motion on its view that "the burden imposed by Article 971 is greater than ... the burden of the non-movant on a motion for summary judgment," and it indicated in a footnote that "if the ordinary summary judgment standard applied, ... Peter Dowben's declaration would be enough, by itself, to defeat [the] motion ... and create an issue of fact for trial." On the affidavits presented, the court concluded that Defendants' evidence "cast[ ] doubt on the credibility of ... Mr. Dowben," and thus "[i]f any weighing of evidence is required by Article 971, and the Fifth Circuit appears to require this, then Plaintiff loses." The district court accordingly entered judgment dismissing Lozovyy's claim with prejudice on February 9, 2015. Lozovyy now appeals, arguing that (1) the motion and hearing were untimely, and (2) the district court misapplied Article 971's dismissal standard.

II. APPLICABLE LAW

Louisiana Code of Civil Procedure Article 971 provides that

[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or Louisiana Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established a probability of success on the claim.

LA.CODE CIV. PROC. art. 971(A)(1). Article 971 also sets forth specific timing provisions for special motions to strike: such motions "may be filed within ninety days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper," and properly filed motions "shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing." Id. arts. 971(C)(1) & (3). In the act creating Article 971, the Louisiana legislature indicated that in light of the "disturbing increase in lawsuits brought primarily to chill the valid exercise of ... constitutional rights," the provisions of Article 971"shall be construed broadly." Thomas v. City of Monroe, 833 So.2d 1282, 1286 (La.App. 2d Cir.2002) (quoting 1999 La. Acts 734).

This Court reviews a district court's determinations of state law de novo. Am. Reliable Ins. Co. v. Navratil, 445 F.3d 402, 404 (5th Cir.2006). In reviewing determinations of state law, we look to the final decisions of the state's highest court, making an " ‘Erie guess' " as to how the highest court would resolve an issue if it has not been fully addressed. Chaney v. Dreyfus Serv. Corp., 595 F.3d 219, 229 (5th Cir.2010) (quoting Travelers Cas. & Sur. Co. of Am. v. Ernst & Young LLP, 542 F.3d 475, 483 (5th Cir.2008) ). Intermediate state appellate decisions are generally given deference in making an Erie guess unless " ‘other persuasive data’ " indicates " ‘that the highest court of the state would decide otherwise.’ " Id. "To the extent that a prior panel of this Circuit has ruled on [a state law] issue and has not been superceded [sic] by either [state] case law or a change in statutory authority," we are also "bound by the prior decisions of this Circuit as to the meaning of [state] law." Welborn v. State Farm Mut. Auto. Ins. Co., 480 F.3d 685, 687 (5th Cir.2007).

III. DISCUSSION

Lozovyy challenges the district court's grant of Defendants' special motion to strike on two primary bases: first, Lozovyy argues that the motion and hearing did not comply with the timing provisions of Article 971, and second, Lozovyy insists that the court misapplied Article 971's "probability of success" standard when it apparently weighed conflicting affidavits and granted the motion despite the existence of a genuine dispute of material fact.² We address Lozovyy's timeliness arguments first, and we then discuss the meaning of Article 971's dismissal provision.³

A. Timeliness of the Special Motion to Strike and Hearing

As noted above, Article 971 provides that special motions to strike under its auspices "may be filed within ninety days of service of the petition, or in the court's discretion, at any later time upon terms the court deems proper." LA.CODE CIV. PROC. art. 971(C)(1). Additionally, properly filed motions "shall be noticed for hearing not more than thirty days after service unless the docket conditions of the court require a later hearing." Id. art. 971(C)(3). It is...