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Second Time's a Charm

Oklahoma Citizens Participation Act's Applicability in Federal Court

By Mbilike M. Mwafulirwa

“The question of whether anti-SLAPP1 statutes conflict with Rule 12(d) and other features of the Federal Rules of Civil Procedure has produced disagreement among federal appellate judges.”

—7th Circuit Court of Appeals2

The twin cases – Anagnost v. Tomecek3 and Steidley v. Singer4 – held that the Oklahoma Citizens Participation Act (OCPA) cannot apply retroactively to vested claims because it makes substantive changes to existing Oklahoma law.5 The OCPA belongs to a class of laws commonly referred to as anti-SLAPP statutes.6 Those laws provide procedures for dismissal of lawsuits that are intended to chill the exercise of First Amendment rights.7 The key features of the OCPA and many other anti-SLAPP statutes are that they provide for 1) the filing of a dispositive motion that tests the merits of the case, 2) an immediate right to a fast-track appeal if the motion is denied and 3) attorneys’ fees and costs to the movant if the case is dismissed.8

So far, the application of the OCPA in state court has been straightforward, as courts are required to apply it in appropriate cases.9 But in federal courts, the question is much more complex. In diversity cases, courts apply federal procedural rules and state substantive law,10 but whether the various anti-SLAPP statutes – with their special dispositive motions and other unique features – should apply in federal court has split federal appellate courts. This article explores whether the OCPA applies in federal courts in the 10th Circuit that cover Oklahoma.

BRIEF OVERVIEW
The OCPA is an amendment to Oklahoma’s previous anti-SLAPP statute.11 Commentators criticized the prior anti-SLAPP statute because it failed to adequately serve its purpose of protecting First Amendment activities.12 The previous anti-SLAPP only applied to libel, leaving other civil litigation untouched.13 Moreover, it did not provide for judicial review to ensure deterrence or as a cure for violations.14

The OCPA provides for an expedited dispositive motion.15 Within 60 days of the date of service of the petition (and without the benefit of discovery) a defendant can move to dismiss the case on the merits by showing by a preponderance of the evidence either 1) the case relates to protected speech or 2) an OCPA defense applies.16 To remain in court, the plaintiff must produce evidence making out a prima facie case by “clear and specific evidence.” 17 In evaluating this motion, the trial court can look to the pleadings, affidavits and other evidence.18 Some commentators have argued that the OCPA essentially provides a trial on the pleadings.19 If the defendant prevails on the motion, the trial court is required to award him attorneys’ fees and costs. 20 If the motion is denied or the trial court fails to rule on it within 90 days, the defendant has an immediate right to file an expedited interlocutory appeal.21

THE GROUND RULES IN FEDERAL COURT – DIVERSITY JURISDICTION CASES
Under Erie Railway Co. v. Tompkins,22 federal courts exercising diversity jurisdiction apply state substantive law and federal procedure rules.23 If there is a conflict between the state law and a federal rule, courts apply a two-tiered analysis:

  • First, determine whether the federal rule is broad enough to control the issue before the court, leaving no room for the conflicting state law;
  • If there is direct conflict between the state law and the federal rule, the court must determine if the federal rule is valid.24

Upon answering those two questions affirmatively and finding the conflicting federal rule valid, the U.S. Supreme Court25 has held there is “no need to wade into Erie’s murky waters...”26 That is pretty easy with pure state procedural rules, but there has been no clear majority on what to do with state laws that also form the framework of substantive rights or remedies: A Justice Scalia-led plurality held in Shady Grove Orthopedic Ass’n P.A. v. Allstate Ins. Co.where the two conflict, the federal rule prevails.27 But Justice Stevens held in his concurrence that the state law, if it alters substantive rights, should prevail when there is a conflict with the federal rules of procedure.28 Justice Stevens reasoned that the Enabling Act prevents 29 a federal court from exercising diversity jurisdiction in a way that “abridge[s], enlarge[s] or alter[s]” state substantive law.30 As a preeminent federal court treatise has recognized,

When matters of state substantive law are at issue, principles of federalism – which command that substantial deference be given to the ways in which the states have seen fit to structure social relationships in areas of state competence – also are implicated.31 

In cases where there is no majority opinion, the U.S. Supreme Court has held that lower courts should treat the narrowest concurring opinion as the controlling law. 32 The 10th Circuit has, in turn, held that Justice Stevens’ concurrence in Shady Grove is the controlling law.33

On the other hand, if there is no conflict between a federal rule of civil procedure and a state law, or if the federal rule is invalid, then the federal court must wade into an Erie analysis,34 which is primarily concerned with preventing forum shopping. When state substantive law is at issue in a case, it should be applied the same in state and federal court.35 But as Justice Gorsuch, Judge Kavanaugh and Judge Hartz have observed in their seminal treatise, “a federal court will not apply a state’s law or procedure that conflicts with an overriding federal interest, such as the right to trial by jury guaranteed by the Seventh Amendment.”36

ANTI-SLAPP STATUTES IN FEDERAL COURT
The 5th Circuit, for example, has taken conflicting positions – holding, for instance, that Louisiana’s anti-SLAPP statute applies in federal court, but it has refused to decide whether Texas’ anti-SLAPP (which is very similar to Oklahoma’s) is applicable.37 The 1st Circuit has held that Maine’s anti-SLAPP statute applies in federal court,38 while the 2nd Circuit (applying California law) has followed the 9th Circuit in holding that California’s anti-SLAPP provisions apply in federal court.39 The 7th Circuit was spared from weighing in on the issue. The Supreme Court of Washington declared Washington’s anti-SLAPP statute unconstitutional before the 7th Circuit could rule on the issue.40 The 11th Circuit has held that Georgia’s anti-SLAPP statute is inapplicable in federal court because it features an affidavit of merit rule that conflicts with Rule 11.41

The D.C. Circuit and the 9th Circuit have taken polar opposite sides in the anti-SLAPP debate. 42 In Abbas v. Foreign Policy Group, the D.C. Circuit was asked to consider whether the District of Columbia’s anti-SLAPP statute43 could apply in federal court.44 Under the D.C. statute, once a defendant made a prima facie showing that a suit related to “issues of public interest,” the burden shifted to plaintiff to demonstrate that “the claim would likely succeed on the merits.”45 Like the OCPA, discovery is stayed during the pendency of the motion.46 The court may award attorney’s fees and costs to a prevailing defendant.47 Writing for the appellate court, Judge Kavanaugh found that the statute conflicted with rules 12 and 56 as to when and how a federal court should dismiss a lawsuit before trial.48 The court rejected any comparisons of the anti-SLAPP statute to summary judgment or qualified immunity because the statute did not fit into either scheme’s analytical models.49

The 9th Circuit, however, saw things very differently in Newsham v. Lockheed Missiles & Space Co., Inc.50 In Newsham, the 9th Circuit was asked to consider whether two provisions of California’s anti-SLAPP statutes – a special motion to strike51 and attorney’s fees to the prevailing defendant52 – applied in federal diversity jurisdiction cases.53 The court found that rules 12 and 56 did not occupy the full sphere of pretrial dismissal of lawsuits in federal court.54 The court reasoned there was no conflict because a defendant could bring the special motion to strike beforebringing a dispositive motion under rule 12 or 56.55

THE 10TH CIRCUIT FINALLY WEIGHS IN – DO ANTI-SLAPP STATUTES APPLY IN FEDERAL COURT?
The 10th Circuit recently confronted the question of whether anti-SLAPP statutes apply in federal diversity cases in Los Lobos Renewable Power, LLC v. Americulture, Inc.56 New Mexico’s anti-SLAPP statute57 applies in lawsuits filed against persons exercising their First Amendment rights and allows a defendant to file a special motion to dismiss against such suits.58 In addressing the complex issues raised by anti-SLAPP statutes in federal court, the 10th Circuit produced two majority opinions and one dissenting opinion in the Los Lobos case.59 Two principle questions arose for consideration:

  • Whether the court could exercise appellate jurisdiction over the appeal; and
  • Whether the anti-SLAPP statute, as written, should apply in a federal court exercising diversity jurisdiction.

Chief Judge Tymkovich and Judge Briscoe formed a majority on the first question, concluding that the court could exercise appellate jurisdiction over the appeal.60 The court noted that, although appellants had missed their 10-day period within which to appeal the district court’s certified order provided by the anti-SLAPP statute,61 appellate jurisdiction was proper under the collateral order doctrine where the appeal was filed within 30 days of the order.62 As the court explained, the appeal was being taken to consider the limited question of whether the anti-SLAPP statute applied in federal court – as opposed to a determination on the merits that turned on the particular facts of the case.63

Once it determined it had jurisdiction, the 10th Circuit unanimously held that the New Mexico anti-SLAPP statute did not apply in federal court.64 The court began by assessing whether the anti-SLAPP statute was procedural or substantive for the purposes of the Erie doctrine.65 In doing so, the court looked at the statute’s title and language and found that it was designated as an expedited procedural mechanism that only applied to baseless suits aimed at frustrating the exercise of First Amendment rights.66 Furthermore, the New Mexico Supreme Court had held that the anti-SLAPP law was a procedural mechanism for protecting First Amendment rights.67 At best, the 10th Circuit stated, the anti-SLAPP statute was not intended to influence the outcome, but only the timing of the disposition.68

IS THE OCPA APPLICABLE IN FEDERAL COURT?
Unlike New Mexico’s anti-SLAPP statute, which had previously been deemed procedural, the Oklahoma Supreme Court has held that the OCPA’s key provisions are substantive for the purpose of retroactivity.69 But the 10th Circuit has noted that a finding that a state statute is substantive for retroactivity purposes does not control whether that law is also substantive for choice of law or other analyses.70 Context matters. Whether a state law is procedural or substantive for Erie purposes is a question of federal law.71 A state law is procedural, according to the U.S. Supreme Court, if it “concerns merely the manner and the means” in which state substantive rights are enforced, but if it would “significantly affect the result of the litigation,” it is likely substantive.72 Other U.S. Supreme Court cases have held that for the purposes of the Erie doctrine, “[r]ules that allocate decisionmaking authority… are prototypical procedural rules.”73 In Shady Grove, the majority found that state rules that govern pleading standards, summary judgment, pretrial discovery and admissibility of evidence are generally “ostensibly addressed to procedure.”74

Against this background, we turn to the OCPA. The OCPA has four key provisions:

  • A special motion to dismiss where a judge is empowered to consider conflicting evidence and determine whether a plaintiff has met her prima facie case by clear and specific evidence;
  • A blanket discovery ban during the pendency of the special motion to dismiss, unless a judge permits limited discovery;
  • An expedited interlocutory appeal if the defendant’s motion to dismiss is denied; and
  • Mandatory attorney’s fees and costs if the defense motion to dismiss is sustained.

The 10th Circuit made clear in Los Lobos that the Federal Rules of Civil Procedure “seem to cover all the bases” of pretrial handling of civil cases.75 As noted, the Erie doctrine requires an analysis of whether the OCPA’s key four features are in conflict with the federal rules.76 If there is a conflict between state law and the federal rules of procedure, it must then be determined whether the federal law is valid and assuming it is, whether the state law can be applied.77 Here, we assume that the federal procedure rules are valid because the U.S. Supreme Court has previously held that “[r]ules regulating matters indisputably procedural are a priori constitutional,” while “those regulating matters which, though falling within the uncertain area between substance and procedure… also satisfy this constitutional standard.”78 Challengers of the rules have a very high burden.79We now address whether the OCPA is applicable.

The OCPA’s Merit-conscious Special Dispositive Motion

Federal Rule 12 provides a mechanism by which a complaint is tested for legal sufficiency.80 Because the legal sufficiency of the complaint is often tested before discovery is complete, the allegations in the pleading are taken as true and presumed in the light most favorable to the plaintiff.81Not so with the OCPA. There is no presumption in favor of the plaintiff and he is required to come forward with evidence to make out a prima facie case by clear and specific evidence.82 The fact that the OCPA motion allows consideration of materials outside the pleadings takes it out of a traditional Rule 12 motion to dismiss or strike and into the realm of summary judgment.83 As such, the OCPA would appear
to conflict with Rule 12.

The OCPA’s dispositive motion also differs from a traditional Rule 56 motion for summary judgment. Rule 56 permits a federal court to enter summary judgment when the moving party shows that there are no material factual disputes and the law favors the movant.84 At the summary judgment stage, the nonmoving party is afforded reasonable inferences supported by the facts in the light most favorable to it.85 When adjudicating a motion for summary judgment, the district court is not allowed to weigh the evidence or determine disputed factual questions.86 The OCPA appears, however, to conflict with this design: as noted, there are no favorable presumptions afforded to plaintiff and he is required to make out a prima facie case by clear and specific evidence.87

Furthermore, the OCPA makes significant reallocations in decision-making authority that strongly suggest that it is a procedural statute for Erie purposes. First, the trial judge, instead of the jury, is required during the pretrial stages to consider conflicting factual evidence, weigh that evidence to make sure it meets the clear and specific threshold and render a decision.88 Second, if a trial court fails to rule on the special dispositive motion within 90 days, the motion is deemed automatically denied as a matter of law, and the appellate court usurps the trial court’s role and becomes a court of first view, not review.89 As has been stated by the U.S. Supreme Court, “[re-]allocat[ions] of decisionmaking authority… are prototypical procedural rules.”90

Moreover, if the OCPA’s special dispositive motion is applied in federal court as written, it would probably run afoul of the Seventh Amendment.91 Reduced to its core, “the Seventh Amendment… assigns the decisions of disputed questions of fact to the jury.”92 The OCPA’s requirement that the trial court determine disputed factual presentations on a dispositive motion,93 would seem to run afoul of the Seventh Amendment.94 As a leading federal treatise has observed, “a federal court will not apply a state’s law or procedure that conflicts with an overriding federal interest, such as the right to trial by jury guaranteed by the Seventh Amendment.”95 That may put a final nail in the OCPA federal coffin.

The Oklahoma Court of Civil Appeals, noting those same constitutional concerns, has read down the OCPA’s disputed factual questions provision – to make it akin to a traditional motion for summary judgment.96 If the Oklahoma Supreme Court formally endorses this position, the OCPA would be among a class of pretrial rules designed to test the viability of a case – that are “ostensibly addressed to procedure.”97 Under those circumstances, there would be a conflict between state and federal procedural law and, under Erie, federal law should prevail.98

Blanket Discovery Ban Provisions

Generally, when a plaintiff pleads a plausible case for relief, the federal rules ordinarily afford that party a right to conduct discovery.99 In the 10th Circuit, a district court should generally not grant summary judgment until the nonmoving party has had an opportunity to conduct reasonable discovery.100 In sharp contrast to that rule, the OCPA precludes discovery outright (unless the judge, exercising discretion, permits limited discovery).101 Even the 9th Circuit – which has upheld the application of anti-SLAPP laws in federal courts – has found blanket discovery bans inapplicable.102 Further, allowing one party (the plaintiff) to undergo a bench trial of potentially disputed fact under the OCPA, where the other party (defendant) conceivably may have most of the evidence would conflict with important federal constitutional interests – removing the specter of trial by ambush and violations of due process.103 That conclusion is perhaps inescapable for the OCPA’s blanket discovery ban.

The Expedited Interlocutory Appeal When the OCPA Motion Is Denied

Federal appellate courts lack jurisdiction to review denials of motions to dismiss or summary judgment.104 As noted, the collateral order doctrine is a recognized exception.105 Qualified immunity orders are a well-known class of such appealable interlocutory orders.106 Some commentators have analogized anti-SLAPP statutes to traditional qualified immunity determinations made by courts in civil rights cases against government officials individually.107

The OCPA does not operate like qualified immunity. Unlike the OCPA’s fact-sensitive inquiry,108 qualified immunity involves only abstract questions of law.109 In fact, if there are material factual questions at the summary judgment stage, the appellate court lacks jurisdiction over the appeal, unless “the defendant does not dispute the plaintiff’s allegations [,] [and] the defendant must… be willing to concede the most favorable view of the facts to plaintiff for purposes of the appeal.”110 The appeals proceed on plaintiff’s version of facts. 111 The OCPA, however, empowers the court to consider competing facts and a plaintiff is afforded no presumptions: clear and specific evidence must be produced.112 Thus, it could be said that an order denying an OCPA dispositive motion fails one of the most elementary requirements of appealable interlocutory orders. The permissible class of appealable interlocutory orders address questions that are collateral to the merits; however, the OCPA, like the New Mexico anti-SLAPP statute in Los Lobos, requires that the merits be addressed in a single interlocutory appeal.113 Thus, like the statute in Los Lobos, the OCPA would probably not apply in federal courts.114

The Attorney Fees When an OCPA Dispositive Motion Is Granted

With a key aspect of the OCPA – the dispositive motion – arguably inapplicable in federal court,115 can the attorney fees provision independently apply? Not likely. The D.C. Circuit answered no to this very question.116 Likewise, the 10th Circuit came to the same conclusion in Los Lobos, finding that the anti-SLAPP fees provision was a procedural sanction aimed at those who file “unmeritorious lawsuits” to chill First Amendment rights.117 The same reasoning would probably apply to the OCPA.

CONCLUSION
The question of the applicability of anti-SLAPP statutes in federal court is very complex. The fact that every anti-SLAPP statute is different compounds the complexity. No one rule fits all. Based on existing precedent, it is possible the OCPA may not apply in federal court.

ABOUT THE AUTHOR
Mbilike M. Mwafulirwa is an attorney at Brewster & DeAngelis PLLC. Mr. Mwafulirwa’s practice focuses on general litigation, civil rights and appellate law. He is a 2012 graduate of the TU College of Law.

1. The acronym “SLAPP” stands for “Strategic Lawsuits Against Participation.” See Mbilike M. Mwafulirwa, “Suing on Shifting Sands: The Oklahoma Constitution, Retroactive Legislation and the Scramble for Clarity”, 88 OBJ. 935 (May 20, 2017) (citations omitted).
2. See Intercon Solutions, Inc. v. Basel Action Network, 791 F.3d 729, 731 (7th Cir. 2015).
3. 2017 OK 7, 390 P.3d 707.
4. 2017 OK 8, 389 P.3d 1117.
5. Anagnost, 2017 OK 7, ¶¶16, 19, 389 P.3d at 712; Steidley, 2017 OK 8, ¶¶7-8, 389 P.3d at 1119.
6. See M. Mwafulirwa, “Suing on Shifting Sands,” at 936.
7. See Anagnost, 2017 OK 7, ¶¶8-9, 390 P.3d at 709-710.
8. Id. But not all anti-SLAPP statutes are the same. See, e.g., Metabollic Research, Inc. v. Ferrell, 693 F.3d 795, 799 (9th Cir. 2012) (making that point known).
9. See, e.g., Anderson v. Wilken, 2016 OK CIV APP 35, ¶11, 377 P.3d 149, 152.
10. Erie Railroad Co. v. Tompkins, 304 U.S. 64, 78-79 (1938).
11. 12 O.S. §1443.1.
12. See Laura Long, “SLAPPing Around the First Amendment: An Analysis of Oklahoma’s Anti-SLAPP Statute and Its Implications on the Right to Petition,” 60 Okla. L. Rev. 421, 432 (2007).
13. Id. at 432 n. 91.
14. Id.
15. 12 O.S. §1432.
16. Id. §§1432, 1434.
17. Id. §1434(C). The OCPA does not define “clear and specific evidence.”
18. See 12 O.S. §1435(A).
19. See M. Mwafulirwa, “Suing on Shifting Sands,” at 936.
20. 12 O.S. §1438(A).
21. Id. §1437.
22. 304 U.S. 64 (1938).
23. Byrd v. Blue Ridge Rural Elect. Coop., 356 U.S. 525, 535 (1958); Rules of Decision Act, 28 U.S.C. §1652 (state law should be applied in federal court where applicable).
24. Racher v. Westlake Nursing Home, L.P., 871 F.3d 1152, 1162-63 (10th Cir. 2017).
25. Shady Grove Orthopedic Association P.A. v. Allstate Insurance Co.559 U.S. 393 (2010).
26. Id. at 398 (Maj. Op.).
27. Id.
28. Id. at 419-423 (Stevens, J., concurring in part and concurring in judgment).
29. Id.
30. Id. at 422-423; 28 U.S.C. §2072(b).
31. 19 Wright & Miller, Federal Practice and Procedure §4509 (3d. ed.) (April 2017 Update).
32. Marks v. United States, 430 U.S. 188, 193 (1977).
33. James River Ins. Co. v. Rapid Funding, LLC, 658 F.3d 1207, 1217 (10th Cir. 2011).
34. Shady Grove, 559 U.S. at 398 (Maj. Op.); accord Racher, 871 F.3d at 1163.
35. Hanna, 380 U.S. at 468.
36. Bryan A. Garner, … Neil M. Gorsuch, Harris L. Hartz,… Brett M. Kavanaugh, et al.The Law of Judicial Precedent 581 (2016) (citing Gasperini, 518 U.S. at 426; Byrd, 356 U.S. at 537-540).
37. See Henry v. Lake Charles Am., Press, LLC, 566 F.3d 164, 181-182 (5th Cir. 2009) contrast with Culbertson v. Lykos, 790 F.3d 608, 631 (5th Cir. 2015).
38. Godin v. Schencks, 629 F.3d 79, 88-92 (1st Cir. 2010).
39. Lib. Syn. Inc. v. Microflo Ltd., 718 F.3d 138, 152-154 (2d Cir. 2013) (applying California law).
40. Intercon Sol., 791 F.3d at 731-732.
41. Royalty Network, Inc. v. Harris, 756 F.3d 1351, 1357-1360 (11th Cir. 2014).
42. Abbas v. Foreign Policy Group, LLC, 783 F.3d 1328, 1333-37 (D.C. Cir. 2015) (anti-SLAPP statute inapplicable); compare U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., Inc., 190 F.3d 963, 972 (9th Cir. 1999) (anti-SLAPP statute applies in federal court).
43. D.C. Code §16-5502, et seq.
44. Abbas783 F.3d at 1333.
45. D.C. Code §§16-5502(a)-(b).
46. Id. §16-5502(c).
47. Id. §16-5504(a).
48. Abbas, 783 F.3d at 1334-1335.
49. Id.
50. Id. at 972.
51. Cal. Civ. P. Code §425.16(b).
52. Id. §425. 16(c).
53. Newsham190 F.3d at 971-973.
54. Id. at 972-973.
55. Id.
56. 885 F.3d 659 (10th Cir. 2018).
57. N.M. Stat. Ann. §38-2-9-2.
58. Id. §§38-2-9-2 (A-C).
59. Los Lobos, 885 F.3d at 662.
60. Id. at 663-664.
61. See 28 U.S.C. §1292(b); Fed. R. App. P. 5(a)(1).
62. Los Lobos, 885 F.3d at 664-666. Judge Baldock dissented on jurisdiction. Id. at 673-676.
63. Id. at 665.
64. Id. at 668-672.
65. Id. at 668-669.
66. Id. at 669-671.
67. Id. (citing Cordova v. Cline, 396 P.3d 159, 162-167 (N.M. 2017)).
68. Id. at 673.
69. Anagnost, 2017 OK 7, ¶¶16,19, 389 P.3d at 712; Steidley, 2017 OK 8, ¶¶7-8, 389 P.3d at 1119.
70. See Boyd Rosene & Assoc., Inc. v. Kan. Mun. Gas. Ag., 174 F.3d 1115, 1118 (10th Cir. 1999).
71. Shady Grove, 559 U.S. at 404-5; Gasperini v. Ctr. for Hum., 518 415, 427-8 (1996).
72. Guaranty Trust Co. v. York, 326 U.S. 99, 109 (1945).
73. Schriro v. Summerlin, 542 U.S. 348, 353 (2004) (citing Gasperini, 518 U.S. at 426).
74. Shady Grove, 559 U.S. at 404.
75. Rules 11 (sanctions), 12 (dispositive motions on the pleadings), 16 (expedited proceedings), and 56 (motions for summary judgment). See Los Lobos, 885 F.3d at 673 n. 8.
76. See Racher, 871 F.3d at 1162-1163.
77. See Shady Grove, 559 U.S. at 419-423 (Stevens, J., concurring in part and concurring in judgment).
78. Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 5 (1987).
79. See Bus. Guides, Inc. v. Chromatic Commc’ns Enters., Inc., 498 U.S. 533, 552 (1991).
80. See Brokers’ Choice of Am., Inc. v. NBC Univ., Inc., 861 F.3d 1081, 1103 (10th Cir. 2017).
81. Sause v. Bauer, 859 F.3d 1270, 1273 (10th Cir. 2017).
82. See 12 O.S. §1434(C).
83. See Fed. R. Civ. P. 12(d); Odom v. Penske Truck Leas. Co., 893 F.3d 739, 743 (10th Cir. 2018).
84. Abbas, 783 F.3d at 1334-1335 (citing Fed. R. Civ. P. 56(a)); Fed. R. Civ. P. 12(d).
85. Hawkins v. Schwan’s Home Serv., Inc., 778 F.3d 877, 882 (10th Cir. 2015).
86. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). District courts can, however, disregard disputed facts that no reasonable jury could believe. Scott v. Harris, 550 U.S. 372, 380 (2007). But that “standard is a very difficult one to satisfy” and applies in “rare, exceptional case[s].” Cordero v. Froats, 613 F. App’x 768, 769 (10th Cir. 2015) (unpublished); The Scott summary judgment standard applies only to videotape or similar objective evidence. Rhoads v. Miller, 352 F. App’x 289, 291-292 (10th Cir. 2009) (unpublished).
87. See 12 O.S. §1434(C).
88. Id. §1437(A).
89. See Anderson, 2016 OK CIV APP 35, ¶¶3, 9-10, 377 P.3d at 150-152 (appellate court is court of review, not first view).
90. Schriro, 542 U.S. at 353 (emphasis added) (citing Gasperini, 518 U.S. at 426).
91. See Anderson, 477 U.S. at 249.
92. Gasperini, 518 U.S. at 432 (citations omitted).
93. See 12 O.S. §1435(A).
94. Gasperini, 518 U.S. at 432 (citations omitted); U.S. Const. amend. VII.
95. Bryan A. Garner, et al., The Law of Judicial Precedent at 581 (citations omitted).
96. See Krimbill v. Talarico, 2018 OK CIV APP 37, ¶¶29-32, 417 P.3d 1240, 1248-1249.
97. See Shady Grove, 559 U.S. at 404 (Maj. Op.).
98. Id.
99. Anderson, 477 U.S. at 250 n. 5; Bryant v. O’Connor, 848 F.2d 1064, 1068 (10th Cir. 1988).
100. Anderson477 U.S. at 250 n. 5; see also Fed. R. Civ. P. 56 (d).
101. 12 O.S. §§1432(C), 1433 (C).
102. Metabolife Int’l, 264 F.3d at 845.
103. See, e.g., Jimenez v. Tuna Vessel Granada, 652 F.2d 415, 420 (5th Cir.1981) (trial by ambush contrary to due process).
104. Roosevelt-Hennix v. Prickett, 717 F.3d 751, 753 (10th Cir. 2013) (summary judgment); Yousef v. Reno, 254 F.3d 1214, 1217 (10th Cir. 2001) (order denying motion to dismiss).
105. Cohen, 337 U.S. at 546; 28 U.S.C. §1291.
106. Mitchell v. Forsyth, 472 U.S. 511, 526 (1985).
107. See Colin Quinlan, “Erie and the First Amendment: State Anti-SLAPP laws in Federal Court After Shady Grove,” 114 Colum.L.Rev.367, 367, n.54 (2014).
108. See text accompanying notes 82-87.
109. Henderson v. Glanz813 F.3d 938, 947 (10th Cir. 2015).
110. Cox v. Glanz, 800 F.3d 1231, 1242 (10th Cir. 2015) (emphasis added).
111. Id. at 1243.
112. See 12 O.S. §1434(C).
113. Id. §1437.
114. See Los Lobos885 F.3d at 671-672.
115. See text accompanying notes 81-98.
116. See Abbas, 783 at 1337 n. 5.
117. See Los Lobos885 F.3d at 671.

Originally published in the Oklahoma Bar Journal -- OBJ 89 pg. 24 (September 2018)