Russell et al v. Krowne et al, No. 8:2008cv02468 - Document 92 (D. Md. 2010)
Court Description: MEMORANDUM OPINION (c/m to Defendant Railey 7/12/10 sat). Signed by Chief Judge Deborah K. Chasanow on 7/12/10. (sat, Chambers)
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Russell et al v. Krowne et al Doc. 92 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND : CHRISTOPHER RUSSELL, ET AL. : v. : Civil Action No. DKC 2008-2468 : AARON KROWNE, ET AL. : MEMORANDUM OPINION Presently pending and ready for review in this defamation case are (1) the motion to dismiss pursuant to Maryland Code Annotated, Courts and Judicial Defendants Implode-Explode Proceedings Heavy Industries, § 5-807 Inc. filed and by Krowne Concepts, Inc. (Paper 59), and (2) a motion to join Defendants motion to dismiss filed by Defendant Krista Railey (Paper 71). The issues are fully briefed and the court now rules, no hearing being deemed necessary. reasons, Defendant Local Rule 105.6. Railey s motion will For the following be granted and Defendants motion to dismiss will be denied. I. Background On January 24, 2007, Plaintiff Penobscot Indian Nation ( PIN ), a federally recognized Native American government and municipality of the State of Maine, created The Grant American Program ( GAP ). (Paper 1 ¶ 1). GAP is a national program that gives down payment assistance funds to low to moderate income Dockets.Justia.com families so they can purchase a home. owned by PIN, Plaintiff Global Although GAP is entirely Directs operates and manages the program. Sales, LLC ( GDS ) GDS is a Maryland limited liability company, and its principals, Plaintiffs Christopher Russell and Ryan Hill, are residents of Maryland. Implode-Explode Heavy Industries, Inc. ( IEHI ) Defendant and Krowne Concepts own and operate the Mortgage Lender Implode-O-Meter and the website www.ml-implode.com (collectively the Website ). Between June and August 2008, Lorena Leggett, on behalf of Defendant IEHI, website. solicited (Id. ¶ 30). (Id. ¶ 35). Plaintiff GDS to advertise on the GDS declined to advertise on the Website. Defendant Krista Railey, a California resident, is a forum-moderator on the Website. (Id. ¶¶ 13, 52). On or about September 15, 2008, Railey posted an article on the Website that she had written about Plaintiffs. (Id. ¶¶ 36, 51). While Railey was working on the article, she conducted an interview of Russell. (Id. ¶ 50). On September 19, 2008, Plaintiffs filed a complaint against Defendants for defamation, libel, and unfair business practices. (Paper 1). number of Plaintiffs contend that the article contained a untrue and defamatory statements. (Id. ¶ 37). Plaintiffs allege that the article was published as retaliation because GDS declined to advertise on the Website. 2 (Id. ¶ 59). On November 18, 2008, Defendants filed a motion to dismiss pursuant to Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6), arguing that Defendants Krowne, Owings, and Leggett had insufficient exercise connections personal to jurisdiction Maryland over them for and the that court Plaintiffs failed to state a claim against these three Defendants. 31). over to (Paper The court found that personal jurisdiction was lacking Defendants Krowne, Owings, and Leggett and dismissed Plaintiffs complaint for lack of personal jurisdiction. 49). On February 19, 2010, the court dismissed prejudice Defendant Streamline Marketing, Inc. On November 11, 2009, Defendants (Paper without (Paper 85). Implode-Explode Heavy Industries, Inc. and Krowne Concepts, Inc. filed a motion to dismiss pursuant to Maryland Code Annotated, Courts and Judicial Proceedings § 5-807. (Paper 59). Defendant Railey filed a motion to join Defendants motion to dismiss on November 11, 2009, which will be granted. II. (Paper 71). Special Motion to Dismiss pursuant to Maryland Code Annotated, Courts and Judicial Proceedings § 5-807 Defendants argue that Plaintiffs case is a Strategic Lawsuit Against Public Participation ( SLAPP ) as defined by Md. Code Ann., Cts. & Jud. Proc. § 5-807. Defendants contend, Plaintiffs suit is directed at protected expression materially related to Defendants communication with the public at large 3 regarding an issue of public concern, and is intended to inhibit such expression. (Paper 60, at 1). Defendants assert that Maryland s anti-SLAPP law prohibits lawsuits such as this one and that the case should be dismissed. Plaintiffs respond that their lawsuit is not an anti-SLAPP lawsuit, but was brought in good faith seeking redress for an untrue and defamatory article that was published in retaliation for Plaintiffs refusal to advertise on the Website. (Paper 72, at anti-SLAPP 1). statute Plaintiffs only also applies to assert matters that within Maryland s the authority of a government body, and that Defendants article made defamatory statements that were unrelated to matters within the authority of a government body. (Id.). A threshold matter, which the parties address, is whether Maryland s anti-SLAPP conflicts with therefore does the not statute Federal apply in is Rules this predominantly of Civil diversity procedural, Procedure, action which and is governed by the Federal Rules of Civil Procedure. A. Maryland s Anti-SLAPP Statute Md. Code Ann., Cts. & Jud. Proc. § 5-807(b) provides, in pertinent part: (b) A lawsuit is a SLAPP suit if it is: (1) Brought in bad faith against a party who has communicated with a federal, State, or local government body or the public at large 4 to report on, comment on, rule on, challenge, oppose, or in any other way exercise rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body; (2) Materially related communication; and to the defendant's (3) Intended to inhibit the exercise of rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights. The statute exempts defendants from liability under the circumstances listed in § 5-807(c): (c) A defendant in a SLAPP suit is not civilly liable for communicating with a federal, State, or local government body or the public at large, if the defendant, without constitutional malice, reports on, comments on, rules on, challenges, opposes, or in any other way exercises rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body. The statute allows defendants to move to dismiss the case by a special motion such as the one filed in this case: (d) A defendant in an alleged SLAPP suit may move to: (1) Dismiss the alleged SLAPP suit, in which case the court shall hold a hearing on the motion to dismiss as soon as practicable; or (2) Stay all court proceedings matter about which the 5 until the defendant communicated to the government body or the public at large is resolved. Id. at § 5-807(d). B. Analysis Under the Erie doctrine, Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938), generally law. apply federal federal courts reviewing procedural law state state and law substantive See Hanna v. Plumer, 380 U.S. 460, 465 (1965). claims This rule applies to state law claims in diversity jurisdiction cases. United Mine Workers of America v. Gibbs, 383 U.S. 715, 725 (1966). Maryland s anti-SLAPP statute is limited in its scope and appears not Procedure. to conflict with the Federal Rules of Civil The statute only provides that a defendant in an alleged SLAPP suit may move to dismiss or stay the suit. does not prescribe any particular procedure to be It followed. This alone does not conflict with Fed.R.Civ.P. 12(b)(6). Moreover, Subsection (c), which may be substantive, describes a type of defense, such as privilege or immunity. Such issues can be dealt with under federal procedure, either Rule 12(b)(6) for dismissal or Rule 56 for summary judgment. Here, the parties submit materials beyond the complaint itself, thus making Rule 56 applicable. A review of those materials makes manifest that Defendants have not proven as a matter of 6 law that this is a SLAPP lawsuit or that they are entitled to the spare privilege that the statute may afford. There are genuine issues of material fact as to whether this lawsuit is a SLAPP suit because the parties dispute whether the suit was brought in article bad was regarding government body. material parties article. faith fact as dispute and any whether matter the allegedly within the defamatory authority of a Additionally, there is a genuine issue of to Defendants whether civil Defendants liability maliciously because the published the Therefore, Defendants motion will be denied.1 III. Conclusion For join the foregoing Defendants reasons, motion to Defendant dismiss Railey s will be motion granted to and Defendants motion to dismiss pursuant to Md. Code Ann., Cts. & Jud. Proc. § 5-807 will be denied. 1 A separate Order will The court notes that Defendants waited over a year after this lawsuit was filed to bring this anti-SLAPP dismissal motion. Other courts have indicated that anti-SLAPP motions should be filed promptly and not in the middle of litigation. See, e.g., Chevron Global Technology Services Co. v. Little, No. C-06-3157 MMC., 2007 WL 2021804, *4 (N.D.Cal. July 10, 2007)(stating that there was no reason for the court to conduct an anti-SLAPP analysis at a late stage in the litigation and quoting Kunysz v. Sandler, 146 Cal.App.4th 1540, 1543 (Cal.Ct.App. 2007), which stated, [t]he same issues raised by . . . [defendant s] anti-SLAPP motion could just as easily have been raised by, for example, a motion for summary judgment or a motion for judgment on the pleadings. ). 7 follow. parties The court earlier stayed the scheduling order. will be directed to submit a joint proposal completing discovery. /s/ DEBORAH K. CHASANOW United States District Judge 8 The for
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