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Collins v. WAFB, LLC

United States District Court, E.D. Louisiana

April 18, 2017

ELEANOR G. COLLINS
v.
WAFB, LLC, ET AL.

         SECTION “B” (3)

          ORDER AND REASONS

         Before the Court is Defendant WAFB, LLC's “Special Motion to Strike.” Rec. Doc. 35. Plaintiff Eleanor G. Collins timely filed an opposition memorandum. Rec. Doc. 38. Defendant requested, and was granted, leave to file a reply memorandum. Rec. Doc. 42. Plaintiff then filed an opposition to the reply. Rec. Doc. 43. For the reasons discussed below, IT IS ORDERED that Defendant's special motion to strike (Rec. Doc. 35) is GRANTED.

         I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY

         As previously discussed, this case arises out of Plaintiff's arrest on January 22, 2016. Rec. Doc. 1 at 2. The arrest was reported by Defendants Times-Picayune, L.L.C., WAFB, LLC, and Bogalusa Newsmedia, LLC. Id. In her complaint, Plaintiff states that these news agencies failed to clarify that allegedly fraudulent checks totaling $27, 000 were not issued from her personal account. Id. at 4. Specifically, Plaintiff states that

It has harmed the reputation of the plaintiff, enabled employment [sic] and destroyed the plaintiff's credibility. The fact that the plaintiff was the owner and these were company checks was never documented it only gave the impression that the plaintiff wrote these checks out of her personal checking account and intentionally deceived Robertson Oil Company.

Id. According to Plaintiff, the charge was ultimately nolle prossed. Id. at 3. Thus, on October 18, 2016, Plaintiff filed suit against Defendants for libel, slander, defamation, assault, and for violations of Section 230 of the Communications Decency Act and the First Amendment. Id. at 1.

         In an earlier motion to dismiss for insufficient service, it was revealed that Plaintiff attempted to serve Defendant WAFB, a limited liability company, by mailing the summons and complaint to WAFB's registered agent. Rec. Doc. 20 at 4. However, this Court recognized that service by mail was insufficient and that Plaintiff's claims were therefore subject to dismissal under Federal Rule of Civil Procedure 12(b)(5). Id. (citing Wesenberg v. New Orleans Airport Motel Assocs. TRS, LLC, No. 14-1632, 2015 WL 5599012, at *2 (E.D. La. Sept. 22, 2015). However, we also recognized that the time for service under Rule 4(m) did not expire until January 16, 2017 and that Plaintiff, by responding to the motion, evidenced an intent to actively pursue her claims. Id. at 5 (citations omitted). Accordingly, on December 16, 2016, the Court denied the motion to dismiss without prejudice, but warned Plaintiff that failure to timely effect service could result in dismissal. Id. at 6 (citations omitted).

         On March 9, 2017, the Court subsequently denied a similar motion to dismiss filed by Defendant Times-Picayune, L.L.C., requiring Plaintiff to obtain a waiver of service or otherwise properly serve Defendant Times-Picayune, L.L.C., and any other Defendant who had not yet been properly served, within twenty-one days of that Order. Rec. Doc. 37.

         II. THE PARTIES' CONTENTIONS

         In the instant motion, Defendant WAFB, LLC argues that “[t]his case arises out of WAFB's exercise of its constitutional right of free speech concerning a public issue - WAFB's publication of an article on its website (the ‘News Report'), about Plaintiff's arrest by the Washington Parish Sheriff's Office for issuing worthless checks.” Rec. Doc. 35 at 1. Consequently, Defendant maintains that Plaintiff's complaint is subject to a special motion to strike under Louisiana Code of Civil Procedure 971 and that “Plaintiff cannot satisfy her burden to establish a probability of success on the fundamental elements of her claims.” Id. Specifically, Plaintiff's claims should be stricken and dismissed because “(1) WAFB cannot be held liable for relying on statements about Plaintiff made by law enforcement; (2) the statements in the News Report are true in that they accurately report statements about Plaintiff made by law enforcement; and (3) any defamatory implications about Plaintiff are not actionable.” Rec. Doc. 35-1 at 1.[1]

         III. LAW AND ANALYSIS

         Under Louisiana Code of Civil Procedure 971,

A cause of action against a person arising from any act of that person in furtherance of the person's right of . . . 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. Ann. art. 971(A)(1).[2] It is Louisiana's “anti-SLAPP” statute; “SLAPP” is an acronym for strategic lawsuit against public participation, “which is a phrase used to describe ‘generally meritless suits brought by large private interests to deter common citizens from exercising their constitutional right to petition or to punish them for doing so.'” Schmidt v. Cal-Dive Int'l, Inc., 183 F.Supp.3d 784, 788 (W.D. La. 2016) (quoting Yount v. Handshoe, 14-919 (La.App. 5 Cir. 5/28/15); 171 So.3d 381, 387, reh'g denied (6/16/15)) (citing Lozovyy v. Kurtz, 813 F.3d 576, 577 (5th Cir. 2015); Henry v. Lake Charles Am. Press, L.L.C., 566 F.3d 164, 168 (5th Cir. 2009)). Essentially, the “nominally-procedural” statute “provides a procedural mechanism for dismissing certain defamation claims early in litigation unless the plaintiff can establish a ‘probability of success.'” Lozovyy, 813 F.3d at 577; Henry, 566 F.3d at 168. It is a “device to be used in the early stages of litigation to screen out meritless claims brought primarily to chill the valid exercise of the constitutional right[] of freedom of speech . . . in matters of public interest.” Schmidt, 183 F.Supp.3d at 789 (citing Williams v. Nexstar Broad., Inc., 11-887 (La.App. 5 Cir. 4/10/12); 96 So.3d 1195, 1201; Henry, 566 F.3d at 169). It is an extraordinary remedy that “dismisses meritless claims quickly, and awards attorney's fees to the prevailing party.” Yount, 171 So.3d 381 at 387.

Article 971 establishes a burden-shifting analysis for weeding out frivolous claims. To succeed on an Article 971 motion, the defendant must first make a prima facie showing that Article 971 covers the activity underlying the suit. That is, the defendant must ‘establish[] that a cause of action against him arises from an act by him in furtherance of the exercise of his right of . . . free speech under the United States or Louisiana Constitution in connection with a public issue.' If the defendant makes this showing, ‘the burden then shifts to the plaintiff to demonstrate a probability of success on his claim.' If the plaintiff fails to demonstrate a probability of success, the trial court dismisses the claim. Otherwise, the trial court denies the motion and the suit proceeds as it normally would.

Henry, 566 F.3d at 170 (quoting Starr v. Boudreaux, 07-0652 (La.App. 1 Cir. 12/21/07); 978 So.2d 384, 388-89). “[T]he ‘‘probability of success' standard does not permit courts to weigh evidence, assess credibility, or resolve disputed issues of material fact.' ‘In other words, a non-movant's burden in opposing an Article 971 motion to strike is the same as that of a non-movant opposing summary judgment under Rule 56.'” Schmidt, 183 F.Supp.3d at 790 (quoting Lozovyy, 813 F.3d at 586;[3] Block v. Tanenhaus, 815 F.3d 218, 221 (5th Cir. 2016) (rejecting the argument that Article 971 does not apply in federal court, because “a non-movant's burden under Article 971 is functionally equivalent to that under [Federal Rule of Civil Procedure] 56” and that, to avoid dismissal, the plaintiff need only establish a genuine dispute of material fact).

         A. IS DEFENDANT'S ACTIVITY PROTECTED UNDER ARTICLE 971?

         Article 971 specifically provides that an “[a]ct in furtherance of a person's right of . . . free speech under the United States or Louisiana Constitution in connection with a public issue” includes, but is not limited to, “[a]ny written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest” or “[a]ny other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” La. Code Civ. Proc. Ann. art. 971(F)(1)(c)-(d) (emphasis added); see also Williams, 96 So.3d at 1202 (finding that articles and broadcasts made by a newspaper, television news show, and reporters regarding the Northeast Louisiana Community Development Corporation (the “CDC”) “clearly related to free speech, that the ...


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