DWAYNE G. ALEXANDER
THE TIMES-PICAYUNE L.L.C; DAVID HAMMER
FROM CIVIL DISTRICT COURT, ORLEANS PARISH NO. 2015-11890,
DIVISION "M" Honorable Paulette R. Irons, Judge.
G. Harvey, Sr. LAW OFFICE OF ROBERT G. HARVEY, SR., COUNSEL
Loretta G. Mince Molly L. Wells FISHMAN HAYGOOD, L.L.P.,
COUNSEL FOR DEFENDANT/APPELLEE.
composed of Chief Judge James F. McKay, III, Judge Roland L.
Belsome, Judge Terrel J. Broussard, Pro Tempore.
L. BELSOME JUDGE.
Alexander appeals the trial court's granting of
Defendants' Special Motion to Strike and resulting
dismissal of the petition with prejudice. For the reasons
that follow, the judgment is affirmed.
of the Case
Alexander is a former Private Investigator ("PI").
The Times-Picayune published two news articles written by
reporter David Hammer. The first news article at issue was
published on July 2, 2009, and reported that the Louisiana
State Board of Private Investigators (the "Board")
issued a cease and desist order to Mr. Alexander for his
failure to maintain a PI license. The October 24, 2011 news
article reported that Mr. Alexander had been arrested in St.
Charles Parish for providing PI services without possessing a
Alexander filed suit against Defendants on December 16, 2015,
alleging that he was defamed by these news articles.
Defendants responded by filing a Special Motion to Strike the
petition under La. C.C.P. art. 971. Defendants' motion
argued that Mr. Alexander could not establish a probability
of success because his claims had prescribed. The trial court
granted the motion on the grounds of prescription and
dismissed the claims.
Alexander filed a motion for new trial. Defendants filed a
motion to fix attorneys' fees and costs. Mr.
Alexander's motion for new trial was denied and
Defendants' motion was granted. It is this judgment from
which Plaintiff appeals.
Alexander contends that the trial court erred in granting
Defendants' Special Motion to Strike. He claims that La.
C.C.P. art. 971 did not apply to his claims because he is not
a public official or figure and the claims do not relate to a
public issue. He also argues that even if Article 971 did
apply, the court improperly granted the motion on the basis
of prescription. He further asserts that the trial court was
required to give him the opportunity to amend his petition
before dismissing his claims. Finally, he claims that
attorney's fees and costs were improperly awarded to
courts review a trial court's ruling on a special motion
to strike using the de novo standard of review
because it involves an issue of law; the issue on review is
thus whether the trial court was legally
of the Special Motion to Strike to Mr. Alexander's
appeal, Mr. Alexander argues that the La. C.C.P. art. 971
Special Motion to Strike does not apply to his claims because
he is not a public official or public figure and that his
claims do not relate to a public issue.
C.C.P. art. 971(A)(1) states 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." The purpose of the Article 971 Special Motion to
Strike is "to screen out meritless claims pursued to
chill one's constitutional rights under the First
Amendment of the United States Constitution to freedom of
speech and press." The party that files the motion
"has the initial burden of proving that „the cause
of action arises from an act in the exercise of his right of
free speech regarding a public
C.C.P. art. 971(F)(1)(c) provides that an act in furtherance
of a person's right to free speech under the First
Amendment includes "[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." The
content, form, and context of the statement(s) at issue must
be examined to establish if speech is a matter of public
asserted in the motion that Mr. Alexander's claims arose
from acts in furtherance of the right of free speech and in
relation to a public issue. The first article that Mr.
Alexander claims he was defamed by was published on July 2,
2009, and reported that the Board had issued a cease and
desist order to Mr. Alexander because he failed to maintain a
PI license. Specifically the 2009 article focused on
Alexander's earnings of more than $522, 000 from the City
of New Orleans during 2007 and 2008 for services he conducted
after his license lapsed in 2006. The second article at issue
was published on October 21, 2011, and ...