DOES THE TCPA DISMISSAL PROCEDURE APPLY IN FEDERAL COURT? - FIFTH CIRCUIT SAYS NO!
|Klocke v. Watson, No. 17-11320 (5th Cir. Aug. 23, 2019)|
EXCERPT FROM THE OPINION
Because the TCPA’s burden-shifting framework imposes additional requirements beyond those found in Rules 12 and 56 and answers the same question as those rules, the state law cannot apply in federal court. Under Rule 12(b)(6), a federal court may dismiss a case for failure to state a claim upon which relief may be granted if, accepting all well-pleaded factual allegations as true, the complaint does not state a plausible claim for relief. Ashcroft v. Iqbal, 556 U.S. 662, 678–79, 129 S. Ct. 1937, 1949–50 (2009). This is not an insuperable pleading barrier, and it requires no evidentiary support: “a well-pleaded complaint may proceed even if it strikes a savvy judge that actual proof of those facts is improbable, and that a recovery is very remote and unlikely.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556, 127 S. Ct. 1955, 1965 (2007) (quotation marks omitted). Rule 56 states that a court “shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). The party resisting summary judgment succeeds simply by showing that a material fact issue exists and requires trial by a factfinder. In ruling on a summary judgment motion, “the judge’s function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2511 (1986). Summary judgment motions are normally resolved after the discovery process has concluded or sufficiently progressed.
In contrast to the federal procedural requirements, the TCPA imposes additional requirements that demand judicial weighing of evidence. Thus, confronted with a motion to dismiss under the TCPA, the court must determine “by a preponderance of the evidence” whether the action relates to a party’s exercise of First Amendment rights. Tex. Civ. Prac. & Rem. Code § 27.005(b)(1)-(3). The court must also determine whether there is “clear and specific evidence” that a plaintiff can meet each element of his claim. Id. at § 27.005(c). “Clear and specific evidence” must be, inter alia, “unambiguous, sure, or free from doubt.” In re Lipsky, 460 S.W.3d 579, 590 (Tex. 2015). The standard, which lies somewhere between the state’s pleading baseline and the standard necessary to prevail at trial, id. at 591, in any event exceeds the plaintiff’s Rule 56 burden to defeat summary judgment. Finally, the court must determine “by a preponderance of the evidence” if the defendantcan establish a valid defense to the plaintiff’s claim. Tex. Civ. Prac. & Rem. Code § 27.005(d). All these determinations are to be made while discovery normally available in federal court is circumscribed by the TCPA, except for “good cause.” Id. at §§ 27.003(c), 27.006(b). Because the TCPA imposes evidentiary weighing requirements not found in the Federal Rules, and operates largely without pre-decisional discovery, it conflicts with those rules.
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The Federal Rules impose comprehensive, not minimum, pleading requirements. Rules 8, 12, and 56 “provide a comprehensive framework governing pretrial dismissal and judgment.” Id. at 1351. These rules “contemplate that a claim will be assessed on the pleadings alone or under the summary judgment standard; there is no room for any other device for determining whether a valid claim supported by sufficient evidence [will] avoid pretrial dismissal.” Id.