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More on Nevada's anti-SLAPP law

By J. DeVoy

Can Nevada’s anti-SLAPP statutes, for their many flaws, thwart a privately brought federal claim?  Why yes, they can.

Anti-SLAPP laws come in two flavors: procedural and substantive.  Substantive anti-SLAPP laws, such as the previously proposed federal anti-SLAPP law, provide qualified immunity for protected statements and create or crystallize the speaker’s rights.  In contrast, procedural anti-SLAPP laws provide a mechanism to dispose of abusive litigation – normally with a Motion to Dismiss.  The extent of these procedural protections vary from state to state; Massachusetts’ procedural anti-SLAPP law, for instance, cannot be applied in Federal Court. Stuborn Ltd. Partnership v. Bernstein, 245 F.Supp.2d 312 (D. Mass. 2003).  Nevada’s anti-SLAPP statute, however, does not preclude its application in Federal court.

Like Massachusetts, Nevada’s anti-SLAPP laws are procedural, and is not restricted to use against state law claims. John v. Douglas County Sch. Dist., 125 Nev. Adv. Op. 55 (Nev. 2009), cert. denied, 130 S. Ct. 3355 (2010).  The facts of that case, which warrant reading because of how strange they are, hinge upon a school district employee being suspended for harassing other employees and video taping special ed students, recording sexually explicit narrations to the videos that were then shown to others.  Subsequent misconduct with confidential student records led the district to terminate John.

After exhausting EEOC remedies, John sued the school district in Nevada’s state courts, alleging violation of federal employment discrimination statutes.  The school district moved to dismiss John’s Complaint under the anti-SLAPP statute.  As John’s action was based on the school district exercising its right to communicate with the EEOC about a matter pending before it that concerned the district, the remedies in Nevada’s SLAPP statute were available. NRS 41.637.

The Nevada Supreme Court upheld the District Court’s dismissal. (N.B. – Nevada has no intermediate appellate courts.)  The state supreme court expressly found that the anti-SLAPP statute can apply to substantive federal claims, as it “does not undermine any important, substantive federal interests.”  Moreover, the court stated that Nevada’s anti-SLAPP statute is “procedural and neutral” in nature.

Nevada’s anti-SLAPP statutes still are limited to an unfortunate degree.  However, the range of claims they can defend against – in the rare event the statutes can be applied – is quite broad.  How this would play out in Federal court remains to be seen, as it creates a tension between Rule 56, state law and the Erie doctrine.

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