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Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM
IN THE CIRCUIT COURT OF ST. LOUIS CITY, MISSOURI
TWENTY-SECOND JUDICIAL CIRCUIT
RUBY FREEMAN and WANDREA )
MOSS, )
)
Plaintiffs, )
)
v. ) Case No. 2122-CC09815-01
)
JAMES HOFT, JOSEPH HOFT, and TGP )
COMMUNICATIONS LLC d/b/a THE )
GATEWAY PUNDIT, )
)
Defendants. )
PLAINTIFFS’ REPLY AND NOTICE OF SUPPLEMENTAL AUTHORITY IN
SUPPORT OF MOTION TO STRIKE DEFENDANTS’ ANTI-SLAPP MOTION
Plaintiffs Ruby Freeman and Wandrea Moss (“Plaintiffs”), through their attorneys, file this
Reply and Notice of Supplemental Authority in support of their Motion to Strike Defendants’ Anti-
SLAPP Motion, and in support state the following:
On April 26, 2023, Defendants filed an Anti-SLAPP Motion to Strike Plaintiffs’ Second
Amended Petition under Georgia Code § 9-11-11.1 (the “Anti-SLAPP Motion”), a procedural law
that Plaintiffs contend has no application in this court. The following week, on May 5, 2023,
Plaintiffs filed a Motion to Strike Defendants’ Anti-SLAPP Motion. This was Noticed for a
hearing on May 15, 2023, but then rescheduled at Defendants’ request for hearing on July 13,
2023. On May 9, 2023, Defendants filed a Motion for a Protective Order and to Stay Discovery
(the “Motion to Stay Discovery”) under the same Georgia procedural statute, GA Code
§ 9-11-11.1.
Plaintiffs Opposition to Defendants’ Motion to Stay Discovery (“Stay Opposition”), filed
on June 16, 2023, addressed Defendants’ assertion that there is a “general consensus among courts
that have applied Anti-SLAPP statutes in federal court” that “Anti-SLAPP statutes provide an
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Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM
immunity from suit.” Dfs’ Memorandum in Support of Motion for a Protective Order, p. 4. As the
Stay Opposition demonstrated, this is misleading or incomplete at best1: five out of the seven
federal appellate courts that have examined this issue have held that the applicable anti-SLAPP
statutes are procedural and do not apply in federal court. See Stay Opposition, p. 9, citing Abbas
v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (“The first issue before the
Court is whether a federal court exercising diversity jurisdiction may apply the D.C. Anti-SLAPP
Act’s special motion to dismiss provision. The answer is no.”); La Liberte v. Reid, 966 F.3d 79,
87 (2d Cir. 2020) (finding that California’s anti-SLAPP statute conflicts with Federal Rules of
Civil Procedure 12 and 5); Los Lobos Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659,
672 (10th Cir. 2018) (“Defendants’ faulty reasoning finds its genesis (not surprisingly) in the Ninth
Circuit’s decision in Batzel.”); Klocke v. Watson, 936 F.3d 240, 246 (5th Cir. 2019), as revised
(Aug. 29, 2019) (“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.”); Carbone v. Cable News Network, Inc., 910 F.3d
1345, 1353 (11th Cir. 2018).
On July 11, 2023, at 10:27 PM, Defendants filed their Opposition to Plaintiffs’ Motion to
Strike the Anti-SLAPP Motion, which was heard by the court on July 13, 2023. In their Opposition
(at p. 6), Defendants repeated their same claim, asserting that “Anti-SLAPP statutes provide an
immunity from suit is the general consensus among jurisdictions that have applied Anti-SLAPP
statutes in federal court.” Defendants’ Opposition did not address Plaintiffs’ contrary authority,
and even miscited Los Lobos as supporting their false claim. That case actually rejects Defendants’
1
Defendants’ statement is arguably circular logic as well, in that for a federal court to “apply” an
Anti-SLAPP statute, it must first determine that the statute is substantive or otherwise not in
conflict with the Federal Rules of Civil Procedure.
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Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM
position and squarely holds that a “plain reading of the New Mexico anti-SLAPP statute reveals
. . . [it] simply does not define the scope of any state substantive right or remedy. As we have
learned, the statute is procedural in all its aspects.” Los Lobos Renewable Power, LLC v.
Americulture, Inc, 885 F.3d 659, 673 (10th Cir. 2018). On this basis, the Tenth Circuit affirmed
the decision of the district court denying application of the New Mexico anti-SLAPP statute in the
federal action.
While Plaintiffs addressed Defendants’ incorrect claim at oral argument, they file this reply
to provide the citations, noted above, to the authorities presented in Plaintiffs’ Stay Opposition that
were referenced during the July 13 hearing. These authorities flatly refute Defendants’ assertion.
The majority of United States Courts of Appeals that have examined this issue have held that anti-
SLAPP statutes do not apply in federal court. In fact, a growing number of Ninth Circuit judges
have expressed the opinion that Defendants principal authority, Batzel v. Smith, 333 F.3d 1018,
1025-26 (9th Cir. 2003), was wrongly decided. See La Liberte v. Reid, 966 F.3d 79, 88 (noting that
Judges Watford, Kozinski, Paez, and Bea agree in Makaeff v. Trump Univ., LLC, 736 F.3d 1180,
1188 (9th Cir. 2013) that Batzel was wrongly decided and inconsistent with controlling Supreme
Court precedent). See also Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir.
2016) (“I write once again to emphasize that [Batzel] is wrong: These interloping state procedures
have no place in federal court.”) (J. Kozinski, dissent).
Again, the most pertinent case, specifically analyzing GA Code § 9-11-11.1 at great length,
has found the law to be procedural and thus to have no proper application outside of Georgia State
courts. Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1348, 1350 (11th Cir. 2018).
Carbone unequivocally concluded that the Georgia anti-SLAPP statute “does not purport to alter
a defendant’s rights.” Id. “The only change effectuated by the Georgia statute is to make it easier
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Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM
for a defendant to avoid liability for conduct associated with the exercise of those rights by
providing a special procedural device.” Id.
GA Code § 9-11-11.1 is a procedural statute with no application to this Missouri state
court case. Defendants’ Anti-SLAPP Motion should be struck from the record.
Dated: July 20, 2023 Respectfully submitted,
By: /s/ Matt D. Ampleman
James F. Bennett, No. 46826
John C. Danforth, No. 18438
Matt D. Ampleman, No. 69938
Dowd Bennett LLP
7676 Forsyth Blvd, Suite 1900
St. Louis, MO 63105
Phone: (314) 889-7373
Fax: (314) 863-2111
jbennett@dowdbennett.com
jdanforth@dowdbennett.com
mampleman@dowdbennett.com
Von A. DuBose*
75 14th Street, NE
Suite 2110
Atlanta, Georgia 30309
Telephone: (404) 720-8111
dubose@dubosemiller.com
Brittany Williams*
UNITED TO PROTECT DEMOCRACY
15 Main St., Suite 312
Watertown, MA 02472
(202) 579-4582
brittany.williams@protectdemocracy.org
Shalini Goel Agarwal*
UNITED TO PROTECT DEMOCRACY
2020 Pennsylvania Ave. NW, Suite 163
Washington, DC 20006
(202) 579-4582
shalini.agarwal@protectdemocracy.org
John Langford*
4
Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM
Rachel Goodman*
UNITED TO PROTECT DEMOCRACY
82 Nassau Street, #601
New York, NY 10038
(202) 579-4582
john.langford@protectdemocracy.org
rachel.goodman@protectdemocracy.org
David A. Schulz*
Kelsey R. Eberly*
MEDIA FREEDOM & INFORMATION
ACCESS CLINIC
FLOYD ABRAMS INSTITUTE FOR
FREEDOM OF EXPRESSION
YALE LAW SCHOOL
127 Wall Street
P.O. Box 208215
New Haven, CT 06520
(203) 436-5827
david.schulz@yale.edu
kelsey.eberly@yale.edu
*Admitted Pro hac vice
Attorneys for Plaintiffs
CERTIFICATE OF SERVICE
The undersigned hereby certifies that a true and exact copy of the foregoing has been served
upon all parties electronically through the Court’s electronic filing system on this 20th day of July,
2023.
/s/ Matt D. Ampleman
5
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Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM IN THE CIRCUIT COURT OF ST. LOUIS CITY, MISSOURI TWENTY-SECOND JUDICIAL CIRCUIT RUBY FREEMAN and WANDREA ) MOSS, ) ) Plaintiffs, ) ) v. ) Case No. 2122-CC09815-01 ) JAMES HOFT, JOSEPH HOFT, and TGP ) COMMUNICATIONS LLC d/b/a THE ) GATEWAY PUNDIT, ) ) Defendants. ) PLAINTIFFS’ REPLY AND NOTICE OF SUPPLEMENTAL AUTHORITY IN SUPPORT OF MOTION TO STRIKE DEFENDANTS’ ANTI-SLAPP MOTION Plaintiffs Ruby Freeman and Wandrea Moss (“Plaintiffs”), through their attorneys, file this Reply and Notice of Supplemental Authority in support of their Motion to Strike Defendants’ Anti- SLAPP Motion, and in support state the following: On April 26, 2023, Defendants filed an Anti-SLAPP Motion to Strike Plaintiffs’ Second Amended Petition under Georgia Code § 9-11-11.1 (the “Anti-SLAPP Motion”), a procedural law that Plaintiffs contend has no application in this court. The following week, on May 5, 2023, Plaintiffs filed a Motion to Strike Defendants’ Anti-SLAPP Motion. This was Noticed for a hearing on May 15, 2023, but then rescheduled at Defendants’ request for hearing on July 13, 2023. On May 9, 2023, Defendants filed a Motion for a Protective Order and to Stay Discovery (the “Motion to Stay Discovery”) under the same Georgia procedural statute, GA Code § 9-11-11.1. Plaintiffs Opposition to Defendants’ Motion to Stay Discovery (“Stay Opposition”), filed on June 16, 2023, addressed Defendants’ assertion that there is a “general consensus among courts that have applied Anti-SLAPP statutes in federal court” that “Anti-SLAPP statutes provide an 1 Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM immunity from suit.” Dfs’ Memorandum in Support of Motion for a Protective Order, p. 4. As the Stay Opposition demonstrated, this is misleading or incomplete at best1: five out of the seven federal appellate courts that have examined this issue have held that the applicable anti-SLAPP statutes are procedural and do not apply in federal court. See Stay Opposition, p. 9, citing Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1333 (D.C. Cir. 2015) (“The first issue before the Court is whether a federal court exercising diversity jurisdiction may apply the D.C. Anti-SLAPP Act’s special motion to dismiss provision. The answer is no.”); La Liberte v. Reid, 966 F.3d 79, 87 (2d Cir. 2020) (finding that California’s anti-SLAPP statute conflicts with Federal Rules of Civil Procedure 12 and 5); Los Lobos Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659, 672 (10th Cir. 2018) (“Defendants’ faulty reasoning finds its genesis (not surprisingly) in the Ninth Circuit’s decision in Batzel.”); Klocke v. Watson, 936 F.3d 240, 246 (5th Cir. 2019), as revised (Aug. 29, 2019) (“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.”); Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1353 (11th Cir. 2018). On July 11, 2023, at 10:27 PM, Defendants filed their Opposition to Plaintiffs’ Motion to Strike the Anti-SLAPP Motion, which was heard by the court on July 13, 2023. In their Opposition (at p. 6), Defendants repeated their same claim, asserting that “Anti-SLAPP statutes provide an immunity from suit is the general consensus among jurisdictions that have applied Anti-SLAPP statutes in federal court.” Defendants’ Opposition did not address Plaintiffs’ contrary authority, and even miscited Los Lobos as supporting their false claim. That case actually rejects Defendants’ 1 Defendants’ statement is arguably circular logic as well, in that for a federal court to “apply” an Anti-SLAPP statute, it must first determine that the statute is substantive or otherwise not in conflict with the Federal Rules of Civil Procedure. 2 Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM position and squarely holds that a “plain reading of the New Mexico anti-SLAPP statute reveals . . . [it] simply does not define the scope of any state substantive right or remedy. As we have learned, the statute is procedural in all its aspects.” Los Lobos Renewable Power, LLC v. Americulture, Inc, 885 F.3d 659, 673 (10th Cir. 2018). On this basis, the Tenth Circuit affirmed the decision of the district court denying application of the New Mexico anti-SLAPP statute in the federal action. While Plaintiffs addressed Defendants’ incorrect claim at oral argument, they file this reply to provide the citations, noted above, to the authorities presented in Plaintiffs’ Stay Opposition that were referenced during the July 13 hearing. These authorities flatly refute Defendants’ assertion. The majority of United States Courts of Appeals that have examined this issue have held that anti- SLAPP statutes do not apply in federal court. In fact, a growing number of Ninth Circuit judges have expressed the opinion that Defendants principal authority, Batzel v. Smith, 333 F.3d 1018, 1025-26 (9th Cir. 2003), was wrongly decided. See La Liberte v. Reid, 966 F.3d 79, 88 (noting that Judges Watford, Kozinski, Paez, and Bea agree in Makaeff v. Trump Univ., LLC, 736 F.3d 1180, 1188 (9th Cir. 2013) that Batzel was wrongly decided and inconsistent with controlling Supreme Court precedent). See also Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (“I write once again to emphasize that [Batzel] is wrong: These interloping state procedures have no place in federal court.”) (J. Kozinski, dissent). Again, the most pertinent case, specifically analyzing GA Code § 9-11-11.1 at great length, has found the law to be procedural and thus to have no proper application outside of Georgia State courts. Carbone v. Cable News Network, Inc., 910 F.3d 1345, 1348, 1350 (11th Cir. 2018). Carbone unequivocally concluded that the Georgia anti-SLAPP statute “does not purport to alter a defendant’s rights.” Id. “The only change effectuated by the Georgia statute is to make it easier 3 Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM for a defendant to avoid liability for conduct associated with the exercise of those rights by providing a special procedural device.” Id. GA Code § 9-11-11.1 is a procedural statute with no application to this Missouri state court case. Defendants’ Anti-SLAPP Motion should be struck from the record. Dated: July 20, 2023 Respectfully submitted, By: /s/ Matt D. Ampleman James F. Bennett, No. 46826 John C. Danforth, No. 18438 Matt D. Ampleman, No. 69938 Dowd Bennett LLP 7676 Forsyth Blvd, Suite 1900 St. Louis, MO 63105 Phone: (314) 889-7373 Fax: (314) 863-2111 jbennett@dowdbennett.com jdanforth@dowdbennett.com mampleman@dowdbennett.com Von A. DuBose* 75 14th Street, NE Suite 2110 Atlanta, Georgia 30309 Telephone: (404) 720-8111 dubose@dubosemiller.com Brittany Williams* UNITED TO PROTECT DEMOCRACY 15 Main St., Suite 312 Watertown, MA 02472 (202) 579-4582 brittany.williams@protectdemocracy.org Shalini Goel Agarwal* UNITED TO PROTECT DEMOCRACY 2020 Pennsylvania Ave. NW, Suite 163 Washington, DC 20006 (202) 579-4582 shalini.agarwal@protectdemocracy.org John Langford* 4 Electronically Filed - CITY OF ST. LOUIS - July 20, 2023 - 01:56 PM Rachel Goodman* UNITED TO PROTECT DEMOCRACY 82 Nassau Street, #601 New York, NY 10038 (202) 579-4582 john.langford@protectdemocracy.org rachel.goodman@protectdemocracy.org David A. Schulz* Kelsey R. Eberly* MEDIA FREEDOM & INFORMATION ACCESS CLINIC FLOYD ABRAMS INSTITUTE FOR FREEDOM OF EXPRESSION YALE LAW SCHOOL 127 Wall Street P.O. Box 208215 New Haven, CT 06520 (203) 436-5827 david.schulz@yale.edu kelsey.eberly@yale.edu *Admitted Pro hac vice Attorneys for Plaintiffs CERTIFICATE OF SERVICE The undersigned hereby certifies that a true and exact copy of the foregoing has been served upon all parties electronically through the Court’s electronic filing system on this 20th day of July, 2023. /s/ Matt D. Ampleman 5