Getting SLAPP-ed around in the 2d Circuit

This case started as a dispute among neighbors in Vermont. It winds up in the U.S. Court of Appeals because someone publicly insulted the plaintiffs, who sued for defamation and other torts, and the defendants responded with a motion to strike the claims under Vermont's anti-SLAPP law, which stands for strategic lawsuits against public participation.

The case is Ernst v. Carrigan, decided on February 22. I like gossip and petty grievances as much as the next guy. If you like that as well, you won't find it here. The appeal does not concern which side is a scam artist or a liar. It concerns whether the Second Circuit (Jacobs, Leval and Lynch) has jurisdiction to even hear the appeal.

The district court struck some of the plaintiffs' claims under the anti-SLAPP law, but other claims remained. The defendants appeal, arguing that all the claims against them should be dismissed under the anti-SLAPP law, and plaintiffs appeal as well, arguing that none of their claims should have been dismissed. Under the federal rules, you cannot appeal a district court's order unless the entire case is resolved one way or the other. There are exceptions to this rule, such as when the ruling resolves an important issue completely separate from the merits of the action. But if the order being appealed is too intertwined with the issues that remain in the district court, the order is not immediately appealable.

Claims involving the anti-SLAPP law in Vermont are not immediately appealable, because the claims are too entangled in the remaining claims for defamation. Indeed, the anti-SLAPP claim grows out of the defamation claim. In 2003, the Ninth Circuit reached the opposite holding in this context for claims involving anti-SLAPP motion, but the Second Circuit follows Supreme Court authority that it says points in the opposite direction.What it all means is that this neighborly brawl is sent back to the district court in Vermont for the trial judge to worry about it.