bobaroni, despite the fact that it has nothing to do with HITT or Dorian Reed, you keep bringing up our own suit with Business Wire. Thanks for the extra publicity! We're quite pleased that you obviously want to use the HITT forum for the Webnode legal case, so that we have another forum for exposure. Thank you for continually bringing it up, again and again—and here's another tidbit for ya: #reply-10213046
June 21, 1999
Roger R. Myers
Steinhart & Falconer LLP
333 Market Street, 32nd Floor
San Francisco, CA 94105-2150
Re: Business Wire v. Mitchell et al.
Case No. C 99-1987 EDL (N.D. Cal.)
Methven & Associates File No. 2122.1
Dear Mr. Myers:
     I am responding to your letter dated June 18. In that letter you ask for bifurcation of the defendants' Anti-SLAPP motion to strike. I find nothing in the cases you cite that provides for bifurcation of the motion.
     In fact, bifurcation would appear to run directly against the clear intent of the Anti-Slapp law. The statute itself says that "[t]he motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing." (Second sentence of subpart (g) of C.C.P. 425.16.) Here we had to set the hearing for July 27 because the Court's rules require at least 35 days' notice and the Court only hears motions on Tuesdays. Within those constraints, we set the matter for hearing at the earliest opportunity. Moreover, as the Ninth Circuit has noted, "Speed is of the essence in dealing with SLAPPs, as it is whenever First Amendment rights are in jeopardy." (Franchise Realty Interstate Corp. v. San Francisco Local Joint Executive Board of Culinary Workers, 542 F.2d 1076, 1086 (9th Cir.1976) (when complaint seeks to suppress or punish First Amendment rights it should be "properly nipped in the bud by the trial judge").)
     I also disagree that judicial economy and the interests of the parties would be best served by bifurcating the motion. From the defendants' point of view, all that will do is increase their legal fees; but then perhaps that is Business Wire's intent. More important, it will cause the Court to engage in additional work if the motion is bifurcated. The proof that the defendants' communications were in a public forum on a matter of public interest is inextricably intertwined with whether the plaintiff can show that it will prevail on its causes of action, since the latter also must necessarily consider the First Amendment aspects of the defendants' communications. In short, if the motion is bifurcated, the Court will have to examine many of the identical issues in two separate sets of pleadings and hearings.
     Finally, you mentioned in our last telephone conversation, although not in your letter, that you believe that Business Wire's federal causes of action are exempt from the Anti-SLAPP motion. I strongly disagree.
     In Bradbury v. Superior Court, 49 Cal.App.4th 1108, 1117-1118 (1996) the Court held that the Anti-SLAPP statute applied to a federal civil rights cause of action based on U.S.C. 1983.
     Moreover, the Ninth Circuit, in the recent Newsham case, noted:
     Plainly, if the anti-SLAPP provisions are held not to apply in federal court, a litigant interested in bringing meritless SLAPP claims would have a significant incentive to shop for a federal forum." (U.S., ex rel., Newsham et al. v. Lockheed Missiles & Space Company, Inc., 171 F.3d 1208, 1218; 1999 U.S. App. LEXIS 5135; 99 Cal. Daily Op. Service 2132; 99 Daily Journal DAR 2753 (9th Cir. March 24, 1999).
     U.S.C. Section 1988 clearly allows a state statutory procedural safeguard to apply to federal claims where there is no similar federal safeguard in place. That section provides, in pertinent part, as follows:
     (a) Applicability of statutory and common law
     The jurisdiction in civil…matters conferred on the district courts…for the protection of all persons in the United States in their civil rights, and for their vindication, shall be exercised and enforced in conformity with the laws of the United States, so far as such laws are suitable to carry the same into effect; but in all cases where they are . . . deficient in the provisions necessary to furnish suitable remedies and punish offenses against law, the common law, as modified and changed by the constitution and statutes of the State wherein the court having jurisdiction of such civil or criminal cause is held, so far as the same is not inconsistent with the Constitution and laws of the United States, shall be extended to and govern the said courts in the trial and disposition of the cause...
     If the Anti-SLAPP procedure did not apply to federal causes of action, then forum-shopping would result as well. For these reasons, the defendants do not agree with your proposal. If you intend to pursue this topic through an ex parte motion, please let us know the time and give us as much forewarning as possible, since we intend to vigorously oppose it, and to seek attorney's fees and sanctions, if warranted.
Very truly yours,
Bruce E. Methven
BEM/cb
cc: Bill Ulrich
Jeff Mitchell
Janice Shell
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