Choose Energy, Inc. v. American Petroleum Institute

Filing 63

ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE by Judge Paul S. Grewal granting 20 ; granting 32 (psglc2S, COURT STAFF) (Filed on 4/8/2015)

1
2
3
4
5
6
7
UNITED STATES DISTRICT COURT

8

NORTHERN DISTRICT OF CALIFORNIA

9

SAN JOSE DIVISION

United States District Court
For the Northern District of California

10
11

CHOOSE ENERGY, INC.,
Plaintiff,

12
13
14
15
16
17

v.
AMERICAN PETROLEUM INSTITUTE,
Defendant.

)
)
)
)
)
)
)
)
)
)

Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO
DISMISS AND GRANTING MOTION
TO STRIKE
(Re: Docket Nos. 20, 32)

Last October, Plaintiff Choose Energy, Inc. filed this trademark infringement action against
Defendant American Petroleum Institute over API’s use of “choose energy” in its pre-election

18
promotional campaign. In the days leading up to the November election, Choose Energy sought a
19
20

temporary restraining order to require API to take down its website at chooseenergy.org. This

21

court denied such relief, finding insufficient likelihood of success on Choose Energy’s claims,

22

particularly in light of Choose Energy’s inability to establish that it competes with API. With the

23

election in the rear view mirror—and the website at issue no longer in operation—API now moves

24

to dismiss Choose Energy’s federal and state law claims and moves to strike Choose Energy’s state

25

law claims under California’s anti-SLAPP statute. Both motions are GRANTED.

26
27
28
1
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

I.

1

The Trademark Act of 1946 (“Lanham Act”) prohibits uses of trademarks, trade names, and

2
3

trade dress that are likely to cause confusion about the source of a product or service. 1 “The

4

Supreme Court has made it clear that trademark infringement law prevents only unauthorized uses

5
6

of a trademark in connection with a commercial transaction in which the trademark is being used to
confuse potential consumers. 2 Section 1114(a) is explicit in prohibiting only unauthorized use of a

7
8
9

mark “in commerce . . . in connection with the sale, offering for sale, distribution, or advertising of
any goods or services [if] . . . such use is likely to cause confusion.”
For over ten years, Choose Energy and its online marketplace have allowed individuals and

United States District Court
For the Northern District of California

10
11

businesses in deregulated states like California to compare offerings from a diverse group of

12

energy suppliers. 3 These suppliers do not compete on price alone. 4 They also compete on source

13
14

of supply, allowing options including natural gas plans with carbon offsets and electricity from
renewables such as wind and solar to tout their green credentials even if they charge more per

15
16
17

kWh. 5 Choose Energy uses its domain name and trademarks to emphasize the fact that its services,
as opposed to its offerings, are not energy biased. 6

18
19
20

1

21

2

22
23
24

See 15 U.S.C §§ 1114, 1125(a).

Bosley Med. Instit., Inc. v. Kremer, Inc., 403 F.3d 672, 676-77 (9th Cir. 2005) (citing
Prestonettes, Inc. v. Coty, 264 U.S. 359, 368 (1924) (“A trade-mark only gives the right to prohibit
the use of it so far as to protect the owner’s good will against the sale of another’s product as his.”
(emphasis added)); Mishawaka Rubber & Woolen Mfg. Co. v. S.S. Kresge Co., 316 U.S. 203, 205
(1942) (explaining that the main purpose of the Lanham Act is to prevent the use of identical or
similar marks in a way that confuses the public about the actual source of goods and services).

3

See Docket No. 1 at ¶ 12.

4

See id. at ¶ 13.

5

See id.

6

See id.

25
26
27
28

2
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

API touts itself as the leading trade association for the petroleum and natural gas industry in

1
2

the United States. 7 API was established to afford a means of cooperation between the industry and

3

the government in matters of national concern, foster foreign and domestic trade in American

4

petroleum products and promote the interests of the petroleum industry. 8 API has long engaged in

5
6

political messaging activities to advocate the collective views of its members and the petroleum
industry as a whole. 9

7
Last year, API launched a “Choose Energy” project as part of a campaign aimed at

8
9

educating voters and encouraging them to engage in conversation about energy issues in the 2014

United States District Court
For the Northern District of California

10

election and to elect officials who support energy initiatives. 10 API says that its sole purpose in

11

this campaign, including its website at chooseenergy.org, was to “encourage voters to make energy

12

a ballot box decision and to educate themselves in assessing candidates’ energy policies” leading

13

up to the November 4, 2014 election. 11

14
After learning about API’s campaign, Choose Energy wrote a letter to API demanding that
15
16

its use of “Choose Energy” in its campaign stop. After a period of consideration and negotiation,

17

API ultimately declined. API’s response was curt, declaring that the First Amendment right to free

18

speech justified its use without condition.

19
20
21

Choose Energy responded by filing suit in this court. Choose Energy’s complaint alleges
that “API has misappropriated Choose Energy’s trademarks for a promotional campaign that is
energy biased—extolling the purported benefits of the oil and natural gas industries and presenting

22
a single choice to consumers: continued dependence upon non-renewable fossil fuels regardless of
23
7

See Docket No. 20 at 1.

8

See id.

9

See id.

24
25
26

10

See Docket No. 1 at ¶ 21.

11

Docket No. 20 at 3.

27
28

3
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

their adverse impact upon the environment.” 12 The complaint further alleges that “API is

2

‘fracking’ Choose Energy’s brand and is likely to cause confusion, mistake, and to deceive

3

consumers as to the affiliation, connection, or association of API with Choose Energy. API’s

4

unauthorized use of Choose Energy’s trademarks is a violation of Choose Energy’s valuable

5

intellectual property rights and is causing significant injury to Choose Energy’s reputation and

6

customer goodwill.” 13

7
Choose Energy sought a temporary restraining order to shut down chooseenergy.org mere

8
9

days before last year’s election, which this court denied, finding that the Lanham Act did not apply

United States District Court
For the Northern District of California

10

because Choose Energy and API do not compete and that Choose Energy could not show a

11

likelihood of prevailing on the merits. 14 Consistent with API’s commitment under penalty of

12

perjury that its campaign would end come election day, API’s website no longer contains any

13

content. 15 API now moves to dismiss Choose Energy’s federal and state law claims under Fed. R.

14
Civ. P. 12(b)(6) and further moves to strike Choose Energy’s state law claims under Cal. Code of
15
16

Civ. Proc. § 425.16 (the California “anti-SLAPP” statute).
II.

17

This court has jurisdiction under 28 U.S.C. §§ 1331 and 1338. The parties further

18
19

consented to magistrate judge jurisdiction pursuant to 28 U.S.C. § 636(c) and Fed. R. Civ. P.

20

72(a). 16

21
22

Under Fed. R. Civ. P. 12(b)(6), “dismissal can be based on the lack of a cognizable legal
theory or the absence of sufficient facts alleged under a cognizable legal theory.” 17 If a plaintiff

23
12

Docket No. 1 at 2 (emphasis in original).

13

Id.

14

See Docket No. 24.

15

See http://www.chooseenergy.org.

16

See Docket Nos. 7, 13.

24
25
26
27
28

4
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

fails to proffer “enough facts to state a claim to relief that is plausible on its face,” the complaint

2

may be dismissed for failure to state a claim upon which relief may be granted. 18 A claim is

3

facially plausible “when the pleaded factual content allows the court to draw the reasonable

4

inference that the defendant is liable for the misconduct alleged.” 19 Against these standards, none

5

of Choose Energy’s claims pass muster.

6

III.

7
First, Choose Energy has not alleged facts sufficient to state a claim under the Lanham Act.

8
9

In order for the alleged conduct to fall within the Act’s purview, Choose Energy must allege that

United States District Court
For the Northern District of California

10

API used its mark in connection with goods or services. 20 It is undisputed that no goods are at

11

issue. So to fall within the ambit of the statute, the infringing mark must be alleged to be for a

12

classifiable service as contemplated by the statute. Through its website chooseenergy.org, API

13
14

provides “political messaging strategy” that educates voters and encourages them to engage in the
political discourse about energy and to elect officials who support specific energy initiatives. 21 But

15
16
17

Choose Energy has not plausibly alleged that these or any other API activities could be construed
as classifiable services. 22 Other than making the broad-sweeping allegation that “API is making

18
19
17

Balistreri v. Pacifica Police Dep’t, 901 F.2d 696, 699 (9th Cir. 1990).

18

Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007).

19

Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009).

20
21
22
20

23
24

See 15 U.S.C. § 1114(1)(a) (the mark must be used “in commerce . . . in connection with the
sale, offering for sale, distribution, or advertising of any goods or services on or in connection with
which such use is likely to cause confusion, or to cause mistake, or to deceive.”).
21

25
26

See Docket No. 20 at 3 (“It is clear that API’s use of the terms ‘Choose Energy’ and ‘I choose
energy’ are part of a purely political message intended to encourage voters to make energy a ballot
box decision and to educate themselves in assessing candidates’ energy policies.”).
22

27
28

See Docket No. 1 at ¶¶ 21-29 (generally alleging that API’s use of its mark causes customer
confusion but neglecting to point to any specific acts or services that might constitute a violation
under the Lanham Act).

5
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

commercial use of the Choose Energy Marks,” 23 the complaint does not allege that API is selling,

2

offering to sell, distributing or advertising any services at all. 24 And although Choose Energy

3

attempts to erect new arguments in its opposition—relying on API’s television commercials as an

4

advertising hook for services—no such allegation is in the complaint. 25

5
6

To the extent that Choose Energy relies on United We Stand to argue that political activities
can be construed as services to trigger liability under the Lanham Act, 26 the argument is misplaced.

7
8
9

United States District Court
For the Northern District of California

10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Choose Energy would still have to show that API competes with Choose Energy in the provision of
that service. 27 And that Choose Energy simply does not do. As this court previously found, there
is no world in which Choose Energy and API could compete. 28 And there is no colorable claim of
23

See id. at ¶ 21.

24

See 15 U.S.C. § 1114(1)(a).

25

In any event, Choose Energy’s reliance on API’s status as a trade organization and the fact that
API promotes the sale of petroleum does not hold water. While API may be financed by or
represent—in some capacity—corporations that sell petroleum, Choose Energy can point to no
individual statements in API’s political campaign materials that advertise the sale of petroleum to
consumers.
26

United We Stand Am., Inc. v. United We Stand, Am. N.Y., Inc., 128 F.3d 86, 89-90 (2d Cir.
1997):
Since [UWSANY’s] incorporation, it has engaged in political organizing;
established and equipped an office; solicited politicians to run on the UWSANY
slate; issued press releases intended to support particular candidates and causes;
endorsed candidates; and distributed partisan political literature. These are the
services characteristically rendered by a political party to and for its members,
adherents, and candidates. Although not undertaken for profit, they unquestionably
render a service. We have no doubt that they satisfy § 1114(1)(a)’s requirement
that the mark be used in connection with goods or services.
27

See Bosley Med. Inst., 403 F.3d at 679 (“The Second Circuit held in United We Stand . . . that the
‘use in connection with the sale of goods and services’ requirement of the Lanham Act does not
require any actual sale of goods and services. Thus, the appropriate inquiry is whether [Defendant]
offers competing services to the public.” (emphasis in original)); see also Wash. State Republican
Party v. Wash. State Grange, 676 F.3d 784, 795 (9th Cir. 2012) (“At minimum, however, the
plaintiff must show that the defendant offers competing services to the public.” (emphasis in
original) (internal quotation marks omitted)); see also Stanislaus Custodial Deputy Sheriffs’ Assoc.
v. Deputy Sheriff’s Assoc. of Stanislaus Cnty., Case No. 09-cv-01988, 2010 WL 843131, at *6
(E.D. Cal. Mar. 20, 2010) (“Thus, United W[e] Stand America, at best for plaintiff, stands for the
proposition that if an actual sale of goods is not involved, the infringer must be engaged in some
form of . . . competition.” (emphasis in original)).
28

See Docket No. 24.

6
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

customer confusion because it is impossible for a customer to purchase a good or service from API

2

thinking that it was purchasing that good or service from Choose Energy. Especially when API

3

does not sell any goods or services at all.

4
5
6

While Choose Energy’s complaint is devoid of any allegation that it is in competition with
API, Choose Energy’s final attempt to identify such competition in its brief is unavailing. In
particular, Choose Energy argues that API and Choose Energy compete as ideological rivals to

7
8
9

educate Americans on key energy issues. But this is contrary to Choose Energy’s claims in its own
complaint that it “provides a commercial service that is energy unbiased” that allows consumers to

United States District Court
For the Northern District of California

10

make choices about their energy use. 29 While the complaint alleges that many of Choose Energy’s

11

customers choose clean energy sources, the unbiased nature of Choose Energy’s services

12

presupposes that consumers also can choose energy plans that rely on petroleum. Without

13
14

plausible allegations that API provided a competing service, the Lanham Act claim cannot stand.
API’s motion to dismiss must be GRANTED.

15
Second, Choose Energy has failed to state a claim on its state law causes of action. In the

16
17

Ninth Circuit, trademark claims and unfair competition claims under California state law are

18

“substantially congruent” with federal trademark and unfair competition claims. 30 Under the same

19

reasoning outlined above, the court DISMISSES Choose Energy’s state law claims.

20
21

Third, Choose Energy’s state law claims cannot overcome California’s anti-SLAPP law. In
order to prevail on an anti-SLAPP motion, a defendant “must show that the lawsuit arises from

22
exercising his right of free speech under the United States Constitution in connection with a public
23
24
25
29

26

See Docket No. 1 at ¶¶ 12-14.

30

27
28

See Grupo Gigante S.A. de C.V. v. Dallo & Co., 391 F.3d 1088, 1100 (9th Cir. 2004) (quoting
Playboy Enters., Inc. v. Netscape Commc’ns Corp., 354 F.3d 1020 n.10 (9th Cir. 2004)); Yelp Inc.
v. Catron, Case No. 13-cv-02859, 2014 WL 4966706, at *10 (N.D. Cal. Oct. 1, 2014).
7
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1
2

issue.” 31 The burden then shifts to the plaintiff to “demonstrate a probability of prevailing on the
claim or the claim will be stricken.” 32
As to API’s initial burden, the anti-SLAPP statute protects a defendant’s free speech,

3
4

including written or oral speech made in a public forum about an issue of public interest. 33 The

5

California Supreme Court has found that the statute protects both private and corporate speech, 34

6
7
8

that websites constitute “public forums” for the purpose of anti-SLAPP 35 and that an issue of
public interest “is any issue in which the public is interested.” 36
Here, Choose Energy sued API over language—“choose energy”—that reasonably

9

United States District Court
For the Northern District of California

10

constitutes political speech about a public issue—energy policy. The complaint references

11

allegedly offending activities such as operating the mid-term election campaign website with the

12

domain name www.chooseenergy.org and using statements such as “I choose energy,” “Choose job

13

growth” and “Choose energy security” on API’s website as part of its political platform. 37 But

14
these activities are all central to API’s political activity and constitute protected speech as
15
16

31

C.C.P. § 425.16(b)(1); Tamkin v. CBS Broad., Inc., 193 Cal. App. 4th 133, 142 (2011).

32

Id.

33

The anti-SLAPP statute enumerates several kinds of protected speech:
1. any written or oral statement made before a legislative, executive, or judicial proceeding
authorized by law;
2. any written or oral statement made in connection with an issue under consideration or
review by a legislative, executive, or judicial body or any official proceeding authorized by
law;
3. any written or oral statement or writing made in a place open to the public or a public
forum in connection with an issue of public interest;
4. any other conduct in furtherance of the exercise of the constitutional right of free speech
in connection with a public issue or an issue of public interest. CCP § 42516(e)(1)-(4).

24

34

See Kronemyer v. Internet Movie Data Base, Inc., 150 Cal. App. 4th 941, 949 (2007).

25

35

17
18
19
20
21
22
23

26

See, e.g., Wong v. Tai Jing, 189 Cal. App. 4th 1354, 1366 (2010); Wilbanks v. Wolk, 121 Cal.
App. 4th 883, 895 (2004).

36

Nygard Inc. v. Uusi-Kerttula, 159 Cal. App. 4th 1027, 1043 (2008).

37

See Docket No. 1 at ¶¶ 21-22.

27
28

8
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

contemplated by the anti-SLAPP statute: the information is conveyed in a public forum—the

2

internet—and addresses energy policy—an issue that is currently the subject of pending legislative

3

efforts and one of public concern.

4
5
6
7
8
9

Choose Energy counters by arguing that API’s use of “choose energy” was a sourceidentifier and thus not entitled to First Amendment protection. 38 But this argument is misguided.
While there is case law that protects a trademark where the accused use was a source identifier, in
none of those cases was the alleged source identifier also the political speech at issue. 39 Moreover,
the cited cases dealt with trademark dilution claims rather than trademark infringement. 40 Here,

United States District Court
For the Northern District of California

10

the speech at issue clearly conveys API’s political message. And even if a consumer were to

11

mistakenly visit API’s website at chooseenergy.org when she intended to visit chooseenergy.com,

12

she would not be able to purchase any services, eliminating the possibility that the source of

13

services might be confused.

14
Both parties rely on the key Ninth Circuit case that is on point here—Bosley Medical
15
16

Institute, Inc. v. Kremer. 41 In Bosley, the court pointed out that in the context of an anti-SLAPP

17

motion, “[a]n infringement lawsuit by a trademark owner over a defendant’s unauthorized use of

18

the mark as his domain name does not necessarily impair the defendant’s free speech rights.” 42

19

While Choose Energy emphasizes the Ninth Circuit’s recognition that “[a] significant purpose of a

20
38

21

See Am. Family Life Ins. Co. v. Hagan, 266 F. Supp. 2d 682, 700 (N.D. Ohio 2002).

39

22
23

See, e.g., id.; Planned Parenthood Fed’n of Am., Inc. v. Bucci, Case No. 97-cv-00629, 1997 WL
133313 (S.D.N.Y. Mar. 24, 1997); United We Stand America, 128 F.3d 86 (2d Cir. 1997);
Anheiser-Busch, Inc. v. Balducci Publ’ns, 28 F.3d 769 (8th Cir. 1994); Mutual of Omaha Ins. Co.
v. Novak, 836 F.2d 397 (8th Cir. 1987).

24

40

See id.

25

41

403 F.3d 672 (9th Cir. 2005).

26

42

27
28

Id. at 628 (emphasis omitted); see also Name.Space, Inc. v. Network Solutions, Inc., 202 F.3d
573, 585 (2d Cir. 2000) (“[d]omain names . . . per se are neither automatically entitled to nor
excluded from the protections of the First Amendment, and the appropriate inquiry is one that fully
addresses particular circumstances presented with respect to each domain name.”).
9
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

domain name is to identify the entity that owns the web site,” 43 there can be no claim here that API

2

sought to identify Choose Energy—the company—as opposed to “Choose Energy”—API’s

3

campaign slogan. Coupled with the fact that API’s website was non-commercial in nature, as

4

discussed above, API’s conduct falls within the protection of the anti-SLAPP statute.

5
6

As to the burden shifted to Choose Energy, “[t]he standard for an anti-SLAPP motion—
probability of prevailing on the merits—presents a higher burden than the plausibility standard

7
8
9

applied for a motion to dismiss. If Plaintiffs cannot plead a plausible cause of action under the
[Fed. R. Civ. P.] 12(b)(6) standard, then Plaintiffs as a matter of law cannot meet the probability of

United States District Court
For the Northern District of California

10

success on the merits standard [under C.C.P. § 425.16].” 44 As the court previously found in

11

denying Choose Energy’s motion for a temporary restraining order, and as the court noted above in

12

granting API’s motion to dismiss, Choose Energy cannot make a showing of probability of success

13

on the merits to survive an anti-SLAPP motion to strike. The motion to strike is GRANTED.

14
As for whether to grant Choose Energy leave to amend, because the court is not yet
15
16

persuaded that amendment of the federal claims would be futile, 45 Choose Energy is GRANTED

17

leave to amend those claims. But as to the state law claims, the court is concerned about a

18

potential conflict of state and federal law. 46 Under Fed. R. Civ. P. 15(a), federal courts adopt a

19
43

20

Panavision Int’l, L.P. v. Toeppen, 141 F.3d 1316, 1327 (9th Cir. 1998).

44

21
22
23
24
25

Xu v. Yamanaka, Case No. 13-cv-03240, 2014 WL 342271, at *4 (N.D. Cal. Jan. 30, 2014); see
also Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist., 106 Cal. App. 4th 1219, 1236
(2003) (Plaintiff must be able to show that its claims have merits based on “competent and
admissible evidence.”); Bernardo v. Planned Parenthood Federation of Am., 115 Cal. App. 4th
322, 359 (2004) (If a plaintiff fails to state a legally sufficient claim, the court must dismiss the
action under the anti-SLAPP statute.).
45

See Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003) (quoting
Foman v. Davis, 371 U.S. 178, 182 (1962)).
46

26
27
28

See Verizon Delaware, Inc. v. Covad Comm’ns Co., 377 F.3d 1081, 1091 (9th Cir. 2004)
(cautioning that when anti-SLAPP motions are brought in federal court to strike state law claims,
“procedural state laws [cannot be] used in federal court if to do so would result in a direct collision
with a Federal Rule of Civil Procedure” (quoting Metabolife Int’l v. Wornick, 264 F.3d 832, 845-46
(9th Cir. 2001))).
10
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE

1

liberal view towards granting amendment—particularly when dismissing a plaintiff’s initial

2

complaint. 47 And while the Ninth Circuit permits anti-SLAPP motions to strike to be brought in

3

federal court as to state law claims, 48 the Ninth Circuit has steadily chipped away at the anti-

4

SLAPP statute’s striking power in light of its frequent collision with the Federal Rules, 49 ultimately

5
6

finding that “the purpose of the anti-SLAPP statute, the early dismissal of meritless claims, would
still be served if plaintiffs eliminated the offending claims from their original complaint. If the

7
8
9

offending claims remain in the first amended complaint, the anti-SLAPP remedies remain available
to defendants.” 50 Some courts in this district have fallen in line with Verizon Delaware, 51 whereas

United States District Court
For the Northern District of California

10

others have found that “[a]llowing a SLAPP plaintiff leave to amend the complaint once the court

11

finds the prima facie showing has been met would completely undermine the statute by providing

12
13
14
15
16
17
18
19
20
21
22

47

Fed. R. Civ. P. 15(a); see Eminence Capital, LLC, 316 F.3d at 1051-52 (9th Cir. 2003)
(“Generally, Rule 15 advises the court that ‘leave shall be freely given when justice so requires.’
This policy is ‘to be applied with extreme liberality.’” (quoting Fed. R. Civ. P. 15(a); Owens v.
Kaiser Found. Health Plan, Inc., 244 F.3d 708, 712 (9th Cir. 2001))).
48

See United States ex. Rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th
Cir. 1999).
49

See, e.g., Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845 (9th Cir. 2001) (holding that the
“discovery-limiting aspects” of the anti-SLAPP statute do not apply in federal court); see also
Makaeff v. Trump Univ., LLC, 715 F.3d 254, 275 (9th Cir. 2013) (Kozinski, J., concurring) (“After
Metabolife, the federal court special motion is a far different (and tamer) animal than its state-court
cousin. Metabolife diminished some of the tension between the state and federal schemes, but at
the expense of depriving the state scheme of its key feature: giving defendants a quick and painless
exit from the litigation.”).

23

50

24

51

25
26
27
28

Verizon Delaware, Inc., 377 F.3d at 1091.

See, e.g., Choyce v. SF Bay Area Indep. Media Ctr., Case No. 13-cv-01842, 2013 WL 6234628,
at *11 (N.D. Cal. Dec. 2, 2013) (finding that Verizon Delaware requires that “when dismissing a
claim pursuant to the anti-SLAPP statute, a plaintiff should be granted leave to amend and re-assert
the stricken claims, although with the proviso that the newly amended complaint would then also
be subject to yet another anti-SLAPP motion”); Art of Living Found. v. Does, Case No. 10-cv05022, 2011 WL 2441898, at *9 (N.D. Cal. June 15, 2011) (following Verizon Delaware and
finding that “because it is not clear that leave to amend would be futile, and this is Plaintiff’s initial
complaint, striking Plaintiff’s initial Complaint would ‘directly collide’ with Rule 15’s liberal
amendment policy”).

11
Case No. 5:14-cv-04557-PSG
ORDER GRANTING MOTION TO DISMISS AND GRANTING MOTION TO STRIKE