Brown v. Wimberly et al

Filing 33

ORDER AND REASONS denying 16 Motion for Discovery. Signed by Judge Martin L.C. Feldman on 10/19/2011. (tsf, ) Modified on 10/20/2011 (tsf, ).

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
WILLIAM E. BROWN

CIVIL ACTION

Versus

NO. 11-1169

JESSE L. WIMBERLY, III, ET AL.

SECTION “F”

ORDER AND REASONS
Before the Court is the plaintiff’s motion to conduct
limited discovery in order to respond to defendant’s special
motion to strike.

For the reasons that follow, plaintiff’s

motion is DENIED.
Background
Plaintiff, William Brown, is an attorney.

Brown represented

Dr. Ralph Nix in a medical malpractice suit in Louisiana state
court.

Dr. Nix lost the case, and decided to sue Brown for

professional negligence and legal malpractice.

Dr. Nix hired

Jesse Wimberly as his attorney, and Wimberly filed two lawsuits
against Brown, one in St. Tammany Parish state court, and the
other in Orleans Parish state court.
After Wimberly filed the two lawsuits against Brown, Brown
filed suit in this Court against Wimberly for defamation.

Brown

filed this lawsuit on the basis of diversity of citizenship
(Brown is a resident of Tennessee; Wimberly is a Louisiana
resident).

Brown contends that the factual allegations Wimberly

made in the two state court petitions regarding Brown’s
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professional negligence and legal malpractice are defamatory
statements.

In response, Wimberly moved to dismiss Brown’s

complaint, as well as a special motion to strike (anti-SLAPP
motion).
The special motion to strike is currently noticed for
hearing on November 9, 2011, and is based on Louisiana Code of
Civil Procedure Article 971, more commonly known as Louisiana’s
anti-SLAPP statute.

Article 971 allows a defendant to file a

special motion to strike where the defendant has been sued for
exercising his constitutional rights of petition and free speech
in connection with a public issue.

Plaintiff’s motion asks the

Court to allow Brown to conduct limited discovery so that he can
respond to the special motion to strike.

Specifically, plaintiff

wants to gather evidence to show that the defendant’s statements
regarding Brown’s professional conduct were false, and that
defendant was at fault for publishing them.
I. Limited Discovery under Louisiana’s Anti-SLAPP statute
Article 971 states:
All discovery proceedings in the action shall
be stayed upon the filing of a notice of
motion made pursuant to this Article. The
stay of discovery shall remain in effect
until notice of entry of the order ruling on
the motion. Notwithstanding the provisions of
this Paragraph, the court, on noticed motion
and for good cause shown, may order that
specified discovery be conducted.
La. C.C.P. Art. 971D.

Louisiana state courts have provided
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little guidance as to what constitutes “good cause” under Article
971D.

Courts in other states with similar anti-SLAPP statutes

have, however, interpreted the “good cause” language to refer to
information that the plaintiff needs to support his claim, but
which is held by the defendant.

See 1-800-CONTACTS v. Steinberg,

132 Cal. Rptr. 2d 789 (2003) (interpreting the discovery
provision of California’s anti-SLAPP statute, which requires a
“good cause” showing for limited discovery).
The Court denies plaintiff’s request for limited discovery
in this case because plaintiff has made no showing that the
information he seeks cannot be obtained elsewhere.

Plaintiff’s

suit is based on statements that Mr. Wimberly made in court
filings, which are a part of the public record.

Further, the

basis for defendant’s allegedly defamatory statements is Mr.
Brown’s conduct in the medical malpractice suit, which Mr. Brown
lost.
Accordingly, IT IS ORDERED: The plaintiff’s motion is
DENIED.1

1

Neither side has adequately addressed the issue of whether
state anti-SLAPP statutes are substantive or procedural, or
whether any federal court has held that they even apply in
federal litigation. Although the Fifth Circuit seems to approve,
other courts do not. Cf. Henry v. Lake Charles Am. Press LLC, 566
F.3d 164 (5th Cir. 2009) with Stuborn Ltd. P'ship v. Bernstein,
245 F. Supp. 2d 312 (D. Mass. 2003).
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New Orleans, Louisiana, October 19, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

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