Brown v. Wimberly et al

Filing 54

ORDER AND REASONS granting 17 Motion to Strike 1 Complaint and 31 Motion to Dismiss Hector R. Lopez. Signed by Judge Martin L.C. Feldman on 11/9/2011. (tsf, ) Modified on 11/9/2011 (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 & REASONS
Before the Court are Jesse Wimberly’s special motion to
strike and Hector Lopez’s motion to dismiss, or, in the
alternative, for summary judgment.

For the reasons that follow,

the motions are GRANTED.
Background
Plaintiff, William Brown, is an attorney.

Brown represented

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

Dr. Nix lost.

On appeal, Dr. Nix hired attorney Hector

Lopez to represent him.

Dr. Nix lost the appeal, 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.

The two malpractice

actions were removed to federal court, and settled.
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, whereas Wimberly is a
1

Louisiana resident).

Brown contends that the factual allegations

Wimberly made in the two state court petitions regarding Brown’s
professional negligence and legal malpractice are defamatory.
Brown later alleged that the pleadings had in fact been drafted
by Hector Lopez, and joined him as a defendant in the defamation
suit.

In response, Wimberly has moved to dismiss Brown’s

complaint, as well as a special motion to strike (anti-SLAPP
motion).

Hector Lopez has moved to dismiss under Federal Rule of

Civil Procedure 12(b)(6), or in the alterative, for summary
judgment.
II.
Wimberly’s special motion to strike 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 to petition or free
speech in connection with a public issue.1
The Court pauses to address the Erie implications of using a
state procedural rule in federal court litigation.

While some

courts have questioned the applicability of such statutes, the
Fifth Circuit has recognized the validity of anti-SLAPP statutes
in federal proceedings.

Henry v. Lake Charles Am. Press, LLC,

1

In this case, Wimberly’s motion also drives the result in
Lopez’s motion. If Wimberly wins, so does Lopez.
2

566 F.3d 164 (5th Cir. 2009); see also Armington v. Fink, No. 096785, 2010 U.S. Dist. LEXIS 24294, at *8 (E.D. La. Feb. 24,
2010).

The Fifth Circuit is joined by the First Circuit, Godin

v. Schencks, 629 F.3d 79 (1st Cir. 2010), as well as the Ninth
Circuit, United States ex rel Newsham v. Lockheed Missiles &
Space Co., 190 F.3d 963 (9th Cir. 1999) in its approval.
The Louisiana anti-SLAPP statute requires the plaintiff to
demonstrate a probability of success on his claim, or else his
claim will be dismissed.
Art. 971(A)(1).

See Louisiana Code of Civil Procedure

Wimberly contends that plaintiff has failed to

show a probability of success on his defamation claim because he
has failed to sufficiently allege that defendant intended to harm
the plaintiff when he filed the malpractice suits against Brown.
Intent to harm is an essential element to establish
defamation under Louisiana law.

Eschete v. Della Hildebrand, 930

So. 2d 196, 199 (La. Ct. App. April 25, 2006)(“Additionally,
there is a heightened pleading requirement when suing an attorney
(and/or clients) for defamation in the context of a judicial
proceeding.

This heightened standard requires the plaintiff to

allege facts in his petition that show malice or an intent to
cause direct harm to the plaintiff”); see also Rogers v. Ash
Grove Cement Co., 799 So. 2d 841, 845 (La. Ct. App. Nov. 2,
2001); Montalvo v. Sondes, 637 S.2d 127 (La. 1994).

Plaintiff

has failed to allege that Wimberly and Lopez intended to cause

3

him direct harm by their statements.

As such, plaintiff cannot

show a probability of succeeding on his defamation claim against
both defendants.
Accordingly, IT IS ORDERED: Wimberly’s motion to strike and
Lopez’s motion to dismiss are GRANTED.

New Orleans, Louisiana, November 9, 2011

______________________________
MARTIN L. C. FELDMAN
UNITED STATES DISTRICT JUDGE

4