Abel v. Handshoe et al

Filing 29

ORDER granting 25 Motion to Stay in the alternative. Plaintiff shall respond to defendant Handshoe's motion to strike no later than Wednesday, 4/10/2013, as stated herein. The Court defers ruling in all other respects at this time. FURTHER ORDER granting 27 Motion for Leave to Reply. Signed by Judge Susie Morgan on 3/29/2013. (tsf)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF LOUISIANA
DANIEL G. ABEL,
Plaintiff

CIVIL ACTION

VERSUS

No.

DOUGLAS K. HANDSHOE, et al.,
Defendants

SECTION “E”

13-88

ORDER
Defendant Douglas K. Handshoe (“Handshoe”) has filed a motion to strike pursuant
to Article 971 of the Louisiana Code of Civil Procedure (“Article 971”), arguing that the
above-captioned defamation lawsuit is a strategic lawsuit against public participation
(“SLAPP suit”). Article 971 is Louisiana’s “anti-SLAPP” or “back SLAPP” provision, a type
of procedure which seeks to “protect speakers” from “meritless lawsuits that have the
purpose or effect of chilling the exercise of First Amendment rights.” Henry v. Lake
Charles Amer. Press, LLC, 566 F.3d 164, 167 (5th Cir. 2009). When a defendant files a
motion to strike “[a]ll discovery proceedings in the action shall be stayed” until the Court
rules on the motion. La. Code Civ. Proc. art. 971(D). Nevertheless, this prohibition against
discovery is not without exceptions, as the Court “on noticed motion and for good cause
shown, may order that specified discovery be conducted.” La. Code Civ. Proc. art. 971(D).
Plaintiff Daniel G. Abel (“Plaintiff”) has moved for leave to conduct discovery or, in the
alternative, to have additional time to respond to Handshoe’s motion to strike.1
Provided Handshoe makes a prima facie showing that Plaintiff has filed a SLAPP
1

R. Doc. 25. Plaintiff has also sought leave to file a reply memorandum, see R. Doc. 27, and such
request is GRANTED.

1

suit, Article 971 shifts the burden to Plaintiff to “demonstrate a probability of success on his
or her own claim.” Henry, 566 F.3d at 181 (internal quotation marks and citation omitted).
“To establish a probability of prevailing on his claim, a plaintiff must state and substantiate
a legally sufficient claim. This is done through a prima facie showing of facts sufficient to
sustain a favorable judgment.” Henry, 566 F.3d at 181 (internal quotation marks and
citation omitted). Thus, if Handshoe succeeds in shifting the burden to Plaintiff, Plaintiff
will be required to show “more than what is necessary to survive a normal motion to
dismiss, as a defamation plaintiff must produce evidence of sufficient quality and quantity
to demonstrate that he will be able to meet his burden of proof at trial.” Henry, 566 F.3d
at 181 (internal quotation marks and citation omitted). Plaintiff argues that discovery is
needed to permit him to make this prima facie showing. Handshoe opposes Plaintiff’s
request to conduct discovery.2
The Court recognizes that it is within the Court’s discretion to permit discovery if
Plaintiff shows “good cause” why discovery is necessary. La. Code Civ. Proc. art. 971(D).
In order to determine whether the Court should permit discovery, Plaintiff must respond
to Handshoe’s motion to strike, setting forth the standard he must meet to establish a
prima facie case and how the discovery he seeks will assist him in meeting that burden.
While Plaintiff contends that he is not a public figure, that issue is ultimately one for the
Court to resolve. Consequently, Plaintiff’s response must address the standard he must
meet to succeed on a defamation claim as a private individual and as a public figure, and
show good cause why discovery should be allowed in these contexts. The Court will then
address whether discovery will be permitted.
2

R. Doc. 26.

2

Accordingly,
IT

IS

ORDERED

that

Plaintiff’s

motion

is

GRANTED

IN

THE

ALTERNATIVE.3 Plaintiff shall respond to Handshoe’s motion to strike, in accordance
with the Court’s instructions set forth above, no later than Wednesday, April 10, 2013.
The Court DEFERS ruling on Plaintiff’s motion in all other respects at this time.
IT IS FURTHER ORDERED that Plaintiff’s motion for leave to file a reply
memorandum is GRANTED.4

New Orleans, Louisiana, this 29th day of March, 2013.

_____________________________
SUSIE MORGAN
UNITED STATES DISTRICT JUDGE

3

R. Doc. 25.

4

R. Doc. 27.

3