Jiang v. Porter et al

Filing 84

MEMORANDUM AND ORDER : IT IS HEREBY ORDERED that the motion of the SNAP defendants to reconsider, for expedited appeal, or for certification to the Missouri Supreme Court [Doc. # 69 ] is denied.. Signed by District Judge Carol E. Jackson on 1/15/16. (KKS)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
REV. XIU HUI “JOSEPH” JIANG,
Plaintiff,
vs.
TONYA LEVETTE PORTER, et al.,
Defendants.

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Case No. 4:15-CV-1008 (CEJ)

MEMORANDUM AND ORDER
This matter is before the Court on the motion of defendants Survivors
Network of Those Abused by Priests (SNAP), David Clohessy and Barbara Dorris to
reconsider the previous order denying their motion to dismiss, for expedited appeal
under Mo. Rev. Stat. § 537.528, or for certification of the issue to the Missouri
Supreme Court under Mo. Rev. Stat. § 477.004.

Plaintiff has responded in

opposition, and the issues are fully briefed.
A.

Reconsideration

On December 28, 2015, the Court entered an order denying the SNAP
defendants’ motion to dismiss this action as a strategic lawsuit against public
participation (SLAPP) [Doc. #61]. See Mo. Rev. Stat. § 537.528 (Missouri’s antiSLAPP statute). The SNAP defendants move for reconsideration of that order.
Rule 54(b) of the Federal Rules of Civil Procedure governs motions to
reconsider orders that do not constitute final judgments in cases.

Rule 54(b)

provides that “any order . . . that does not end the action as to any of the claims or
parties [] may be revised at any time before the entry of a judgment adjudicating
all the claims and all the parties’ rights and liabilities.” Fed. R. Civ. P. 54(b). Under

Rule 54(b), a court may reconsider an interlocutory order to “correct any clearly or
manifestly erroneous findings of fact or conclusions of law.” Bancorp Servs., L.L.C.
v. Sun Life Assur. Co. of Canada, No. 4:00-CV-1073 (CEJ), 2011 WL 1599550, at
*1 (E.D. Mo. Apr. 27, 2011) (quoting Jones v. Casey’s Gen. Stores, 551 F. Supp. 2d
848, 854 (S.D. Iowa 2008)). “A motion to reconsider under Rule 54(b), however,
may not serve as a vehicle to identify facts or raise legal arguments which could
have been, but were not, raised or adduced during the pendency of the motion of
which reconsideration was sought.” Id. (quoting Jones, 551 F. Supp. 2d at 854–
55); see also Evans v. Contract Callers, Inc., No. 4:10-CV-2358 (FRB), 2012 WL
234653, at *2 (E.D. Mo. Jan. 25, 2012) (“Although the Court ‘has the power to
revisit prior decisions of its own . . . in any circumstance, [it] should be loathe to do
so in the absence of extraordinary circumstances such as where the initial decision
was clearly erroneous and would work a manifest injustice.’” (quoting Christianson
v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988))).
The SNAP defendants have not identified any clearly or manifestly erroneous
findings of facts or conclusions of law in th3 order denying their anti-SLAPP motion.
The defendants’ argument that the Court erred by not applying the Missouri
Supreme Court’s interpretation of the term “hearings” in a zoning statute to the
term “public hearing” in the state’s anti-SLAPP statute is flawed. In Campbell v.
County Comm’n of Franklin Cnty., 453 S.W.3d 762 (Mo. banc 2015), the Missouri
Supreme Court held that “the requirement of a public hearing pursuant to section
64.875 requires, at a minimum, that the public be given the opportunity to present
its views about the subject matter of the proposed zoning amendment.”
S.W.3d at 769.

453

In support of this holding, the court noted that “[a] ‘hearing’

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contemplates more than mere attendance by the public; it connotes a meeting
which the public has the right to attend and the right to be heard.” Id. (quoting
Appeal of Kurren, 208 A.2d 853, 856 (Pa. 1965)). This interpretation supports the
Court’s determination that the term “public hearing” in the anti-SLAPP statute
refers to hearings held by legislative, administrative, and executive agencies where
the public may have a right to participate as members of the general public. See
Mem. & Order, at *4 [Doc. #61]. In judicial proceedings, in contrast, members of
the public do not have the right to be heard in their capacity as general members of
the public.

Accordingly, defendants have not provided a sufficient basis for the

Court to reconsider its December 28 order.1
B.

Expedited Appeal

The SNAP defendants also move for the Court to “recognize” their right to
“expedited appellate review mandated in the statute.” Motion, at *1–2 [Doc. #69].
Defendants indicate that they “hereby invoke [their statutory right to an expedited
appeal] via this motion, subject to a Notice of Appeal being filed. Motion, at *3.
This Court has no authority to grant defendants’ request.

The Federal Rules of

Appellate Procedure set forth the procedure for seeking appellate review of a
district court’s decisions. See Fed. R. App. P. 3–12 (setting forth procedural rules
for appeals from a judgment or order of a district court); see also 28 U.S.C. §§
1291–92 (providing jurisdiction of appeals to the courts of appeals).

Also, the

Constitution does not support the defendants’ assertion that a state statute bestows
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Furthermore, even if the Court were to agree with defendants’ argument that Missouri’s anti-SLAPP
statute encompasses judicial proceedings, the Court has previously explained that it is unclear
whether or to what extent Missouri’s anti-SLAPP statute even applies in federal court. See Mem. &
Order, at *3 [Doc. #82] (noting a split in federal courts’ application of state anti-SLAPP statutes to
state law claims in federal court post-Shady Grove). It is clear, however, that Missouri’s anti-SLAPP
statute does not entitle defendants to dismissal of the federal claims in the complaint. Id. at *3–4.
As such, in no event would the relief defendants seek in the instant motion lead to the dismissal of
this action.

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appellate jurisdiction on a federal court of appeals that Congress has not otherwise
provided. See U.S. Const. art. III § 1.
C.

Certification

Alternatively, the SNAP defendants seek certification for review by the
Missouri Supreme Court pursuant to section 477.004 of the Missouri Revised
Statutes. Section 477.004.1 provides that the “Missouri supreme court may answer
questions of Missouri law certified to it by[, inter alia,] a United States District Court
. . . if there are involved in any proceeding before the certifying court questions of
Missouri law which may be relevant to the cause pending and as to which it appears
to the certifying court there is no controlling precedent in this state.” The SNAP
defendants seek certification on the issue of whether Missouri’s anti-SLAPP statute
applies to speech or conduct made in connection with judicial proceedings.
The Missouri Supreme Court has expressly held that, notwithstanding Mo.
Rev. Stat. § 477.004, the Missouri Constitution does not grant it original jurisdiction
to render opinions on questions of law certified by federal courts.

Grantham v.

Missouri Dep’t of Corr., No. 72576, at *1, 1990 WL 602159 (Mo. banc July 13,
1990). Since Grantham in 1990, the Missouri Supreme Court has routinely declined
to answer questions of state law certified by federal courts.

E.g., Washington v.

Countrywide Home Loans, Inc., 747 F.3d 955, 958 n.2 (8th Cir. 2014) (citing
Grantham); Harber v. Altec Indus., Inc. , 5 F.3d 339, 340 (8th Cir. 1993).
The Court rejects defendants’ contention that the only way to know if the
Missouri Supreme Court will continue to adhere to its view that it lacks jurisdiction
to answer certified questions is to ask. First, in two decisions issued in 2009 this
Court explained in detail why it found such a contention unpersuasive. See Doe v.

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Nixon, No. 4:08-CV-1518 (CEJ), 2009 WL 2957925, at *2–3 (E.D. Mo. Sept. 10,
2009) (denying plaintiffs’ motion to certify a question regarding a state statute to
the Missouri Supreme Court); Doe v. Neer, No. 4:07-CV-101 (RWS), 2009 WL
975154, at *2–3 (E.D. Mo. Apr. 9, 2009) (same).
decisions applies equally here.

The rationale of those earlier

Second, in response to a recent attempt by the

Eighth Circuit to certify a question of state law to the Missouri Supreme Court
pursuant to Mo. Rev. Stat. § 477.004, the Missouri Supreme Court opted to adhere
to Grantham. Washington, 747 F.3d at 958 n.2. As such, this Court has sufficient
reason to presume that, based on the explanations provided by this Court in 2009
and the Missouri Supreme Court’s refusal to change course in 2014 despite the
opportunity to do so, the Missouri Supreme Court will continue to adhere to the
view expressed in Grantham despite any attempts by federal courts to certify
questions of state law to it. Thus, the Court will deny defendants’ request.
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For the reasons set forth above,
IT IS HEREBY ORDERED that the motion of the SNAP defendants to
reconsider, for expedited appeal, or for certification to the Missouri Supreme Court
[Doc. #69] is denied.

____________________________
CAROL E. JACKSON
UNITED STATES DISTRICT JUDGE
Dated this 15th day of January, 2016.

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