Williams v. Cordillera Communications et al

Filing 60

ORDER ON ANTI-SLAPP MOTION granting 51 Motion to Dismiss.(Signed by Judge Nelva Gonzales Ramos) Parties notified.(mserpa, 2)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
CHRISTOPHER WILLIAMS,
Plaintiff,
VS.
CORDILLERA COMMUNICATIONS,
INC., et al,
Defendants.

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§ CIVIL ACTION NO. 2:13-CV-124
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ORDER ON ANTI-SLAPP MOTION
Before the Court is “Defendants’ Motion to Dismiss Pursuant to Chapter 27 of the
Texas Civil Practice & Remedies Code” (D.E. 51). Chapter 27, also known as the
Citizens Participation Act (TCPA), is an anti-SLAPP1 statute designed to stay discovery
and obtain early dismissal of meritless suits which aim to chill, or retaliate against, the
exercise of free speech which is in the public interest.

Defendants, Cordillera

Communications, Inc. and KVOA Communications, Inc. d/b/a KRIS Communications
(collectively KRIS) seek dismissal of all complaints related to 2014 broadcasts and
publications regarding Plaintiff Christopher Williams (Williams). For the reasons set out
below, the motion (D.E. 51) is GRANTED.
PRELIMINARY OBJECTIONS
Williams offers three preliminary objections to the anti-SLAPP motion: (1) the
TCPA is procedural and does not apply in federal court; (2) KRIS did not file the TCPA
motion in a timely manner according to the statute’s requirements; and (3) the TCPA
1

Strategic Lawsuit Against Public Participation (SLAPP).
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does not permit consideration of all of the evidence KRIS has offered. As stated at the
June 3, 2014 hearing and as more fully set out below, the Court OVERRULES all three
preliminary objections.
A. The Citizens Participation Act is Enforceable in Federal Court.
This action was removed to this Court on the basis of diversity jurisdiction. D.E.
1; 28 U.S.C. § 1332. “Except in matters governed by the Federal Constitution or by Acts
of Congress, the law to be applied in any case is the law of the State.” Erie R. Co. v.
Tompkins, 304 U.S. 64, 78 (1938). “Under the Erie doctrine, federal courts sitting in
diversity apply state substantive law and federal procedural law.” Gasperini v. Center for
Humanities, Inc., 518 U.S. 415, 427 (1996); 28 U.S.C. § 1652 (“The laws of the several
states, except where the Constitution or treaties of the United States or Acts of Congress
otherwise require or provide, shall be regarded as rules of decision in civil actions in the
courts of the United States, in cases where they apply”).
The TCPA is procedural in that it has specific time constraints, places a stay on
discovery, and requires an expedited decision with an accelerated appellate process.
TCPA, TEX. CIV. PRAC. & REM. CODE §§ 27.003-27.008. However, these procedural
features are designed to prevent substantive consequences—the impairment of First
Amendment rights and the time and expense of defending against litigation that has no
demonstrable merit under state law regarding defamation.
The TCPA requires dismissal of an action if “the moving party shows by a
preponderance of the evidence that the legal action is based on, relates to, or is in
response to the party’s exercise of: (1) the right of free speech; (2) the right to petition;
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or (3) the right of association.” TCPA § 27.005(b). A claimant’s action may survive
only if he “establishes by clear and convincing evidence a prima facie case for each
essential element of the claim in question.” TCPA § 27.005(c). The statute allows a
defendant to recover damages in the form of court costs, reasonable attorney’s fees,
expenses, and sanctions. TCPA § 27.009. By the same token, if a defendant uses the
statute in a manner that is frivolous or only for purposes of delay, a plaintiff may recover
court costs and reasonable attorney’s fees for having to respond. Id.
Such state anti-SLAPP statutes have been enforced in federal courts.2 The Fifth
Circuit has concluded that the accelerated appeal provisions of the Louisiana anti-SLAPP
statute apply to federal appellate courts. Henry v. Lake Charles American Press, LLC,
566 F.3d 164 (5th Cir. 2009). In Henry, the trial court applied the Louisiana Anti-SLAPP
statute, but erroneously concluded that the plaintiff had demonstrated a probability of
success on his defamation claim. Id.; Henry v. Lake Charles American Press, LLC, No.
2:06 CV 1513, 2007 WL 3341317 (W.D. La. November 7, 2007).
In a subsequent case, the Fifth Circuit noted, “This court has adopted the use of
the statute in federal court under Erie.” Brown v. Wimberly, 477 Fed.Appx. 214, 216,
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E.g., United States ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 973 (9th
Cir. 1999) (finding that the California anti-SLAPP statute applies in federal court under the Erie
doctrine and does not conflict with Fed. R. Civ. P. 8, 12, or 56, which do not “occupy the field”
of measures intended to efficiently dispose of meritless actions ); Godin v. Schencks, 629 F.3d
79, 81 (1st Cir. 2010) (Maine anti-SLAPP statute). There is a split of authority in the federal
trial courts sitting in the District of Columbia. E.g., 3M Co. v. Boulter, 842 F.Supp.2d 85 (D.D.C.
2012) (disagreeing with Newsham and refusing to apply the D.C. anti-SLAPP statute as
conflicting with Fed. R. Civ. P. 12 and 56 in the D.C. Circuit); Farah v. Esquire Magazine, Inc.,
863 F.Supp.2d 29, 36 n.10 (D.D.C. 2012) (noting that the statute has substantive consequences
and is enforceable in federal court, citing Sherrod v. Breitbart, 843 F.Supp.2d 83, 85
(D.D.C.2012)). It appears from subsequent history that the Boulter decision is not in the
mainstream, even among D.C. district courts.
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(5th Cir. 2012) (per curiam; applying the Louisiana statute and citing Henry). There is
no material difference between the Louisiana and Texas anti-SLAPP statutes.
Consequently, anti-SLAPP statutes such as the TCPA are enforceable in federal courts
sitting in diversity jurisdiction under the Erie doctrine. The Court thus enforces the
TCPA as it applies to this case.
B. KRIS’s Motion is Timely.
Under the TCPA, a motion to dismiss “must be filed not later than the 60th day
after the date of service of the legal action.” TCPA § 27.003(b). Williams argues that the
legal action was filed on April 4, 2013 (D.E. 1-3), and the anti-SLAPP motion was not
filed until a year later. D.E. 51. KRIS argues that it is entitled to a dismissal of new
claims regarding the 2014 broadcasts because those claims were not brought as a legal
action until Williams amended his complaint on February 27, 2014. D.E. 40. Williams
counters that his claims regarding the 2014 broadcasts constitute the same claim—the
amended pleading states the same allegations with no additional liability. D.E. 55, p. 11.
The TCPA defines a “legal action” as “a lawsuit, cause of action, petition,
complaint, cross-claim, or counterclaim or any other judicial pleading or filing that
requests legal or equitable relief.” TCPA § 27.001(6). This definition does not limit
“legal action” to the first document requesting relief. Rather, it contemplates additional
pleadings and additional causes of action that may arise during the progress of a case.
The claims here relate to separate broadcasts that did not occur until 2014.

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The Court finds that KRIS’s anti-SLAPP motion, filed within 60 days of the
pleading that added the 2014 claims, is timely with respect to challenging the 2014
claims.
C. All Admissible Evidence May Be Considered.
Quoting TCPA § 27.006(a), which allows the courts to consider “the pleadings
and supporting and opposing affidavits stating the facts on which the liability or defense
is based,” Williams argues that the Court is not permitted to consider evidence in any
other form. He moves to strike KRIS’s Exhibits 2-3 and 5-14.
Williams’ argument is not supported by authority and is contrary to the full import
of § 27.006. Under TCPA § 27.006(b), the Court may allow targeted discovery relevant
to the motion, which would produce other types of evidence such as deposition
testimony, admissions, and documents produced through requests for production or
subpoenas duces tecum. The statute does not preclude the use of such evidence.
The Court OVERRULES Williams’ objection to the KRIS exhibits and DENIES
Williams’ request to strike those exhibits on the basis that they are outside the scope of
evidence permitted by TCPA § 27.006(a). To the extent that the KRIS exhibits constitute
admissible evidence, they may be considered in support of the TCPA motion.
D. Evidentiary Objections
Williams has lodged a number of evidentiary objections to the KRIS exhibits.
With three exceptions, each exhibit was previously offered by KRIS with its motion for
partial summary judgment (D.E. 41). Williams incorporates by reference and repeats
many of his previous objections, and KRIS incorporates by reference its previous
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responses to those objections. The Court ruled on those objections at the June 3, 2014
hearing and those rulings are incorporated herein.
The three new exhibits are: (1) Exhibit 2—the DVD of the KRIS broadcasts on
February 9 and 11, 2014; (2) Exhibit 3—the transcripts of the broadcast series of
February 9 and 11, 2014; and (3) Exhibit 17—the Affidavit of Rick Spruill. Williams
does not object to the admissibility of the DVD and transcripts. With respect to the
Affidavit of Rick Spruill, the Court OVERRULES the hearsay objections and admits the
affidavit for the limited purpose of demonstrating the scope of the KRIS investigation
and its basis for the reports. The Court SUSTAINS the hearsay objections only to the
extent that the affiant attempts to represent the words of any alleged victim or other
witness as true.
FACTS
The Court issued an Order on Motions for Summary Judgment (D.E. 59),
dismissing Williams’ claims related to KRIS’ 2013 broadcasts and publications. The
2014 reports involve the same information as the 2013 reports and the evidence KRIS
offers here is largely the same as the evidence offered with its motion for partial
summary judgment. The Court incorporates by reference its statement of the facts set
forth in the summary judgment Order.
DISCUSSION
A. The KRIS Reports Relate to a Matter of Public Concern
At issue in this case is KRIS’s First Amendment right to free speech as tempered
by tort actions to defend personal reputations. In the TCPA context, the exercise of the
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right of free speech must be “in connection with a matter of public concern.” TCPA §
27.001(3). The TCPA defines a “matter of public concern” to include:
(A)
(B)
(C)
(D)
(E)

health or safety;
environmental, economic, or community well-being;
the government;
a public official or public figure; or
a good, product, or service in the marketplace.

TCPA § 27.001(7). Williams argues that the substance of the 2014 broadcasts was not a
matter of public concern because Williams is not a public official or public figure and the
reports were not related to health or safety.
KRIS argues that any matter of alleged criminal activity is one of legitimate
concern to the public. D.E. 51, p. 5 (citing Cox Broadcasting Corp. v. Cohn, 420 U.S.
469, 492 (1975)). KRIS further contends that the broadcasts involved health or safety,
community well-being, the government, or a public official or public figure. The Court
finds that the KRIS reports were on matters of public interest because that they addressed
allegations against a teacher who had been accused of criminal acts of a sexual nature
involving young females, some of whom were his students.
The KRIS initial reports were triggered by the allegation involving the West Oso
ISD student.

However, the KRIS investigation found evidence that school districts

allowed Williams to resign under circumstances that shielded allegations of wrongdoing.
Other school districts then hired him and experienced similar allegations of wrongdoing.
It is a matter of public concern that a person who has a history of being terminated from

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his teaching job because of allegations of wrongdoing can continue to be hired in
positions in which the safety of students is entrusted to him.
The Court finds that the matters on which KRIS reported are matters involving
health and safety, community well-being, and—with respect to public educational
institutions, mandatory primary education, and certification of teachers—the government.
It is not necessary for the Court to reach the issue of whether Williams is a public figure
to find that the matters here fall within the scope of the TCPA’s requirement that the
exercise of the right of free speech be connected to a matter of public concern. KRIS, as
the moving party, has satisfied its burden of showing by a preponderance of the evidence
that this legal action is based on, relates to, or is in response to KRIS’s exercise of the
right of free speech as required by TCPA § 27.005(b).
B. Williams Has Failed to Establish a Prima Facie Case in Support of Any
Cause of Action Based on the 2014 Broadcasts.
Under the TCPA, once KRIS satisfies its burden to show that its broadcasts
constituted the exercise of free speech on a matter of public concern, the burden shifts to
Williams to produce clear and specific evidence of a prima facie case for each essential
element of the claim in question. TCPA § 27.005(c). Absent that proof, the action must
be dismissed. Id.
Williams’ complaint raises causes of action for defamation and defamation per se
under Texas law. To satisfy his burden of demonstrating a prima facie case under either
theory, Williams must show that KRIS:

(1) published a statement; (2) that was

defamatory concerning the plaintiff; (3) while acting with either actual malice, if the
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plaintiff was a public official or public figure, or with negligence, if the plaintiff was a
private individual, regarding the truth of the statement. WFAA–TV, Inc. v. McLemore,
978 S.W.2d 568, 571 (Tex. 1998). “Whether words are capable of the defamatory
meaning the plaintiff attributes to them is a question of law for the court.” Carr v.
Brasher, 776 S.W.2d 567, 569 (Tex. 1989). To be defamatory, the statement must be
materially false. KTRK Television, Inc. v. Robinson, 409 S.W.3d 682, 692 (Tex. App.—
Houston [1st Dist.] 2013, pet. denied) (collecting cases).
Williams complains of two allegedly defamatory statements in the 2014 KRIS
broadcasts:
1. That Williams was arrested for offenses involving “indecent exposure”
and “masturbating in front of Texas A&M coeds;” and
2. That Williams was “ordered by a judge” in 2005 to mandatory
counseling.
In his affidavit (D.E. 55-1), Williams confirms the gist of KRIS’s broadcast, but
complains of certain details. He essentially admits that he was arrested for indecent
exposure in connection with the November 14, 2008 incident that was the subject of a
March 24, 2009 complaint. And the evidence shows that this incident involved the
allegation of masturbating in front of Texas A&M coeds. Williams is correct that the
mandatory counseling was the result of a deferred prosecution agreement, and was not
ordered by a judge. However, the mandatory counseling was the result of an official
proceeding, and his compliance was required in order for the charges to be dismissed.
The evidence shows that, while there were discrepancies in the details, the reports
were substantially true. Consequently, Williams has not satisfied his TCPA burden of
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showing clear and specific evidence that the reports were materially false and defamatory
and this action, with respect to the 2014 broadcasts, must be dismissed. The Court need
not reach the issue of actual malice or damages.
CONCLUSION
For the reasons set out above, the Court GRANTS “Defendants’ Motion to
Dismiss Pursuant to Chapter 27 of the Texas Civil Practice & Remedies Code” (D.E. 51)
and DISMISSES Williams’ claim regarding the 2014 broadcasts.

Having already

dismissed Williams’ claims regarding the 2013 broadcasts in the Court’s Order on
Motions for Summary Judgment, this action is DISMISSED WITH PREJUDICE in its
entirety. The parties are instructed to contact the Court’s Case Manager to schedule a
hearing regarding costs, fees, and expenses.
ORDERED this 11th day of June, 2014.

___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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