United States v. 2005-03-14 | 03-56306 | THOMAS VFRY'S ELECTRONICS | precedential | opinion |

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
 STEVE THOMAS, No. 03-56306
Plaintiff-Appellant, D.C. No.
v. CV-02-1831 TJW/ 
FRY’S ELECTRONICS, INC., a JFS
California Corporation, OPINION
Defendant-Appellee. 
Appeal from the United States District Court
for the Southern District of California
Thomas J. Whelan, District Judge, Presiding
Submitted March 8, 2005*
Pasadena, California
Filed March 15, 2005
Before: Thomas G. Nelson, Barry G. Silverman, and
Richard C. Tallman, Circuit Judges.
Per Curiam Opinion
*The panel unanimously finds this case suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
3303

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COUNSEL
Scott A. McMillan, The McMillan Law Firm, La Mesa, Cali-
fornia, for the appellant.
3304 THOMAS v. FRY’S ELECTRONICS

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James D. Claytor and William H. Curtis, Foley McIntosh Frey
& Claytor, Lafayette, California, for the appellee.
OPINION
PER CURIAM:
Steve Thomas brings this interlocutory appeal challenging
the district court’s denial of his anti-Strategic Lawsuit Against
Public Purpose1 (“anti-SLAPP”) special motion to strike state
law counterclaims brought by Fry’s Electronics in Thomas’s
declaratory relief action. We have jurisdiction pursuant to 28
U.S.C. § 1292(b). The district court ruled that in light of
recent Supreme Court authority, California’s anti-SLAPP stat-
ute is in conflict with the Federal Rules of Civil Procedure
and thus is unavailable to litigants in federal court. After
reviewing the district court’s decision de novo, see Vess v.
Ciba-Geigy Corp. USA, 317 F.3d 1097, 1102 (9th Cir. 2003),
we reverse and remand.
[1] The district court ruled that the Supreme Court’s deci-
sion in Swierkiewicz v. Sorema, 534 U.S. 506 (2002), under-
mines our decision in United States ex rel. Newsham v.
Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir. 1999).
In Lockheed, we determined that California anti-SLAPP
motions to strike and entitlement to fees and costs are avail-
able to litigants proceeding in federal court, and that these
provisions do not conflict with the Federal Rules of Civil Pro-
cedure. 190 F.3d at 970-73. Swierkiewicz merely stands for
the proposition that federal courts may not impose a height-
ened pleading requirement in derogation of federal notice
pleading rules. It is instructive in the pleading context, but
does not support the district court’s ruling here. Swierkiewicz
did not abrogate Lockheed.
1Cal. Civ. P. Code § 425.16
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Because the district court erroneously concluded that the
anti-SLAPP statute was unavailable in federal court, it did not
reach the merits of Thomas’s motion to strike or the motion
for attorney’s fees and costs. We remand to the district court
so that it may rule on these issues.
REVERSED and REMANDED.
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