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Fifth Circuit Holds that the TCPA Does Not Apply to Federal Diversity Cases

By Heath Coffman

Fifth Circuit Holds that the TCPA Does Not Apply to Federal Diversity Cases | The Fort Worth Business & Employment Law Reporter

One of the open questions for the Texas Citizens Participation Act (TCPA) was whether it applied in federal diversity cases.  Last August, the Fifth Circuit finally answered that question in Klocke v. Watson, 936 F.3d 240 (5th Cir. 2019).

In Klocke, plaintiff Klocke, the administrator of his son Thomas’s estate, sued Watson for defamation and defamation of per se after Watson accused Thomas of homophobic harassment, resulting in Thomas being denied permission to graduate from the University of Texas at Arlington (UTA).  Thomas subsequently committed suicide.  Klocke also sued UTA for Title IX violations.

In response to the lawsuit, Watson filed a motion to dismiss under the Texas’s anti-SLAPP statute the TCPA.  Klocke responded to the TCPA motion by objecting to the TCPA’s applicability.  The trial court overruled the objection, but the Fifth Circuit reversed the decision, determining that the TCPA was a procedural and not a substantive rule and therefore inapplicable to federal court.  The Court reasoned that the TCPA was procedural because it answered the same question as Federal Rules of Civil Procedure 12 and 56, which govern dismissal and summary judgment motions, respectively.  Moreover, the TCPA’s burden-shifting framework imposed additional requirements beyond those found in Rules 12 and 56.  Therefore, the TCPA did not apply in federal court.