United States District Court, D. Arizona
United States ex rel. Daniel Hamilton, Plaintiff,
Yavapai Community College District, et al., Defendants.
Paul G. Rosenblatt United States District Judge
The Court has before it the Motion to Dismiss Counterclaims under A.R.S. § 12-752(A) and Special Motion to Strike Counterclaims Under Cal. Civ. Proc. Code § 425.16 (Doc. 135); the Motion to Reconsider Ruling on Scienter and Ruling On Scope of Claims under Counts I and II (Doc. 145); the United States of America’s Statement of Interest on Relator’s Motion to Reconsider (Doc. 147); Motion to Exceed Page Limit on Reply on Motion to Dismiss/Strike Counterclaims (Doc. 159); Defendants Guidance Academy and Stoneciphers’ Motion to Strike the United States of America’s Statement of Interest (Doc. 164); and Relator-Plaintiff’s Motion for Judgment on the Pleadings Re: Affirmative Defense of Failure to Mitigate Damages Asserted by Yavapai Community College District (Doc. 167).
A. Motion to Dismiss Counterclaims under A.R.S. § 12-752(A) and Special Motion to Strike Counterclaims under Cal. Civ. Proc. Code § 425.16 (Doc. 135)
Plaintiff-Relator Hamilton moves to dismiss the defamation counterclaim and the intentional interference with contractual relations counterclaim (which is based on the same alleged defamatory conduct) (collectively “Counterclaim”) brought against him by defendants Guidance Academy and the Stoneciphers (collectively “Guidance”).Hamilton seeks dismissal of the Counterclaim under Arizona’s Anti-SLAPP statute, and/or striking of the claim under California’s Anti-SLAPP statute.
Guidance contends that Hamilton has waived any right to bring a motion to dismiss based on an Anti-SLAPP affirmative defense by failing to plead the defense in his answer. (Doc. 144 at 4-5.) Hamilton argues that he did raise the defense in his answer. (Doc. 160 at 4-5.)
Hamilton’s answer alleges that the counterclaims against him “are barred because they violate the public policy protecting FCA whistleblowers.” (Doc. 133, ¶ 33.) This is sufficient to preserve the affirmative defense. Further, even if the Court were to find that this was not sufficient, the Court would permit Hamilton to include this affirmative defense in subsequent pleadings as Guidance has not demonstrated that doing so would result in prejudice against it. See Simmons v. Navajo County, 609 F.3d 1011, 1023 (9th Cir. 2010).
1. Arizona’s Anti-SLAPP Statute
Arizona’s Anti-SLAPP statute provides: “In any legal action that involves a party’s exercise of the right of petition, the defending party may file a motion to dismiss the action under this section.” A.R.S. § 12-752(A). The Court must grant the motion “unless the party against whom the motion is made shows that the moving party’s exercise of the right of petition did not contain any reasonable factual support or any arguable basis in law and that the moving party’s acts caused actual compensable injury to the responding party.” A.R.S. § 12-752(B).
Guidance contends that the Anti-SLAPP statute is inapplicable because the statements allegedly made by Hamilton that are the subject of the Counterclaim did not involve Hamilton’s “exercise of the right of petition.”
The “exercise of the right of petition” is defined under Arizona law as
any written or oral statement that falls within the constitutional protection of free speech and that is made as part of an initiative, referendum or recall effort or that is all of the following:
(a) Made before or submitted to a legislative or executive body or any other governmental proceeding.
(b) Made in connection with an issue that is under consideration or review by a legislative or executive body or any ...