Filed: Mar. 02, 2016
Latest Update: Mar. 02, 2016
Summary: SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRE
Summary: SUMMARY ORDER RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRES..
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SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal is DISMISSED for lack of appellate jurisdiction.
Defendants-Counter Claimants-Appellants Microflo LTD, Edward Malkin, and Ecotech Limited (the "Microflo defendants") appeal the September 25, 2014 decision of the United States District Court for the Eastern District of New York (Brodie, J.) denying their motion to strike Plaintiff-Counter Defendant-Appellee Liberty Synergistics Inc.'s ("Liberty") complaint under California's anti-Strategic Lawsuit Against Public Participation ("SLAPP") statute, Cal. Civ. Proc. Code § 425.16. We assume the parties' familiarity with the underlying facts, procedural history, and issues on appeal.
California's anti-SLAPP statute allows a defendant to strike a plaintiff's complaint if the defendant can show that the plaintiff brought suit in response to the defendant's conduct in furtherance of its rights of petition or free speech and the plaintiff fails to show a probability of success on the merits of its claim. See Cal. Civ. Proc. Code § 425.16(b)(1). Applying this statute to Liberty's claim for malicious prosecution, the district court denied the Microflo defendants' motion because it concluded that Liberty had shown a probability of success on the merits. Microflo appealed that denial under the collateral order doctrine, which requires that the appealed order must (1) conclusively determine the disputed question, (2) resolve an important issue completely separate from the merits of the action, and (3) be effectively unreviewable on appeal from a final judgment. See, e.g., Liberty Synergistics Inc. v. Microflo Ltd., 718 F.3d 138, 146 (2d Cir. 2013). Unlike the earlier appeal in this case, the Microflo defendants' present appeal fails under the second requirement: Our review is not completely separate from the merits of the action as it will require us to examine Liberty's allegations and the parties' competing evidence. See Ernst v. Carrigan, No. 14-3925-cv(L), 2016 U.S. App. LEXIS 3024, at *14-16 (2d Cir. Feb. 22, 2016).1 Accordingly, we lack appellate jurisdiction to hear this appeal.
For the reasons stated herein, the appeal is DISMISSED for lack of appellate jurisdiction.
