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Special Motion Uniform Public Expression Protection Act

UPEPA03 Special_Motion SpecialMotionPublicExpressionProtectionAntiSLAPP



SECTION 3. SPECIAL MOTION FOR EXPEDITED RELIEF.

Not later than [60] days after a party is served with a [complaint] [petition], crossclaim, counterclaim, third-party claim, or other pleading that asserts a [cause of action] to which this [act] applies, or at a later time on a showing of good cause, the party may file a special motion for expedited relief to [dismiss] [strike] the [cause of action] or part of the [cause of action].



Legislative Note:

A state should use the term "complaint" or "petition", or both, to describe any procedural means by which a cause of action may be asserted.
A state should title its motion one to "dismiss" or "strike" in accordance with its procedures and customs. The state also should substitute its term for the term "[dismiss] [strike]" in Section 7(a).
A state may need to amend its statutes or rules of civil procedure to prevent a motion under this section from being considered a first pleading or motion that waives a defense or precludes the filing of another pleading or motion.

§ 3 comment 1.

Unlike a defense under Fed. R. Civ. P. 12(b), the motion need not be filed prior to other pleadings in the case, and a party should not be estopped from filing a motion by taking any other actions in the case.

§ 3 comment 2.

The Act should apply not just to initial claims brought by a plaintiff against a defendant, but to any claim brought by any party who seeks to punish or intimidate another party for the exercise of its constitutional rights
In this connection, initial defendants frequently use their ability to bring counterclaims and crossclaims for abusive purposes, and the Act should be available to seek dismissal of such claims.

§3 comment 3.

The terms "complaint" and "petition" are intended to include any amended pleadings that assert a cause of action for the first time in a case.

§ 3 comment 4.

"Crossclaim" means a cause of action asserted between co-plaintiffs or co-defendants in the same civil action.

§ 3 comment 5.

"Counterclaim" means a cause of action asserted by a party against an opposing party after an original claim has been made by that opposing party.
The term should be construed synonymously with terms like "counteraction," "countersuit," and "cross-demand."

§ 3 comment 6.

"Third-party" claim should be construed in accordance with Fed. R. Civ. P. 14.

§ 3 comment 7.

"Good cause" means a reason factually or legally sufficient to appropriately explain why the motion was not brought within the prescribed deadline.
This section should not be construed to require a party to seek leave of court prior to filing a motion later than the prescribed deadline.
Instead, a court should make any good-cause determination as part of its ruling on the motion under Section 8.

§ 3 comment 8.

Some states may choose to title their special motion one to "dismiss," while others may title it one to "strike."
The choice of title is not substantive in nature and does not affect uniformity or construction of the statute.

JayNote:

Let's examine the operative clauses of this section.
Not later than [60] days after a party is served with a ... pleading ... or at a later time on a showing of good cause ....
A party has 60 days from the date that it is served with a pleading which falls within the Scope of the Act ( as defined in § 2) to file a Special Motion under § 3.
As a practical matter, the party who will be filing a Special Motion will try to file that motion as quickly as possible so that the stay of § 4(a) goes into effect.
The 60 days does not begin to run until and unless the pleading contains a cause of action that falls within the Scope of the Act (§ 2). Thus, if a original pleading does not contained a cause of action that falls within the Scope, but a later amended pleading does, then the 60 days would begin to run from the date of the filing of the amended pleading.
If a party does not file a Special Motion within 60 days, then the party can still file the Special Motion to Strike for "good cause", which is meant to be a relatively low hurdle but which is also committed to the sound discretion of the trial court.
Some examples:
Example #1: A Complaint falling within the Scope is filed against several defendants, but questions arise about the mental competency of one defendant and the action is stayed by the court for more than 60 days until a guardian ad litem is appointed for that defendant; once the stay is lifted, any of the defendants will be able to show "good cause" to file a Special Motion outside of the 60 day period so long as shortly filed thereafter.
Example #2: A Complaint falling within the Scope if filed against a single defendant, but the defendant's counsel (who is unfamiliar with this practice area) is unaware that a Special Motion is available until after the 60 day period has expired; the defendant will not be able to show "good cause" to be able to file a late Special Motion (assuming that inadvertence of counsel does not rise to good cause within a particular jurisdiction).
... pleading that asserts a [cause of action] to which this [act] applies ....
This clause makes clear that a Special Motion is only and exclusively available where the allegedly offensive pleading asserts a cause of action that falls within the Scope of the Act (§ 2).
[T]he party may file a special motion for expedited relief to [dismiss] [strike] the [cause of action] or part of the [cause of action].
This clause is what makes the motion "special" insofar as the movant becomes entitled to expedited relief as further set forth in the Act.
... a party is served with a [complaint] [petition], crossclaim, counterclaim, third-party claim, or other pleading ....
The import of this language is that a Special Motion becomes available without regard to either the alignment of the parties or to how the pleading is titled or categorized; the only qualification is that the cause of action alleged therein be within the Scope of the Act (§ 2), i.e., the Special Motion may be quite accurately said to be an omnidirectional defense.




SPECIAL MOTION ARTICLES

  • 2021.05.31 ... The Uniform Public Expression Protection Act: The Special Motion


SPECIAL MOTION OPINIONS