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The Texas Anti-SLAPP Law Does not Apply in Federal Courts on a Federal Question

Texas Anti-slapp and federal courts

Written by Robert Ray

I am a Texas attorney. I am Board Certified in Personal Injury Trial Law by the Texas Board of Legal Specialization. My principle office is in Lantana, Texas in the DFW area. I am a past chair of the Texas State Bar Computer & Technology Section. I was appointed by the Chief Justice to serve one year as and ex-officio member on the Judicial Committee on Information Technology.


In MISKO v. BACKES d/b/a BACKES QUARTER HORSES, No. 3:16-CV-3080-M(BT) (United States District Court, N.D. Texas, Dallas Division, May 4, 2018), a Magistrate Judge made a recommendation that a Texas Anti-SLAPP motion be denied. The federal judge accepted the findings and the recommendations and denied the Texas Anti-SLAPP motion.


Misko filed an Original Complaint in federal court asserting a single cause of action against Backes for unfair competition, in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125.  Both parties were in the business of selling horses. Misko claimed that Backes advertised her horses as being free of HERDA, an equine genetic defect than can cause skin complications and death.

Misko alleges that Backes’s statements were false because Backes’s horses were not tested by the laboratory identified in Backes’s advertising, and because Backes’s horses actually carried the HERDA gene... Misko further alleges that potential breeders and buyers relied on Backes’s false statements in choosing Backes’s horses over Misko’s horses… Misko estimates that she suffered $1 million in lost sales and breeding prospects due to Backes’s false statements.

Backes filed a Texas Anti-SLAPP motion to dismiss.

Federal Magistrate

The magistrate reviewed the federal cases involving states’ Anti-SLAPP laws and noted that some federal court’s apply the Anti-SLAPP laws and some do not. Even the ones that apply the state’s Anti-SLAPP law only apply them in diversity cases:

explaining that state anti-SLAPP statutes “are enforceable in federal courts sitting in diversity jurisdiction” by virtue of the Erie doctrine). “Under the Erie doctrine, federal courts sitting in diversity apply state substantive law and federal procedural law.

The magistrate went on to note that this case raised a federal question (based on federal law) and not a diversity case (based on state law where parties live in different states.)

While state substantive law may apply in diversity cases, the TCPA does not apply to Misko’s lawsuit, which was filed in federal court pursuant to federal question jurisdiction, based on a single claim for violation of the federal Lanham Act. The Court is not exercising jurisdiction over Misko’s claims pursuant to diversity jurisdiction, and the Erie doctrine is not applicable. 

Conclusion and Disposition

The magistrate also ruled the motion had been overruled by operation of law. (The original magistrate who heard the motion retired between the hearing and the time to rule.)


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