Unreported / Non-Citable
Background
Reintegrative Therapy Association (RTA) and its founder, Dr. Joseph Nicolosi Jr., brought a defamation suit in the Southern District of California against two researchers who published an academic article listing “reintegrative therapy” as a possible synonym for conversion therapy. RTA claimed the article could be read as referencing its trademarked therapy brand, which it asserts is not conversion therapy.
The researchers filed motions to dismiss for lack of personal jurisdiction along with special motions to strike under California’s anti-SLAPP statute (Code of Civil Procedure § 425.16)—the state’s law designed to quickly dispose of lawsuits that chill free speech and petition rights. Their anti-SLAPP motions included requests for attorney’s fees. The district court granted the jurisdictional dismissal but denied the anti-SLAPP motions as moot, then gave RTA leave to amend. Before the amendment deadline, RTA voluntarily dismissed the case without prejudice.
The Court’s Holding
The Ninth Circuit reversed and remanded, holding that the researchers were entitled to a ruling on the merits of their anti-SLAPP motions. The panel applied California Supreme Court precedent from Barry v. State Bar of California, which held that courts retain the power to resolve anti-SLAPP motions on jurisdictional grounds and award fees, reasoning that exempting claims from anti-SLAPP review simply because they fail for non-substantive reasons would “open up new avenues for harassing and retaliatory litigation.”
The court further relied on California appellate authority establishing that after a voluntary dismissal, a trial court retains jurisdiction for the “limited purpose of awarding costs and statutory attorney fees.” Under Catlin Insurance Co. v. Danko Meredith Law Firm and Moore v. Liu, a defendant who is voluntarily dismissed after filing a section 425.16 motion is “nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendant’s motion for attorney’s fees and costs.”
Key Takeaways
- A plaintiff cannot avoid an anti-SLAPP fee award by voluntarily dismissing a lawsuit after the defendant files a special motion to strike under California Code of Civil Procedure § 425.16.
- Courts must rule on the merits of a pending anti-SLAPP motion even after voluntary dismissal, because a merits ruling is a necessary predicate to the statutory fee award.
- This holding applies in federal court in the Ninth Circuit, where California’s anti-SLAPP statute is applied following the en banc decision in Gopher Media, LLC v. Melone.
- The decision reinforces the anti-SLAPP statute’s purpose of deterring meritless lawsuits targeting protected speech by ensuring defendants can recover their costs even when the plaintiff walks away.
Why It Matters
California’s anti-SLAPP statute is one of the most powerful tools for defendants facing lawsuits that target free speech. A recurring tactical problem has been plaintiffs who file suit, trigger expensive motion practice, and then voluntarily dismiss before a court can rule—leaving the defendant unable to recover fees. This decision closes that escape hatch in the Ninth Circuit, ensuring that anti-SLAPP defendants who have requested fees get a merits ruling regardless of what the plaintiff does.
For California practitioners—especially those advising clients on defamation, media, academic publishing, or protest-related litigation—the case confirms that filing an anti-SLAPP motion with a fee request creates an enforceable right to a merits determination that survives voluntary dismissal.