This is my second installment in a series of articles that will explore the Uniform Act for the Protection of Public Expression, or “UPEPA”. I must once again give the caveat that while serving as the American Bar Association

Advisor to the Editorial Board of UPEPA, the comments and views here are my own and mine alone, and not those of the Uniform Law Commission or the American Bar Association; furthermore, other members of the editorial board might disagree (perhaps vehemently) on certain points.

In our previous episode, The Uniform Public Expression Protection Act: Scope and Applicability, we examined how UPEPA §2 strictly limits the availability of special motions to a particular protected speech and conduct. We will now deal with the special motion itself.

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So what gives the right to bring a special motion and when? Permission for a party to file a special request is found in § 3, which is a single short paragraph as follows:

“SECTION 3. SPECIAL ACCELERATED EMERGENCY MOTION. No later than [60] days after a party with a [complaint] [petition], incidental demand, counterclaim, third party demand or other procedural act which asserts a [cause of action] to which that [act] applies, or at a later time upon presentation of a valid reason, the party may file a special request for expedited relief at [dismiss] [strike] the [cause of action] or part of [cause of action]. “

There’s actually quite a bit of procedural law loaded into this paragraph, and we’ll try to decompress it piece by piece. There is also, however, at least one important procedural implication which must be implied in this paragraph although it is not expressly stated. The implication arises from the fact that § 3 gives the party seeking to file a special request (the “mover”) up to 60 days to file the request, but generally the rules of civil procedure give a short time – generally 30 days from service – for that same party to file an admissible argument such as a response, or a preliminary motion such as a motion to dismiss or demote.

The result is that the mover has the option of filing these preliminary pleadings or motions first, before filing the special motion. While the whole purpose of a special motion is to allow the mover to try to drastically reduce the time and effort spent defending the case, there may be instances where it is strategically or tactically important to the mover. mover to file these other pleadings or preliminary documents. motions first, followed by the special motion. As the commentary in § 3 notes: “Unlike a defense under Fed. R. Civ. P. 12 (b), the petition need not be filed before further pleadings in the case, and a party should not be precluded from bringing a motion by taking any other action in the case. “

Another concern, but which is not explicitly addressed by implication in § 3, is that in some jurisdictions a party may waive certain defenses or waive certain procedural rights unless the very first thing it files does not raise such queries or rights. Since a special motion will not contain these defenses or preserve these rights, but a special motion will often be the first thing that moves files, a legislative note in § 3 warns state legislatures of changes. may be needed elsewhere to resolve this problem: “A The State may need to amend its statutes or rules of civil procedure to prevent a request under this article from being considered a first pleading or a petition. which waives a defense or prevents the filing of another pleading or motion. “

Let us now examine certain provisions which are expressly found in § 3.

The first thing we see is a time requirement for filing a special request: “No later than [60] days after a party has been served with … argument … or later on a demonstration of good cause … “The basic time limit for a party to file a special motion is 60 days from the date on which it is served with a procedural document which falls within the scope of the law (as defined in § 2). The 60 days only begin to run when the plea contains a cause of action falling within the scope of the law. scope of the law (§ 2 Thus, if an original pleadings did not contain a cause of action which falls within the scope of application, but a pleadings subsequently amended does so, then the 60 days would begin to run from the date of filing of the amended procedural document.

In my experience, this 60-day deadline is almost always not a factor in filing a special request, since the mover will normally try to file this request as quickly as possible so that the suspension of § 4 (a ) comes into force. and the litigation is frozen at least as regards the allegedly abusive cause of action. This prevents the party who filed the cause of action from harassing the mover by asking for an early deposition from the mover and other onerous things.

If a party does not file a special request within 60 days, it can still file the special request to strike for “good cause”, which is supposed to be a relatively small obstacle but is also committed at the sound discretion of the court. of first instance. Compare the following two examples:

Example 1: A claim falling within the scope is filed against several defendants, but questions arise about the mental competence of a defendant and the whole action is stayed by the court for more than 60 days until ‘that a guardian ad litem be appointed for this defendant; once the stay is lifted, any of the defendants will be able to present a “good cause” to file a special motion outside of the 60-day period, provided it was filed soon after.

Example # 2: A scope complaint is filed against a single defendant, but the defendant’s lawyer (who is not familiar with this area of ​​practice) is unaware that a special request is available until the expiration of the 60-day period. Several months after the start of the litigation, the light bulb suddenly lights up in the head of this lawyer and a special request is filed late. In this case, the mover will not be able to demonstrate a “good cause” to be able to file a late special motion (assuming the lawyer’s oversight does not result in a valid cause in that particular jurisdiction).

How and when is the protection of the “good cause” raised by a mover? Commentary 7 to § 3 explains: “A ‘good cause’ means a reason factually or legally sufficient to adequately explain why the application was not brought within the prescribed time limit. This article should not be interpreted as obliging a party to seek leave of the court before filing an application later than the prescribed time limit. Instead, a court should make any decision based on valid reasons as part of its decision on the application under Article 8 . “

In the process, let us consider the provision according to which the “plea which asserts a [cause of action] to which that [act] applies … “This clause makes it clear that a special request is only and exclusively available when the allegedly offensive pleadings assert a cause of action which falls within the scope of the law (§ 2) Otherwise, the special request is simply not available to the mover.It’s that simple.

Then we find that “the party can file a special request for expedited relief. [dismiss] [strike] the [cause of action] or part of [cause of action]. “That tells us a couple of things. First, although a minor consideration, the correct title for a UPEPA motion is“ Special Motion for Expedited Recovery. ”Indeed, that clause is what makes the motion“ special “insofar as the mover becomes entitled to accelerated compensation in accordance with the law.

Second, the special request is aimed only at the offensive – that is, within the scope of the law in § 2 – the cause of action, or perhaps just part of the cause of action. That is, a special move is meant to be a laser scalpel that cuts only the § 2 tumor found in the pleading, not a nuclear bomb that wipes out the entire pleading. In most cases where a special motion is filed, however, the abusive gimmick is at the heart of the matter and hushing it up means the rest of the matter will die for lack of substance.

We finally consider this clause: “a party is served a [complaint] [petition], incidental demand, counterclaim, third party demand or other pleading … “The significance of this wording is that a special motion becomes available regardless of the alignment of the parties or the manner in which the The procedural act is titled or categorized; the only reservation is that the cause of action alleged therein falls within the scope of the law (§ 2), that is to say that the special request can be fairly accurately considered as a omnidirectional defense. This is emphasized by Commentary 2 in § 3: “The law should apply not only to initial claims made by a plaintiff against a defendant, but to any action brought by any party seeking to punish or intimidate another party for exercise of its constitutional obligations. In this regard, original defendants frequently use their ability to present counterclaims and crossclaims for abusive purposes, and the law should be available to request that such claims be dismissed. “

As a historical note, § 3 took relatively little time or effort for the Editorial Board to come together because it was fairly straightforward. In our next installment, we’ll take a look at an issue that consumed much of the Editorial Board’s discussion time, namely the automatic stay provision in § 4.

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