Herbert Moreira-Brown v. Las Vegas Review Journal Inc.

• Court: Court of Appeals for the Ninth Circuit
• Decided: April 12, 2024
• Docket: 23-15143
• Status: Unpublished

Opinion

NOT FOR PUBLICATION FILED UNITED STATES COURT OF APPEALS APR 12 2024 MOLLY C. DWYER, CLERK U.S. COURT OF APPEALS FOR THE NINTH CIRCUIT

HERBERT MOREIRA-BROWN, No. 23-15143

Plaintiff-Appellant, D.C. No. 2:16-cv-02002-JAD-VCF v.

LAS VEGAS REVIEW JOURNAL INC.; MEMORANDUM* CARRI GEER THEVENOT,

Defendants-Appellees,

and

APRIL ADEMILUYI,

Defendant.

Appeal from the United States District Court for the District of Nevada Jennifer A. Dorsey, District Judge, Presiding

Submitted April 10, 2024** Pasadena, California

Before: SILER,*** GOULD, and BEA, Circuit Judges.

* This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3. ** The panel unanimously concludes this case is suitable for decision without oral argument. See Fed. R. App. P. 34(a)(2). *** The Honorable Eugene E. Siler, United States Circuit Judge for the U.S. We consider here two lawsuits and a newspaper article. First came April

Ademiluyi’s lawsuit accusing Plaintiff Herbert Moreira-Brown and another man of

raping her. Defendant Carri Greer Thevenot wrote an article about this lawsuit,

which Defendant the Las Vegas Review-Journal published. Then Moreira-Brown

filed suit, claiming that Defendants defamed him in the article. After the district

court first dismissed Moreira-Brown’s complaint in 2017, we remanded for

reconsideration under Nevada’s recently decided Patin v. Lee opinion, 429 P.3d

1248, 1251–52 (Nev. 2018). On remand, the district court again dismissed Moreira-

Brown’s complaint. He again appeals.

Moreira-Brown asks us to determine whether the district court properly

granted Defendants’ anti-SLAPP motion. It did. We have jurisdiction under 28

U.S.C. § 1291. We review the district court’s dismissal de novo. Herring Networks,

Inc. v. Maddow, 8 F.4th 1148, 1155 (9th Cir. 2021). Because the parties are familiar

with the facts, we recite them only where necessary.

1. A strategic lawsuit against public participation—better known as a

SLAPP lawsuit—is a meritless lawsuit that a plaintiff launches to chill a defendant’s

First Amendment freedom of speech. Nev. Rev. Stat. § 41.637. Nevada’s anti-

SLAPP law allows a defendant to file a special motion to dismiss a SLAPP lawsuit

if she can show the plaintiff’s claim targets a “good faith communication in

Court of Appeals for the Sixth Circuit, sitting by designation.

2 furtherance of the right to petition or the right to free speech in direct connection

with an issue of public concern.” Nev. Rev. Stat. § 41.660(1).

This anti-SLAPP motion is evaluated in two steps. In the first step, the

defendant must show, by a preponderance of the evidence, that she made the

protected communication in good faith. Nev. Rev. Stat. § 41.660(3)(a). To be made

in good faith, the communication must fall into one of four listed categories—

including, as relevant here, a communication regarding an issue of public interest,

which is made in a public forum, and that is true or made without knowledge of

falsity. Nev. Rev. Stat. § 41.637(4).

If the defendant meets this burden, the burden shifts to the plaintiff in step

two. The plaintiff must show, with prima facie evidence, a probability of prevailing

on his claim. Nev. Rev. Stat. § 41.660(3)(b).

We agree with the Nevada Supreme Court that the public generally has an

interest in judicial proceedings, like the one discussed in Defendants’ article.

Veterans in Pol. Int’l, Inc. v. Willick, 457 P.3d 970, *5 (Nev. 2020). Because their

article concerned the allegations in Ademiluyi’s lawsuit, it concerned a matter of

public interest.

The article was also made in a public forum, as it was authored for and

distributed in a newspaper. See Kosor v. Olympia Companies, LLC, 478 P.3d 390,

3 395 (Nev. 2020). And the statements in the article were truthful because they

accurately relayed the content of Ademiluyi’s legal complaint. 1

Moreira-Brown cannot bear his burden of showing a probability of success on

the claim: because the article accurately reported Ademiluyi’s allegations against

Moreira-Brown, he cannot show falsity, let alone make a prima facie showing of

defamation.

The district court properly granted Defendants’ anti-SLAPP motion and

dismissed Moreira-Brown’s complaint without discovery or granting leave to

amend. 2 See Nev. Rev. Stat. § 41.660. We therefore need not consider Moreira-

Brown’s claim regarding the fair reporting privilege.

2. Moreira-Brown argues that the district court erred by not considering

emails attached to a complaint in a separate case. He raises this argument for the

first time on appeal. Absent exceptional circumstances, we do not consider

arguments raised for the first time on appeal. See AMA Multimedia, LLC v. Walmart,

970 F.3d 1201, 1214 (9th Cir. 2020) (listing the exceptional circumstances). This is

1 Moreira-Brown also complains that the article “referred to false allegations against [him], although no criminal chargers [sic] had ever been filed against him by a Bronx County Grand Jury [which] had voted No True Bill in 1998.” Yet Defendants’ article makes clear that “a grand jury . . . declined to indict [Moreira- Brown].” 2 Moreira-Brown did not seek discovery under Nev. Rev. Stat. § 41.660(4) (“Upon a showing by a party that information necessary to meet or oppose the [plaintiff’s] burden . . . the court shall allow limited discovery for the purpose of ascertaining such information.”).

4 not an exceptional circumstance. We therefore decline to consider Moreira-Brown’s

forfeited argument.

The district court did not err by ordering Defendants to file a renewed motion

to dismiss. When we considered Moreira-Brown’s first appeal from his dismissal in

2017, we partially remanded the judgment “so the district court [could] consider

Patin in the first instance.” Moreira-Brown v. Las Vegas Rev. J. Inc., 754 F. App’x

655, 656 (9th Cir. 2019) (citing Patin, 429 P.3d at 1251-52). The district court

complied with our instruction and ordered Defendants “to file a renewed motion to

dismiss that addresses the impact, if any, of the Patin decision.” That was not error,

but compliance with our mandate.

AFFIRMED.