Does the Texas Citizens' Participation Act apply in federal court diversity jurisdiction cases under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)?

QUESTION PRESENTED In Shady Grove Orthopedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), this Court held that a valid Federal Rule of Civil Procedure governs over a state procedural rule if the two rules “answer the same question.” Id. at 399. The Court outlined a twopronged test: A federal rule governs when it (1) “answer[s] the same question” as the state law, and (2) it is not “ultra vires.” Id. This Court also made clear that rules on pleadings and summary judgment are “ostensibly addressed to procedure.” Id. at 404. This case involves the Texas Citizens’ Participation Act (““TCPA”). The TCPA, like Fed. R. Civ. P. 12 and 56, provides a “procedure for the expedited dismissal of [meritless] suits.” In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (emphasis added). Applying Shady Grove, the Fifth Circuit held that the TCPA answers the same questions as Fed. R. Civ. P. 12 and 56—i.e., “what are the circumstances under which a court must dismiss a case before trial?” The Fifth Circuit held that the TCPA is inapplicable in federal court. But in the decision below, the Ninth Circuit split with the Fifth Circuit, holding that the TCPA applies in federal court. Thus, the Second, Fifth, Tenth, Eleventh, and D.C. Circuits all hold that statutes like the TCPA are inapplicable, while the First and Ninth Circuits apply them. THE QUESTION PRESENTED Is: Does the TCPA apply in Federal Court diversity jurisdiction cases under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)? ii LIST OF PROCEEDINGS 1. Clifford v. Trump, 18-cv-03842-JMF (S.D.N.Y,). On April 30, 2018, plaintiff filed her complaint. But the parties jointly stipulated to a transfer to the C.D. California. 2. Clifford v. Trump, (C.D. Cal.). On October 15, 2018, the district court granted defendant’s motion to dismiss/strike the complaint based on the TCPA and Fed. R. Civ. P. 12(b)(6). 3. Clifford v. Trump, No. 18-56351 (9th Cir.). On July 31, 2020, the court of appeals affirmed. The Ninth Circuit denied en banc rehearing on September 10, 2020.