Full opinion text
MEMORANDUM OPINION ROBERT L. WILKINS, District Judge. Plaintiff 3M Company (“3M”) has sued Defendants Lanny J. Davis, Lanny J. Davis & Associates, PLLC, Davis-Block LLC (collectively the “Davis Defendants”), and Harvey Boulter, Porton Capital Technology Funds, Porton Capital, Inc. (collectively the “Porton Defendants”) for a number of claims, including commercial defamation, tortious interference with contract and prospective business relations, and civil conspiracy. See First Amended Complaint (“FAC”). Before the Court are the following sets of preliminary motions: 1) Defendants’ Special Motions to Dismiss under the D.C. Anti-SLAPP Act of 2010 (Dkt. Nos. 8, 55, 34 and 57); 2) 3M’s Motion to Strike Defendants’ Special Motions to Dismiss and Cross Motion for Discovery (Dkt. Nos. 16, 40); 3) the Davis Defendants’ Rule 12(b)(6) Motions to Dismiss (Dkt. Nos. 30, 52); and 4) the Porton Defendants’ Rule 12(b)(2) and 12(b)(6) Motions to Dismiss (Dkt. Nos. 31, 51). The District of Columbia (“District”) has intervened for the purpose of defending the validity of the D.C. AntiSLAPP Act and to defend the Act’s applicability in a federal court sitting in diversity. For the following reasons, Defendants’ Special Motions to Dismiss are denied, 3M’s Motion to Strike and Cross Motion for discovery are denied as moot, and Defendants’ Rule 12 Motions to Dismiss are granted in part and denied in part. FACTUAL SUMMARY 3M has brought claims against the Defendants for: Intimidation and Blackmail under United Kingdom (U.K.) law (Count I); Tortious Interference with Existing and Prospective Business Advantage (Count II); Tortious Interference with Contract (Count III); Commercial Defamation (Count IV); Injurious Falsehood and Business Disparagement (Count V); Breach of Fiduciary Duty (Count VI); Aiding and Abetting (Count VII); and Civil Conspiracy (Count VIII). 3M seeks compensatory and punitive damages from Defendants, as well as injunctive relief. 3M’s factual allegations have been set forth fully in the First Amended Complaint, and have been repeated numerous times at length in the parties’ briefs. Accordingly, the Court will not restate all the factual allegations here. The Underlying Dispute: the BacLite Litigation in London As part of its plan to expand into the global diagnostics market, 3M U.K. Holdings Limited (3M’s wholly-owned subsidiary) acquired all of the outstanding shares of Acolyte Biomedica Limited (“Acolyte”), a company whose only commercially-available product at the time was BacLite. (FAC ¶ 42). BacLite is a test that screens for MRSA (Methicillin Resistant Staphylococcus aureus bacteria), commonly known as a “superbug.” (FAC ¶ 42). Because superbugs such as MRSA are resistant to conventional antibiotics, they are of “special concern to medical professionals.” (FAC ¶ 42). Acolyte sold 3M on the potential that BacLite would fill a market void. (FAC ¶ 43). At the time, other screening tests for MRSA were either slower and cheaper ($2-3 per test with results in 48-72 hours) or much faster but more expensive (approximately $25 per test with results in 1-2 hours). (FAC ¶ 43). Acolyte represented to 3M that BacLite could produce results in 5 hours with a cost of $12-15 per test. (FAC ¶ 43). Acolyte also represented that BacLite was highly sensitive and accurate in clinical trials. (FAC ¶ 43). 3M entered into a Sales and Purchase Agreement (“SPA”) to purchase Acolyte. (FAC ¶ 45). Under the SPA, Acolyte’s selling shareholders (the “vendors”) had the opportunity to receive conditional earn-out payments on net sales of BacLite through December 2009. (FAC ¶ 45). The vendors of Acolyte included the U.K. Ministry of Defense (“MoD”), which had been involved in the development of BacLite, and Defendant Porton Technology, an investment fund directed by Defendant Harvey Boulter. (FAC ¶¶ 28-29). Boulter is also the Chief Executive Officer of Porton Capital, the investment manager of Boulter’s funds. (FAC ¶ 28). According to 3M, Boulter had “developed significant relationships” within the U.K. government through his businesses. (FAC ¶ 30). Although 3M actively marketed BacLite in many countries and began to seek regulatory approval for the product, it became apparent to 3M that BacLite performed much poorer in clinical trials than Acolyte had initially represented. (FAC ¶¶ 45-48). 3M ultimately determined that BacLite was not commercially viable for several reasons, including: 1) that BacLite was not “robust” because it was incapable of meeting its claimed performance in a real world environment; 2) that BacLite was overly complicated to use, thus increasing the chances for error in clinical environments; and 3) that the middle-market niche that 3M had hoped to fill with BacLite had “unexpectedly narrowed.” (FAC ¶ 49). Having determined that BacLite would not be commercially viable in the U.S., Canada or Australia, 3M sought the vendors’ consent (as required by the SPA) in July 2008 to stop marketing BacLite. (FAC ¶¶ 49-52). Under the SPA, the vendors could not unreasonably withhold such consent. (FAC ¶ 52). 3M offered the vendors $1.07 million, which was the amount that 3M had expected to receive from BacLite sales through December 2009. (FAC ¶ 52). The Boulter Defendants, however, were not satisfied and instead sought to “wring” tens of millions of dollars from 3M — an amount “much greater than that to which they were entitled.” (FAC ¶ 53). According to 3M, it was at approximately this time that Defendants began their “campaign of harassment and intimidation.” (FAC ¶ 53). 3M’s Allegations of Intimidation, Coercion and Defamation 3M alleges that the Porton Defendants first sought to threaten 3M’s CEO George Buckley (“Buckley”). (FAC ¶¶ 54-56). Boulter’s friend informed Buckley via email that he and Boulter had influence over several groups of 3M investors who owned material positions of 3M stock, that Boulter and his friend had informed the investors of 3M’s position regarding Acolyte, and that the investors were threatening to sell their entire positions. (FAC ¶ 54). Through these e-mails, Boulter “threatened 3M with a crippling sell-off of 3M’s stock, and commensurate damage to 3M’s value” if 3M did not accede to his demands. (FAC ¶ 57). 3M does not allege that it or Buckley capitulated to those demands or that those investors sold their positions. In December 2008, certain vendors, including the Porton Defendants, ultimately sued 3M in the U.K. High Court in London for breach of the SPA (the “BacLite Litigation”). (FAC ¶59). Although 3M does not specify this in its Complaint, the Court takes judicial notice of the fact that, besides the Porton Defendants, the other claimant in the BacLite Litigation was Ploughshare Innovations Limited, “an investment arm of the UK Ministry of Defence” and a subsequent shareholder in Acolyte. (Dkt. No. 28-1 at ¶ 8). Among other things, the claimants alleged that 3M breached the SPA because it failed to market BacLite actively and obtain regulatory approval in the United States. (FAC ¶ 59). Those claimants “repeatedly demanded” that 3M pay them nearly $66 million, the maximum potential amount of earn out payments under the SPA. (FAC ¶¶ 58-59). 3M alleges that, leading up to the U.K. trial in 2011, the Porton Defendants hired Washington, D.C. lawyer Lanny J. Davis and began a scheme to extract $30 million from 3M in two ways: 1) by launching “a comprehensive, international, and unrelenting bombardment of sensational and false accusations against 3M in the global media”; and 2) by attempting “to leverage access to the U.K. MoD.” (FAC ¶¶ 60-63). 3M claims that Davis became the “mastermind[ ][of] Defendants’ scheme against 3M” and was the “spider in the web” of Defendants’ alleged conspiracy. (FAC ¶¶ 17, 61-62). First, Davis began a “defamatory media blitz” against 3M. (FAC ¶¶ 64-65). That campaign focused on 3M’s decision to withdraw its efforts to market and obtain regulatory approval for BacLite. (FAC ¶¶ 66-79). Some of the alleged defamatory conduct included: • Publishing press releases which claimed that 3M had dropped BacLite out of “bad faith” and had dealt dishonestly with the FDA. (FAC ¶¶ 66, 74). • Filing a “sham’s citizen’s petition” which Davis submitted to the FDA on behalf of the Porton Defendants. (FAC ¶¶ 66, 78-79). In the petition, Defendants request that the FDA investigate 3M and hold an evidentiary hearing to determine, among other things, whether 3M intentionally botched the BacLite clinical trial in order to promote 3M’s own MRSA detection product. (IcL). • Making statements accusing 3M and Buckley of being responsible for the deaths of MRSA victims, including statements during an “international press conference” at which Davis claimed that “thousands and thousands and thousands of people who died [from MRSA] might be alive today had there been a BacLite.... ” (FAC ¶ 70). • Davis’ coordination of “fake public demonstrations” attended by “pretend protestors” purportedly affected by 3M’s decision not to market BacLite. (FAC ¶¶ 66, 76). • Davis’ creation of a web site called www.MRSAINJUSTICE.com, in which Defendants republished false and defamatory allegations against 3M. (FAC ¶ 77). 3M alleges that Davis made such statements intentionally, maliciously, and with knowledge that the statements were false when they were made. (FAC ¶¶ 70-71, 75). According to 3M, Defendants did not make such statements to call attention to any purported public health issue, but rather to advance their own commercial interests and to coerce 3M to pay the Porton Defendants millions of dollars. (FAC ¶¶ 71, 79). Defendants’ Alleged Extortionate Threats 3M claims that Defendants then sought to interfere with 3M’s existing business with the U.K. government, and did so by meeting with then-Minister of Defense Dr. Liam Fox. (FAC ¶¶ 80-83). In June 2011, 3M’s attorneys were engaged in settlement discussions with Davis regarding the BacLite Litigation. (FAC ¶ 84). Despite efforts to settle, 3M’s counsel terminated the settlement discussions with Davis on June 9, 2011 because the parties were too far apart. (FAC ¶ 84). On June 16, 2011, Boulter met privately with Fox in Dubai. (FAC ¶ 83). 3M claims that, although much of what occurred at the meeting is subject to debate, there is no dispute that Boulter and Fox discussed the BacLite Litigation.. (FAC ¶ 83). According to 3M, Defendants began to use that meeting to attempt to extort money from 3M. (FAC ¶ 93). 3M claims that: • On June 17, 2011, Davis placed an unsolicited phone call to 3M’s attorney and suggested that 3M speak directly with Boulter. Davis subsequently sent an email, on which Boulter was copied, granting 3M express authorization to speak directly with Boulter. (FAC ¶ 85). In that e-mail, Davis also acknowledged to Boulter that his meeting with Dr. Fox had “given [Boulter] even stronger reason not to come down very [sic] in $34m position.” (FAC ¶ 86). According to 3M, the purpose of Davis’ authorization was to allow Boulter to communicate “an illegal extortionate threat.” (FAC ¶ 86). • Later that day, Boulter called 3M’s attorney, informed him that he had met with Fox, and that Fox had told him that if 3M did not resolve the BacLite Litigation to his satisfaction, “there would be repercussions for 3M and Buckley.” (FAC ¶ 87). • On June 18, 2011, Boulter e-mailed 3M’s attorney and, among other things, stated that he had met with Dr. Fox regarding “our current favourite topic.” Boulter claimed that he had been given authority to settle the BacLite Litigation on behalf of the MoD, and again asked for $30mn. Boulter informed 3M’s counsel that, if 3M did not settle, that might leave the U.K. Government “quietly seething, with ramifications for a while.” Boulter also referred to the fact that David Cameron’s Cabinet would be shortly “discussing the rather embarrassing situation of [Buckley’s] knighthood,” and that the topic was “discussed today.” (FAC ¶¶ 89, 91). 3M alleges that these communications “constituted an overt attempt by the Defendants, acting in concert, to blackmail, extort and intimidate 3M____” (FAC ¶ 93). Those threats were meant to communicate the message that, if 3M did not settle the BacLite litigation, Defendants would interfere with 3M’s current and future business relationships with the U.K. Government and would interfere with Buckley’s “planned investiture as a Knight Bachelor.” (FAC ¶¶ 90-91, 93). 3M does not allege that it capitulated to these threats or that Buckley, ultimately, was not knighted by the Queen of England. Instead, 3M claims that it responded by filing suit and “exposing]” Defendants. (FAC ¶ 94). U.K. High Court’s Ruling in the BacLite Litigation On November 7, 2011, the U.K. High Court issued its judgment. The High Court found that 3M had breached the SPA, but that the claimants were entitled only to damages of approximately $1.3 million. (FAC ¶¶ 60, 105; Dkt. No. 28-1 at ¶ 158). That amount, according to the court, reflected the amount of the conditional earn out payments to which claimants would have been entitled. (FAC ¶¶ 60,105). 3M’s Damages 3M alleges that, on account of Defendants’ actions, 3M has suffered harm to its reputation and goodwill, and to its existing and prospective business relations with the U.K. Government. (FAC ¶¶ 110-15). 3M alleges that Defendants acted on their threats to interfere with 3M’s “longstanding relationships” with the MoD and the U.K. Government, and that, on account of such conduct, 3M’s total direct and indirect sales to the MoD have decreased by 25 percent from 2010 to 2011. (FAC ¶ 113). 3M alleges that over the same period, its direct and indirect sales to the U.K. government have decreased by 54 percent. (FAC ¶ 113). Moreover, 3M alleges that bids it has submitted to the U.K. government have “gone nowhere.” (FAC ¶ 114). PROCEDURAL HISTORY 3M filed its original Complaint on August 24, 2011, and its First Amended Complaint on December 9, 2011. After receiving the original Complaint, and without any discovery having taken place, Defendants filed special motions to dismiss 3M’s claims under Section 16-5502 of the D.C. Anti-SLAPP Act of 2010. See D.C.Code §§ 16-5501-5505. Defendants claim that their acts in this case were “acts in furtherance of the right of advocacy on issues of public interest,” and, thus, were protected under the Act. According to Defendants, because 3M cannot show a likelihood of success on the merits of its claims at this stage, the claims should be dismissed with prejudice, and Defendants awarded their costs and fees under the Act. 3M has filed a Motion to Strike Defendants’ special motions to dismiss, claiming that the Act is ultra vires and, in any event, does not apply in a federal court sitting in diversity. Defendants have also moved to dismiss the claims in the First Amended Complaint under Federal Rules of Civil Procedure 12(b)(2) and 12(b)(6). ANALYSIS I. THE D.C. ANTI-SLAPP ACT OF 2010 Defendants have filed their “special motions to dismiss” pursuant to the D.C. Anti-SLAPP (“strategic lawsuits against public participation”) statute, which became effective in the District of Columbia on March 31, 2011. The D.C. Council passed the legislation in response to what it recognized as a growing “litigation phenomenon”: “'Americans are being sued for speaking out politically. The targets are typically not extremists or experienced activists, but normal, middle-class and blue-collar Americans, many on their first venture into the world of government decision making.’ ” Council of the District of Columbia, Committee on Public Safety and the Judiciary Report, Bill 18-893, at 2 (Nov. 18, 2010) (hereinafter “Committee Report”) (quoting George W. Pring, SLAPPS: Strategic Lawsuits Against Public Participation, Pace Envtl. L.Rev. 3. 3 (1989)). In an effort to protect “the kind of grassroots activism that should be hailed in our democracy,” the Act purports to enable a defendant to “more expeditiously and more equitably” dispense of meritless suits. Committee Report at 1, 3. The Act allows a party to file a special motion to dismiss “any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.” D.C.Code § 16-5502(a). In order to invoke this protection, the moving party must “make[ ] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” § 16-5502(b). If the moving party makes that showing, the “motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits.” Id. The Act further requires that discovery be stayed until the motion is resolved. See § 16-5502(c)(l). If, however, it appears likely that the plaintiff will be able to defeat the special motion to dismiss with “targeted discovery,” the court may order discovery if it is not “unduly burdensome.” § 16-5502(c)(2). The Court may also “condition” any discovery on the plaintiff paying the defendant’s discovery expenses. Id. Finally, the Act mandates that if any court grants a special motion to dismiss, the court must do so with prejudice. § 16-5502(d). II. THE D.C. ANTI-SLAPP ACT’S APPLICABILITY IN A FEDERAL COURT SITTING IN DIVERSITY 3M argues that, under the Erie doctrine, the cabined discovery provisions of Section 16-5502(c) directly conflict with Federal Rules of Civil Procedure 26 and 56 and, thus, do not apply in federal court. 3M contends that, if this Court finds that the Anti-SLAPP Act is applicable here, 3M is at the very least entitled to the same amount of discovery it would otherwise be granted under Rule 56(d). After close consideration of this issue, the Court finds that the special motion to dismiss procedure of Section 16-5502, and not merely its discovery provisions, poses serious concerns under Hanna v. Plumer, 380 U.S. 460, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965) and its progeny. a. Relevant Standards The D.C. Anti-SLAPP Act mandates that a court resolve a “special motion to dismiss” in a different manner than it would otherwise resolve a preliminary motion attacking the merits of a case under Rules 12 or 56. This Court now considers whether those rules preclude a federal court sitting in diversity from applying the D.C. Anti-SLAPP Act. This is an issue of first impression in this Circuit. This case presents the question of whether a Federal Rule of Civil Procedure applies in the face of a conflicting state law. As the Supreme Court recently recognized, the framework for deciding this question is “familiar.” Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., — U.S. -, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010). The Court must “first determine whether [the federal rule] answers the question in dispute.” Id. (citing Burlington N. R.R. Co. v. Woods, 480 U.S. 1, 4-5, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987)). “This question involves a straightforward exercise in statutory interpretation to determine if the statute covers the point in dispute.” Stewart Org., Inc. v. Ricoh Corp., 487 U.S. 22, 26, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988) (citing Burlington Northern and Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980)). If the federal rule answers or covers the question in dispute, the federal rule governs unless it is invalid. Shady Grove, 130 S.Ct. at 1437; Stewart, 487 U.S. at 27, 108 S.Ct. 2239. The Court does not “wade into Erie’s murky waters unless the federal rule is inapplicable or invalid.” Shady Grove, 130 S.Ct. at 1437 (citing Hanna v. Plumer, 380 U.S. 460, 469-71, 85 5. Ct. 1136, 14 L.Ed.2d 8 (1965)). b. The Supreme Court’s Opinion in Shady Grove The Supreme Court recently applied this test in considering whether a New York law governing class actions precluded a federal court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. The state law in Shady Grove prohibited class actions in suits seeking penalties or statutory minimum damages. Shady Grove, 130 S.Ct. at 1436 n. 1. Rule 23, of course, has no such prohibition. The plaintiffs in Shady Grove, who had brought suit in federal district court, wished to maintain a class action to recover unpaid statutory interest from an insurance company. Id. at 1436-37. As such, the case would not have been able to proceed as a class action in New York state court but would have been able to proceed as a class action in federal court under Rule 23. Both the district court and the United States Court of Appeals for the Second Circuit held that the state law applied in federal diversity actions. The Second Circuit found no conflict between the two rules because it concluded that Rule 23 and the New York state rule “address[ed] different issues.” Id. at 1437. Finding no federal rule on point, the Second Circuit held that the New York state rule was “substantive” within the meaning of the Erie doctrine and accordingly must be applied in federal diversity actions. Id. The Supreme Court disagreed and reversed. Justice Scalia delivered the opinion of the Court as to the first step of the analysis, that is, whether Rule 23 “answers the question in dispute.” M The question in dispute, as the majority saw it, was “whether Shady Grove’s suit may proceed as a class action.” Id. As the Court held, Rule 23 provided an answer to that question. The Court first looked at the text and scope of Rule 23, which states that a class action “may be maintained” as long as certain prerequisites are met. The Court found that Rule 23 by its terms created a categorical rule “entitling a plaintiff whose suit meets the specified criteria to pursue his claim as a class action.” Id. at 1437. Finding that Rule 23 provided a “one-size-fits-all formula” for deciding whether a class action could be maintained, the Court held that Rule 23 would apply in diversity actions because the New York statute “undeniably” “attempt[ed] to answer the same question.” Id. at 1437-39. The Court rejected appellee’s argument that Rule 23 did not control because the federal rule neither implicitly nor explicitly empowered a federal court to “certify a class in each and every case.” Id. at 1438. In fact, the Court held, that is exactly what the Rule did. Id. As the Court stated, “Rule 23 unambiguously -authorizes any plaintiff, in any federal civil proceeding, to maintain a class action if the Rule’s prerequisites are met.” Id. at 1442. The Supreme Court’s decision in Shady Grove, among others, provides clear guidance on how to analyze purported conflicts between the Federal Rules of Civil Procedure and state laws. The Court first looks at whether the federal rule, fairly construed, answers or covers the question in dispute. See Shady Grove, 130 S.Ct. at 1437; Burlington Northern, 480 U.S. at 4-5, 107 S.Ct. 967; Walker, 446 U.S. at 747-48, 100 S.Ct. 1978. The Supreme Court instructs that the federal rule is not to be “narrowly construed in order to avoid a ‘direct collision’ with state law,” but that the federal rule is to be given its plain meaning. Walker, 446 U.S. at 748-50 & n. 9, 100 S.Ct. 1978; see also Shady Grove, 130 S.Ct. at 1442 (when construing federal rule, “[w]e cannot contort its text, even to avert a collision with state law....”); 19 Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure § 4508, 251 (2d ed.1996) (hereinafter “Wright & Miller”) (stating that Supreme Court has rejected any suggestion that the Federal Rules of Civil Procedure should be “construed narrowly or distorted in order to avoid what otherwise would be a direct collision with state law.”). c. Federal Rules of Civil Procedure 12 and 56 With the framework the Supreme Court has mandated, this Court turns to whether Federal Rules of Civil Procedure 12 and 56 answer the question in dispute in this case. The question in dispute is whether this Court may dismiss 3M’s claims with prejudice on a preliminary basis based on the pleadings or on matters outside the pleadings merely because 3M has not “demonstrate[d] that the claim is likely to succeed on the merits.” D.C.Code § 16-5502. The Court finds that Rules 12 and 56 answer the question in dispute. Federal Rule of Civil Procedure 12(d) provides as follows: (d) Result of Presenting Matters Outside the Pleadings. If, on a motion under Rule 12(b)(6) or 12(c), matters outside the pleadings are presented to and not excluded by the. court, the motion must be treated as one for summary judgment under Rule 56. All parties must be given a reasonable opportunity to present all the material that is pertinent to the motion. The language that currently appears in Rule 12(d) was added by amendment in 1946. The Advisory Committee Notes from 1946 indicate that the purpose of this language was to set forth the rules governing a motion seeking adjudication on the merits based upon matters outside of the pleadings. In such a case, the Advisory Committee explained that the court must use the summary judgment standard set forth in Rule 56. The Advisory Committee explained that Rule 56 does not permit a district court to dispose of a motion seeking judgment based on a factual showing of the merits if there is a genuine dispute of material fact. See 5C Wright & Miller § 1366 at 145-46 (3d ed.2004) (“The [Advisory Committee Note] makes it clear that the last sentence of Rule 12(b) is not intended to permit the resolution of disputes on the basis of affidavits and other pretrial data when there is a material issue of fact that justifies a trial on the merits.”). This amendment to Rule 12 was borne out of significant confusion and debate in the early years of the Federal Rules of Civil Procedure regarding whether Rule 12(b)(6) recognized “speaking demurrers” or “speaking motions,” motions attacking the merits of a pleader’s claim by relying on matters outside the pleadings, such as affidavits or other factual material. See, e.g., 5C Wright & Miller § 1364 at 128-32 (3d ed.2004); H. Church Ford, J., Federal Rules of Civil Procedure Pleadings, Motions, Parties and Pre-Trial Procedure, 1 F.R.D. 315, 319-21 (1940) (describing the contrasting views of Advisory Committee members Judge Clark and Judge Don-worth and the conflicting decisions of various courts, Judge Ford concluded that “[i]t seems obvious that no uniformity of practice in this respect can be hoped for until this feature of the rules is interpreted by the Circuit Courts and in all probability not until decided by the Supreme Court.”). Such motions were called “speaking motions” because of their reference to affidavits or other materials that are testimonial in nature. See Gallup v. Caldwell, 120 F.2d 90, 92-93 (3d Cir.1941) (in determining whether the court could review matters outside the pleadings on a motion to dismiss, court observes that “[t]he problem ... [of] whether the Federal Rules of Civil Procedure countenance a ‘speaking’ motion to dismiss, has been much discussed since the adoption of the Rules.”); see also George C. Roeming, Editorial Note, Speaking Motions Under New Federal Rule 12(b)(6), 9 Geo. Wash. L.Rev. 174 (1940) (extensive discussion of the differing views surrounding such “speaking motions”); James A. Pike, Some Current Trends in the Construction of the Federal Rules, 9 Geo. Wash. L.Rev. 26, 34-37 (1940) (same, also referring to such motions as the “speaking demurrer”); Stanley E. Sparrowe, Pleading: Availability of a “Speaking Motion” under Federal Rule 12(b)(6), 30 Cal. L.Rev. 92 (1941); Commentary, The Speaking Motion, 6 Fed. Rules Serv. 741 (1943). A prevailing view emerged. Most courts to consider the issue held that matters outside the pleadings could be considered on a Rule 12 motion to dismiss, but that such a “speaking motion” should be governed by the summary judgment standards of Rule 56. For example, in Gallup, the United States Court of Appeals for the Third Circuit held that a motion to dismiss could raise matters outside of the pleadings (in that case, affidavits). The Third Circuit cautioned, however, that: [i]n so holding, we do not indicate that disputed questions of fact involved in the merits of claim or defense may necessarily be fought out as preliminary issues raised upon motions. The affidavits filed by the parties here raised no fact controversy, but a question of law. No problem arising out of a possible claim to jury trial is involved. Gallup, 120 F.2d at 93. Thus, the purpose of the language added by the 1946 Amendment “was to resolve the split of authority concerning ‘speaking motions’ by providing a definite basis in the federal rules for the treatment of Rule 12(b)(6) motions supported by matter extraneous to the pleading.” 5C Wright & Miller § 1364 at 132 (emphasis added). In the early years under the rules, many courts “freely analogized” speaking motions under Rule 12(b)(6) to motions for summary judgment, and the 1946 amendments confirmed the “strong relationship between the two procedures.” Id. at 129-30; see also id. at § 1366 at 148. Accordingly, the Advisory Committee Notes to the 1946 Amendment clearly explain that Rule 12(d) links Rule 12 with Rule 56 to provide the exclusive means for federal courts to use to rule upon a pretrial motion to adjudicate a case on the merits based on matters outside the complaint, whether the motion is labeled a “motion to dismiss,” a “motion for judgment on the pleadings,” a “motion for summary judgment,” a “speaking motion,” or anything else: Rule 12(b)(6), permitting a motion to dismiss for failure of the complaint to state a claim on which relief can be granted, is substantially the same as the old demurrer for failure of a pleading to state a cause of action. Some courts have held that as the rule by its terms refers to statements in the complaint, extraneous matter on affidavits, depositions or otherwise, may not be introduced in support of the motion, or to resist it. On the other hand, in many cases the district courts have permitted the introduction of such material. When these cases have reached circuit courts of appeals in situations where the extraneous material so received shows that there is no genuine issue as to any material question of fact and that on the undisputed facts as disclosed by the affidavits or depositions, one party or the other is entitled to judgment as a matter of law, the circuit courts, properly enough, have been reluctant to dispose of the case merely on the face of the pleading, and in the interest of prompt disposition of the action have made a final disposition of it. In dealing with such situations the Second Circuit has made the sound suggestion that whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such. [Citations omitted.] It has also been suggested that this practice could be justified on the ground that the federal rules permit “speaking” motions. The Committee entertains the view that on motion under Rule 12(b)(6) to dismiss for failure of the complaint to state a good claim, the trial court should have authority to permit the introduction of extraneous matter, such as may be offered on a motion for summary judgment, and if it does not exclude such matter the motion should then be treated as a motion for summary judgment and disposed of in the manner and on the conditions stated in Rule 56 relating to summary judgments, and, of course, in such a situation, when the case reaches the circuit court of appeals, that court should treat the motion in the same way. The Committee believes that such practice, however, should be tied to the summary judgment rule. The term “speaking motion” is not mentioned in the rules, and if there is such a thing its limitations are undefined. Where extraneous matter is received, by tying further proceedings to the summary judgment rule the courts have a definite basis in the rules for disposing of the motion. The Committee emphasizes particularly the fact that the summary judgment rule does not permit a case to be disposed of by judgment on the merits on affidavits, which disclose a conflict on a material issue of fact, and unless this practice is tied to the summary judgment rule, the extent to which a court, on the introduction of such extraneous matter, may resolve questions of fact on conflicting proof would be left uncertain. The addition at the end of subdivision (b) makes it clear that on a motion under Rule 12(b)(6) extraneous material may not be considered if the court excludes it, but that if the court does not exclude such material the motion shall be treated as a motion for summary judgment and disposed of as provided in Rule 56. It will also be observed that if a motion under Rule 12(b)(6) is thus converted into a summary judgment motion, the amendment insures that both parties shall be given a reasonable opportunity to submit affidavits and extraneous proofs to avoid taking a party by surprise through the conversion of the motion into a motion for summary judgment. In this manner and to this extent the amendment regularizes the practice above described. As the courts are already dealing with cases in this way, the effect of this amendment is really only to define the practice carefully and apply the requirements of the summary judgment rule in the disposition of the motion. Fed.R.Civ.P. 12 advisory committee’s note on 1946 Amendment (emphasis added). In addition to the text of the rules and the Advisory Committee Notes, the transcript of the Advisory Committee meeting adopting the 1946 Amendments clearly demonstrates the intent to have all motions to dismiss attacking the merits of the claim governed by the summary judgment standard if matters outside of the pleadings were considered by the court. See Proceedings of the Advisory Committee on Rules for Civil Procedure, Yol. 1, pp. 99-159 (Mar. 25, 1946), available at http:// www.uscourts.gov/uscourts/RulesAnd Policies/rules/Minutes/CV03-1946-min-Vol l.pdf; id. at 153 (statement by Advisory Committee Chairman William D. Mitchell, mandatory language was inserted in the amendment “because we don’t want a judge deciding a case on affidavits other than in Rule 56.”). In support of this explanation of the Rule, the Advisory Committee cited approvingly several circuit court opinions that had reversed dismissals on the merits based on consideration of matters outside of the pleadings where the district court did not follow the summary judgment standard. In several of those cases, defendants had sought dismissal not merely because the complaint failed a state a claim as a matter of law, but also based on the contention that the facts did not support the allegations in complaint. In one such case cited by the Advisory Committee, the court explained: Counsel for defendant and the court below apparently misconceived the purpose and effect of defendant’s motion to dismiss the amended complaint. They were seemingly concerned with the question whether the plaintiff had a meritorious claim upon which she was entitled ultimately to prevail, rather than with the sole question presented, which was whether the amended complaint, construed in the light most favorable to the plaintiff and with all doubts resolved in favor of its sufficiency, stated a claim upon which relief could be granted. In view of the means which the Rules of Civil Procedure afford a defendant to obtain a speedy disposition of a claim which is without foundation or substance, by either securing a more definite statement or a bill of particulars under Rule 12(e) and thereafter applying for judgment on the pleadings under Rule 12(h)(1), or by moving for a summary judgment under Rule 56, we think there is no justification for dismissing a complaint for insufficiency of statement, except where it appears to a certainty that the plaintiff would be entitled to no relief under any state of facts which could be proved in support of the claim. Leimer v. State Mut. Life Assurance Co., 108 F.2d 302, 304-06 (8th Cir.1940). Recently, the Supreme Court explained Leimer as standing for “the unobjectionable proposition that, when a complaint adequately states a claim, it may not be dismissed based on a district court’s assessment that the plaintiff will fail to find evidentiary support for his allegations or prove his claim to the satisfaction of the factfinder.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (discussing Rule 12(b)(6)) (emphasis added). Thus, the Supreme Court has recently affirmed the intent and purpose of Rule 12(d) as expressed by the Advisory Committee back in 1946 — that the federal rules do not permit a district court to dismiss a complaint that is sufficiently pled with detailed and plausible factual allegations based upon the court’s own assessment of the weight of disputed evidence or its finding that the claim is not likely to succeed on the merits. As Judge Charles E. Clark, the Reporter of the Advisory Committee that formulated the original rules, emphasized, the assessment of the factual merits of the complaint is for the factfinder, unless the defendant can prevail on a motion for summary judgment governed by the standards set forth in Rule 56. See Charles E. Clark, The Handmaid of Justice, 23 Wash. Univ. L.Q. 297, 319 (1938) (stating that the remedy of summary judgment is “very far from universal in its applicability. In fact in the case of a real dispute, there is no substitute anywhere for a trial. To attempt to make the pleadings serve as such substitute is in very truth to make technical forms the mistress and not the handmaid of justice.”); see also Farrall v. D.C. Amateur Athletic Union, 153 F.2d 647, 648 (D.C.Cir.1946) (“There is a great difference between discovering whether there be an issue of fact and deciding such an issue.”). d. The Law of This Circuit The United States Court of Appeals for the District of Columbia Circuit agrees that Federal Rules 12 and 56 are properly construed to require'that a speaking motion to dismiss must be treated as a motion for summary judgment. Even before the 1946 Amendments, this Circuit held that “affidavits were pertinent” to a motion to dismiss, such that a complaint that “stated a sufficient claim” could nonetheless be dismissed, but only where “the uncontradicted affidavits of the defendants [showed] that there was no genuine issue as to any material fact....” Nat’l War Labor Bd. v. Montgomery Ward & Co., 144 F.2d 528, 531 & n. 10 (D.C.Cir.1944) (citing Gallup, 120 F.2d at 90), cert. denied, 323 U.S. 774, 65 S.Ct. 134, 89 L.Ed. 619 (1944). Indeed, our Circuit has held that “[a]n affidavit filed in support of a motion to dismiss has no greater purpose or effect ” under Rule 12 than an affidavit filed in support of a motion for summary judgment pursuant to Rule 56. Farrall, 153 F.2d at 648 (citing National War Labor Board) (emphasis added). Thus, even prior to the 1946 Amendments to Rule 12, it was reversible error in this Circuit to grant a motion to dismiss supported by affidavits if, notwithstanding the affidavits, there were genuine issues of fact that would preclude summary judgment under the standard set forth in Rule 56. Farrall, 153 F.2d at 650 (reversing grant of motion to dismiss due to disputed issues of material fact). Our Circuit Court of Appeals has made clear that the 1946 amendments to Rule 12 affirmed and continued the practice in which motions to dismiss seeking consideration of matters outside the pleadings are treated as motions for summary judgment: Normally, Rule 12(b) requires that where ‘matters outside the pleading are presented to and not excluded by the court, the motion (to dismiss for failure to state a cause of action) shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to (a summary judgment) motion by Rule 56.’ Rule 12(b), Fed. R. Civ. P.... Before the adoption of the quoted provision of Rule 12(b) in 1948, material extrinsic to the pleadings was often considered on motions to dismiss, by both trial and appellate courts. E.g., Farrall v. District of Columbia A.A.U., 80 U.S.App.D.C. 396, 153 F.2d 647; National War Labor Board v. Montgomery Ward & Co., 79 U.S.App.D.C. 200, 203, 144 F.2d 528, 531, certiorari denied 323 U.S. 774, 65 S.Ct. 134, 89 L.Ed. 619; Boro Hall Corp. v. General Motors Corp., 2 Cir., 124 F.2d 822; and see Advisory Committee’s Note to 1948 amendment to Rule 12(b). This practice has continued since the 1948 amendment. Callaway v. Hamilton Nat. Bank of Wash., 195 F.2d 556, 558-59 & n. 2 (D.C.Cir.1952) (emphasis added). Thus, Callaway construed the 1946 amendments to Rule 12 as codifying the Circuit’s prior practice, as set forth in Farrall and National War Labor Board, of requiring that “speaking motions” be treated as motions for summary judgment. Id. Callaway reversed a trial court order granting a speaking motion to dismiss due to disputed issues of material fact. Id. at 563. This Court is bound by that construction of Rule 12. Indeed, even if our Circuit had been silent on this issue, this Court would deem such a construction of the meaning and intent of the 1946 amendments to Rule 12 to be unassailable. e. The “Special Motions to Dismiss” Procedure Under the D.C. AntiSLAPP Act Attempts to Answer the Same Question as Rules 12 and 56 Having now interpreted the meaning and scope of Rules 12 and 56, the applicable federal rules, the question before the Court, as articulated in Part II-A of Shady Grove, Burlington Northern and Walker, among other cases, is whether Section 16-5502’s special motion to dismiss procedure conflicts with, answers the same question as, or directly collides with Federal Rules 12 or 56. The special motion to dismiss procedure under the D.C. Anti-SLAPP statute provides: (a) A party may file a special motion to dismiss any claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim. (b) If a party filing a special motion to dismiss under this section makes a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest, then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits, in which case the motion shall be denied. (c) (1) Except as provided in paragraph (2) of this subsection, upon the filing of a special motion to dismiss, discovery proceedings on the claim shall be stayed until the motion has been disposed of. (2) When it appears likely that targeted discovery will enable the plaintiff to defeat the motion and that the discovery will not be unduly burdensome, the court may order that specialized discovery be conducted. Such an order may be conditioned upon the plaintiff paying any expenses incurred by the defendant in responding to such discovery. (d) The court shall hold an expedited hearing on the special motion to dismiss, and issue a ruling as soon as practicable after the hearing. If the special motion to dismiss is granted, dismissal shall be with prejudice. D.C.Code § 16-5502. Simply put, the Act allows a defendant on a preliminary basis to deal a deathly blow to a plaintiffs claim on the merits based either on the pleadings or on matters outside the pleadings. There is no question that the special motion to dismiss under the Anti-SLAPP Act operates greatly to a defendant’s benefit by altering the procedure otherwise set forth in Rules 12 and 56 for determining a challenge to the merits of a plaintiffs claim and by setting a higher standard upon the plaintiff to avoid dismissal. Indeed, that is the precise reason that the District enacted the statute and why Defendants so vigorously seek its protections. Upon careful examination of the Act’s special motion to dismiss procedure, this Court holds that it squarely attempts to answer the same question that Rules 12 and 56 cover and, therefore, cannot be applied in a federal court sitting in diversity. When considering a special motion to dismiss, Sections 16-5502(b) and 16-5502(d) require the court to grant the motion and dismiss the claim with prejudice if the defendant makes a “prima facie showing” that the claim he is seeking to dismiss “arises from an act in furtherance of the right of advocacy on issues of public interest” and the plaintiff fails to “demonstrate[ ] that the claim is likely to succeed on the merits.” The District and Defendants do not dispute that, under this standard, a court must grant the special motion to dismiss even where matters outside the pleadings are considered, and even where the plaintiff has or can raise a genuine issue of material fact on its claim. Indeed, the District expressly acknowledges that the Act places a “heightened burden of proof’ on a plaintiff. (Dkt. No. 32 at 32). Likewise, the Porton Defendants argue that the Act requires this Court to evaluate whether 3M is likely to succeed on the merits of its claims and not solely whether those claims are frivolous. (Dkt. No. 56 at 6). During the hearing, the Davis Defendants likened 3M’s burden to that of a movant seeking a preliminary injunction under Fed.R.Civ.P. 65. Moreover, at the hearing, the District conceded that the D.C. statute creates a different standard than Rule 12 or 56, arguing: “The question is did the complaint show that the plaintiff is more likely than not to succeed on the merits. Neither [Rules] 12 [n]or 56 addressed that question....” Although the District contends that the state law and the federal rules can exist “side by side” [Dkt. No. 32 at 25-26], the Court does not see how this is so, particularly in a case such as this one where the parties have introduced hundreds of pages of material outside the pleadings and Defendants ask this Court to evaluate whether 3M’s claims are likely to succeed on the merits based partly on matters in those materials. If a plaintiff is obligated to demonstrate a likelihood of success on the merits under Section 16-5502 (most likely with little to no discovery), this places a higher procedural burden on plaintiff than is required to survive a motion for summary judgment under Rule 56. As such, Section 16-5502(b) restricts “the procedural right to maintain [an action]” established by the federal rules and squarely conflicts with Rule 12(d) and Rule 56 as construed above. Shady Grove, 130 S.Ct. at 1439 n. 4. Defendants argue that Rules 12 and 56 are not exclusive because there are a number of miscellaneous motions that are allowed under this Court’s local rules and Fed.R.Civ.P. 7(b)(1). (Dkt. No. 33 at 17-19). Defendants’ argument is unpersuasive. Defendants cannot cite any examples under Rule 7 or the local rules that even resemble a challenge to the sufficiency or merits of a plaintiff’s claim prior to trial. Id. at 18-19 (citing examples such as motion for leave to file surreply, motion to correct docket sheet, and motion for reconsideration). The history and practice culminating in the 1946 Amendments clearly demonstrates that the framers intended that Rules 12 and 56 provide the exclusive means for challenging the merits of a plaintiffs claim based on a defense either on the face of the pleadings or on matters outside the pleadings. Moreover, like the rest of the Federal Rules of Civil Procedure, Rules 12 and 56 automatically apply in “ ‘all civil actions and proceedings in the United States district courts.’ ” Shady Grove, 130 S.Ct. at 1438 (quoting Federal Rule of Civil Procedure 1). To the extent that Defendants and the District place any significance on the fact that the label “special motion to dismiss” is nowhere in the federal rules and, as such, a motion so labeled does not explicitly conflict with Rules 12 and 56, the Court rejects this argument. As explained in Section 11(c) of this Memorandum Opinion, the fact that the motion is labeled a “special motion to dismiss” under Section 16-5502 is immaterial, as the actual operation and effect of the motion, rather than its label, is what really matters. There is no question that Rule 12(d) is broad and covers any situation that falls under its purview, no matter the label applied to the motion: Although the conversion provision in Rule 12(b) expressly applies only to the defense described in Rule 12(b)(6), it is not necessary that the moving party actually label the motion as one under that provision in order for it to be converted into a motion for summary judgment. The element that triggers the conversion is a challenge to the sufficiency of the pleader’s claim supported by extra-pleading material. As many cases recognize, it is not relevant how the defense actually is denominated in the motion. 5C Wright & Miller § 1366 at 148 (emphasis added). Moreover, this Circuit made clear in Callaway when it reviewed and reversed the district court’s grant of a motion to dismiss based on material extrinsic to the complaint that raised a dispute of fact, that the “label attached to this proceeding at this stage” did not matter, while holding that the standards of Rules 12 and 56 governed. Callaway, 195 F.2d at 559. Indeed, when explaining the 1946 Amendments to Rule 12, the Advisory-Committee observed, “whatever its label or original basis, the motion may be treated as a motion for summary judgment and disposed of as such.” Fed.R.Civ.P. 12 advisory committee’s note on 1946 Amendment (emphasis added). In sum, the label attached to a motion to dismiss by the Act has no impact on the analysis of the proper construction of Rules 12 and 56. Finally, Defendants argue that “a number of federal statutes permit a party to file a motion that is not mentioned or authorized by the Federal Rules,” and therefore Rules 12 and 56 were not meant to be exclusive. (Dkt. No. 33 at 19-20). Defendants’ argument is unpersuasive. Rejecting an identical argument in Shady Chvve, the majority opinion pointed out that “Congress, unlike [a state or local government], has ultimate authority over the Federal Rules of Civil Procedure; it can create exceptions to an individual rule as it sees fit....” Shady Grove, 130 S.Ct. at 1438. f. The Special Motions to Dismiss Procedure Strips a Federal Court of Discretion Otherwise Granted in the Federal Rules of Civil Procedure Another reason that the D.C. AntiSLAPP Act cannot apply here is that it wholly strips a federal court of the discretion it otherwise has to determine whether a claim will be dismissed with or without prejudice. Section 16-5502(d) mandates that a dismissal under the Act must be a dismissal with prejudice, no matter the substance of a defendant’s special motion to dismiss. Thus, whether the defendant’s challenge under the Anti-SLAPP Act is akin to a Rule 12(b)(2) motion for lack of personal jurisdiction, a Rule 12(b)(6) motion for failure to state a claim, a Rule 12(d) converted motion for summary judgment, or a speaking motion seeking dismissal due to weaknesses in the plaintiffs evidence, the dismissal must be with prejudice. This is a direct conflict with the Federal Rules, which do not mandate dismissal with prejudice in every circumstance, and which in fact vest a district court with discretion to determine whether a dismissal under Rule 12(b) would operate as an adjudication on the merits. See Fed.R.Civ.P. 41(b) (“Unless the dismissal order states otherwise, a dismissal under this subsection (b) and any dismissal not under this rule — except one for lack of jurisdiction, improper venue, or failure to join a party under Rule 19 — operates as an adjudication on the merits.”) (emphasis added); see also Best v. Kelly, 39 F.3d 328, 331 (D.C.Cir.1994) (citing Rule 41(b) as support for its statement that Rule 12(b)(6) dismissals operate as adjudications on the merits, “unless the court specifically states otherwise.”); 9 Wright & Miller § 2373 at 760-61 (3d ed.2008) (stating that dismissals under Rule 12(b)(6) come “within the literal language of the last sentence of Rule 41(b)”). Moreover, despite the fact that Rule 41(b) may create a “default” that dismissals under Rule 41(b) would operate as an adjudication on the merits, there is no question from the text of the rule that the district court has discretion to “state otherwise.” See 9 Wright & Miller § 2373 at 749-51 (“Rule 41(b) expressly provides that the district court may specify that a dismissal is without prejudice ... Indeed, one of the most useful features of Rule 41 is that it gives the court discretion about the effect of a dismissal and provides what the effect will be if the court fails to specify.”). Under the Anti-SLAPP Act, however, the federal court’s hands are tied. The Supreme Court’s unanimous opinion in Burlington Northern R.R. Co. v. Woods, 480 U.S. 1, 107 S.Ct. 967, 94 L.Ed.2d 1 (1987), on which the majority opinion in Shady Grove relies, is controlling here. In Burlington Northern, the Court considered whether, in diversity actions, a federal court must apply an Alabama state statute that imposed a fixed penalty on appellants who obtained stays of judgment pending unsuccessful appeals. The Alabama statute provided for mandatory damages in the amount of 10 percent of the trial court judgment anytime an appellant had sought a stay of a monetary judgment pending appeal and the judgment was affirmed on appeal without substantial modification. Id. at 3^1, 107 S.Ct. 967. The purpose of the Alabama “mandatory affirmance penalty,” quite analogous to the purpose of the D.C. AntiSLAPP Act, was to penalize frivolous appeals and appeals interposed for delay and to provide “additional damages” to appellees “for having to suffer the ordeal of defending the judgments on appeal.” Id. at 4, 107 S.Ct. 967. The Supreme Court held that the Alabama state statute could not apply in a federal diversity case because it conflicted with Federal Rule of Appellate Procedure 38. Rule 38 provides that a court of appeals “may” award damages and costs to an appellee where it determines that an appeal is frivolous. Id. Relying on the Advisory Committee’s Note to Rule 38, the Supreme Court held that Rule 38 vested the court with discretion “ ‘in the case of a frivolous appeal as a matter of justice to the appellee and as a penalty against the appellant.’ ” Id. (quoting Advisory Committee’s Note on Fed. R.App. Proc. 38). Comparing Rule 38 to the Alabama state rule, the Supreme Court held that: [Rule 38’s] discretionary mode of operation unmistakably conflicts with the mandatory provision of Alabama’s affirmance penalty statute. Moreover, the purposes underlying the Rule are sufficiently coextensive with the asserted purposes of the Alabama statute to indicate that the Rule occupies the statute’s field of operation so as to preclude its application in federal diversity actions. Id. at 7, 107 S.Ct. 967. Significantly, the Court rejected an argument similar to one made by the District in this case: that because Alabama had a state appellate rule similar to Federal Rule 38 which maybe applied in state court alongside the mandatory affirmance penalty statute, the federal court sitting in diversity could likewise “impose the mandatory penalty and likewise remain free to exercise its discretionary authority under Federal Rule 38.” Id. at 7-8, 107 S.Ct. 967. The Court rejected that argument because it: ignores the significant possibility that a court of appeals may, in any given case, find a limited justification for imposing penalties in an amount less than 10% of the lower court’s judgment. Federal Rule 38 adopts a case-by-case approach to identifying and deterring frivolous appeals; the Alabama statute precludes any exercise of discretion within its scope of operation. Whatever circumscriptive effect the mandatory affirmance penalty statute may have on the state court’s exercise of discretion under Alabama’s Rule 38, that Rule provides no authority for defining the scope of discretion allowed under Federal Rule 38. Id. at 7-8,107 S.Ct. 967. Thus, the Supreme Court in Burlington Northern explained that the Alabama rule conflicted with the federal rule even though the federal court might at times find grounds to impose the same penalties specified in the Alabama statute. The direct conflict was borne out of the fact that the state law deprives the federal court of discretion on a categorical basis. For this precise reason, the D.C. Anti-SLAPP statute conflicts with Federal Rules 12 and 56. Even though a special motion to dismiss under Section 16-5502 might sometimes raise arguments that are identical to a Rule 12(b)(2) motion to dismiss for lack of personal jurisdiction, a Rule 12(b)(6) motion to dismiss for failure to state a claim, or a Rule 12(d)/56 motion for summary judgment, the statute ultimately mandates dismissal with prejudice if the plaintiff fails to demonstrate a likelihood of success on the merits, even where a plaintiff has raised a genuine issue of material fact and even where dismissal without prejudice is appropriate. Just as in Burlington Northern, the Anti-SLAPP Act in this way “precludes any exercise of discretion within its scope of operation.” Id. at 7-8, 107 S.Ct. 967. Not surprisingly, neither Defendants nor the District cited Burlington Northern in their voluminous briefing. Pursuant to the unanimous opinions in Burlington Northern and Walker, as well as the majority opinion in part II-A of Shady Grove and other Supreme Court cases, the first obligation of the Court is to construe the applicable federal rule according to its plain meaning and the relevant explanations provided in the Advisory Committee Notes. This Court holds that the text and structure of Rules 12 and 56 were intended to create a system of federal civil procedure requiring notice pleading by plaintiffs, whereby a federal court may dismiss a case when the plaintiff fails to plead sufficiently detailed and plausible facts to state a valid claim, but a federal court may not dismiss a case without a trial based upon its view of the merits of the case after considering matters outside of the pleadings, except in those instances where summary judgment under Rule 56 is appropriate. These are bedrock principles of the Federal Rules of Civil Procedure. These principles were expressly articulated by this Circuit in National War Labor Board and Farrall, by the 1946 amendments that added what is now Rule 12(d), by the contemporaneous Advisory Committee Notes explaining the 1946 amendments, and by this Circuit in Calla-way construing the 1946 amendments. To the extent that other federal courts have failed to undertake this analysis or have reached a different interpretation of Rules 12 and 56 when upholding Anti-SLAPP laws from other states, this Court respectfully disagrees with those opinions and must follow the binding precedent of this Circuit. g. Opinions From Other Circuits The District and Defendants rely heavily on the United States Court of Appeals for the First Circuit’s decision in Godin v. Schencks, 629 F.3d 79 (1st Cir.2010). There, the First Circuit held that Maine’s Anti-SLAPP statute applied in federal diversity cases because Federal Rules 12 and 56 were “not so broad as to cover the issues within the scope of’ Maine’s statute. Godin, 629 F.3d at 88 (emphasis added). The First Circuit found it significant that, although the federal rules and the Maine statute may overlap, they address “different (but related) subject-matters” and thus there was no conflict. Id. Instead of first interpreting the scope and meaning of the federal rules, as was done in Shady Grove and other cases, the First Circuit appears to have found no conflict based on a side-by-side comparison of the federal rules and the Maine statute. Id. at 88-89. According to the court, the Maine statute did not seek to displace the Federal Rules or have the rules cease to function partly because the Maine statute “is only addressed to special