Full opinion text
MEMORANDUM OPINION AND ORDER VIRGINIA M. KENDALL, District Judge. Plaintiff Intercon Solutions, Inc. is a California-based provider of e-recycling services that operates an e-recycling facility in Illinois. Defendant Basel Action Network (“BAN”) is a non-profit Seattle-based corporation that certifies businesses that provide e-recycling services. Inter-con alleges that BAN and its founder and Executive Director, James Puckett (“Puckett”) defamed and placed Intercon in a false light by falsely and publicly accusing it of shipping hazardous e-Waste to China and Hong Kong. In addition to its defamation and false light claims, Intercon seeks an injunction restraining the Defendants from: (1) disseminating Intercon’s confidential information; (2) stating that Intercon engages in illegal and unethical business practices; and (3) stating that Intercon was in possession of and shipped hazardous waste to China and Hong Kong. Defendants raise various affirmative defenses in their Amended Answer to Inter-con’s Complaint, including lack of personal jurisdiction, improper venue, unclean hands, and substantial truth. Defendants also assert that Intercon’s Complaint is barred by Illinois and Washington antiSLAPP (“Strategic Lawsuits Against Public Participation”) provisions and the First Amendment of the United States Constitution under the Noerr-Pennington doctrine. BAN has filed a Counterclaim seeking a declaration pursuant to the Declaratory Judgment Act, 28 U.S.C. § 2201, that Intercon exports waste to China contrary to its representations to the public and that BAN’s decision to deny e-Stewards certification to Intercon Solutions was justified. The following Motions are before the Court: (1) Defendants’ Motion to Dismiss Intercon’s Complaint pursuant to the Washington Anti-SLAPP Act, RCW 4.24.510; (2) Defendants’ Special Motion to Strike Intercon’s claims, also pursuant to the Washington Anti-SLAPP Act, RCW 4.24.525; (3) Defendants’ Motion for Judgment on the Pleadings pursuant to Federal Rule of Civil Procedure 12(c); (4) Inter-con’s Motion to Dismiss, or in the alternative, Strike Defendants’ affirmative defenses of improper venue, lack of personal jurisdiction, and unclean hands; and (5) Intercon’s Motion to Strike and/or Dismiss BAN’s Counterclaim. For. the reasons stated herein, Defendants’ Special Motion to Strike pursuant to RCW 4.24.525 and Motion for Judgment on the Pleadings are denied. Defendants’ Motion to Dismiss pursuant to RCW 4.24.510 is granted in part and denied in part. Intercon’s Motions to Strike Defendants’ First and Second Affirmative Defenses and to Dismiss BAN’s Counterclaim are granted. Inter-con’s Motion to Strike Defendants’ Fourth Affirmative Defense is denied. BACKGROUND Intercon is a California-based corporation that is in the business of providing electronic recycling (“e-recycling”) services. (Complaint, ¶ 1.) In the e-recycling business, companies obtain certifications of compliance with certain industry standards upon which some customers rely. (Id.) BAN is a non-profit corporation that certifies businesses that provide e-recycling services. (Id. ¶ 2.) Intercon retained BAN to organize an audit on Intercon’s business so that Intercon could obtain e-Stewards certification, a certification offered by BAN to companies that provide e-recycling services. (Id. ¶ 5.) At the conclusion of its audit, BAN decided not to certify Intercon to the e-Stewards standard. (Id. ¶ 15.) Intercon alleges that during the audit, BAN abused its access to confidential information provided by Intercon by engaging in unlawful surveillance of Intercon’s premises. (Id. ¶ 6.) Intercon also alleges that after denying it the e-Stewards certification, BAN went on to state publicly— and falsely — that there was substantial evidence that Intercon shipped two containers of illegal and hazardous materials to Hong Kong and China. (Id. ¶ 7.) According to Intercon, BAN wrongly concluded and made false public accusations that two containers parked on Intercon’s premises contained hazardous e-Waste materials, that Intercon owned the supposedly hazardous e-Waste held within the containers, and that Intercon shipped the containers with hazardous material to China and Hong Kong. (Id.) Specifically, Intercon alleges that on or about June 28, 2011, James Puckett (“Puckett”), the founder and Executive Director of BAN, falsely stated in a letter posted on BAN’s website that “there is substantial evidence that during the period of time that Intercon Solutions was contracted to be certified, Intercon Solutions exported hazardous electronic waste to China ... in violation of the e-Stewards Standard for Responsible Recycling and Reuse of Waste.” (Id. ¶ 10.) The letter further states that “there is substantial reason to believe that such exports may violate Public Act 095-0959 ... of the State of Illinois, the Federal CRT Rule, ... as well as the waste importation laws of Hong Kong/China.” (Id.) Intercon alleges that this letter was sent to selected news media, John Fraser of SAI Global, John Lingelbach of R2 Solutions, and remained accessible on the Internet. (Id. ¶ 11.) Intercon also asserts that BAN attached to this letter its purported “Evidentiary Report of Potential e-Stewards Violation” (the “Evidentiary Report”). (Id, ¶ 11.) According to Intercon, the Evidentiary Report falsely accuses Intercon of illegally shipping containers containing e-Waste to China and Hong Kong in violation of U.S. and Chinese law. (Id. ¶¶ 12-13.) Intercon alleges that the Evidentiary Report also implies that BAN had evidence and facts to support its accusations against Intercon, when in fact BAN had no such evidence or facts. (Id. ¶ 12.) The Evidentiary Report, like the letter, was publicized to selected news media, John Fraser, John Lingelbach, and remains readily accessible on the Internet. (Id. ¶ 14.) Next, Intercon alleges that on or about July 5, 2011, BAN posted on its website, www.ban.org, another defamatory press release falsely stating that that BAN denied Intercon the e-Stewards certification based on “ ‘compelling evidence’ that Intercon had been exporting hazardous waste to China in violation of the United Nation’s Basel Convention. (Id. ¶ 15.) In a subsequent press release, Puckett stated, in what Intercon alleges to be an obvious reference to Intercon, that “[i]t is very sad that many e-Waste recycling companies continue to pose as ‘responsible recyclers’ while they continue to export toxic waste.... In this case, we can take some satisfaction that our e-Stewards Certification screening methods and audits caught what BAN has every reason to believe is a violator.” (Id. ¶ 16.) Intercon further alleges that BAN issued another press release on August 4, 2011, in which Puckett falsely stated that one of Intercon’s containers “was known to contain hazardous waste.” (Id. ¶ 17.) DISCUSSION I. Defendants’ Anti-SLAPP Defenses AntUSLAPP statutes are intended to “address lawsuits brought ■ primarily to chill the valid exercise of the constitutional rights of free speech and petition for redress of grievances.” RCW 4.24.525, Note 1(a). “The term ‘SLAPP,’ which stands for ‘Strategic Lawsuit Against Public Participation,’ was coined by two professors at the University of Denver, George W. Pring and Penelope Canan, who conducted the seminal study on this type of lawsuit.” Sandholm v. Kuecker, 2012 IL 111443, 356 Ill.Dec. 733, 962 N.E.2d 418, 427 (Ill.2012) (citing George W. Pring and Penelope Canan, “Strategic Lawsuits Against Public Participation” (“SLAPPs”): An Introduction for Bench, Bar, and Bystanders, 12 Bridgeport L.Rev. 937 (1992)). SLAPPs “masquerade as ordinary lawsuits” and may include myriad causes of action, including defamation, interference with contractual rights or prospective economic advantage, and malicious prosecution. See Kathryn W. Tate, California’s Anti-SLAPP Legislation: A Summary of and Commentary on Its Operation and Scope, 33 Loy. L.A. L.Rev. 801, 804-05 (2000). The motive, for filing a SLAPP is not to win but rather to chill the defendant’s speech or protest activity and discourage opposition by others through delay, expense, and distraction. See John C. Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, 26 Loy. L.A. L.Rev. 395, 403-05 (1993). By forcing defendants to expend funds on litigation costs and attorney fees, the SLAPP plaintiffs goal of discouraging the defendant’s protest activities are achieved through the ancillary effects of the lawsuit, not through an adjudication on the merits. See id. at 406. Recognizing that imposing litigation costs rather than winning is a SLAPP plaintiffs primary motivation, several states have enacted “anti-SLAPP” legislation aimed at “provid[ing] for expedited judicial review, summary dismissal, and recovery of attorney fees for the party who has been ‘SLAPPed.’ ” Sandholm, 356 Ill.Dec. 733, 962 N.E.2d at 428 (citations omitted). Defendants offer two bases for dismissal pursuant to the Washington’s Anti-SLAPP Act (the “Act”), RCW 4.24.500 et seq. First, Defendants assert they are immune from civil liability pursuant to RCW 4.24.510 because the communications that form the basis of Intercon’s claims conveyed information to government agencies and concerned matters reasonably of concern to those agencies. Second, Defendants argue that Intercon’s claims against it should be stricken pursuant to RCW 4.24.525 because they arise from Defendants’ actions involving public participation and Intercon cannot prove by clear and convincing evidence that it will prevail on its claims. Intercon contends, inter alia, that Illinois, not Washington law applies to BAN and Puckett’s defenses in this case. The choice of law issue is a threshold matter the Court must address before engaging in further analysis of Defendants’ anti-SLAPP defenses. A. Washington Law Applies to BAN and Puckett’s AntiSLAPP Defenses “A district court sitting in diversity applies the choice-of-law rules of the state in which the court sits.” Malone v. Corr. Corp. of Am., 553 F.3d 540, 543 (7th Cir.2009); see also Cook v. Winfrey, 141 F.3d 322, 329 (7th Cir.1998) (citations omitted). In Illinois, a choice-of-law determination is only necessary when there is a conflict of laws and the difference will affect the outcome of the case. See Townsend v. Sears, Roebuck & Co., 227 Ill.2d 147, 316 Ill.Dec. 505, 879 N.E.2d 893, 901 (2007) (“Each issue is to receive separate consideration if it is one which would be resolved differently under the local law rule of two or more of the potentially interested states.”) (quoting Restatement (Second) of Conflicts of Laws § 145, cmt. d, at 417 (1971)). Illinois’s anti-SLAPP statute, the Illinois Citizen Participation Act (the “ICPA”), offers fewer protections than the Act. Specifically, the Act grants absolute civil immunity for certain communications to government agencies under Section 510 and conditional immunity under Section 525 for actions “involving public participation and petition.” RCW 4.24.510, 4.24.525. The Act also contains a “special motion to strike” provision that allows for early adjudication of a plaintiffs claim on the merits. RCW 4.24.525(4)(a). By contrast, the ICPA grants only narrow conditional immunity and does not contain a special motion to strike provision. See 735 ILCS 110/1 et seq; Sandholm, 356 Ill.Dec. 733, 962 N.E.2d at 430 (reversing dismissal under the ICPA where “a plaintiff files suit genuinely seeking relief for damages for the alleged defamation or intentionally tortious acts of defendant,” explaining that “had the legislature intended to radically alter the common law by imposing a qualified privilege on defamation within the process of petitioning the government, it would have explicitly stated its intent to do so”). Because the scope of immunity offered under the ICPA and the Act is different, the Court must decide whether Illinois or Washington law applies. The parties do not dispute that Illinois law governs Intercon’s defamation and false light claims. Defendants assert however that its defenses to those claims, to the extent they are inconsistent with Illinois law, are governed by Washington law. In Illinois, courts generally use the “most significant contacts” test in resolving conflicts of law. See Auto-Owners Ins. Co. v. Websolv Computing, Inc., 580 F.3d 543, 547 (7th Cir.2009). Illinois also follows the doctrine of depecage “which refers to the process of cutting up a case into individual issues, each subject to a separate choice-of-law analysis.” Townsend, 316 Ill.Dec. 505, 879 N.E.2d at 901. Under the doctrine of depecage, the issue of whether a statement is defamatory is distinct from the issue of whether that statement is privileged. See Wilkow v. Forbes, Inc., 2000 WL 631344, at *5 (N.D.Ill. May 15, 2000), aff'd, 241 F.3d 552 (7th Cir.2001); see also Vantassell-Matin v. Nelson, 741 F.Supp. 698, 704 (N.D.Ill. 1990) (Shadur, J.) (In the choice-of-law context, “the threshold question [of defamation] and the defenses are different issues and call for different analyses”). In determining which law to apply to defenses raised pursuant to anti-SLAPP statutes, courts have found the place where the allegedly tortious speech took place and the domicile of the speaker central to the choice-of-law analysis. See, e.g., Chi v. Loyola Univ. Med. Ctr., 787 F.Supp.2d 797, 803 (N.D.Ill.2011). This approach is based on a recognition that the purpose of an anti-SLAPP law is to encourage the exercise of free speech and that states have a strong interest in having their own anti-SLAPP law applied to the speech of their own citizens, at least when that speech is initiated within the state’s borders. See, e.g., id.; Global Relief Found. v. New York Times Co., No. 01 C 8821, 2002 WL 31045394, at *10 (N.D.Ill. Sept. 11, 2002). Thus although the place of injury is usually a central factor in determining what law governs a tort claim, this factor has been found to be “less important” in the anti-SLAPP context. See, e.g., Chi, 787 F.Supp.2d at 803. Thus courts applying Illinois choice-of-law principles in defamation cases where antiSLAPP defenses are raised have held that the plaintiffs defamation claims and defendant’s anti-SLAPP defenses need not be governed by the same state’s laws. See, e.g., Doctor’s Data, Inc. v. Barrett, No. 10 C 03795, 2011 WL 5903508, at *2 (N.D.Ill. Nov. 22, 2011) (Chang, J.) (applying Illinois law to plaintiffs defamation claim but North Carolina law to the North Carolina speaker’s defenses); Chi, 787 F.Supp.2d at 803 (Kennelly, J.) (applying Arizona law to plaintiffs defamation claims but the ICPA to defendant’s immunity claim because Defendants were citizens of Illinois and their alleged defamatory speech originated in Illinois); Global Relief, 2002 WL 31045394, at *11 (Coar, J.) (applying Illinois law to defamation claim but California law to anti-SLAPP defense, finding that “California has a great interest in determining how much protection to give California speakers.... Thus California law has the most significant relationship and the law of California will apply to defenses to defamation”). In this case, Defendants are citizens of the State of Washington and their allegedly defamatory speech, though eventually published in Illinois and on the Internet, originated in that state. As Washington has a strong interest in having its own anti-SLAPP legislation applied to speech originating within its borders and made by its citizens, the Court will apply the Act in determining whether Defendants are immune from liability on Inter-con’s claims. See, e.g., Chi, 787 F.Supp.2d at 801-03 (applying ICPA to alleged defamatory statements drafted in Illinois but caused Plaintiff injury in Arizona, where it was read). Relying on Containment Techs. Grp., Inc. v. Am. Soc’y of Health Sys. Pharmacists, No. 07-cv-0997-DFH-TAB, 2009 WL 838549 (S.D.Ind. Mar. 26, 2009), Inter-con argues that Illinois, not Washington law should govern Defendants’ antiSLAPP defenses. In Containment Techs. Group, the court applied a “modified version of the ‘most significant contacts’ choice of law test” and concluded that a Maryland publisher was subject to Indiana’s anti-SLAPP statute for its activities directed toward Indiana. Id. at *7. Intercon’s reliance on Containment Techs. Group reflects either a cursory reading or basic misunderstanding of the court’s opinion in that case. The Containment Techs. Group court applied Indiana choice of law principles. Unlike Illinois, Indiana has not adopted depecage. Id. In fact, the Containment Techs. Group court specifically acknowledged that a different outcome may result under Illinois choice-of-law principles: In Simon v. United States [805 N.E.2d 798 (Ind.2004)], the Indiana Supreme Court held on a certified question from the Third Circuit Court of Appeals that Indiana choice of law rules do not include depecage (application of different states’ laws to different issues).... Under a different conflict of laws regime, a different result might be reached, see Global Relief v. New York Times Co., 2002 WL 31045394 (N.D.Ill. Sept. 11, 2002) (applying Illinois choice of law to find that defamation action proceeded under Illinois law but that defenses to defamation, namely anti-SLAPP, should be considered under California law), but in Indiana, the entire defamation cause of action is considered under the same state’s of [sic] laws. Id. Containment Techs. Group is therefore inapposite as it is undisputed that Illinois choice-of-law principles govern in this case. B. Defendants’ Motion to Pursuant to RCW 4.24.510 The Act was passed after the Washington legislature observed that SLAPPs are “filed against individuals or organizations on a substantive issue of some public interest or social significance” and “are designed to intimidate the exercise of First Amendment Rights.” Aronson v. Dog Eat Dog Films, Inc., 738 F.Supp.2d 1104, 1109 (W.D.Wash.2010) (quoting Laws of 2002, ch. 232, § 1). The legislature determined that “[i]t is in the public interest for citizens to participate in matters of public concern and provide information to public entities and other citizens on public issues that affect them without fear of reprisal through abuse of the judicial process.” RCW 4.24.525, Note (l)(d). The Act grants two forms of immunity: absolute immunity pursuant to RCW 4.24.510 (“Section 510”) and conditional immunity pursuant to RCW 4.24.525 (“Section 525”). Defendants assert they are immune from liability under Section 510 of the Act because the alleged defamatory statements were communicated to government agencies and were of reasonable concern to those agencies. Section 510 provides that “a person who communicates a complaint or information to any branch or agency of federal, state, or local government ... is immune from civil liability for claims based upon the communication to the agency or organization regarding any matter reasonably of concern to that agency.” RCW 4.24.510. The purpose of Section 510 is to encourage the reporting of potential wrongdoing to governmental authorities and “protect[] advocacy to the government, regardless of content or motive, so long as it is designed to have some effect on government decision making.” Bailey v. State, 147 Wash.App. 251, 191 P.3d 1285, 1291 (2008). Courts have found that Section 510 has not been superseded by Section 525. See, e.g., Phoenix Trading v. Kayser, 2011 WL 3158416, at *5 (W.D.Wash. July 25, 2011) (finding that “[t]he two provisions are complimentary”) (citing, 2010 WL 4857022, at *4 n. 2). The defense of immunity set forth in Section 510 is an affirmative defense and thus the burden of proof is placed on the party asserting it. See Magee v. Allen, No. 59537-7-1, 2008 WL 1934843, at *2 (Wash.Ct.App. May 5, 2008). A person who prevails under Section 510 “is entitled to recover expenses and reasonable .attorneys’ fees incurred in establishing the defense and in addition shall recover statutory damages often thousand dollars.” RCW 4.24.510. “Statutory damages are mandatory under the anti-SLAPP statute, but they ‘may be denied if the court finds that the complaint or information was communicated in bad faith.’ ” See Vanderpol v. Swinger, No. C12-773 MJP, 2012 WL 3887161, at *2 (W.D.Wash. Aug. 8, 2012) (quoting RCW 4.24.510). Section 510 by its terms imposes two requirements: (1) the statement must be reported to a “branch or agency of federal, state, or local government,” and (2) the statement must be regarding a “matter reasonably of concern to that agency or organization.” See, e.g., Cornu-Labat v. Merred, No. CV-11-0080-EFS, 2012 WL 1032866, at *3 (E.D.Wash. Mar. 27, 2012) (citing RCW 4.24.510). In this case, Inter-con alleges that Defendants created a letter and Evidentiary Report falsely stating that there was substantial evidence that Intercon exported hazardous electronic waste to China in violation of Illinois and federal law. (Complaint, ¶¶ 9-13.) Inter-con further alleges that Defendants defamed it by publishing these statements by: (1) posting the letter on BAN’S website; (2) sending the letter to “selected news media”; John Lingelbach of R2 Solutions, which, according to Intercon, is a competitor e-recycling certification body; John Fraser of an organization known as “SAI Global,” among others.... (Id. ¶ 11.) The last page of the letter, attached as Exhibit 1 to Intercon’s Complaint, reveals that Defendants also copied the Illinois State Environmental Protection Agency and the United States Environmental Protection Agency on this communication. (See Complaint, Ex. 1, p. 2.) Intercon further alleges that BAN posted on its website another defamatory press release stating that BAN had “compelling evidence” that Intercon had exported hazardous waste to China in violation of the United Nation’s Basel Convention. (Complaint, ¶ 15.) Finally, Intercon alleges Defendants released another press release on August 4, 2011 falsely stating that one of Intercon’s containers “was known to contain hazardous waste.” {Id. ¶ 17.) To the extent Defendants communicated statements to the Illinois EPA and the U.S. EPA concerning Intercon’s purported handling of hazardous waste, such statements are protected under the Act’s grant of immunity under Section 510. Both entities qualify as agencies of either state or federal government. Furthermore, it cannot be seriously debated that statements concerning the shipment of hazardous waste in possible violation of Illinois and federal law are of reasonable concern to state and federal environmental agencies. Therefore, pursuant to Section 510, any statements made by Defendants to either the Illinois EPA or the U.S. EPA cannot form the basis for Intercon’s defamation and false light claims. However, the statements at issue in this case are alleged to have been made not only to state and federal agencies but also to “selected news media,” a competitor e-recycling certification body, and an individual at an entity known as “SAI Global.” Intercon also alleges that Defendants made their accusations available to the public by posting BAN’S letter to Intercon, the Evidentiary Report, and defamatory press releases on BAN’s publicly available website. (Complaint, ¶¶ 11, 14-15.) Defendants are not entitled to absolute immunity with respect to any harm Intercon alleges to have incurred as a result of these statements. The purpose of Section 510 is to “encourage the reporting of potential wrongdoing to governmental entities.” See Bailey, 191 P.3d at 1290 (quoting Gontmakher v. City of Bellevue, 120 Wash.App. 365, 85 P.3d 926, 927 (2004)) (emphasis added); RCW 4.24.500 (setting forth the purpose of the Act and stating that “[t]he purpose of RCW 4.24.500 through 4.24.520 is to protect individuals who make good-faith reports to appropriate governmental bodies ”) (emphasis added). Defendants do not point to a single case holding or even suggesting that statements made to private entities, a defendant’s competitors, and media outlets are protected under the Act’s absolute immunity provision. Nor do they draw the Court’s attention to authority suggesting that a speaker can make otherwise defamatory statements to private entities and media organizations and successfully raise the shield of immunity under Section 510 by simply copying or forwarding the same communication to a government body. Courts applying the Act have limited the grant of immunity under Section 510 to situations where the communication is made to government agencies and officials. See, e.g., Vanderpol, 2012 WL 3887161, at *2 (counterdefendant immune from liability where counterplaintiffs allegations stemmed from counterdefendant’s communication to a conservation entity that was administered at the local level by a Conservation District that was a governmental subdivision of the state and administered at the national level by the USDA’s Farm Service Agency); Comu-Labat, 2012 WL 1032866, at *4 (defendant immune from liability where statements were communicated to school officials and police department because both were held to be government agencies); Phoenix Trading, 2011 WL 3158416, at *7 (defendants immune under RCW 4.24.510 for statements made to New York City Mayor Michael Bloom-berg, other New York City officials, the United States Customs Agency, and an Assistant United States Attorney); Young v. Baur, No. C05-5565 RBL/KLS, 2006 WL 3246150, at *2-3 (W.D.Wash. Nov. 6, 2006) (finding defendant immune from liability pursuant to RCW 4.24.510 where communication was made to local police authority and adding that “[defendant’s] only other communication or contact with any person related to [the events she observed] was when she contacted Plaintiffs probation officer to attempt to locate Plaintiff). Thus unlike Section 525, the Act’s much broader immunity provision protecting any “action involving public participation and petition,” including any statements made or submitted “in a place open to the public or a public forum in connection with an issue of public concern” and “any ... lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern,” RWC 4.24.525(2)(d)-(e), the Act’s grant of absolute immunity under Section 510 is plainly limited to “complaint[s] or information” communicated to a “branch or agency of federal, state, or local government....” RCW 4.24.510. Therefore, the Court finds that Defendants are not entitled to immunity under Section 510 for claims arising from Defendants’ communications to the media, other private entities, or postings on BAN’s publicly available website. Accordingly, Defendants’ Motion to Dismiss pursuant to Section 510 of the Act is granted to the extent that Intercon’s defamation and false light claims arise from Defendants’ alleged communications to the Illinois EPA and U.S. EPA but is denied to the extent Intercon’s claims arise from Defendants’ alleged communications to “selected news media,” John Fraser, John Lingelbach, any other nongovernmental entities, and Defendants’ postings on BAN’s publicly available website. C. Defendants’ Special Motion to Strike Pursuant to RCW 4.24.525 Section 525 of the Act immunizes defendants against “any claim that is based on an action involving public participation.” RCW 4.24.525(4)(a). Section 525 defines the phrase “action involving public participation” broadly: This section applies to any claim, however characterized, that is based on an action involving public participation and petition. As used in this section, an “action involving public participation and petition includes: (a) Any oral statement made, or written statement or other document submitted, in a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law; (b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive, or judicial proceeding or other governmental proceeding authorized by law; (c) Any oral statement made, or written statement or other document submitted, that is reasonably likely to encourage or to enlist public participation in an effort to effect consideration or review or an issue in legislative, executive, or judicial proceeding or other governmental proceeding authorized by law; (d) Any oral statement made, or written statement or other document submitted, in a place open to the public or a public forum in connection with an issue of public concern; or (e) Any other lawful conduct in furtherance of the exercise of the constitutional right of free speech in connection with an issue of public concern, or in furtherance of the exercise of the constitutional right of petition. RCW 4.24.525(2)(a)-(e). Immunity pursuant to Section 525 is conditional because a defendant must prevail on a “special motion to strike” in order to benefit from its protections. RCW 4.24.525(4). In order to prevail on a special motion to strike, a defendant must show by a preponderance of the evidence that the plaintiffs claim is based on an action of public participation and petition as defined in the Act. See RCW 4.24.525(4)(b). If this initial showing is made, the burden shifts to the plaintiff to establish by “clear and convincing evidence a probability of prevailing on its claim.” Id. If the plaintiff meets that burden, the special motion to strike shall be denied. See id. In making a determination under Section 525, the court “shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” See RCW 4.24.525(4)(c). Defendants maintain they are immune from civil liability under Section 525 because the communications that form the basis for Intereon’s Complaint constitute “actions involving public participation” and because Intercon cannot establish by clear and convincing evidence a probability of prevailing on its defamation and false light claims. Intercon argues that Defendants’ Special Motion to Strike is untimely because it was filed more than sixty days after Defendants were served with the Complaint. Intercon also submits that Defendants’ Motion asks the Court to consider materials outside the pleadings and decide its claims on the merits in a manner that circumvents the Federal Rules of Civil Procedure and the Local Rules of the Northern District of Illinois. The Court addresses each argument in turn. 1. Defendants’ Special Motion to Strike Is Not Time-Barred RCW 4.24.525(5)(a) provides that a motion to strike “may be filed within sixty days of the service of the most recent complaint or, in the court’s discretion, at any later time upon terms it deems proper.” In this case, Puckett was served with the summons and Complaint on July 25, 2012. (Dkt. No. 1, ¶ 2.) BAN received a copy of the summons and Complaint on July 27, 2012. (Id.) The Defendants did not raise defenses under the anti-SLAPP statute in their initial Answer, which was filed August 31, 2012. Instead, Defendants’ Answer asserted in general terms that (1) “[t]he Complaint violates pertinent provisions of state law and state and federal constitutions;” (2) “[a]ll statements and comments made by Defendants concerning Plaintiff were made in good faith and concern matters which affect the interest of the general public. Therefore, Defendants’ statements are protected by conditional privilege;” and (3) “[t]he Complaint is barred by the Noerr-Pennington doctrine. (Answer, Dkt. No. 9, ¶¶ 46, 49, 52.)” Although Defendants eventually referenced the anti-SLAPP statute in their Amended Answer, which was filed September 28, 2012, (Dkt. No. 22, ¶ 52), they did not file a special motion to strike pursuant to Section 525 until November 6,. 2012, over 100 days after being served with the Complaint. (See Dkt. No. 36.). However, the statutory language makes clear that the 60-day limitation period is permissive, not mandatory. See RCW 4.24.525(5)(a) (“The special motion to strike may be filed within sixty days of the service of the most recent complaint or, in the court’s discretion, at any later time upon terms it deems proper.”) (emphasis added). In applying RCW 4.24.525(5)(a), courts have routinely exercised discretion and allowed filings outside of the 60-day period. See, e.g., Fielder v. Sterling Park Homeowners Ass’n, 914 F.Supp.2d 1222, 1231 (W.D.Wash.2012) (“Despite Defendants’ noticeable lack of excuse as to timeliness, the Court declines to decide the motion [filed over four months after service of the amended complaint] on a purely procedural deficiency.”); Davis v. Avvo, Inc., No. C11-1571RSM, 2012 WL 1067640, at *4 (W.D.Wash. Mar. 28, 2012) (permitting anti-SLAPP motion filed six months after filing of operative complaint but within sixty days of the case’s transfer to federal court, finding that “the use of the term ‘may’ instead of the mandatory ‘shall’ means that this is not a firm deadline to be applied in all cases”); Phoenix Trading, 2011 WL 3158416, at *6 (allowing special motion to strike filed nine months after the filing of the complaint where discovery had not yet been served and plaintiffs did not assert that they were prejudiced as a result of the filing of the motion outside of the 60-day period). Here, Defendants raised defenses pursuant to the Act, disclosed to the Court and Intercon in the parties’ Joint Status Report that it intended to pursue an affirmative defense under the Act, and informed the Court that they were prepared to this motion all within sixty days of this ease being removed to federal court. Intercon was first made aware of Defendants’ intention to raise defenses pursuant to the, antiSLAPP statute as early as September 28, 2012, when Defendants filed their Amended Answer to Intercon’s Complaint. (Dkt. 22, ¶ 52.) On October 10, 2012, the parties filed a Joint Status Report in which Defendants alerted the Court and Intercon that it intended to pursue an affirmative defense under the Act'. (Dkt. No. 24.) After restating its intention to bring a motion pursuant to the anti-SLAPP statute at the parties’ initial status hearing, (see Transcript, 10/15/2012), Defendants filed this motion consistent with the Court’s schedule. Additionally, Defendants represent — and Intercon does not dispute — that the parties agreed to stay discovery shortly after the filing of this motion. Under these circumstances, the Court finds Defendants’ motion timely filed. 2. Section 525 Conflicts with Federal Rules of Civil Procedure and Therefore Does Not Apply to a Federal Court Sitting in Diversity Section 525 of the Act allows a court resolve a “special motion to strike” and dismiss a plaintiffs claim on a preliminary basis in a different manner than it would otherwise resolve a preliminary motion attacking the merits of a case under Rules 12 or 56. As explained above, once a defendant shows “by a preponderance of the evidence that the [plaintiffs] claim is based on an action of public participation and petition,” the plaintiffs ease can survive .and move forward only if the plaintiff establishes by “clear and convincing” evidence a probability of prevailing on its claim. RCW 4.24.525(4)(b). In resolving a special motion to strike, the court must consider the pleadings as well as “supporting and opposing affidavits stating the facts upon which the liability or defense is based.” See RCW 4.24.525(4)(c). According to Intercon, the special motion to strike cannot be applied by a federal court sitting in diversity because it attempts to circumvent the Federal Rules of Civil Procedure by asking the Court to review extrinsic evidence and declarations in a manner that is inconsistent with Rules 12 and 56. The Seventh Circuit has not addressed whether special motions to strike pursuant to state anti-SLAPP laws conflict with the Federal Rules of Civil Procedure. Relying on First and Ninth Circuit precedent, courts in this District have found such provisions substantive (as opposed to procedural) and therefore not in conflict with the Federal Rules. See, e.g., Trudeau v. ConsumerAffairs.com, Inc., No. C 7193, 2011 WL 3898041, at *5 (N.D.Ill. Sep. 6, 2011); Chi, 787 F.Supp.2d at 808; Global Relief, 2002 WL 31045394, at *12. In 3M Co. v. Boulter, 842 F.Supp.2d 85, 102 (D.D.C.2012), however, the United States District Court for the District of Columbia reached the opposite conclusion, finding that the Federal Rules of Civil Procedure preclude a federal court sitting in diversity from applying the D.C. Anti-SLAPP Act. After thoroughly - reviewing these cases and the precedent upon which they rely, the Court finds that the Boulter court’s analysis correctly assesses the conflict between the Federal Rules of Civil Procedure and procedural devices in antiSLAPP statutes that allow for preemptive resolution on the merits. Applying that analysis to the facts of this case, the Court finds that Section 525 cannot be applied by a federal court sitting in diversity because it is in direct conflict with Federal Rules of Civil Procedure 12 and 56. The framework for determining whether a Federal Rule of Civil Procedure conflicts with state law was explained in Shady Grove Orthopedic Assocs. v. Allstate Ins. Co., 559 U.S. 393, 130 S.Ct. 1431, 1437, 176 L.Ed.2d 311 (2010). Under Shady Grove, this 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)). In assessing their scope, the Federal Rules are not to be “narrowly construed in order to avoid a ‘direct collision’ with state law,” but rather given their “plain meaning.” Walker v. Armco Steel Corp., 446 U.S. 740, 748-50 & n. 9, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); see also Shady Grove, 130 S.Ct. at 1442 (when construing a 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) (stating that the Supreme Court has rejected any suggested 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”). 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 Org., Inc. v. Ricoh Corp., 487 U.S. 22, 27, 108 S.Ct. 2239, 101 L.Ed.2d 22 (1988). A state law need not be “perfectly coextensive and equally applicable” to a particular issue in order to be found in “direct collision” with federal law. Stewart, 487 U.S. at 26-27 n. 4, 108 S.Ct. 2239. Rather, “where the applicability of a federal statute is at issue, [the “direct collision” language] expresses the requirement that the federal statute be sufficiently broad to cover the point in dispute.” Id. (citing Hanna v. Plumer, 380 U.S. 460, 470, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965)). Shady Grove specifically instructs that a court need not “wade into Erie’s murky waters” and determine whether a provision is procedural or substantive “unless the federal rule is inapplicable or invalid.” Shady Grove, 130 S.Ct. at 1437 (citing Hanna, 380 U.S. 460, 469-71, 85 S.Ct. 1136). In Shady Grove, the Supreme Court applied this test in considering whether a New York law prohibiting class actions in suits seeking penalties for statutory minimum damages precluded a federal court sitting in diversity from entertaining a class action under Federal Rule of Civil Procedure 23. Id. at 1436. Pursuant to an analysis under the Eñe doctrine, the Court of Appeals for the Second Circuit had affirmed the district court’s decision finding that the New York state rule was “substantive” and therefore must be applied in federal diversity actions. Id. The Supreme Court reversed, finding that the first step of the analysis should not have engaged the Eñe doctrine but rather asked whether Rule 23 “answers the question in dispute.” Id. That question, according to the majority, was “whether [the plaintiffs] suit may proceed as a class action.” Id. The Court first looked to the text and scope of Rule 23, which states that a class action “may be maintained” as long as certain prerequisites are met. Id. at 1438. The Court determined 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 the Federal Rules provide for a “one-size-fits-all formula” for deciding whether a class action could be maintained in federal court, the Court held that the New York class action law could not govern in diversity actions because it “undeniably attempted] to answer the same question” as Rule 23. Id. at 1437-39. Observing that Shady Grove sets forth “clear guidance on how to analyze purported conflicts between Federal Rules of Civil Procedure and state laws,” the Boulter court applied the same framework to determine whether certain procedural der vices contained in the D.C. .Anti-SLAPP Act conflicted with the Federal Rules of Civil Procedure. See Boulter, 842 F.Supp.2d at 93-96. Like the Act, the D.C. anti-SLAPP law allowed defendants 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. See D.C. St. § 16-5502(a). The D.C. law also set forth a process for evaluating the special motion to dismiss that is similar to the framework created under the Act. See id. In order to prevail on a special motion to dismiss, 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 the issue of public interest.” Id. at § 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. Applying Shady Grove, the Boulter court first looked to whether the Federal, Rules answered the question in dispute. See Boulter, 842 F.Supp.2d at 96. The court found, upon thorough review of the history and purpose of Rule 12, that “Rule 12(d) links Rule 12 and 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....” 842 F.Supp.2d at 98. After determining the scope of the Federal Rules, the Boulter court concluded that 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,” the D.C. statute “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.” Id. at 102. In this case, the question in dispute is whether a federal court may look to the pleadings and to materials outside of the pleadings and dismiss a plaintiffs claims on a preliminary basis as a result of the defendant’s ability to show “that those claims are based on an action involving public participation and petition” and the plaintiffs subsequent failure to “establish by clear and convincing evidence a probability of prevailing” on its claims. RCW 4.24.525(4). Federal Rule of Civil Procedure 12(d) sets forth the rules governing motions seeking adjudication on the merits based on matters outside of the pleadings: (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 material that is pertinent to the motion. Fed.R.Civ.P. 12(d). The language that currently appears in Rule 12(d) was added by amendment in 1946. See Fed.R.Civ.P. 12, 1946 Am., Notes to Subdivision (b). The Advisory Committee Notes to the 1946 Amendment make clear that the purpose of Rule 12(d) was to “link[ ] 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....” Boulter, 842 F.Supp.2d at 98 (emphasis added). The Advisory Committee notes provide: 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 deposition, one party or the other is entitled to summary 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 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 a 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 summary judgment on the merit s 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. * * * In 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 the extent this 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 Adv. Comm. Note on 1946 Am. (emphasis added). As noted by the Boulter court, the transcripts of the Advisory Committee meetings adopting the 1946 Amendments further support this conclusion. See Proceedings of the Advisory Committee on Rules for Civil Procedure, Vol. 1, p. 153 (Mar. 25, 1946), available at http://www.uscourts.gov/uscourts/ RulesAndPolicies/rules/Minutes/CV031946-min-Voll.pdf (statement by Advisory Committee Chairman William D. Mitchell: mandatory language in Rule 12(d) was inserted in the amendment “because we don’t want a judge deciding a case on affidavits other than in Rule 56.”). The Advisory Committee Notes also make clear that the label assigned to a particular motion is of no consequence. Any motion requesting an adjudication on the merits based on extraneous material, “whatever its label or original basis,” should be tied to the summary judgment rule. Fed. R.Civ.P. 12 Adv. Comm. Note on 1946 Am. Thus the fact that the Washington legislature has labeled the procedural device used to effectuate Section 525 of the Act a “special motion to strike” does not change the outcome of the analysis. Rule 12(d) is sufficiently broad to cover any situation the court is asked to consider the sufficiency of the plaintiffs claim based on materials outside of the pleadings, regardless of the label applied to the motion: Although the conversion provision in Rule 12[ (d) ] 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 recognized, it is not relevant how the defense actually is denominated in the motion. 5C Wright & Miller § 1366 at 148 (emphasis added); see also 3M, 842 F.Supp.2d at 98, 103 (pretrial motion designed to adjudicate claims on the merits are to be decided in accordance with Rules 12 and 56 whether the motion is labeled a “ ‘motion to dismiss,’ a ‘motion for judgment on the pleadings,’ a ‘motion for summary judgment,’ or ‘speaking motion,’ or anything else” because a motion’s label “is immaterial, as the actual operation and effect of the motion, rather than its label, is what really matters”). In 2007, the Supreme Court reaffirmed the intent and purpose of Rule 12(d) as expressed by the Advisory Committee in 1946 — that the federal rules do not permit a district court to dismiss a complaint that is sufficiently plead 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 proceed. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 563 n. 8, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007) (citing Third and Eighth Circuit law 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”). Based on Supreme Court precedent, the 1946 amendments to the Federal Rules of Civil Procedure that added what is now Rule 12(d), and the contemporaneous Advisory Committee Notes explaining those amendments, it is clear that the Federal Rules of Civil Procedure do not allow a federal court to 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 is appropriate. However, this is exactly what is asked of the district court when determining whether to grant a defendant’s special motion to strike pursuant to Section 525 of the Act. Defendants’ Special Motion to Strike asks this Court to evaluate hundreds of pages of material outside of the pleadings, including declarations, affidavits, and exhibits, {See Dkt. Nos. 37-40, 51-59), and determine on a preliminary basis whether there is “clear and convincing evidence” that Intercon’s claims are likely to succeed on the merits. In this way, Section 525 of the Act alters the procedure otherwise set forth under Rule 12 and Rule 56 for determining a challenge to the merits of a plaintiffs claim. First, Section 525 forces the a federal court to adjudicate claims on the merits and consider materials outside of the pleadings without tying the motion to the summary judgment rule. Federal Rule of Civil Procedure 12(d). Rule 12(d) grants the trial court discretion in determining whether to convert a Rule 12 motion to a motion for summary judgment and whether to accept materials outside of the pleadings. See Fed.R.Civ.P. 12(d) (“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 ....”) (emphasis added). The language of the Act, by contrast, is mandatory. See RCW 4.24.525(4)(c) (“In making a determination under (b) of this subsection, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”) (emphasis added). In this way, the-Federal “Rule’s discretionary mode of operation unmistakably conflicts with the mandatory provision” of the Act. Burlington Northern, 480 U.S. at 6, 107 S.Ct. 967 (finding Alabama statute mandating penalty against litigants who appeal unsuccessfully to be in direct conflict with Federal Rule of Civil Procedure 38, which affords the district court discretion to award damages for frivolous appeals); see also Affholder, Inc. v. Southern Rock, Inc., 746 F.2d 305, 308-09 (5th Cir.1984) (mandatory affirmance penalty found to be in conflict with the Federal Rules and thus not applicable in federal diversity actions because (1) the discretionary mode of operation of the Federal Rule, compared to the mandatory operation of the Mississippi statute, and (2) the limited effect of the Federal Rule in penalizing only frivolous appeals or appeals interposed for the purpose of delay compared to the effect, of. the Mississippi statute in penalizing every unsuccessful appeal regardless of merit). Second, Section 525 imposing a heightened standard of proof upon the plaintiff to avoid dismissal. Once a defendant is able to show by a preponderance of the evidence that the claim against it is “based on an action involving public participation and petition,” the plaintiff is required, at the preliminary stages of litigation and most likely without the benefit of meaningful discovery, to “establish by clear and convincing evidence a probability of prevailing on the claim” regardless of whether the plaintiff has otherwise “alleged facts that raise a plausible entitlement to relief or “raised a genuine issue of material fact.” The Advisory Committee Note to Rule 12 “make[ ] it clear that the last sentence of Rule 12[d] 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.” Wright & Miller, 5C Fed. Prac. & Proc. Civ. § 1366. Accordingly, the Court finds that by placing a higher procedural burden on the plaintiff than is required to survive a motion for summary judgment under Rule 56, Sec1 tion 525 conflicts with Rule 12(d) and Rule 56 by restricting a plaintiffs “procedural right to maintain [an action]” established by the federal rules and therefore cannot be applied by a federal court sitting in diversity. Shady Grove, 130 S.Ct. at 1439 n. 4. 3. Contrary Decisions Defendants remind the Court that the analysis above reflects a minority view. Indeed both the First and Ninth Circuit have held that similar anti-SLAPP provisions do not conflict with the federal rules. See Godin v. Schencks, 629 F.3d 79 (1st Cir.2010); United States v. Lockheed Missiles & Space Co., 190 F.3d 963 (9th Cir.1999). The Court respectfully disagrees with the First Circuit’s analysis in Godin and finds Lockheed distinguishable in light of subsequent Ninth Circuit holdings. In a pre-Shady Grove decision, the Ninth Circuit Court of Appeals concluded that while California’s anti-SLAPP statute and the Federal Rules “do, in some respects, serve similar purposes” there is no “direct collision” between the two. Lockheed, 190 F.3d at 972-73. The Lockheed court reached its holding by determining that there was “no indication that Federal Rules of Civil Procedure 8, 12, or 56 were intended to ‘occupy the field’ with respect to pretrial procedures aimed at weeding out meritless claims.” Id. Based on the 1946 amendments to Rule 12 and the Supreme Court’s subsequent holdings in Burlington Northern and Shady Grove, the Court respectfully disagrees with this conclusion. As explained above, it is clear from the Advisory Committee Notes to the 1946 amendments to Rule 12 that Rules 12 and 56 were intended 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. Thus Rule 56 and Rule 56 answer the same question that is in dispute in this case and, pursuant to Shady Grove and Burlington Northern, cannot be applied by a federal court sitting in diversity. Additionally, the Act, unlike the California anti-SLAPP statute, imposes on the plaintiff a heavier burden than the federal rules. Specifically, the California statute does not require the plaintiff to demonstrate a probability of prevailing on the merits “by clear and convincing evidence.” See CahCode Civ. Proc. § 425.16(b)(1) (“A cause of action against a person arising from any act of that person in furtherance of the person’s right to petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”). Court’s applying Section 525 of the Act have acknowledged that the addition of the “clear and convincing” language is not an insignificant variation from California law: One of the most crucial distinctions between the [Washington and California] statutes is that Washington’s AntiSLAPP law requires a responding party to demonstrate a likelihood of prevailing on his or her claim by clear and convincing evidence. The significance of this heightened evidentiary burden cannot be overstated. Whereas the California statute — which incorporates a mere “probability” standard — essentially creates an early opportunity for summary judgment, the Washington statute radically alters a plaintiffs burden of proof. Jones v. City of Yakima Police Dept., No. 12-CV-3005-TOR, 2012 WL 1899228, at *3 (E.D.Wash. May 24, 2012) (citations omitted); see also AR Pillow Inc. v. Maxwell Payton, LLC, No., 2012 WL 6024765, at *2 (W.D.Wash. Dec. 4, 2012) (“Although the revised Act is modeled after California law, Washington applies a higher burden at the second stage.”) (citing RCW 4.24.525(4)(b)). Cases decided after Lockheed suggest that his difference would lead the Ninth Circuit to reach a different outcome if addressing a conflict between the Federal Rules and the Act. In, the court interpreted Lockheed to stand for the proposition that special motions to strike under California’s anti-SLAPP statute do not conflict with Federal Rules 12 and 56 because the two did not impose different standards on the plaintiff: Lockheed’s explanation for the