EDWARD LEWIS TOBINICK, MD, a medical corporation, d.b.a the Institute of Neurological Recovery, INR PLLC, a Florida professional limited liability company, d.b.a. Institute of Neurological Recovery, M.D. EDWARD TOBINICK, an individual, Plaintiffs-Appellants,
STEVEN NOVELLA, an individual, SOCIETY FOR SCIENCE-BASED MEDICINE, INC., a Florida Corporation, SGU PRODUCTIONS, LLC, a Connecticut limited liability company, et al., Defendants-Appellees, YALE UNIVERSITY, a Connecticut corporation, et al., Defendants.
from the United States District Court for the Southern
District of Florida D.C. Docket No. 9:14-cv-80781-RLR
HULL and MARTIN, Circuit Judges, and RESTANI, [*] Judge.
Edward Lewis Tobinick, MD ("INR CA"), INR PLLC
("INR FL"), and M.D. Edward Tobinick ("Dr.
Tobinick") (collectively, the "Tobinick
Appellants") appeal the district court's orders
striking INR CA's state law claims pursuant to
California's anti-SLAPP statute, twice denying amendment
of the Tobinick Appellants' complaint, denying relief
pursuant to Federal Rules of Civil Procedure
("Rule") 37, 56(d), and 60 due to potential
discovery-related abuses, and granting summary judgment
against the Tobinick Appellants on their Lanham Act claim. We
affirm the district court in all respects.
case concerns a dispute between two doctors regarding the
medical viability of a novel use for a particular drug.
Tobinick is certified in internal medicine and dermatology,
and he is licensed in both California and Florida. He has two
clinics that conduct business as The Institute of
Neurological Recovery: INR CA in Los Angeles, California, and
INR FL in Palm Beach County, Florida. Dr. Tobinick has
developed an unorthodox use for the drug etanercept by
delivering it through perispinal administration, which
involves a needle injection near particular spinal ligaments.
Dr. Tobinick claims that this new use of etanercept is
effective at treating spinal pain, post-stroke neurological
dysfunctions, and Alzheimer's disease. Etanercept is the
generic name of Enbrel, which was first approved by the
United States Food and Drug Administration ("FDA")
in November 1998 to treat rheumatoid arthritis. Notably,
Enbrel has not been FDA approved for the purposes which Dr.
Tobinick seeks to use the drug.
Novella ("Dr. Novella") is a neurologist at Yale
New Haven Hospital in the Botulinum Program and treats
patients with a variety of conditions, including headaches,
back pain, Alzheimer's disease, dementia, and seizures.
Dr. Novella also engages in endeavors apart from these
professional obligations. For instance, he is on the board of
the non-profit Society for Science-Based Medicine, Inc.
("Society"). In addition, in May 2005, Dr. Novella
began working with his brother, Jay Novella
("Jay"), to produce and broadcast a podcast that
discusses a variety of scientific issues. This podcast,
"The Skeptics Guide to the Universe, " is hosted on
a website (www.theskepticsguide.org) owned by the for-profit
company SGU Productions, LLC ("SGU"). Also, Dr.
Novella is the executive editor of and contributor for the
Science-Based Medicine ("SBM") blog
(www.sciencebased medicine.org), which examines issues
related to science and medicine, and is operated by a
non-profit entity, the New England Skeptical
response to a May 5, 2013, Los Angeles Time article
discussing Dr. Tobinick's novel treatments, Dr. Novella
published an article "Enbrel for Stroke and
Alzheimer's" in SBM's blog on May 8, 2013 (the
"first article"). In this six-page article, Dr.
Novella explains that he learned of the Los Angeles
Time article, the typical characteristics of "quack
clinics" or "dubious health clinics, " the key
features of Dr. Tobinick's clinic, and lastly the
plausibility of and the evidence supporting Dr.
Tobinick's allegedly effective use of etanercept.
Particularly relevant to this case, Dr. Novella also quotes a
portion of the Los Angeles Time article, which
reported that "[Dr. Tobinick's] claims about the
back treatment led to an investigation by the California
Medical Board, which placed him on probation for
unprofessional conduct and made him take classes in
prescribing practices and ethics." Am. Compl. Ex. 1 at
3, Edward Lewis Tobinick, MD v. Novella, No.
9:14-cv-80781-RLR (S.D. Fla. Aug. 1, 2014), ECF No. 55
9, 2014, the Tobinick Appellants filed a complaint against
Appellees Dr. Novella, the Society, SGU (collectively, the
"Novella Appellees"), and also Yale University
("Yale"), challenging Dr. Novella's first
article. In response to the lawsuit and on July 23, 2014, Dr.
Novella published another article in SBM's blog entitled
"Another Lawsuit To Suppress Legitimate Criticism - This
Time SBM" (the "second article"). In the
second article, Dr. Novella details the lawsuit filed by the
Tobinick Appellants and provides Dr. Novella's view that
the lawsuit is designed to silence his public criticism of
Dr. Tobinick's practices. He also restates in large part
his same criticisms of Dr. Tobinick's practices as set
forth in the first article. In doing so, Dr. Novella again
mentions the Medical Board of California
("MBC")'s investigation into Dr. Tobinick's
practices, explains that the MBC "filed an accusation in
2004, amended in 2005 and 2006, " and lists in detail
the different allegations made in the 2004 Accusation against
Dr. Tobinick. Am. Compl. Ex. 5 at 3-4.
Course of Proceedings
stated above, the Tobinick Appellants filed their initial
complaint on June 9, 2014. On June 11, 2014, the Tobinick
Appellants moved for a preliminary injunction to enjoin the
Novella Appellees from continuing to display the articles. On
August 1, 2014, the Tobinick Appellants filed an amended
complaint to add allegations relating to the second article
that was published just nine days prior. This operative
amended complaint contests several aspects of the first
article, including claims that these neurological conditions
"not known to be immune mediated [can be] treated by a
specific immunosuppressant, " claims that Dr. Tobinick's
retrospective case studies are not probative medical
evidence, implications that Dr. Tobinick is committing a
health fraud, statements that Dr. Tobinick's clinics are
"a one-man institute, " and that Florida is a
"very quack-friendly state." Am. Compl.
¶¶ 54, 60, 63, 69, 71. Regarding the second
article, the Tobinick Appellants' operative complaint
specifically takes issue with only one new statement therein,
that "there have been no double-blind placebo-controlled
clinical trials of the treatment provided by [Dr.
Tobinick]." Am. Compl. ¶ 102. These disputes are
covered in the operative complaint by the following causes of
action: violation of the Lanham Act, 15 U.S.C. § 1125(a)
(Count I); common law unfair competition (Count II); trade
libel (Count III); libel per se (Count IV); and tortious
interference with business relationships (Count V).
August 8, 2014, and August 13, 2014, SGU and Yale,
respectively, moved to dismiss the action as to them for lack
of personal jurisdiction. On August 11, 2014, Dr. Novella
moved to dismiss all claims against him for various reasons.
On August 18, 2014, the Society moved to dismiss the action
against it for failure to state a claim, or for summary
judgment, because, inter alia, the Society did not engage in
false advertising under the Lanham Act.
September 25, 2014, pursuant to SGU's and Yale's
motions to dismiss for lack of personal jurisdiction, the
district court dismissed each from the case. On September 30,
2014, Dr. Novella invoked California's anti-SLAPP
law and moved to strike the only
California plaintiff's, INR CA's, state law claims.
On January 23, 2015, the district court denied Dr.
Novella's motion to dismiss in nearly all respects but
granted his motion to dismiss Count V of the amended
complaint, i.e., the tortious interference claim, because
Florida's single publication rule barred that claim. The
Tobinick Appellants do not challenge this dismissal on
March 16, 2015, after converting the Society's motion to
dismiss into a motion for summary judgment, the district
court granted summary judgment in favor of the Society with
respect to the Lanham Act (Count I) and the unfair
competition (Count II) claims, explaining that the articles
were not commercial speech. The district court also dismissed
without prejudice the trade libel (Count III) and libel per
se (Count IV) claims against the Society because the Tobinick
Appellants failed to properly notice the Society of these
claims as required by Florida law. The district court,
therefore, dismissed the Society from the action, but it did
provide the Tobinick Appellants leave to re-file their claims
against the Society in a separate suit. On April 2, 2015, following limited
discovery, the district court denied the Tobinick
Appellants' motion for a preliminary injunction.
11, 2015, the deadline for amended pleadings, the Tobinick
Appellants moved for leave to file a second amended
complaint, adding new factual allegations some of which
related to new webpages and a podcast that discussed Dr.
Tobinick,  raising a new claim for
common law civil conspiracy, re- asserting claims against the
previously-dismissed defendant SGU, and inserting two new
defendants-Jay and Paul Ingraham ("Ingraham"), a
co-blogger of Dr. Novella. On May 15, 2015, the Tobinick
Appellants filed a corrected version of their motion for
leave to amend.
4, 2015, the district court granted Dr. Novella's special
motion to strike INR CA's state law claims
("anti-SLAPP order"). On June 18, 2015, the
district court issued an omnibus order denying the Tobinick
Appellants' corrected motion for leave to file a second
amended complaint. In that omnibus order, the district court
also granted Dr. Tobinick's and INR FL's request for
voluntary dismissal of Counts III and IV for trade libel and
libel per se, respectively. Shortly thereafter, on June 25,
2015, Dr. Novella filed his answer to the operative amended
August 18, 2015, the Tobinick Appellants again moved for
leave to file another second amended complaint in order to
add a claim under the Florida Deceptive and Unfair Trade
Practices Act ("FDUTPA"). On August 20, 2015, the
district court denied the Tobinick Appellants' motion.
August 25, 2015, Dr. Novella moved for summary judgment on
all remaining claims. On September 1, 2015, the Tobinick
Appellants filed two motions based on the allegation that Dr.
Novella provided false deposition testimony, one motion
pursuant to Rule 37 seeking sanctions and one pursuant to
Rule 60(b) seeking reconsideration of the district
court's anti-SLAPP order. The Tobinick Appellants argued
that Dr. Novella falsely denied that he had communicated with
the author of the May 5, 2013, Los Angeles Times
article; denied that he had ever discussed Dr. Tobinick with
Ingraham; and denied communicating with another physician,
Stephen Barrett, regarding Dr. Tobinick.
September 15, 2015, the district court denied each of the
Tobinick Appellants' motions based on the alleged
discovery-related abuses. On October 2, 2015, the district
court found that Dr. Novella's speech is not commercial
and then granted summary judgment in favor of Dr. Novella on
both remaining claims. The district court reasoned that the
Tobinick Appellants largely based their unfair competition
claim (Count II) on their Lanham Act false advertising claim
(Count I). The Tobinick Appellants now appeal.
AND STANDARD OF REVIEW
jurisdiction of this appeal pursuant to 28 U.S.C. §
1291. We review de novo "the district court's
interpretation and application of a statute" such as
California's anti-SLAPP statute. Royalty Network,
Inc. v. Harris, 756 F.3d 1351, 1354 (11th Cir. 2014). We
review for an abuse of discretion the district court's
denial of leave to amend and the denial of requests for
relief brought under Rules 37, 56(d), and 60(b). World
Holdings, LLC v. Fed. Republic of Germany, 701 F.3d 641,
649, 654-55 (11th Cir. 2012) (Rule 56(d)); Garfield v.
NDC Health Corp., 466 F.3d 1255, 1270 (11th Cir. 2006)
(leave to amend); Serra Chevrolet, Inc. v. Gen. Motors
Corp., 446 F.3d 1137, 1146-47 (11th Cir. 2006) (Rule
37); Cox Nuclear Pharmacy, Inc. v. CTI, Inc., 478
F.3d 1303, 1314 (11th Cir. 2000) (Rule 60(b)).
we review a grant of summary judgment de novo, "viewing
all facts in the light most favorable to the nonmoving party
and drawing all reasonable inferences in favor of that
party." McCullum v. Orlando Reg'l Healthcare
Sys., Inc., 768 F.3d 1135, 1141 (11th Cir. 2014).
"Summary judgment is appropriate where there is no
genuine issue as to any ...