In Shady Grove Ortho pedic Assocs., P.A. v. Allstate Ins. Co., 559 U.S. 393 (2010), this Court held that a valid Federal Rule of Civil Proce dure governs over a state procedural rule if the two rules "answer the same ques tion." Id. at 399. The Court out lined a twopronged test: A federal rule governs when it (1) "answer[s] the same question" as the state law, and (2) it is not "ultra vires." Id. This Court also made clear that rules on pleadings and summary judg ment are "ostensibly addressed to proce dure." Id. at 404.

This case involves the Texas Citizens' Participa tion Act ("TCPA"). The TCPA, like Fed. R. Civ. P. 12 and 56, provides a "proce dure for the ex pedited dismissal of [merit less] suits." In re Lipsky, 460 S.W.3d 579, 586 (Tex. 2015) (emphasis added). Applying Shady Grove, the Fifth Circui t held that the TCPA answers the same ques tions as Fed. R. Civ. P. 12 and 56—i.e., "what are the circum stances under which a court must dismiss a case before trial?" The Fifth Circuit held that the TCPA is inapplicable in fe deral court. But in the deci sion below, the Ninth Circuit split with the Fifth Circuit, holding that the TCPA applies in federal court. Thus, the Second, Fifth, Tenth, Eleventh, and D.C. Circuits all hold that statutes like the TCPA are inapplicable, while the First and Ninth Circuits apply them.

Does the TCPA apply in Federal Court diversity jurisdiction cas es under Erie R.R. Co. v. Tompkins, 304 U.S. 64 (1938)?

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