ERIC COOMER, Ph.D.,

Plaintiff - Appellee,

v. No. 23-1109

MAKE YOUR LIFE EPIC LLC, d/b/a ThriveTime Show; CLAYTON THOMAS CLARK,

Defendants - Appellants. _________________________________

Appeal from the United States District Court for the District of Colorado (D.C. No. 1:21-CV-03440-WJM-KLM) _________________________________

Thomas B. Quinn, Gordon Rees Scully Mansukhani LLP, Denver, Colorado (John R. Mann and Melissa A. Weise, Gordon Rees Scully Mansukhani LLP, with him on the briefs), for Defendants-Appellants.

Zachary H. Bowman, Cain & Skarnulis PLLC, Austin, Texas (Charles J. Cain, Bradley A. Kloewer, and David E. Jennings, Cain & Skarnulis PLLC, Salida, Colorado, with him on the brief), for Plaintiffs-Appellees. _________________________________

Before HARTZ, PHILLIPS, and CARSON, Circuit Judges. _________________________________

PHILLIPS, Circuit Judge. _________________________________

Soon after the 2020 presidential election, Make Your Life Epic LLC

(doing business as ThriveTime Show) and its podcast host, Clayton Clark Appellate Case: 23-1109 Document: 010111036646 Date Filed: 04/23/2024 Page: 2

(collectively, “Epic”), began publishing and repeating false claims about Dr.

Eric Coomer, the then-director of product strategy and security at Dominion

Voting Systems (an election-tech company). 1 Epic claimed that Dr. Coomer was

a member of “Antifa” and had rigged the election in favor of Joseph R. Biden

and against Donald J. Trump. App. vol. I, at 10 ¶ 5.

Dr. Coomer filed this diversity action in the District of Colorado against

Epic asserting claims for defamation, intentional infliction of emotional

distress, and civil conspiracy. Epic filed a “special motion to dismiss” the

lawsuit under the provisions of Colorado’s anti-SLAPP (Strategic Lawsuit

Against Public Participation) statute. Colo. Rev. Stat. § 13-20-1101. The

district court denied this motion after determining that Dr. Coomer would likely

prevail on the merits of all three of his claims.

Epic appealed, asking us to reverse the district court’s order. In response,

Dr. Coomer moved to dismiss Epic’s appeal for lack of appellate jurisdiction.

We hold that the proposed interlocutory appeal falls outside of the collateral-

order doctrine, so we dismiss Epic’s appeal for lack of appellate jurisdiction.

BACKGROUND

I. Factual Background

Days after Joseph Biden defeated Donald Trump in the 2020 presidential

election, Joe Oltmann began publicly accusing Dr. Coomer of rigging the

1 We take the facts as the district court applied them for the limited purpose of determining our appellate jurisdiction. 2 Appellate Case: 23-1109 Document: 010111036646 Date Filed: 04/23/2024 Page: 3

election in favor of Biden and against Trump. Oltmann claimed—initially on

his own podcast and then on other forums—that in September 2020 he had

“infiltrated an Antifa conference call” and overheard someone referred to as

“Eric” and as the “Dominion guy” state: “Don’t worry about the election,

Trump is not gonna win. I made f-ing sure of that. Hahahaha.” App. vol. I, at

23–24 ¶ 29. Oltmann claimed that he had later identified “Eric” as Dr. Coomer,

the then-director of product strategy and security at Dominion Voting Systems.

Id. at 24.

Oltmann repeated these accusations about Dr. Coomer on Epic’s podcast,

the ThriveTime Show. Oltmann appeared as Clark’s guest on the ThriveTime

Show in December 2020, June 2021, and October 2021. During the December

podcast episode, Clark introduced Oltmann as “a whistleblower about Eric

Coomer” and stated: “He joins us today to expose the truth,

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