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Schwern v. Plunkett

United States Court of Appeals, Ninth Circuit

January 17, 2017

Michael G. Schwern, Plaintiff-Appellee,
v.
Patrick Plunkett, as personal representative of the Estate of Noirin Plunkett, Defendant-Appellant.

          Argued and Submitted November 9, 2016 Portland, Oregon

         Appeal from the United States District Court for the District of Oregon, No. 3:14-cv-00146-PK Marco A. Hernandez, District Judge, Presiding

          Dan G. Booth (argued), Booth Sweet LLP, Cambridge, Massachusetts, for Defendant-Appellant.

          Bear-Wilner-Nugent (argued), Portland, Oregon, for Plaintiff-Appellee.

          Margaret Garvin and Amy C. Liu, Portland, Oregon, as and for Amicus Curiae National Crime Victim Law Institute.

          Before: M. Margaret McKeown, William A. Fletcher, and Raymond C. Fisher, Circuit Judges.

         SUMMARY[*]

         Oregon Anti-SLAPP Law

         The panel held that the court had jurisdiction to hear immediate appeals from district court denials of Oregon anti-SLAPP ("strategic lawsuit against public participation") motions; and reversed the district court's denial of appellant's anti-SLAPP motion to strike claims because appellee Michael Schwern failed to establish a prima facie case supported by substantial evidence of his claims of defamation, intentional infliction of emotional distress, and intentional interference with economic relations.

         The panel held that in light of Oregon's amendment to its anti-SLAAP statute, this court had jurisdiction to review denials of Oregon anti-SLAPP motions.

         The panel held that Schwern did not establish a probability that he would prevail on his claims, and therefore the motion to strike must be granted. Specifically, the panel held that even when construing the evidence in Schwern's favor, it could not reasonably infer that the appellant was the source of the alleged defamatory accusations against Schwern.

          OPINION

          McKEOWN, Circuit Judge:

         In this appeal we resolve the lingering uncertainty about our jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP ("strategic lawsuit against public participation") motions. Oregon amended its anti-SLAPP statute in 2009 with the purpose of "provid[ing] a defendant with the right to not proceed to trial in cases in which the plaintiff does not meet" the statutory burden. Or. Rev. Stat. § 31.152(4). This amendment, which is akin to a statutory immunity from suit, responded directly to our decision in Englert v. MacDonell, where we held that the prior statute did not provide for interlocutory review. 551 F.3d 1099, 1105-07 (9th Cir. 2009). In view of this legislative change, we conclude that we have jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP motions.

         The motion at issue arises from Nóirín Plunkett's accusation that Michael Schwern raped her in September 2013. When Schwern was arrested, news quickly spread online. Schwern claimed the accusations were false and sued Plunkett for defamation, intentional infliction of emotional distress, and intentional interference with economic relations. The district court ...


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