Englert v. Macdonell

• Decision Date: 07 January 2009
• Docket Number: No. 06-35531.,No. 06-35465.,06-35465.,06-35531.
• Citation: 551 F.3d 1099
• Parties: Rodney D. ENGLERT, Plaintiff-Appellee, v. Herbert Leon MACDONELL, Terry L. Laber, and Peter R. DeForest, Defendants, and Barton P. Epstein, Stuart H. James, and Patricia Lough, Defendants-Appellants. Rodney D. Englert, Plaintiff-Appellee, v. Herbert Leon MacDonell, Defendant-Appellant, and Terry Laber, Barton P. Epstein, Peter R. DeForest, Stuart H. James, and Patricia Lough, Defendants.
• Court: U.S. Court of Appeals — Ninth Circuit

551 F.3d 1099

Rodney D. ENGLERT, Plaintiff-Appellee, v. Herbert Leon MACDONELL, Terry L. Laber, and Peter R. DeForest, Defendants, and Barton P. Epstein, Stuart H. James, and Patricia Lough, Defendants-Appellants.

Rodney D. Englert, Plaintiff-Appellee, v. Herbert Leon MacDonell, Defendant-Appellant, and Terry Laber, Barton P. Epstein, Peter R. DeForest, Stuart H. James, and Patricia Lough, Defendants.

No. 06-35465.

No. 06-35531.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 8, 2008.

Filed January 7, 2009.

Eric J. Neiman, Heather J. Van Meter, Williams, Kastner & Gibbs P.L.L.C., Portland, OR, for Appellant Herbert Leon MacDonell.

Charles F. Hinkle, Stoel Rives LLP, Portland, OR, for Appellants Barton P. Epstein, Stuart H. James, and Patricia Lough.

Robert K. Udziela, Portland, OR; Victor Calzaretta, Portland, OR, for Appellee Rodney D. Englert.

Appeal from the United States District Court for the District of Oregon, Ann L. Aiken, District Judge, Presiding. D.C. No. CV-05-01863-ALA.

Before RICHARD C. TALLMAN and RICHARD R. CLIFTON, Circuit Judges, and EDWARD R. KORMAN,^* District Judge.

OPINION

KORMAN, District Judge:

Oregon has enacted a law of a kind popularly known as a "SLAPP" or an "anti-SLAPP" statute. Or.Rev.Stat. § 31.150, et seq. (2001). The acronym SLAPP stands for "strategic lawsuit against public participation." The statute creates a procedural defense to civil actions that can dismiss a case without prejudice at the pleading stage, based on an apparent weighing and balancing of the likelihood of success on the merits at trial. See Staten v. Steel, 222 Or.App. 17, 191 P.3d 778, 788 (2008). The defendants in the present case appeal from an order of the United States District Court for the District of Oregon (Aiken, J.), which declined to dismiss at the pleading stage the defamation complaint filed by the plaintiff.

The complaint alleged that the six named defendants, all forensic scientists in blood pattern analysis, had falsely denigrated plaintiff's qualifications in that speciality. See Englert v. MacDonell, No. 05-cv-1863, 2006 WL 1310498, at *1-3 (D.Or. May 10, 2006). The defendants, who were not citizens of Oregon, collectively removed this case to the United States District Court for the District of Oregon pursuant to 28 U.S.C. § 1441. Id. at *1. They then filed special motions to strike pursuant to Or.Rev.Stat. § 31.150. Id. On May 10, 2006, the district court granted the motions of two of the six defendants, Peter R. DeForest and Terry L. Laber, and denied in part the special motions by the remaining four defendants, Herbert Leon MacDonell, Barton P. Epstein, Stuart H. James, and Patricia Lough. Id. at *11-12. The latter four defendants then filed notices of appeal.

The threshold issue is whether we have jurisdiction to entertain their appeal. An analysis of the Oregon anti-SLAPP statute provides a helpful backdrop to our discussion of this issue. The acronym "SLAPP" does not appear in the Oregon statute. Instead, the provisions of the statute appear under the caption, "Special motion to strike; availability; burden of proof." Or. Rev.Stat. § 31.150. The statute, which was modeled after, although not a mirror image of, a similar California statute, see Oregon House Committee on the Judiciary, HB 2460, OR B. Summ., 2001 Reg. Sess. H.B. 2460 (West Apr. 16, 2001), provides for a special motion to strike any claim in a civil action that arises out of

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other 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 body or other proceeding authorized by law;

(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or

(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

Or.Rev.Stat. § 31.150(2).

A defendant making a special motion to strike has the initial burden of making "a prima facie showing" that the claim against which the motion is made arises out of the conduct described in the foregoing paragraph. Or.Rev.Stat. § 31.150(3). Once he satisfies this burden, the burden then shifts to the plaintiff "to establish that there is a probability that the plaintiff will prevail on the claim by presenting substantial evidence to support a prima facie case." Id.

The filing of the special motion to strike also automatically stays all discovery until it is decided, although the court may for good cause shown permit discovery, Or. Rev.Stat. § 31.152(2), and the statute provides that a defendant who prevails on a special motion to strike shall "be awarded reasonable attorney['s] fees and costs." Or.Rev.Stat. § 31.152(3). Consistent with provisions for a stay of discovery, Or.Rev. Stat. § 31.150(4) provides that a motion to strike shall be resolved on the "pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."

The Oregon anti-SLAPP statute does not alter the substantive law of defamation, Or.Rev.Stat. § 31.155(2), nor does it alter the burden of proof that a plaintiff would have to meet if the case proceeded to trial. Or.Rev.Stat. § 31.150(5)(b). Instead, it is a procedural mechanism to permit a defendant to avoid trial, and pretrial discovery, until a judge determines that there is "a probability that the plaintiff will prevail." Or.Rev.Stat. § 31.150(3). In this respect it serves the same purpose as a motion for summary judgment, although it imposes a "potentially much heavier [burden on a plaintiff] than merely establishing the existence of a disputed issue of fact." Staten, 191 P.3d at 788.

Notwithstanding this difference, for the purpose of resolving the jurisdictional issue, we see no meaningful difference between the two. Thus, we treat this appeal from the order of the district court denying the special motion to strike in the same way we would the denial of a motion for summary judgment, and we dismiss it because we are without jurisdiction to consider it. We leave for another day the issue whether the "much heavier burden," which Oregon's anti-SLAPP statute places on a plaintiff to avoid a pre-trial dismissal of his complaint, creates the kind of "direct collision" with Fed.R.Civ.P. 56(c) that would preclude its application here. Walker v. Armco Steel Corp., 446 U.S. 740, 749-50, 100 S.Ct. 1978, 64 L.Ed.2d 659 (1980); see also Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 845 (9th Cir.2001) (holding that a provision of the California anti-SLAPP statute, comparable to that of Or.Rev.Stat. § 31.152(2), making the availability of discovery discretionary, is inconsistent with Fed.R.Civ.P. 56(f)).

Discussion

"The historic policy of the federal courts has been that appeal will lie only from a final decision." Charles Alan Wright & Mary Kay Kane, Federal Practice & Procedure: Federal Practice Deskbook § 108 (2008). This policy, first declared in the Judiciary Act of 1789, 1 Stat. 73, 84 §§ 21, 22, 25, is now codified in 28 U.S.C. § 1291, pursuant to which this appeal is taken, and which specifically confers jurisdiction on the courts of appeals "from all final decisions of the district courts of the United States." "A'final decision' generally is one which ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945); accord Cunningham v. Hamilton County, Ohio, 527 U.S. 198, 204, 119 S.Ct. 1915, 144 L.Ed.2d 184 (1999); Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 497, 109 S.Ct. 1976, 104 L.Ed.2d 548 (1989). This rule serves several salutary purposes.

It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piece-meal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of avoid[ing] the obstruction to just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of judgment. The rule also serves the important purpose of promoting efficient judicial administration.

Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (internal citations and quotation marks omitted); see also Cunningham, 527 U.S. at 203-04, 119 S.Ct. 1915.

The order here denying the appellants' special motion to strike is not a final decision. On the contrary, rather than ending the litigation on the merits, it permits the litigation to proceed in the ordinary manner to a final judgment. Nor did the appellants obtain authorization pursuant to 28 U.S.C. § 1292(b), which would have conferred on us the discretion to hear the appeal, by convincing the district judge to certify that the order denying the motion to strike "involves a controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation." 28 U.S.C. § 1292(b); see, e.g., Keogh v. Pearson, 244 F.Supp. 482, 486 (D.D.C.1965), rev'd sub nom. Wash. Post Co. v. Keogh, 365 F.2d 965 (D.C.Cir.1966) (granting such a certification in a defamation action, permitting the D.C. Circuit to entertain jurisdiction over the ensuing...