563 F.3d 981 (9th Cir. 2009), 06-35437, Gardner v. Martino

Docket Nº:06-35437, 06-35931.
Citation:563 F.3d 981
Party Name:John M. GARDNER; Susan L. Gardner, husband and wife; Mt. Hood Polaris, Inc., an Oregon corporation, Plaintiffs-Appellants, v. Tom MARTINO, dba Tom Martino Show; Westwood One, Inc., a Delaware corporation; Clear Channel Communications, Inc., a Texas corporation, Defendants-Appellees. John M. Gardner; Susan L. Gardner, husband and wife; Mt. Hood Pola
Case Date:April 24, 2009
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

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563 F.3d 981 (9th Cir. 2009)

John M. GARDNER; Susan L. Gardner, husband and wife; Mt. Hood Polaris, Inc., an Oregon corporation, Plaintiffs-Appellants,


Tom MARTINO, dba Tom Martino Show; Westwood One, Inc., a Delaware corporation; Clear Channel Communications, Inc., a Texas corporation, Defendants-Appellees.

John M. Gardner; Susan L. Gardner, husband and wife; Mt. Hood Polaris, Inc., an Oregon corporation, Plaintiffs-Appellants,


Tom Martino, dba Tom Martino Show; Westwood One, Inc., a Delaware corporation, Defendants-Appellees.

Nos. 06-35437, 06-35931.

United States Court of Appeals, Ninth Circuit.

April 24, 2009

Argued and Submitted July 7, 2008.

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[Copyrighted Material Omitted]

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Linda L. Marshall, Lake Oswego, OR, for the plaintiffs-appellants.

Charles F. Hinkle, Stoel Rives LLP, Portland, OR, for the defendants-appellees.

Appeal from the United States District Court for the District of Oregon, Anna J. Brown, District Judge, Presiding. D.C. No. CV-05-00769-BR/HU.

Before HARRY PREGERSON and STEPHEN REINHARDT, Circuit Judges, and CONSUELO B. MARSHALL,[*] District Judge.


MARSHALL, District Judge:

Plaintiffs-Appellants, John M. Gardner, Susan L. Gardner, and Mt. Hood Polaris, Inc. (collectively " Appellants" ) brought this action against Defendants-Appellees, Tom Martino, Westwood One, Inc., (collectively " Appellees" ) and Clear Channel Communications, Inc.,1 for defamation, false light invasion of privacy, intentional interference with economic relations, and intentional interference with prospective economic advantage, based on statements made by Martino during his live radio show broadcast on station KHOW in Denver, Colorado (later rebroadcast on station KEX in Portland, Oregon).

The action was dismissed without prejudice after the district court granted Appellees' special motion to strike under Oregon's anti-SLAPP statute, Or.Rev.Stat. § 31.150, and held that Martino's statements were not defamatory as a matter of law. The district court also denied two requests by Appellants to amend the complaint and subsequently awarded attorney's fees 2 to Appellees as the prevailing party pursuant to Oregon's anti-SLAPP statute, Or.Rev.Stat. § 31.152. Appellants timely appeal. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm.


John and Susan Gardner own and operate Mt. Hood Polaris, Inc., a retail store located in Boring, Oregon that sells personal watercraft (" PWC" ) and other recreational vehicles. Melissa Feroglia (" Feroglia" ) purchased a PWC manufactured by Polaris Industries, Inc.3 from Appellants.

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Shortly thereafter, the PWC she purchased experienced several overheating problems. Feroglia asked John Gardner for a refund but did not receive one.

The Tom Martino Show is a nationally-syndicated radio talk show that airs telephone conversations between Martino and callers seeking help with their consumer problems. Feroglia contacted The Tom Martino Show about her dispute with Appellants and ultimately, she was invited to call in to the show and explain her problem to Martino live on the air.

Martino spoke with Feroglia and then discussed her complaints over the course of approximately fifty-five minutes. Relevant portions of the program are as follows:

Segment One

Martino: All right, I'm Tom Martino, let's talk to Melissa [Feroglia] who wants to talk about a jet ski she's not happy with ... why are you unhappy with this jet ski?

Feroglia: Well, I've owned it for four and half months, and it's only run for 25 hours.

Martino: Why?

Feroglia: And it's been in the shop ...

Martino: Why, why?

Feroglia: Multiple over-heating problems.


Martino: What kind is it?

Feroglia: It's a Polaris MSX150.


Martino: Well, why aren't they fixing it?

Feroglia: They've tried. They put a new engine in at 18 hours.

Martino: A whole new engine?

Feroglia: A whole new engine. And that didn't work. Labor Day weekend it broke down again. The problem is when it breaks down it stops running.


Feroglia: They've [Appellants] had it since September 8th. The dealer [John Gardner] told me he was taking it back, that it was too much trouble for him to work on, and in his opinion it was a bad machine. He wrote out an invoice saying that it was a buy back, and now they are not honoring that.

Martino: So, you don't have anything? You don't have your money or the machine?

Feroglia: No.

Martino: Will he give your machine back?

Feroglia: He will. He says that they think they've corrected the problem. They took an intake valve that brings water to cool it ...

Martino: Yeah.

Feroglia: ... and drilled it out to make it bigger and see if that would help.

Martino: Why don't they ...

Feroglia: It's not a new part, they just stuck a drill in it.

Martino: Why don't they, why don't they go out and try it?

Feroglia: Well, on the 8th when I called and asked why it hadn't been tried, they said, all of a sudden they called me back two hours later and said, oh, we did try it, it works great.

Martino: Yeah, they're just, yeah, they're just lying to you.

Feroglia: Right, ‘ cause now it's November in Washington and I can't ride it to find out.

Martino: Yeah, and you won't know until next spring. But you have in writing something that says a buy back.

Feroglia: No, he put it in writing, and I asked for a copy. He said I didn't need it. However, I do have the senior shop technician verifying that he had the buy back order and was told not to work on the boat.

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Martino: You actually have, what do you mean you have him? He'll admit it?

Feroglia: He did admit it to me on ...

Martino: No, but will he admit it to us? Will they admit to us that they ... they went back on their word?

Feroglia: I don't know, they might.

Segment Two

Martino Now, Chris,4 you called the dealer, this Polaris dealer and what's the name of the dealer, let's clarify.

Chris: Yes. It is Mt. Hood Polaris.

Martino: Mt. Hood Polaris. And they say what? They ... did they admit they promised her to buy it back?

Chris: No, I spoke with the general manager and he basically said, " You're going to have to contact Polaris" And that's it. I said, " You don't want to help her at all? You don't want to at least assist her in this process?"

Segment Three

Martino: I'm going to say this, Polaris sucks.


Martino: So, we called the dealer. The dealer says " There's nothing we can do for her. We're not going to talk about it. She needs to go through the manufacturer." So, we called the manufacturer-Polaris Industries. They said she has to go through the dealer. Now listen carefully. She has to go through the dealer. The dealer says she has to go through the manufacturer. Mt. Hood Polaris, Polaris Industries equals sucks. Why? Because she has nowhere to go. Ping, pong [clicking noises] Polaris Industries, Mt. Hood Polaris. I urge you to let them know you will never buy a Polaris product knowing that they treat people like this.


Appellants filed their initial complaint in the Circuit Court for the State of Oregon for the County of Clackamas. The complaint was subsequently removed by Appellees to federal court on the basis of diversity and federal question jurisdiction. 28 U.S.C. § § 1331, 1332. Thereafter, Appellants filed a first amended complaint in federal court as a matter of right pursuant to Fed.R.Civ.P. 15(a). Appellants' claims in the first amended complaint are based on Martino's statements in segment one of the broadcast, " they are just lying to you" and " [w]ill they admit to us they lied, they went back on their word." 5

Appellees moved to strike all claims in the complaint pursuant to Or.Rev.Stat. § 31.150. Magistrate Judge Dennis James Hubel recommended granting Appellees' motion to strike and concluded as a matter of law that Martino's statements were nonactionable opinion under both the First Amendment and Oregon common law.6

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The Magistrate referred the Findings and Recommendation to District Judge Anna J. Brown for her review. Judge Brown adopted the recommendation and dismissed the action without prejudice.

A. Oregon's Anti-SLAPP Statutes

Or.Rev.Stat. § § 31.150-31.155 comprise Oregon's anti-SLAPP (" Strategic Lawsuit Against Public Participation" ) statutes. Anti-SLAPP statutes are designed to allow the early dismissal of meritless lawsuits aimed at chilling expression through costly, time-consuming litigation. Verizon Delaware, Inc. v. Covad Comms. Co., 377 F.3d 1081, 1090 (9th Cir.2004). Section 31.150 allows defendants to bring a special motion to strike a claim which shall be treated as a motion to dismiss under Or. R. Civ. P. 21 A and requires the court to enter a " judgment of dismissal without prejudice" if the motion is granted. The court's consideration of a special motion to strike is a two-step process. First, the defendant has the initial burden to show that the challenged statement is within one of the categories of civil actions described in Or.Rev.Stat. § 31.150(2).7 If the defendant meets the initial burden, " the burden shifts to the plaintiff in the action 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. If the plaintiff meets this burden, the court shall deny the motion." Or.Rev.Stat. § 31.150(3).

Appellants do not challenge that the Appellees met their initial burden to show that Martino's statements fall within one of the categories of civil actions described in Or.Rev.Stat. § 31.150(2). Instead, Appellants appeal the district court's ruling that Appellants failed to meet their burden of establishing that there is a probability that...

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