C.I.C.S. Emp't Servs., Inc. v. Newport Newspapers, Inc.

• Decision Date: 11 April 2018
• Docket Number: A163564
• Citation: 420 P.3d 684,291 Or.App. 316
• Parties: C.I.C.S. EMPLOYMENT SERVICES, INC., Plaintiff-Respondent, v. NEWPORT NEWSPAPERS, INC., dba Newport News-Times ; Rick Beasley; and James Rand, Defendants-Appellants.
• Court: Oregon Court of Appeals

291 Or.App. 316

420 P.3d 684

C.I.C.S. EMPLOYMENT SERVICES, INC., Plaintiff-Respondent,

v.NEWPORT NEWSPAPERS, INC., dba Newport News-Times ; Rick Beasley; and James Rand, Defendants-Appellants.

A163564

Court of Appeals of Oregon.

Argued and submitted November 8, 2017.

April 11, 2018

Judith A. Endejan, Washington, argued the cause for appellants. With her on the briefs was Garvey Schubert Barer.

Cody Hoesly, Portland, argued the cause for respondent. With him on the brief were Larkins Vacura Kayser LLP, Michael R. Seidl, Kelly Fisher, and Seidl Law Office PC.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

SHORR, J.

Defendants appeal a limited judgment denying their special motion to strike brought under ORS 31.150, Oregon's Anti-Strategic Lawsuits Against Public Participation (anti-SLAPP) statute, which they filed in response to a defamation action initially filed by plaintiff in Multnomah County Circuit Court. The case was transferred to Lincoln County Circuit Court pursuant to a motion to change venue filed by defendants and stipulated to by plaintiff. Defendants then filed their special motion to strike. The Lincoln County Circuit Court determined that defendants' motion was untimely because it was filed more than 60 days after plaintiff served its complaint on defendants, which was past the statutory deadline. The trial court then declined to exercise its discretion under the statute to consider the motion despite that deficiency. On appeal, defendants argue that the motion was not untimely, but, if it was, the court abused its discretion by denying the motion on that basis. For the reasons stated below, we affirm the ruling denying defendants' anti-SLAPP motion as untimely.

We state the following background solely as context for understanding defendants' argument on appeal. Plaintiff in this case is C.I.C.S. Employment Services, Inc., a Lincoln City company that provides pre-employment background screening services to employers. Defendants are Newport Newspapers, Inc., dba Newport News-Times , Rick Beasley, a journalist for the paper, and James Rand, the paper's publisher. In 2015, hackers breached a database owned by plaintiff and stole the personal information of over 80,000 individuals, including over 40,000 Oregonians. That information was subsequently used to defraud the Internal Revenue Service. In February 2016, Newport News-Times published a story written by Beasley that reported on the breach and IRS fraud. In response, plaintiff filed a complaint in Multnomah County Circuit Court on April 1, 2016, alleging defamation against defendants. Plaintiff alleged that the Newport News-Times article's headline and text gave readers the inaccurate impression that plaintiff was somehow "linked" to the hacking and fraud rather than being the victim of the crime.

Because this appeal concerns whether defendants timely filed their special motion to strike, we recite the relevant dates in some detail. The initial complaint was served on defendant Newport Newspapers, Inc., on April 6, 2016. On April 19, plaintiff filed an amended complaint, which added a second claim for relief for negligent hiring and retention of Beasley. Beasley and Rand were served with the amended complaint on April 26 and May 10 respectively. Newport Newspapers, Inc., accepted service of the amended complaint through its attorney on May 17.

One month later, on June 17, 2016, defendants filed a motion to change venue to Lincoln County pursuant to ORS 14.080(2) and ORS 14.110(1)(a).¹ Plaintiff eventually stipulated to that motion on July 28 and the trial court entered an order to change venue on August 10.

On August 31, 2016, defendants filed a special motion to strike plaintiff's claims under the anti-SLAPP statute, ORS 31.150, in Lincoln County Circuit Court. Oregon's anti-SLAPP statute provides a mechanism for "a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage." Yes on 24-367 Committee v. Deaton , 276 Or. App. 347, 350, 367 P.3d 937 (2016) (internal quotation marks omitted). The statute allows defendants, before incurring significant expenses, to expeditiously move to dismiss nonmeritorious claims that were filed in a strategic effort to chill participation in public affairs. Clackamas River Water v. Holloway , 261 Or. App. 852, 854 n. 1, 322 P.3d 614 (2014). Relevant to this case, the statute allows defendants to move to strike nonmeritorious claims that arise out of any "conduct in furtherance of the exercise of *** the constitutional right of free speech in connection with a public issue or an issue of public interest." ORS 31.150(2)(d). Courts should "liberally" construe the statute "in favor of the exercise of the rights of expression" it protects, enumerated in ORS 31.150(2). ORS 31.152(4). If granted, the motion effectively operates as a motion to dismiss without prejudice under ORCP 21. ORS 31.150(1).

Oregon's anti-SLAPP statute requires a defendant to file a special motion to strike within 60 days from service of the complaint, although the trial court may exercise its discretion to permit a late filing. See ORS 31.152(1) (stating that the motion "must be filed within 60 days" after service of the complaint "or, in the court's discretion, at any later time"). We have previously explained that "the statute was intended to provide an inexpensive and quick process" to determine if claims that might infringe free speech are frivolous. Page v. Parsons , 249 Or. App. 445, 461, 277 P.3d 609 (2012). That legislative intention "accounts for * * * the 60-day time period for the filing of the special motion to strike in ORS 31.152(1)." Horton v. Western Protector Insurance Company , 217 Or. App. 443, 452, 176 P.3d 419 (2008). Here, the Lincoln County Circuit Court denied defendants' motion as untimely because it was filed more than 60 days—in fact, at least 106 days—after the date of service. The trial court also declined to exercise its discretion to permit a late filing. The court gave its decision from the bench, stating that "the deadline should have been followed and I just don't think that there's a legitimate basis not to have done so." After explaining that the court was deciding "the case on the procedural issue" of timing, the court went on to explain that, even if the motion had been timely, it would have denied the motion on the merits. The written order issued by the court similarly reflected, first, that the court was denying defendants' motion as untimely and the court did "not find good cause for the exercise of [its] discretion" to permit a later filing and, second, that the court would have also denied the motion on the merits.

On appeal, defendants maintain that their motion was timely because Multnomah County was the "wrong venue" for the case. As a result, defendants argue that the 60-day deadline was tolled while defendants' motion to change venue was pending and did not begin to run again until the case had been transferred to Lincoln County. Alternatively, defendants argue that, if the motion was untimely, the Lincoln County Circuit Court abused its discretion by denying the motion.²

The parties initially dispute when the 60-day deadline began to run based on when defendants were served and whether service of the original complaint or the amended complaint provides the correct starting date. However, even assuming that the deadline began to run only after the latest possible date—May 17, when plaintiff served its amended complaint on Newport Newspapers, Inc.—106 days elapsed between that time and August 31 when defendants filed their anti-SLAPP motion.³ As explained below, the 60-day deadline to file an anti-SLAPP motion was not tolled while defendants' motion to change venue was pending. Accordingly, defendants' special motion to strike was untimely.

Defendants argue that they had the right to have the Lincoln County Circuit Court rule on its anti-SLAPP motion because Multnomah County was the "wrong" venue. As a result, defendants contend that the 60-day filing deadline was tolled once defendants filed their motion to change venue under ORS 14.110(1)(a), which permits transfer when "the action or suit has not been commenced in the proper county," and until the case was formally moved to the proper venue.

By way of explanation for their failure to file the anti-SLAPP motion in Multnomah County Circuit Court, defendants point out that ORS 31.152(1) requires a hearing on a special motion to strike within 30 days of filing and that, had defendants filed their motion in Multnomah County Circuit Court, the hearing might have been held there to meet the 30-day deadline even though Multnomah County was the "wrong" venue for the case. Because defendants had moved for a change in venue under ORS 14.110 (1)(a) approximately one month after defendant Newport Newspapers, Inc., was served with plaintiff's amended complaint—well within the 60-day deadline for filing an anti-SLAPP motion—defendants contend that they had a right to have the court in the proper venue preside over the hearing and rule on their anti-SLAPP motion.

Venue, of course, is not the same as jurisdiction. Kohring v. Ballard , 355 Or. 297, 312-13, 325 P.3d 717 (2014) ("[P]ersonal jurisdiction and venue are not the same thing. Jurisdiction refers to the authority of the court to hale a defendant into court, while venue concerns the particular location where it is appropriate for the court to exercise that authority."). Jurisdiction gives the court authority over claims and parties, while venue is a procedural matter that concerns the county or counties where a particular claim for relief should or may be adjudicated. Id. ; Nibler v. Dept. of Transportation , 338 Or. 19, 23, 105 P.3d 360 (2005) (explaining that statutory venue provisions are "procedural in nature"). Accordingly, a court can have jurisdiction over a case even if it is not the proper venue.

While defendants are...