Conroy v. Clark

• Decision Date: 29 October 2020
• Docket Number: Case No. 3:20-cv-00366-SB
• Parties: EMILY CATHERINE CONROY, Plaintiff, v. KATHERINE CLARK, Defendant.
• Court: U.S. District Court — District of Oregon

EMILY CATHERINE CONROY, Plaintiff, v. KATHERINE CLARK, Defendant.

Case No. 3:20-cv-00366-SB

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

October 29, 2020

FINDINGS AND RECOMMENDATION

BECKERMAN, U.S. Magistrate Judge.

Plaintiff Emily Catherine Conroy ("Conroy") filed this action against defendant Katherine Clark ("Clark"), asserting state law claims for invasion of privacy and intentional infliction of emotional distress ("IIED").¹ Clark filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b), and a special motion to strike under Oregon's anti-SLAPP statute, OR. REV. STAT. § 31.150. (ECF No. 19.) The Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). For the reasons discussed herein, the Court recommends that the district judge deny Clark's motions.

BACKGROUND

In 2018, Clark edited and secured publishing for the book My Exaggerated Life, an oral autobiography based on interviews she conducted with the late author Pat Conroy. (First Am. Compl. ("FAC") ¶ 13.) Plaintiff Conroy is Pat Conroy's stepdaughter. (FAC ¶ 7.) Clark's book includes details about Dr. Alan Fleischer's (Conroy's biological father) sexual abuse of Conroy when she was a child. (FAC ¶¶ 6-7, 14.)

Conroy reported the abuse as a child, and Dr. Fleischer was indicted for one count of child molestation. (FAC ¶¶ 8-9.) Several newspaper articles in the late 1980s discussed the sexual abuse allegations. (FAC ¶ 10.) Conroy alleges that none of those articles identified her as the victim, nor detailed the acts Dr. Fleischer committed. (Id.) Conroy alleges that no "significant information" about the abuse or her identity surfaced after approximately 1990. (Id.)

Conroy asserts that she is a private person by nature and that, before My Exaggerated Life's publication, few people knew about her childhood abuse or that Pat Conroy was her stepfather. (FAC ¶ 11.) Clark never sought nor obtained Conroy's consent for the publication. (FAC ¶ 15.) Conroy alleges that the book's publication destroyed her anonymity and privacy and, as a result, she has suffered substantial emotional distress. (FAC ¶¶ 12, 18.)

DISCUSSION

I. LEGAL STANDARDS

A. Oregon's Anti-SLAPP Statute

1. Anti-SLAPP Motions in Oregon Courts

Oregon's anti-SLAPP statute,² OR. REV. STAT. § 31.150, "creates an expedited procedure for dismissal of certain nonmeritorious civil cases without prejudice at the pleading stage."Neumann v. Liles, 358 Or. 706, 723 (2016). Application of Oregon's anti-SLAPP statute is a "two-step burden-shifting process." Wingard v. Or. Family Council, Inc., 290 Or. App. 518, 521 (2018). The moving defendant must first demonstrate that "the claim against which the motion is made arises out of statements or conduct protected by OR. REV. STAT. § 31.150(2). The statute protects, in relevant part, "[a]ny . . . 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" and "[a]ny other 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." Id. If the defendant meets her burden, the plaintiff must "establish that there is a probability that [she] will prevail on the claim by presenting substantial evidence to support a prima facie case." OR. REV. STAT. § 31.150(3).

The second step of the analysis is typically not constrained to the pleadings. See Bryant v. Recall for Lowell's Future Comm., 286 Or. App. 691, 693 (2017) (considering "facts as provided in the pleadings and the supporting and opposing declarations and exhibits submitted"); see also OR. REV. STAT. § 31.150(4) ("[T]he court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."). When presented with conflicting evidence, courts "adopt the version that is most favorable to plaintiff, so long as it is supported by substantial evidence." Plotkin v. State Accident Ins. Fund, 280 Or. App. 812, 816 (2016) (citation omitted). Courts consider a defendant's opposing evidence "'only to determine if it defeats plaintiff's showing as a matter of law.'" Bryant, 286 Or. App. at 693 (quoting Plotkin, 280 Or. App. at 816).

2. Anti-SLAPP Motions in Federal Court

Federal courts generally apply state substantive law and federal procedural law. See Hanna v. Plumer, 380 U.S. 460, 465 (1965). Although anti-SLAPP motions are a procedural mechanism to vindicate existing substantive rights, federal courts have generally allowed suchmotions. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999) (holding that some of California's anti-SLAPP provisions do not "directly interfere with the operation" of the Federal Rules of Civil Procedure); see also Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (applying Oregon's anti-SLAPP statute). However, the Ninth Circuit has held that not all provisions of a state's anti-SLAPP statute apply in federal court. See Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that "the discovery-limiting aspects of [anti-SLAPP motions] collide with the discovery-allowing aspects of Rule 56"); see also AR Pillow Inc., v. Maxwell Payton, LLC, No. C11-1962-RAJ, 2012 WL 6024765, at *3 (W.D. Wash. Dec. 4, 2012) ("[T]he Ninth Circuit's holding that the automatic stay of discovery in California's statute does not apply in federal court applies equally to [Washington's anti-SLAPP statute].").

To eliminate any lingering conflict, the Ninth Circuit recently adopted a tiered approach to anti-SLAPP motions. See Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834-35 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018), and cert. denied sub nom. Ctr. for Med. Progress v. Planned Parenthood Fed'n of Am., 139 S. Ct. 1446 (2019). "[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated." Planned Parenthood, 890 F.3d at 834. By contrast, "when an anti-SLAPP motion to strike challenges the factual sufficiency of a claim, . . . the Federal Rule of Civil Procedure 56 standard will apply." Id. If the defendant's motion challenges the factual sufficiency of a claim, "discovery must be allowed . . . before any decision is made by the court." Id. This is because "[r]equiring a presentation of evidence without accompanying discovery would improperly transform the motion to strike under the anti-SLAPP law into a motion forsummary judgment without providing any of the procedural safeguards that have been firmly established by the Federal Rules of Civil Procedure." Id.; see also Chase v. Gordon, Aylworth & Tami, P.C., No. 3:18-cv-00568-AC, 2020 WL 1644310, at *13 (D. Or. Feb. 14, 2020) ("Here, there has been no discovery, and the court examines only the legal sufficiency of the Defendants' anti-SLAPP motion to strike under Rule 12(b)(6)." (citation omitted)).

B. Motions to Dismiss

"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted) (citing Iqbal, 556 U.S. at 678)).

II. ANALYSIS

A. Anti-SLAPP Motion to Strike

Clark moves to strike Conroy's complaint pursuant to Oregon's anti-SLAPP statute, arguing that the anti-SLAPP statute applies here because Conroy's claims "are based on published statements in connection with an issue of public interest and conduct in furtherance of the constitutional right of free speech in connection with an issue of public interest." (Def.'s Mot. Dismiss at 1.)

At the first step of the anti-SLAPP analysis, the Court would typically determine if Clark has demonstrated that the challenged statements in her book were made "in a place open to thepublic or a public forum" and "in connection with an issue of public interest." OR. REV. STAT. § 31.150(2). However, the Court need not resolve the first step here, because even if the anti-SLAPP statute applies, the Court has determined that Conroy has stated a claim pursuant to Rule 12(b)(6). See Planned Parenthood, 890 F.3d at 834 (holding that "when an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated").³ For the reasons discussed below, Conroy has stated a claim for both invasion of privacy and IIED under Oregon law, and therefore her claims necessarily survive Clark's anti-SLAPP motion and the Court need not determine if Oregon's anti-SLAPP statute applies here.⁴ See Zweizig v. Nw. Dir. Teleservices, Inc., No. 3:15-cv-02401-HZ, 2018 WL 6062316, at *2 (D. Or. Nov. 20, 2018) (denying the plaintiff's motion for reconsideration of the court's decision to grant an anti-SLAPP motion before allowing for discovery because "applying the standards outlined in Planned Parenthood," the claim was "legally insufficient"); Clifford v. Trump, 339 F. Supp. 3d 915, 922 (C.D. Cal. 2018) (finding that an anti-SLAPP motion is analogous to a motion to dismiss). Accordingly, the Court denies Clark's anti-SLAPP motion to strike.

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B. Rule 12(b)(6) Motion to Dismiss

Clark also moves to dismiss Conroy's claims for failure to state a...