Conroy v. Mewshaw

• Docket Number: 3:21-cv-00298-SB
• Decision Date: 18 January 2022
• Parties: EMILY C. CONROY, Plaintiff, v. MICHAEL MEWSHAW, an individual; COUNTERPOINT PRESS, a California corporation; BERNIE SCHEIN, an individual; and SKYHORSE PUBLISHING, INC., a Delaware corporation, Defendants.
• Court: U.S. District Court — District of Oregon

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EMILY C. CONROY, Plaintiff, v. MICHAEL MEWSHAW, an individual; COUNTERPOINT PRESS, a California corporation; BERNIE SCHEIN, an individual; and SKYHORSE PUBLISHING, INC., a Delaware corporation, Defendants.

No. 3:21-cv-00298-SB

United States District Court, D. Oregon

January 18, 2022

FINDINGS AND RECOMMENDATION

HON STACIE F. BECKERMAN, United States Magistrate Judge.

This matter comes before the Court on Skyhorse Publishing, Inc. (“Skyhorse”) and Bernie Schein's (“Schein”) (together, “Defendants”) motion for summary judgment and special motion to strike under Oregon's anti-SLAPP statute, Or. Rev. Stat § 31.150.^[1] The Court has jurisdiction over this matter pursuant to 28 U.S.C § 1332. For the reasons that follow, the Court recommends that the district judge deny Defendants' motions.

BACKGROUND

This case concerns a book Schein authored, Pat Conroy: Our Lifelong Friendship (the “Schein book”), and a book Michael Mewshaw (“Mewshaw”) authored, The Lost Prince: A Search for Pat Conroy (the “Mewshaw book”). (Compl. ¶¶ 1, 16-17.) Skyhorse, “through its imprint Arcade publishing, ” published the Schein book on September 10, 2019, and Counterpoint Press (“Counterpoint”) published the Mewshaw book on February 26, 2019. (Compl. ¶¶ 16-17.)

As their titles suggest, the Schein and Mewshaw books address the life of the now-deceased author, Pat Conroy, who passed away in March 2016. (Compl. ¶¶ 1, 15.) The Schein and Mewshaw books include “private, deeply personal” information about Pat Conroy's stepdaughter, plaintiff Emily Conroy (“Conroy”). (Compl. ¶ 1.) Specifically, the books include “graphic details” about the sexual abuse Conroy endured as a child from her biological father. (Compl. ¶¶ 10, 18.)

Conroy's name and the details of the abuse “had not before been published or otherwise made public, ” and Defendants never “attempt[ed] to communicate with [Conroy] or seek her permission to reveal private information about her abuse.” (Compl. ¶¶ 18-19.) Several decades ago, after Conroy reported the abuse and her father was indicted, “newspaper articles were written about the allegations against [her father], ” but “[n]one of the articles named or identified [Conroy] as the victim of his crimes” or “detail[ed] . . . the acts he perpetrated on his own daughter.” (Compl. ¶¶ 11-13.)

Conroy asserts that she is “an intensely private person, ” “very few people know either that she was Pat Conroy's stepdaughter or that her own father sexually abused her, ” she “intentionally sought to keep her family history and her own history of sexual abuse out of the public eye, ” and she “has suffered substantial physical and emotional distress” as a result of the Schein and Mewshaw books. (Compl. ¶¶ 14, 26.) As a result, Conroy filed this action against Schein, Mewshaw, Skyhorse, and Counterpoint on February 25, 2021, alleging claims for invasion of privacy and intentional infliction of emotional distress (“IIED”) and seeking injunctive relief. (Compl. at 9-15.)

DISCUSSION

Defendants advance three principal arguments in support of their pending motions. First, Defendants argue that they are entitled to summary judgment on Conroy's invasion of privacy claim because Conroy “does not identify any fact disclosed in the Schein [b]ook that was private before the [b]ook's publication, ” and because “Defendants' conduct in obtaining or publishing the information was not independently wrongful.” (Defs.' Mot. Summ. J & Special Mot. Strike (“Defs.' Mot.”) at 4, ECF No. 12.) Second, Defendants argue that they are entitled to summary judgment on Conroy's IIED claim because Conroy “cannot create a genuine question of material fact” as to the essential elements of her claim. (Defs.' Mot. at 4.) Third and finally, Defendants argue that 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, ” and therefore Oregon's anti-SLAPP statute, Or. Rev. Stat. § 31.150, bars Conroy's claims “unless she can produce substantial evidence in support of each element of a prima facie case [of] invasion of privacy and IIED[.]” (Defs.' Mot. at 4-5.)

I. LEGAL STANDARDS

A. Anti-SLAPP Motions in Oregon Courts

Oregon's anti-SLAPP statute, 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, 369 P.3d 1117, 1127 (Or. 2016). Application of Oregon's anti-SLAPP statute is a “two-step burden-shifting process.” Wingard v. Or. Fam. Council, Inc., 417 P.3d 545, 547 (Or. Ct. App. 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.” Or. Rev. Stat. § 31.150(2).

The second step of the analysis is typically not constrained to the pleadings. See Bryant v. Recall for Lowell's Future Comm., 400 P.3d 980, 985 (Or. Ct. App. 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 [the] plaintiff, so long as it is supported by substantial evidence.” Plotkin v. State Accident Ins. Fund, 385 P.3d 1167, 1171 (Or. Ct. App. 2016) (citing Young v. Davis, 314 P.3d 350, 357 (Or. Ct. App. 2013)). Courts consider a defendant's opposing evidence “‘only to determine if it defeats [the] plaintiff's showing as a matter of law.'” Bryant, 400 P.3d at 985 (quoting Plotkin, 385 P.3d at 1171).

B. 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 such motions. 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). The Ninth Circuit, however, has held that not all provisions of a state's anti-SLAPP statute apply in federal court. See Metabolife, 264 F.3d at 846 (holding that some subsections of California's anti-SLAPP statute cannot apply in federal courts because “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. 11-cv-01962-RAJ, 2012 WL 6024765, at *3 (W.D. Wash. Dec. 4, 2012) (explaining that “the Ninth Circuit's holding that the automatic stay of discovery in California's statute does not apply in federal court applies equally to the [Washington 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). “[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.” Id. 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. Notably, 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. Courts must allow discovery 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 for summary judgment without providing any of the procedural safeguards that have been firmly established by the Federal Rules of Civil Procedure.” Id. at 833-34.

C. Summary Judgment

Summary judgment is proper if “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). At the summary judgment stage, the court views the facts in the light most favorable to the non-moving party, and draws all reasonable inferences in favor of that party. Porter v. Cal. Dep't of Corr., 419 F.3d 885, 891 (9th Cir. 2005). The court does not assess the credibility of witnesses, weigh evidence, or determine the truth of matters in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no ‘genuine issue for trial.'” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (quoting First Nat'l Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 288 (1968)).

II.ANALYSIS

The Court recommends that the district judge deny Defendants' motion for summary judgment and anti-SLAPP motion because both are premature.

The parties agree that Defendant...