Dossett v. Ho-Chunk, Inc.

• Decision Date: 14 July 2020
• Docket Number: Case No. 3:19-cv-01386-SB
• Citation: 472 F.Supp.3d 900
• Parties: John H. DOSSETT, Plaintiff, v. HO-CHUNK, INC., a tribal corporation formed by the Winnebago Tribe of Nebraska, Noble Savage Media, LLC, a limited liability company of unknown origin, The National Congress of American Indians of the United States and Alaska, an Oklahoma nonprofit corporation, and High Country News, a Colorado nonprofit corporation, Defendants.
• Court: U.S. District Court — District of Oregon

472 F.Supp.3d 900

John H. DOSSETT, Plaintiff,

v.HO-CHUNK, INC., a tribal corporation formed by the Winnebago Tribe of Nebraska, Noble Savage Media, LLC, a limited liability company of unknown origin, The National Congress of American Indians of the United States and Alaska, an Oklahoma nonprofit corporation, and High Country News, a Colorado nonprofit corporation, Defendants.

Case No. 3:19-cv-01386-SB

United States District Court, D. Oregon.

Signed July 14, 2020

B. Scott Whipple, Whipple Law Office, LLC, Andrew L. Paris, Portland, OR, for Plaintiff.

Nicole E. Ducheneaux, Pro Hac Vice, Big Fire Law & Policy Group LLP, Bellevue, NE, Anthony S. Broadman, Galanda Broadman, Seattle, WA, for Defendant Ho-Chunk, Inc.

Chad R. Bowman, Pro Hac Vice, Matthew E. Kelley, Pro Hac Vice, Ballard Spahr LLP, Washington, DC, Susan T. Alterman, Scott J. Aldworth, Kell, Alterman & Runstein, LLP, Portland, OR, for Defendant The National Congress of American Indians of the United States and Alaska.

Peter M. Meloy, Pro Hac Vice, Meloy Law Firm, Helena, MT, Ryan M. Bledsoe, Tonkon Torp, LLP, Portland, OR, for Defendant High Country News.

OPINION AND ORDER

BECKERMAN, U.S. Magistrate Judge.

Plaintiff John H. Dossett ("Dossett") filed this action against Ho-Chunk, Inc. ("Ho-Chunk"), Noble Savage Media, LLC,¹ the National Congress of American Indians of the United States and Alaska ("NCAI"), and High Country News ("HCN") (together, "Defendants"), asserting state law claims for defamation, intentional interference with economic relations, and negligence. Defendants HCN, Ho-Chunk, and NCAI filed separate motions to dismiss and strike (ECF Nos. 30, 35, and 41) pursuant to Oregon's anti-SLAPP statute ( OR. REV. STAT. § 31.150 ) and FED. R. CIV. P. 12(b)(6). Ho-Chunk filed a renewed motion to dismiss (ECF No. 55 ), and Dossett filed a motion for leave to amend the complaint (ECF No. 53 ).

The Court has jurisdiction pursuant to 28 U.S.C. § 1332, and all parties have consented to the jurisdiction of a U.S. Magistrate Judge pursuant to 28 U.S.C. § 636. For the reasons explained below, the Court grants Defendants’ motions to dismiss and strike, and denies as moot Dossett's motion to amend the complaint.

BACKGROUND

Dossett began working for NCAI as a staff attorney in 1995, and served as NCAI's general counsel from 1997 to 2018. (Compl. ¶ 11.) NCAI is a 501(c)(4) "social welfare organization serving as a forum for policy development and advocacy on behalf of its membership of tribal governments and individual Native people." (Compl. ¶ 13; Pl.’s Opp'n at 9.) Indian Country Today ("ICT") "is a digital news platform wholly owned by NCAI." (Compl. ¶ 13.)

Ho-Chunk is a tribal government corporation formed by the Winnebago Tribe of Nebraska. (Compl. ¶ 12.) Ho-Chunk operates the news media website Indianz.com. (Id. ) HCN is a nonprofit "media organization located in Paonia, Colorado[.]" (Compl. ¶ 14.)

Dossett is a "nationally recognized expert on tribal sovereignty and jurisdiction, tribal lands and natural resources, taxation, and public safety in Indian country." (Compl. ¶ 15.) Up until "the time of events in this matter, [Dossett] was an Adjunct Professor at the Northwestern School of Law of Lewis & Clark College." (Compl. ¶ 17.)

On August 31, 2018, Indianz.com published an online news article headlined "Prominent Indian Country Attorney Reassigned After #MeToo Allegations," with a subheading stating, " ‘You are a pretty young Native woman, beware.’ " (Compl. ¶¶ 54-61.) On September 2, 2018, ICT republished the same allegations in an article titled, "NCAI Attorney John Dossett Under Fire After #MeToo Allegations." (Compl. ¶¶ 62-68.)

On October 3, 2018, NCAI asked Dossett to resign, but Dossett refused. (Compl. ¶ 44.) NCAI terminated Dossett's employment on the same day. (Id. ) In the same timeframe, Lewis and Clark Law School suspended Dossett's employment as an adjunct professor. (Compl. ¶ 45.)

On October 11, 2018, ICT published a second online article concerning workplace misconduct allegations against Dossett, titled "Transparency Demanded in NCAI's Handling of Staff Lawyer and #MeToo Allegations." (Compl. ¶¶ 69-75.) On October 18, 2018, HCN published an article titled "[NCAI] Roiled by Claims of Harassment and Misconduct." (Compl. ¶¶ 76-84.) On October 23, 2019, Indianz.com published an online article titled "National Congress of American Indians Opens Annual Convention Amid Controversy." (Compl. ¶¶ 85-90.)

Dossett denies the "false allegations and innuendo" in these news articles, and alleges that the articles have resulted in the loss of his employment and destruction of his reputation, career, and future opportunities, and emotional distress. (Compl. ¶¶ 5, 51, 53.) Dossett seeks $6,113,286 in damages. (Compl. at 31.)

DISCUSSION

I. LEGAL STANDARDS

A. Anti-SLAPP Motions

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, 369 P.3d 1117 (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, 417 P.3d 545 (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).

If the defendant meets its burden, the plaintiff must "establish that there is a probability that [he] will prevail on the claim by presenting substantial evidence to support a prima facie case." OR. REV. STAT. § 31.150(3). Substantial evidence means enough evidence from which a reasonable trier of fact could find that the plaintiff has met his burden of production. See Handy v. Lane Cty. , 360 Or. 605, 623, 385 P.3d 1016 (2016) ("In using terms like ‘probability’ and ‘substantial evidence,’ the legislature did not intend to require a plaintiff to do more than meet its burden of production.").

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, 400 P.3d 980 (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, 385 P.3d 1167 (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, 400 P.3d 980 (citing Plotkin , 280 Or. App. at 816, 385 P.3d 1167 ).

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, 85 S.Ct. 1136, 14 L.Ed.2d 8 (1965). Although anti-SLAPP motions appear to be a procedural mechanism to vindicate existing substantive rights, they are generally allowed in federal court. 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 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 (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." 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 for summary judgment without providing any of the procedural safeguards that have been firmly established by the Federal Rules of Civil Procedure."³ Id. ; see also Chase v. Gordon, Aylworth & Tami, P.C. , Case 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...