Zweizig v. Nw. Direct Teleservices, Inc.

Decision Date24 September 2016
Docket NumberNo. 3:15-cv-02401-HZ,3:15-cv-02401-HZ
PartiesMAX ZWEIZIG, Plaintiff/Counter Defendant, v. NORTHWEST DIRECT TELESERVICES, INC.; NORTHWEST DIRECT MARKETING OF OREGON, INC.; TIMOTHY ROTE; NORTHWEST DIRECT MARKETING (DELAWARE), INC.; NORTHWEST DIRECT OF IOWA, INC.; ROTE ENTERPRISES, LLC; NORTHWEST DIRECT MARKETING, INC.; and DOES 1-5. Defendants/Counter Claimant.
CourtU.S. District Court — District of Oregon
OPINION & ORDER

Joel W. Christiansen

812 NW 17th Avenue

Portland, OR 97209

Attorney for Plaintiff/Counter Defendant

Andrew C. Brandsness

Brandsness Brandsness & Rudd, P.C.

411 Pine Street

Klamath Falls, OR 97601

Attorney for Defendants Northwest Direct

Teleservices, Inc.; Northwest Direct Marketing of

Oregon, Inc.; Northwest Direct Marketing (Delaware)

Inc.; Northwest Direct of Iowa, Inc.; Rote Enterprises,

LLC; Northwest Direct Marketing, Inc.; and Does 1-5.

Timothy Rote

24790 SW Big Fir Road

West Linn, OR 97068

Pro Se Defendant/Counter Claimant

HERNÁNDEZ, District Judge:

Pro se Defendant/Counter Claimant Timothy Rote brings seven counterclaims against Plaintiff/Counter Defendant Max Zweizig. Plaintiff moves to strike the first, sixth, and seventh counterclaims pursuant to Oregon's anti-SLAPP statute. The Court grants Plaintiff's motion to strike.

BACKGROUND

The parties' litigation history in this matter was set forth by this Court in a prior Opinion & Order and, therefore, the Court does not repeat it here. See Opinion & Order, February 25, 2016, ECF 25. Presently before the Court are three of Defendant's counterclaims: (1) defamation, (2) intentional infliction of emotional distress, and (3) aiding and abetting. Id.

Defendant alleges that in November of 2015, Plaintiff, Plaintiff's counsel, "or other related parties," contacted the chambers of District of Oregon Judge Robert E. Jones and stated that Defendant posed a threat to Judge Jones at his Lifetime Achievement Award ceremony, thereby prompting an investigation of Rote by the U.S. Marshals. Sec. Am. Answer ¶ 31.

Defendant and Judge Jones have a long history. Judge Jones presided over a portion of a case filed against Defendant in 1999. See Jones v. Nw. Telemarketing Inc., No. CIV. 99-990-JO, 2000 WL 568352, at *1 (D. Or. Apr. 7, 2000) (no relation between the plaintiff Jones and Judge Jones). At some point during the proceedings in Jones, Defendant sent Judge Jones a letter, prompting Judge Jones to recuse himself from the case.1 Christianson Decl. Ex. 4, ECF 41-1.

On November 12, 2015, Defendant published a blog post titled "Are Arbitrator[s] Above the Law?" in which he discussed the arbitration between himself and Plaintiff. Christiansen Decl. Ex. 3, ECF 41-3. Defendant wrote that, during the arbitration, Plaintiff's attorney submitted a "case summary" to the arbitrator of the case in which Judge Jones had recused himself. Id. According to Defendant, Plaintiff's attorney attempted to influence the arbitrator by suggesting that Judge Jones did not like Defendant. Defendant ended his blog post by stating:

The Honorable Robert E. Jones is receiving a lifetime achievement award tomorrow night. The press will be there. Congratulations Judge Jones. Perhaps more often than not our legacies are not what we wanted them to be."

Id.

Defendant believes that Plaintiff or his attorneys called Judge Jones' courtroom deputy and told her about the blog post. According to Defendant:

The information provided [by the U.S. Marshal Service to Defendant] was that Judge Jones was contacted and directed to a blog post written by [Defendant], which [Plaintiff] represented as a threat to Judge Jones. The intent of the contact with Judge Jones was to influence litigation already pending before Judge Stewart, presumably to influence the decision on the summary judgment motion still under advisement and to permanently harm [Defendant]. As a result of the contact and statement, Defendant seeks consequential damages of $1 million and punitive damages of $5 million against [Plaintiff] and Conspirators2.

Sec. Am. Answer ¶ 31. Joel Christiansen, Plaintiff's attorney, declares that he and Linda Marshall, Plaintiff's counsel in another matter, contacted Judge Jones' courtroom deputy. Christiansen Decl. ¶ 5, ECF 41. However, taking the facts alleged by Defendant as true, the Court proceeds with its analysis as if Plaintiff had made the statements at issue.

STANDARDS

"A SLAPP suit is one in which the plaintiff's alleged injury results from petitioning or free speech activities by a defendant that are protected by the federal or state constitutions." Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003). In response, a defendant in federal court may file a motion to strike under an applicable anti-SLAPP statute. Vineyard v. Soto, No. 10-CV-1481-SI, 2011 WL 5358659, at *2 (D. Or. Nov. 7, 2011); see also Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206 (9th Cir. 2005).

Oregon's anti-SLAPP provisions "permit a defendant who is sued over certain actions taken in the public arena to have a questionable case dismissed at an early stage." Staten v. Steel, 222 Or. App. 17, 27, 191 P. 3d 778, 786 (2008). A special motion to strike is treated "as a motion to dismiss under Or. R. Civ. P. 21A and requires the court to enter a 'judgment of dismissal without prejudice' if the motion is granted." Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009) (applying Oregon law).

Analysis 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 [O.R.S.] 31.150(2)." Id. "[T]he critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90, 102, 15 Cal. Rptr. 3d 215,220 (2004) (referring to the California anti-SLAPP statute). The required showing may be made on the basis of the pleadings alone. Staten, 222 Or. App. at 31, 191 P.3d at 788.

If the defendant meets the initial burden, then "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." Or. Rev. Stat. § (O.R.S.) 31.150(3); Gardiner, 563 F.3d at 986. In making this determination, the Court must take the facts from the pleadings and from the supporting and opposing affidavits, O.R.S. 31.150(4), and state them "in the light most favorable to plaintiffs." Mullen v. Meredith Corp., 271 Or. App. 698, 702, 353 P.3d 598, 601-02 (2015) (quotation omitted). The court must deny the motion "[i]f the plaintiff meets this burden." O.R.S. 31.150(3).

Oregon courts look to California case law in construing Oregon's anti-SLAPP statute because Oregon's law was "modeled on California statutes" and '[i]t was intended that California case law would inform Oregon courts regarding the application of ORS 31.150 to ORS 31.155." Page v. Parsons, 249 Or. App. 445, 461, 277 P.3d 609, 619 (2012) (discussing the Oregon anti-SLAPP statute's legislative history). Therefore, this Court's analysis relies on both California and Oregon case law.

DISCUSSION

Plaintiff invokes Oregon's anti-SLAPP statute to strike Defendant's counterclaims of defamation, intentional infliction of emotional distress (IIED), and aiding and abetting. Under Oregon's anti-SLAPP statute, a defendant may make a special motion to strike against a claim in a civil action that arises out of:

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;
(c) Any oral statement made, or 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; or
(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

O.R.S. 31.150(2).

Plaintiff's initial motion to strike contended that Defendant's counterclaims are subject to an anti-SLAPP motion because the counterclaims arise out of statements or conduct described in §§31.150(2)(b), (c), and (d). However, upon review of cases interpreting anti-SLAPP statutes in Oregon and California, it appeared to this Court that Plaintiff's communication to Judge Jones' courtroom deputy was subject to an anti-SLAPP motion for a different reason—Plaintiff's statement would be considered preparatory to or in anticipation of commencing official proceedings and thus would be protected as a statement made in a proceeding authorized by law under O.R.S. 31.150(2)(a) or (b). Because Plaintiff did not make this argument, the Court ordered further briefing from the parties to ensure that each party had the opportunity to be heard on the issue. See Order, August 15, 2016, ECF 60. After reviewing the parties' supplemental memoranda, the Court concludes that Defendant's counterclaims are subject to Oregon's anti-SLAPP provisions and, thus, the Court strikes the counterclaims.

I. Plaintiff's statement was made in a "judicial proceeding or other proceeding authorized by law."

Oregon's anti-SLAPP statute provides that a defendant may make a special motion to strike against a claim in a civil action that arises out of a statement made in a "judicial proceeding or other proceeding authorized by law." O.R.S. 31.150(2)(a). While this Court doesnot find binding precedent interpreting this portion of Oregon's law, cases from California are instructive.

There can be no dispute that O.R.S. 31.150(2)(a) encompasses statements reporting wrongdoing to police. S...

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