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Englert v. MacDonell

January 7, 2009

RODNEY D. ENGLERT, PLAINTIFF-APPELLEE,
v.
HERBERT LEON MACDONELL, TERRY L. LABER, AND PETER R. DEFOREST, DEFENDANTS, AND BARTON P. EPSTEIN, STUART H. JAMES, AND PATRICIA LOUGH, DEFENDANTS-APPELLANTS.
RODNEY D. ENGLERT, PLAINTIFF-APPELLEE,
v.
HERBERT LEON MACDONELL, DEFENDANT-APPELLANT, AND TERRY LABER, BARTON P. EPSTEIN, PETER R. DEFOREST, STUART H. JAMES, AND PATRICIA LOUGH, DEFENDANTS.



Appeal from the United States District Court for the District of Oregon Ann L. Aiken, District Judge, Presiding. D.C. No. CV-05-01863-ALA.

The opinion of the court was delivered by: Korman, District Judge

FOR PUBLICATION

OPINION

Argued and Submitted May 8, 2008-Portland, Oregon

Before: Richard C. Tallman and Richard R. Clifton, Circuit Judges, and Edward R. Korman,*fn1 District Judge.

OPINION

Oregon has enacted a law of a kind popularly known as a "SLAPP" or an "anti-SLAPP" statute. Or. Rev. Stat. § 31.150, et seq. (2001). The acronym SLAPP stands for "strategic lawsuit against public participation." The statute creates a procedural defense to civil actions that can dismiss a case without prejudice at the pleading stage, based on an apparent weighing and balancing of the likelihood of success on the merits at trial. See Staten v. Steel, 191 P.3d 778, 788 (Or. Ct. App. 2008). The defendants in the present case appeal from an order of the United States District Court for the District of Oregon (Aiken, J.), which declined to dismiss at the pleading stage the defamation complaint filed by the plaintiff.

The complaint alleged that the six named defendants, all forensic scientists in blood pattern analysis, had falsely denigrated plaintiff's qualifications in that specialty. See Englert v. MacDonell, No. 05-cv-1863, 2006 WL 1310498, at *1-3 (D. Or. May 10, 2006). The defendants, who were not citizens of Oregon, collectively removed this case to the United States District Court for the District of Oregon pursuant to 28 U.S.C. § 1441. Id. at *1. They then filed special motions to strike pursuant to Or. Rev. Stat. § 31.150. Id. On May 10, 2006, the district court granted the motions of two of the six defendants, Peter R. DeForest and Terry L. Laber, and denied in part the special motions by the remaining four defendants, Herbert Leon MacDonell, Barton P. Epstein, Stuart H. James, and Patricia Lough. Id. at *11-12. The latter four defendants then filed notices of appeal.

The threshold issue is whether we have jurisdiction to entertain their appeal. An analysis of the Oregon anti-SLAPP statute provides a helpful backdrop to our discussion of this issue. The acronym "SLAPP" does not appear in the Oregon statute. Instead, the provisions of the statute appear under the caption, "Special motion to strike; availability; burden of proof." Or. Rev. Stat. § 31.150. The statute, which was modeled after, although not a mirror image of, a similar California statute, see Oregon House Committee on the Judiciary, HB 2460, OR B. Summ., 2001 Reg. Sess. H.B. 2460 (West Apr. 16, 2001), provides for a special motion to strike any 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 ...


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