Opinion
3:21-cv-00298-SB
01-18-2022
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.
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. 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.
“‘Anti-SLAPP' stands for ‘Anti-Strategic Lawsuit Against Public Participation.'” Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 837 n.7 (9th Cir. 2001). The purpose of an anti-SLAPP “statute is to protect individuals from meritless, harassing lawsuits whose purpose is to chill protected expression.” Id.
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 Defendants' motions challenge the factual sufficiency of Conroy's claims. (See Defs.' Mot. at 5, stating that Defendants' pending “motion is brought under Rule 56 because Defendants assert factual challenges to Plaintiff's claims”; Pl.'s Opp'n Defs.' Mot. Summ. J. & Special Mot. Strike (“Pl.'s Opp'n”) at 11, ECF No. 16, asserting that “the Court must apply the traditional Rule 56 standard” because Defendants' “motion challenges the factual sufficiency of Ms. Conroy's claims”). The Court therefore applies the Fed.R.Civ.P. 56 standards both to Defendants' summary judgment motion and their anti-SLAPP motion. See Planned Parenthood, 890 F.3d at 834 (explaining that “when an anti-SLAPP motion to strike challenges the factual sufficiency of a claim, then the Federal Rule of Civil Procedure 56 standard will apply”).
Relying on Planned Parenthood, Conroy argues that the “Ninth Circuit has expressly stated that, in the anti-SLAPP context where[, as here, ] the motion challenges the factual basis for the claims, discovery is required, ” and thus Defendants' “motion is, at best, premature, as there has been no discovery in the case.” (Pl.'s Opp'n at 2.) Conroy also argues that “[t]o not allow discovery results in a ‘stark collision' between the Oregon anti-SLAPP statute's goal of early dismissal when appropriate, and the Federal Rules of Civil Procedure, ” and that “discovery could well reveal evidence pertinent to whether there are genuine issues of material fact[.]” (Pl.'s Opp'n at 24.) Conroy asserts that discovery “will reveal what [Defendants] knew about the nature of any previously available information about [Conroy's] sexual abuse and the reason and intent behind [Defendants' decision] both to publish details about the abuse and to do so without even attempting to ascertain [Conroy's] input or permission.” (Pl.'s Opp'n at 25.)
The Court agrees that the Ninth Circuit's decision in Planned Parenthood requires the Court to allow the parties to conduct discovery before the Court addresses Defendants' challenges to the factual sufficiency of Conroy's claims. In Planned Parenthood, the Ninth Circuit explained that where, as here, an anti-SLAPP motion to strike challenges the factual sufficiency of a plaintiff's claims, “discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court.” 890 F.3d at 834 (emphasis added).
District courts in the Ninth Circuit have consistently followed Planned Parenthood's directive. For example, in Chase v. Gordon, Aylworth & Tami, P.C., No. 3:18-cv-00568-AC, 2020 WL 1644310, at *13 (D. Or. Feb. 14, 2020), findings and recommendation adopted by 2020 WL 3977608, at *1 (D. Or. July 14, 2020), the defendants' anti-SLAPP motion to strike challenged, among other things, the factual sufficiency of the plaintiffs' claims. Relying on Planned Parenthood, the court explained that “an anti-SLAPP motion to strike that challenges the factual sufficiency of a claim must be evaluated under the Rule 56 standard for summary judgment.” Id. (citing Planned Parenthood, 890 F.3d at 834). The court “decline[d]” to address any of the defendants' “evidentiary-based arguments” because “there ha[d] been no discovery, ” noting that the defendants “may choose to challenge [the plaintiffs'] claims as factually insufficient following completion of discovery.” Id.; see also Penrose Hill, Ltd. v. Mabray, 479 F.Supp.3d 840, 849 (N.D. Cal. 2020) (“The current [anti-SLAPP] motion raises both legal and factual challenges. [The defendant's] factual challenges are premature as no discovery has yet taken place.”); Nano Found., Ltd. v. Silver, No. 2:19-cv-0423, 2019 WL 6723428, at *2 (C.D. Cal. Aug. 20, 2019) (noting that the defendant's anti-SLAPP motion challenged the factual sufficiency of the plaintiffs' complaint, and finding it “inappropriate” to grant the motion without any discovery).
The district judge in Chase is also the district judge assigned to this case, and is presiding over a similar action Conroy filed in this district. See Conroy v. Clark, 3:20-cv-00366-SI (D. Or. filed Mar. 5, 2020).
Defendants do not address Planned Parenthood's clear instruction that “discovery must be allowed, with opportunities to supplement evidence based on the factual challenges, before any decision is made by the court” on an anti-SLAPP motion (890 F.3d at 834), nor any of the district court opinions applying Planned Parenthood. Instead, Defendants argue that the Court should reject Conroy's request for discovery because the declaration she submitted in support of her opposition “does not satisfy Rule 56(d)'s requirement to show specific reasons she cannot present facts essential to justify her position in opposition to Defendants' motions.” (Defs.' Reply Supp. Mot. Summ. J. & Special Mot. Strike (“Defs.' Reply”) at 2, ECF No. 24.) The Court disagrees.
Conroy discloses in her declaration that the parties have not yet conducted discovery. (See Decl. Emily Conroy Supp. Pl.'s Opp'n Defs.' Mot. Summ. J. & Special Mot. Strike (“Conroy Decl.”) ¶ 22, ECF No. 17, advising that Conroy's “attorneys have not had an opportunity to engage in discovery”). Conroy has also provided a detailed list of appropriate discovery topics. (Conroy ¶ 22.) Conroy has met her burden under Rule 56(d) of demonstrating that she cannot present facts essential to justify her opposition to Defendants' motion without the benefit of discovery. See Burlington N. Santa Fe R.R. Co. v. Assiniboine and Sioux Tribes of Fort Peck Rsrv., 323 F.3d 767, 773 (9th Cir. 2003) (“Where, however, a summary judgment motion is filed so early in the litigation, before a party has had any realistic opportunity to pursue discovery relating to its theory of the case, district courts should grant any Rule 56([d]) motion fairly freely.”) (citations omitted); see also Metabolife, 264 F.3d at 846 (“Although Rule 56([d]) facially gives judges the discretion to disallow discovery when the non-moving party cannot yet submit evidence supporting its opposition, the Supreme Court has restated the rule as requiring, rather than merely permitting, discovery ‘where the nonmoving party has not had the opportunity to discover information that is essential to [its] opposition.'” (quoting Anderson, 477 U.S. at 250 n.5)); Ahl-E-Bait Media, Inc. v. Jadoo TV, Inc., No. 12-cv-05307, 2013 WL 11324312, at *1 (C.D. Cal. Apr. 16, 2013) (denying the defendant's motion for summary judgment “before the parties had conducted any discovery” where “advising the court that no discovery has occurred suffices to satisfy Rule 56(d)”) (citations omitted).
Under Planned Parenthood and Rule 56, both Defendants' anti-SLAPP motion and their motion for summary judgment are premature without the benefit of discovery, and the Court therefore declines to address Defendants' challenges to the factual sufficiency of Conroy's claims at this time. See Planned Parenthood, 890 F.3d at 835 (“[T]he district court did not err in declining to evaluate the factual sufficiency of the complaint at the pleading stage.”).
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Defendants' motion for summary judgment and anti-SLAPP motion (ECF No. 12), without prejudice to refiling after the parties have completed discovery.
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.