FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MICHAEL G. SCHWERN, No. 14-35576
Plaintiff-Appellee,
D.C. No.
v. 3:14-cv-00146-PK
PATRICK PLUNKETT, as personal
representative of the Estate of OPINION
Noirin Plunkett,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted November 9, 2016
Portland, Oregon
Filed January 17, 2017
Before: M. Margaret McKeown, William A. Fletcher,
and Raymond C. Fisher, Circuit Judges.
Opinion by Judge McKeown
2 SCHWERN V. PLUNKETT
SUMMARY *
Oregon Anti-SLAPP Law
The panel held that the court had jurisdiction to hear
immediate appeals from district court denials of Oregon anti-
SLAPP (“strategic lawsuit against public participation”)
motions; and reversed the district court’s denial of
appellant’s anti-SLAPP motion to strike claims because
appellee Michael Schwern failed to establish a prima facie
case supported by substantial evidence of his claims of
defamation, intentional infliction of emotional distress, and
intentional interference with economic relations.
The panel held that in light of Oregon’s amendment to
its anti-SLAAP statute, this court had jurisdiction to review
denials of Oregon anti-SLAPP motions.
The panel held that Schwern did not establish a
probability that he would prevail on his claims, and therefore
the motion to strike must be granted. Specifically, the panel
held that even when construing the evidence in Schwern’s
favor, it could not reasonably infer that the appellant was the
source of the alleged defamatory accusations against
Schwern.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
SCHWERN V. PLUNKETT 3
COUNSEL
Dan G. Booth (argued), Booth Sweet LLP, Cambridge,
Massachusetts, for Defendant-Appellant.
Bear-Wilner-Nugent (argued), Portland, Oregon, for
Plaintiff-Appellee.
Margaret Garvin and Amy C. Liu, Portland, Oregon, as and
for Amicus Curiae National Crime Victim Law Institute.
OPINION
McKEOWN, Circuit Judge:
In this appeal we resolve the lingering uncertainty about
our jurisdiction to hear immediate appeals from denials of
Oregon anti-SLAPP (“strategic lawsuit against public
participation”) motions. Oregon amended its anti-SLAPP
statute in 2009 with the purpose of “provid[ing] a defendant
with the right to not proceed to trial in cases in which the
plaintiff does not meet” the statutory burden. Or. Rev. Stat.
§ 31.152(4). This amendment, which is akin to a statutory
immunity from suit, responded directly to our decision in
Englert v. MacDonell, where we held that the prior statute
did not provide for interlocutory review. 551 F.3d 1099,
1105–07 (9th Cir. 2009). In view of this legislative change,
we conclude that we have jurisdiction to hear immediate
appeals from denials of Oregon anti-SLAPP motions.
The motion at issue arises from Nóirín Plunkett’s
accusation that Michael Schwern raped her in September
2013. When Schwern was arrested, news quickly spread
online. Schwern claimed the accusations were false and
sued Plunkett for defamation, intentional infliction of
4 SCHWERN V. PLUNKETT
emotional distress, and intentional interference with
economic relations. The district court denied Plunkett’s
anti-SLAPP motion. 1 We reverse because Schwern failed to
meet his evidentiary burden.
BACKGROUND
Nóirín Plunkett and Michael Schwern married in
November 2011 and lived together in Portland, Oregon.
During their relationship, they were both actively involved
in the community of open-source software developers.
The marriage was not a happy one. On September 19,
2013, the couple filed for divorce. That night, they met for
one final dinner at the home they once shared. What
happened next is hotly disputed. While Schwern claims that
they had consensual sex, Plunkett testified that he forced her
to have oral sex, choked her, and penetrated her vagina with
a knife. She also testified that she went to the emergency
room where she had a forensic sexual assault examination,
her injuries were photographed, and the police were called.
Police arrested Schwern that night on charges of
strangulation and harassment.
In the days that followed, information about Schwern’s
arrest percolated online. Three prominent open-source
developers posted links on Twitter to Schwern’s public
arrest record, while organizations tied to the open-source
community issued statements about Schwern’s arrest and
distanced themselves from him.
1
Plunkett died on July 28, 2015. Her father, Patrick Plunkett, is the
personal representative of her estate and was substituted as the party on
appeal.
SCHWERN V. PLUNKETT 5
Plunkett moved from Oregon to Massachusetts shortly
after Schwern’s release on bail in late September 2013.
According to Casey West, a mutual friend of the couple,
West encountered Plunkett in Boston that fall; during the
ensuing conversation, Plunkett allegedly told West that
Schwern had raped her with a knife.
In January 2014, Schwern filed suit against Plunkett for
defamation, intentional infliction of emotional distress, and
intentional interference with economic relations. The gist of
Schwern’s complaint was that his professional reputation
suffered due to rape allegations Plunkett allegedly made to
the individuals and organizations that commented online
about his arrest.
In response to the lawsuit, Plunkett filed a special motion
to strike under Oregon’s anti-SLAPP law, seeking dismissal
of the case. A magistrate judge recommended denial of
Plunkett’s motion on the ground that Schwern had
established a prima facie case, and the district court adopted
this recommendation.
ANALYSIS
I. Jurisdiction
We first consider whether we have jurisdiction to hear
this appeal under 28 U.S.C. § 1291, which permits us to
review “final decisions” of district courts. The answer to this
question is informed by the helter-skelter history of
Oregon’s anti-SLAPP law.
Oregon enacted its anti-SLAPP law in 2001 to create a
procedure “for expeditiously dismissing unfounded lawsuits
attacking certain types of public speech” through special
motions to strike, or anti-SLAPP motions. Plotkin v. State
6 SCHWERN V. PLUNKETT
Accident Ins. Fund, 280 Or. App. 812, 814 (Or. Ct. App.
2016). Oregon used California’s anti-SLAPP law as a model
for its legislation. See Englert, 551 F.3d at 1101. Unlike
California, though, Oregon did not initially allow immediate
appeals from denials of anti-SLAPP motions. That
distinction led us to treat the two states’ laws differently.
Looking to California law, in Batzel v. Smith we
addressed whether denial of a California anti-SLAPP motion
is an immediately appealable “final decision.” 333 F.3d
1018, 1024 (9th Cir. 2003) (citing 28 U.S.C. § 1291). We
first noted that “California law recognizes the protection of
the anti-SLAPP statute as a substantive immunity from suit,”
as evidenced by the statute’s legislative history and inclusion
of a right of immediate appeal. Id. at 1025. As a
consequence, we held that we had jurisdiction because a
“district court’s denial of a claim of immunity, to the extent
that it turns on an issue of law, is an appealable final decision
within the meaning of 28 U.S.C. § 1291 notwithstanding the
absence of a final judgment.” Id. at 1026.
When faced with the same issue regarding Oregon’s anti-
SLAPP law, we came to the opposite conclusion because
Oregon’s statute differed materially from its California
counterpart. As we explained in Englert, “[t]he failure of the
Oregon Legislature to provide for an appeal from the denial
of a special motion to strike provides compelling evidence
that, unlike their California counterparts, Oregon lawmakers
did not want ‘to protect speakers from the trial itself.’”
551 F.3d at 1106 (quoting Batzel, 333 F.3d at 1025).
Instead, Oregon’s law had a less ambitious scope: it sought
only to enable a judge to “promptly review the evidence . . .
to determine whether it had sufficient merit to go forward.”
Id. Absent an expression of immunity from trial, we held
that we lacked jurisdiction to hear the appeal. Id. at 1107.
SCHWERN V. PLUNKETT 7
Oregon reacted swiftly to our decision in Englert. The
legislature immediately passed amendments to create a right
of immediate appeal from denials of anti-SLAPP motions to
strike by providing that, “[i]f the court denies a special
motion to strike, the court shall enter a limited judgment
denying the motion.” Or. Rev. Stat. § 31.150(1); see also id.
§ 19.205(1) (providing that a “limited judgment” is
appealable). The amendments also clarified that the purpose
of Oregon’s anti-SLAPP procedure “is to provide a
defendant with the right to not proceed to trial” when a
plaintiff fails to meet the statutory burden. Id. § 31.152(4).
We have already acknowledged, albeit not definitively,
that these amendments effectively overturned Englert. In
DC Comics v. Pacific Pictures Corporation, we explained
that “whether an immunity created by state law functions ‘as
an immunity from suit or merely a defense from liability’ is
dispositive in determining whether an immediate appeal of
an order denying an immunity should be available.”
706 F.3d 1009, 1015 (9th Cir. 2013) (citation omitted).
Noting that “Englert has been superseded by changes to the
underlying statute” because “Oregon’s anti-SLAPP statute
was amended to specifically provide for a right of immediate
appeal,” we stated that “the Oregon statute now likely
affords immunity from suit, as California’s does.” Id. at
1016 n.8; see also Makaeff v. Trump Univ., LLC, 715 F.3d
254, 276 (9th Cir. 2013) (Paez, J., concurring) (noting in
citation that Englert was “superseded by” Oregon’s
amended anti-SLAPP law).
We now hold that we have jurisdiction to review denials
of Oregon anti-SLAPP motions. Like California’s anti-
SLAPP law, Oregon’s amended statute grants immunity
from suit by “provid[ing] a defendant with the right to not
proceed to trial,” as the later-enacted right of immediate
8 SCHWERN V. PLUNKETT
appeal corroborates. See Or. Rev. Stat. § 31.152(4); see also
Batzel, 333 F.3d at 1025 (explaining that denials of anti-
SLAPP motions are immediately appealable because
“California lawmakers wanted to protect speakers from the
trial itself rather than merely from liability”).
II. The Anti-SLAPP Motion to Strike
The issue on appeal is whether Schwern established a
probability that he will prevail on each of his claims “by
presenting substantial evidence to support a prima facie
case.” Or. Rev. Stat. § 31.150(3).
Under Oregon’s anti-SLAPP law, a special motion to
strike involves “a two-step process.” Gardner v. Martino,
563 F.3d 981, 986 (9th Cir. 2009). The defendant must first
demonstrate that the claim arises out of expressive activity
protected by the statute. Or. Rev. Stat. § 31.150(2), (3). If
the defendant makes this threshold showing, “the burden
shifts to the plaintiff . . . 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.” Id.
§ 31.150(3). If the plaintiff fails to meet this burden, the
motion to strike must be granted. Id. § 31.150(1).
The parties do not dispute that Schwern’s claims arise
out of expressive activity protected by the statute. See id.
§ 31.150(2), (3). As a result, we must determine only
whether Schwern produced substantial evidence to support a
prima facie case. See id. § 31.150(3).
In determining whether Schwern has met his burden
under the second step, we view the evidence in the light most
favorable to him and draw reasonable inferences in his favor.
Plotkin, 280 Or. App. at 815–16. But “where there is a
conflict between the parties’ proffered factual narratives and
SCHWERN V. PLUNKETT 9
evidence,” we “adopt the version most favorable” to
Schwern only when “it is supported by substantial
evidence.” Id. at 816. In this context, “substantial evidence”
means “sufficient evidence from which a reasonable trier of
fact could find that the plaintiff met its burden of production”
to support a prima facie case. Handy v. Lane Cty., 360 Or.
605, 622–23 (2016).
The essence of Schwern’s suit is that Plunkett made false
rape accusations to the individuals and organizations that
commented online about his arrest, thereby harming his
professional reputation. Central to each claim, then, is
Schwern’s allegation that Plunkett actually communicated
with these individuals and organizations following the
incident. Yet Schwern offers no evidence that Plunkett ever
spoke with any of the individuals who posted on Twitter
about his arrest or that she communicated with any of the
organizations that issued statements on their websites. As in
Handy, “[t]he record does not show that [she] ever made any
statement” to them. 360 Or. at 625. Instead, Schwern
“mere[ly] speculat[es]” that she spoke to them. Id.
Even when construing the evidence in Schwern’s favor,
as we must, we cannot reasonably infer that Plunkett was the
source. The online postings themselves do not help Schwern
meet his burden because they recite truthful information that
was freely available to the public. For example, one person
posted a link to Schwern’s public arrest record and wrote that
Schwern “was arrested for assaulting his partner.” Another
organization confirmed that Schwern “was arrested by
Portland Police” on charges of harassment and strangulation.
The only evidence that Plunkett spoke to anyone about
the incident is a statement from Casey West that Plunkett
told him about the alleged rape. The statement offers no
details or elaboration. Setting aside Plunkett’s objection to
10 SCHWERN V. PLUNKETT
the admission of this testimony, West’s statement tells us
nothing about whether Plunkett was the source of the online
commentary. Whether she made a statement to West and
whether she made statements to the individuals and
organizations that commented online “are two separate
issues.” See id. Schwern offered no evidence that West ever
repeated Plunkett’s alleged statement to anyone. Indeed, the
conversation with West ostensibly took place after Plunkett
moved to Boston. So not only is there no link to the online
postings, but the temporal link is speculative at best.
Absent any evidence that Plunkett was the source of the
online commentary, a “reasonable trier of fact” could not
find that Schwern met his burden of production to support a
prima facie case with substantial evidence. See id. at 623.
Schwern’s theory offers “nothing other than speculation to
fill in the gaps in his evidence.” Id. at 626. His allegation
that he “believe[s]” Plunkett made the statements is
insufficient. In sum, because Schwern failed to establish a
prima facie case through substantial evidence, Plunkett was
entitled to relief under Oregon’s anti-SLAPP law. We
reverse and instruct the district court to grant Plunkett’s
motion to strike.
REVERSED.