Michael Schwern v. Patrick Plunkett
2017 U.S. App. LEXIS 780
| 9th Cir. | 2017Background
- Plunkett accused Schwern of sexual assault in Sept. 2013; Schwern was arrested and the arrest information circulated online within the open-source community.
- Schwern sued Plunkett for defamation, intentional infliction of emotional distress, and interference with economic relations, alleging her statements harmed his professional reputation.
- Plunkett filed an Oregon special motion to strike under the anti-SLAPP statute seeking dismissal; the magistrate judge and district court denied the motion, finding Schwern had established a prima facie case.
- Oregon amended its anti-SLAPP statute in 2009 to provide a right of immediate appeal and to treat the procedure as allowing defendants to avoid trial when plaintiffs cannot meet the statutory burden.
- On appeal, the Ninth Circuit examined (1) whether it has jurisdiction to hear immediate appeals from denials of Oregon anti-SLAPP motions, and (2) whether Schwern produced substantial evidence to support a prima facie case.
- The Ninth Circuit reversed the denial of Plunkett’s motion because Schwern failed to present substantial evidence that Plunkett was the source of the online statements.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the Ninth Circuit has jurisdiction under 28 U.S.C. §1291 to hear an immediate appeal of a denial of an Oregon anti‑SLAPP motion | Englert prevents immediate appeal; Oregon law originally did not create immunity-from-trial so no interlocutory appeal | Oregon’s 2009 amendments created a right of immediate appeal and an immunity-like protection from trial | Court: Jurisdiction exists; Oregon’s amendments render denials immediately appealable (like California law) |
| Whether Schwern presented substantial evidence to establish a prima facie case on his claims (i.e., probability of prevailing) | Schwern contends Plunkett communicated the rape allegations to individuals/organizations who then posted or issued statements online, harming him | Plunkett argues Schwern has no evidence linking her to the online posts; online posts reflect publicly available arrest records and truthful information, not attributable statements by Plunkett | Court: Held for Plunkett — Schwern failed to present substantial evidence tying Plunkett to the online commentary; his theory was speculative, so anti‑SLAPP motion should be granted |
Key Cases Cited
- Batzel v. Smith, 333 F.3d 1018 (9th Cir. 2003) (denial of anti‑SLAPP immunity that functions like immunity from suit is immediately appealable)
- Englert v. MacDonell, 551 F.3d 1099 (9th Cir. 2009) (interpreting Oregon’s pre‑2009 anti‑SLAPP law as not providing interlocutory appeals)
- DC Comics v. Pacific Pictures Corp., 706 F.3d 1009 (9th Cir. 2013) (examining when state‑law immunity functions as immunity from suit and noting Oregon’s statute was amended)
- Gardner v. Martino, 563 F.3d 981 (9th Cir. 2009) (describing the two‑step anti‑SLAPP framework)
- Handy v. Lane Cty., 360 Or. 605 (Or. 2016) (defining “substantial evidence” and rejecting speculative attribution of statements)