Schwern v. Plunkett, 1/17/17, 9C
In this case, a couple living in Oregon filed for divorce. The night the divorce was filed they met for one last dinner. Wife, Plunkett, alleged that her husband, Schwern, sexually assaulted her at the dinner meeting. Schwern is arrested but the DA decides not to file charges. Schwern and Plunkett work in the same industry and word of Plunkett’s accusation spreads in that community. Later, Plunkett also tells a mutual friend about the allegations. Schwern sues Plunkett for defamation; Plunkett files an anti-slapp motion under Oregon’s version of that law, which is modeled on California’s. Trial court denies Plunkett’s motion under prong 2, and Plunkett appeals. Held: Reversed.
Two take-aways – First, because of recent amendments to Oregon’s version of the law, the Court ruled that the denial of an anti-slapp motion under Oregon law is now an appealable order under 28 USC 1291, a conclusion that 9C previously reached when applying California’s anti-slapp law. The amended version of Oregon’s anti-slapp law, like California’s, provides immunity from trial, not just a defense to liability. Therefore, a denial of an anti-slapp motion is a final decision that triggers appellate jurisdiction. Now to the merits.
On the substance of the anti-slapp motion: The parties did not dispute that Schwern’s claim arises “out of expressive activity protected by the statute.” The burden shifted to the Schwern to establish that there is a probability that the he would prevail on the claim by presenting substantial evidence to support a prima facie case. Here, he failed Evidence 101 – While it was clear from online traffic that individuals and organizations knew that Schwern had been arrested for an alleged sexual assault, Schwern provided no evidence in response to the anti-slapp motion that Plunkett was the source of that information. Case over.