Englert v. MacDonnell ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
RODNEY D. ENGLERT, 
Plaintiff-Appellee,
v.
HERBERT LEON MACDONELL, TERRY No. 06-35465
L. LABER, and PETER R. DEFOREST,
Defendants,  D.C. No.
CV-05-01863-ALA
and
BARTON P. EPSTEIN, STUART H.
JAMES, and PATRICIA LOUGH,
Defendants-Appellants.

RODNEY D. ENGLERT, 
Plaintiff-Appellee,
v.
HERBERT LEON MACDONELL, No. 06-35531
Defendant-Appellant,
 D.C. No.
CV-05-01863-ALA
and
TERRY LABER, BARTON P. EPSTEIN, OPINION
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
Argued and Submitted
May 8, 2008—Portland, Oregon
93
94 ENGLERT v. MACDONELL
Filed January 7, 2009
Before: Richard C. Tallman and Richard R. Clifton,
Circuit Judges, and Edward R. Korman,* District Judge.
Opinion by Judge Korman
*The Honorable Edward R. Korman, Senior United States District
Judge for the Eastern District of New York, sitting by designation.
96 ENGLERT v. MACDONELL
COUNSEL
Eric J. Neiman, Heather J. Van Meter, Williams, Kastner &
Gibbs P.L.L.C., Portland, Oregon, for Appellant Herbert Leon
MacDonell.
ENGLERT v. MACDONELL 97
Charles F. Hinkle, Stoel Rives LLP, Portland, Oregon, for
Appellants Barton P. Epstein, Stuart H. James, and Patricia
Lough.
Robert K. Udziela, Beaverton, Oregon; Victor Calzaretta,
Portland, Oregon, for Appellee Rodney D. Englert.
OPINION
KORMAN, District Judge:
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 law-
suit against public participation.” The statute creates a proce-
dural defense to civil actions that can dismiss a case without
prejudice at the pleading stage, based on an apparent weigh-
ing 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 deni-
grated plaintiff’s qualifications in that speciality. 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
98 ENGLERT v. MACDONELL
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 mod-
eled 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 autho-
rized 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 constitu-
tional right of free speech in connection with a pub-
lic issue or an issue of public interest.
ENGLERT v. MACDONELL 99
Or. Rev. Stat. § 31.150(2).
A defendant making a special motion to strike has the ini-
tial burden of making “a prima facie showing” that the claim
against which the motion is made arises out of the conduct
described in the foregoing paragraph. Or. Rev. Stat.
§ 31.150(3). Once he satisfies this burden, the burden then
shifts to the plaintiff “to establish that there is a probability
that the plaintiff will prevail on the claim by presenting sub-
stantial evidence to support a prima facie case.” Id.The filing of the special motion to strike also automatically
stays all discovery until it is decided, although the court may
for good cause shown permit discovery, Or. Rev. Stat.
§ 31.152(2), and the statute provides that a defendant who
prevails on a special motion to strike shall “be awarded rea-
sonable attorney[’s] fees and costs.” Or. Rev. Stat.
§ 31.152(3). Consistent with provisions for a stay of discov-
ery, Or. Rev. Stat. § 31.150(4) provides that a motion to strike
shall be resolved on the “pleadings and supporting and oppos-
ing affidavits stating the facts upon which the liability or
defense is based.”
The Oregon anti-SLAPP statute does not alter the substan-
tive law of defamation, Or. Rev. Stat. § 31.155(2), nor does
it alter the burden of proof that a plaintiff would have to meet
if the case proceeded to trial. Or. Rev. Stat. § 31.150(5)(b).
Instead, it is a procedural mechanism to permit a defendant to
avoid trial, and pretrial discovery, until a judge determines
that there is “a probability that the plaintiff will prevail.” Or.
Rev. Stat. § 31.150(3). In this respect it serves the same pur-
pose as a motion for summary judgment, although it imposes
a “potentially much heavier [burden on a plaintiff] than
merely establishing the existence of a disputed issue of fact.”
Staten, 191 P.3d at 788.
Notwithstanding this difference, for the purpose of resolv-
ing the jurisdictional issue, we see no meaningful difference
100 ENGLERT v. MACDONELL
between the two. Thus, we treat this appeal from the order of
the district court denying the special motion to strike in the
same way we would the denial of a motion for summary judg-
ment, and we dismiss it because we are without jurisdiction
to consider it. We leave for another day the issue whether the
“much heavier burden,” which Oregon’s anti-SLAPP statute
places on a plaintiff to avoid a pre-trial dismissal of his com-
plaint, creates the kind of “direct collision” with Fed. R. Civ.
P. 56(c) that would preclude its application here. Walker v.
Armco Steel Corp., 446 U.S. 740, 749-50 (1980); see also
Metabolife Int’l, Inc. v. Wornick, 264 F.3d 832, 845 (9th Cir.
2001) (holding that a provision of the California anti-SLAPP
statute, comparable to that of Or. Rev. Stat. § 31.152(2), mak-
ing the availability of discovery discretionary, is inconsistent
with Fed. R. Civ. P. 56(f)).
Discussion
[1] “The historic policy of the federal courts has been that
appeal will lie only from a final decision.” Charles Alan
Wright & Mary Kay Kane, Federal Practice & Procedure:
Federal Practice Deskbook § 108 (2008). This policy, first
declared in the Judiciary Act of 1789, 1 Stat. 73, 84 §§ 21, 22,
25, is now codified in 28 U.S.C. § 1291, pursuant to which
this appeal is taken, and which specifically confers jurisdic-
tion on the courts of appeals “from all final decisions of the
district courts of the United States.” “A ‘final decision’ gener-
ally is one which ends the litigation on the merits and leaves
nothing for the court to do but execute the judgment.” Catlin
v. United States, 324 U.S. 229, 233 (1945); accord Cunning-
ham v. Hamilton County, Ohio, 527 U.S. 198, 204 (1999);
Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 497 (1989). This
rule serves several salutary purposes.
It emphasizes the deference that appellate courts owe
to the trial judge as the individual initially called
upon to decide the many questions of law and fact
that occur in the course of a trial. Permitting piece-
ENGLERT v. MACDONELL 101
meal appeals would undermine the independence of
the district judge, as well as the special role that indi-
vidual plays in our judicial system. In addition, the
rule is in accordance with the sensible policy of
avoid[ing] the obstruction to just claims that would
come from permitting the harassment and cost of a
succession of separate appeals from the various rul-
ings to which a litigation may give rise, from its ini-
tiation to entry of judgment. The rule also serves the
important purpose of promoting efficient judicial
administration.
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374
(1981) (internal citations and quotation marks omitted); see
also Cunningham, 527 U.S. at 203-04.
[2] The order here denying the appellants’ special motion
to strike is not a final decision. On the contrary, rather than
ending the litigation on the merits, it permits the litigation to
proceed in the ordinary manner to a final judgment. Nor did
the appellants obtain authorization pursuant to 28 U.S.C.
§ 1292(b), which would have conferred on us the discretion
to hear the appeal, by convincing the district judge to certify
that the order denying the motion to strike “involves a con-
trolling question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from
the order may materially advance the ultimate termination of
the litigation.” 28 U.S.C. § 1292(b); see, e.g., Keogh v. Pear-
son, 244 F. Supp. 482, 486 (D.D.C. 1965), rev’d sub nom.
Wash. Post Co. v. Keogh, 365 F.2d 965 (D.C. Cir. 1966)
(granting such a certification in a defamation action, permit-
ting the D.C. Circuit to entertain jurisdiction over the ensuing
appeal).
[3] The appellants, however, argue that this case comes
within the collateral order doctrine, identified by the Supreme
Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541(1949). The doctrine, which is not so much an exception to
102 ENGLERT v. MACDONELL
the “final decision” rule in § 1291 as it is a practical construc-
tion of it, applies to a “small class” of decisions, “which
finally determine claims of right separable from, and collat-
eral to, rights asserted in the action, too important to be
denied review and too independent of the cause itself to
require that appellate consideration be deferred until the
whole case is adjudicated.” Id. at 546.
Since the holding in Cohen, the Supreme Court has repeat-
edly stressed that these criteria should not be construed in a
way that would “swallow the general rule . . . that a party is
entitled to a single appeal, to be deferred until final judgment
has been entered, in which claims of district court error at any
stage of the litigation may be ventilated.” Digital Equip.
Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 (1994).
Indeed, it has not “mentioned applying the collateral order
doctrine recently without emphasizing its modest scope.” Will
v. Hallock, 546 U.S. 345, 350 (2006). Moreover, it has “de-
scribed the conditions for collateral order appeal as stringent.”
Digital Equip. Corp., 511 U.S. at 868. The order must “[1]
conclusively determine the disputed question, [2] resolve an
important issue completely separate from the merits of the
action, and [3] be effectively unreviewable on appeal from a
final judgment.” Will, 546 U.S. at 349 (quoting P.R. Aqueduct
& Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993)).
[4] We need not address each of these conditions separately
because we are not persuaded that, without an interlocutory
appeal, the issues appellants raise would be “effectively unre-
viewable on appeal from a final judgment.” This conclusion
“in itself suffice[s] to foreclose immediate appeal under
§ 1291.” Digital Equip. Corp., 511 U.S. at 868-69; see also
Will, 546 U.S. at 349-55 (holding that jurisdiction was lacking
based on the third component of the Cohen test, without dis-
cussing the first two components).
[5] Briefly, the four appellants argued below that the
defamatory statements attributed to them constituted protected
ENGLERT v. MACDONELL 103
speech, because they were made “in furtherance of the exer-
cise 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)(d). The district court rejected this argument
as to certain causes of action because the defamatory state-
ments fell “outside of any public interest.” Englert, 2006 WL
1310498, at *10. Moreover, even if these statements related
to issues of public interest, the defendants had abused the con-
ditional common law privilege that attached to them. On this
basis, the court entered the order from which the appeal is
taken.
[6] If the appeal is dismissed and the case proceeds to a
final judgment against them, the appellants could obtain
review of the district court’s finding that their defamatory
speech did “fall outside any public interest” under Or. Rev.
Stat. § 31.150. They could also argue that plaintiff had not
come forward with sufficient evidence to establish that they
had abused the privilege. Of course, the latter issue would be
reviewed on the basis of the trial record, rather than the evi-
dence adduced on the motion to strike. Locricchio v. Legal
Servs. Corp., 833 F.2d 1352, 1358-59 (9th Cir. 1987). This
difference does not effectively render unreviewable the deci-
sion that the plaintiff has come forward with sufficient evi-
dence to submit the case to a jury. A plaintiff, defending
against a special motion to strike, would generally have every
reason to come forward with all of the available evidence to
defeat the motion. Indeed, a plaintiff would have a particu-
larly significant incentive to do so in an anti-SLAPP case in
which he would be subject to an award of counsel fees and
costs if he failed to defeat the motion. Or. Rev. Stat.
§ 31.152(3); see also United States ex rel. Newsham v. Lock-
heed Missiles & Space Co., Inc., 190 F.3d 963, 970-73 (9th
Cir. 1999). Under these circumstances, there would be little
difference between a review of the sufficiency of the evidence
offered at trial and a similar review of the sufficiency of the
evidence offered in opposition to a special motion to strike.
104 ENGLERT v. MACDONELL
[7] The appellants, however, argue that Or. Rev. Stat.
§ 31.150 confers upon them the right to avoid the burdensome
cost of defending a case — a right, which they argue, will be
lost irretrievably if they cannot appeal from the order denying
the special motion to strike, even if they ultimately prevailed
on an appeal from a final judgment. This by itself is insuffi-
cient to justify an interlocutory appeal. As we explained ear-
lier, Or. Rev. Stat. § 31.150 is comparable to a motion for
summary judgment in a defamation action. Denials of such
motions are not generally appealable under the collateral
order doctrine, Digital Equip. Corp., 511 U.S. at 873, even
though one of their purposes is to save the parties the burden
and expense of a trial in a case where it would be a useless
formality. See Zweig v. Hearst Corp., 521 F.2d 1129, 1135-36
(9th Cir. 1975).
Will v. Hallock, 546 U.S. 345 (2006), which was decided
after this court’s decision in Batzel v. Smith, 333 F.3d 1018(9th Cir. 2003), is particularly instructive because it signifi-
cantly clarified the standard for determining whether the third
prong of the collateral order test has been satisfied. The dis-
trict court there denied a motion for judgment on the plead-
ings, which was grounded on the argument that the dismissal
of a previously filed Federal Tort Claims Act (“FTCA”)
action against the United States barred a subsequent Bivens
action against the individual defendants. Will, 546 U.S. at
348-49. The defendants argued that the judgment bar of the
FTCA, which provides that “the judgment in an action under
§ 1346(b) [of the FTCA] constitute[s] a complete bar to any
action . . . against the employee of the government whose act
or omission gave rise to the claim,” applied. Id. at 348.
The Supreme Court held that the order denying the motion
for judgment on the pleadings did not warrant an “immediate
appeal of right as a collateral order.” Id. at 355. Instead, it
again made clear that the “mere avoidance of a trial” was
insufficient to invoke the collateral order doctrine. Id. at 353.
Only the “avoidance of a trial that would imperil a substantial
ENGLERT v. MACDONELL 105
public interest” would suffice. Id. (citing Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978)). Reviewing the cases in
which the third prong of the collateral order test was deemed
satisfied, it found that the commonality between the cases was
the marshaling of “some particular value of a high order . . .
in support of the interest in avoiding trial,” such as “honoring
the separation of powers, preserving the efficiency of govern-
ment and the initiative of its officials, respecting a State’s dig-
nitary interests, [or] mitigating the government’s advantage
over the individual.” Id. at 350, 352-53. While the judgment
bar of the FTCA would have saved the defendants the burden
and expense of trial, the purpose of the bar was “the avoid-
ance of litigation for its own sake,” rather than the conference
of such immunity to advance “a particular value of a high
order.” Id. at 353-54.
[8] We conclude that the Oregon anti-SLAPP statute fails
the Will test at the threshold because it was not intended to
provide a right not to be tried, as distinguished from a right
to have the legal sufficiency of the evidence underlying the
complaint reviewed by a nisi prius judge before a defendant
is required to undergo the burden and expense of a trial. Our
conclusion, which is consistent with the admonition that
“claims of a ‘right not to be tried’ [be viewed] with skepti-
cism, if not a jaundiced eye,” Digital Equip. Corp., 511 U.S.
at 873, is based on the failure of the Oregon anti-SLAPP stat-
ute to provide for an appeal from an order denying a special
motion to strike. This surely suggests that Oregon does not
view such a remedy as necessary to protect the considerations
underlying its anti-SLAPP statute. It would simply be anoma-
lous to permit an appeal from an order denying a motion to
strike when Oregon was satisfied that the values underlying
the remedy could be sufficiently protected by a trial judge’s
initial review of the motion, followed by appellate review
only after a final judgment in favor of the plaintiff.
This distinguishes the present case from Batzel, which held
that an order denying a special motion to strike under the Cal-
106 ENGLERT v. MACDONELL
ifornia anti-SLAPP statute came within the collateral order
doctrine. We found it “instructive” in reaching this conclusion
“that California’s anti-SLAPP statute provides that an order
denying an anti-SLAPP motion may be appealed immediate-
ly.” Batzel, 333 F.3d at 1025; see Cal. Civ. Proc. Code
§ 425.16(i) (2008). Specifically, we relied upon the following
statement by the California Senate Judiciary Committee
explaining the reasons for permitting an immediate appeal:
Without [the right of immediate appeal], a defendant
will have to incur the cost of a lawsuit before having
his or her right to free speech vindicated. . . . [W]hen
a meritorious anti-SLAPP motion is denied, the
defendant, under current law, has only two options.
The first is to file a writ of appeal, which is discre-
tionary and rarely granted. The second is to defend
the lawsuit. If the defendant wins, the anti-SLAPP
law is useless and has failed to protect the defen-
dant’s constitutional rights.
Batzel, 333 F.3d at 1025 (quoting Cal. Sen. Judiciary Comm.
Rep. on AB 1675, at 4). Indeed, it was precisely because of
the provision authorizing an interlocutory appeal from an
order denying a special motion to strike that we concluded
that “California law recognizes the protection of the anti-
SLAPP statute as a substantive immunity from suit, [and that]
this Court, sitting in diversity, will do so as well.” Id. at 1025-
26.
The 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,” id. at 1025, as much as they wanted to have in
place a process by which a nisi prius judge would promptly
review the evidence underlying the defamation complaint to
determine whether it had sufficient merit to go forward.
ENGLERT v. MACDONELL 107
The appellants, however, argue that the absence of a spe-
cific provision in Or. Rev. Stat. § 31.150 comparable to that
in the California anti-SLAPP statute would not preclude
appellate review of the denial of the special motion to strike
in Oregon. Specifically citing a handful of cases in which the
Supreme Court of Oregon has entertained petitions for a writ
of mandamus seeking review of orders denying motions to
dismiss based on lack of in personam jurisdiction, State ex
rel. Liebovich v. Tiktin, 902 P.2d 91 (Or. 1995); State ex rel.
Circus Circus Reno, Inc. v. Pope, 854 P.2d 461 (Or. 1993);
State ex rel. Jones v. Crookham, 681 P.2d 103 (Or. 1984);
State ex rel. La Manufacture Francaise des Pneumatiques
Michelin v. Wells, 657 P.2d 207 (Or. 1982); see also Wong v.
Wong, 894 P.2d 519 (Or. Ct. App. 1995), they suggest that
similar review would be available to test a denial of a special
motion to strike. This argument reflects a fundamental misun-
derstanding of the nature of the writ of mandamus.
[9] The Supreme Court of Oregon has held that
“[m]andamus, an extraordinary remedy, is a discretionary writ
and not a writ of right.” N. Pac. S.S. Co. v. Guarisco, 647
P.2d 920, 924 n.3 (Or. 1982) (holding on direct appeal that
the trial court improperly exercised jurisdiction over defen-
dants, despite having previously denied defendants’ petition
for a writ of mandamus on the issue). The most that can be
drawn from the handful of cases, on which the appellants rely,
is that in some cases review of orders denying motions to dis-
miss because of lack of jurisdiction may be available as a
matter of discretion. Indeed, they appear to constitute a sui
generis exception, recognized as such by the Supreme Court
of Oregon, to the rule that “the prospect of suffering the bur-
den of litigation [is not] a sufficient injury in itself to justify
mandamus.” State ex rel. Auto. Emporium, Inc. v. Murchison,
611 P.2d 1169, 1171 & n.5 (Or. 1980).
[10] We need not belabor this issue, however, because the
availability of such discretionary review in Oregon state
court, as opposed to an appeal as a matter of right, provides
108 ENGLERT v. MACDONELL
no support for appellants’ argument that Or. Rev. Stat.
§ 31.150 was intended to provide a right not to be tried.
Indeed, the California Legislature included a provision in its
anti-SLAPP statute providing for an interlocutory appeal,
because it regarded discretionary review as inadequate to pro-
tect the defendant from “the cost of a lawsuit before having
his or her right to free speech vindicated.” Batzel, 333 F.3d at
1025 (quoting Cal. Sen. Judiciary Comm. Rep. on AB 1675,
at 4).
[11] We emphasize that our brief discussion of the avail-
ability of mandamus in Oregon is not intended to suggest that
Oregon law determines the availability of appellate review
here. On the contrary, federal law is controlling on this issue.
Nor did Batzel suggest otherwise. Batzel did not hold that an
order denying a special motion to strike was appealable under
the collateral order doctrine merely because California autho-
rized an appeal as a matter of right. Instead, it held that, if a
legislature provided an appeal unique to its anti-SLAPP stat-
ute, as was the case in California, it could be inferred that its
purpose was to confer immunity from suit—an immunity
which can only be vindicated by permitting an interlocutory
appeal. This is not the case here. With respect to its anti-
SLAPP statute, Oregon has chosen to apply a final judgment
rule comparable to that prescribed in 28 U.S.C. § 1291 and
has not made any special provision, similar to that enacted in
California, for appellate relief from the denial of a special
motion to strike. This provides compelling evidence that Or.
Rev. Stat. § 31.150 was intended to do nothing more than pro-
vide the defendants with a procedural device to obtain prompt
review by a nisi prius judge of the likelihood that the plaintiff
would be able to come forward with sufficient evidence to get
to a jury.
Conclusion
Because the order from which the appellants seek to appeal
is not a final judgment and because it does not come within
ENGLERT v. MACDONELL 109
the “small class” of cases in which an interlocutory appeal
may be taken, the consolidated appeals are dismissed. We add
these words. In addition to his special motion to strike, defen-
dant Herbert L. MacDonell filed a motion to dismiss the com-
plaint on the grounds that it was barred by the statute of
limitations and for lack of personal jurisdiction. The district
court denied these motions in the same order that it denied
MacDonell’s anti-SLAPP motion. On this appeal, he does not
press the argument that his motion to dismiss on the ground
of lack of in personam jurisdiction was wrongly decided,
although he does press his appeal from the denial of his
motion to dismiss on the ground that the complaint was barred
by the statute of limitations. We are also without jurisdiction
to entertain this appeal. Estate of Kennedy v. Bell Helicopter
Textron, Inc., 283 F.3d 1107, 1111 (9th Cir. 2002).
DISMISSED.