Gardner v. Martino ( 2009 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
JOHN M. GARDNER; SUSAN L. 
GARDNER, husband and wife; MT.
HOOD POLARIS, INC., an Oregon
corporation,
No. 06-35437
Plaintiffs-Appellants,
D.C. No.
v.
 CV-05-00769-
TOM MARTINO, dba Tom Martino BR/HU
Show; WESTWOOD ONE, INC., a
Delaware corporation; CLEAR
CHANNEL COMMUNICATIONS, INC., a
Texas corporation,
Defendants-Appellees.

JOHN M. GARDNER; SUSAN L. 
GARDNER, husband and wife; MT.
HOOD POLARIS, INC., an Oregon
No. 06-35931
corporation,
Plaintiffs-Appellants, D.C. No.
v.  CV-05-00769-
BR/HU
TOM MARTINO, dba Tom Martino
OPINION
Show; WESTWOOD ONE, INC., a
Delaware corporation,
Defendants-Appellees.

Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted
July 7, 2008—Portland, Oregon
4821
4822 GARDNER v. MARTINO
Filed April 24, 2009
Before: Harry Pregerson and Stephen Reinhardt,
Circuit Judges, and Consuelo B. Marshall,* District Judge.
Opinion by Judge Marshall
*The Honorable Consuelo B. Marshall, United States District Judge for
the Central District of California, sitting by designation.
GARDNER v. MARTINO 4825
COUNSEL
Linda L. Marshall, Lake Oswego, Oregon, for the plaintiffs-
appellants.
Charles F. Hinkle, Stoel Rives LLP, Portland, Oregon, for the
defendants-appellees.
OPINION
MARSHALL, District Judge:
Plaintiffs-Appellants, John M. Gardner, Susan L. Gardner,
and Mt. Hood Polaris, Inc. (collectively “Appellants”)
brought this action against Defendants-Appellees, Tom Mar-
tino, Westwood One, Inc., (collectively “Appellees”) and
Clear Channel Communications, Inc.,1 for defamation, false
light invasion of privacy, intentional interference with eco-
nomic relations, and intentional interference with prospective
economic advantage, based on statements made by Martino
during his live radio show broadcast on station KHOW in
1
Pursuant to stipulation by the parties, the appeal was voluntarily dis-
missed as to Appellee Clear Channel Communications, Inc.
4826 GARDNER v. MARTINO
Denver, Colorado (later rebroadcast on station KEX in Port-
land, Oregon).
The action was dismissed without prejudice after the dis-
trict court granted Appellees’ special motion to strike under
Oregon’s anti-SLAPP statute, Or. Rev. Stat. § 31.150, and
held that Martino’s statements were not defamatory as a mat-
ter of law. The district court also denied two requests by
Appellants to amend the complaint and subsequently awarded
attorney’s fees2 to Appellees as the prevailing party pursuant
to Oregon’s anti-SLAPP statute, Or. Rev. Stat. § 31.152.
Appellants timely appeal. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm.
I. BACKGROUND
John and Susan Gardner own and operate Mt. Hood
Polaris, Inc., a retail store located in Boring, Oregon that sells
personal watercraft (“PWC”) and other recreational vehicles.
Melissa Feroglia (“Feroglia”) purchased a PWC manufactured
by Polaris Industries, Inc.3 from Appellants. Shortly thereaf-
ter, the PWC she purchased experienced several overheating
problems. Feroglia asked John Gardner for a refund but did
not receive one.
The Tom Martino Show is a nationally-syndicated radio talk
show that airs telephone conversations between Martino and
callers seeking help with their consumer problems. Feroglia
contacted The Tom Martino Show about her dispute with
Appellants and ultimately, she was invited to call in to the
show and explain her problem to Martino live on the air.
2
Appellants appealed the September 20, 2006 Order that awarded attor-
ney’s fees to Appellees. Appellants have not briefed this issue, therefore,
it will not be reviewed by this Court.
3
Melissa Feroglia and Polaris Industries, Inc. are not named parties in
this lawsuit.
GARDNER v. MARTINO 4827
Martino spoke with Feroglia and then discussed her com-
plaints over the course of approximately fifty-five minutes.
Relevant portions of the program are as follows:
Segment One
Martino: All right, I’m Tom Martino, let’s
talk to Melissa [Feroglia] who
wants to talk about a jet ski she’s
not happy with . . . why are you
unhappy with this jet ski?
Feroglia: Well, I’ve owned it for four and
half months, and it’s only run for
25 hours.
Martino: Why?
Feroglia: And it’s been in the shop . . .
Martino: Why, why?
Feroglia: Multiple over-heating problems.
...
Martino: What kind is it?
Feroglia: It’s a Polaris MSX150.
...
Martino: Well, why aren’t they fixing it?
Feroglia: They’ve tried. They put a new
engine in at 18 hours.
Martino: A whole new engine?
4828 GARDNER v. MARTINO
Feroglia: A whole new engine. And that
didn’t work. Labor Day weekend
it broke down again. The problem
is when it breaks down it stops
running.
...
Feroglia: They’ve [Appellants] had it since
September 8th. The dealer [John
Gardner] told me he was taking it
back, that it was too much trouble
for him to work on, and in his
opinion it was a bad machine. He
wrote out an invoice saying that it
was a buy back, and now they are
not honoring that.
Martino: So, you don’t have anything? You
don’t have your money or the
machine?
Feroglia: No.
Martino: Will he give your machine back?
Feroglia: He will. He says that they think
they’ve corrected the problem.
They took an intake valve that
brings water to cool it . . .
Martino: Yeah.
Feroglia: . . . and drilled it out to make it
bigger and see if that would help.
Martino: Why don’t they . . .
GARDNER v. MARTINO 4829
Feroglia: It’s not a new part, they just stuck
a drill in it.
Martino: Why don’t they, why don’t they
go out and try it?
Feroglia: Well, on the 8th when I called and
asked why it hadn’t been tried,
they said, all of a sudden they cal-
led me back two hours later and
said, oh, we did try it, it works
great.
Martino: Yeah, they’re just, yeah, they’re
just lying to you.
Feroglia: Right, ‘cause now it’s November
in Washington and I can’t ride it
to find out.
Martino: Yeah, and you won’t know until
next spring. But you have in writ-
ing something that says a buy
back.
Feroglia: No, he put it in writing, and I
asked for a copy. He said I didn’t
need it. However, I do have the
senior shop technician verifying
that he had the buy back order and
was told not to work on the boat.
Martino: You actually have, what do you
mean you have him? He’ll admit
it?
Feroglia: He did admit it to me on . . .
4830 GARDNER v. MARTINO
Martino: No, but will he admit it to us?
Will they admit to us that they l
. . . they went back on their word?
Feroglia: I don’t know, they might.
Segment Two
Martino Now, Chris,4 you called the
dealer, this Polaris dealer and
what’s the name of the dealer,
let’s clarify.
Chris: Yes. It is Mt. Hood Polaris.
Martino: Mt. Hood Polaris. And they say
what? They . . . did they admit
they promised her to buy it back?
Chris: No, I spoke with the general man-
ager and he basically said,
“You’re going to have to contact
Polaris.” And that’s it. I said,
“You don’t want to help her at
all? You don’t want to at least
assist her in this process?”
Segment Three
Martino: I’m going to say this, Polaris
sucks.
...
4
Chris Kane is one of the producers of The Tom Martino Show. As part
of Kane’s duties, he assists Martino during the show by calling the busi-
ness during the live broadcast to get a comment from the business owner
or authorized representative with respect to the consumer’s complaint.
GARDNER v. MARTINO 4831
Martino: So, we called the dealer. The
dealer says “There’s nothing we
can do for her. We’re not going to
talk about it. She needs to go
through the manufacturer.” So, we
called the manufacturer - Polaris
Industries. They said she has to go
through the dealer. Now listen
carefully. She has to go through
the dealer. The dealer says she has
to go through the manufacturer.
Mt. Hood Polaris, Polaris Indus-
tries equals sucks. Why? Because
she has nowhere to go. Ping, pong
[clicking noises] Polaris Indus-
tries, Mt. Hood Polaris. I urge you
to let them know you will never
buy a Polaris product knowing
that they treat people like this.
II. DISCUSSION
Appellants filed their initial complaint in the Circuit Court
for the State of Oregon for the County of Clackamas. The
complaint was subsequently removed by Appellees to federal
court on the basis of diversity and federal question jurisdic-
tion. 28 U.S.C. §§ 1331, 1332. Thereafter, Appellants filed a
first amended complaint in federal court as a matter of right
pursuant to Fed. R. Civ. P. 15(a). Appellants’ claims in the
first amended complaint are based on Martino’s statements in
segment one of the broadcast, “they are just lying to you” and
“[w]ill they admit to us they lied, they went back on their word.”5
5
Magistrate Judge Hubel noted in his Findings and Recommendation
that “there appears to be a disputed fact regarding the second ‘lying’ state-
ment. In the transcript, Martino states ‘[n]o, but will he admit it to us?
Will they admit that they . . . they went back on their word?’ [Appellants]’
Amended Complaint alleges that Martino actually used the word ‘lied.’ ”
The Magistrate assumed for the purposes of ruling on Appellees’ special
motion to strike that Martino used the word “lied” or “that listeners would
have heard enough of the word to understand it to be ‘lied.’ ” We make
the same assumption.
4832 GARDNER v. MARTINO
Appellees moved to strike all claims in the complaint pur-
suant to Or. Rev. Stat. § 31.150. Magistrate Judge Dennis
James Hubel recommended granting Appellees’ motion to
strike and concluded as a matter of law that Martino’s state-
ments were nonactionable opinion under both the First
Amendment and Oregon common law.6 The Magistrate
referred the Findings and Recommendation to District Judge
Anna J. Brown for her review. Judge Brown adopted the rec-
ommendation and dismissed the action without prejudice.
A. Oregon’s Anti-SLAPP Statutes
Or. Rev. Stat. §§ 31.150 - 31.155 comprise Oregon’s anti-
SLAPP (“Strategic Lawsuit Against Public Participation”)
statutes. Anti-SLAPP statutes are designed to allow the early
dismissal of meritless lawsuits aimed at chilling expression
through costly, time-consuming litigation. Verizon Delaware,
Inc. v. Covad Comms. Co., 377 F.3d 1081, 1090 (9th Cir.
2004). Section 31.150 allows defendants to bring a special
motion to strike a claim which shall be treated as a motion to
dismiss under Or. R. Civ. P. 21 A and requires the court to
enter a “judgment of dismissal without prejudice” if the
motion is granted. The court’s consideration of a special
motion to strike is a two-step process. First, the defendant has
the initial burden to show that the challenged statement is
within one of the categories of civil actions described in Or.
Rev. Stat. § 31.150(2).7 If the defendant meets the initial bur-
den, “the burden shifts to the plaintiff in the action to establish
6
Local Rule 72-1 for the District of Oregon allows “every magistrate
judge to conduct all pretrial proceedings contemplated by 28 U.S.C.
§ 636(b) and Fed. R. Civ. P. 72, without further designation or assignment
from the court.”
7
In pertinent part, “(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 con-
stitutional right of free speech in connection with a public issue or an issue
of public interest.”
GARDNER v. MARTINO 4833
that there is a probability that the plaintiff will prevail on the
claim by presenting substantial evidence to support a prima
facie case. If the plaintiff meets this burden, the court shall
deny the motion.” Or. Rev. Stat. § 31.150(3).
Appellants do not challenge that the Appellees met their
initial burden to show that Martino’s statements fall within
one of the categories of civil actions described in Or. Rev.
Stat. § 31.150(2). Instead, Appellants appeal the district
court’s ruling that Appellants failed to meet their burden of
establishing that there is a probability that they would prevail
on their claims as alleged in the first amended complaint.
Appellants argue that Martino’s statements constitute false
assertions of fact and do not receive First Amendment protec-
tion.
B. Defamation Claim
1. Standard of Review
Whether an allegedly defamatory statement is one of opin-
ion or fact is a question of law. Slover v. Or. Bd. of Clinical
Soc. Workers, 927 P.2d 1098, 1100 (Or. App. 1996). We
review de novo the district court’s ruling that Martino’s state-
ments are not defamatory as a matter of law. Knievel v. ESPN,
393 F.3d 1069, 1072 (9th Cir. 2005).
2. Standard of Law
[1] There are several decisions in this Circuit which address
defamation claims and the standards that should be applied.
In Milkovich v. Lorain Journal Co., 497 U.S. 1 (1990), the
Supreme Court rejected the bright-line approach previously
used by this Circuit and held that while “pure” opinions (those
that do not imply facts capable of being proven true or false)
are protected by the First Amendment, a statement that may
imply a false assertion of fact is actionable even if it is
4834 GARDNER v. MARTINO
couched as a statement of “opinion.” Id. at 19; see also Part-
ington v. Bugliosi, 56 F.3d 1147, 1152-53 (9th Cir. 1994).
[2] In Unelko Corp. v. Rooney, 912 F.2d 1049, 1053 (9th
Cir. 1990), we held that the threshold question after Milkovich
in a defamation claim is “whether a reasonable factfinder
could conclude that the contested statement implies an asser-
tion of objective fact.” If the answer is no, the claim is fore-
closed by the First Amendment. We use a three-part test to
resolve this question: (1) whether the general tenor of the
entire work negates the impression that the defendant was
asserting an objective fact, (2) whether the defendant used fig-
urative or hyperbolic language that negates the impression,
and (3) whether the statement in question is susceptible of
being proved true or false. Partington, 56 F.3d at 1152 (citing
Unelko, 912 F.2d 1053); see also Knievel, 393 F.3d at 1075
(noting the three parts for the “totality of the circumstances”
test as (1) the broad context; (2) the specific context and the
content of the statement; and (3) whether the statement is suf-
ficiently factual to be susceptible of being proved true or
false).
In Partington, we held that when a speaker outlines the fac-
tual basis for his conclusion, his statement is not defamatory
and receives First Amendment protection. 56 F.3d at 1152-63.
In that case, the defendant’s book, And The Sea Will Tell,
implied that the plaintiff represented his clients poorly in a
murder trial. Id. at 1150-51. We held that the defendant’s
statements in the book were not defamatory because the
book’s general tenor made clear that the defendant’s state-
ments were from his personal viewpoint, and not assertions of
an objective fact. Id. at 1153.
In Underwager v. Channel 9 Australia, 69 F.3d 361, 367
(9th Cir. 1995), we noted that the word “lying” is not always
defamatory because the word applies to a “spectrum of
untruths including ‘white lies,’ ‘partial truths,’ ‘misinterpreta-
tion,’ and ‘deception’ ” which may be statements of nonac-
GARDNER v. MARTINO 4835
tionable opinion. The defendant in Underwager was sued for
rebroadcasting a television show interview where the speaker
said the plaintiff was “lying” about his credentials as an
expert in the child psychology field. Id. However, the plaintiff
failed to show that the challenged statement implied a verifi-
able assertion of perjury and therefore the statement was pro-
tected under the First Amendment. Id.In Flowers v. Carville, 310 F.3d 1118, 1129 (9th Cir.
2002), we refined the Partington rule to protect a speaker who
reasonably relies on facts that may be false. In that case, Gen-
nifer Flowers sued George Stephanopoulos and James Car-
ville for defamation after they claimed she lied about her
affair with President Bill Clinton and “doctored” recordings
of intimate phone calls from Clinton that she secretly taped.
Id. at 1122. Stephanopoulos and Carville argued that their
statements were protected because they relied on news reports
that the tapes were selectively edited. We explained that in the
case of a public figure, “unless defendants knew the news
reports were probably false or had some obvious reason to
doubt their accuracy, their reliance is protected by the First
Amendment. But if it turns out that defendants knew the news
reports were wrong or acted with reckless indifference in the
face of some clear warning sign then they weren’t entitled to
repeat them publicly and later claim that they were merely
expressing nondefamatory opinions.” Id. at 1129.
Finally, and most recently, in Manufactured Home Commu-
nities, Inc. v. County of San Diego, 554 F.3d 959, 964 (9th
Cir. 2008), we held that a defendant’s statements that accused
the plaintiff of lying without expressly disclosing a factual
basis for the statements could be defamatory. We remanded
the case for further proceedings because in that case, unlike
in Partington, the defendant’s statements were “not clearly
attached to . . . an outline of fact, nor did she explicitly link
her statements to an express factual basis.” Id. at 965.
4836 GARDNER v. MARTINO
3. Analysis of Appellants’ Defamation Claim
Appellants seek reversal of the district court’s ruling that
Martino’s statements in segment one of the broadcast were
protected expression under the First Amendment. The Magis-
trate Judge explained that the challenged statements could
have been referring to any one of three potential lies: “(1) a
lie by plaintiffs when they allegedly said they would buy the
PWC back; (2) a lie by plaintiffs when they denied saying
they would buy the PWC back; and (3) a lie by plaintiffs
when they said they had tested the PWC and it ‘worked
great.’ ” Appellants argue that Martino’s statements are
defamatory because the factual basis that Martino relied on
was false and Martino’s interview with Feroglia was devoid
of loose, hyperbolic language so that listeners would assume
Martino was stating a fact about Appellants. We do not need
to resolve which “lie” Martino was referring to in the con-
tested statements because we hold that Martino’s statements
are nonactionable opinion, which is protected by the First
Amendment.
i. Martino’s Reliance on Feroglia’s Factual
Statements Was Reasonable
[3] A review of the context in which Martino made his
comments, “they’re lying to you,” and “Will they admit to us
that they l . . . they went back on their word?” demonstrates
that these statements were not assertions of fact. The Tom
Martino Show is a radio talk show program that contains
many of the elements that would reduce the audience’s expec-
tation of learning an objective fact: drama, hyperbolic lan-
guage, an opinionated and arrogant host, and heated
controversy. See Knievel v. ESPN, 393 F.3d 1068, 1075 (9th
Cir. 2005) (analyzing the format, structure, the language used,
and the expectations that the target audience would have with
regard to the type of information that might be found in the
context, and noting that such context might be “paramount,”
if not “dispositive”). In the troubleshooting segment of the
GARDNER v. MARTINO 4837
show in which the allegedly defamatory comments were
made, Feroglia, a frustrated consumer, called in to narrate her
story on the air. It was clear to all that Martino had no inde-
pendent knowledge of the complaint at this point.8
[4] Because Martino’s “lying” statements were made in
reliance on the facts outlined on air by Feroglia in the minutes
preceding his commentary, like in Partington and unlike in
Manufactured Home Communities, no reasonable listener
could consider Martino’s comments to imply an assertion of
objective facts rather than an interpretation of the facts
equally available to Martino and to the listener. See Parting-
ton, 56 F.3d at 1156. As we stated in Partington, when it is
clear that the allegedly defamatory statement is “speculat[ion]
on the basis of the limited facts available,” 56 F.3d at 1156,
it represents a non-actionable personal interpretation of the
facts. See id.; see also Haynes v. Alfred A. Knopf, Inc., 8 F.3d
1222, 1227 (7th Cir. 1993) (“[I]f it is plain that the speaker
is expressing a subjective view, an interpretation, a theory,
conjecture, or surmise, rather than claiming to be in posses-
sion of objectively verifiable facts, the statement is not action-
able.”).
[5] Appellants argue, however, that Feroglia’s statements
were false and that therefore Martino’s reliance on her facts
is unprotected under Flowers. The flaw in Appellants’ argu-
ment is that it ignores the specific language in Flowers that
protects reliance on the statements of third-parties unless the
defendant “knew” that the statements were probably false or
“had some obvious reason to doubt their accuracy.” Flowers,
310 F.3d at 1129. In that case, Flowers was a public figure,
id. at 1129-1131, but even assuming Appellants are private
8
Appellants have not alleged facts to the contrary. Although The Tom
Martino Show apparently pre-selected Feroglia to call into the show, there
is no allegation that Martino knew anything about Feroglia’s complaint
other than what she told his staff, nor that what she said during the prior
process differed from what she said while on the air.
4838 GARDNER v. MARTINO
figures, Martino’s reliance on Feroglia’s factual statements
would be protected unless he was negligent or unreasonable
in doing so. See Gertz v. Robert Welch, Inc., 418 U.S. 323,
345 (1974) (holding that where a statement involves a private
figure on a matter of public concern, a plaintiff must show
that the false connotations were made with some level of
fault); Bank of Oregon v. Ind. News, Inc., 693 P.2d 35, 43 (Or.
1985) (holding that “plaintiffs must prove that the false and
defamatory statements were made negligently, i.e., without
due care to ascertain whether they were true.”). Thus, the
analysis does not turn on whether Feroglia’s story was wrong
as urged by Appellants but on whether Martino’s reliance on
those facts was reasonable.
[6] We conclude that the Appellants have not presented
substantial evidence to support a prima facie case that Mar-
tino’s reliance on Feroglia’s story was unreasonable or negli-
gent. The declarations submitted by the Appellants show that
Feroglia’s statements may have been false, but do not show
that Martino was negligent or unreasonable in relying on
Feroglia’s story, given the nature of talk shows, such as his.
At most the declarations show only that Martino’s show did
not contact Appellants before putting Feroglia’s call on the
air, but such prior investigation is not required in the context
of a radio show that takes live calls on the air. Additionally,
Appellants were given the opportunity to call in to the pro-
gram and explain their version of events but chose not to do
so.
[7] We decline to apply a lesser standard than the “reason-
able reliance” standard because it would be unreasonable to
require a speaker to determine the actual truth or falsity of
every fact the speaker relies on before stating his or her opin-
ion. A lesser standard than the “reasonable reliance” standard,
as proposed by Appellants, would chill speech and frustrate
the purpose of the First Amendment.
GARDNER v. MARTINO 4839
ii. The Specific “Lying” Statements
[8] Martino’s “lying” statements were also not sufficiently
factual to imply a false factual assertion. Rather, the state-
ments were more like the accusation that Underwager was
“perseverating” regarding his professional credentials — an
accusation that is a “nonactionable rhetorical hyperbole, a
vigorous epithet used by those who considered [the appel-
lant’s] position extremely unreasonable.” Underwager, 69
F.3d at 367 (internal quotation marks omitted). Martino made
at least two loose, hyperbolic statements during the broadcast,
which were an obvious exaggeration (“Polaris sucks” and
“Polaris Industries plus Mt. Hood Polaris equals sucks”), so
that it would be understood that the contested statements were
the type of obvious exaggeration generally employed on Mar-
tino’s program and held to be nonactionable in Underwager,
60 F.3d at 361, not false factual assertions.
We do not find that the holdings in Milkovich, 497 U.S. 1,
or Manufactured Home Communities, Inc., 554 F.3d 959, are
applicable to this case because Martino’s statements do not
rise to the same level of criminal accusations that were at
issue in those cases. In Milkovich, the defendant published a
newspaper opinion article entitled “Maple beat the law with
the big lie,” which asserted that the plaintiff, a former high
school wrestling coach, committed perjury in a judicial pro-
ceeding to cover up his team’s altercation with another high
school’s team. Milkovich, 497 U.S. at 4-5. The Supreme Court
held that the defendant’s statements were defamatory because
the article did not use the “sort of loose, figurative, or hyper-
bolic language which would negate the impression that the
writer was seriously maintaining that [plaintiff] committed the
crime of perjury.” Id. at 2. In Manufactured Home Communi-
ties, Inc., 544 F.3d 959, defendant county supervisor Diane
Jacobs made several comments to the local media alleging
that the plaintiff had lied to the Department of Environmental
Health about its clean up efforts in response to a sewage spill
and also made a claim that the District Attorney was inter-
4840 GARDNER v. MARTINO
ested in following up to determine whether there were civil
and/or criminal actions that should be filed against the plain-
tiff. Id. at 963-64. Martino’s statements are factually distin-
guishable because he did not accuse Appellants of committing
a serious civil and/or criminal violation.
[9] In sum, we hold that the statements of which Appellants
complain were not assertions of fact.
C. Appellants’ Requests to Amend the Complaint
1. Standard of Review
We review the district court’s denial of leave to amend the
complaint for abuse of discretion. Westlands Water Dist. v.
Firebaugh Canal, 10 F.3d 667, 677 (9th Cir. 1993). A district
court does not err in denying leave to amend where the
amendment would be futile. Thinket Ink Info. Res., Inc. v. Sun
Microsystems, Inc., 368 F.3d 1053, 1061 (9th Cir. 2004)
(internal citation omitted). “When a proposed amendment
would be futile, there is no need to prolong the litigation by
permitting further amendment.” Chaset v. Fleer/Skybox Int’l,
LP, 300 F.3d 1083, 1088 (9th Cir. 2002) (affirming trial
court’s denial of leave to amend where plaintiffs could not
cure a basic flaw — inability to demonstrate standing — in
their pleading).
2. Analysis
i. Applicability of Anti-SLAPP Statutes in Federal
Diversity Cases
[10] Appellants argue that the district court erred when it
did not permit Appellants to file an amended complaint and
argue that Oregon’s anti-SLAPP statute, which requires entry
of a judgment of dismissal without prejudice, directly con-
flicts with the Federal Rules and Oregon’s civil procedure
rules, both of which favor liberal amendment. Appellants rely
GARDNER v. MARTINO 4841
on the language in Or. Rev. Stat. § 31.150 which states that
“[t]he special motion to strike shall be treated as a motion to
dismiss under ORCP 21 A.” Appellants read this to mean that
the express language in the anti-SLAPP statute that requires
dismissal may be ignored and thus urge this Court to apply a
liberal amendment standard under Rule 21A of Oregon’s
Rules of Civil Procedure and/or Rule 15(a) of the Federal
Rules of Civil Procedure. Appellants rely on Verizon Del.,
Inc. v. Covad Communications Co., 377 F.3d 1081 (9th Cir.
2004), and Vess v. Ciba-Geigy Corp. USA, 317 F.3d 1097(9th Cir. 2003) for the proposition that the Court should use
a liberal amendment policy instead of the harsh penalties
under the anti-SLAPP statute.9
[11] Here, Appellants had already filed the first amended
complaint as a matter of right and Verizon specifically held
that a first amended complaint is subject to anti-SLAPP reme-
dies. See Verizon Del., Inc. 377 F.3d at 1091 (holding that “if
the offending claims remain in the first amended complaint,
the anti-SLAPP remedies are available to defendants.”).
Moreover, in United States v. Lockheed Missiles & Space Co.,
190 F.3d 963, 972-973 (9th Cir. 1999), the Ninth Circuit
expressly held that California’s anti-SLAPP statute may be
applied in federal diversity suits and found that the applica-
tion of the statute’s special motion to strike does not “directly
collide” with the Federal Rules. Thus, this Court holds that
Oregon’s anti-SLAPP statute, which requires entry of a judg-
ment of dismissal without prejudice, does not directly conflict
with the Federal Rules and Oregon’s civil procedure rules.
ii. Appellants’ First Request for Leave to Amend
Appellants did not file a formal motion for leave to amend
9
Appellants also rely on In re Bah, 321 B.R. 41 (9th Cir. 2005), which
holds that anti-SLAPP statutes may not be applied in federal question
cases. Id. at 46. However, the instant case is a diversity case, therefore, In
re Bah is inapplicable.
4842 GARDNER v. MARTINO
the first amended complaint but instead made the request
within their objections to the Findings & Recommendation.10
Appellants did not explain how they would cure the deficien-
cies in the first amended complaint but simply stated, “Given
that there has been no activity in this case other than the spe-
cial motion to strike, none of the defendants have filed an
answer, no discovery has been had, and no other activity has
occurred in this case, and given the fact that a dismissal under
[Or. Rev. Stat.] § 31.150 must be ‘without prejudice,’ it only
makes sense to permit plaintiffs to file amended claims.”
Moreover, Appellants did not include a proposed copy of the
second amended complaint as required by District of Oregon
Local Rule 15.1.11
[12] We find that the district court did not abuse its discre-
tion when it denied Appellants’ first request to amend the
complaint because Appellants did not propose any new facts
or legal theories for an amended complaint and therefore gave
the Court no basis to allow an amendment.
iii. Appellants’ Second Request for Leave to
Amend
Ten days after the first amended complaint was dismissed
without prejudice, Appellants filed a “motion to amend order
and judgment and for leave to file [a] second amended com-
plaint” and an “amended motion for an order setting aside the
judgment and to amend or correct the complaint.” Appellants
brought the motion pursuant to Fed. R. Civ. P. 15(a), 52(b)
10
In the District of Oregon, the Magistrate may issue the Findings &
Recommendation for a Special Motion to Strike under Or. Rev. Stat.
§ 31.150 and the District Court Judge reviews it pursuant to 28 U.S.C.
§ 636(b)(1) and Fed. R. Civ. P. 72(b).
11
Local Rule 15.1 for the District of Oregon requires that any party fil-
ing or moving to file an amended pleading must: (1) reproduce the entire
pleading; and (2) describe the changes made. Further, a copy of the pro-
posed amended pleading must be attached as an exhibit to any motion for
leave to file the amended pleading.
GARDNER v. MARTINO 4843
and 60(b). Appellants moved to “reopen the judgment” pursu-
ant to Fed. R. Civ. P. 60(b)(6), which provides that the court
may relieve a party from a final judgment for any “reason that
justifies relief.” Relief under Rule 60(b)(6) will not be granted
unless the moving party is able to show both injury and cir-
cumstances beyond its control prevented timely action to pro-
tect its interest. At oral argument in front of the District Court,
Appellees stipulated to bypass the Rule 60(b)(6) standards so
the trial court could reach and resolve the merits of the motion
to amend the complaint. The parties do not raise Rule 60(b)
on appeal.
[13] We hold that the district court did not abuse its discre-
tion when it denied Appellants’ second request for leave to
amend the complaint because the proposed amendment would
have been futile. The proposed second amended complaint
pled one cause of action for “intentional interference with
economic relations and prospective economic advantage.”
The Supreme Court of Oregon has held that the elements of
such a claim are: (1) the existence of a professional or busi-
ness relationship (which could include, e.g., a contract or a
prospective economic advantage); (2) intentional interference
with that relationship or advantage; (3) by a third party; (4)
accomplished through improper means or for an improper
purpose; (5) a causal effect between the interference and the
harm to the relationship or prospective advantage; and (6)
damages. Allen v. Hall, 974 P.2d 199, 202 (1999). We have
held that when a claim of tortious interference with business
relationships is brought as a result of constitutionally-
protected speech, the claim is subject to the same First
Amendment requirements that govern actions for defamation.
Unelko Corp., 912 F.2d at 1058.
[14] Appellants’ claim in the proposed second amended
complaint is based on Martino’s statements in segment three
of the broadcast where he urged his listeners to not buy
Polaris products. We hold that Martino’s statements in seg-
ment three of the broadcast are nonactionable opinion pro-
4844 GARDNER v. MARTINO
tected by the First Amendment. Based on the “totality of the
circumstances” test, Martino’s reliance on the facts as recited
by Feroglia was reasonable and the specific context of the
radio broadcast indicates that Martino was expressing his
opinion and not a factual assertion. Accordingly, Appellants
cannot state a claim for intentional interference with eco-
nomic relations and prospective economic advantage because
protected speech cannot be the basis for such a claim. Unelko
Corp., 912 F.2d at 1058. Moreover, Appellants’ allegations
regarding Martino’s “improper purpose” fail to state a cogni-
zable claim for intentional interference, as, given the nature of
Martino’s consumer advocacy talk radio program, they show
that he acted consistently with the “pursuit of [his] own busi-
ness purposes as [he] saw them, ” Top Service Body Shop,
Inc. v. Allstate Ins. Co., 582 P.2d 1365, 1372 (Or. 1978). As
such, Appellants’ proposed amendment to the complaint is
futile.
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is affirmed.
AFFIRMED.