Northon v. Rule ( 2011 )

FILED
NOT FOR PUBLICATION JAN 18 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
LIYSA NORTHON; WAYLAND No. 07-35319
DEWITT; JON “TOR” DEWITT,
D.C. No. CV-06-00851-MO
Plaintiff - Appellants,
v. MEMORANDUM *
ANN RULE, an individual; FREE PRESS,
a division of Simon & Schuster, Inc.;
SIMON & SCHUSTER, INC., a Delaware
corporation,
Defendant - Appellees.
Appeal from the United States District Court
for the District of Oregon
Michael W. Mosman, District Judge, Presiding
Submitted October 7, 2010 **
Portland, Oregon
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
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Before: TASHIMA, PAEZ and CLIFTON, Circuit Judges
Liysa Northon and other members of her family appeal from the district
court’s order granting Defendants’ special motion to strike under Oregon’s anti-
Strategic Lawsuit Against Public Participation (“anti-SLAPP”) law, Or. Rev. Stat.
§ 31.150. We have jurisdiction pursuant to 28 U.S.C. § 1291. We review de novo,
Gardner v. Martino, 563 F.3d 981, 986 (9th Cir. 2009), and we affirm.1
The district court properly granted Defendants’ special motion because
Plaintiffs failed to meet their burden of establishing that there was a probability
that they would prevail on their claims. See id. (explaining that the plaintiff has the
burden 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”).
Specifically, Plaintiffs failed to show how any statements made in the book might
have been defamatory. See id. at 989 (affirming dismissal of defamation claim
because, inter alia, plaintiff failed to present substantial evidence to support a
prima facie case). During the hearing, Plaintiffs offered a generalized argument
that the entire book was defamatory and did not provide any citations for false
statements. The court properly determined that in evaluating whether Plaintiffs
1
In an order filed simultaneously with this memorandum, we also grant
Defendants-Appellees’ motion for an award of attorneys’ fees.
2
have actionable claims for defamation under Oregon law, it must look at each
challenged statement, rather than the book as a whole. See Reesman v. Highfill,
327 Or. 597, 604-05 (1998).
Plaintiffs cannot succeed on their claim that the magistrate judge was biased
against them because they did not file a “timely and sufficient” motion for recusal
under 28 U.S.C. § 144. See United States v. Castro, 887 F. 2d 988, 1000 (9th Cir.
1989). The ineffective assistance of counsel claim fails because a plaintiff does not
have a constitutional right to counsel in a civil action. See Nicholson v. Rushen,
767 F. 2d 1426, 1427 (9th Cir. 1985) (per curiam). We decline to consider the
other issues raised on appeal because they were not raised before the district court.
See Turnacliff v. Westly, 546 F. 3d 1113, 1120 (9th Cir. 2008).
AFFIRMED.
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