Rodney Englert v. Hebert MacDonnell

FILED
NOT FOR PUBLICATION MAY 26 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
RODNEY D. ENGLERT, No. 10-35678
Plaintiff - Appellant, DC No. 6:05 cv-01863 AA
v.
MEMORANDUM *
HEBERT LEON MacDONNELL;
BARTON P. EPSTEIN; STUART H.
JAMES; PATRICIA LOUGH,
Defendants - Appellees.
Appeal from the United States District Court
for the District of Oregon
Ann L. Aiken, Chief District Judge, Presiding
Argued and Submitted May 2, 2011
Portland, Oregon
Before: TASHIMA, BEA, and IKUTA, Circuit Judges.
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
Rodney D. Englert appeals from the district court’s grant of summary
judgment to Herbert Leon MacDonell1 on Englert’s defamation claims. Englert’s
claims against MacDonell are based on 12 documents involving statements
purportedly made between July 1993 and February 2006. We have jurisdiction
under 28 U.S.C. § 1291. We affirm in part and reverse in part.
1. As an initial matter, although MacDonell claims that Englert is a
limited-purpose public figure, he has not demonstrated any “particular public
controversy” into which Englert has thrust himself in order to influence the issues
involved. Time, Inc. v. Firestone, 424 U.S. 448, 453 (1976). We conclude that
Englert is not a public figure.
2. Englert’s claim is time-barred with respect to five of the statements –
MacDonell’s July 25, 1993, letter; his January 3, 1994, letter; his January 27, 1998,
affidavit; his November 23, 1999, email; and the statements that William Crank
averred that MacDonell made to him – because he was aware of them and their
content more than a year before commencing this action. See Or. Rev. Stat.
§ 12.120(2); Holdner v. Oregon Trout, Inc., 22 P.3d 244, 248 (Or. Ct. App. 2001).
1
We adopt the spelling of defendant-appellee MacDonell used
consistently by the parties in their briefs, although it varies from the name in the
caption.
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3. Further, there is no evidence that MacDonell was responsible for two
of the statements – a notice left for jurors at a trial in Idaho and a newspaper article
that does not directly attribute a quote to MacDonell – so Englert has not created a
genuine issue of material fact that MacDonell has defamed him with respect to
those statements.
4. In addition, MacDonell’s letter of March 27, 2000, as well as the
statements that Jim J. Thomas and David J. Castle averred that MacDonell made to
them, are statements of opinion that do not imply assertions of objective fact, and
are accordingly not actionable. See, e.g., Partington v. Bugliosi, 56 F.3d 1147,
1153 (9th Cir. 1995).
5. The remaining statements – MacDonell’s emails of June 28, 2003, and
October 8, 2003 – are both capable of defamatory meaning under Oregon law.
See, e.g., Rajneesh Found. Int’l v. McGreer, 737 P.2d 593, 594 (Or. 1987).
6. Accordingly, we affirm the judgment of the district court with respect
to 10 of the 12 allegedly defamatory statements, but reverse as to the final two
statements – the emails of June 28, 2003, and October 8, 2003 – and remand for
further proceedings consistent with this disposition. Each party shall bear his own
costs on appeal.
AFFIRMED in part, REVERSED in part, and REMANDED.
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