C.I.C.S. EMPLOYMENT SERVICES, INC., Plaintiff-Respondent,
NEWPORT NEWSPAPERS, INC., dba Newport News-Times; Rick Beasley; and James Rand, Defendants-Appellants.
and submitted November 8, 2017.
Lincoln County Circuit Court 16CV10840; David V. Cramer,
Judge pro tempore.
A. Endejan, Washington, argued the cause for appellants. With
her on the briefs was Garvey Schubert B a r er.
Hoesly argued the cause for respondent. With him on the brief
were Larkins Vacura Kayser LLP, Michael R. Seidl, Kelly
Fisher, and Seidl Law Offce PC.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendants appeal a limited judgment denying as
untimely their special motion to strike under ORS 31.150, the
anti-SLAPP (Strategic Lawsuit Against Public Participation)
statute, that they fled in response to plaintiff's
defamation action. Plaintiff brought its defamation action in
Multnomah County Circuit Court. Defendants moved to change
venue to Lincoln County, and plaintiff stipulated to the
change. Once the case moved to Lincoln County, defendants
fled their special motion to strike. At that point, more than
60 days had elapsed since plaintiff served defendants with
its complaint, in excess of the statutory deadline for
anti-SLAPP motions under ORS 31.152(1). The trial court
denied defendants' motion as untimely and declined to
exercise its discretion under ORS 31.152(1) to consider the
untimely motion. On appeal, defendants argue that their
anti-SLAPP motion was not untimely because the motion to
change venue tolled the fling deadline. In the alternative,
defendants argue that the trial court abused its discretion
by failing to consider the motion regardless of the late
fling. Held: The trial court did not err in denying
defendants' [291 Or.App. 317] anti-SLAPP motion. First,
the motion was untimely because defendants fled the motion
more than 60 days after they were served with the complaint,
and the 60-day statutory deadline was not tolled while
defendants' venue motion was pending. Second, the trial
court did not abuse its discretion when it declined to
consider the untimely motion because defendants did not
provide either sufficient legal grounds or a factual basis to
excuse the untimely fling.
Or.App. 318] SHORR, J.
appeal a limited judgment denying their special motion to
strike brought under ORS 31.150, Oregon's Anti-Strategic
Lawsuits Against Public Participation (anti-SLAPP) statute,
which they filed in response to a defamation action initially
filed by plaintiff in Multnomah County Circuit Court. The
case was transferred to Lincoln County Circuit Court pursuant
to a motion to change venue filed by defendants and
stipulated to by plaintiff. Defendants then filed their
special motion to strike. The Lincoln County Circuit Court
determined that defendants' motion was untimely because
it was filed more than 60 days after plaintiff served its
complaint on defendants, which was past the statutory
deadline. The trial court then declined to exercise its
discretion under the statute to consider the motion despite
that deficiency. On appeal, defendants argue that the motion
was not untimely, but, if it was, the court abused its
discretion by denying the motion on that basis. For the
reasons stated below, we affirm the ruling denying
defendants' anti-SLAPP motion as untimely.
state the following background solely as context for
understanding defendants' argument on appeal. Plaintiff
in this case is C.I.C.S. Employment Services, Inc., a Lincoln
City company that provides pre-employment background
screening services to employers. Defendants are Newport
Newspapers, Inc., dba Newport News-Times, Rick
Beasley, a journalist for the paper, and James Rand, the
paper's publisher. In 2015, hackers breached a database
owned by plaintiff and stole the personal information of over
80, 000 individuals, including over 40, 000 Oregonians. That
information was subsequently used to defraud the Internal
Revenue Service. In February 2016, Newport
News-Times published a story written by Beasley that
reported on the breach and IRS fraud. In response, plaintiff
filed a complaint in Multnomah County Circuit Court on April
1, 2016, alleging defamation against defendants. Plaintiff
alleged that the Newport News-Times article's
headline and text gave readers the inaccurate impression that
plaintiff was somehow "linked" to the hacking and
fraud rather than being the victim of the crime.
Or.App. 319] Because this appeal concerns whether defendants
timely filed their special motion to strike, we recite the
relevant dates in some detail. The initial complaint was
served on defendant Newport Newspapers, Inc., on April 6,
2016. On April 19, plaintiff filed an amended complaint,
which added a second claim for relief for negligent hiring
and retention of Beasley. Beasley and Rand were served with
the amended complaint on April 26 and May 10 respectively.
Newport Newspapers, Inc., accepted service of the amended
complaint through its attorney on May 17.
month later, on June 17, 2016, defendants filed a motion to
change venue to Lincoln County pursuant to ORS 14.080(2) and
ORS 14.110(1)(a). Plaintiff eventually stipulated to that
motion on July 28 and the trial court entered an order to
change venue on August 10.
August 31, 2016, defendants filed a special motion to strike
plaintiff's claims under the anti-SLAPP statute, ORS
31.150, in Lincoln County Circuit Court. Oregon's
anti-SLAPP statute provides a mechanism for "a defendant
who is sued over certain actions taken in the public arena to
have a questionable case dismissed at an early stage."
Yes on 24-367 Committee v. Beaton, 21Clackamas River
Water v. Holloway, 261 Or.App. 852, 854 n 1, 322 P.3d 614
(2014). Relevant to this case, the statute allows defendants
to move to strike [291 Or.App. 320] nonmeritorious claims
that arise out of any "conduct in furtherance of the
exercise of * * * the constitutional right of free speech in
connection with a public issue or an issue of public
interest." ORS 31.150(2)(d). Courts should
"liberally" construe the statute "in favor of
the exercise of the rights of expression" it protects,
enumerated in ORS 31.150(2). ORS 31.152(4). If granted, the
motion effectively operates as a motion to dismiss without
prejudice under ORCP 21. ORS 31.150(1).
anti-SLAPP statute requires a defendant to file a special
motion to strike within 60 days from service of the
complaint, although the trial court may exercise its
discretion to permit a late filing. See ORS
31.152(1) (stating that the motion "must be filed within
60 days" after service of the complaint "or, in the
court's discretion, at any later time"). We have
previously explained that "the statute was intended to
provide an inexpensive and quick process" to determine
if claims that might infringe free speech are frivolous.
Page v. Parsons, 249 Or.App. 445, 461, 277 P.3d 609
(2012). That legislative intention "accounts for *** the
60-day time period for the filing of the special motion to
strike in ORS 31.152(1)." Horton v. Western
Protector Insurance Company, 217 Or.App. 443, 452, 176
P.3d 419 (2008). Here, the Lincoln County Circuit Court
denied defendants' motion as untimely because it was
filed more than 60 days-in fact, at least 106 days-after the
date of service. The trial court also declined to exercise
its discretion to permit a late filing. The court gave its
decision from the bench, stating that "the deadline
should have been followed and I just don't think that
there's a legitimate basis not to have done so."
After explaining that the court was deciding "the case
on the procedural issue" of timing, the court went on to
explain that, even if the motion had been timely, it would
have denied the motion on the merits. The written order
issued by the court similarly reflected, first, that the
court was denying defendants' motion as untimely and the
court did "not find good cause for the exercise of [its]
discretion" to permit a later filing and, second, that
the court would have also denied the motion on the merits.
appeal, defendants maintain that their motion was timely
because Multnomah County was the "wrong [291 Or.App.
321] venue" for the case. As a result, defendants argue
that the 60-day deadline was tolled while defendants'
motion to change venue was pending and did not begin to run
again until the case had been transferred to Lincoln County.
Alternatively, defendants argue that, if the ...