United States District Court, D. Oregon
BRADLY M. CUNNINGHAM, Plaintiff,
SONY PICTURES ENTERTAINMENT, A CORPORATION; COLUMBIA TRISTAR; NATIONAL BROADCASTING CORPORATION AKA NBC UNIVERSAL; AND JANE AND JOHN DOES 1-100, Defendants.
MICHAEL H. SIMON, DISTRICT JUDGE.
pro se Bradly Cunningham is a prisoner currently
incarcerated at the Oregon State Penitentiary. On October 24,
2017, Plaintiff filed a complaint against Defendants Sony
Pictures, Columbia Tristar, and NBC Universal (collectively,
“Defendants”) in which he asserts claims under 28
U.S.C. § 1983 and Oregon defamation. Plaintiff's
claims arise from statements made to the public in a
docudrama entitled Dead by Sunset, which concerns
the murder of plaintiff's wife and the events leading up
to that murder. Plaintiff alleges that the docudrama made
various misrepresentations that have resulted in his
prolonged incarceration. On December 19, 2017 Defendants
filed a special motion to strike under Oregon Rev. Stat.
(ORS) § 31.150. Plaintiff has subsequently filed a
motion to strike, motion to show cause, and two motions for
default judgment. Defendants have also filed an additional
motion to dismiss NBC Universal from the action. For the
reasons given below, Defendants' special motion to strike
is granted and the remaining motions are denied.
special motion to strike under Oregon's Anti-SLAPP
statute, ORS § 31.150, allows a defendant “who is
sued over certain actions taken in the public arena to have a
questionable case dismissed at an early stage.”
Staten v. Steel, 222 Or.App. 17, 27 (2008). In order
to have the action dismissed, the defendant must first show
that the case arises out of the protected activity identified
in ORS § 31.150(2). “If the defendant meets this
burden, the burden shifts to the plaintiff in the action 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.” ORS § 31.150(3). If
the plaintiff cannot meet this burden, the claim should be
dismissed without prejudice. ORS § 31.150(1).
claims arise from “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.” Plaintiff is currently serving a life
sentence for the murder of his wife. The docudrama at issue
in Plaintiff's complaint concerns that murder and the
events surrounding it. The Oregon Court of Appeals has, in
the past, held that news reporting about a neighborhood
shooting concerns an issue of public interest and is
therefore protected activity under ORS § 31.150(1).
Mullen v. Meredith Corporation, 271 Or.App. 298, 706
(2015). So, too, is Defendants' retelling of a widely
reported murder. Moreover, Plaintiff does not contest that
that the docudrama concerned an issue of public interest.
Defendants have demonstrated that Plaintiff's claims
arise from a protected exercise of speech, Plaintiff must
show, though presentation of “substantial evidence,
” that he is likely to succeed on his claim. Plaintiff
has failed to carry this burden. As a preliminary matter,
Plaintiff's § 1983 claims must be dismissed because
the Defendants are not state actors, and Plaintiff does not
allege that they were acting under color of state law.
Although Plaintiff argues in his response brief that
“Defendants worked closely with and in the name of the
State of Oregon in the production, filming and promotion
of” the docudrama, he presents no evidence that this is
the case, as is required by ORS 31.150(3).
has also not demonstrated a likelihood of success on his
claim for defamation false light. Both claims are
time-barred. “[W]hen a claim characterized as false
light alleges facts that also constitute a claim for
defamation, the claim must be filed within the period for
bringing a defamation claim.” Logan v. West Coast
Benson Hotel, 981 F.Supp. 1301 (Sept. 9, 1997) (quoting
Magenis v. Fisher Broadcasting, Inc., 103 Or.App.
555, 560 (1990) (internal quotation marks omitted).
Plaintiff's allegations that could plausibly be
characterized as constituting a false light claim are
identical to those constituting his claim for defamation.
Oregon's statute of limitations for defamation is one
year. ORS 12.120(2). The statute begins to run on the day
that the allegedly defamatory statements are made public.
See Workman v. Rajneesh Foundation Intern., 84
Or.App. 226, 230-31 (1987). The “discovery rule,
” which in some cases tolls a statute of limitations
until a plaintiff discovers the basis for a claim, does not
apply to claims for defamation “given the very public
and inherently discoverable nature of the alleged defamatory
statements.” LaHodny v. 48 Hours, 2015 WL
1401676 at *3 (March 24, 2015); see also deParrie v.
Hanzo, 2000 WL 900485 at *4 (D. Or. 2000). The docudrama
that Plaintiff alleges contains defamatory statements was
aired in November 1995, twenty-two years before Plaintiff
filed this claim. Plaintiff's claims for defamation and
false light are thus time-barred under ORS § 12.120(2).
Defendants bring this motion to strike under Oregon's
Anti-SLAPP statute, which directs the court to dismiss claims
at this early stage without prejudice, dismissal with
prejudice is appropriate in this case. The statute of
limitations for Plaintiff' state law claims arising from
the docudrama ran many years ago. In the twenty-two years
since the docudrama was broadcast, Plaintiff has made several
unsuccessful attempts to bring a defamation action against
Defendants in both state and federal court. ECF 6 at 3, 4.
Moreover, Plaintiff has not alleged, and nor does the Court
believe Plaintiff plausibly can allege, that Defendants acted
under color of state law in the production of the docudrama.
Thus, Plaintiff will not be able to correct the deficiencies
in either his state law or § 1983 claims through amended
Special Motion to Strike (ECF 5) is GRANTED. Plaintiff's
Complaint (ECF 1) is dismissed with prejudice.
Plaintiff's Motion to Strike (ECF 12) and two Motions for
Entry of Default (ECF 23, 29) are DENIED as moot.
Plaintiff's Motion for Order to Show Cause (ECF 17) is
without merit and also DENIED. Defendants' Motion to
Dismiss (ECF 26) is DENIED as moot.