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.  CV-05-00769-

v. 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
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. 

4822 GARDNER v. MARTINO
COUNSEL

Linda L. Marshall, Lake Oswego, Oregon, for the plaintiffsappellants.

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 Martino, Westwood One, Inc., (collectively “Appellees”) and

Clear Channel Communications, Inc.,1 for defamation, false

light invasion of privacy, intentional interference with economic relations, and intentional interference with prospective

economic advantage, based on statements made by Martino

during his live radio show broadcast on station KHOW in

1Pursuant to stipulation by the parties, the appeal was voluntarily dismissed as to Appellee Clear Channel Communications, Inc. 

GARDNER v. MARTINO 4825
Denver, Colorado (later rebroadcast on station KEX in Portland, Oregon). 

The action was dismissed without prejudice after the district 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 matter 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 thereafter, 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. 

2Appellants appealed the September 20, 2006 Order that awarded attorney’s fees to Appellees. Appellants have not briefed this issue, therefore,

it will not be reviewed by this Court. 

3Melissa Feroglia and Polaris Industries, Inc. are not named parties in

this lawsuit. 

4826 GARDNER v. MARTINO
Martino spoke with Feroglia and then discussed her complaints 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? 

GARDNER v. MARTINO 4827
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 . . . 

4828 GARDNER v. MARTINO
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 called 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 writing 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 . . . 

GARDNER v. MARTINO 4829
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 manager 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. 

. . . 

4Chris 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 business during the live broadcast to get a comment from the business owner

or authorized representative with respect to the consumer’s complaint. 

4830 GARDNER v. MARTINO
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 Industries equals sucks. Why? Because

she has nowhere to go. Ping, pong

[clicking noises] Polaris Industries, 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 jurisdiction. 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

5Magistrate Judge Hubel noted in his Findings and Recommendation

that “there appears to be a disputed fact regarding the second ‘lying’ statement. 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. 

GARDNER v. MARTINO 4831
Appellees moved to strike all claims in the complaint pursuant 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 statements 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 recommendation and dismissed the action without prejudice. 

A. Oregon’s Anti-SLAPP Statutes

Or. Rev. Stat. §§ 31.150 - 31.155 comprise Oregon’s antiSLAPP (“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 burden, “the burden shifts to the plaintiff in the action to establish

6Local 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 constitutional right of free speech in connection with a public issue or an issue

of public interest.” 

4832 GARDNER v. MARTINO
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 protection. 

B. Defamation Claim

1. Standard of Review

Whether an allegedly defamatory statement is one of opinion 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 statements 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

GARDNER v. MARTINO 4833
couched as a statement of “opinion.” Id. at 19; see also Partington 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 assertion of objective fact.” If the answer is no, the claim is foreclosed 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 figurative 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 sufficiently factual to be susceptible of being proved true or

false). 

In Partington, we held that when a speaker outlines the factual 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 statements 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,’ ‘misinterpretation,’ and ‘deception’ ” which may be statements of nonac4834 GARDNER v. MARTINO
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 verifiable assertion of perjury and therefore the statement was protected 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, Gennifer Flowers sued George Stephanopoulos and James Carville 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 Communities, 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. 

GARDNER v. MARTINO 4835
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 Magistrate 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 contested 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 expectation of learning an objective fact: drama, hyperbolic language, 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

4836 GARDNER v. MARTINO
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 independent 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 Partington, 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 possession of objectively verifiable facts, the statement is not actionable.”).

[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’ argument 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

8Appellants 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. 

GARDNER v. MARTINO 4837
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 Martino’s reliance on Feroglia’s story was unreasonable or negligent. 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 program and explain their version of events but chose not to do

so. 

[7] We decline to apply a lesser standard than the “reasonable 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 opinion. A lesser standard than the “reasonable reliance” standard,

as proposed by Appellants, would chill speech and frustrate

the purpose of the First Amendment. 

4838 GARDNER v. MARTINO
ii. The Specific “Lying” Statements 

[8] Martino’s “lying” statements were also not sufficiently

factual to imply a false factual assertion. Rather, the statements 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 appellant’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 Martino’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 proceeding 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 hyperbolic 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 Communities, 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 interGARDNER v. MARTINO 4839
ested in following up to determine whether there were civil

and/or criminal actions that should be filed against the plaintiff. Id. at 963-64. Martino’s statements are factually distinguishable 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 conflicts with the Federal Rules and Oregon’s civil procedure

rules, both of which favor liberal amendment. Appellants rely

4840 GARDNER v. MARTINO
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 remedies. 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 application 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 judgment 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

9Appellants 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. 

GARDNER v. MARTINO 4841
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 deficiencies in the first amended complaint but simply stated, “Given

that there has been no activity in this case other than the special 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 discretion 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 complaint” 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)

10In 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). 

11Local Rule 15.1 for the District of Oregon requires that any party filing or moving to file an amended pleading must: (1) reproduce the entire

pleading; and (2) describe the changes made. Further, a copy of the proposed amended pleading must be attached as an exhibit to any motion for

leave to file the amended pleading. 

4842 GARDNER v. MARTINO
and 60(b). Appellants moved to “reopen the judgment” pursuant 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 circumstances beyond its control prevented timely action to protect 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 discretion 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 business 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 constitutionallyprotected 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 segment three of the broadcast are nonactionable opinion proGARDNER v. MARTINO 4843
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 economic 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 cognizable 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 business 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.

4844 GARDNER v. MARTINO