1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MAX ZWEIZIG, 

No. 3:15-cv-02401-HZ

Plaintiff/

Counter Defendant,

OPINION & ORDER

v.

NORTHWEST DIRECT TELESERVICES, INC.;

NORTHWEST DIRECT MARKETING OF 

OREGON, INC.; TIMOTHY ROTE; 

NORTHWEST DIRECT MARKETING 

(DELAWARE), INC.; NORTHWEST DIRECT 

OF IOWA, INC.; ROTE ENTERPRISES, LLC; 

NORTHWEST DIRECT MARKETING, INC.;

and DOES 1-5.

Defendants/Counter Claimant.

Joel W. Christiansen

812 NW 17th Avenue

Portland, OR 97209

Attorney for Plaintiff/Counter Defendant

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Andrew C. Brandsness

Brandsness Brandsness & Rudd, P.C.

411 Pine Street

Klamath Falls, OR 97601

Attorney for Defendants Northwest Direct

Teleservices, Inc.; Northwest Direct Marketing of

Oregon, Inc.; Northwest Direct Marketing (Delaware)

Inc.; Northwest Direct of Iowa, Inc.; Rote Enterprises, 

LLC; Northwest Direct Marketing, Inc.; and Does 1-5.

Timothy Rote

24790 SW Big Fir Road

West Linn, OR 97068

Pro Se Defendant/Counter Claimant

HERNÁNDEZ, District Judge:

Pro se Defendant/Counter Claimant Timothy Rote brings seven counterclaims against 

Plaintiff/Counter Defendant Max Zweizig. Plaintiff moves to strike the first, sixth, and seventh 

counterclaims pursuant to Oregon’s anti-SLAPP statute. The Court grants Plaintiff’s motion to 

strike. 

BACKGROUND

The parties’ litigation history in this matter was set forth by this Court in a prior Opinion 

& Order and, therefore, the Court does not repeat it here. See Opinion & Order, February 25, 

2016, ECF 25. Presently before the Court are three of Defendant’s counterclaims: (1)

defamation, (2) intentional infliction of emotional distress, and (3) aiding and abetting. Id.

Defendant alleges that in November of 2015, Plaintiff, Plaintiff’s counsel, “or other 

related parties,” contacted the chambers of District of Oregon Judge Robert E. Jones and stated 

that Defendant posed a threat to Judge Jones at his Lifetime Achievement Award ceremony, 

thereby prompting an investigation of Rote by the U.S. Marshals. Sec. Am. Answer ¶ 31. 

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Defendant and Judge Jones have a long history. Judge Jones presided over a portion of a 

case filed against Defendant in 1999. See Jones v. Nw. Telemarketing Inc., No. CIV. 99-990-JO, 

2000 WL 568352, at *1 (D. Or. Apr. 7, 2000) (no relation between the plaintiff Jones and Judge 

Jones). At some point during the proceedings in Jones, Defendant sent Judge Jones a letter, 

prompting Judge Jones to recuse himself from the case.1 Christianson Decl. Ex. 4, ECF 41-1. 

On November 12, 2015, Defendant published a blog post titled “Are Arbitrator[s] Above 

the Law?” in which he discussed the arbitration between himself and Plaintiff. Christiansen Decl. 

Ex. 3, ECF 41-3. Defendant wrote that, during the arbitration, Plaintiff’s attorney submitted a 

“case summary” to the arbitrator of the case in which Judge Jones had recused himself. Id.

According to Defendant, Plaintiff’s attorney attempted to influence the arbitrator by suggesting 

that Judge Jones did not like Defendant. Defendant ended his blog post by stating: 

The Honorable Robert E. Jones is receiving a lifetime achievement award tomorrow 

night. The press will be there. Congratulations Judge Jones. Perhaps more often than not 

our legacies are not what we wanted them to be.” 

Id.

Defendant believes that Plaintiff or his attorneys called Judge Jones’ courtroom deputy 

and told her about the blog post. According to Defendant:

The information provided [by the U.S. Marshal Service to Defendant] was that Judge 

Jones was contacted and directed to a blog post written by [Defendant], which [Plaintiff] 

represented as a threat to Judge Jones. The intent of the contact with Judge Jones was to 

influence litigation already pending before Judge Stewart, presumably to influence the 

decision on the summary judgment motion still under advisement and to permanently 

harm [Defendant]. As a result of the contact and statement, Defendant seeks 

consequential damages of $1 million and punitive damages of $5 million against 

[Plaintiff] and Conspirators2.

 

1

In a 2001 hearing, Judge Jones stated: “I don’t want to have anything to do with this case. I have utter 

contempt for this person. He wrote the Court a very personal, very nasty letter. A hypocrite. So, get out of 

here. I am not going to have anything to do with this. I will recuse myself.” Christianson Decl. Ex. 4, ECF 

41-4.

2 The Court assumes that “Conspirators” refers to the additional people that Defendant sought to join as 

counterclaim defendants in this action. See Mot. Join, ECF 20. Because this Court already denied 

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Sec. Am. Answer ¶ 31. Joel Christiansen, Plaintiff’s attorney, declares that he and Linda 

Marshall, Plaintiff’s counsel in another matter, contacted Judge Jones’ courtroom deputy. 

Christiansen Decl. ¶ 5, ECF 41. However, taking the facts alleged by Defendant as true, the 

Court proceeds with its analysis as if Plaintiff had made the statements at issue.

STANDARDS

“A SLAPP suit is one in which the plaintiff’s alleged injury results from petitioning or 

free speech activities by a defendant that are protected by the federal or state constitutions.” Vess 

v. Ciba-Geigy Corp. USA, 317 F.3d 1097, 1109 (9th Cir. 2003). In response, a defendant in 

federal court may file a motion to strike under an applicable anti–SLAPP statute. Vineyard v. 

Soto, No. 10-CV-1481-SI, 2011 WL 5358659, at *2 (D. Or. Nov. 7, 2011); see also

Thomas v. Fry's Elecs., Inc., 400 F.3d 1206, 1206 (9th Cir. 2005). 

Oregon's anti–SLAPP provisions “permit 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, 191 P. 3d 778, 786 (2008). A special motion to strike is treated “as a 

motion to dismiss under Or. R. Civ. P. 21A and requires the court to enter a ‘judgment of 

dismissal without prejudice’ if the motion is granted.” Gardner v. Martino, 563 F.3d 981, 986 

(9th Cir. 2009) (applying Oregon law).

Analysis 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 [O.R.S.] 31.150(2).” Id. “[T]he critical point is whether the plaintiff’s cause 

of action itself was based on an act in furtherance of the defendant's right of petition or free 

speech.” Mann v. Quality Old Time Serv., Inc., 120 Cal. App. 4th 90, 102, 15 Cal. Rptr. 3d 215, 

 

Defendant’s motion, the only counterclaim defendant in this case is Plaintiff. See Opinion & Order, 

February 25, 2016, ECF 25. 

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220 (2004) (referring to the California anti–SLAPP statute). The required showing may be made 

on the basis of the pleadings alone. Staten, 222 Or. App. at 31, 191 P.3d at 788.

If the defendant meets the initial burden, then “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.” Or. Rev. Stat. § (O.R.S.)

31.150(3); Gardiner, 563 F.3d at 986. In making this determination, the Court must take the facts 

from the pleadings and from the supporting and opposing affidavits, O.R.S. 31.150(4), and state 

them “in the light most favorable to plaintiffs.” Mullen v. Meredith Corp., 271 Or. App. 698, 

702, 353 P.3d 598, 601-02 (2015) (quotation omitted). The court must deny the motion “[i]f the 

plaintiff meets this burden.” O.R.S. 31.150(3).

Oregon courts look to California case law in construing Oregon’s anti-SLAPP statute 

because Oregon’s law was “modeled on California statutes” and ‘[i]t was intended that 

California case law would inform Oregon courts regarding the application of ORS 31.150 to 

ORS 31.155.” Page v. Parsons, 249 Or. App. 445, 461, 277 P.3d 609, 619 (2012) (discussing the 

Oregon anti-SLAPP statute’s legislative history). Therefore, this Court’s analysis relies on both 

California and Oregon case law.

DISCUSSION

Plaintiff invokes Oregon’s anti-SLAPP statute to strike Defendant’s counterclaims of 

defamation, intentional infliction of emotional distress (IIED), and aiding and abetting. Under 

Oregon’s anti-SLAPP statute, a defendant may make a special motion to strike against a claim in 

a civil action that arises out of:

(a) Any oral statement made, or written statement or other document submitted, in a 

legislative, executive or judicial proceeding or other proceeding authorized by law;

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(b) Any oral statement made, or written statement or other document submitted, in 

connection with an issue under consideration or review by a legislative, executive or 

judicial body or other proceeding authorized by law;

(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.

O.R.S. 31.150(2).

Plaintiff’s initial motion to strike contended that Defendant’s counterclaims are subject to 

an anti-SLAPP motion because the counterclaims arise out of statements or conduct described in 

§§31.150(2)(b), (c), and (d). However, upon review of cases interpreting anti-SLAPP statutes in 

Oregon and California, it appeared to this Court that Plaintiff’s communication to Judge Jones’

courtroom deputy was subject to an anti-SLAPP motion for a different reason—Plaintiff’s 

statement would be considered preparatory to or in anticipation of commencing official 

proceedings and thus would be protected as a statement made in a proceeding authorized by law 

under O.R.S. 31.150(2)(a) or (b). Because Plaintiff did not make this argument, the Court 

ordered further briefing from the parties to ensure that each party had the opportunity to be heard 

on the issue. See Order, August 15, 2016, ECF 60. After reviewing the parties’ supplemental 

memoranda, the Court concludes that Defendant’s counterclaims are subject to Oregon’s antiSLAPP provisions and, thus, the Court strikes the counterclaims. 

I. Plaintiff’s statement was made in a “judicial proceeding or other proceeding 

authorized by law.”

Oregon’s anti-SLAPP statute provides that a defendant may make a special motion to 

strike against a claim in a civil action that arises out of a statement made in a “judicial 

proceeding or other proceeding authorized by law.” O.R.S. 31.150(2)(a). While this Court does 

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not find binding precedent interpreting this portion of Oregon’s law, cases from California are 

instructive.

There can be no dispute that O.R.S. 31.150(2)(a) encompasses statements reporting 

wrongdoing to police. See Van Der Valk v. AU Energy, LLC, No. B252975, 2014 WL 6632930, 

at *4 (Cal. Ct. App. Nov. 24, 2014) (holding that anti-SLAPP statute encompasses statements 

made to police in response to a perceived wrongdoing for the purpose of garnering police 

assistance); Comstock v. Aber, 212 Cal. App. 4th 931, 941–42, 151 Cal. Rptr. 3d 589, 598 

(2012) (“The law is that communications to the police are within SLAPP.”); Chabak v. Monroy, 

154 Cal. App. 4th 1502, 1512, 65 Cal. Rptr. 3d 641, 648 (2007) (in action by physical therapist 

against client alleging false report of child abuse, client's “statements to police clearly arose from 

protected activity”); Walker v. Kiousis, 93 Cal. App. 4th 1432, 1439, 114 Cal. Rptr. 2d 69, 75 

(2001) (finding that a citizen’s complaint to the police is “made in connection with an official 

proceeding authorized by law”). The issue, therefore, is whether the anti-SLAPP statute also 

encompasses a statement to a courtroom deputy reporting potential wrongdoing. The Court finds 

that it does. 

California courts have concluded that the anti-SLAPP statute protects not only 

communications in a judicial or official proceeding, but also “[c]ommunications that are 

preparatory to or in anticipation of commencing official proceedings.” Siam v. Kizilbash, 130 

Cal.App.4th 1563, 31 Cal. Rptr. 3d 368, 374 (Cal. Ct. App. 2005); see also ComputerXpress, Inc. 

v. Jackson, 93 Cal. App. 4th 993, 1009, 113 Cal. Rptr. 2d 625, 640 (2001) (filing a complaint 

with the purpose of soliciting an SEC investigation constitutes a “statement before an official 

proceeding”); Lee v. Fick, 135 Cal. App. 4th 89, 97, 37 Cal. Rptr. 3d 375, 379 (2005), as 

modified (Dec. 23, 2005) (parents’ formal complaints to school board were “part of the official 

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proceedings” that followed). For example, in Siam, the court held that a father’s report of child 

abuse to people who were legally required to report the abuse to the authorities was protected by 

the anti-SLAPP statute. Siam v. Kizilbash, 130 Cal. App. 4th 1563, 1570, 31 Cal. Rptr. 3d 368, 

374 (2005). The court reached this conclusion notwithstanding the fact that the ensuing child 

abuse case was determined to be unfounded. Id.

Similarly, in Ortega v. Morales, No. A120684, 2009 WL 778318 (Cal. Ct. App. Mar. 25, 

2009), Morales, a customer at Club One, sued Club One and massage therapist Ortega after 

Ortega sexually assaulted Morales during a massage. Ortega filed counterclaims against Morales 

based on statements Morales made to Club One’s assistant manager about Ortega’s conduct 

during the massage. Id. at *5. The court granted Morales’ anti-SLAPP motion, holding that 

Morales’ statements to Club One were protected activity. Id. The court reasoned that Morales’ 

statements to Club One “must be deemed protected activity just as much as her later statement to 

the police and Club One's statement to the police,” given the statutory mandate to interpret the 

anti-SLAPP statute broadly to protect free speech rights. Id. Furthermore, Morales’ statements to 

Club One were “preparatory to or in anticipation of her report of Ortega's alleged sexual assault 

to the police.” Id. at 6. The court concluded that, even though Club One was not legally required 

to call the police as a result of Morales’ report, “one possible reasonable inference arising from 

Morales telling Club One their employee sexually assaulted her is that she anticipated a judicial 

or official proceeding.” Id.; see also Chabak, 154 Cal. App. 4th at 1512, 65 Cal. Rptr. 3d at 648

(minor's report to her parents concerning her physical therapist's sexual abuse was directly 

related to her report to the police and constituted protected activity). In other words, 

communications are protected when they are made seeking “official investigations into perceived 

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9 - OPINION & ORDER

wrongdoing, which might culminate in criminal prosecution or other official proceedings.” 

Salma v. Capon, 161 Cal. App. 4th 1275, 74 Cal. Rptr. 3d 873, 882 (Cal. Ct. App. 2008).

Here, Plaintiff’s statement to Judge Jones’ deputy is protected as a statement made in 

anticipation of a proceeding authorized by law. A reasonable inference arising from Plaintiff’s 

statement was that he anticipated an investigation into Defendant’s alleged threat towards Judge 

Jones. Whether or not the threat was real, Plaintiff’s statement was made with the purpose of 

obtaining assistance to address wrongdoing. The distinction between making the report to Judge 

Jones’ courtroom deputy and the U.S. Marshals is a distinction without a difference under these 

circumstances.

Defendant’s arguments to the contrary are unavailing. Defendant devotes the bulk of his 

supplemental brief to a discussion of the litigation privilege and the reasons why it does not 

apply in this case. Defendant asserts, without any support, that “Oregon case law precedence is 

limited on the application of Oregon Anti-Slapp law to communications in connection with 

anticipated litigation.” Def.’s Supp. Mot. 4, ECF 63. The Court is unpersuaded by this 

unsupported conclusory statement. The Court decides this motion based on its interpretation of 

Oregon’s anti-SLAPP law and its application to statements made in a proceeding authorized by

law. The litigation privilege, while discussed in many California cases on this topic because of 

its overlap with the anti-SLAPP statute, is simply not at issue. See, e.g., Neville v. Chudacoff, 

160 Cal. App. 4th 1255, 1262–63, 73 Cal. Rptr. 3d 383, 388–89 (2008) (explaining that the 

litigation privilege and anti-SLAPP statutes serve similar policy interests but are not coextensive 

or substantively the same). 

Defendant also argues that Plaintiff’s statements do not fall within the purview of the 

anti-SLAPP statute because they were not made directly to law enforcement and they were false. 

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As discussed above, the Court finds that, in this case, the report to Judge Jones’ courtroom 

deputy was the equivalent of a report to the U.S. Marshals and, alternatively, is protected 

because the courtroom deputy would obviously relay such a report to law enforcement. As to the 

alleged falsity of the report, Defendant’s counterclaim alleges that “[t]he information provided to 

the U.S. Marshal Service was that Judge Jones was contacted and directed to a blog post written 

by Defendant, which Plaintiff represented as a threat to Judge Jones.” Sec. Am. Answer 11, ECF 

29. The Court fails to see how any aspect of Plaintiff’s statement, which essentially just referred 

the courtroom deputy to Defendant’s blog, could be false. Any interpretation of the blog, such as 

whether the language used was threatening, would clearly be Plaintiff’s opinion as opposed to a

true or false statement.

“[T]he plain language of Section 31.150(2) indicates a legislative intent not to limit 

application of the special motion to strike procedure to any narrow set of circumstances, but 

rather to capture a broad range of claims arising both directly and indirectly out of acts of free 

and/or privileged speech.” Schwern v. Plunkett, No. 3:14-CV-00146-PK, 2014 WL 3361902, at 

*8 (D. Or. July 7, 2014) (citing Horton v. Western Protector Ins. Co., 217 Or. App. 443, 448 n. 2 

(2008) (noting the broad scope of the language and disjunctive structure of Section 31.150(2), 

and suggesting that the provision would in that respect be inconsistent with a legislative intent to 

limit the application of the special motion to strike procedure narrowly)). Furthermore, as the 

Schwern court explained: 

[I]t seems clear that any overly limited construction of the scope of Section 31.150(2) 

would tend directly to frustrate the purpose of the statutory scheme by systematically 

failing to provide the intended procedural and substantive protections to all victims of 

meritless lawsuits calculated to chill protected speech conduct, whereas the risk of 

prejudicing plaintiffs through overly broad construction of the provision is effectively 

mitigated at the second step of the two-step process, at which only entirely baseless 

claims are stricken, and consequent dismissal is without prejudice.

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Schwern, 2014 WL 3361902, at *8. In light of the mandate to construe the anti-SLAPP statute 

broadly, and taking into account all of the persuasive authority from California courts, this Court 

concludes that Plaintiff’s statement falls within the purview of § 31.150(2)(a). 

II. Defendant fails to establish a probability of prevailing on his claims

The burden shifts to Defendant to establish through the presentation of substantial 

evidence that there is “a probability” on a prima facie basis that he will ultimately prevail as to 

each of his counterclaims. O.R.S. 31.150(3). The Oregon Court of Appeals recently explained:

Although the statute refers to a plaintiff's need to show a “probability” of prevailing on 

the claim in order to proceed, we have interpreted that standard, in this context, as a “low 

bar.” Young, 259 Or. App. at 508, 314 P.3d 350. To clear that low bar, a plaintiff has the 

burden of presenting substantial evidence to support a prima facie case against the 

defendant. Id. Typically, a plaintiff will not have access to discovery before being 

required to defend against a special motion to strike. See ORS 31.152(2) (“All discovery 

in the proceeding shall be stayed upon the filing of a special motion to strike under ORS 

31.150.”). Therefore, a plaintiff may meet the burden of production by producing direct 

evidence, reasonable inferences that may be drawn from that evidence, and “affidavits 

setting forth such facts as would be admissible in evidence.” OEA v. Parks, 253 Or. App. 

558, 567, 291 P.3d 789 (2012). “[T]he trial court may not weigh the plaintiff's evidence 

against the defendant's” and “may consider defendant's evidence only insofar as 

necessary to determine whether it defeats plaintiff's claim as a matter of law.” Young,

259 Or. App. at 509–10, 314 P.3d 350.

Handy v. Lane Cty., 274 Or. App. 644, 652, 362 P.3d 867, 874 (2015), review allowed, 358 Or. 

550, 368 P.3d 25 (2016); see also Yes On 24-367 Comm. v. Deaton, 276 Or. App. 347, 361-62, 

367 P.3d 937, 946 (2016). Only claims that entirely lack merit under that forgiving standard are 

to be stricken at the second step of the two-step process. See O.R.S. 31.150(3).

Defendant brings claims of defamation, IIED, and aiding and abetting. For the following 

reasons, Defendant fails to meet his burden on each claim as a matter of law.

a. Defamation

The elements of a claim for defamation are: (1) the making of a defamatory statement; 

(2) publication of the defamatory material; and (3) a resulting special harm, unless the statement 

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is defamatory per se and therefore gives rise to presumptive special harm. L & D of Oregon, Inc. 

v. Am. States Ins. Co., 171 Or. App. 17, 22, 14 P.3d 617, 620 (2000); Nat'l Union Fire Ins. Co. 

of Pittsburgh Pennsylvania v. Starplex Corp., 220 Or. App. 560, 584, 188 P.3d 332, 347 (2008). 

A defamatory statement is one that would subject another to “hatred, contempt or ridicule . . . 

[or] tend to diminish the esteem, respect, goodwill or confidence in which [the other] is held or 

to excite adverse, derogatory or unpleasant feelings or opinions against [the other].” Id. (quoting 

Marleau v. Truck Ins. Exch., 333 Or. 82, 94, 37 P.3d 148, 154 (2001)).

Defendant concedes that he does not actually know what was conveyed to Judge Jones’ 

deputy or who conveyed the message, but he insists that “it suggested a threat,” Def.’s Resp. 19, 

ECF 42, and that plaintiff, plaintiff’s counsel, or related parties contacted Judge Jones’ chamber, 

Def. Second Am. Answer ¶ 31, ECF 29. However, allegations are not the same as evidence. 

O'Connor v. Cty. of Clackamas, No. 3:11-CV-1297-SI, 2012 WL 3756321, at *17 (D. Or. Aug. 

28, 2012) (“Plaintiffs may not rely on their pleading allegations in response to a motion to strike 

under Oregon's Anti–SLAPP law). 

The only evidence Defendant submits as to what statement was made is an email from an 

attorney, Mr. Hasson, to Defendant. Rote Decl. Att. 12, ECF 43-12. The email states:

Received a message at office to call US Marshall [sic] about Rote. After gfing [sic] with 

you, called number and US Marshall asked if I represented you. I said yes. He said there 

was a concern about you related to Judge Jones’ reception that evening. He asked if he 

should be concerned about you and I said no. I told him I was with you and would have 

you call him. . . . I told him I thought the complaint was from [Linda] Marshall but he 

said the call came from Judge Jones office.

Id. Defendant emailed back: “The commentary that this was a threat of harm is important. Is that 

what the US Marshals conveyed to you.” Id. Mr. Hasson responded: “The US Marshall [sic] was 

investigating if you presented a threat to Judge Jones at the reception. I assured him that they did 

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not have to be concerned about you.” Id. Nothing about that email exchange constitutes evidence 

of the existence of or the content of a statement made by Plaintiff to Judge Jones’ deputy.

Plaintiff submits the declaration of his attorney, Joel Christiansen, which states:

After reviewing Rote’s comments contained in Chapter 19, Linda Marshall (Plaintiff’s 

counsel in another matter) and I contacted Judge Jones’ courtroom deputy and informed 

the court of Rote’s publication concerning Judge Jones, which: (1) identified Judge 

Jones’ physical location at a specific time and location to receive a lifetime achievement 

award, (2) evidenced Rote’s belief that there would be media presence at the event, and 

(3) commented that “perhaps more often than not our legacies are not what we wanted 

them to be.”

Christiansen Decl. ¶ 5, ECF 41. Defendant does not submit any evidence to contradict this 

representation. 

The Court assumes, without deciding, that Defendant can bring a claim of defamation 

against Plaintiff despite failing to refute the evidence that any allegedly defaming statement was 

made by Plaintiff’s attorneys, not by Plaintiff. See L & D of Oregon, 171 Or. App. at 22, 14 P.3d 

at 620 (stating that “the making of a defamatory statement” is the first required element of a 

claim for defamation). No matter who made the report to the courtroom deputy, a statement 

suggesting that Defendant’s blog post constituted a threat is an opinion statement protected by 

the First Amendment. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 20 (1990) (statement of 

opinion relating to matters of public concern that do not contain a provably false factual 

connotation will receive full constitutional protection); Obsidian Fin. Grp., LLC v. Cox, 740 

F.3d 1284, 1291-92 (9th Cir.) (“[P]ublic allegations that someone is involved in crime generally 

are speech on a matter of public concern.”). 

Defendant acknowledges that “[t]he First Amendment absolutely protects opinion 

speech.” Def.’s Resp. 17, ECF 42. However, Defendant argues that Plaintiff’s statement to Judge 

Jones’ deputy regarding Defendant’s intent in writing the blog post was not an opinion but, 

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rather, a “false assertion of objective fact.” Def.’s Resp. 17, ECF 42. In order to determine 

whether a reasonable factfinder could conclude that a statement implies an assertion of objective 

fact, the Ninth Circuit has announced a three part-test, which the Oregon Supreme Court recently 

adopted. Neumann v. Liles, 358 Or. 706, 717, 369 P.3d 1117, 1124 (2016) (adopting the test 

from Uneiko, 912 F.2d 1049); see also Obsidian Finance Group, 740 F.3d at 1293. Applying that 

test to the present case, this Court must ask: “(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 that impression; and (3) whether 

the statement in question is susceptible of being proved true or false.” Uneiko, 912 F.2d at 1053. 

Even taking the facts as alleged by Defendant in the light most favorable to him, 

Defendant is unable to show that Plaintiff’s statement was a false assertion of objective fact. 

First, the general tenor of Plaintiff’s statement suggests that Plaintiff was making the courtroom 

deputy aware of the post and offering an opinion as to what the post’s language meant, not 

asserting an objective fact about the interpretation of the post. Second, because Defendant does 

not know what exact language was used by Plaintiff, the Court is unable to opine whether it was 

“figurative or hyperbolic.” Finally, the statement in question is not capable of being proved true 

or false. Plaintiff directed the deputy to the blog and offered an opinion as to what Defendant’s 

intent was in writing the post. Because there is no way Plaintiff could have actually known 

Defendant’s intent, given that Plaintiff only saw the post on the internet, it is clear that Plaintiff 

was offering an opinion to Judge Jones’ deputy rather than asserting a fact. 

In sum, Plaintiff’s statement was an expression of opinion on a matter of public concern 

that is protected under the First Amendment. Therefore, Defendant fails to establish a probability 

on a prima facie basis that he will prevail on his defamation claim. 

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ii. IIED and Aiding and Abetting Claims

As to Defendant’s IIED and aiding and abetting counterclaims, Defendant presents no 

argument or evidence as to how he can support a prima facie case regarding either claim. For this 

reason alone, the Court could grant Plaintiff’s motion to strike because Defendant has not met his 

burden. Young, 259 Or. App. at 508, 314 P.3d 350 (explaining that the party bringing the claim 

has the burden of presenting substantial evidence to support a prima facie case). Id.

Furthermore, Defendant cannot show the elements of an IIED claim: 

(1) that defendants intended to cause plaintiff severe emotional distress or knew with 

substantial certainty that their conduct would cause such distress; (2) that defendants 

engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of 

socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe 

emotional distress.

McLean v. Pine Eagle Sch. Dist., No. 61, No. 3:15-CV-654-SI, 2016 WL 3574017, at *18 (D. 

Or. July 1, 2016) (citing House v. Hicks, 218 Or. App. 348, 357–58, 179 P.3d 730 (2008)); see 

also McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995)). No reasonable factfinder 

could conclude that the alleged statement to Judge Jones’ deputy constituted “outrageous 

conduct.” Defendant’s IIED claim fails as a matter of law.

As to Defendant’s “aiding and abetting” claim, the Court finds no support for the 

proposition that Oregon recognizes this as an independent tort. See, e.g., Cent. Bank of Denver, 

N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 181 (1994) (“Indeed, in some 

States, it is still unclear whether there is aiding and abetting tort liability[.]”).In states that do 

recognize such a tort, the tort is predicated upon the existence of some tortious conduct of other 

parties. See, e.g., Saunders v. Superior Court, 27 Cal. App. 4th 832, 846, 33 Cal. Rptr. 2d 438, 

446 (1994) (“Liability may also be imposed on one who aids and abets the commission of an 

intentional tort if the person (a) knows the other's conduct constitutes a breach of duty and gives 

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16 - OPINION & ORDER

substantial assistance or encouragement to the other to so act or (b) gives substantial assistance 

to the other in accomplishing a tortious result and the person's own conduct, separately 

considered, constitutes a breach of duty to the third person.”). Because Defendant fails to 

establish any tortious conduct of Plaintiff or anyone else, this claim necessarily fails. 

CONCLUSION

The Court grants Plaintiff’s Motion to Strike [40]. If Defendant wishes to amend his 

counterclaims, he must seek leave to amend pursuant to Federal Rule of Civil Procedure 15 and 

Local Rule 15-1. Upon receipt of this Opinion & Order, the parties are instructed to contact the 

Court to set a scheduling conference to reset the case schedule. 

IT IS SO ORDERED.

Dated this ____________day of ________________________, 2016.

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

Case 3:15-cv-02401-HZ Document 68 Filed 09/24/16 Page 16 of 16