FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MICHAEL G. SCHWERN,

Plaintiff-Appellee,

v.

PATRICK PLUNKETT, as personal 

representative of the Estate of 

Noirin Plunkett,

Defendant-Appellant.

No. 14-35576

D.C. No.

3:14-cv-00146-PK

OPINION

Appeal from the United States District Court

for the District of Oregon

Marco A. Hernandez, District Judge, Presiding

Argued and Submitted November 9, 2016

Portland, Oregon

Filed January 17, 2017

Before: M. Margaret McKeown, William A. Fletcher,

and Raymond C. Fisher, Circuit Judges.

Opinion by Judge McKeown
2 SCHWERN V. PLUNKETT

SUMMARY*

Oregon Anti-SLAPP Law

The panel held that the court had jurisdiction to hear 

immediate appeals from district court denials of Oregon antiSLAPP (“strategic lawsuit against public participation”) 

motions; and reversed the district court’s denial of 

appellant’s anti-SLAPP motion to strike claims because 

appellee Michael Schwern failed to establish a prima facie 

case supported by substantial evidence of his claims of 

defamation, intentional infliction of emotional distress, and 

intentional interference with economic relations.

The panel held that in light of Oregon’s amendment to 

its anti-SLAAP statute, this court had jurisdiction to review 

denials of Oregon anti-SLAPP motions. 

The panel held that Schwern did not establish a 

probability that he would prevail on his claims, and therefore 

the motion to strike must be granted. Specifically, the panel 

held that even when construing the evidence in Schwern’s 

favor, it could not reasonably infer that the appellant was the 

source of the alleged defamatory accusations against 

Schwern.

* This summary constitutes no part of the opinion of the court. It 

has been prepared by court staff for the convenience of the reader.
SCHWERN V. PLUNKETT 3

COUNSEL

Dan G. Booth (argued), Booth Sweet LLP, Cambridge, 

Massachusetts, for Defendant-Appellant.

Bear-Wilner-Nugent (argued), Portland, Oregon, for 

Plaintiff-Appellee.

Margaret Garvin and Amy C. Liu, Portland, Oregon, as and 

for Amicus Curiae National Crime Victim Law Institute.

OPINION

McKEOWN, Circuit Judge:

In this appeal we resolve the lingering uncertainty about 

our jurisdiction to hear immediate appeals from denials of 

Oregon anti-SLAPP (“strategic lawsuit against public 

participation”) motions. Oregon amended its anti-SLAPP 

statute in 2009 with the purpose of “provid[ing] a defendant 

with the right to not proceed to trial in cases in which the 

plaintiff does not meet” the statutory burden. Or. Rev. Stat. 

§ 31.152(4). This amendment, which is akin to a statutory 

immunity from suit, responded directly to our decision in 

Englert v. MacDonell, where we held that the prior statute 

did not provide for interlocutory review. 551 F.3d 1099, 

1105–07 (9th Cir. 2009). In view of this legislative change, 

we conclude that we have jurisdiction to hear immediate 

appeals from denials of Oregon anti-SLAPP motions.

The motion at issue arises from Nóirín Plunkett’s 

accusation that Michael Schwern raped her in September 

2013. When Schwern was arrested, news quickly spread 

online. Schwern claimed the accusations were false and 

sued Plunkett for defamation, intentional infliction of 
4 SCHWERN V. PLUNKETT

emotional distress, and intentional interference with 

economic relations. The district court denied Plunkett’s 

anti-SLAPP motion.1 We reverse because Schwern failed to 

meet his evidentiary burden.

BACKGROUND

Nóirín Plunkett and Michael Schwern married in 

November 2011 and lived together in Portland, Oregon. 

During their relationship, they were both actively involved 

in the community of open-source software developers.

The marriage was not a happy one. On September 19, 

2013, the couple filed for divorce. That night, they met for 

one final dinner at the home they once shared. What 

happened next is hotly disputed. While Schwern claims that 

they had consensual sex, Plunkett testified that he forced her 

to have oral sex, choked her, and penetrated her vagina with 

a knife. She also testified that she went to the emergency 

room where she had a forensic sexual assault examination, 

her injuries were photographed, and the police were called. 

Police arrested Schwern that night on charges of 

strangulation and harassment.

In the days that followed, information about Schwern’s 

arrest percolated online. Three prominent open-source 

developers posted links on Twitter to Schwern’s public 

arrest record, while organizations tied to the open-source 

community issued statements about Schwern’s arrest and 

distanced themselves from him.

1 Plunkett died on July 28, 2015. Her father, Patrick Plunkett, is the 

personal representative of her estate and was substituted as the party on 

appeal.
SCHWERN V. PLUNKETT 5

Plunkett moved from Oregon to Massachusetts shortly 

after Schwern’s release on bail in late September 2013. 

According to Casey West, a mutual friend of the couple, 

West encountered Plunkett in Boston that fall; during the 

ensuing conversation, Plunkett allegedly told West that 

Schwern had raped her with a knife.

In January 2014, Schwern filed suit against Plunkett for 

defamation, intentional infliction of emotional distress, and 

intentional interference with economic relations. The gist of 

Schwern’s complaint was that his professional reputation 

suffered due to rape allegations Plunkett allegedly made to 

the individuals and organizations that commented online 

about his arrest.

In response to the lawsuit, Plunkett filed a special motion 

to strike under Oregon’s anti-SLAPP law, seeking dismissal 

of the case. A magistrate judge recommended denial of 

Plunkett’s motion on the ground that Schwern had 

established a prima facie case, and the district court adopted 

this recommendation.

ANALYSIS

I. Jurisdiction

We first consider whether we have jurisdiction to hear 

this appeal under 28 U.S.C. § 1291, which permits us to 

review “final decisions” of district courts. The answer to this 

question is informed by the helter-skelter history of 

Oregon’s anti-SLAPP law.

Oregon enacted its anti-SLAPP law in 2001 to create a 

procedure “for expeditiously dismissing unfounded lawsuits 

attacking certain types of public speech” through special 

motions to strike, or anti-SLAPP motions. Plotkin v. State 
6 SCHWERN V. PLUNKETT

Accident Ins. Fund, 280 Or. App. 812, 814 (Or. Ct. App. 

2016). Oregon used California’s anti-SLAPP law as a model 

for its legislation. See Englert, 551 F.3d at 1101. Unlike 

California, though, Oregon did not initially allow immediate 

appeals from denials of anti-SLAPP motions. That 

distinction led us to treat the two states’ laws differently.

Looking to California law, in Batzel v. Smith we 

addressed whether denial of a California anti-SLAPP motion 

is an immediately appealable “final decision.” 333 F.3d 

1018, 1024 (9th Cir. 2003) (citing 28 U.S.C. § 1291). We 

first noted that “California law recognizes the protection of 

the anti-SLAPP statute as a substantive immunity from suit,” 

as evidenced by the statute’s legislative history and inclusion 

of a right of immediate appeal. Id. at 1025. As a 

consequence, we held that we had jurisdiction because a 

“district court’s denial of a claim of immunity, to the extent 

that it turns on an issue of law, is an appealable final decision 

within the meaning of 28 U.S.C. § 1291 notwithstanding the 

absence of a final judgment.” Id. at 1026.

When faced with the same issue regarding Oregon’s antiSLAPP law, we came to the opposite conclusion because 

Oregon’s statute differed materially from its California 

counterpart. As we explained in Englert, “[t]he failure of the 

Oregon Legislature to provide for an appeal from the denial 

of a special motion to strike provides compelling evidence 

that, unlike their California counterparts, Oregon lawmakers 

did not want ‘to protect speakers from the trial itself.’” 

551 F.3d at 1106 (quoting Batzel, 333 F.3d at 1025). 

Instead, Oregon’s law had a less ambitious scope: it sought 

only to enable a judge to “promptly review the evidence . . . 

to determine whether it had sufficient merit to go forward.” 

Id. Absent an expression of immunity from trial, we held 

that we lacked jurisdiction to hear the appeal. Id. at 1107.
SCHWERN V. PLUNKETT 7

Oregon reacted swiftly to our decision in Englert. The 

legislature immediately passed amendments to create a right 

of immediate appeal from denials of anti-SLAPP motions to 

strike by providing that, “[i]f the court denies a special 

motion to strike, the court shall enter a limited judgment 

denying the motion.” Or. Rev. Stat. § 31.150(1); see also id.

§ 19.205(1) (providing that a “limited judgment” is 

appealable). The amendments also clarified that the purpose 

of Oregon’s anti-SLAPP procedure “is to provide a 

defendant with the right to not proceed to trial” when a 

plaintiff fails to meet the statutory burden. Id. § 31.152(4).

We have already acknowledged, albeit not definitively, 

that these amendments effectively overturned Englert. In 

DC Comics v. Pacific Pictures Corporation, we explained 

that “whether an immunity created by state law functions ‘as 

an immunity from suit or merely a defense from liability’ is 

dispositive in determining whether an immediate appeal of 

an order denying an immunity should be available.” 

706 F.3d 1009, 1015 (9th Cir. 2013) (citation omitted). 

Noting that “Englert has been superseded by changes to the 

underlying statute” because “Oregon’s anti-SLAPP statute 

was amended to specifically provide for a right of immediate 

appeal,” we stated that “the Oregon statute now likely 

affords immunity from suit, as California’s does.” Id. at 

1016 n.8; see also Makaeff v. Trump Univ., LLC, 715 F.3d 

254, 276 (9th Cir. 2013) (Paez, J., concurring) (noting in 

citation that Englert was “superseded by” Oregon’s 

amended anti-SLAPP law).

We now hold that we have jurisdiction to review denials 

of Oregon anti-SLAPP motions. Like California’s antiSLAPP law, Oregon’s amended statute grants immunity 

from suit by “provid[ing] a defendant with the right to not 

proceed to trial,” as the later-enacted right of immediate 
8 SCHWERN V. PLUNKETT

appeal corroborates. See Or. Rev. Stat. § 31.152(4); see also

Batzel, 333 F.3d at 1025 (explaining that denials of antiSLAPP motions are immediately appealable because 

“California lawmakers wanted to protect speakers from the 

trial itself rather than merely from liability”).

II. The Anti-SLAPP Motion to Strike

The issue on appeal is whether Schwern established a 

probability that he will prevail on each of his claims “by 

presenting substantial evidence to support a prima facie 

case.” Or. Rev. Stat. § 31.150(3).

Under Oregon’s anti-SLAPP law, a special motion to 

strike involves “a two-step process.” Gardner v. Martino, 

563 F.3d 981, 986 (9th Cir. 2009). The defendant must first 

demonstrate that the claim arises out of expressive activity 

protected by the statute. Or. Rev. Stat. § 31.150(2), (3). If 

the defendant makes this threshold showing, “the burden 

shifts to the plaintiff . . . 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.” Id.

§ 31.150(3). If the plaintiff fails to meet this burden, the 

motion to strike must be granted. Id. § 31.150(1).

The parties do not dispute that Schwern’s claims arise 

out of expressive activity protected by the statute. See id.

§ 31.150(2), (3). As a result, we must determine only 

whether Schwern produced substantial evidence to support a 

prima facie case. See id. § 31.150(3).

In determining whether Schwern has met his burden 

under the second step, we view the evidence in the light most 

favorable to him and draw reasonable inferences in his favor. 

Plotkin, 280 Or. App. at 815–16. But “where there is a 

conflict between the parties’ proffered factual narratives and 
SCHWERN V. PLUNKETT 9

evidence,” we “adopt the version most favorable” to 

Schwern only when “it is supported by substantial 

evidence.” Id. at 816. In this context, “substantial evidence” 

means “sufficient evidence from which a reasonable trier of 

fact could find that the plaintiff met its burden of production” 

to support a prima facie case. Handy v. Lane Cty., 360 Or. 

605, 622–23 (2016).

The essence of Schwern’s suit is that Plunkett made false 

rape accusations to the individuals and organizations that 

commented online about his arrest, thereby harming his 

professional reputation. Central to each claim, then, is 

Schwern’s allegation that Plunkett actually communicated

with these individuals and organizations following the 

incident. Yet Schwern offers no evidence that Plunkett ever 

spoke with any of the individuals who posted on Twitter 

about his arrest or that she communicated with any of the 

organizations that issued statements on their websites. As in 

Handy, “[t]he record does not show that [she] ever made any 

statement” to them. 360 Or. at 625. Instead, Schwern 

“mere[ly] speculat[es]” that she spoke to them. Id.

Even when construing the evidence in Schwern’s favor, 

as we must, we cannot reasonably infer that Plunkett was the 

source. The online postings themselves do not help Schwern 

meet his burden because they recite truthful information that 

was freely available to the public. For example, one person 

posted a link to Schwern’s public arrest record and wrote that 

Schwern “was arrested for assaulting his partner.” Another 

organization confirmed that Schwern “was arrested by 

Portland Police” on charges of harassment and strangulation.

The only evidence that Plunkett spoke to anyone about 

the incident is a statement from Casey West that Plunkett 

told him about the alleged rape. The statement offers no 

details or elaboration. Setting aside Plunkett’s objection to 
10 SCHWERN V. PLUNKETT

the admission of this testimony, West’s statement tells us 

nothing about whether Plunkett was the source of the online 

commentary. Whether she made a statement to West and 

whether she made statements to the individuals and 

organizations that commented online “are two separate 

issues.” See id. Schwern offered no evidence that West ever 

repeated Plunkett’s alleged statement to anyone. Indeed, the 

conversation with West ostensibly took place after Plunkett 

moved to Boston. So not only is there no link to the online 

postings, but the temporal link is speculative at best.

Absent any evidence that Plunkett was the source of the 

online commentary, a “reasonable trier of fact” could not 

find that Schwern met his burden of production to support a 

prima facie case with substantial evidence. See id. at 623. 

Schwern’s theory offers “nothing other than speculation to 

fill in the gaps in his evidence.” Id. at 626. His allegation 

that he “believe[s]” Plunkett made the statements is 

insufficient. In sum, because Schwern failed to establish a 

prima facie case through substantial evidence, Plunkett was 

entitled to relief under Oregon’s anti-SLAPP law. We 

reverse and instruct the district court to grant Plunkett’s 

motion to strike.

REVERSED.