C.I.C.S. Emp't Servs., Inc. v. Newport Newspapers, Inc.
C.I.C.S. Emp't Servs., Inc. v. Newport Newspapers, Inc.
Opinion of the Court
*318Defendants 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.
We 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.
*319Because 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.
One 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).
On 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. Deaton ,
Oregon's 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 ,
On appeal, defendants maintain that their motion was timely because Multnomah County was the "wrong *321venue" 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 motion was untimely, the Lincoln County Circuit Court abused its discretion by denying the motion.
Defendants argue that they had the right to have the Lincoln County Circuit Court rule on its anti-SLAPP motion because Multnomah County was the "wrong" venue. As a result, defendants contend that the 60-day filing deadline was tolled once defendants filed their motion to change venue under ORS 14.110(1)(a), which permits transfer when "the action or suit has not been commenced in the proper county," and until the case was formally moved to the proper venue.
By way of explanation for their failure to file the anti-SLAPP motion in Multnomah County Circuit Court, *322defendants point out that ORS 31.152(1) requires a hearing on a special motion to strike within 30 days of filing and that, had defendants filed their motion in Multnomah County Circuit Court, the hearing might have been held there to meet the 30-day deadline even though Multnomah County was the "wrong" venue for the case. Because defendants had moved for a change in venue under ORS 14.110 (1)(a) approximately one month after defendant Newport Newspapers, Inc., was served with plaintiff's amended complaint-well within the 60-day deadline for filing an anti-SLAPP motion-defendants contend that they had a right to have the court in the proper venue preside over the hearing and rule on their anti-SLAPP motion.
Venue, of course, is not the same as jurisdiction. Kohring v. Ballard ,
While defendants are correct that they could insist on proper venue under ORS 14.110(1)(a), there is no indication that the Multnomah County Circuit Court lacked jurisdiction over this case even after defendants moved for a change in venue. That is, the court retained jurisdiction, among other things, to exercise its discretion to grant an extension of time for the late filing of the anti-SLAPP motion, order that the anti-SLAPP hearing required by ORS 31.152(1) occur only after the venue issue had been resolved, or stay the 60-day deadline while the venue motion was pending, either by its own initiative or based on a motion by defendants. In short, the Multnomah County Circuit Court had jurisdiction to rule on a range of matters, *323including timing issues related to defendants' anti-SLAPP motion, even if venue was proper elsewhere. Further, defendants point to no other limitation on the Multnomah County Circuit Court's authority to rule on matters related to defendant's anti-SLAPP motion. *689Similarly, nothing prevented defendants from filing their anti-SLAPP motion in Multnomah County Circuit Court within 60 days of service of the complaint or, in the alternative, filing a motion to extend or temporarily stay that deadline. Under Oregon venue law, a motion to change venue from an "improper" venue to a proper one must be filed before the defendant files an answer. ORS 14.120. But the venue statute does not suggest that a venue challenge is waived if other motions are filed before a motion to change venue has been filed or while one is pending. Accordingly, defendants would not have waived or otherwise prejudiced their right to change venue had they filed their anti-SLAPP motion while the motion to change venue was still pending in Multnomah County.
Defendants relatedly argue that the 60-day statutory deadline was tolled by operation of law while its motion to change venue was pending. But nothing in the relevant portions of Oregon's venue statutes, ORS 14.110 and ORS 14.120, or venue case law suggests that a motion to change venue tolls other statutory deadlines.
*324Defendants invite us to rely on California law to reach a contrary conclusion. In Handy v. Lane County ,
Under California law, a motion to change venue automatically acts as a "stay of proceedings." South Sutter, LLC v. LJ Sutter Partners, LP ,
In sum, the 60-day deadline for filing an anti-SLAPP motion continued to run while defendants' motion to change venue was pending in Multnomah County Circuit Court. Defendants could have timely filed their anti-SLAPP motion in Multnomah County Circuit Court without prejudicing their right to transfer the case to Lincoln County. Alternatively, defendants could have requested a stay of the proceedings in Multnomah County pending resolution of their motion to change venue or could have moved for an extension of time to file their anti-SLAPP motion or participate in the required hearing once that motion is filed. Instead, defendants waited to file their anti-SLAPP motion until approximately three weeks after the case had been transferred. At that point, the 60-day deadline had long passed and defendants' motion was untimely.
We turn to whether the trial court erred by declining to exercise its discretion to consider defendants' untimely motion. Both the statutory text and relevant case law indicate that we review the trial court's ruling in this case for abuse of discretion. Under ORS 31.152(1), a trial court may still consider an untimely anti-SLAPP motion "in its discretion." While we have never directly stated what standard of review applies when a court declines to consider an anti-SLAPP motion that is filed after the 60-day statutory deadline, we review rulings for abuse of discretion in comparable circumstances where the statute at issue describes the trial court's authority in discretionary terms. See, e.g. , Carroll v. Dept. of Public Safety Standards ,
While, as defendants point out, ORS 31.152(4) instructs trial courts to "liberally construe" the anti-SLAPP statute in favor of protecting the rights of expression enumerated in ORS 31.150(2), there is nothing in the statute to suggest that the legislature intended to cabin the discretion of trial courts to decline to consider untimely anti-SLAPP motions. In fact, defendants have not cited, and we are not aware of, any Oregon case where the appellate courts reversed as an abuse of discretion the trial court's refusal to consider, or decision to deny as untimely, an anti-SLAPP motion filed after the 60-day deadline.
Where, as here, defendants' anti-SLAPP motion was filed at least 46 days late, well beyond the statutory deadline, and defendants did not provide either sufficient legal grounds or a factual basis to excuse their neglect, the trial court's decision to reject the motion as untimely was within the "range of legally correct discretionary choices" available to it. See State v. Rogers ,
In sum, defendants' anti-SLAPP motion was untimely. Defendants filed the motion more than 60 days after plaintiff served its complaint, and defendants' pending motion to change venue did not toll the 60-day statutory deadline. In addition, the trial court did not abuse its discretion when it declined to consider the untimely motion.
Affirmed.
ORS 14.080(2) provides, in relevant part, that a corporation incorporated under Oregon law is a resident for venue purposes where the corporation conducts "regular, sustained business activity or has an office for the transaction of business or where any agent authorized to receive process resides."
ORS 14.110(1)(a) permits a trial court to "change the place of trial, on the motion of either party to an action or suit, when it appears from the affidavit of such party that the motion is not made for the purpose of delay and that the action or suit has not been commenced in the proper county." The Supreme Court has determined that parties have "a right to insist on proper venue under that statute." Kohring v. Ballard ,
Defendants raise arguments on the merits of their anti-SLAPP motion as well. Because we ultimately conclude that the motion was untimely and the Lincoln County Circuit Court did not abuse its discretion by denying the motion, we do not consider those arguments.
Assuming defendants are correct and the 60-day clock did not begin to run for any party until May 17, 106 days elapsed between that date and August 31. If plaintiff is correct and the clock began to run on April 7 for Newport News-Times , April 26 for Beasley, and May 10 for Rand, between 113 and 146 days elapsed between service and filing of the anti-SLAPP motion. By any metric, therefore, more than 60 days elapsed between service and when defendants filed their special motion to strike.
Under ORS 14.110,
"(1) The court or judge thereof may change the place of trial, on the motion of either party to an action or suit, when it appears from the affidavit of such party the motion is not made for the purpose of delay and:
"(a) That the action or suit has not been commenced in the proper county;
"(b) That the judge is a party to, or directly interested in the event of the action or suit, or connected by consanguinity or affinity within the third degree, with the adverse party or those for whom the adverse party prosecutes or defends;
"(c) That the convenience of witnesses and the parties would be promoted by such change; or
"(d) In an action, that the judge or the inhabitants of the county are so prejudiced against the party making the motion that the party cannot expect an impartial trial before the judge or in the county, as the case may be.
"(2) When the moving party in an action is a nonresident of the county, the affidavit required under this section may be made by anyone on behalf of the moving party."
Under ORS 14.120,
"[t]he motion for a change in the place of trial may be made and allowed any time after the commencement of the action or suit and before the beginning of trial, except that, if the change sought is pursuant to the provisions of ORS 14.110(1)(a), the motion must be made before filing of the answer. If the motion is allowed, the change shall be made to the county where the action or suit ought to have been commenced, if it is for the cause mentioned in ORS 14.110(1)(a), and in other cases to the most convenient county where the cause assigned as the reason for the change does not exist. Neither party shall be entitled to more than one change of the place of trial, except for causes not in existence when the first change was allowed."
The California cases cited by defendants that interpret California's venue law are not properly categorized as anti-SLAPP cases even though the results incidentally affect the timing for filing anti-SLAPP motions. California anti-SLAPP cases may be instructive as to the meaning of Oregon's anti-SLAPP statute as explained in Handy ,
As noted, the trial court also proceeded, assuming the motion had been timely, to deny defendants' anti-SLAPP motion on the merits.
Reference
- Full Case Name
- C.I.C.S. EMPLOYMENT SERVICES, INC., Plaintiff-Respondent v. NEWPORT NEWSPAPERS, INC., dba Newport News-Times Rick Beasley and James Rand
- Cited By
- 5 cases
- Status
- Published