Opinion
Case No. 3:20-cv-00366-SB
10-29-2020
EMILY CATHERINE CONROY, Plaintiff, v. KATHERINE CLARK, Defendant.
FINDINGS AND RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Emily Catherine Conroy ("Conroy") filed this action against defendant Katherine Clark ("Clark"), asserting state law claims for invasion of privacy and intentional infliction of emotional distress ("IIED"). Clark filed a motion to dismiss pursuant to FED. R. CIV. P. 12(b), and a special motion to strike under Oregon's anti-SLAPP statute, OR. REV. STAT. § 31.150. (ECF No. 19.) The Court has jurisdiction pursuant to 28 U.S.C. § 1332(a)(1). For the reasons discussed herein, the Court recommends that the district judge deny Clark's motions.
Conroy has resolved her claims against defendants University of South Carolina Press and the University of South Carolina. (ECF No. 15.)
BACKGROUND
In 2018, Clark edited and secured publishing for the book My Exaggerated Life, an oral autobiography based on interviews she conducted with the late author Pat Conroy. (First Am. Compl. ("FAC") ¶ 13.) Plaintiff Conroy is Pat Conroy's stepdaughter. (FAC ¶ 7.) Clark's book includes details about Dr. Alan Fleischer's (Conroy's biological father) sexual abuse of Conroy when she was a child. (FAC ¶¶ 6-7, 14.)
Conroy reported the abuse as a child, and Dr. Fleischer was indicted for one count of child molestation. (FAC ¶¶ 8-9.) Several newspaper articles in the late 1980s discussed the sexual abuse allegations. (FAC ¶ 10.) Conroy alleges that none of those articles identified her as the victim, nor detailed the acts Dr. Fleischer committed. (Id.) Conroy alleges that no "significant information" about the abuse or her identity surfaced after approximately 1990. (Id.)
Conroy asserts that she is a private person by nature and that, before My Exaggerated Life's publication, few people knew about her childhood abuse or that Pat Conroy was her stepfather. (FAC ¶ 11.) Clark never sought nor obtained Conroy's consent for the publication. (FAC ¶ 15.) Conroy alleges that the book's publication destroyed her anonymity and privacy and, as a result, she has suffered substantial emotional distress. (FAC ¶¶ 12, 18.)
DISCUSSION
I. LEGAL STANDARDS
A. Oregon's Anti-SLAPP Statute
1. Anti-SLAPP Motions in Oregon Courts
Oregon's anti-SLAPP statute, OR. REV. STAT. § 31.150, "creates an expedited procedure for dismissal of certain nonmeritorious civil cases without prejudice at the pleading stage." Neumann v. Liles, 358 Or. 706, 723 (2016). Application of Oregon's anti-SLAPP statute is a "two-step burden-shifting process." Wingard v. Or. Family Council, Inc., 290 Or. App. 518, 521 (2018). The moving defendant must first demonstrate that "the claim against which the motion is made arises out of statements or conduct protected by OR. REV. STAT. § 31.150(2). The statute protects, in relevant part, "[a]ny . . . 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" and "[a]ny other conduct in furtherance of the exercise of the . . . constitutional right of free speech in connection with a public issue or an issue of public interest." Id. If the defendant meets her burden, the plaintiff must "establish that there is a probability that [she] will prevail on the claim by presenting substantial evidence to support a prima facie case." OR. REV. STAT. § 31.150(3).
"SLAPP" is an acronym for "Strategic Lawsuit Against Public Participation." Young v. Davis, 259 Or. App. 497, 499 (2013).
The second step of the analysis is typically not constrained to the pleadings. See Bryant v. Recall for Lowell's Future Comm., 286 Or. App. 691, 693 (2017) (considering "facts as provided in the pleadings and the supporting and opposing declarations and exhibits submitted"); see also OR. REV. STAT. § 31.150(4) ("[T]he court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based."). When presented with conflicting evidence, courts "adopt the version that is most favorable to plaintiff, so long as it is supported by substantial evidence." Plotkin v. State Accident Ins. Fund, 280 Or. App. 812, 816 (2016) (citation omitted). Courts consider a defendant's opposing evidence "'only to determine if it defeats plaintiff's showing as a matter of law.'" Bryant, 286 Or. App. at 693 (quoting Plotkin, 280 Or. App. at 816).
2. Anti-SLAPP Motions in Federal Court
Federal courts generally apply state substantive law and federal procedural law. See Hanna v. Plumer, 380 U.S. 460, 465 (1965). Although anti-SLAPP motions are a procedural mechanism to vindicate existing substantive rights, federal courts have generally allowed such motions. See U.S. ex rel. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 970-73 (9th Cir. 1999) (holding that some of California's anti-SLAPP provisions do not "directly interfere with the operation" of the Federal Rules of Civil Procedure); see also Gardner v. Martino, 563 F.3d 981, 991 (9th Cir. 2009) (applying Oregon's anti-SLAPP statute). However, the Ninth Circuit has held that not all provisions of a state's anti-SLAPP statute apply in federal court. See Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that "the discovery-limiting aspects of [anti-SLAPP motions] collide with the discovery-allowing aspects of Rule 56"); see also AR Pillow Inc., v. Maxwell Payton, LLC, No. C11-1962-RAJ, 2012 WL 6024765, at *3 (W.D. Wash. Dec. 4, 2012) ("[T]he Ninth Circuit's holding that the automatic stay of discovery in California's statute does not apply in federal court applies equally to [Washington's anti-SLAPP statute].").
To eliminate any lingering conflict, the Ninth Circuit recently adopted a tiered approach to anti-SLAPP motions. See Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 834-35 (9th Cir. 2018), amended, 897 F.3d 1224 (9th Cir. 2018), and cert. denied sub nom. Ctr. for Med. Progress v. Planned Parenthood Fed'n of Am., 139 S. Ct. 1446 (2019). "[W]hen an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated." Planned Parenthood, 890 F.3d at 834. By contrast, "when an anti-SLAPP motion to strike challenges the factual sufficiency of a claim, . . . the Federal Rule of Civil Procedure 56 standard will apply." Id. If the defendant's motion challenges the factual sufficiency of a claim, "discovery must be allowed . . . before any decision is made by the court." Id. This is because "[r]equiring a presentation of evidence without accompanying discovery would improperly transform the motion to strike under the anti-SLAPP law into a motion for summary judgment without providing any of the procedural safeguards that have been firmly established by the Federal Rules of Civil Procedure." Id.; see also Chase v. Gordon, Aylworth & Tami, P.C., No. 3:18-cv-00568-AC, 2020 WL 1644310, at *13 (D. Or. Feb. 14, 2020) ("Here, there has been no discovery, and the court examines only the legal sufficiency of the Defendants' anti-SLAPP motion to strike under Rule 12(b)(6)." (citation omitted)).
B. Motions to Dismiss
"To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 678. "The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully." Mashiri v. Epstein Grinnell & Howell, 845 F.3d 984, 988 (9th Cir. 2017) (internal quotation marks omitted) (citing Iqbal, 556 U.S. at 678)).
II. ANALYSIS
A. Anti-SLAPP Motion to Strike
Clark moves to strike Conroy's complaint pursuant to Oregon's anti-SLAPP statute, arguing that the anti-SLAPP statute applies here because Conroy's claims "are based on published statements in connection with an issue of public interest and conduct in furtherance of the constitutional right of free speech in connection with an issue of public interest." (Def.'s Mot. Dismiss at 1.)
At the first step of the anti-SLAPP analysis, the Court would typically determine if Clark has demonstrated that the challenged statements in her book were made "in a place open to the public or a public forum" and "in connection with an issue of public interest." OR. REV. STAT. § 31.150(2). However, the Court need not resolve the first step here, because even if the anti-SLAPP statute applies, the Court has determined that Conroy has stated a claim pursuant to Rule 12(b)(6). See Planned Parenthood, 890 F.3d at 834 (holding that "when an anti-SLAPP motion to strike challenges only the legal sufficiency of a claim, a district court should apply the Federal Rule of Civil Procedure 12(b)(6) standard and consider whether a claim is properly stated"). For the reasons discussed below, Conroy has stated a claim for both invasion of privacy and IIED under Oregon law, and therefore her claims necessarily survive Clark's anti-SLAPP motion and the Court need not determine if Oregon's anti-SLAPP statute applies here. See Zweizig v. Nw. Dir. Teleservices, Inc., No. 3:15-cv-02401-HZ, 2018 WL 6062316, at *2 (D. Or. Nov. 20, 2018) (denying the plaintiff's motion for reconsideration of the court's decision to grant an anti-SLAPP motion before allowing for discovery because "applying the standards outlined in Planned Parenthood," the claim was "legally insufficient"); Clifford v. Trump, 339 F. Supp. 3d 915, 922 (C.D. Cal. 2018) (finding that an anti-SLAPP motion is analogous to a motion to dismiss). Accordingly, the Court denies Clark's anti-SLAPP motion to strike. /// ///
To the extent Clark challenges the factual sufficiency of Conroy's complaint, the Court would deny the anti-SLAPP motion pending discovery. See Planned Parenthood, 890 F.3d at 834 (holding that if the defendant's anti-SLAPP motion challenges the factual sufficiency of a claim, "discovery must be allowed . . . before any decision is made by the court").
Planned Parenthood has effectively converted anti-SLAPP motions to a standard Rule 12(b)(6) motion to dismiss, with the exception that a successful anti-SLAPP motion allows for an award of attorney's fees. Thus, if this Court were to find that Conroy failed to state a claim under Rule 12(b)(6), it would also address the applicability of the anti-SLAPP statute as relevant to a potential fee award. However, because the Court concludes here that Conroy has stated a claim, it is of no import whether the anti-SLAPP statute applies.
B. Rule 12(b)(6) Motion to Dismiss
Clark also moves to dismiss Conroy's claims for failure to state a claim pursuant to Rule 12(b)(6). Applying Rule 12(b)(6) here, the Court finds that Conroy has stated a claim for both invasion of privacy and intentional infliction of emotional distress.
1. Invasion of Privacy
Conroy alleges that Clark's disclosure of Conroy's identity and the details of her childhood sexual abuse was an invasion of her privacy under Oregon law. (FAC ¶¶ 19-26.)
The RESTATEMENT (SECOND) OF TORTS § 652A recognizes four invasion of privacy torts. See RESTATEMENT (SECOND) OF TORTS § 652A (1977) (outlining the four invasion of privacy torts: (1) unreasonable intrusion upon the seclusion of another, (2) appropriation of the other's name or likeness, (3) unreasonable publicity given to the other's private life, and (4) publicity that unreasonably places the other in a false light before the public). The invasion of privacy tort at issue here, as recognized by Oregon courts, is "public disclosure of private facts." Simpson v. Burrows, 90 F. Supp. 2d 1108, 1125 (D. Or. 2000). The elements of this tort under Oregon law are:
(1) the plaintiff had private information which would have remained private; (2) the defendant made that private information known to the public; (3) the publication of that information would be offensive to a reasonable person; and (4) the tortfeasor's conduct was wrongful apart from inflicting emotional distress on the plaintiff.Biggs v. City of St. Paul, No. 6:18-CV-00506-MK, 2020 WL 2744092, at *12-13 (D. Or. May 5, 2020), report and recommendation adopted, 2020 WL 2735602 (D. Or. May 26, 2020) (quoting Hedger v. Asbury Auto. Or., LLC, No. CV 05-1576-MO, 2006 WL 3345154, at *3 (D. Or. Nov. 15, 2006)).
Clark moves to dismiss Conroy's invasion of privacy claim on the grounds that Conroy has failed adequately to plead that the information Clark published was private or that Clark's conduct was highly objectionable. (Def.'s Mot. to Dismiss at 12-13.) The Court finds that Conroy has pled sufficient facts to support each of the four elements of her invasion of privacy claim under Oregon law.
First, Conroy adequately alleges that the subject matter of the published information, her childhood sexual abuse, is private. Specifically, Conroy alleges that her father raped and sexually abused her as a child, and that the occurrence of the abuse was a private matter. (FAC ¶¶ 7, 20.) Conroy further alleges that no published article named her as the victim, nor provided details of the abuse. (FAC ¶ 10.) She describes herself as an "intensely private person," and alleges that very few people knew about the sexual abuse or that she was Pat Conroy's stepdaughter. (FAC ¶ 11.) Courts have consistently found that details relating to sexual relations are private. See, e.g., M.G. v. Time Warner, Inc., 89 Cal. App. 4th 623, 632 (2001) (finding that information was private where the publication at issue "publicly linked plaintiffs with child molestation as either victims, perpetrators, or collaborators"); see also Simpson, 90 F. Supp. 2d at 1125 (finding that the plaintiff's sexual orientation was a private fact); Doe v. HarperCollins Publishers, LLC, No. 17-CV-3688, 2018 WL 1174394, at *6 (N.D. Ill. Mar. 6, 2018) (denying motion to dismiss where the plaintiff alleged publication of private details about an affair and her sexual relationships); RESTATEMENT (SECOND) OF TORTS § 652D, cmt. b (1977) ("Sexual relations, for example, are normally entirely private matters").
Clark argues that this information was already known to the public in light of previously published articles that disclosed the sexual abuse, and therefore the information was not private. (Def.'s Mot. to Dismiss at 12-13.) However, Clark's argument relies on extrinsic evidence (id.; Def.'s Reply at 4), and on a motion to dismiss the Court must accept Conroy's pleadings as true and view the facts in a light most favorable to Conroy. See Iqbal, 556 U.S. at 678 (requiring the court to accept the alleged facts as true on a motion to dismiss). The Court finds that Conroy has sufficiently alleged that her identity and the details of her abuse remained private prior to Clark's publication. See Time Warner, 89 Cal. App. 4th at 632 (finding that photograph and identities of underage victims remained private even after their child molester's identity and general descriptions of the victims were "widely reported"); see also Michaels v. Internet Entm't Grp., Inc., 5 F. Supp. 2d 823, 840 (C.D. Cal. 1998) (finding that sexual relations remain private even after the previous distribution of a recording of one of the parties documenting a different sexual encounter); cf. Haney, M.D. v. Or. Bd. of Med. Examiners, No. CIV 07-1807-HA, 2008 WL 4645994, at *4 (D. Or. Oct. 20, 2008) ("[T]here 'is no liability in an action for breach of privacy when the defendant merely gives further publicity to information about the plaintiff which is already public.'" (quoting Ayers v. Lee Enters., Inc., 277 Or. 527, 536 (1977))).
Second, Conroy sufficiently alleges that Clark made the private information known to the public, and Clark does not deny that Conroy has adequately pled this element. See FAC ¶¶ 14, 22 (alleging that the book was widely distributed); ¶¶ 16-17 (alleging that the book's publishers marketed the book online and advertised it worldwide).
Third, Conroy alleges sufficient facts to support a finding that publicly disclosing details of someone else's childhood sexual abuse would be offensive to a reasonable person. Specifically, Conroy asserts that Clark's disclosure of Conroy's identity and childhood sexual abuse was particularly offensive here because it was for the purpose of Clark's own financial gain. (FAC ¶¶ 12, 23.) Clark responds that the disclosure here did not "rise to a level of social intolerability." (Def.'s Mot. to Dismiss at 13.) The Court finds the nature of the published information and the alleged manner of disclosure here satisfy the third element of the invasion of privacy claim at the pleading stage. See Time Warner, 89 Cal. App. 4th at 631 ("The parties seem to agree that disclosure of information connecting a person with sexual molestation potentially may offend a reasonable person.").
Fourth, Conroy adequately alleges that Clark's disclosure was wrongful apart from causing Conroy emotional distress. Specifically, Conroy asserts that Clark's failure to contact her for consent and verification, Clark's publication of explicit details, and Clark's disclosure of Conroy's private trauma for Clark's own financial gain was socially intolerable. (FAC ¶¶ 12, 24-25.) Based on these allegations, the Court finds that Conroy has pled facts sufficient to satisfy the fourth element of her invasion of privacy claim. See Anderson v. Fisher Broad. Co., Inc., 300 Or. 452, 469 (1986) (noting that an example of "wrongful disclosure" includes "publishing private information in a socially intolerable way"), questioned on other grounds by McGanty v. Staudenraus, 321 Or. 532 (1995). For all of these reasons, Conroy has stated a claim for invasion of privacy.
2. Intentional Infliction of Emotional Distress
Conroy also asserts an IIED claim based on Clark's publication of My Exaggerated Life. (FAC ¶¶ 27-30.) Under Oregon law, the elements of an IIED claim are:
(1) the defendant intended to inflict severe emotional distress on the plaintiff; (2) the defendant's acts were the cause of the plaintiff's severe emotional distress; and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.Yeti Enter. Inc. v. NPK, LLC, No. 3:13-CV-012003-ST, 2015 WL 3952115, at *7 (D. Or. June 29, 2015) (quoting McGanty, 321 Or. at 543). Clark argues that Conroy has not adequately pled the intent element, nor that Clark's acts transgressed the bounds of socially tolerable conduct. (Def.'s Mot. Dismiss at 14-16; Def. Reply at 5-6.) The Court finds that Conroy has alleged sufficient facts to support each of the three elements of her IIED claim. ///
First, Conroy sufficiently alleges intent. The "intent element is established where the actor desires to inflict severe emotional distress and also where the actor knows that such distress is certain, or substantially certain, to result from the conduct." Simpson, 90 F. Supp. 2d at 1124; cf. Mullen v. Meredith Corp., 271 Or. App. 698, 714 (2015) (holding that negligent conduct is insufficient to establish intent). Conroy alleges that Clark failed to contact her for consent to publish the details of the abuse, because Clark "likely knew or believed that, had she asked, [Conroy] would have refused permission to publish her private information." (FAC ¶¶ 15, 24, 28.) Conroy's allegation is sufficient at the pleading stage to support a finding that Clark knew, or was substantially certain, that Conroy would suffer emotional distress as a result of the publication.
Second, Conroy adequately alleges that she suffered severe emotional distress resulting from Clark's publication, and Clark does not argue to the contrary. See FAC ¶¶ 18, 30 (alleging that as a result of the publication, Conroy has suffered from depression, anxiety, post-traumatic stress disorder, auto-immune disorder, and other chronic conditions); see also Herrera v. C & M Victor Co., 265 Or. App. 689, 697 (2014) (finding that to plead causation, the plaintiff must allege facts "showing that the tortious acts were a substantial factor in bringing about the harm" (citations omitted)).
Third, Conroy has pled sufficient facts to support a finding that Clark's actions transgressed the bounds of socially tolerable conduct. "Whether the alleged conduct constitutes an extraordinary transgression of the bounds of socially tolerable conduct is a question of law for the court." Thames v. City of Portland, No. 3:16-CV-01634-PK, 2017 WL 4392044, at *7 (D. Or. Oct. 3, 2017) (citing Harris v. Pameco Corp., 170 Or. App. 164, 171 (2000)). "[T]he 'classification of conduct as 'extreme and outrageous' depends on both the character and degree of the conduct.'" Reaves v. Nexstar Broad., Inc., 327 F. Supp. 3d 1352, 1375 (D. Or. 2018) (quoting House v. Hicks, 218 Or. App. 348, 358 (2008)); cf. Kraemer v. Harding, 159 Or. App. 90, 111 (1999) (finding that publishing allegations that the plaintiff had sexually abused a child without supporting evidence was socially intolerable conduct).
Conroy argues that Clark's publication of Conroy's childhood trauma without her consent or verification, revealing her identity, and publishing the specific details of the abuse transgress the bounds of socially tolerable conduct. (FAC ¶¶ 23-24, 29.) The Court agrees, and finds that Conroy has sufficiently stated an IIED claim.
CONCLUSION
For the reasons stated, the Court recommends that the district judge DENY Clark's anti-SLAPP motion to strike and motion to dismiss (ECF No. 19).
SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if any, are due within fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 29th day of October, 2020.
/s/_________
HON. STACIE F. BECKERMAN
United States Magistrate Judge