Opinion
No. 16-35999
06-20-2018
WARREN MITCHELL, Plaintiff-Appellant, v. CLACKAMAS RIVER WATER; MICHAEL CARDWELL; KENNETH HUMBERSTON; HUGH KALANI; BARBARA KEMPER; KATHERINE KEHOE; CYNDI LEWIS-WOLFRAM; LARRY SOWA; LEE E. MOORE, Sr.; DEAN MARK PHILLIPS; SPECIAL DISTRICTS ASSOCIATION OF OREGON; SPECIAL DISTRICTS ASSOCIATION INSURANCE SERVICES; PHILLIPS LAW OFFICE, Defendants-Appellees.
NOT FOR PUBLICATION
D.C. No. 3:16-cv-00537-HZ MEMORANDUM Appeal from the United States District Court for the District of Oregon
Marco A. Hernandez, District Judge, Presiding Argued and Submitted June 7, 2018 Portland, Oregon Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN, District Judge.
This disposition is not appropriate for publication and is not precedent except as provided by Ninth Circuit Rule 36-3.
The Honorable Alvin K. Hellerstein, United States District Judge for the Southern District of New York, sitting by designation. --------
Plaintiff-Appellant Warren Mitchell appeals the district court's dismissal of his amended complaint. We have jurisdiction pursuant to 28 U.S.C. § 1291, and we affirm. 1. Mitchell's First Amendment retaliation claim fails because he fails to identify any actionable conduct by Defendants-Appellees. Conduct occurring before March 28, 2014, is outside the statute of limitations. See Or. Rev. Stat. § 12.110(1); Whidbee v. Pierce County, 857 F.3d 1019, 1022 (9th Cir. 2017). This includes the 2011 "gag order"; because our focus is on the time of the discriminatory acts, the "continuing impact from past violations is not actionable." Knox v. Davis, 260 F.3d 1009, 1013 (9th Cir. 2001) (quoting Grimes v. City & County of San Francisco, 951 F.2d 236, 238-39 (9th Cir. 1991)). The remaining timely conduct—Defendants-Appellees' successful petition for attorneys' fees and costs in the election contest lawsuit and Clackamas River Water's refusal to pay the supplemental judgment in the emails lawsuit—is incidental to petitioning activities and is therefore protected under the Noerr-Pennington doctrine. Sosa v. DIRECTV, Inc., 437 F.3d 923, 934-35 (9th Cir. 2006). Because Mitchell fails to allege sufficiently that these actions were objectively baseless and Defendants-Appellees had an improper motive, they do not fall within the narrow sham litigation exception. See Prof'l Real Estate Inv'rs, Inc. v. Columbia Pictures Indus., Inc., 508 U.S. 49, 60-61 (1993). 2. Mitchell's intentional infliction of emotional distress (IIED) claim fails because he fails to allege that Defendants-Appellees engaged in "extreme and outrageous" conduct. See McGanty v. Staudenraus, 901 P.2d 841, 849-50 (Or. 1995). As with the First Amendment retaliation claim, most of the allegations fall outside the two-year statute of limitations. Stupek v. Wyle Labs. Corp., 963 P.2d 678, 679 (Or. 1998). The remaining allegations concern litigation-related conduct, which does not rise to the level of outrageous conduct. Cf. Erlandson v. Pullen, 608 P.2d 1169, 1171-72 (Or. Ct. App. 1980). 3. Because the district court properly dismissed Mitchell's First Amendment and IIED claims, the court did not abuse its discretion in declining to exercise supplemental jurisdiction over the remaining state law claims. See 28 U.S.C. § 1367(c)(3); Kohler v. Inter-Tel Techs., 244 F.3d 1167, 1170-71 (9th Cir. 2001). Because no claims remain, whether we should reassign this case to a different district judge is moot.
AFFIRMED.