Zweizig v. Northwest Direct Teleservices, Inc. et al
Filing
239
OPINION & ORDER: The Court DENIES Defendant's Motion to Set Aside 229 and will enter Plaintiff's Proposed Judgment 231 . Accordingly, Defendant's Motion to Stay 233 is DENIED as moot. Signed on 11/20/2018 by Judge Marco A. Hernandez. (jp)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
MAX ZWEIZIG,
No. 3:15-cv-02401-HZ
Plaintiff,
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;
and NORTHWEST DIRECT MARKETING, INC.;
Defendants.
Joel Christiansen
VOGELE & CHRISTIANSEN
812 NW 17th Avenue
Portland, OR 97209
Attorney for Plaintiff
1- OPINION & ORDER
Timothy Rote
24790 SW Big Fir Road
West Linn, OR 97068
Pro Se Defendant
HERNÁNDEZ, District Judge:
Plaintiff Max Zweizig brought this retaliation claim against Defendants 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, and
Northwest Direct Marketing, Inc. Currently pending before this Court are Defendant Rote’s
Objection to Plaintiff’s Proposed Form of Judgment, Motion for Stay, and Motion for Relief
from the Court’s Anti-SLAPP Order dismissing Defendant’s counterclaims. The Court denies
Defendant’s Motions.
BACKGROUND
Plaintiff is the former IT director of Defendant Northwest Direct Teleservices, Inc.
Defendant Rote (“Defendant”) is the former executive of Defendant NDT and the other business
entities involved in this case. Because they were unrepresented, all the business entities in this
case have defaulted. The claims against Defendant Rote, however, proceeded to a two-day jury
trial on January 16 and 17, 2018. The jury returned a verdict for Plaintiff and awarded him
$1,000,000 in noneconomic damages. On July 25, 2018, the Court denied Defendant Rote’s
motion to set aside the judgment but found that Plaintiff’s noneconomic damages were capped
pursuant to Oregon law. O&O, ECF 228. Defendant Rote subsequently filed the present motions.
Judgment has not yet been entered in this case.
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2- OPINION & ORDER
DISCUSSION
I.
Motion for Relief from Order
Defendant’s “Motion for Relief from Order,” though styled as a relief from the judgment,
is more appropriately characterized as a motion for reconsideration. A motion for reconsideration
should not be the occasion to tender new legal theories for the first time, but rather should serve
to correct manifest errors of law or fact or to present newly discovered evidence. Publishers
Res., Inc. v. Walker-Davis Publ’ns, Inc., 762 F.2d 557, 561 (7th Cir. 1985); see also Maljack
Prod., Inc. v. Goodtimes Home Video Corp., 81 F.3d 881, 888 (9th Cir. 1996) (new facts or law
may warrant reconsideration); Backlund v. Barnhart, 778 F.2d 1386, 1388 (9th Cir. 1985)
(motion for reconsideration of summary judgment order properly denied where “it presented no
arguments that had not already been raised in opposition to summary judgment”). Thus,
“[r]econsideration is appropriate if the district court (1) is presented with newly discovered
evidence, (2) committed clear error or the initial decision was manifestly unjust, or (3) if there is
an intervening change in controlling law.” School Dist. No. 1J v. AcandS, Inc., 5 F.3d 1255,
1263 (9th Cir. 1993).
Defendant argues that the Court should reconsider its September 2016 Opinion & Order
granting Plaintiff’s motion to strike Defendant’s counterclaims under Oregon’s anti-SLAPP
statute. He specifically points to a 2018 opinion from the Ninth Circuit that clarified the proper
procedures to be used when analyzing anti-SLAPP motions in federal court. There, the Ninth
Circuit noted that under California’s anti-SLAPP statute:1
Once it is determined that an act in furtherance of protected expression is being
challenged, the plaintiff must show a “reasonable probability” of prevailing in its
claims for those claims to survive dismissal. To do this, the plaintiff must
demonstrate that “the complaint is legally sufficient and supported by a prima
Oregon courts look to California case law in construing Oregon’s anti-SLAPP statute. See Page
v. Parsons, 249 Or. App. 445, 461, 277 P.3d 609 (2012).
1
3- OPINION & ORDER
facie showing of the facts to sustain a favorable judgment if the evidence
submitted by plaintiff is credited.”
Planned Parenthood Fed. of Am., Inc. v. Ctr. for Med. Progress, LLC, 890 F.3d 828, 833 (9th
Cir. 2018) (internal citations omitted). The court went on to discuss the extent to which these
anti-SLAPP provisions are consistent with the Federal Rules of Civil Procedure. Id. Ultimately,
it found that the anti-SLAPP provision “require[ed] a presentation of evidence without
accompanying discovery . . . improperly transform[ing] the motion to strike under the antiSLAPP law into a motion for summary judgment without any of the procedural safeguards.” Id.
at 833–34. This would effectively allow state law to “usurp the federal rules.” Id. at 834. Thus,
the circuit court determined that “when an anti-SLAPP motion to strike challenges only the legal
sufficiently of a claim,” the court should apply the standards applicable to motions under Fed. R.
Civ. P. 12(b)(6). Alternatively, where the motion challenges the factual sufficiency of a claim,
the summary judgment standard under Fed. R. Civ. P. 56 applies and “discovery must be
allowed.” Id.
This Court’s 2016 Opinion & Order was issued without this guidance from the circuit
court and thus found that Defendant was required “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&O at 11, ECF 68. The Court further cited to evidence
provided by Plaintiff and Defendant in its analysis. Defendant argues that, accordingly, the
Court’s decision to grant the anti-SLAPP motion without discovery was improper under Planned
Parenthood. This Court disagrees.
Even applying the standards outlined in Planned Parenthood, the Court’s decision to
grant Plaintiff’s anti-SLAPP motion would be no different. As the Court indicated in its prior
opinion, Defendant failed as a matter of law to adequately state his counterclaims. For example,
4- OPINION & ORDER
with regard to Defendant Rote’s defamation claim, the Court found that “[n]o 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.” Id. at 13. Similarly,
Defendant Rote’s claims for Intentional Infliction of Emotional Distress and Aiding and Abetting
claims failed “as a matter of law” because “[n]o reasonable factfinder could conclude that the
alleged statement to Judge Jones’ courtroom deputy constituted “outrageous conduct.” Id. at 15.
Accordingly, Defendant’s counterclaims were legally insufficient, and the Court did not err in
granting Plaintiff’s motion without additional discovery.2
II.
Objection to Plaintiff’s Proposed Judgment
Defendant appears to object to Plaintiff’s proposed judgment because (1) it is overly
broad in finding the other corporate defendants—besides NDT—liable; and (2) it seeks damages
in an amount greater than pleaded in the operative complaint at the time of default. As a
preliminary matter, the Court notes that Defendant cannot advocate on behalf of the corporate
defendants in this case. See O&O at 3, ECF 96 (“As this Court has previously informed
Defendant, he may not represent the Corporate Defendants.”); see also United States v. High
Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (stating that a corporation may appear in
federal court only through licensed counsel). In addition, the amount of the proposed judgment is
consistent with Plaintiff’s Amended Complaint, which seeks compensatory damages in the
amount of $2,000,000 against the corporate defendants for their acts of retaliation. See Am.
Compl. ¶¶ 29–34, ECF 193. Accordingly, the Court will enter Plaintiff’s proposed form of
judgment.
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2
Defendant Rote also filed a Motion to Stay the proceedings pending the outcome of his Motion
for Relief. ECF 233. Because the Court has now ruled on Defendant’s Motion for Relief,
Defendant’s Motion to Stay is moot.
5- OPINION & ORDER
CONCLUSION
The Court DENIES Defendant’s Motion to Set Aside [229] and will enter Plaintiff’s
Proposed Judgment [231]. Accordingly, Defendant’s Motion to Stay [233] is DENIED as moot.
IT IS SO ORDERED.
Dated this _________day of __________________, 2018.
MARCO A. HERNÁNDEZ
United States District Judge
6- OPINION & ORDER
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