Cunningham et al v. Sony Pictures Entertainment

Filing 32

ORDER - Defendants' Special Motion to Strike (ECF 5 ) is GRANTED. Plaintiff's Complaint (ECF 1 ) is dismissed with prejudice. Plaintiff's Motion to Strike (ECF 12 ) and two Motions for Entry of Default (ECF 23 , 29 ) are DENIED as moot. Plaintiff's Motion for Order to Show Cause (ECF 17 ) is without merit and also DENIED. Defendants' Motion to Dismiss (ECF 26 ) is DENIED as moot. Signed on 4/26/2018 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

BRADLY M. CUNNINGHAM,
Plaintiff,

Case No. 3:17-cv-1686-SI
ORDER

v.
SONY PICTURES ENTERTAINMENT, A
CORPORATION; COLUMBIA TRISTAR;
NATIONAL BROADCASTING
CORPORATION AKA NBC UNIVERSAL;
AND JANE AND JOHN DOES 1-100,
Defendants.
Michael H. Simon, District Judge.
Plaintiff pro se Bradly Cunningham is a prisoner currently incarcerated at the Oregon
State Penitentiary. On October 24, 2017, Plaintiff filed a complaint against Defendants Sony
Pictures, Columbia Tristar, and NBC Universal (collectively, “Defendants”) in which he asserts
claims under 28 U.S.C. § 1983 and Oregon defamation. Plaintiff’s claims arise from statements
made to the public in a docudrama entitled Dead by Sunset, which concerns the murder of
plaintiff’s wife and the events leading up to that murder. Plaintiff alleges that the docudrama
made various misrepresentations that have resulted in his prolonged incarceration. On
December 19, 2017 Defendants filed a special motion to strike under Oregon Rev. Stat. (ORS)
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§ 31.150. Plaintiff has subsequently filed a motion to strike, motion to show cause, and two
motions for default judgment. Defendants have also filed an additional motion to dismiss NBC
Universal from the action. For the reasons given below, Defendants’ special motion to strike is
granted and the remaining motions are denied.
A special motion to strike under Oregon’s Anti-SLAPP statute, ORS § 31.150, allows a
defendant “who is sued over certain actions taken in the public arena to have a questionable case
dismissed at an early stage.” Staten v. Steel, 222 Or. App. 17, 27 (2008). In order to have the
action dismissed, the defendant must first show that the case arises out of the protected activity
identified in ORS § 31.150(2). “If the defendant meets this burden, the burden shifts to the
plaintiff in the action 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.” ORS § 31.150(3). If the
plaintiff cannot meet this burden, the claim should be dismissed without prejudice. ORS
§ 31.150(1).
Plaintiff’s claims arise from “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.” Plaintiff is currently serving a life sentence for the murder of his wife. The docudrama
at issue in Plaintiff’s complaint concerns that murder and the events surrounding it. The Oregon
Court of Appeals has, in the past, held that news reporting about a neighborhood shooting
concerns an issue of public interest and is therefore protected activity under ORS § 31.150(1).
Mullen v. Meredith Corporation, 271 Or. App. 298, 706 (2015). So, too, is Defendants’ retelling
of a widely reported murder. Moreover, Plaintiff does not contest that that the docudrama
concerned an issue of public interest.

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Because Defendants have demonstrated that Plaintiff’s claims arise from a protected
exercise of speech, Plaintiff must show, though presentation of “substantial evidence,” that he is
likely to succeed on his claim. Plaintiff has failed to carry this burden. As a preliminary matter,
Plaintiff’s § 1983 claims must be dismissed because the Defendants are not state actors, and
Plaintiff does not allege that they were acting under color of state law. Although Plaintiff argues
in his response brief that “Defendants worked closely with and in the name of the State of
Oregon in the production, filming and promotion of” the docudrama, he presents no evidence
that this is the case, as is required by ORS 31.150(3).
Plaintiff has also not demonstrated a likelihood of success on his claim for defamation
false light. Both claims are time-barred. “[W]hen a claim characterized as false light alleges facts
that also constitute a claim for defamation, the claim must be filed within the period for bringing
a defamation claim.” Logan v. West Coast Benson Hotel, 981 F. Supp. 1301 (Sept. 9, 1997)
(quoting Magenis v. Fisher Broadcasting, Inc., 103 Or. App. 555, 560 (1990) (internal quotation
marks omitted). Plaintiff’s allegations that could plausibly be characterized as constituting a false
light claim are identical to those constituting his claim for defamation. Oregon’s statute of
limitations for defamation is one year. ORS 12.120(2). The statute begins to run on the day that
the allegedly defamatory statements are made public. See Workman v. Rajneesh Foundation
Intern., 84 Or. App. 226, 230-31 (1987). The “discovery rule,” which in some cases tolls a
statute of limitations until a plaintiff discovers the basis for a claim, does not apply to claims for
defamation “given the very public and inherently discoverable nature of the alleged defamatory
statements.” LaHodny v. 48 Hours, 2015 WL 1401676 at *3 (March 24, 2015); see also deParrie
v. Hanzo, 2000 WL 900485 at *4 (D. Or. 2000). The docudrama that Plaintiff alleges contains
defamatory statements was aired in November 1995, twenty-two years before Plaintiff filed this

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claim. Plaintiff’s claims for defamation and false light are thus time-barred under ORS §
12.120(2).
Although Defendants bring this motion to strike under Oregon’s Anti-SLAPP statute,
which directs the court to dismiss claims at this early stage without prejudice, dismissal with
prejudice is appropriate in this case. The statute of limitations for Plaintiff’ state law claims
arising from the docudrama ran many years ago. In the twenty-two years since the docudrama
was broadcast, Plaintiff has made several unsuccessful attempts to bring a defamation action
against Defendants in both state and federal court. ECF 6 at 3, 4. Moreover, Plaintiff has not
alleged, and nor does the Court believe Plaintiff plausibly can allege, that Defendants acted
under color of state law in the production of the docudrama. Thus, Plaintiff will not be able to
correct the deficiencies in either his state law or § 1983 claims through amended pleading.
Defendants’ Special Motion to Strike (ECF 5) is GRANTED. Plaintiff’s Complaint
(ECF 1) is dismissed with prejudice. Plaintiff’s Motion to Strike (ECF 12) and two Motions for
Entry of Default (ECF 23, 29) are DENIED as moot. Plaintiff’s Motion for Order to Show Cause
(ECF 17) is without merit and also DENIED. Defendants’ Motion to Dismiss (ECF 26) is
DENIED as moot.
IT IS SO ORDERED.
DATED this 26th day of April 2018.

/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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