Englert v. MacDonnell et al

Filing 133

ORDER: MacDonnel's Motion for Summary Judgment 117 is granted. The parties' request for oral argument is denied as unnecessary. Signed on July 6, 2010 by Chief Judge Ann L. Aiken. (cp)

Englert v. MacDonnell et al

Doc. 133

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Defendants. 19 20 21 22 23 24 25 26 27 28 1 Helen C. Thompkins Law Office of Helen Thompkins PC 333 S. State Street, Suite V 121 Lake Oswego, OR 97034 Attorney for plaintiff Eric Neiman Heather J. Van Meter Williams Kastner & Gibbs, PLLC 888 S.W. Fifth Ave., Suite 600 Portland, OR 97204 Attorney for Herbert MacDonell AIKEN, Chief Judge: Plaintiff Rodney D. Englert filed a complaint for - OPINION AND ORDER
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON RODNEY D. ENGLERT, Plaintiff, vs. HERBERT LEON MACDONELL, TERRY L. LABER, BARTON P. EPSTEIN, PETER R. DE FOREST, STUART H. JAMES, and PATRICIA LOUGH, Civil No. 05­1863-AA OPINION AND ORDER

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defamation and libel against several people including defendant Herbert MacDonell. Defendants then filed a special motion to

strike based on Oregon's "Anti-SLAPP" (strategic litigation against public participation) law, O.R.S. §§ 31.150-31.155. On

May 10, 2006, this court granted in part and denied in part the Anti-SLAPP motion dismissing several defendants. The parties

then engaged in numerous discussions and settlement conferences in an attempt to resolve this case. moves for summary judgment. case is dismissed. BACKGROUND The parties are very familiar with the background of this case. Moreover, the May 10, 2006, opinion of this court set Defendant MacDonell now

That motion is granted and this

out an extensive factual background, therefore, most of it will not be repeated here. In Englert's defamation action against MacDonell, he alleges the American Academy of Forensic Science ("AAFS") ethics complaint, filed against Englert, included information provided by MacDonell, among others. This court found in 2006, and finds again after a detailed review of the record, that MacDonell did not sign the defendants' AAFS submission, nor does the record include any affidavits submitted by MacDonell in support of the defendants' ethics complaints. I find

nothing in the record to support MacDonell's involvement or participation in the ethics complaint. Englert does, however, provide a series of letters authored by MacDonell beginning in 1993 accusing Englert of being a "Frankenstein monster," "forensic whore," "liar for 2 - OPINION AND ORDER

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hire," and a "charlatan" relating to his work as a blood spatter expert. Further, the brother of a murder victim, William Crank, states that in April 2000, MacDonell began an unsolicited conversation with him in which he attacked and criticized Englert, who had testified as an expert witness in Crank's sister's homicide trial. Prosecuting Attorney Jim. J. Thomas in Blaine County, Idaho recounts a similar event in March 2005, in which MacDonell telephoned him to accuse Englert of perjury, saying that Englert would say anything in court if paid, and that MacDonell would do whatever he could to get Englert out of the forensic expert business. Around that same time, the Idaho

Attorney General's Criminal Division in Boise notified Englert of documents left throughout the courthouse stating: "To whom it may concern ­ if you would be interested in Rod Englerts [sic] real background, training and credibility you should contact Herbert Leon MacDonell. . ." Finally, a police sergeant in Huntington, West Virginia states that during a class MacDonell was teaching on blood patterns in Corning, New York, MacDonell called Englert a "charlatan," a "liar," and "untrustworthy." In September 2005, Englert received notice of many of MacDonell's writings. Englert filed this action on November 3,

2005, amending it November 9, 2005, to allege that defamatory statements by MacDonell (and others) were published and/or republished in Multnomah County, Oregon, bringing him into public contempt and ridicule, and diminished in the esteem, 3 - OPINION AND ORDER

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respect, goodwill and confidence in which he had been held. STANDARDS Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Civ. P. 56©. Fed. R.

Substantive law on an issue determines the T.W. Electrical Service, Inc. v.

materiality of a fact.

Pacific Electrical Contractors Assoc., 809 F.2d 626, 630 (9th Cir. 1987). Whether the evidence is such that a reasonable

jury could return a verdict for the nonmoving party determines the authenticity of a dispute. Inc., 477 U.S. 242, 248 (1986). The moving party has the burden of establishing the absence of a genuine issue of material fact. Catrett, 477 U.S. 317, 323 (1986). Celotex Corp. v. Anderson v. Liberty Lobby,

If the moving party shows

the absence of a genuine issue of material fact, the nonmoving party must go beyond the pleadings and identify facts which show a genuine issue for trial. Id. at 324.

Special rules of construction apply when evaluating summary judgment motions: (1) all reasonable doubts as to the existence of genuine issues of material fact should be resolved against the moving party; and (2) all inferences to be drawn from the underlying facts must be viewed in the light most favorable to the nonmoving party. 630. T.W. Electrical, 809 F.2d at

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1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 Statute of Limitations

DISCUSSION

MacDonell seems to argue for a second time that Englert's claims fall outside the one year statute of limitations under O.R.S. 12.120(2). In his initial motion to dismiss, MacDonell

asserted this claim alleging that Englert relied only on a 1993 letter MacDonell admits having written. Englert's response,

however, then clarified that additional incidents were at issue. Englert provided affidavits demonstrating MacDonell

made defamatory communications within a year of Englert filing his lawsuit (November 3, 2005). Further, under Oregon's

discovery rule, a claim for defamation based on statements made in confidential documents does not accrue until plaintiff discovers its contents. Holdner v. Oregon Trout, 173 Or. App.

344, 351, 22 P.3d 244 (2001) (citing White v. Gurnsey, 48 Or. App. 931, 935-36, 618 P.2d 975 (1980)). Thus, as I ruled

earlier, Englert's September 2005 discovery of MacDonell's older confidential communications falls within the statute of limitations under the discovery rule. Any claim by MacDonell regarding the statute of limitations is denied. Defamation A claim for defamation requires the plaintiff to present evidence establishing that the defendant published a defamatory statement about the plaintiff to a third person. Affolter v.

Baugh Construction Oregon, 183 Or.App. 198, 202, 51 P.3d 642 (2002). "A defamatory statement is one that would subject

another to 'hatred, contempt or ridicule . . . [or] tend to diminish the esteem, respect, goodwill or confidence in which 5 - OPINION AND ORDER

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[the other] is held or to excite adverse, derogatory or unpleasant feelings or opinions against [the other].'" Id. (internal citation omitted). "Whether a statement is capable

of having a defamatory meaning is a question of law for the court." 2000). An allegedly defamatory statement must contain some factual assertion that is capable of being proven true or false. (1998). Reesman v. Highfill 327 Or. 597, 603, 965 P.2d 1030 Opinion statements are not provably true or false and Id. at 606. Simpson v Burrows, 90 F.Supp.2d 1108, 1126 (D. Or.

are therefore not capable of a defamatory meaning.

Similarly, for purposes of the First Amendment, "[t]he scope of constitutional protection extends to statements of opinion on matters of public concern that do not contain or imply a provable factual assertion." Underwager v. Channel 9 Slurs or nameSee Simpson, 90

Australia, 69 F.3d 361, 366 (9th Cir. 1995). calling are considered opinion statements.

F.Supp.2d at 1126 ("a pervert, degenerate, or an immoral person," although rude and mean, were only rhetoric and "not the kind of ascertainable factual statements required to sustain a defamation claim."). Englert's claim again MacDonell is based on the following communications: (1) a 1993 letter to a Utah attorney; (2) a

1994 letter to a North Carolina attorney; (3) a 1998 affidavit signed by MacDonell and sent to a Washington prosecutor; (4) portions of a 1999 email to a Alabama forensic scientist; (5) an affidavit signed by William Crank regarding an April 2000 statement; (6) a 2000 letter addressed "to whom it may 6 - OPINION AND ORDER

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concern;" (7) a June 2003 email to a New York attorney; (8) an October 2003 email to a Washington attorney; (9) an unsigned message posted in an Idaho courthouse; (10) an affidavit signed by Jim J. Thomas about a March 2005 statement; (11) an affidavit signed by David J. Castle about a September 2005 statement; and (12) a 2006 Indiana newspaper article. The

court will review each of these twelve pieces of evidence in turn as possible support for Englert's defamation claim. The 1993 letter to a Utah attorney, and 1994 letter to a North Carolina attorney do not contain any statements that constitute defamation, i.e. probable false assertions. The letters contain only statements of opinion. Regarding the 1999 partial email, I find no defamatory statements. In fact, it is

difficult to discern much information about the email without the context of the remainder of the email. Regarding the Crank

Affidavit, I find no defamatory statement, particularly considering it is difficult to discern any MacDonell statements whatsoever from the affidavit. With respect to the 2000 letter

addressed "to whom it may concern," it does not contain any statements that constitute defamation. Regarding the June 2003

email to the New York attorney, and the October 2003 email to the Washington attorney, neither email contains any statements that constitute defamation. Regarding the message in the Idaho courthouse by an unknown author, plaintiff has no evidence or information to prove that MacDonell authored or posted the unsigned message in an Idaho courthouse. MacDonell states that

he was not in Idaho at the time the message was posted and has no information as to who created the document or how it got to 7 - OPINION AND ORDER

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a courtroom in Idaho.

Nevertheless, even assuming the document

was authored by MacDonell, it contains no statements that would constitute defamation. With respect to the Jim J. Thomas

affidavit, it contains no quotes of statements by MacDonell that constitute defamation. Regarding the Castle affidavit,

first there is no evidence that MacDonell actually made those statements, and second, to the extent that MacDonell made those statements, the opinion statements found within are not defamatory. Finally, regarding the 2006 Indiana newspaper

article, MacDonell is not quoted in the article, nor does Englert have any information or evidence that the reporter ever talked to or obtained a quote from MacDonell. I find no

evidence that MacDonell spoke to the reporter or caused any statement by him to be published or republished in the article. Moreover, Englert never requested the newspaper print a retraction. Or. Rev. Stat. 31.210 prohibits plaintiff from

recovering damages without first requesting a retraction from the newspaper. Further, based on the record, the court finds that plaintiff is a public figure. As a public figure, plaintiff

must prove that MacDonell acted with actual malice in making any statements about Englert. 'Actual malice' is defined as making statements with knowledge, or reckless disregard, of their falsity. New York Times v. Sullivan, 376 U.S. 254, 280 (1987); and Flowers v. Carville, 310 F.3d 1118, 1129 (9th Cir. 2002). Plaintiff has no evidence of any actual malice by MacDonell. Plaintiff fails to point to a single alleged

factual statement by MacDonell that plaintiff demonstrates is 8 - OPINION AND ORDER

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false, or made with knowledge or reckless disregard of its falsity. I find no evidence in the record that MacDonell's

statements were false factual assertions made with actual malice. Finally, Englert has no evidence that he was damaged by any of these twelve items. Englert testified that the ethics

complaint caused him to lose work on four cases (one case each in New York, Hawaii, Arizona and Wisconsin). Englert agrees

that MacDonell did not submit an ethics complaint and was not involved in the ethics proceeding. Since Englert's only damage

was lost work on four cases due to the filing of the ethics complaint that MacDonell had no part of, plaintiff has failed to identify any damages attributable to MacDonell. None of the twelve documents at issue support plaintiff's claim of defamation against MacDonell. entitled to summary judgment. CONCLUSION MacDonell's Motion for Summary Judgment (doc. 117) is granted. The parties' request for oral argument is denied as Therefore, MacDonell is

unnecessary. IT IS SO ORDERED. Dated this 6 day of July 2010.

/s/ Ann Aiken Ann Aiken United States District Judge

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