Conroy v. Mewshaw

1

EMILY CATHERINE CONROY, Plaintiff, v. MICHAEL MEWSHAW, an individual; COUNTERPOINT PRESS, a California corporation; BERNIE SCHEIN, an individual; and SKYHORSE PUBLISHING, INC., a Delaware corporation, Defendants.

No. 3:21-cv-298-SB

United States District Court, D. Oregon

July 28, 2022

Jamie S. Kilberg, KAUFFMAN KILBERG LLC, 1050 SW 6th Avenue, Suite 1414, Portland, OR 97204. Of Attorneys for Plaintiff.

Kevin H. Kono and Megan A. Himes, DAVIS WRIGHT TREMAINE LLP, 1300 SW Fifth Avenue, Suite 2400. Of Attorneys for Defendants Michael Mewshaw and Catapult, LLC (which Defendants contend Plaintiff erroneously calls Counterpoint Press).

Christopher E. Hawk and Kelly Frances Huedepohl, GORDON &amp REES LLP, 1300 SW 5th Avenue, Suite 2000, Portland, OR 97201. Of Attorneys for Defendants Bernie Schein and Skyhorse Publishing, Inc.

OPINION AND ORDER

MICHAEL H. SIMON, DISTRICT JUDGE.

United States Magistrate Judge Stacie F. Beckerman issued Findings and Recommendation in this case on April 12, 2022. Judge Beckerman recommended that this Court deny Defendants Michael Mewshaw and Catapult, LLC's^[1] (Defendants) request for judicial notice, motion to dismiss, and anti-SLAPP motion to strike.

Under the Federal Magistrates Act (Act), the Court may “accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate.” 28 U.S.C. § 636(b)(1). If a party objects to a magistrate judge's findings and recommendations, “the court shall make a de novo determination of those portions of the report or specified proposed findings or recommendations to which objection is made.” Id.; Fed.R.Civ.P. 72(b)(3).

For those portions of a magistrate judge's findings and recommendations to which neither party has objected, the Act does not prescribe any standard of review. See Thomas v. Arn, 474 U.S. 140, 152 (1985) (“There is no indication that Congress, in enacting [the Act], intended to require a district judge to review a magistrate's report to which no objections are filed.”); United States. v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (holding that the court must review de novo magistrate judge's findings and recommendations if objection is made, “but not otherwise”). Although in the absence of objections no review is required, the Act “does not preclude further review by the district judge[] sua sponte . . . under a de novo or any other standard.” Thomas, 474 U.S. at 154. Indeed, the Advisory Committee Notes to Fed.R.Civ.P. 72(b) recommend that “[w]hen no timely objection is filed,” the Court review the magistrate judge's recommendations for “clear error on the face of the record.”

Defendants object to Judge Beckerman's recommendation that the Court deny Defendants' request for judicial notice, motion to dismiss, and motion to strike. The Court addresses each objection in turn.

A. Defendants' Request for Judicial Notice

Defendants object to Judge Beckerman's recommendation that the Court deny their request for judicial notice. Defendants argue that the Court must take judicial notice of the fact that the documents attached to its request were published and existed in the public realm. Defendants argue that based on the contents of those publications, Plaintiff's allegation that Defendants disclosed private information not previously made public is not plausible. The Court agrees with Defendants that the Court must take judicial notice of the publication of the documents attached to their request but is not persuaded that judicial notice of these documents is fatal to Plaintiff's privacy claim at the pleading stage.

Defendants ask the Court to take judicial notice of excerpts of certain books and newspaper articles “for the purpose of considering the publication of each item and its content's existence in the public realm at the time.” ECF 29, at 2. The Court grants Defendants' request. The publication and existence of these materials in the public realm are the kinds of facts that may be judicially noticed because they can be “accurately and readily determined” and there is no reason to question their accuracy. See Fed.R.Civ.P. 201(b). Moreover, Plaintiff does not oppose Defendants' request to the extent it only seeks judicial notice of the fact that the book and newspaper article excerpts existed in the public realm. See ECF 35, at 12-13 n.2; ECF 58, at 3. Under Federal Rule of Evidence 201(c)(2), the Court therefore must take judicial notice of that fact-that the book and newspaper articles attached to Defendants' request were published and existed in the public realm at the time of their publication.

The Court is not persuaded, however, that taking judicial notice of the publication of these documents renders Plaintiff's allegations implausible. Defendants argue that the judicially noticed documents disclose the very same information at issue in this lawsuit, and because those documents were published before Defendants' book, Plaintiff's allegation that Defendants disclosed private information is not plausible and the Court may disregard that allegation under Sprewell v. Golden State Warriors, 266 F.3d 979, 988 (9th Cir. 2001) (stating that at the motion to dismiss stage, “[t]he court need not . . . accept as true allegations that contradict matters properly subject to judicial notice or by exhibit”).

Defendants' motion to dismiss includes a table that compares quotations from Defendants' book with quotations from the prior publications (the judicially noticed documents) to show that the information disclosed in Defendants' book was already public when Defendants' book was published. See ECF 28, at 16-20. Some of the quotations from Defendants' book, however, describe Plaintiff's abuse in arguably more graphic detail. See Id. at 17-18. Thus, drawing all reasonable inferences in Plaintiff's favor, the Court does not conclude that the judicially noticed documents contradict Plaintiff's allegation that Defendants disclosed her private information. See Lee, 250 F.3d at 690 (concluding the district court abused its discretion by failing to draw all reasonable inferences in the plaintiff's favor, taking judicial notice of disputed facts stated in public records, and dismissing the plaintiff's claim in part based on those disputed facts).

The Court need not resolve Defendants' objections regarding incorporation by reference because the Court has granted Defendants' request for judicial notice. The Court notes, however, that a complaint must “extensively” refer to a document to incorporate that document by reference or the document must otherwise form the basis for the plaintiff's claims. See Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 1002 (9th Cir. 2018) (“[A] defendant may seek to incorporate a document into the complaint ‘if the plaintiff refers extensively to the document or the document forms the basis of the plaintiff's claim.'” (quoting United States v. Ritchie, 342 F.3d 903, 907 (9th Cir. 2003))). “[T]he mere mention of the existence of a document is insufficient to incorporate the contents of a document.” Coto Settlement v. Eisenberg, 593 F.3d 1031, 1038 (9th Cir. 2010). Here, Plaintiff's Complaint refers to Katherine Clark's book in passing only a few times, which is not “extensive,” and Clark's book does not form the basis of Plaintiff's claims. The Complaint therefore does not incorporate Clark's book by reference.

B. Whether Plaintiff States a Claim for Invasion of Privacy

Defendants object to Judge Beckerman's conclusion that Plaintiff adequately alleged that Defendants disclosed private information. In addition to their argument that the judicially noticed documents render Plaintiff's allegation implausible (addressed above), Defendants argue that under Rule 8, Plaintiff must allege the specific private facts that Defendants allegedly made public. In support of that argument, Defendants cite no binding authority holding that an invasion of privacy claim is subject to dismissal if it does not allege the private information with particularity. See ECF 39, at 12; ECF 55, at 24. Moreover, the non-binding cases Defendants do cite merely stand for the proposition that a conclusory recitation of the elements of an invasion of privacy claim does not withstand a Rule 12(b)(6) motion. See, e.g., Broemer v. United States, 2003 WL 27382055, at *4 (C.D. Cal. Sept. 30, 2003) (“The complaint alleges in conclusory fashion that defendants ‘publicly disclosed private facts about plaintiff, this disclosure was offensive and objectionable to a reasonable person, and not of legitimate public concern.... Defendants, and each of them, have intruded upon plaintiff's seclusion and publicly disclosed private facts on many occasions, over many years.'”).

Plaintiff has done more than merely recite the elements of her privacy claim. See ECF 1, ¶ 10 (“When Emily was young, and for many years, Dr. Fleischer savagely and repeatedly raped and sexually abused Emily.”); id. ¶ 18 (“[T]he Mewshaw Book and the Schein Book specifically name Emily as the victim of Dr. Fleischer's abuse....[T]he Mewshaw Book and the Schein Book also include graphic details of the abuse Emily suffered that had not before been published or otherwise made public.”); id. ¶ 36 (“The facts disclosed in the Schein Book about Emily's sexual abuse are private facts.”). The Court agrees with Judge Beckerman that Plaintiff has adequately alleged disclosure of private information.

Defendants also object to Judge Beckerman's conclusion that Plaintiff adequately alleged the fourth element of her invasion of privacy claim-that the disclosure was wrongful apart from causing Plaintiff emotional distress. Defendants argue that under Anderson v. Fisher Broadcasting Cos., 300 Or. 452 (1986), to allege that the disclosure was...