                                                                           FILED
                            NOT FOR PUBLICATION                             MAY 26 2011

                                                                        MOLLY C. DWYER, CLERK
                    UNITED STATES COURT OF APPEALS                       U .S. C O U R T OF APPE ALS




                            FOR THE NINTH CIRCUIT



RODNEY D. ENGLERT,                               No. 10-35678

              Plaintiff - Appellant,             DC No. 6:05 cv-01863 AA

  v.
                                                 MEMORANDUM *
HEBERT LEON MacDONNELL;
BARTON P. EPSTEIN; STUART H.
JAMES; PATRICIA LOUGH,

              Defendants - Appellees.




                   Appeal from the United States District Court
                            for the District of Oregon
                   Ann L. Aiken, Chief District Judge, Presiding

                        Argued and Submitted May 2, 2011
                                Portland, Oregon

Before:       TASHIMA, BEA, and IKUTA, Circuit Judges.




          *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
      Rodney D. Englert appeals from the district court’s grant of summary

judgment to Herbert Leon MacDonell1 on Englert’s defamation claims. Englert’s

claims against MacDonell are based on 12 documents involving statements

purportedly made between July 1993 and February 2006. We have jurisdiction

under 28 U.S.C. § 1291. We affirm in part and reverse in part.

      1.     As an initial matter, although MacDonell claims that Englert is a

limited-purpose public figure, he has not demonstrated any “particular public

controversy” into which Englert has thrust himself in order to influence the issues

involved. Time, Inc. v. Firestone, 424 U.S. 448, 453 (1976). We conclude that

Englert is not a public figure.

      2.     Englert’s claim is time-barred with respect to five of the statements –

MacDonell’s July 25, 1993, letter; his January 3, 1994, letter; his January 27, 1998,

affidavit; his November 23, 1999, email; and the statements that William Crank

averred that MacDonell made to him – because he was aware of them and their

content more than a year before commencing this action. See Or. Rev. Stat.

§ 12.120(2); Holdner v. Oregon Trout, Inc., 22 P.3d 244, 248 (Or. Ct. App. 2001).




      1
             We adopt the spelling of defendant-appellee MacDonell used
consistently by the parties in their briefs, although it varies from the name in the
caption.

                                          -2-
      3.     Further, there is no evidence that MacDonell was responsible for two

of the statements – a notice left for jurors at a trial in Idaho and a newspaper article

that does not directly attribute a quote to MacDonell – so Englert has not created a

genuine issue of material fact that MacDonell has defamed him with respect to

those statements.

      4.     In addition, MacDonell’s letter of March 27, 2000, as well as the

statements that Jim J. Thomas and David J. Castle averred that MacDonell made to

them, are statements of opinion that do not imply assertions of objective fact, and

are accordingly not actionable. See, e.g., Partington v. Bugliosi, 56 F.3d 1147,

1153 (9th Cir. 1995).

      5.     The remaining statements – MacDonell’s emails of June 28, 2003, and

October 8, 2003 – are both capable of defamatory meaning under Oregon law.

See, e.g., Rajneesh Found. Int’l v. McGreer, 737 P.2d 593, 594 (Or. 1987).

      6.     Accordingly, we affirm the judgment of the district court with respect

to 10 of the 12 allegedly defamatory statements, but reverse as to the final two

statements – the emails of June 28, 2003, and October 8, 2003 – and remand for

further proceedings consistent with this disposition. Each party shall bear his own

costs on appeal.

AFFIRMED in part, REVERSED in part, and REMANDED.


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