2015 ORS 31.150¹
Special motion to strike
  • when available
  • burden of proof

(1) A defendant may make a special motion to strike against a claim in a civil action described in subsection (2) of this section. The court shall grant the motion unless the plaintiff establishes in the manner provided by subsection (3) of this section that there is a probability that the plaintiff will prevail on the claim. The special motion to strike shall be treated as a motion to dismiss under ORCP 21 A but shall not be subject to ORCP 21 F. Upon granting the special motion to strike, the court shall enter a judgment of dismissal without prejudice. If the court denies a special motion to strike, the court shall enter a limited judgment denying the motion.

(2) A special motion to strike may be made under this section against any claim in a civil action that arises out of:

(a) Any oral statement made, or written statement or other document submitted, in a legislative, executive or judicial proceeding or other proceeding authorized by law;

(b) Any oral statement made, or written statement or other document submitted, in connection with an issue under consideration or review by a legislative, executive or judicial body or other proceeding authorized by law;

(c) Any oral statement made, or written statement or other document presented, in a place open to the public or a public forum in connection with an issue of public interest; or

(d) Any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(3) A defendant making a special motion to strike under the provisions of this section has the initial burden of making a prima facie showing that the claim against which the motion is made arises out of a statement, document or conduct described in subsection (2) of this section. 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. If the plaintiff meets this burden, the court shall deny the motion.

(4) In making a determination under subsection (1) of this section, the court shall consider pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(5) If the court determines that the plaintiff has established a probability that the plaintiff will prevail on the claim:

(a) The fact that the determination has been made and the substance of the determination may not be admitted in evidence at any later stage of the case; and

(b) The determination does not affect the burden of proof or standard of proof that is applied in the proceeding. [Formerly 30.142; 2009 c.449 §1]

Notes of Decisions

Require­ment that special mo­tion to strike be treated as mo­tion to dismiss under ORCP 21A incorporates require­ment that mo­tion be filed before responsive pleading. Horton v. Western Protector Insurance Co., 217 Or App 443, 176 P3d 419 (2008)

Appellate review of denial of special mo­tion to strike is available only if mo­tion is limited to purely legal issues and disputed or undisputed facts are imma­te­ri­al. Staten v. Steel, 222 Or App 17, 191 P3d 778 (2008), Sup Ct review denied

Where plaintiffs requested that defendant television news broadcaster not air footage showing plaintiffs likenesses to protect plaintiffs safety and defendant did air footage, plaintiffs claims arose out of defendants con­duct in exercising freedom of speech and plaintiffs claims were subject to special mo­tion to strike under this sec­tion because plaintiffs were unable to demonstrate that plaintiffs were likely to prevail on claims of negligence, neg­li­gent inflic­tion of emo­­tion­al distress or inten­tional inflic­tion of emo­­tion­al distress. Mullen v. Meredith Corpora­tion, 271 Or App 698, 353 P3d 598 (2015)


1 Legislative Counsel Committee, CHAPTER 31—Tort Actions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors031.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 31, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano031.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.