Opinion
3:23-cv-01308-AR
04-29-2024
AHBINESH RAY, Plaintiff, v. WALMART INC., a Delaware corporation, Defendant.
FINDINGS AND RECOMMENDATION
JEFF ARMISTEAD, United States Magistrate Judge.
Plaintiff Ahbinesh Ray shopped at defendant Walmart, Inc.'s store, where he purchased items, left his purchased items behind, and returned later to retrieve them. Ray asserts that when he returned, a Walmart manager refused to allow him to retrieve his items, said he looked like a terrorist, physically forcibly removed him from the store, and told him not to return. Ray brings this action against Walmart, alleging intentional infliction of emotional distress (IIED) and discrimination under 42 U.S.C. § 2000a. Before the court are Walmart's partial motion to dismiss Ray's IIED claim under Federal Rule of Civil Procedure 12(b)(6) and Ray's Motion to Strike the Declaration of Stephan L. Kendall. As explained below, Ray's motion to strike is GRANTED IN PART and DENIED IN PART and Walmart's partial motion to dismiss should be GRANTED.
BACKGROUND
On February 25, 2022, Ray went to Walmart with his son and bought a tire repair kit and several food items. (Am. Compl. ¶ 3, ECF No. 11.) Ray's son inadvertently left the purchased items in the store, and Ray returned about 15 minutes later to retrieve them. Ray sought permission from a store employee to retrieve his items and was referred to a store manager, who was busy at the time. (Id.) Ray purchased a second tire repair kit and encountered the manager while he was leaving the store. (Id. ¶¶ 4-5.)
The manager recognized Ray from a prior incident Ray had with store personnel and said, “Oh, it's you the drama person.” The manager then said that Ray looked like a terrorist “apparently” because of his baseball cap, hooded sweatshirt, and face mask. (Id. at ¶ 5.) Ray politely asked the manager for permission to take his previously purchased items; the manager told him to leave the store without them. (Id.) When Ray refused to leave without his purchased items, the manager called security. The security guard, who was wearing a holstered gun, grabbed Ray's right arm, twisted it behind his back, and physically forced him out of the store without a refund. Subsequently, Ray was given a notice of exclusion from the store. (Id. ¶ 6.)
On August 7, 2023, Ray filed this action in Multnomah Count Circuity Court alleging two claims: (1) IIED and (2) discrimination under 42 U.S.C. § 2000a. Ray asserts that he was intentionally insulted and humiliated because Walmart's manager told Ray he looked like a terrorist; refused to allow him to retrieve his purchased items or issue a refund; physically evicted him from the store with a visibly armed security guard; called the police; and issued a notice of exclusion without justification. (Id. ¶ 7.) On September 8, 2023, Walmart removed the action to this court and now moves to dismiss the IIED claim. (Not. of Removal, ECF No. 1.)
PRELIMINARY PROCEDURAL MATTERS
Before analyzing the merits of the motion, the court considers Ray's motion to strike the declaration of Stephan L. Kendall filed in support of Walmart's motion. Kendall's declaration includes an affidavit with four attached exhibits: consisting of two unreported cases from the District of Oregon, Williamson v. Munsen Paving LLC, No. CV 09-735-AC, 2010 WL 1063575 (D. Or. Mar. 2, 2010), and Dameworth v. Pope & Talbot, Inc., No. CIV. 07-6159-AA, 2007 WL 3171262 (D. Or. Oct. 25, 2007) (Exhibits 1 and 2), and two emails exchanged between the parties' attorneys (Exhibits 3 and 4). Ray argues that the exhibits attached to Kendall's declaration are not considered under Rule 12(b)(6) unless the court treats the motion as one for summary judgment. Walmart concedes that the use of the emails is improper and should not be considered by the court when evaluating this motion, but it contends that the unpublished cases are permissible and were submitted for the court's convenience. (Def.'s Reply at 2, ECF No. 20.) Ray's motion to strike is granted in part and denied in part.
As for the judicial opinions attached to Kendall's declaration, the court observes that attaching them to a declaration to a motion to dismiss and moving to strike them by plaintiff are efforts that are unnecessary and a burden on the court's time. The court has access to the attached cases by either Westlaw or its document management system. Further, the court conducts its own research of the cases on which the parties rely and can determine their relevance. Although a printout of a case in a supplemental memorandum of authorities is sometimes convenient for the court, for a motion to dismiss, it is not helpful. With that said, the court must decide the motion to strike and, because it must do so, denies the motion to strike the attached cases. FED. R. EVID. 201(b)(1)-(2) (“Under Federal Rule of Evidence 201, a court may take judicial notice of matters of public record that are “not subject to reasonable dispute” and “whose accuracy cannot be reasonably be questioned.”). The court strikes the emails contained in Exhibits 3 and 4, and excludes them from its consideration of Walmart's partial motion to dismiss.
LEGAL STANDARD
To survive a motion to dismiss, “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007)). “A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a probability requirement, but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (internal quotation marks omitted). The court must accept as true all well-pleaded factual allegations in the complaint and construe all reasonable inferences in the plaintiff's favor. Mashiri v. Epsten Grinnel & Howell, 845 F.3d 984, 988 (9th Cir. 2017); see also Iqbal, 556 U.S. at 679. To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011).
DISCUSSION
Under Oregon law, to state a claim for IIED, “a plaintiff must plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.” McGanty v. Staudenraus, 321 Or. 532, 543 (1995). Socially intolerable conduct is conduct that is “outrageous in the extreme.” Patton v. J.C. Penney Co., 301 Or. 117, 124 (1986). To meet the “outrageous in the extreme standard,” a plaintiff must plead conduct that is something more than “rude, boorish, tyrannical, churlish and mean,” id., or “the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life,” Hall v. The May Dept. Stores, 292 Or. 131, 135 (1981).
“Whether the conduct alleged is sufficiently extreme or outrageous to be actionable is a fact-specific inquiry, one to be made on a case-by-case basis considering the totality of the circumstances.” Delaney v. Clifton, 180 Or.App. 119, 130 (2002) “Although it is the role of the jury to determine the extent of social norms, in the context of an IIED claim, the court may be required to determine whether no reasonable jury could find the defendant's conduct to have exceeded all bounds of socially tolerable harm.” McManus v. Auchincloss, 271 Or.App. 765, 781 (2015); Clemente v. State, 227 Or.App. 434, 255 (2009) (providing that on a motion to dismiss an IIED claim, the court, “functioning as a gatekeeper,” must determine if a reasonable jury could conclude the alleged conduct is “outrageous”). In doing so, the court examines several factors, including the relationship between the parties, whether the conduct was undertaken for an ulterior purpose or to take advantage of an unusually vulnerable individual, or occurred in a public setting or within the employment context. House v. Hicks, 218 Or.App. 348, 360 (2008); Rosenthal v. Erven, 172 Or.App. 20, 24 (2001). The “relationship between a defendant and the victim of the alleged tort is one that imposes on the defendant a greater obligation to refrain from subjecting the victim to abuse, fright, or shock than would be true in arm's-length encounters among strangers.” McGanty, 321 Or. at 547-48 (quoting Hall, 292 Or. at 137). The Oregon Supreme Court deems that relationship a “special relationship.” Id. at 545.
Walmart argues that Ray's IIED claim fails as a matter of law because, even if proven, no reasonable jury could find its conduct was “outrageous in the extreme.” Walmart contends that, because no special relationship existed between it and Ray, the manager's conduct was, at worst, “insulting, rude, boorish, tyrannical, churlish, and mean” and does not constitute “an extraordinary transgression of the bounds of socially tolerable behavior.” (Mot. to Dismiss at 47, ECF 12 (citing Trout v. Umatilla Co. School. Dist., 77 Or App. 95, 101 (1995), Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or.App. 234, 237 (1992), and Snyder v. Sunshine Dairy, 87 Or.App. 215 (1987).)
Ray responds that his IIED claim alleges sufficiently outrageous behavior. Walmart's conduct was extreme because, in Ray's view, he alleges more than insults - the manager refused to return his property, forced him to leave a public store, escorted him from the store by an armed guard, and banned him from returning. (Pl.'s Resp. at 3, ECF 18.) Ray contends that an IIED claim may arise out of a single confrontation, citing Babick v. Or. Arena Corp., 333 Or. 401 (2002), Hall, 292 Or. 131, and Williams v. Tri-County Metro. Transp. Dist. of Or., 153 Or.App. 686, 694 (1998). Recognizing that most IIED claims involve special relationships, Ray contends it is not dispositive, and that the court should find that a special relationship exists between a customer and a retailer.
Before the court proceeds to determining whether Walmart's conduct exceeded socially tolerable behavior-the third element of an IIED claim-it first observes that Ray's pleading fails on the first element-whether Walmart intended to cause Ray severe emotional stress. As to that element, Ray merely pleads that Walmart's actions “were intended to” cause his severe emotional distress. (Am. Compl. ¶ 7.) That allegation is a “simple recitation” of the first element that lacks sufficient allegations of underlying facts to permit Walmart to defend itself. See Starr, 652 F.3d at 1216 (holding that “to be entitled to the presumption of truth, allegations in a complaint or counterclaim may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively”). On that basis, Ray's IIED claim fails to plead a claim under the pleading standards articulated by the Ninth Circuit and the Supreme Court.
Turning to Walmart's argument that its conduct as pleaded by Ray did not extraordinarily transgress the bounds of socially acceptable behavior, the court pauses to note that the parties' arguments focus on matching or distinguishing the facts of this case with Oregon case law. That approach is of limited usefulness because assessing whether alleged conduct is sufficiently extreme or outrageous is a case-by-case endeavor and based on the totality of the circumstances. See State v. Sierra, 349 Or. 506, 515, 254 P.3d 149, 154 (2010), aff'd as modified, 349 Or. 604 (2011) (“Fact-matching can be a misleading enterprise.”); State v. Miller, 319 Or.App. 32, 50 n.2, review denied, 370 Or. 197, 514 P.3d 1119 (2022) (Powers, J, dissenting) (noting that “factmatching when weighing the totality of the circumstance is a fraught business”). That is, when evaluating all the conduct, it is of little benefit in focusing on one aspect of conduct, such as the number of confrontations.
With that said, the court considers whether there was a special relationship, as Oregon courts have emphasized the importance of a special relationship when assessing the outrageousness of conduct for an IIED claim. The court rejects Ray's undeveloped and authority-free contention that a customer and a retailer have a special relationship. As noted, the Oregon Supreme Court in McGanty instructed that outrageous or extreme conduct is informed by whether a defendant has a special obligation to refrain from “subjecting the victim, fright, or shock than would be true in arm's-length encounters among strangers.” McGanty, 321 Or. at 547-48. In the typical encounter between retailer and customer, the retailer has no such obligation-it is the definition of an arm's-length encounter between strangers.
The court agrees with Walmart that, because a special relationship creates a greater obligation to refrain from subjecting a person to socially intolerable behavior, the absence of a special relationship creates a heightened standard for what is considered conduct “beyond the farthest reaches of socially tolerable behavior.” Hall, 292 Or. at 137. And, under that heightened standard, Ray's claim fails to plead facts sufficient for the court to determine that Walmart's conduct was an extraordinary transgression outside the bounds of socially tolerable conduct. As pleaded, the Walmart store manager insulted Ray; refused to permit Ray to take a purchase he had previously left in the store or give him a refund; when Ray refused to leave, had an armed security guard physically escort Ray outside the store by grabbing and twisting Ray's right arm; and banned Ray from the store. Those facts, viewed in the light most favorable to Ray, evince poor customer service at best and offensive conduct at worst. But that offensive conduct nevertheless does not exceed the high threshold of the extraordinary transgression of socially tolerable conduct for an IIED claim under Oregon law. For this reason as well, Walmart's motion to dismiss Ray's IIED claim should be granted.
Walmart also argues that the claim should be dismissed with prejudice and Ray should not be given leave to amend because doing so would require a “complete overhaul of the complaint with vastly different facts” and is therefore futile. (Def.'s Mot. to Dismiss at 4-7, ECF 12; Def.'s Reply at 5, ECF No. 20.) “Whether to grant leave to amend is committed to the sound discretion of the district court.” United Bhd. of Carpenters & Joiners of Am. v. Bldg. & Constr. Trades Dep't, AFL-CIO, 770 F.3d 834, 845 (9th Cir. 2014). If a complaint fails to state a plausible claim, “[a] district court should grant leave to amend even if no request to amend the pleading was made, unless it determines that the pleading could not possibly be cured by the allegation of other facts.” Lopez v. Smith, 203 F.3d 1122, 1130 (9th Cir. 2000) (en banc) (internal quotation marks and citation omitted). Moreover, district courts should liberally give leave to amend “if it appears at all possible that the plaintiff can correct the defect.” Id. (citation omitted).
The court disagrees with Walmart that amending the complaint would be futile. For Ray's claim of racial discrimination (which Walmart does not move to dismiss), he alleges that he “has dark skin and speaks English with an accent” and that Walmart's actions were motivated in part because of his skin color and his national origin. If Ray were to allege that his race and national origin informed the manager's terrorist comment and the store's subsequent conduct of physically and forcibly removing him from the store, then the court cannot say as a matter of law that Walmart's conduct was not “outrageous in the extreme.”
The court notes, however, that Ray pleads that the manager told him that he “looked like a terrorist apparently because he wore a baseball cap and a hood from a hooded sweatshirt over it as well as a mask to limit his exposure to Covid.” (Am. Compl. ¶ 5 (emphasis added).) The court is unclear on what Ray means by “apparently.” If Ray means to say that the manager articulated those reasons to explain why he called him a terrorist yet those reasons did not explain the full extent of why the comment was said, then he can amend. But if “apparently” is meant to convey what Ray understood the manager's comments to mean, then that would foreclose amending the IIED claim to include his race and national origin as informing the manager's comment and the store's subsequent actions. With that caveat, the court recommends that Ray's IIED claim be dismissed with leave to amend.
CONCLUSION
For the above reasons, Walmart's Motion to Dismiss Claim 1 (ECF No. 12) should be GRANTED, without prejudice; Ray's Motion to Strike (ECF No. 17) is GRANTED IN PART and DENIED IN PART.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due within 14 days. If no objections are filed, the Findings and Recommendation will go under advisement on that date. If objections are filed, a response is due within 14 days. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.