Opinion
6:21-cv-01231-MK
09-30-2022
RANDY THOMPSON, Plaintiff, v. WALKER PATTERSON INMAN III, Defendant.
FINDINGS AND RECOMMENDATION
Mustafa T. Kasubhai United States Magistrate Judge
Plaintiff Randy Thompson filed this lawsuit in Lincoln County Circuit Court alleging various violations of Oregon law. Def.'s Not. Removal, Ex. 1, ECF No. 1 at 5-35 (“Compl”). Defendant Patterson Inman III removed to this Court and has moved to dismiss all of Plaintiff's claims. Def. Walker Patterson Inman III's Mot. Summ. J. & Dismiss, ECF No. 22 (“Def.'s Mot.”). After filing the pending motion before the Court, Defendant's counsel filed a motion to withdraw, which the Court granted. ECF No. 26. In the order granting the motion, the Court also granted Plaintiff an extension of time to obtain counsel or respond to the motion:
Defendant's motion seeks dismissal under both Rule 12(b)(6) and Rule 56(c). Because the Court declines to rely on evidence outside of the Complaint in reaching its recommendation, the Court treats Defendant's motion solely as a motion to dismiss. Further, given Plaintiff's pro se status, he should be permitted to cure, if possible, the deficiencies in the Complaint.
Plaintiff's motion for an extension of time [24] to file a response to Defendant's motion for summary judgment and request for 90 days to obtain counsel is also granted. The Court will hold Defendant's motion for summary judgment [22] in abeyance until 6/16/2022. In
the event Plaintiff is unable to obtain counsel, Plaintiff's response to Defendant's motion for summary judgment is due 6/16/2022. Defendant may file an optional reply by 6/30/2022.Id. In late May 2022, after Defendant sent Chambers staff and non-parties to this lawsuit a flurry of emails, the Court entered the following order:
Over the last several days, Defendant has contacted Court staff and a host of other non-parties to this lawsuit via e-mail and voicemail. Defendant is ORDERED to have no further contact with Court staff. All filing of pleadings and papers must be done in compliance with the Local Rules of Civil Procedure, which are available at: https://ord.uscourts.gov/index.php/rules-orders-and-notices/local-rules/civil-procedure.ECF No. 28.
Defendant ignored that Order. He continued to email Chambers staff and non-parties to this lawsuit, directly contacting Court staff more than forty times regarding various allegations relating to government and non-government entities unrelated to this lawsuit.
On June 17, 2022, Plaintiff filed an opposition to Defendant's motion. See Resp. Mot. Summ. J., ECF No. 30. Plaintiff has also filed several other motions. See e.g., Mot. Remand to State Court, ECF No. 6; Mot. Supplement, ECF No. 8; Mot. Independent Mental Health Examination, ECF No. 20; First Mot. Expedite or Accelerate, ECF No. 32; Second Mot. Expedite or Accelerate, ECF No. 33.
To the extent Plaintiff's response to Defendant's motion to dismiss is a request for an appointment of pro bono counsel, the request is denied as the Court concludes exceptional circumstances in this case are not present because Plaintiff has not demonstrated a likelihood of success on the merits and has demonstrated an ability to adequately articulate his claims in light of the complexity of the legal issues involved. See Agyeman v. Corrections Corp. of Am., 390 F.3d 1101, 1103 (9th Cir. 2004); 28 U.S.C. § 1915(e)(1).
As explained in more detail below, Defendant's motion to dismiss should be GRANTED. As a result, the remaining motions filed by Plaintiff should be DENIED as moot.
BACKGROUND
After a thorough and careful review of Plaintiff's claims, the Court understands the relationship between the parties initially arose out of a custody dispute. See generally Compl. ¶ 5. Defendant is one of the last surviving heirs of Doris Duke. Id. at ¶ 16. Plaintiff was married to Defendant's mother when Defendant was a young child. Def.'s Mot. 2. A Wyoming family court ordered that Plaintiff and his twin sister not have contact with Defendant. See id., Ex. 2. Plaintiff fought vigorously to keep the children with him and their mother. Compl. ¶ 12.
The Court's references to material outside of the Complaint are solely to provide background.
While Defendant was still a minor, Plaintiff alleges he “help[ed]” Defendant by providing “education, mentoring and life skills to prepare [Defendant] to live on his own.” Id. ¶ 21. By the time Defendant turned eighteen, Plaintiff was living rent-free with Defendant in a home paid for by a trust of which Defendant was the beneficiary in Lincoln City, Oregon. Id. at ¶ 26. Plaintiff alleges that Defendant “requested [Plaintiff] continue to help [Defendant] prepare to live independently without assistance by the time [Defendant] reached [twenty-one].” Id. at ¶ 23. Plaintiff alleges that he was “employed by Defendant . . . and worked under the title of ‘Personal Assistant and life coach.'” Id. at ¶ 24. Plaintiff also alleges that he “was to receive one million dollars upon [Defendant] reaching the age of 21.” Id. ¶ 25.
Plaintiff alleges that he sent requests for Defendant to pay final wages on February 20, 2018, and again on May 9, 2019. Compl. ¶ 38, 44. Plaintiff alleges that he confronted Defendant about Defendant sexually assaulting a young woman, which Defendant denied. Id. at ¶ 35. After this confrontation, Plaintiff alleges that “Defendant was angry, made threats [and] verbally abused” Plaintiff. Id. Defendant left Oregon before the Complaint in this case was filed and has not returned to the state. See Not. Removal at 2. The entity that owns the Lincoln City property filed an eviction notice against Plaintiff in 2018. Def.'s Mot., Ex. 5.
Plaintiff's lawsuit seeks to recover more than $11,000,000 from Defendant on the theory that Defendant was Plaintiff's “employer” while Plaintiff was living with him. The Complaint also alleges that Defendant sexually harassed Plaintiff over four years ago. Compl. ¶ 29-31. The Complaint alleges six different claims:
• Sexual harassment: Or. Rev. Stat. (“ORS”) § 659A.030, ¶¶ 53-59 (Claim I);
• Hostile work environment: ORS § 659A.030, ¶¶ 60-67 (Claim II);
• Sex discrimination: ORS § 659A.030, ¶¶ 68-74 (Claim III);
• Retaliation: ORS § 659A.030(1)(f) and ORS § 659A.199, ¶¶ 75-82 (Claim IV);
• Intentional infliction of emotional distress (“IIED”), ¶¶ 83-90 (Claim V); and
• Failure to pay wages: ORS §§ 653.055 and 653.261, ¶¶ 91-93 (Claim VI).
STANDARD OF REVIEW
Where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. Fed.R.Civ.P. 12(b)(6). To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes of the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Nevertheless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the Pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). A Pro se plaintiff's claims may be dismissed with prejudice only where it appears beyond doubt the plaintiff can prove no set of facts that would entitle them to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
Defendant argues dismissal is appropriate on all of Plaintiff's claims for four reasons. First, Defendant argues that Plaintiff never properly served the summons in this case under the Federal Rules of Civil Procedure and their Oregon counterpart. Second, Defendant asserts that Plaintiff's first four claims are time-barred. Third, Defendant contends that the Complaint fails to allege sufficient facts to establish that Defendant was Plaintiff's employer. Finally, Defendant maintains that Plaintiff has failed to sufficiently plead an IIED claim. Because the Court concludes that dismissal is appropriate in light of Defendant's alternative arguments, the Court declines to reach the service of process argument.
I. Statute of Limitations
Oregon law provides that “a civil action alleging an unlawful employment practice . . . must be commenced within one year after the occurrence of the unlawful employment practice unless a complaint has been timely filed under ORS [§] 659A.820[.]” ORS § 659A.875(1).
ORS § 659A.875 was amended by the Oregon Workplace Fairness Act, Senate Bill 726, which extended the statute of limitations for claims arising under O.R.S. § 659A.030. See S.B. 726, § 6(b), 80th Leg., Reg. Sess. (Or. 2019) (“A civil action . . . alleging a violation of ORS 659A.030 . . . must be commenced not later than five years after the occurrence of the alleged violation[.]”). However, the amendment applies only to “conduct prohibited by ORS 659A.030 . . . occurring on or after the effective date of this 2019 Act [September 29, 2019].” Id. § 10. Because the latest occurring incidents occurred before September 2019, the one-year statute of limitation applies.
Here, the latest incidents that potentially violate Oregon's unlawful discrimination in employment laws (sexual harassment, hostile work environment, sex discrimination, and retaliation) occurred no later than January 19, 2018, the date of Plaintiff's alleged termination. Compl. ¶ 37 (“On or about January 19, 2018, [Defendant] informed [Plaintiff] he would be terminating all employee services.”); Bond v. Shriners Hosp. for Child., No. 3:20-cv-01943-SB, 2021 WL 1343058, at *5 (D. Or. Mar. 1, 2021) (finding the “latest incident of alleged discrimination and retaliation occurred” for purposes of ORS § 659A.875(1) on the date of the plaintiff's termination), adopted, 2021 WL 1341854 (D. Or. Apr. 9, 2021), appeal dismissed, No. 21-35340, 2022 WL 1421050 (9th Cir. Mar. 31, 2022).
Accordingly, Plaintiff had until January 19, 2019, to timely bring suit. Because Plaintiff filed his Complaint on April 21, 2021-more than two years after the statute of limitations had run-his first, second, third, and fourth claims should be dismissed as time-barred. See Battan v. Allwest Underground, Inc., No. 08-cv-707-BR, 2008 WL 4191467, at *2-3 (D. Or. Sept. 5, 2008) (dismissing Pro se employment claims as untimely).
II. Adequacy of Pleading Employer Relationship
“‘[E]mployer' as it is used in chapter 659A . . . means any person who in this state, directly or through an agent, engages or uses the personal service of one or more employees, reserving the right to control the means by which such service is or will be performed.” Burley v. Clackamas Cnty., 298 Or.App. 462, 465 (2019). “Oregon's right-to-control test requires courts to weigh four factors: (1) direct evidence of the right to, or exercise of, control; (2) the furnishing of tools and equipment; (3) the method of payment; and (4) the right to fire.” Slayman v. FedEx Ground Package Sys., Inc., 765 F.3d 1033, 1042 (9th Cir. 2014) (citation omitted).
For claims brought under ORS §§ 653.055 and 653.261, “‘[e]mployer' means any person who employs another person [and] ‘[e]mploy' includes to suffer or permit to work ....” Cejas Com. Interiors, Inc. v. Torres-Lizama, 260 Or.App. 87, 93-94 (2013) (quoting ORS § 653.010(2)-(3)). Cejas instructed courts to apply “the economic-realities test to determine whether a given relationship is an employment relationship under ORS 653.010(2).” Id. At 103. Cejas explained that:
[T]he economic-realities test is recognized to be broader than common-law tests for employment.... The test represents a rejection of the common-law definition of employment, which is based on limiting concepts of control and supervision. Instead, the focus of the test is whether an entity has functional control over workers even in the absence of the formal control that is the focus of common-law tests. The goal of the economic-realities test is to determine whether, as a matter of economic reality, the worker is dependent on the putative employer.Id. at 95 (citations, quotations, and bracketing omitted). “The economic realities test generally entails consideration of four factors: whether an alleged employer (1) has the power to hire and fire the alleged employee; (2) controls employee work schedules or conditions of employment; (3) determines the wage rate and method of payment; and (4) maintains employment records.” Justice v. Rockwell Collins, Inc., 117 F.Supp.3d 1119, 1136 n.8 (D. Or. 2015) (citing Cejas, 260 Or.App. 87, 106-07), aff'd, 720 Fed.Appx. 365 (9th Cir. 2017).
The Complaint here fails to allege facts that would allow the Court to infer that Defendant was Plaintiff's employer under either the “right to control” or “economic realities” tests. Although the Complaint alleges facts that would allow the Court to infer that Defendant had ultimate hiring and firing authority, it does not sufficiently allege facts that permit an inference regarding control over Plaintiff's purported working conditions. See Iqbal, 556 U.S. 662, 680-81 (explaining that bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true”).
For example, the Complaint vaguely alleges that Defendant served as “personal Assistant and life coach” to Plaintiff and was to provide “24/7 in home services[.]” Compl. ¶ 23-24. However, there is no allegation the parties entered into an employment contract or allegations as to the specific services Plaintiff would perform. The only allegations that relate to Plaintiff's purported job duties is the general reference that Plaintiff would “continue to help [Defendant] prepare to live independently” until Plaintiff reached the age of twenty-one. Id. ¶ 23. Without more, the Court is unable to conclude that Defendant was Plaintiff's employer under either of the relevant tests.
As such, Plaintiff's unlawful discrimination claims, as well has his failure to pay wages claim, should be dismissed because the Complaint fails to allege facts that would allow the Court to infer that Defendant was in fact Plaintiff's employer.
III. Intentional Infliction of Emotional Distress
A. Statute of Limitations
Under Oregon law, claims for intentional infliction of emotional distress are subject to a two-year statute of limitations. See ORS § 12.110(1); see also Ramirez v. Adventist Med. Ctr., No. 3:17-cv-831-SI, 2017 WL 4798996, at *5 (D. Or. Oct. 24, 2017).
Because Plaintiff filed this lawsuit on April 21, 2021, any alleged conduct that occurred that pre-dates April 21, 2019, cannot form the basis for Plaintiff's IIED claim. In other words, because paragraphs four through forty-four describe conduct that occurred from February 2004 through April 2018, that alleged conduct is time-barred. Paragraphs forty-five through fifty-two, however, are not barred by Oregon's statute of limitations.
B. IIED
To establish an IIED claim, a plaintiff must prove: “(1) that defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress; (2) that defendants engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe emotional distress. House v. Hicks, 218 Or.App. 348, 357-58 (2008). Socially intolerable conduct is conduct that is “outrageous in the extreme.” Patton v. J.C. Penney Co., 301 Or. 117, 124 (1986). Conduct that is merely “rude, boorish, tyrannical, churlish and mean does not satisfy that standard, . . . nor do insults, harsh or intimidating words, or rude behavior ordinarily . . . result in liability even when intended to cause distress.” Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or.App. 234, 239 (1992) (quotation marks and citations omitted).
Here, none of the allegations contained in paragraphs forty-five through fifty-two of the Complaint establish an IIED claim. Paragraph forty-five alleges that Defendant failed to pay Plaintiff's employment wages even after receiving a second notice of non-payment. Such behavior, however, does not rise to the level of an extraordinary transgression of the bounds of socially tolerable conduct that would permit an IIED claim. See, e.g., Bodett v. CoxCom, Inc., 366 F.3d 736, 747 (9th Cir. 2004) (concluding that no reasonable jury could find terminating an employee without a severance “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community”).
Paragraphs forty-six through fifty-one, allege that between July and September 2020, Defendant contacted Plaintiff on three occasions with alleged “threats and accusations” via a social media platform. Compl. ¶¶ 45-51. Threats and accusations standing alone, however, are generally not sufficient to establish an IIED claim. See, e.g., Bodett, 366 F.3d at 747 (noting that false accusations alone are insufficient to constitute IIED claim); Pakos v. Clark, 253 Or. 113, 132 (1969) (holding that an officer's comments that the plaintiff was “crazy as a bedbug,” that the officer was going to put him in an asylum, and that the officer was going to take away his children were not extreme or outrageous conduct); Pearson v. U.S. Bank Corp., No. 04-cv-03026-CO, 2004 WL 1857099 (D. Or. Aug. 18, 2004) (accusing the plaintiff of dishonesty and making unfounded accusations against the plaintiff did not to “rise to the requisite level of extreme conduct which the courts have found exceeds the bounds of social toleration”).
Finally, paragraph fifty-two of the Complaint does not describe any specific conduct by Defendant that was intentionally directed at Plaintiff. House, 218 Or.App. at 357-58 (explaining that to establish an IIED claim the defendant must either intend to cause severe emotional distress or know with substantial certainty that their conduct would cause such distress)
In sum, Plaintiff has failed to allege an IIED claim as a matter of law and his fifth claim should be dismissed.
IV. Leave to Amend
“The court should freely give leave [to amend] when justice so requires.” Fed.R.Civ.P. 15(a)(2). District courts have discretion whether to allow amendment. Tracht Gut, LLC v. L.A. Cnty. Treasurer & Tax Collector (In re Tracht Gut, LLC), 836 F.3d 1146, 1151 (9th Cir. 2016) (“‘[T]he grant or denial of an opportunity to amend is within the discretion of the District Court.'”) (quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The Court should permit Plaintiff leave to file a Second Amended Complaint to cure, if possible, the deficiencies outlined above. The Court also reminds Plaintiff that, should he elect to lodge an amended complaint, he must reallege each of his claims, including the specific facts underlying each claim, and that he “may not incorporate any part of [his] prior pleading[s] by reference.” LR 15-1(c).
In the event Plaintiff elects to file a Second Amended Complaint, the Court will permit Defendant to refile a motion to dismiss or for summary judgment, which the Court will take under advisement after the parties have complete briefing.
RECOMMENDATION
For the reasons above, Defendant's motion to dismiss (ECF No. 22) should be GRANTED without prejudice and with leave to amend. Plaintiff's remaining motions (ECF Nos. 6, 8, 20, 32, and 33) should be DENIED as moot. Any amended complaint should be filed no later than fourteen (14) days after the district court's ruling on this F&R. Failure to timely file an amended complaint will result in dismissal of this action.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Federal Rule of Appellate Procedure 4(a)(1) should not be filed until entry of the district court's judgment or appealable order. The Findings and Recommendation will be referred to a district judge. Objections to this Findings and Recommendation, if any, are due fourteen (14) days from today's date. See Fed.R.Civ.P. 72. Failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153, 1157 (9th Cir. 1991).