Opinion
Civil No. 00-1168-KI
December 5, 2000
Craig A. Crispin, Crispin Associates, 9600 S.W. Oak Street, Suite 280, Portland, Oregon 97223-3236,
Shelley Dennis Russell, Crispin Associates, 280 Plaza West, 9600 S.W. Oak Street, Portland, Oregon 97223, Attorneys for Plaintiff
John F. McGrory, Jr., Davis Wright Tremaine LLP, 1300 S.W. 5th Avenue, Suite 2300, Portland, Oregon 97201, Attorney for Defendant
OPINION AND ORDER
Plaintiff Laurie Volm, a lactation consultant, alleges numerous claims against defendants contending that they acted in a manner intended to prohibit competition for lactation consulting services. Before the court is defendants' motion to dismiss (#16) two of Volm's claims.
LEGAL STANDARDS
A motion to dismiss under Rule 12(b)(6) will only be granted if it "appears beyond doubt that the plaintiff can prove no set of facts in support of his complaint which would entitle him to relief" Gilligan v. Jamco Development Corp., 108 F.3d 246, 248 (9th Cir. 1997). Normally, the review is limited to the complaint, and all allegations of material fact are taken as true and viewed in the light most favorable to the non-moving party. Id.
DISCUSSION
I. Unfair Trade Practices Act
Defendants contend that Volm cannot state a claim under the Unfair Trade Practices Act ("UTPA"), ORS 646.608(1)(h), because the act only protects consumers, not businesses in competition with another. Volm contends that the UTPA provides a claim to any person damaged by a violation of the act. She refers to the following portions of the act:
A person engages in an unlawful practice when in the course of the person's business . . . the person . . . [d]isparages the goods, services, property or business of a customer or another by false or misleading representations of fact.
ORS 646.608(1)(h).
[A]ny person who suffers any ascertainable loss of money . . . as a result of willful use or employment by another person of a method, act or practice declared unlawful by ORS 646.608, may bring an individual action in an appropriate court . . .
ORS 646.638(1). "Person" includes natural persons, corporations, partnerships, etc. ORS 646.605(4).
Defendants cite several cases which generally hold that the UTPA does not apply to commercial transactions and its primary purpose is to protect consumers rather than businesses. See Graham v. Kold Kist Beverage Ice, Inc., 43 Or. App. 1037, 607 P.2d 759 (1979) (sale of ice machine to a grocery store). Those cases, however, do not construe the section of the UTPA relied upon by Volm. By its express terms, this section of the UTPA does appear to protect the business of another, such as Volm. The act's primary purpose of consumer protection is apparently fulfilled by reducing incorrect information which may confuse the decisions of consumers when they choose a vendor or service provider. The motion against the UTPA claim is denied.
II. Breach of the Implied Covenant of Good Faith and Fair Dealing
Defendants contend that Volm's ninth claim for relief, for the breach of the implied covenant of good faith and fair dealing, fails to state a claim because no contract exists between Volm and any of the defendants.
Under Oregon law, every contract imposes upon each party a duty of good faith and fair dealing in its performance and enforcement. The duty, however, does not extend to the formation of a contract. Tolbert v. First National Bank of Oregon, 312 Or. 485, 492, 823 P.2d 965 (1991).
Volm apparently argues that a contract originally existed between her and defendant Legacy Meridian Park Hospital ("LMPH") and/or Dr. Schrinsky when she was first granted privileges . . . In organizing an effort to oust her from LMPH, Volm contends that all defendants breached their duty of good faith and fair dealing.
The only paragraph in the amended complaint which possibly alleges a contract is the following:
19. In or about 1998, defendant MPH required plaintiff to become credentialed to perform rounds on patients of Lake Grove Women's Clinic. Plaintiff was granted credentials to provide services at MPH under the supervision of Dr. Daniel Schrinsky. Dr. Schrinsky is employed by Lake Grove Women's Clinic and has been granted privileges to provide gynecological and obstetrical services at MPH.
Although I am having trouble understanding what possible contracts exist here, if any, I will deny the motion to dismiss the claim and allow discovery to determine more of the facts. Defendants may raise the issue again in a motion for summary judgment.
CONCLUSION
Defendants' motion to dismiss (#16) two of Volm's claims is denied.