United States District Court, D. Oregon, Pendleton Division
BRUCE HAMPTON, an individual; VENESE HAMPTON, an individual; and BRUCE HAMPTON, as trustee of the Bruce & Venese Hampton Charitable Trust I and the Bruce & Venese Hampton Charitable Trust II, Plaintiffs,
FRED STEEN, individually and as Sheriff of Wallowa County; WALLOWA COUNTY SHERIFF'S OFFICE, a municipal subdivision of the State of Oregon; WALLOWA COUNTY, a municipal subdivision of the State of Oregon; PAUL CASTILLEJA, individually and as Commissioner of Wallowa County; and LLOYD TRACKWELL, JR., aka Lloyd R. Trackwell, aka Lloyd Ray Trackwell, individually and as an agent and informant for Wallowa County and Wallowa County Sheriff's Office, Defendants.
David H. Angeli, Benjamin N. Souede, Angeli Ungar Law Group LLC, Portland, OR, D. Zachary Hostetter, Hostetter Law Group, LLP, Enterprise, OR, Attorneys for plaintiffs.
Steven A. Kraemer, Leslie A. Edenhofer, Hart Wagner LLP, Portland, OR, Attorneys for defendants Fred Steen, Paul Castilleja, Wallowa County Sheriff's Office, and Wallowa County.
Lloyd Trackwell, Jr. Lincoln, NE, Pro se defendant.
OPINION AND ORDER
ANN AIKEN, Chief District Judge.
Plaintiffs Bruce Hampton, Venese Hampton, and Bruce Hampton as trustee of the Bruce & Venese Hampton Charitable Trust I and the Bruce & Venese Hampton Charitable Trust II (collectively "Hamptons") filed a Third Amended Complaint ("TAC") against defendants Wallowa County Sheriff Fred Steen ("Sheriff Steen"), Wallowa County Commissioner Paul Castilleja ("Commissioner Castilleja"), Wallowa County Sheriff's Office ("WCSO"), Wallowa County (collectively "County defendants"), and pro se defendant Lloyd Trackwell, Jr., a/k/a Lloyd R. Trackwell, a/k/a Lloyd Ray Trackwell ("Trackwell"). The TAC alleges 27 claims under 42 U.S.C. § 1983, the Racketeer Influenced and Corrupt Organization Act ("RICO"), 18 U.S.C. §§ 1961-1968, the Oregon Racketeer Influenced and Corrupt Organization Act ("ORICO"), Or. Rev. Stat. §§ 166.715-166.735, the Oregon Unlawful Debt Collection Practices Act ("OUDCPA"), Or. Rev. Stat. §§ 697.005-697.115, the Fair Debt Collection Practices Act ("FDCPA"), 15 U.S.C. §§ 1692-1692o, and numerous state common law torts.
Before the Court are a total of seven motions by defendants. County defendants move to quash subpoenas (docs. 193 & 195) issued to nonparties Frontier Communications and U.S. Cellular. County defendants and Trackwell separately move to strike portions of the TAC (docs. 155 & 206). Finally, County defendants and Trackwell separately move to dismiss the TAC (docs. 157, 211 & 215) under Fed.R.Civ.P. 12(b)(1), 12(b)(6), and 12(b)(7). For the reasons set forth below, the motions to quash subpoenas are granted, the motions to dismiss are granted, the motions to strike are denied as moot, and this case is dismissed.
Since 2008, the Hamptons and Trackwell have filed numerous lawsuits against one another in this Court and Wallowa County Circuit Court. See Order (doc. 104) at 2 n.1 (summarizing lengthy litigation history). Now, once again, this Court is faced with a lawsuit between the Hamptons and Trackwell related to debt collection attempts by Trackwell. The Hamptons' 44-page TAC includes 92 paragraphs of facts and 27 claims for relief.
In August 2007, Trackwell sought and procured an agreement to serve as an agent for the American Bank of Missouri ("ABM"), to collect a debt allegedly owed by the Hamptons to ABM. TAC ¶ 14. The Hamptons, however, insist they were never indebted to ABM. Id . The Hamptons assert that beginning on September 1, 2008, Trackwell attempted to collect the debt through a series of unlawful activities. Id . ¶ 15. The Hamptons also allege that such attempts by Trackwell occurred without him registering as a debt collector with the Oregon Department of Consumer and Business Services ("ODCBS"), as required by Or. Rev. Stat. § 697.015. Id . ¶ 16.
On September 1, 2008, Trackwell and ABM filed a lawsuit against the Hamptons and others in Wallowa County Circuit Court ("ABM lawsuit") alleging breach of contract, breach of implied covenant of good faith and fair dealing, unjust enrichment, fraudulent conveyance, and fraud. See Compl., American Bank of Missouri et al. v. John Doe et al., Case No. 08-01-12961 (Wallowa Cnty. Cir. Ct. Sept. 1, 2008). The Hamptons argue Trackwell lacked probable cause to initiate and prosecute the ABM lawsuit, and did so with malicious intent. TAC ¶¶ 15, 38. The Hamptons further assert beginning in 2008, Trackwell, along with Sheriff Steen and WCSO, separately filed false reports about them with the ODCBS, Oregon State Police, Oregon Department of Justice, Internal Revenue Service ("IRS"), Federal Bureau of Investigation ("FBI"), Financial Crimes Enforcement Network of the United States Department of Treasury, and the U.S. Observer, alleging they had conspired with Marilyn Suarez, Wallowa Title Company, and others, to commit money laundering, theft, tax evasion, and fraud. Id . II 12, 13, 15.
Beginning July 1, 2009, the Hamptons allege Trackwell conspired with Sheriff Steen, WCSO, and Wallowa County, in his efforts to wrongfully collect the alleged ABM debt from the Hamptons. Id . ¶ 17. Specifically, the Hamptons argue Trackwell became an agent and informant for WCSO, and Sheriff Steen instructed Trackwell to report "everything that squeaks or moves" about the Hamptons. Id . ¶ 34. Also beginning July 1, 2009, the Hamptons allege Trackwell intentionally interfered with the Hamptons' business and contractual relationships with various third parties including the United States Department of Agriculture ("USDA"), the United States Natural Resource Conservation Service ("NRCS"), the Oregon Watershed Enhancement Board ("OWEB"),  Junior and Rose Lewis, The Nature Conservatory, Marilyn Suarez and Wallowa Title Company, First American Title Company, Russ Ruonavaara and the General Land Office in Joseph, Oregon, and Community Bank, and in some cases wrongfully told these third parties the Hamptons were under investigation by various law enforcement agencies. Id . ¶¶ 15, 24-26, 29-31, 33. The Hamptons also allege in August 2009, Trackwell contacted their pastor and other church members at the Joseph Baptist Church and falsely accused the Hamptons of failing to pay their debts, evading taxes, committing fraud, and lying. Id . ¶¶ 15, 27.
On September 1, 2009, the Hamptons filed a lawsuit against Trackwell in Wallowa County Circuit Court ("Hampton lawsuit I") alleging violations of the OUDCPA. See Compl., Hampton v. Trackwell, Case No. 09-09-13224 (Wallowa Cnty. Cir. Ct. Sept. 1, 2009). In April 2010, the Wallowa County Circuit Court consolidated Hampton lawsuit I with ABM lawsuit ("consolidated case"), and Trackwell removed the consolidated case to this Court. See Notice of Removal, Hampton v. Trackwell, Case No. 2:10-01233-SU (D. Or. Oct. 8, 2010). However, the consolidated case was ultimately remanded to Wallowa County Circuit Court by this Court. Hampton v. Trackwell, 2011 WL 653891, *1 (D. Or. Jan. 20, 2011) adopted by 2011 WL 653875, *1 (D. Or. Feb. 14, 2011).
On September 15, 2010, the Hamptons allege Trackwell, in furtherance of a scheme developed by him, Sheriff Steen, and WCSO, drove slowly past the Hampton residence numerous times, in attempts to lure them out of their home and to discredit, defame, and injure them. TAC ¶¶ 15, 22. The Hamptons allege when Trackwell drove past, he video recorded the events and was on a cell phone with Sheriff Steen stating "there may be gunfire." Id . ¶¶ 15, 23. The Hamptons assert this occurred because a hearing was scheduled the next day in Wallowa County Circuit Court to determine whether a Temporary Stalking Order issued against Trackwell should be made permanent. Id . Also in 2010, the Hamptons allege Trackwell contacted their friend and former banker Richard Wood, and falsely accused the Hamptons of failing to pay their debts and committing crimes. Id . ¶¶ 15, 28.
On December 30, 2010, the Hamptons filed a lawsuit against Sheriff Steen in Wallowa County Circuit Court ("Hampton lawsuit II") seeking injunctive relief and a declaratory judgment that certain records in possession of Sheriff Steen constitute nonexempt public records under Or. Rev. Stat. § 192. See Compl., Hampton v. Steen, Case No. 10-12-13446 (Wallowa Cnty. Cir. Ct. Dec. 30, 2010). On April 15, 2011, Trackwell filed a lawsuit against the Hamptons and others in this Court ("Trackwell lawsuit I") alleging violations of 42 U.S.C. §§ 1983 & 1985, conspiracy, and slander. See Compl., Trackwell v. Hampton, Case No. 3:11-cv-00463-MO (D. Or. April 15, 2011).
On May 23, 2011, Trackwell filed a second lawsuit in this Court against the Hamptons, Sheriff Steen, and others ("Trackwell lawsuit II") seeking a declaratory judgment that production of the records sought by the Hamptons in Hampton lawsuit II would violate his rights under the Bank Secrecy Act, 31 U.S.C. § 5113, et seq. See Compl, Trackwell v. Hostetter, Case No. 3:11-cv-00627-MO (D. Or. May 23, 2011). On July 29, 2011, Trackwell voluntarily dismissed Trackwell lawsuit II. See Notice of Voluntary Dismissal, Trackwell v. Hostetter, Case No. 3:11-cv-00627-M0 (D. Or. July 29, 2011).
On December 29, 2011, Judge Michael W. Mosman dismissed from Trackwell lawsuit I various defendant State of Oregon employees for failure to state a claim. See Opinion and Order, Trackwell v. Hampton, Case No. 3:12-cv-00463-MO, 2011 WL 6935325 (D. Or. Dec. 29, 2011). On July 24, 2012, Judge Mosman dismissed Trackwell lawsuit I in its entirety due to Trackwell's failure to serve remaining defendants, including the Hamptons, and for failure to prosecute the action. See Order, Trackwell v. Hampton, Case No. 3:11-cv-00463-MO (D. Or. July 24, 2012). The Hamptons assert Trackwell lacked probable cause to initiate or prosecute Trackwell lawsuits I and II and did so with malicious intent against them. TAC ¶¶ 39-40.
Finally, in 2011, the Hamptons allege Trackwell intentionally interfered with the Hamptons' business relationship with Bill Bushen and the General Land Office in Joseph, Oregon, by falsely accusing the Hamptons of failing to pay their debts and committing crimes. Id . ¶ 15, 32. Also in 2011, the Hamptons assert Commissioner Castilleja joined in the conspiracy. Id . ¶ 19. The Hamptons allege Trackwell, Sheriff Steen, and Commissioner Castilleja, regularly met in the WCSO office in the Wallowa County Justice Center, to coordinate their plans in furthering their conspiracy to discredit, defame, coerce, extort, and injure the Hamptons. Id . ¶ 41.
On July 6, 2011, Trackwell filed bankruptcy petitions in the United States Bankruptcy Court for the District of Oregon, Case No. 11-38050, and the United States Bankruptcy Court for the District of Nebraska, Case No. 11-41830 ("Trackwell bankruptcy cases"). TAC ¶ 52. The Hamptons allege these bankruptcy petitions were fraudulent. Id . On or about August 10, 2012, the Hamptons assert Trackwell, Sheriff Steen, Commissioner Castilleja, and others, caused the U.S. Observer to publish an article containing false statements about the Hamptons, in furtherance of defendants' scheme to discredit, defame, coerce, extort, humiliate, and injure the Hamptons. Id . ¶ 54. On or about October 8, 2012, the Hamptons allege Sheriff Steen caused the U.S. Observer to publish an article stating Sheriff Steen "was going to be making arrests [of the plaintiffs and others] soon" in furtherance of defendants' scheme to discredit, defame, coerce, extort, humiliate, and injure the Hamptons. Id . ¶ 55.
In 2010 and 2011, the Hamptons sought a civil stalking order against Trackwell in Hampton v. Trackwell, Wallowa County Circuit Court Case No. 10-08-13395 ("civil stalking case"). TAC ¶¶ 56-64, 74-77, 82-85. In 2011 and 2012, Trackwell was charged with criminal stalking in State of Oregon v. Trackwell, Wallowa County Circuit Court Case No. 11-M6789 ("criminal stalking case"). TAC ¶¶ 70-73. On October 24, 2012, Trackwell was convicted of two counts of violating a stalking order and sentenced to two consecutive six month sentences and three years probation. Motion for Stay (doc. 79) ¶ 6. On January 17, 2013, Magistrate Judge Patricia Sullivan stayed all proceedings in this case (doc. 104) pending release of Trackwell from jail. The stay was also granted pending resolution of the consolidated case remanded to Wallowa County Circuit Court. On April 11, 2014, Wallowa County Circuit Court Judge Lynn W. Hamptonl entered a stipulated order holding the consolidated case in abeyance. See Stipulated Order, Hampton v. Trackwell, Case No. 09-09-13224 (Wallowa Cnty. Cir. Ct. April 11, 2014). According to the terms of the stipulation, the consolidated case is to be dismissed upon resolution of this case. Id . As a result of Trackwell's release from jail and Judge Hampton's order, Magistrate Judge Sullivan vacated the stay in this case on April 18, 2014 (doc. 149).
On April 14, 2014, Trackwell filed another lawsuit in this Court against U.S. Secretary of the Treasury Jacob Lew ("Trackwell lawsuit III") seeking a declaratory judgment under the Bank Secrecy Act, an order requiring Secretary Lew to enforce the provisions under the Bank Secrecy Act, and an order requiring certain persons to provide documents to state or federal agencies. See Compl., Trackwell v. Lew, Case No. 3:14-cv-00618-AA (D. Or. April 14, 2014). On June 3, 2014, the Court dismissed Trackwell lawsuit III for failure to comply with Fed.R.Civ.P. 8(a), because the Bank Secrecy Act does not provide a private cause of action, and because Trackwell's allegations in Trackwell lawsuit III appeared to be defenses he would like to raise in this case. See Order, Trackwell v. Lew, Case No. 3:14-cv-00618-AA (D. Or. June 3, 2014).
The court must quash a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden. Fed.R.Civ.P. 45(d) (3) (A). An attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Fed.R.Civ.P. 45(d)(1). "The court for the district where compliance is required must enforce this duty and impose an appropriate sanction - which may include lost earnings and reasonable attorney's fees - on a party or attorney who fails to comply." Id . District courts have broad discretion to determine whether a subpoena is unduly burdensome. Exxon Shipping Co. v. U.S. Dep't of Interior , 34 F.3d 774, 779 (9th Cir. 1994). A subpoena is unduly burdensome where it seeks to compel production of documents regarding topics unrelated to or beyond the scope of litigation. See Mattel, Inc. v. Walking Mountain Prods. , 353 F.3d 792, 813-14 (9th Cir. 2003).
II. Subject-Matter Jurisdiction
Where the court lacks subject-matter jurisdiction, the action must be dismissed. Fed.R.Civ.P. 12(b) (1). A challenge to standing is appropriately raised pursuant to Rule 12(b) (1). Chandler v. State Farm Mut. Auto Ins. Co. , 598 F.3d 1115, 1122 (9th Cir. 2010). "A Rule 12(b) (1) jurisdictional attack may be either facial or factual." Safe Air for Everyone v. Meyer , 373 F.3d 1035, 1039 (9th Cir. 2004) (citation omitted). "In a facial attack, the challenger assets that the allegations contained in a complaint are insufficient on their face to invoke federal jurisdiction." Id . By contrast, a factual attack "disputes the truth of the allegations that, by themselves, would otherwise invoke federal jurisdiction." Id . In evaluating a factual attack, the court may consider evidence outside the complaint and resolve factual disputes, if necessary. Roberts v. Corrothers , 812 F.2d 1173, 1177 (9th Cir. 1987). If the substance of a Rule 12(b) (1) motion is intertwined with the merits of the case, the court employs the standard applicable to a summary judgment motion. Autery v. United States , 424 F.3d 944, 956 (9th Cir. 2005) (internal citation omitted). That is, the motion to dismiss should be granted "only if the material jurisdictional facts are not in dispute and the moving party is entitled to prevail as a matter of law." Trentacosta v. Frontier Pac. Aircraft Indus., Inc. , 813 F.2d 1553, 1558 (9th Cir. 1987) (citing Augustine v. United States , 704 F.2d 1074, 1077 (9th Cir. 1983)).
III. Failure to State a Claim
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 purposes of a 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). Bare assertions, however, 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, 681 (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. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011).
Moreover, where fraud is alleged, heightened pleading standards apply. See Fed.R.Civ.P. 9(b). The plaintiff "must state the time, place, and specific content of the false representations as well as the identities of the parties to the misrepresentations." Schreiber Distrib. v. Serv-Well Furniture Co. , 806 F.2d 1393, 1401 (9th Cir. 1986) (citation and internal quotations omitted). Likewise, the plaintiff is required to "set forth what is false or misleading about a statement, and why it is false." Vess v. Ciba-Geigy Corp. USA , 317 F.3d 1097, 1106 (9th Cir. 2003) (citation and internal quotations omitted). Additionally, "Rule 9(b) does not allow a complaint to merely lump multiple defendants together but require[s] plaintiffs to differentiate their allegations.. and ...