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Richardson v. Schubert

United States District Court, D. Oregon, Portland Division

November 14, 2014

KELLY J. RICHARDSON, and JAMES POWELL, personally and as next friend for I.R. a minor, and S.P., a minor, Plaintiffs,
EMILIE SCHUBERT, in her individual capacity, GINGER VAN WINKLE, in her individual capacity, ERIN WIRTZ, in her individual capacity, JENNIE SMITH, in her individual capacity, KRISTIN LEMON, in her individual capacity, CARLOS CRUTCH, in his individual capacity, LINDSEY VERNOOY, in her individual capacity, DANIELLE SANTILI-DAY, in her individual capacity, Defendants

For Kelly J. Richardson, James Powell, personally and as next friend for I.R. a minor, and S.P. a minor, I.R., a minor, S.P., a minor, Plaintiffs: Michael Henderson, LEAD ATTORNEY, Michael Henderson, PC, Bend, OR; Mikel R. Miller, Law Office of Mikel R. Miller, PC, Bend, OR.

For Emilie Schubert, in her individual capacity, Ginger VanWinkle, in her individual capacity, Defendants: Roger W. Perry, Hurley Re, P.C., Bend, OR.

For Erin Wirtz, in her individual capacity, Jennie Smith, in her individual capacity, Kristin Lemon, in her individual capacity, Carlos Crutch, in his individual capacity, Lindsey VerNooy, in her individual capacity, Danielle Santili-Day, in her individual capacity, Defendants: Vanessa A. Nordyke, LEAD ATTORNEY, Oregon Department of Justice, Trial Division, Salem, OR; Dirk L. Pierson, Department of Justice, Salem, OR.


Janice M. Stewart, United States Magistrate Judge.


Plaintiffs, Kelly J. Richardson (" Richardson") and James Powell (" Powell"), filed this action against case workers for the Arizona Child Protective Services (" Arizona CPS"), defendants Emilie Schubert and Ginger Van Winkle (" Arizona defendants"), who seized their adopted daughter, I.R., while she was visiting her biological mother in Arizona. The remaining six defendants are employees of the Oregon State Department of Human Services (" Oregon DHS") who retrieved I.R. from Arizona and returned her to the foster system in Oregon. The First Amended Complaint alleges claims under 42 U.S.C. § 1983 for depriving plaintiffs of their right to be free from unreasonable seizure under the Fourth Amendment and right to familial relationship and procedural due process under the Fourteenth Amendment. The First Amended Complaint also alleges state law tort claims for intrusion into seclusion and intentional infliction of emotional distress.

This court has subject matter jurisdiction over the § 1983 claims under 28 U.S.C. § 1331 and over the state law claims under 28 U.S.C. § 1367.

The Arizona defendants have filed a Motion to Dismiss (docket #28) pursuant to FRCP 12(b)(2) for lack of personal jurisdiction, FRCP 12(b)(6) for failure to state a claim, and other unremunerated grounds. For the reasons stated below, the motion should be denied.


In 2007, Oregon DHS removed I.R. from her biological mother at age three and later terminated the biological mother's parental rights. First Amended Complaint (docket #12), ¶ ¶ 14-15. In 2009, Richardson and Powell adopted I.R. after volunteering as her foster parents since 2007. Id. During the course of I.R.'s removal, she developed several psychological issues, including Reactive Attachment Disorder (" RAD"), that caused violent outbursts, masturbating in public, and night terrors. Id, ¶ 16. Despite psychological counseling and care-taking recommended for a child with RAD, I.R. failed to respond to treatment. Id, ¶ 17. Because I.R.'s issues seemed to center around the feeling of abandonment by her biological mother, Richardson decided to allow I.R. to spend time with her biological mother. Id, ¶ 18. She located the biological mother, talked to her, and consulted I.R.'s counselors. Id.

Richardson brought I.R. to Arizona where her biological mother resided, and Richardson remained at her residence for several days. Id, ¶ 19. After Richardson determined that the environment was safe and clean and that I.R. seemed to have adjusted, she left I.R. there for an indefinite time during the summer, depending on how I.R. reacted. Id. Richardson returned to Oregon, but maintained daily contact with I.R. or her biological mother and remained available to retrieve I.R. at any time. Id, ¶ ¶ 19-20.

Shortly after Richardson returned to Oregon, I.R. began to demonstrate some of her known bad behaviors causing the biological mother to spank I.R. Id, ¶ 20. Richardson and the biological mother decided that spanking was not an appropriate way to handle I.R.'s misbehavior, and Richardson consulted with one of I.R.'s counselors. Id. Almost immediately thereafter, the Arizona CPS arrived at the residence to investigate and determined that I.R. was not abused and safe to remain with the biological mother. Id.

Nevertheless, Schubert, with authorization from her supervisor, VanWinkle, issued a Notice of Removal on June 25, 2012, and seized I.R. from the biological mother without just cause or a court order. Id, ¶ 21. Richardson informed VanWinkle that she would return immediately to Arizona and take custody of I.R. Id. However, VanWinkle rejected that option and held I.R. against her will in a group home, causing I.R. extreme distress and anxiety. Id, ¶ ¶ 21, 36. VanWinkle transferred custody to Oregon DHS without providing Richardson or I.R. an opportunity to appear in court to contest the seizure or transfer of custody. Id, ¶ 22. Plaintiffs were denied substantive and procedural due process in Arizona because Schubert and VanWinkle seized I.R. without facts to support a Notice of Removal or a determination that I.R. was in immediate danger. Id.

Relying on an affidavit filed by Erin Wirtz (" Wirtz"), the Clackamas County Circuit Court placed I.R. in a facility, and not foster care, to address her RAD diagnosis. Id, ¶ ¶ 23-26. The court also ruled that Richardson and Powell's home was safe and that I.R. should return there if a treatment facility was not available. Id, ¶ 26. Wirtz and Jennie Smith immediately placed I.R. in foster care, thereby exacerbating her RAD symptoms. Id. I.R. now suffers from hallucinations, and an extreme fear of abandonment and being " stolen" by the police. Id, ¶ 39.


The Arizona defendants seek to dismiss all claims against them for lack of personal jurisdiction under FRCP 12(b)(2). In the alternative, they argue as an unenumerated FRCP 12(b) motion that the state law claims are barred by plaintiff's failure to file a separate notice of claims pursuant to ARS 12-821.01 and by the Arizona statute of limitations under FRCP 12(b)(6).

I. Personal Jurisdiction

A. Legal Standard

When no federal statute governs personal jurisdiction, the district court applies the law of the forum state. See Panavision Int'l, L.P. v. Toeppen, 141 F.3d 1316, 1320 (9th Cir 1998) (applying the California long-arm statute). " Oregon's long-arm statute confers jurisdiction to the extent permitted by due process." Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir 1990), citing ORCP 4 and Oregon ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Ore. 381, 381, 657 P.2d 211, 212 (1982). Federal due process requires that an out-of-state defendant have at least " minimum contacts" with the forum state so that " the exercise of jurisdiction 'does not offend traditional notions of fair play and substantial justice.'" Schwarzenegger v. Fred Martin Motor Co., 374 F.3d 797, 801 (9th Cir 2004), quoting Int'l Shoe Co. v. Washington, 326 U.S. 310, 316, 66 S.Ct. 154, 90 L.Ed. 95 (1945). There are two kinds of personal jurisdiction: general and specific jurisdiction.

Because plaintiffs do not assert general jurisdiction, this court has personal jurisdiction over the Arizona defendants if the " controversy is related to or 'arises out of" a defendant's contacts with the forum." Helicopteros Nacionales de Colombia, S.A. v. Hall, .466 U.S 408, 414, 104 S.Ct. 1868, 80 L.Ed.2d 404 (1984), citing Shaffer v. Heitner, .433 U.S 186, 204, 97 S.Ct. 2569, 53 L.Ed.2d 683 (1977). The Ninth Circuit uses the following three-part test to analyze whether a party's minimum contacts meet the due process standard for the exercise of specific personal jurisdiction:

(1) The non-resident defendant must purposefully direct his activities or consummate some transaction with the forum or resident thereof; or perform some act by which he purposefully avails himself of the privilege of conducting activities in the forum, thereby invoking the benefits and protections of its laws;
(2) the claim must be one which arises out of or relates to the defendant's forum-related activities; and
(3) the exercise of jurisdiction must comport with fair play and substantial justice, i.e. it must be reasonable.

Lake v. Lake, 817 F.2d 1416, 1421 (9th Cir 1987), citing Haisten v. Grass Valley Med. Reimbursement Fund, Ltd., 784 F.2d 1392, 1397 (9th Cir 1986).

" The plaintiff bears the burden of satisfying the first two prongs of the test. Schwarzenegger, 374 F.3d at 802 (citation omitted). " If the plaintiff fails to satisfy either of these prongs, personal jurisdiction is not established in the forum state. If the plaintiff succeeds in satisfying both of the first two prongs, the burden then shifts to the defendant to 'present a compelling case' that the exercise of jurisdiction would not be reasonable. Id, quoting Burger King Corp. v. Rudzewicz, .471 U.S 462, 476-78, 105 S.Ct. 2174, 85 L.Ed.2d 528 (1985).

" In opposition to a defendant's motion to dismiss for lack of personal jurisdiction, the plaintiff bears the burden of establishing that jurisdiction is proper." Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir 2008), citing Sher v. Johnson, 911 F.2d 1357, 1361 (9th Cir 1990). If the district court decides the motion without an evidentiary hearing, such as here:

then the plaintiff need only make a prima facie showing of the jurisdictional facts. Absent an evidentiary hearing this court only inquire[s] into whether [the plaintiff's] pleadings and affidavits make a prima facie showing of personal jurisdiction. Uncontroverted allegations in the plaintiff's complaint must be taken as true. Conflicts between the parties over statements contained in affidavits must be resolved in the plaintiff's favor.

Id (citations and internal quotation marks omitted; alterations in original).

B. Analysis

1. Purposeful Availment

The first prong contains two distinct concepts: purposeful availment and purposeful direction. Schwarzenegger, 374 F.3d at 802. The purposeful availment analysis most often applies to suits sounding in contract, while the purposeful direction analysis more readily applies in suits sounding in tort. Id (citations omitted). " The Supreme Court has held that due process permits the exercise of personal jurisdiction over a defendant who " purposefully direct[s]" his activities at residents of a forum, even in the " absence of physical contacts" with the forum. Id at 803 (alteration in original), quoting Burger King Corp., 471 U.S at 476. The Ninth Circuit applies the " effects" test to inquire whether a defendant has purposefully directed his activities to the forum state. Yahoo! Inc. v. La Ligue Contre Le Racisme Et L'Antisemitisme, 433 F.3d 1199, 1206 (9th Cir 2006) (citation omitted). The test developed in Calder v. Jones, .465 U.S 783, 789-90, 104 S.Ct. 1482, 79 L.Ed.2d 804 (1984), imposes three requirements: " the defendant allegedly must have (1) committed an intentional act, (2) expressly aimed at the forum state, (3) causing harm that the defendant knows is likely to be suffered in the forum state." Id, quoting Schwarzenegger, 374 F.3d at 803. " Finally, there is a presumption of reasonableness upon a showing that the defendant purposefully directed his activities at forum residents which the defendant bears the burden of overcoming by presenting a compelling case that jurisdiction would be unreasonable." Haisten, 784 F.2d at 1397, citing Burger King Corp., 471 U.S at 477-78.

Plaintiffs have easily met their burden on the first prong. The Arizona defendants seized I.R. knowing that she was an Oregon resident. Both Arizona defendants state in their declarations that they interviewed Richardson, the Oregon caseworker involved in the original removal of I.R. from her birth mother, and I.R. before taking I.R. into custody. Christman[1] Decl. (docket #28, Ex. A), ¶ 2; Van Winkle Decl. (docket #28, Ex. B), ¶ 2. From their interview with the Oregon caseworker, the Arizona defendants learned that Oregon DHS was obtaining a court order to take physical custody of I.R. Id at ¶ 3. Likewise, Richardson told VanWinkle that she would return to Arizona and take custody of I.R., indicating that she opposed agency custody. First Amended Complaint, ¶ 21. Arizona defendants stated that they made the decision to remove I.R. based on these interviews and the future action anticipated by Oregon DHS. Christman Decl., ¶ 3; Van Winkle Decl., ¶ 3. Thus, the Arizona defendants seized an Oregon child and transferred her to the custody of Oregon DHS knowing that she would likely not return to her adoptive home in Oregon.

2. " Arising Out Of"

In determining whether plaintiff's claims arise out of the Arizona defendants' conduct directed towards Oregon, the Ninth Circuit follows the " but for" test. Myers v. Bennett Law Offices, 238 F.3d 1068, 1075 (9th Cir 2001). Plaintiffs must show that they would not have suffered an injury " but for" the defendants' forum-related conduct. Id.

Defendants argue that plaintiffs cannot satisfy this prong because their conduct only occurred in Arizona. However, the events that form the basis of plaintiffs' claims against the Arizona defendants were related to Oregon as soon as they began interviewing Oregon citizens, notably Richardson and the Oregon DHS caseworker, in preparation for removing I.R. Likewise, any argument that Oregon authorities would have seized I.R. even without facilitation from the Arizona defendants is not persuasive.

Defendants' argument is more commonly asserted under the second prong. However, the location of the foreign acts makes no difference to the analysis as long as such acts are " expressly aimed" at the forum state and cause harm there. See Bancroft & Masters, Inc. v. Augusta Nat. Inc., 223 F.3d 1082, 1087 (9th Cir 2000) (recognizing that Calder, 465 U.S at 783, cannot stand for the ...

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