United States District Court, D. Oregon
OPINION AND ORDER
MICHAEL J. McSHANE, District Judge.
Bruce Endicott brings this action against his former employer, Deschutes County, and Patrick Flaherty, the County's former District Attorney. For his first cause of action (defamation), Endicott alleges Flaherty "published false and defamatory statements to third parties in his office and/or within the County" regarding the reasons for Endicott's termination. For his second cause of action (under 42 U.S.C. § 1983), Endicott alleges that his termination violated his First Amendment rights. For his final cause of action (intentional interference with economic relations or IIER), Endicott alleges Flaherty intentionally interfered with Endicott's employment with the County.
Flaherty's alleged defamatory statements, at this stage, are not absolutely immune. Thus, the County's motion to dismiss Endicott's defamation claim is DENIED. Because Endicott does not allege he engaged in constitutionally protected conduct, the County's motion to dismiss Endicott's First Amendment claim is GRANTED. Because Endicott alleges Flaherty acted outside the scope of his employment, Flaherty's motion to dismiss Endicott's IIER claim is DENIED.
At all material times, Patrick Flaherty was the District Attorney for Deschutes County and was a candidate for re-election. Flaherty, in an attempt to further his political prospects in that election, hired Bruce Endicott as the Administrator of the Office of the District Attorney. Endicott's cousin was the Mayor of Redmond, Oregon and Flaherty hoped Endicott would obtain the political endorsement of his cousin in support of Flaherty's re-election. During the course of Endicott's employment at the District Attorney's Office, Flaherty reiterated his desire that Endicott obtain his cousin's support. But Endicott failed to deliver his cousin's support, and Flaherty lost the election. Two days after the election, on May 22, 2014, Flaherty terminated Endicott for political reasons. In the course of terminating Endicott, Flaherty made false statements to third parties regarding Endicott's attitude and performance.
STANDARD OF REVIEW
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must contain sufficient factual matter that "state[s] a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). A claim is plausible on its face when the factual allegations allow the court to infer the defendant's liability based on the alleged conduct. Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009). The factual allegations must present more than "the mere possibility of misconduct." Id. at 678.
While considering a motion to dismiss, the court must accept all allegations of material fact as true and construe in the light most favorable to the non-movant. Burget v. Lokelani Bernice Pauahi Bishop Trust, 200 F.3d 661, 663 (9th Cir. 2000). But the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Twombly, 550 U.S. at 555. If the complaint is dismissed, leave to amend should be granted unless the court "determines that the pleading could not possibly be cured by the allegation of other facts." Doe v. United States, 58 F.3d 494, 497 (9th Cir. 1995).
I. County's Motion to Dismiss Endicott's First Claim for Relief - Defamation
The County moves to dismiss Endicott's defamation claim on the ground that the County is absolutely immune from liability. Under Oregon law, a state executive officer has an absolute privilege to publish defamatory statements in the course of performing his or her official duties. Shearer v. Lambert, 274 Or. 449, 454 (1976). Endicott argues that, first, Flaherty was not a state executive officer and second, if Flaherty was an executive officer, his defamatory statements were not made in performance of his official duties.
To date, no Oregon court has held whether the absolute privilege to publish defamatory statements applies to district attorneys. Beason v. Harcleroad, 105 Or.App. 376, 385 (1991). Nonetheless, courts have consistently adopted the view that the privilege applies to "inferior state officers no matter how low their rank or standing." Shearer, 274 Or. at 454; Chamberlain v. City of Portland, 184 Or.App. 487, 492 (2002) (privilege applies to sworn city police officers). And throughout Oregon's history, courts have viewed district attorneys as state officers who act as prosecutors for the executive branch. State v. Coleman, 131 Or.App. 386, 390 (1994). Thus, the privilege does, in some circumstances, apply to district attorneys.
In this case, the privilege is available to both defendants if Flaherty published the alleged defamatory statements in the course of performing his official duties. See ORS 30.265(5) ("Every public body is immune from liability for any claim for injury to or death of any person or injury to property resulting from an act or omission of an officer, employee or agent of a public body when such officer, employee or agent is immune from liability."). The issue of whether a public officer published a defamatory statement while performing his or her official duties is a question of fact, and depends on whether the officer was authorized to perform the duty. Beason, 105 Or.App. at 384-85. The privilege extends to mandatory, discretionary, and ministerial duties. Chamberlain, 184 Or.App. at 492.
The County argues that because Endicott alleges Flaherty acted "within the course and scope of [his] agency" for the County when he published the defamatory statements, Flaherty was performing his official duties and therefore is entitled to absolute immunity. But that allegation is not dispositive; rather, the issue is whether Flaherty was performing his official duties while acting within the course and scope of his agency. See Sandrock v. City of Corvallis, 58 Or.App. 312, 315 (1982) (plaintiff's allegation that defendant's defamatory statements were ...