United States District Court, D. Oregon
John D. Ostrander and William A. Drew, ELLIOTT, OSTRANDER & PRESTON, P.C., Portland, Oregon. Of Attorneys for Plaintiff.
Karen M. Vickers and Blake H. Fry, MERSEREAU SHANNON L.L.P., Portland, Oregon. Of Attorneys for Defendants.
OPINION AND ORDER
MICHAEL H. SIMON, District Judge.
Doug Greisen ("Plaintiff") brings this suit against Jon Hanken, the former city manager for the City of Scappoose ("Mr. Hanken"); John Does 1-5, individuals alleged to have acted in concert with Mr. Hanken, in their official and personal capacities ("Doe Defendants"); and the City of Scappoose (the "City"), an Oregon municipality that is Plaintiff's former employer (collectively, "Defendants"). Before the Court is Defendants' Motion to Dismiss (Dkt. 21) Plaintiff's Amended Complaint (Dkt 20). For the reasons that follow, Defendants' Motion is granted in part and denied in part.
A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint "may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively." Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. v. Ikon Office Solution, 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).
A complaint must contain sufficient factual allegations to "plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation." Starr, 652 F.3d at 1216. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 556 U.S. at 663 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).
Plaintiff, the former Chief of Police in Scappoose, Oregon, filed this suit on August 29, 2014, against his former employer, the City of Scappoose, former City Manager Jon Hanken, and John Does 1-5, asserting seven statutory and common-law claims: (1) violations of Plaintiff's civil and constitutional rights under 42 U.S.C. § 1983, against all Defendants; (2) retaliation for whistleblowing under Or. Rev. Stat. ("ORS") § 659A.203 and ORS § 659A.199, against all Defendants; (3) wrongful discharge, against all Defendants; (4) intentional or reckless infliction of emotional distress, against all Defendants; (5) defamation, against all Defendants; (6) unpaid wages or expenses, against the City only; and (7) tortious interference with contract, against Mr. Hanken only. Plaintiff's Complaint was dismissed with leave to replead on January 5, 2015. Plaintiff filed his Amended Complaint on February 2, 2015. Defendants' present motion to dismiss soon followed.
The facts and claims alleged in Plaintiff's Amended Complaint are almost identical to those alleged in Plaintiff's original Complaint and have already been discussed at length in the Court's previous Opinion. See Dkt. 16. There are, however, two exceptions relevant to the present motion to dismiss. First, Plaintiff's Amended Complaint clarifies that his § 1983 claim against all Defendants alleges claims for violations of Plaintiff's rights under the First and Fourteenth amendments. Second, Plaintiff's Amended Complaint clarifies that Plaintiff's second and third claims for retaliation for whistleblowing and wrongful discharge are asserted only against the City.
Defendants raise four arguments in support of their motion to dismiss: (1) Plaintiff's § 1983 claim against Mr. Hanken should be dismissed because Mr. Hanken resigned as city manager six months before Plaintiff's allegedly wrongful termination on May 8, 2014; (2) Plaintiff's § 1983 claim against the City should be dismissed because Plaintiff has failed to identify a specific policy or custom of the City that deprived him of a constitutional or statutory right; (3) Plaintiff's claims for intentional infliction of emotion distress and defamation may be asserted only against the City; and (4) Plaintiff's claim for tortious interference with contract against Mr. Hanken should be dismissed because Mr. Hanken was acting within the scope of his authority and for the benefit of his employer. The Court addresses each argument in turn.
A. Plaintiff's § 1983 Claims
Under 42 U.S.C. § 1983, any person who has suffered a "deprivation of any rights, privileges, or immunities secured by the Constitution and laws" of the United States by a person acting under color of state law may bring a civil action seeking redress. Such claims may be brought both against individual public employees and against local government agencies, with distinct elements depending on ...