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Gross v. Progressive Casualty Insurance Co.

United States District Court, D. Oregon, Medford Division

December 5, 2017

EDWARD GROSS, Plaintiff,



         Plaintiff alleges Defendant breached the insurance policy it issued to Plaintiff, breached the covenant of good faith and fair dealing, intentionally inflicted severe emotional distress, and intentionally interfered with one or more contracts Plaintiff entered into or intended to enter into with recreational vehicle ("RV") parks and/or repair shops. Defendant has moved to dismiss Plaintiffs complaint or, in the alternative, for a transfer of venue (#24).[1] For the reasons below, the Court should deny Defendant's motion to dismiss and deny Defendant's alternative motion for transfer of venue.

         Finally, Plaintiff has renewed a prior motion for intra-district transfer of venue (#30). For the reasons that follow, and because that motion can be ruled on without a Report and Recommendation, the Court grants Plaintiffs motion, though it transfers the case to the Eugene Division, not the Portland Division.


         Many of the operative facts were explained in the Court's August 9, 2017, Report and Recommendation (#16), adopted in full on September 4, 2017 (#19). These facts have not changed. Hence, in lieu of rehashing the facts, which are already well-known to the parties, the Court refers the parties to the August 2017 Report and Recommendation. Additional facts related to particular claims are discussed throughout.

         As stated, Defendant moves to dismiss Plaintiffs Second Amend Complaint. First, Defendant contends that Plaintiff fails to state a claim for intentional infliction of emotional distress ("IIED") and for intentional interference with contractual relations. Next, Defendant argues that venue for the remaining claims does not lie in the District of Oregon and Plaintiffs remaining claims should be dismissed or transferred on that basis.

         Plaintiff opposes Defendant's motion and also seeks to have the case transferred to the Portland Division. Plaintiff originally filed this case in the Portland Division of this District Court, but the case was automatically transferred to the Medford Division because Plaintiffs original complaint alleged that he was a resident of Curry County, Oregon, a county within the Medford Division.


         Pursuant to Rule 12(b)(6), a motion to dismiss will be granted where the plaintiff fails to state a claim upon which relief may be granted. In order to state a claim for relief, a pleading must contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). "A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim upon which relief can be granted 'tests the legal sufficiency of a claim.'" Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001)).

         Dismissal under Rule 12(b)(6) is proper "if there is a 'lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'" Id. (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1988)). To survive a motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6), "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (citing Bell Ail. Corp. v. Twombly, 550 U.S. 544, 570 (2007)); Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating a motion to dismiss, the court must accept the allegations of material fact as true and construe those allegations in the light most favorable to the non-moving party. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007) (internal citation omitted).


         I. IIED and intentional interference with contractual relations

         A. IIED

         Plaintiff alleges "Defendant's agents went on an intentional campaign against Plaintiff to interfere with his life and ability to obtain [] repairs to [his RV]." Sec. Am. Compl. ¶ 13. On top of denying him an attempt at roadside assistance, Plaintiff charges "Defendant's employees and/or agents intentionally contacted recreational vehicle parks where Plaintiff was staying and presented Plaintiff, their customer, in a bad light that led directly to Plaintiff being told to leave [RV] parks on numerous occasions." Sec. Am. Compl. ¶ 26. Plaintiff also contends Defendant's employees or agents also contacted numerous repair shops "Plaintiff intended to use for repairs or estimates on the [] RV, and presented Plaintiff [] in a bad light that led directly to Plaintiff being told the repair shops did not want to do business with [him]." Sec. Am. Compl. ¶ 27. Plaintiff argues this caused him severe emotional distress.

         In moving to dismiss, Defendant opines that Plaintiffs claim for IIED fails to identify any statements purportedly made by Defendant or its agents, thus preventing the Court from plausibly inferring that they transcend the bounds of socially tolerable conduct, as required by Oregon law. Moreover, Defendant contends Plaintiff fails to draw the necessary causal link between Defendant's alleged actions and Plaintiffs supposed emotional distress. Finally, Defendant argues Plaintiffs factual allegations are replete of evidence demonstrating he suffered severe emotional distress.

         To state a claim for IIED, a plaintiff must plead that '"(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiffs severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.'" McGanty v. Staudenraus, 321 Or. 532, 543 (1995) (quoting Sheets v. Knight, 308 Or. 220, 236 (1989)). Intent is defined to mean "where the actor desires to inflict severe emotional distress, and also where he knows that such distress is certain, or substantially certain, to result from his conduct." Id. at 550 (emphasis omitted). Socially intolerable conduct is conduct that is "outrageous in the extreme." Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or.App. 234, 239 (1992) (internal quotation and citation omitted). Conduct that is simply "rude, boorish, tyrannical, churlish and mean does not satisfy that standard, nor do insults, harsh or intimidating words, or rude behavior ordinarily result in liability even when intended to cause distress." Id. (internal quotation and citation omitted).

         Plaintiff sufficiently alleges all three of the necessary elements for IIED. First, Plaintiff explicitly asserts that Defendant's employees' or agents' intentional communications with RV parks and with repair shops was done with the intent "to inflict severe emotional distress, or [with] knowledge such distress was substantially certain." Sec. Am. Compl. ¶ 28. Moreover, the facts Plaintiff has included in his Second Amended Complaint tend to corroborate such allegations, especially when viewed in the light most favorable to him. For example, he alleges Defendant's employee, Matt Carozza, "in order for the RV to become junk, " "told [B & C Auto Repair] to tear the RV apart . . . and that Defendant then would not pay to put the RV back together." Sec. Am. Compl. ¶ 27(a). Such potentially injurious behavior, if true, is substantially certain to result in severe emotional distress. See Williams v. Tri-Cty. Metro. Transp. Dist. of Or., 153 Or.App. 686, 691 (1998) (citing Whelan v. Albertson's, Inc., 129 Or.App. 501 (1994)) (stating that conduct involving not merely "rudeness or petty indignities, but conduct with the potential to be specially . . . injurious" constituted an extraordinary transgression of socially tolerable conduct).

         Next, despite Defendant's argument to the contrary, Plaintiff alleges a causal connection; in fact, he directly states that the aforementioned communications by Defendant's employees or agents "w[as] the direct and legal cause of the severe emotional distress suffered by Plaintiff." Sec. Am. Compl. ¶ 28 (emphasis added). Plaintiff then includes specific examples. See, e.g., Sec. Am. Compl. ¶ 26(a) (stating that the owner of the RV park, Mt. View RV Park, "told Plaintiff. . . that [he] needed to leave only after [the owner] had received a telephone call from Defendant's employee") (emphasis added). Such factual detail, which includes examples, is sufficient to rise above the speculative level, and while Defendant may disagree with Plaintiffs assertions, the Court is obligated to accept the allegations of material fact as true and construe those allegations in the light most favorable to Plaintiff. Odom, 486 F.3d at 545 (internal citation omitted).

         Finally, Plaintiff sufficiently pleads the third element of IIED. In previously dismissing Plaintiffs IIED claim, this Court cited a combination of two factors that led it to find that Plaintiffs allegations were not sufficiently specific. First, it noted Plaintiff failed to "indicate when the[] alleged occurrences took place" or "where exactly they took place." First R. & R, at 5 [ECF No. 16.]. Instead, Plaintiff merely stated that "Defendant's agents' conduct caused him to be removed 'from at least one recreational vehicle park on the Oregon Coast.'" First R. & R., at 5 (quoting the First Am. Compl. ¶ 13). Second, the Court cited Plaintiffs failure to articulate what the supposedly outrageous ...

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