United States District Court, D. Oregon, Medford Division
REPORT AND RECOMMENDATION
D. CLARKE, UNITED STATES MAGISTRATE JUDGE
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). For the reasons below, the Court should
deny Defendant's motion to dismiss and deny
Defendant's alternative motion for transfer of venue.
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
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.
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.
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.
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.
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).
IIED and intentional interference with contractual
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.
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
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).
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).
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).
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