United States District Court, D. Oregon, Portland Division
ROBERT E. WEBSTER Plaintiff,
BROOKDALE SENIOR LIVING COMMUNITIES, INC., Defendant.
OPINION AND ORDER
Aiken, United States District Judge
Robert E. Webster, moves for leave to file an amended
complaint after I previously granted him leave to amend his
fraud claim, (doc. 19). Defendant, Brookdale Senior Living
Communities, Inc. ("Brookdale") objects, arguing
that plaintiffs amended complaint has unresolved deficiencies
in various provisions. For the reasons set forth below,
plaintiffs Motion for Leave File an Amended Complaint (doc.
24) is DENIED.
facts of this case are outlined in detail in the Court's
previous Opinion and Order on the defendant's motion to
dismiss, (doc. 19). Briefly, in 2007, plaintiff began
residing in defendant's assisted living facility located
in Forest Grove, Oregon. On September 25, 2015, plaintiff
fell while getting out of the shower. Id. at 9. He
was not discovered by staff until September 27, approximately
52 hours after he had fallen. Id.
then initiated this diversity action} pleading
claims for negligence, breach of contract, fraud, and
violation of the Oregon Unfair Trade Practices Act
("UTPA"). He alleges almost $3 million dollars in
economic and noneconomic damages. I previously granted
defendant's Motion to Dismiss on plaintiffs claims for
breach of contract and UTPA violations. I also dismissed
plaintiffs fraud claim while granting him leave to seek
amendment of his complaint. Plaintiff now seeks to amend his
complaint regarding his fraud claims in his proposed First
Amended Complaint ("PFAC").
complaint, plaintiff must allege "enough facts to state
a claim to relief that is plausible on its face."
Bell At! Corp. v. Twombly, 550 U.S. 544, 570 (2007).
These facts must amount to more than a conclusory statement
or a mere "formulaic recitation of the elements of a
claim." Ashcroft v. Iqbal, 556 U.S. 662, 681
(2009). Under Oregon law,
[i]n order to establish actionable fraud, the plaintiff must
plead and prove the following elements: (1) a representation;
(2) its falsity; (3) its materiality; (4) the speaker's
knowledge of its falsity or ignorance of its truth; (5) his
intent that it should be acted on by the person and in the
manner reasonably contemplated; (6) the hearer's
ignorance of its falsity; (7) his reliance on its truth; (8)
his right to rely thereon; and (9) his consequent and
Webb v. Clark, 546 P.2d 1078, 1080 (Or. 1976)
(internal quotation marks omitted); see Oregon
Pub. Emps.' Ret. Bd. ex rel. Oregon Pub. Emps.'
Ret. Fund v. Simat, Helliesen & Eichner, 83 P.3d
350, 359 (nothing the "clear and convincing"
standard to prevail on a fraud claim.), To satisfy Federal
Rule of Civil Procedure 9(b) heightened pleading requirements
for fraud, plaintiff must "state the time, place and
specific content of the false representations as well as the
identities of the parties to the misrepresentation."
Edwards v. Marin Park, Inc., 356 F.3d 1058, 1066
(9th Cir. 2004).
court should freely give leave [to amend] when justice so
requires, " Fed.R.Civ.P. 15(a)(2). In reviewing the
present motions, I "consider four factors when reviewing
a decision whether to permit an amendment: (1) bad faith on
the part of the plaintiffs; (2) undue delay; (3) prejudice to
the opposing party; and (4) futility of the proposed
amendment." Lockheed Martin Corp. v. Nehvork Sol.s,
Inc. 194 F.3d 980, 986 (9th Cir. 1999).
previous opinion and order (doc. 19), based on the arguments
before me at the time, I concluded that the only missing
element regarding the 9(b) standard was the alleged time of
the fraudulent statements. I noted that "without an
archived screenshot of a particular webpage that predates the
[September] 25 incident, [I] cannot conclude that plaintiffs
fraud claim meets the temporal element required for adequacy
under Rule 9(b)." Id. If the present
screenshots from "The Wayback Machine" attached to
Plaintiffs Motion for Leave to Amend Complaint (doc. 24)
legitimately represent the timestamp on the screenshots, then
the 9(b) temporal requirement would be satisfied. However, my
consideration of the Motion for Leave to Amend is not
first factor to consider I must consider is whether there is
any bad faith evidenced by plaintiff. Generally,
"amendment should be permitted unless it will not save
the complaint or the plaintiff merely is seeking to prolong
the litigation by adding new but baseless legal
theories." Griggs v. Pace Am. Group, Inc., 170
F.3d 877, 881 (9th Cir. 1999); see also United States v.
Webb, 655 F.2d 977, 980 (9th Cir. 1981) (noting a
requirement of "some statement of reasons or findings of
fact showing bad faith[.]"). Nothing in the briefings or
motions suggest bad faith on the part of plaintiff. Although
ultimately the claim is pled insufficiently, that does not
rise to the level of bad faith. Accordingly, I move on to the
factor of undue delay.
delay is not a dispositive factor in the amendment analysis,
it is relevant. . . especially when no reason is given for
the delay." Lockheed, 194 F.3d at 986 (citing
Morongo Band of Mission Indians v. Rose, 893 F.2d
1074, 1079 (9th Cir. 1990) and Swanson v. United States
Forest Serv.,87 F.3d 339, 345 (9th Cir. 1996). In
submitting his amended motion, plaintiff curiously creates
two temporal situations when the purported fraudulent
representations took place. First, plaintiff elaborates on
allegations from the initial complaint with respect to
representations made by Luann Arnott, executive director of
the facility, in 2007. Further, he again alleges additional
fraudulent statements on Brookdale's website from 2015,
which were one of the issues discussed in my Order regarding
the previous motion to dismiss. Id., ¶ 19-20.
Plaintiff offers no explanation of why these new
representations are now being alleged. Regardless, the
amended filing does not cause undue delay and the claims are
not unduly delayed, because plaintiff raised (albeit
insufficient) allegations about representations made in 2007