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Webster v. Brookdale Senior Living Communities, Inc.

United States District Court, D. Oregon, Portland Division

March 27, 2018



          Ann Aiken, United States District Judge

         Plaintiff, 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.


         The 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.

         Plaintiff 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").[1]


         In his 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 proximate injury.

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).

         "The 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).


         In my 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 concluded there.

         The 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.

         "Although 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., ΒΆ 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 ...

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