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Bokenfohr v. Gladen

United States District Court, D. Oregon

May 29, 2018

LORI BOKENFOHR, Plaintiff,
v.
CYNTHIA GLADEN and CHRISTINE GUIDERA, Defendants.

          KRISTEN L. TRANETZKI EDWARD A. PIPER, Angeli Law Group LLC Attorneys for Plaintiff

          JOHN J. DUNBAR, Larkins Vacura LLP, Attorneys for Defendant Cynthia Gladen

          JEFFREY M. EDELSON HEATHER ST. CLAIR, Markowitz Herbold PC Attorneys for Defendant Christine Guidera

          OPINION AND ORDER

          ANNA J. BROWN, United States Senior District Judge

         This matter comes before the Court on Defendant Christine Guidera's Motion (#27) to Amend Answer and Affirmative Defenses and Defendant Cynthia Gladen's Motion (#28) for Leave to File First Amended Answer, Affirmative Defenses and Counterclaim. For the reasons that follow, the Court GRANTS Guidera's Motion as to her affirmative defense of in pari delicto and DEFERS ruling on Guidera's Motion as to her affirmative defense of unclean-hands. The Court GRANTS Gladen's Motion as to her affirmative defenses of in pari delicto and laches and DEFERS ruling on Guidera's Motion as to her affirmative defense of unclean-hands.

         BACKGROUND

         The following facts come from Plaintiff's Complaint, Defendants' Answers, and the parties' filings related to Defendants' Motions.

         In 2015 Defendant Cynthia Gladen was married to Kenneth Kolarsky.[1] Kenneth Kolarsky was having an affair at that time with Plaintiff Lori Bokenfohr, an attorney who lived and practiced law in Canada.

         Plaintiff alleges in her Complaint that in 2015 she owned a laptop computer on which she stored “a broad range of personal and confidential information” including Plaintiff's banking, financial, and tax records; Plaintiff's medical records as well as the medical records of her children; and Plaintiff's “private photo albums.” Compl. at ¶ 12. Defendants assert, and Plaintiff does not appear to contest, that Plaintiff also stored confidential client information on the laptop.

         In July 2015 Kolarsky purchased a solid-state computer drive (SSD) or “flash drive.” In August 2015 Kolarsky “gave [the SSD] as a gift to Plaintiff.” Plaintiff intended to use the SSD to create a back-up copy of the contents of her laptop.

         At some point before November 2015 Plaintiff asked Kolarsky to copy the information from Plaintiff's laptop to the SSD. Kolarsky tried to do so, but the “attempt appeared to fail, following which Kolarsky reformatted the SSD.” Compl. at ¶ 14. Kolarsky and Plaintiff believed the reformatting process permanently deleted whatever information might have been partially copied from Plaintiff's laptop to the SSD. Plaintiff and Kolarsky were mistaken, however, and some of Plaintiff's personal information including “intimate images depicting Plaintiff and Kolarsky in bed and unclothed . . . were capable of being recovered from the SSD.” Compl. at ¶ 15. Plaintiff left the SSD with Kolarsky so he could attempt to install a new operating system on the SSD.

         On November 18, 2015, Kolarsky traveled to Canada to visit Plaintiff and brought the SSD. On November 22, 2015, Kolarsky returned to Oregon and left his luggage in the car owned by Kolarsky and Gladen while Kolarsky coached their child's hockey game. During the hockey game Gladen removed “certain items” from the family car “without Kolarsky's (or plaintiff's) knowledge or consent.” Compl. at ¶ 16. Gladen denies removing the SSD from the car at that time.

         Gladen alleges in her proposed First Amended Answer that in January 2016 she “found the flash drive in her home and she believed the flash drive belonged to the family.” Gladen Proposed Am. Answer at ¶ 56. Gladen alleges in her proposed First Amended Answer that she could not open the SSD on her personal computer. Gladen, therefore, took the SSD and her personal computer to Office Depot for technical assistance. The Office Depot employee was able to restore the SSD by using Gladen's personal computer, which resulted in the uploading of images from the SSD to Gladen's “electronic accounts, including Google Photos, [that] ran through [Gladen's] personal computer and were accessible to her devices.” Gladen Answer at ¶ 18. Among the uploaded photographs were images of Plaintiff with Kolarsky “in bed and with no clothing visible” some of which “were taken in [Gladen's] home.” Gladen Proposed Am. Answer at ¶ 33; Answer at ¶ 33. Gladen was upset by the images and sent “images of plaintiff and [Kolarsky], sometimes in bed with no clothing visible, to [Defendant Christine] Guidera” as well as “an image or two to a small number of friends after seeing them.” Gladen Answer at ¶ 33. Guidera admits in her Answer that she received “electronic photographic images from Gladen.” Guidera Answer at ¶ 6.

         In February 2016 Gladen filed separation papers against Kolarsky.

         In June 2016 as part of Gladen and Kolarsky's divorce proceedings Gladen gave the SSD to Kolarsky. Plaintiff alleges in her Complaint that Gladen wrongfully continued to retain copies of the images. Gladen admits she and her attorneys continue to possess copies of the images, but she notes Plaintiff's “lawyers demanded in 2016 and again in 2017 that [Gladen] must preserve these images.” Gladen Answer at ¶ 3.

         Plaintiff alleges in her Complaint that on June 16, 2016, Guidera “sent a series of unsolicited Facebook messages to a woman who then was one of Kolarsky's professinal colleagues. The messages contained an Intimate Image depicting Plaintiff and Kolarsky in bed and unclothed.” Compl. at ¶ 20. Guidera alleges in her Answer that she sent “a private message to Shanta Roberts via Facebook Messenger, including a G-rated photograph of plaintiff and [Kolarsky].” Guidera Answer at ¶ 6. Guidera asserts in her Answer that she “did not send any graphic or indecent photographs.” Guidera Answer at ¶ 6.

         On November 21, 2017, Plaintiff filed a Complaint in this Court against Gladen and Guidera in which she brings claims for (1) violation of the Computer Fraud and Abuse Act (CFAA), 18 U.S.C. § 1030, against Gladen; (2) violation of Oregon Revised Statutes § 30.865(1)(d) against both Defendants; conversion against both Defendants; replevin against both Defendants; and intrusion upon seclusion against both Defendants. Plaintiff seeks compensatory and punitive damages or in the “alternative to an award of compensatory damages reflecting the full value of Plaintiff's Personal Information (but not other compensatory damages), an order of replevin requiring Defendants to identify and return all of Plaintiff's Personal Information”; and/or in the “alternative to an award of compensatory damages reflecting the full value of Plaintiff's Personal Information (but not other compensatory damages), an order imposing a constructive trust for Plaintiff's benefit on all of her Personal Information . . . that is in either Defendant's [sic] direct or indirect possession, custody, or control.” Compl. at 13.

         On January 17, 2018, Gladen filed an Answer, Affirmative Defenses, and Counterclaim in which she asserts affirmative defenses of unclean hands, in pari delicto, ownership, abandonment, privilege, standing, consent, waiver, and unconstitutionality. Gladen also asserted a Counterclaim for declaratory judgment in which she sought a judgment that Gladen

may hire a qualified computer professional to remove the images of her ex-husband together with plaintiff, or any other information from the SSD regarding plaintiff, from Ms. Gladen's devices and accounts, provided that Ms. Gladen maintains through an attorney or qualified computer professional a forensic copy of the SSD and any other account or device in which the personal information and images at issue in this litigation were located or transmitted.

Gladen Answer at ¶ 68.

         On January 17, 2018, Guidera filed an Answer and Counterclaim[2] to Plaintiff's Complaint in which she asserted affirmative defenses of failure to state a claim, waiver, consent, abandonment, interest of Defendant Gladen, absolute privilege of consent, standing, unclean hands, and in pari delicto.

         On February 9, 2018, Gladen filed a Notice of Dismissal of Counterclaim in which she dismissed her Counterclaim for declaratory judgment.

         On March 2, 2018, Plaintiff filed a Motion for Partial Judgment on the Pleadings or, in the Alternative to Strike or for Partial Summary Judgment in which she requests the Court to grant partial judgment on the pleadings as to Defendants' affirmative defenses of unclean hands and in pari delicto or, in the alternative, to grant partial summary judgment on those affirmative defenses or to strike those affirmative defenses.

         On March 15, 2018, the Court received an email from defense counsel requesting clarification as to Defendants' time to respond to Plaintiff' Motion. Specifically, counsel noted Local Rule 7-1(e) provides parties must serve responses to motions within 14 days of service of the motion. Local Rule 7-1(f), however, provides parties must serve responses to motions for summary judgment within 21 days of service of the motion. As noted, Plaintiff's Motion was titled as a Motion for Judgment on the Pleadings or to Strike or in the Alternative as a Motion for Summary Judgment. Thus, defense counsel was uncertain whether the response deadline was 14 or 21 days from service of the Motion.

         On March 15, 2108, the Court entered an Order in which it noted the email from defense counsel and advised it had reviewed Plaintiff's Motion and noted “it is couched entirely in terms of a motion for judgment on the pleadings or motion to strike. In other words, there is not any reference to evidence outside of the pleadings and Plaintiff does not set out the Rule 56 standard or address her arguments to that standard. This appears, therefore, to be a motion for partial summary judgment in title only.” Accordingly, to the extent that any party sought to amend its pleadings or sought an extension of time to file a response to pleadings, the Court directed the party to file a motion no later than March 23, 2018. The Court also held the briefing schedule for Plaintiff's Motion for Judgment on the Pleadings in abeyance “until further order of the Court.” On March 21, 2018, the parties filed a Joint Motion to Extend Deadline for Discovery, Set Dispositive Motions Deadline, and Stay Other Deadlines in which the parties sought an order from the Court “(i) extend[ing] the deadline for the close of discovery from March 22, 2018 to July 13, 2018, (ii) set[ting] a dispositive motions deadline of August 31, 2018, and (iii) stay[ing] all other deadlines until at least August 31, 2018.” On March 23, 2018, the Court granted the parties' Joint Motion and struck all previously-set, case-management deadlines.

         On March 23, 2018, Guidera also filed a Motion (#27) to Amend Answer and Affirmative Defenses and Gladen filed a Motion (#28) for Leave to File First Amended Answer, Affirmative Defenses and Counterclaim in which, among other things, she reasserts her Counterclaim for declaratory judgment.

         On March 27, 2018, the Court signed the parties' Stipulated Protective Order limiting the use and dissemination of Plaintiff's private data, which is the subject of this action.

         On April 6, 2018, Plaintiff filed a combined Response to both Defendants' Motions to Amend. The Court took Defendants' Motions to Amend under advisement on May 2, 2018.

         STANDARDS

         Federal Rule of Civil Procedure 15(a) provides a party may amend a pleading after a responsive pleading has been filed only by leave of court unless the opposing party consents to the amendment. Rule 15(a), however, also provides leave to amend “shall be freely given when justice so requires.” This policy is to be applied with “extreme liberality.” Moss v. United States Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).

         The Supreme Court has recognized several factors that a district court should consider when determining whether justice requires the court to grant leave to amend. Those factors include

undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of the amendment.

Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th Cir. 2003)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)). The factor that carries the greatest weight is whether the amendment will prejudice the opposing party. Id. “Absent prejudice or a strong showing of any of the remaining Foman factors, there exists a presumption under Rule 15(a) in favor of granting leave to amend.” Id.

         A proposed amendment "is futile only 'if no set of facts can be proved under the amendment . . . that would constitute a valid and sufficient claim.'" Wisdom v. Centerville Fire Dist., Inc., 391 Fed.Appx. 580, 583 (9th Cir. 2010)(quoting Miller v. Rykoff-Sexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)). See also Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir. 2008)(proposed amendment . . . is futile when the pleading “could not be saved by any amendment.”). "'If the underlying facts or circumstances relied upon by a [party] may be a proper subject of relief, he ought to be afforded an opportunity to test his claim on the merits.'" AmerisourceBergen Corp. v. Dialysist West, Inc., 465 F.3d 946, 957 (9th Cir. 2006)(quoting Foman, 371 U.S. at 182). A party should be afforded an opportunity to test her claim on the merits unless it appears beyond doubt that the proposed amended pleading would be dismissed for failure to state a claim under Federal Rule of Civil Procedure 12(b)(6). AmerisourceBergen, 465 F.3d at 957.

         DISCUSSION

         Guidera seeks to amend her Answer to add facts in support of her affirmative defenses of unclean hands and in pari delicto and to add other clarifying facts. Gladen seeks to amend her Answer to add facts in support of her affirmative defenses of unclean hands and in pari delicto, to assert an additional affirmative defense of laches, and to add other clarifying facts. Plaintiff opposes both Defendants' requested amendments on the ground that amendment would be futile.

         I. In Pari Delicto

         A. Gladen's Affirmative Defense of I ...


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