United States District Court, D. Oregon
MICHAEL S. EDMONDSON, Plaintiff,
THRIFTY PAYLESS, INC., a foreign Corporation dba RITE AID, Defendant; MICHAEL S. EDMONDSON, Plaintiff,
EDWARD P. FITCH, ATTORNEY, Defendant; THRIFTY PAYLESS, INC., a foreign Corporation dba RITE AID, Third-Party Plaintiff,
LISA D. EDMONDSON, and REDMOND PHARMACY, LLC, an Oregon Limited Liability Company, Third-Party Defendants.
OPINION AND ORDER
MICHAEL MCSHANE UNITED STATES DISTRICT JUDGE
Michael S. Edmondson brings this action for breach of
contract, fraudulent misrepresentation, and negligent
misrepresentation against Thrifty Payless, Inc., dba Rite
Aid. Rite Aid moves under Federal Rule of Civil Procedure
12(b)(6) to dismiss Edmondson's fraudulent and negligent
misrepresentation claims. The Court scheduled oral argument
by telephone on the motion and mailed instructions to
Edmondson. Edmondson did not appear.
Edmondson's alleged facts, there can be no cognizable
claim of fraudulent misrepresentation because: (1) Edmondson
was not ignorant of the falsity of Rite Aid's alleged
statement; (2) Edmondson could not reasonably rely on Rite
Aid's alleged statement; and (3) Edmondson had no right
to rely on the truth of Rite Aid's alleged statement.
There can be no cognizable claim of negligent
misrepresentation because there was no special relationship
between Edmondson and Rite Aid; each party acted at arm's
length in its own economic best-interests. Rite Aid's
motion to dismiss is GRANTED, and Edmondson's fraudulent
and negligent misrepresentation claims are dismissed with
and Lisa Edmondson owned Redmond Pharmacy & Compounding
Center (RPCC), a pharmacy in Redmond, Oregon that they sold
to Rite Aid on either October 20 or October 30,
2015. SAC ¶¶ 10, 13. After previous
preliminary negotiations between Rite Aid and the Edmondsons
did not progress, Rite Aid expressed renewed interest in
purchasing RPCC on June 15, 2015. SAC ¶¶ 6-7. The
broker provided Rite Aid a self-audit of RPCC
“indicating there was a current investigation into RPCC
and Plaintiff by the [OBOP].” SAC ¶ 7. On June 26,
“Rory Lambert, an employee of Thrifty conducted an
in-person audit of RPCC. These discussions included
information about the OBOP investigation of the
plaintiff.” SAC ¶ 8. On August 24, 2015, Edmondson
completed an application for employment with Rite Aid. SAC
¶ 22. “On this application plaintiff indicated
that there was an investigation pending on his professional
license.” SAC ¶ 22. Michael Edmondson was under
investigation by the Oregon Board of Pharmacy (OBOP)
throughout the sale and employment negotiations. SAC
¶¶ 7-8, 11-13, 15, 18, 20, 22, 27, 29-30, 33, 38,
48-50, 59, 64.
September 7, 2015, Rite Aid offered Edmondson a job as a
pharmacist. SAC ¶ 23. On October 30, 2015, the
Edmondsons and Rite Aid signed the RPCC purchase and sale
agreement. SAC ¶ 13. On November 2, 2015, Lambert asked
Edmondson to submit to a second background check. On November
16, 2015, Lambert told Edmondson the hire could proceed as
Edmondson cleared the background check. SAC ¶ 32. On
November 18, 2015, Edmondson's official employment as a
pharmacist with Rite Aid began. SAC ¶ 16.
Edmondson's employment with Rite Aid did not last long;
Right Aid suspended Edmondson without pay on December 17,
2015, after “Lambert claimed that Rite Aid and he had
no knowledge of the details of the OBOP investigation.”
SAC ¶ 18. On December 21, 2015, Rite Aid terminated
Edmondson. SAC ¶ 19.
survive a motion to dismiss under rule 12(b)(6), a complaint
must contain sufficient factual matter that “state[s] a
claim to relief that is plausible on its face.”
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007). A claim is plausible on its face when the factual
allegations allow the court to infer the defendant's
liability based on the alleged conduct. Ashcroft v.
Iqbal, 556 U.S. 662, 663 (2009). The factual allegations
must present more than “the mere possibility of
misconduct.” Id. at 678.
considering a motion to dismiss, the court must accept all
allegations of material fact as true and construe them in the
light most favorable to the non-movant. Burget v.
Lokelani Bernice Pauahi Bishop Trust, 200 F.3d
661, 663 (9th Cir. 2000). But the court is “not bound
to accept as true a legal conclusion couched as a factual
allegation.” Twombly, 550 U.S. at 555. If the
complaint is dismissed, leave to amend should be granted
unless the court “determines that the pleading could
not possibly be cured by the allegation of other
facts.” Doe v. United States, 58 F.3d 494, 497
(9th Cir. 1995).
fraudulent and negligent misrepresentation claims are
predicated on Rite Aid's statement to Edmondson that his
background was clear. Edmondson argues that he was harmed
when he detrimentally relied on the statement that his
background was clear. Edmondson claims that Rite Aid's
statement induced him to: (1) sell RPCC to Rite Aid without
consideration of other possible buyers, and (2) seek
employment only with Rite Aid to the exclusion of other
possible job opportunities. Because the alleged facts in
Edmondson's complaint viewed in the light most favorable
to him do not support a fraudulent misrepresentation or
negligent misrepresentation claim, Rite Aid's motion to
dismiss is granted. I discuss each claim in turn.
9(b) of the Federal Rules of Civil Procedure requires a party
alleging fraud to “state with particularity the
circumstances constituting fraud.” Rite Aid argues that
Edmondson does not allege the particular facts necessary for
a fraudulent misrepresentation claim in his Second Amended
Complaint. I agree.
pleadings, as a pro se litigant, should be construed
liberally and given the benefit of the doubt. King v.
Atiyeh, 814 F.2d 565, 567 (9th Cir. 1987); Erickson
v. Pardus, 551 U.S. 89, 94 (2007). However, the court
cannot make out of whole cloth the facts necessary to support
a claim when they are not pleaded and cannot be inferred from
facts pled. See Gibson v. United States, 781 F.2d
1334, 1340 (9th Cir. 1986) (quoting Ivey v. Board of
Regents, 673 F.2d 266, 268 (9th Cir. 1982) (Explaining
that the court “may not supply essential elements of
the claim that were not initially pled.'”)).
Edmondson's admission in his Second Amended ...