United States District Court, D. Oregon
OPINION & ORDER
A. HERNANDEZ, UNITED STATES DISTRICT JUDGE
Judge You issued a Findings and Recommendation (#198) on
August 8, 2018, in which she recommends that this Court deny
Plaintiff's motions for summary judgment, for leave to
amend, and for sanctions; and that this Court grant
Defendants' motions for judgment on the pleadings and
summary judgment. The matter is now before me pursuant to 28
U.S.C. § 636(b)(1)(B) and Federal Rule of Civil
any party objects to any portion of the Magistrate
Judge's Findings & Recommendation, the district court
must make a de novo determination of that portion of
the Magistrate Judge's report. 28 U.S.C. §
636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328
F.3d 1114, 1121 (9th Cir. 2003) (en banc).
carefully considered Plaintiff's objections and other
than as discussed more fully below, I conclude there is no
basis to modify the Findings & Recommendation. I have
also reviewed the pertinent portions of the record de
novo and find no other errors in the Magistrate
Judge's Findings & Recommendation.
procedural history of the case is a bit complicated because
both Plaintiff and certain Defendants filed motions before
the resolution of an earlier motion to dismiss and before the
viability of any amended claims was adjudicated. Plaintiff
filed the case on June 29, 2017 and initially brought six
claims for relief against a variety of Defendants. ECF 1.
After some Defendants had answered and other Defendants had
filed Rule 12 motions, and after Plaintiff voluntarily
dismissed another Defendant, Plaintiff filed a summary
judgment motion. In a February 22, 2018 Findings &
Recommendation, Judge You recommended granting the Rule 12
motions brought by the "GFU
Defendants." Those motions challenged five of the six
claims, omitting any challenge to a race discrimination claim
set forth as the fourth claim for relief in the original
Complaint. Judge You recommended dismissal of the other five
claims, with leave to amend four of the five. She recommended
dismissal of the fifth claim for relief, which alleged a
HIPPA violation, with prejudice. The day after the February
22, 2018 Findings & Recommendation was filed, Judge You
stayed Plaintiff's motion for summary judgment pending
completion of discovery. ECF 132.
the February 22, 2018 Findings & Recommendation was
filed, but before I issued my Order adopting that Findings
& Recommendation on April 5, 2018, the Individual GFU
Defendants filed a motion for judgment on the pleadings on
the race discrimination claim which the GFU Defendants had
not challenged in the prior Rule 12 motions. On April 5,
2018, I adopted the February 22, 2018 Findings &
Recommendation and thus, as of that date, Plaintiff's
fifth claim for relief alleging a HIPPA violation was out of
the case. ECF 146. But, the other claims (a claim of
"cyberbullying," more than one negligence claim,
and a breach of contract claim), were dismissed without
prejudice and thus, Plaintiff was able to amend them. The
April 5, 2018 Order provided additional clarification
regarding the two negligence claims and the breach of
Plaintiff filed an amended pleading, or a motion to amend,
however, Defendants filed several motions: (1) Croy moved for
summary judgment; (2) Fix-Gonzalez moved for judgment on the
pleadings; and (3) the GFU Defendants moved for summary
judgment on the race discrimination claim. Approximately six
weeks after the April 5, 2018 Order was filed, Plaintiff
filed a motion for leave to file an amended complaint. Thus,
because of the timing of the motions, Judge You was forced to
consider a motion for judgment on the pleadings and summary
judgment motions before Plaintiff's motion to amend was
resolved. Nonetheless, given that context, the Findings &
Recommendation sets forth a logical analysis of addressing
Plaintiffs' motion for leave to amend before considering
the remaining motions.
with Judge You's recommendations that Plaintiff's
motion for summary judgment and motion for sanctions should
be denied. I find no error in the portions of the Findings
& Recommendation addressing these motions and I do not
discuss them further. I also agree with Judge You's
recommendations that Defendant Fix-Gonzalez's motion for
judgment on the pleadings, the Individual GFU Defendants'
motion for judgment on the pleadings which is directed to the
fourth claim alleging race discrimination, Dr. Croy's
motion for summary judgment, and the GFU Defendants'
motion for summary judgment which is directed to the fourth
claim alleging race discrimination, be granted. I find no
error in the portions of the Findings & Recommendation
addressing these motions and I do not discuss them further.
I disagree with some of Judge You's recommendations
regarding Plaintiff's motion for leave to amend.
Initially, while I agree with Judge You that Plaintiff's
proposed pleading failed to conform to Federal Rules of Civil
Procedure 8 and 10, I would not deny the motion to amend on
that basis alone. I also would not deny it because Plaintiff
failed to confer. And, I disagree that Plaintiff 's
filing his motion to amend six weeks after the April 5, 2018
Order constitutes unjustified delay given that the April 5,
2018 Order failed to specify a date by which an amended
pleading or motion to amend had to be filed. Judge You,
however, despite her initial determinations on these issues,
appears to have denied Plaintiff's motion for leave to
amend primarily because she found the proposed claims to be
futile. I agree with her reasoning as to the futility of the
intentional/negligent infliction of emotional distress
(IIED/NIED) claim against Fix-Gonzalez and the Individual GFU
Defendants named in this claim. F&R 17-19. I also agree
with her reasoning as to the futility of the fraud claim
against Croy and the Individual GFU Defendants named in that
claim. Id. at 20-21. And, I agree with her reasoning
as to the futility of the breach of contract claim against
the three Defendants named in that claim. Id. at
19-20. I do not discuss these claims further.
with her recommendation that the IIED/NIED and fraud claims
are also futile as to GFU, but for different reasons. Judge
You recommended denying the motion for leave to amend the
IIED/NIED claim and the fraud claim as to GFU because without
liability as to the Individual GFU Defendants, Plaintiff
cannot sustain a claim against GFU based on GFU's
vicarious liability. Id. at 17-19, 20-21. Judge You
is correct. However, Plaintiff also alleges an independent
negligent hiring, retention, supervision, and/or training
claim as to GFU. Prop. Am. Compl. 10, 17, ECF 168-1.
Negligent hiring, etc. type claims are claims of direct
liability, distinguishable from those based on a theory of
vicarious liability and must be separately analyzed.
See, e.g., Doe ex rel. Christina H. v.
Medford Sch. Dist. 549C, No. 10-3113-CL, 2011 WL
1002166, at *8 (D. Or. Feb. 22, 2011) (describing the
plaintiffs' claim seeking to impose liability on the
defendant for negligently supervising an employee as a claim
of direct liability for negligent supervision, not vicarious
liability), adopted by J. Panner, 2011 WL 976463 (D.
Or. Mar. 18, 2011).
as to the IIED/NIED and fraud claims, the separate analysis
leads to the same result: any claim as to GFU based on a
negligent hiring, etc. theory is futile. This kind of claim
has the same elements as negligence claim. Dodd v. AA
& S Corp., No. 3:17-cv-00246-AC, 2017 WL 4020426, at
*3 (D. Or. Aug. 25, 2015), adopted by J. Brown, 2017
WL 4012957 (D. Or. Sept. 12, 2017). Thus, to prevail on such
a claim, the plaintiff must allege and ultimately show, a
duty owed to the plaintiff, a breach of that duty, and that
the "breach was the direct cause of the plaintiff's
harm." Id. Additionally, these types of claims
require foreseeability, just like any negligence claim, and
thus, a plaintiff asserting a negligent hiring-type claim
must allege and eventually prove that the defendant had
reason to know of the underlying alleged negligent practices.
Millbrooke v. City of Canby, No. 3:12-cv-00168-AC,
2013 WL 6504680, at *7 (D. Or. Dec. 11, 2013) ("In order
to establish a negligent supervision claim under Oregon law,
Millbrooke must demonstrate that the City had reason to know
of Officer Murphy's alleged unlawful
propensities."), adopted by J. Simon, 2014 WL
287859 (D. Or. Jan. 24, 2014). Here, because the underlying
IIED/NIED and fraud claims are futile, Plaintiff cannot, as a
matter of law, establish causation as to GFU on the negligent
hiring, supervision, etc. claim. Additionally, Plaintiff
fails to allege that GFU had reason to know of the alleged
negligent supervision, etc. by the Individual GFU Defendants.
Thus, with this additional clarification, I adopt the
Findings & Recommendation's conclusion that the
IIED/NIED and fraud claims in Plaintiff's Proposed
Amended Complaint are futile as to all Defendants named in
leaves the "personal injury" claim. As I understand
the claim as presented in the Proposed Amended Complaint, it
is a single claim brought against four Defendants: Boughton,
Casey, Croy, and GFU. Prop. Am. Compl. 1-7. I agree with
Judge You that the claim as alleged against Croy is futile.
F&R 16. Judge You accurately summarizes the claim as
alleged against Boughton, Casey, and GFU:
Wani realleges that Boughton caused further injury to his
thumb by refusing to allow him to leave practice to seek
medical attention, and repeatedly disregarding his assertions
that he had a broken thumb or torn ligament. Wani alleges
that Casey contributed to the worsening of his injury by
issuing an edict that players not leave football practice,
thereby leaving him at Boughton's mercy. Wani seeks to
hold GFU liable for negligent hiring, retention, supervision,
and training of Casey and Boughton.
Id. at 15 (citations omitted). Judge You then
analyzed the claim as to Boughton and Casey together, and
determined that the "central allegation" contending
that Boughton's and Casey's "misdiagnosis"
resulted in subsequent injury to the plaintiff, was missing
from the proposed amended claim. Id. at 15-16. She
explained that under Oregon law, expert testimony is required
to establish the standard of care. Id. at 16.
Plaintiff, she wrote, "has not identified, much less
provided any evidence from, any such expert."
Id. Thus, she reasoned, ...