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Wani v. George Fox University

United States District Court, D. Oregon

November 15, 2018

SAMUEL WANI, Plaintiff,
v.
GEORGE FOX UNIVERSITY; PROVIDENCE MEDICAL GROUP; DR. THOMAS CROY, M.D.; DOMINIC FIX-GONZALEZ; GREGG BOUGHTON; CHRIS Y; JOHN BATES; IAN SANDERS; GABE HABERLY; CRAIG TAYLOR; DAVE JOHNSTONE; MARK POTHOFF, and SARAH TAYLOR, Defendants.

          OPINION & ORDER

          MARCO A. HERNANDEZ, UNITED STATES DISTRICT JUDGE

         Magistrate 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 Procedure 72(b).

         When 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).

         I have 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.

         The 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."[1] 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.

         After 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.[1] 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 contract claim.

         Before 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.[2] 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.

         I agree 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.

         However, 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.

         I agree 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).

         Here, 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 those claims.

         That 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, ...


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