United States District Court, D. Oregon, Portland Division
TIMOTHY C. ROTE, Plaintiff,
LINDA L. MARSHALL, JOEL CHRISTIANSEN, ANDREW BRANDSNESS, CAROL BERNICK, OREGON STATE BAR PROFESSIONAL LIABILITY FUND, MATT KALMANSON, JANE DOE, JOHN DOES 4-5, and PAMELA STENDAHL, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES-DISTRICT JUDGE
matter comes before me on Defendant Andrew Brandsness's
Motion to Dismiss , Defendants Bernick, Stendahl, and the
Oregon State Bar Professional Liability Fund's (PLF)
Motion to Dismiss , and the United States' Motion to
Dismiss . For the following reasons, these motions are
granted, Claims Two, Three, and Four are dismissed with
prejudice against all defendants, and Claims Five, Six, and
Seven are dismissed against the United States with prejudice
and against all remaining defendants with leave to amend.
Timothy Rote brought suit in Clackamas County Circuit Court
against the listed defendants. Because Defendant Jane Doe has
been identified as Nancy Walker, a federal employee who was
acting within the scope of her employment as a court reporter
at all times in question, the United States substituted
itself in her place automatically according to the Federal
Tort Claims Act (FTCA) and removed the action to this court.
Removal was proper under 28 U.S.C. § 2679(d)(2).
Rote's First Amended Complaint contains seven claims,
each against different defendants. Because not all defendants
have moved to dismiss on all claims, I address each claim in
One - Defamation
first claim is for defamation against Defendants Linda
Marshall and Joel Christiansen. Neither defendant named in
this claim has moved to dismiss, therefore Claim One stands.
Two - Malpractice
second claim is for malpractice against Brandsness. Rote
alleges that Brandsness committed malpractice when he acted
as defense attorney to corporate entities in two federal
civil cases in which Rote was also a defendant acting pro se.
In a claim for professional negligence, a plaintiff must
allege and prove "(1) a duty that runs from the
defendant to the plaintiff; (2) a breach of that
duty; (3) a resulting harm to the plaintiff
measurable in damages; and (4) causation, i.e., a
causal link between the breach of duty and the harm."
Stevens v. Bispham, 316 Or. 221, 227 (1993).
moves to dismiss this claim due to a lack of duty owed to
Rote. Rote alleges that Brandsness represented corporate
entities in the litigation in question and did not represent
Rote individually. Therefore, Rote has failed to allege an
attorney-client relationship between himself and Brandsness.
No. amendment to his Complaint can remedy the claim if no
relationship existed. Without an attorney-client
relationship, Rote cannot demonstrate the element of duty and
cannot show malpractice. I therefore GRANT Brandsness's
Motion to Dismiss  as to Claim Two and dismiss the claim
Three - Breach of Contract
third claim is for breach of contract against Defendants
Brandsness and the Oregon State Bar PLF (PLF). Rote
reiterates his allegations of malpractice against Brandsness
and claims that the PLF has refused to redress and cover the
malpractice by Brandsness. "To state a claim for breach
of contract, [a] plaintiff must allege the existence of a
contract, 'its relevant terms, plaintiffs full
performance and lack of breach and defendant's breach
resulting in damage to plaintiff" Sloverv. Or. State
Bd. of Clinical Soc. Workers, 921V 2d 1098, 1101 (Or.
Ct. App. 1996) (quoting Fleming v. Kids & Kin Head
Start, 693 P.2d 1363 (Or. Ct. App. 1985)).
argues that Rote has failed to plead the formation of a
contract because no attorney-client relationship existed
between himself and Rote. Without a contract, Rote cannot
argue breach. Amendment will not allow Rote to plead a breach
where no contract exists. Therefore, I GRANT Brandsness's
Motion to Dismiss  as to Claim Three and dismiss the claim
has moved to dismiss this claim for similar reasons. While
the PLF has contracts with individual attorneys, Rote is not
a third-party beneficiary of those contracts and therefore
does not have third-party standing. Rote's allegation
that the PLF exists to protect the public from ...