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Rote v. Marshall

United States District Court, D. Oregon, Portland Division

April 26, 2019

TIMOTHY C. ROTE, Plaintiff,
v.
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

         This matter comes before me on Defendant Andrew Brandsness's Motion to Dismiss [4], Defendants Bernick, Stendahl, and the Oregon State Bar Professional Liability Fund's (PLF) Motion to Dismiss [12], and the United States' Motion to Dismiss [29]. 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.

         BACKGROUND

         Plaintiff 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 turn.

         DISCUSSION

         Claim One - Defamation

         Rote's 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.

         Claim Two - Malpractice

         Rote's 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).

         Brandsness 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 [4] as to Claim Two and dismiss the claim with prejudice.

         Claim Three - Breach of Contract

         Rote's 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)).

         Brandsness 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 [4] as to Claim Three and dismiss the claim with prejudice.

         The PLF 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 ...


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