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Russi v. Wissenback

United States District Court, D. Oregon, Eugne Division

April 30, 2019

DEBORAH ELAINE RUSSI, Plaintiff,
v.
CATHERINE WISSENBACK, Defendant.

          OPINION AND ORDER

          Ann Aiken, United States District Judge.

         Plaintiff Deborah Russi filed this action against defendant Catherine Wissenback, asserting claims of (1) abuse of a vulnerable person under ORS 124.100; (2) intentional infliction of emotion distress ("IIED"); (3) invasion of privacy (intrusion upon seclusion); and (4) a civil action under the Computer Fraud and Abuse Act, 18 U.S.C. § 1030(g) ("CFAA"). Defendant moves to dismiss plaintiffs, first, second, and fourth claims.

         For the following reasons, defendant's partial Motion to Dismiss (doc. 9) is GRANTED.

         BACKGROUND

         Plaintiff and defendant are sisters. Their father established a trust, and plaintiffs husband, Joseph Russi, is the trustee. Plaintiff alleges that defendant became upset either about her lack of beneficial interest in the trust, or the fact that Mr. Russi was named trustee and began to harass plaintiff through phone calls, voice mails, text messages, email, and social media. Defendant's threatening and harassing communications made plaintiff fear for her physical and emotional safety.

         Plaintiff also alleges that defendant further harassed her by (1) using plaintiffs personal email account to send plaintiffs "confidential personally-identifying information to third parties" in an effort to spam plaintiff with unwanted emails; (2) logging into plaintiffs financial accounts; and (3) using plaintiffs identify to engage in a "presently unknown number of online transactions." Amend. Compl. ¶ 8(a).

         Plaintiff suffers from multiple myeloma, a form of cancer, and is deemed disabled by the Social Security Administration. Plaintiff alleges that her medical condition and physical vulnerabilities make her susceptible to emotional injury, threats, duress, and undue persuasion. Plaintiff further alleges that defendant's actions caused her severe anxiety and emotional distress, which in turn "worsened" her medical condition. Amend. Compl. ¶ 9.

         On June 11, 2018, plaintiff filed this action against defendant, asserting claims of (1) abuse of a vulnerable person, ORS 124, 100; (2) IIED; (3) invasion of privacy; and (4) a civil action under the CFAA. On October 10, 2018, plaintiff filed an Amended Complaint asserting the same claims. Defendant now moves to dismiss plaintiffs first, second, and fourth claims.

         STANDARDS

         When considering a motion to dismiss, a court construes a complaint in favor of the plaintiff and takes all factual allegations as true. Odom v. Microsoft Corp., 486 F.3d 541, 545 (9th Cir. 2007). "[F]or a complaint to survive a motion to dismiss, the non-conclusory 'factual content,' and reasonable inferences from that content, must be plausibly suggestive of a claim entitling the plaintiff to relief." Moss i>. U.S. Secret Seru., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)). A "formulaic recitation of the elements of a cause of action" or "naked assertions devoid of further factual enhancement" and not sufficient to state a plausible claim. Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. "Dismissal under Rule 1203)(6) is proper only when the complaint either (1) lacks a cognizable legal theory or (2) fails to allege sufficient facts to support a cognizable legal theory." Zixiang Li v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

         DISCUSSION

         Defendant moves to dismiss the following claims: (1) abuse of a vulnerable person, ORS 124.100; (2) IIED; and (4) violation of the CFAA. Alternatively, defendant moves for an order to make the complaint more definite and certain. I address each in turn.

         As a preliminary matter, plaintiffs pleadings frequently fall short of the minimal threshold established in Iqbal. Plaintiffs allegations often amount to nothing more than formulaic recitations of the elements of a claim supported by legal conclusions couched as factual allegations. Plaintiff also often employs terms so vague or ambiguous that it is impossible for the Court to determine if the conduct they describe rises an actionable level.

         I. Abuse of a Vulnerable ...


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