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Rote v. Marshall

United States District Court, D. Oregon

September 6, 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 PAM STENDAHL, Defendants.

          OPINION AND ORDER

          MICHAEL W. MOSMAN CHIEF UNITED STATES:0ISTRICT JUDGE

         The named defendants have collectively filed four separate Motions to Dismiss challenging the claims made by Plaintiff in his Second Amended Complaint [47]. The four Motions to Dismiss are those filed by 1) Defendants Linda L. Marshall and Joel Christiansen [52]; 2) Defendant Andrew Brandsness [53]; 3) Defendants Oregon State Bar Professional Liability Fund ("PLF"), Carol Bemick, and Pam Stendahl [54]; and 4) Defendant Matt Kalmanson [55]. For the reasons explained below, all four motions are GRANTED. All claims are dismissed with prejudice against all named defendants.

         BACKGROUND

         This action began on October 8, 2018, when Plaintiff Timothy C. Rote filed suit in Clackamas County Circuit Court. See Notice of Removal [1] Ex. 2 at 1. In his First Amended Complaint, Rote added Jane Doe as a listed defendant. Because Defendant Jane Doe was identified as Nancy Walker, a federal employee acting within the scope of her employment as a court reporter, the United States substituted itself pursuant to the Federal Torts Claim Act ("FTCA") and removed the action to this Court. See Order [38]. Removal was proper under 28 U.S.C. § 2679(d)(2).

         Rote's First Amended Complaint asserted seven claims against various combinations of the named defendants: 1) Defamation, 2) Malpractice, 3) Breach of Contract, 4) Breach of Implied Covenant of Good Faith, 5) Racketeering, 6) Intentional Infliction of Emotional Distress ("IIED"), and 7) Fraud. In my Opinion and Order [38] entered on April 25, 2019, ("April Order"), I ruled on Defendants' Motions to Dismiss with respect to Rote's First Amended Complaint. I dismissed with prejudice Claims One, Two, Three, and Four against all defendants, and Claim Six against Defendants Marshall and Christiansen. Order [38], [44]. I also dismissed Claims Five, Six, and Seven against the United States with prejudice and against all remaining defendants with leave to amend. Id. at 1-2. As to those claims where I granted leave to amend, I held that there was a total failure to plead with the required level of specificity needed to properly state a claim for relief in each instance. Id. at 4-7.

         On May 8, 2019, Rote filed a Second Amended Complaint [47] seeking to cure the deficiencies identified in the April Order. Defendants moved anew to dismiss all claims made in the amended complaint. I will address each claim in turn below.

         STANDARD OF REVIEW

         To survive a motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) for failure to state a claim, "a complaint must contain sufficient factual matter, accepted as true, to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A pleading that offers only '"labels and conclusions' or 'a formulaic recitation of the elements of a cause of action will not do.'" Id. (quoting Twombly, 550 U.S. at 555). Nor will '"naked assertion[s]' devoid of 'further factual enhancement.'" Id. (quoting Twombly, 550 U.S. at 557). The court generally must "accept all factual allegations in the complaint as true and draw all reasonable inferences in favor of the nonmoving party." Dahlia v. Rodriguez, 735 F.3d 1060, 1066 (9th Cir. 2013) (quoting TwoRivers v. Lewis, 174 F.3d 987, 991 (9th Cir. 1999)). Legal conclusions in a complaint, however, are not entitled to a presumption of truth. Iqbal, 556 U.S. at 679.

         When reviewing a motion to dismiss against a pro se plaintiff, the court construes the pro se pleadings "liberally," affording the plaintiff the "benefit of any doubt." Hebbe v. Pliler, 627 F.3d 338, 342 (9th Cir. 2010) (internal quotations omitted). This liberal interpretation may not, however, "supply essential elements of the claim that were not initially pled." See Ivey v. Bd. of Regents of Univ. of Alaska, 673 F.2d 266, 268 (9th Cir. 1982).

         DISCUSSION

         I. Claims Two, Three, and Four - (Against All Defendants)

         As described above, in the April Order I dismissed Claims Two, Three, and Four in Rote's First Amended Complaint against all defendants with prejudice. Order [38] at 1-4. That ruling stands. Any purported amendments to these claims (e.g., paragraphs 25, 28, 29 and 35) will not be considered.

         II. Claim Five: ORS 166.720(2). (3) - (Against All Defendants)

         Rote asserts that Defendants have violated the Oregon Racketeer Influenced and Corrupt Organizations Act ("ORICO"). Specifically, Rote cites violations of Or. Rev. Stat. §§ 166.720(2), (3). Compl. [47] at 10, 14. These two provisions of ORICO make it unlawful to engage in a "pattern of racketeering activity" to achieve certain ends.[1] A "pattern of racketeering activity" is defined as "engaging in at least two incidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics . . . ." Or. Rev. Stat. § 166.715(4). What constitutes "racketeering activity" is delineated in Or. Rev. Stat. § ...


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