United States District Court, D. Oregon
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 PAM STENDAHL, Defendants.
OPINION AND ORDER
MICHAEL W. MOSMAN CHIEF UNITED STATES:0ISTRICT JUDGE
named defendants have collectively filed four separate
Motions to Dismiss challenging the claims made by Plaintiff
in his Second Amended Complaint . The four Motions to
Dismiss are those filed by 1) Defendants Linda L. Marshall
and Joel Christiansen ; 2) Defendant Andrew Brandsness
; 3) Defendants Oregon State Bar Professional Liability
Fund ("PLF"), Carol Bemick, and Pam Stendahl ;
and 4) Defendant Matt Kalmanson . For the reasons
explained below, all four motions are GRANTED. All claims are
dismissed with prejudice against all named defendants.
action began on October 8, 2018, when Plaintiff Timothy C.
Rote filed suit in Clackamas County Circuit Court.
See Notice of Removal  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
. Removal was proper under 28 U.S.C. § 2679(d)(2).
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  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 , . 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.
8, 2019, Rote filed a Second Amended Complaint  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.
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.
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
Claims Two, Three, and Four - (Against All
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  at 1-4. That ruling
stands. Any purported amendments to these claims (e.g.,
paragraphs 25, 28, 29 and 35) will not be considered.
Claim Five: ORS 166.720(2). (3) - (Against All
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.  at 10, 14. These
two provisions of ORICO make it unlawful to engage in a
"pattern of racketeering activity" to achieve
certain ends. 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. §