United States District Court, D. Oregon
FINDINGS AND RECOMMENDATIONS
Mustafa T. Kasubhai, United States Magistrate Judge
se Plaintiff filed claims under Title VII of the 1964
Civil Rights Act (42 U.S.C. § 1981 and 42 U.S.C. §
1983) and under the "Oregon Constitution Art. 1, Sec[.]
20 (equal privileges and immunities for all citizens)."
Compl. 2, ECF No. 1. Defendants move for dismissal of
Plaintiff s federal and state law claims under Federal Rule
of Civil Procedure 12(b)(6) for failure to comply with the
statute of limitations, claim preclusion, and failure to
state a claim. Mot. Dismiss 1, ECF No. 7. For the reasons
that follow, this Court should grant Defendants' motion
and dismiss Plaintiffs federal claims with prejudice because
they are precluded. The Court should decline to exercise
supplemental jurisdiction over Plaintiffs remaining common
the last seven years, Plaintiff filed multiple cases in
Oregon state court involving the same set of facts at issue
here. Defendant's motion to dismiss provides a
comprehensive summary of Plaintiff s state court cases and
provides context to the current claims. The Court quotes
The first case: Niklas Goertzen v. Sisters School
District No. 6, Cheryl Stewart, Daniel Stewart, and Lisa
Young, Deschutes County Circuit Court Case No.
2012, plaintiff filed his first civil action against the
district and three individual defendants, Daniel and Cheryl
Stewart, and Lisa Young in Oregon state court. Declaration of
Peter R. Mersereau, Exs. 1 (12CV Complaint) & 2 (12CV
Docket).l [Defendants' footnote instructs that
"[a]ll of the referenced exhibits are attached to the
Mersereau declaration.] In that case, plaintiff brought
contract and tort claims alleging that he had been improperly
terminated from the district's soccer and track coaching
positions in 2011 and 2012, respectively. Ex. 1 (12CV
Complaint). The individual defendants, one of whom was a
district board member, promptly filed a special motion to
dismiss plaintiffs complaint under Oregon's Anti-SLAPP
statute, ORS 31.150. Exs. 3-5 (12CV Motions to Dismiss and
Strike). In February 2013, Deschutes County Circuit Court
Judge Alta Brady granted defendants' motions to strike.
Ex. 6 (12CV Opinion re Motions to Strike). Thereafter, Judge
Brady awarded roughly $32, 000 in fees and costs to the
moving defendants. A judgment of dismissal with money award
in favor of said defendants was then entered in April 2013.
Ex. 7 (12CV Supplemental Limited Judgment).
in order to pursue an appeal from the foregoing judgment,
plaintiff voluntarily dismissed his claims against the
district. Ex. 8 (12CV Motion to Dismiss). A judgment of
dismissal in favor of the district was entered on April 22,
2013. Judge Brady's rulings on defendants' special
motions to strike and motion to dismiss were affirmed by the
Oregon Court of Appeals. Ex. 9 (12CV AWOP #1).
August 25, 2015, plaintiff filed a motion under ORCP 71 to
vacate the judgment signed and entered by Judge Brady. Ex. 10
(12CV Motion to Vacate). Following briefing and oral
argument, that motion was denied by Judge Brady on April 25,
2016. Ex. 11 (12CV Order Denying Motion to Vacate). On May
23, 2016, plaintiff filed a notice of appeal from the
court's order denying his motion to vacate. Ex. 12 (12CV
Notice of Appeal). Judge Brady's ruling on plaintiffs
motion to vacate was affirmed by the Oregon Court of Appeals.
Exs. 13 & 14 (12CV AWOP #2).
The second case: Niklas Goertzen v. Sisters School
District No. 6, Rob Corrigan, Merry Ann Moore and Does
1-100, Deschutes County Circuit Court Case No.
commenced the second lawsuit in Oregon state court on January
24, 2014. Exs. 15 (14CV Complaint) & 16 (14CV Docket).
Plaintiff initially brought claims against the district and
two new individual defendants, Merry Ann Moore and Rob
Corrigan. Ex. 15 (14CV Complaint). Once again, plaintiff
brought numerous tort and contract claims stemming from the
termination of his soccer and track coaching positions in
2011 and 2012. Id.
Claims against the individual defendants
again, the individual defendants in this second case brought
special motions to dismiss under the Anti-SLAPP statute. Ex.
17 (14CV Motions to Strike). On July 28, 2014, Deschutes
County Circuit Court Judge Michael Adler granted the
individual defendants' motions. Ex. 18 (14CV Order re
Motions to Strike). On August 29, 2014, Judge Adler awarded
defendants the sum of $24, 061 in attorney fees. A limited
judgment thereon was entered in favor of the individual
defendants and against plaintiff on August 29, 2014. Exs. 19
(14CV Order re Fees) & 20 (14CV Limited Judgment).
Plaintiff did not take an appeal from that judgment.
plaintiff filed a motion to vacate the limited judgment
entered in favor of the individual defendants. Ex. 21 (14CV
Motion to Vacate). Deschutes County Circuit Court Judge Beth
Bagley denied that motion to vacate on November 13, 2015. Ex.
22 (14CV Order Denying Motion to Vacate). Thereafter, the
individual defendants moved for sanctions against plaintiffs
attorney, Marlin Ard, on the basis that the motion to vacate
had been improvidently filed under ORCP 17. Ex. 23 (14CV
Motion for Sanctions). Judge Bagley granted defendants'
motion for sanctions on April 14, 2016, and awarded sanctions
against Mr. Ard in the amount of $10, 252.32. Ex. 24 (14CV
Opinion re Sanctions) & 25 (Order re Sanctions). In her
opinion setting forth her rulings on this matter, Judge
Bagley stated that the purpose of plaintiff s motion was
"to continue what has been vexatious litigation that is
ill-supported by facts or law." Ex. 24 at p. 2 (Opinion
re Sanctions). An order and judgment reflecting Judge
Bagley's rulings on the sanctions motion was entered on
July 14, 2016. Exs. 25 (Order re Sanctions) & 26 (Limited
Judgment re Sanctions).
Claims against the district
the district moved for summary judgment against all of
plaintiff s claims in the second lawsuit. Ex. 27 (14CV Motion
for Summary Judgment). Deschutes County Circuit Court Judge
Wells Ashby granted the district's motion against the
claims for breach of the 2011 soccer contract, breach of the
implied covenant of good faith and fair dealing regarding the
2011 soccer contract, wrongful discharge, promissory
estoppel, and fraud. Ex. 28 (14CV Opinion re Summary
Judgment). This ruling left two claims for trial: breach of
the 2012 track contract and breach of the implied covenant of
good faith and fair dealing regarding the 2012 track
contract. See Ex. 15 (14CV Complaint). On the date
set for trial, plaintiff and the district settled the track
claims. See Ex. 16 (14CV Docket). The court entered
a general judgment resolving all claims in the second lawsuit
on January 30, 2017. Ex. 29 (14CV General Judgment).
subsequently appealed both judgments in the second lawsuit
(the appeal encompassed both Judge Bagley's ruling on
plaintiffs motion to vacate and Judge Ashby's decision
granting the district's motion for summary judgment on
the soccer based claims, the wrongful discharge claim, and
the fraud claim). Exs. 30 (14CV Notice of Appeal) & 31
(14CV Notice of Appeal). The Oregon Court of Appeals affirmed
without opinion. Exs. 32 (14CV AWOP #1) & 33 (14CV AWOP
Mot. Dismiss 3-6, ECF No. 7.
evaluating the present case, filed in the District Court, the
Court notes the following facts. Plaintiff was the girls'
soccer coach and the girls' and boys' track coach at
Sisters High School from February 2007 until February 2012.
Compl. ¶¶ 2, 11, ECF No. 1. Plaintiff alleges that
in February 2012, Defendants, acting under color of law,
"caused Plaintiffs termination from his
positions..." Id. at ¶¶ 5, 7.
Plaintiff also alleges that he only learned the facts alleged
in paragraphs 1-18 of his complaint in 2015 "through
discovery in a related matter." Id. at ¶
complaint alleges that "some parents.. .were actively
working for [Plaintiffs] termination" prior to Plaintiff
being fired. Id. at ¶ 4. Plaintiff asserts that
one of the parents was Merry Ann Moore, whom he named as a
defendant in a previous case. Id.; and see
Niklas Goertzen v. Sisters School District No. 6, Rob
Corrigan, Merry Ann Moore and Does 1-100, Deschutes
County Circuit Court Case No. 14CV0061. Plaintiffs complaint
contains multiple references to an "unlawful"
survey sent to parents of students, in which Defendants
allegedly solicited feedback about Plaintiffs coaching
performance. Comp. ¶¶ 4, 15, and see Ex. 5
at ¶ 6. Plaintiffs complaint contains allegations that
Defendants held deep personal animosity toward Plaintiff
(id. at ¶ 23, 25, 26), that Defendants'
emails show that Defendants traded insults about Plaintiff
that show they disliked him (id. at ¶ 23 (a),