Opinion
No. CV-04-1501-HU.
January 6, 2005
Lauren Paulson, Attorney at Law, Aloha, Oregon, Plaintiff Pro Se.
Susan K. Eggum, SUSAN K. EGGUM, P.C., Portland, Oregon, Attorney for Defendants.
OPINION ORDER
Plaintiff Lauren Paulson, an attorney licensed to practice law in Oregon and a member of the Oregon State Bar (OSB), brings civil rights and other claims against the OSB, OSB President William Carter, OSB Executive Director Karen Garst, OSB Vice-President Lisa LeSage, OSB President-Elect Nena Cook, OSB General Counsel George Riemer, and manager of OSB Regulatory Services and Discipline Jeff Sapiro. Plaintiff represents himself in this action.
Defendants move to dismiss, strike, and substitute pursuant to Federal Rules of Civil Procedure 12(b)(6), 12(f), and Oregon Revised Statute § (O.R.S.) 30.265. I grant in part and deny in part the motion to dismiss, I grant in part and deny in part the motions to strike, and I deny the motion to substitute.
BACKGROUND
Defendants' primary motions are motions to dismiss for failure to state a claim under Rule 12(b)(6). The motions to strike and to substitute are alternative motions. Thus, it is appropriate to describe the factual background based solely on the allegations in the First Amended Complaint (FAC). As noted below, the standards for evaluating a motion to dismiss require the court to review the sufficiency of the complaint. Review of other documents, such as the declaration filed by Carter, is inappropriate.
Defendants' objection to plaintiff's having filed the FAC without leave of court or consent from the adverse parties is discussed below.
The eight claims for relief asserted in the FAC are preceded by thirteen pages of facts and allegations. While the gist of the allegations seems apparent, the presentation in the FAC is not always clear and the chronology of actions is poorly organized.
As an attorney practicing insurance law in various states from 1973 until 1990, plaintiff had no OSB ethics complaints filed against him. FAC at ¶ 16. Since then, however, while he has been in private practice in Oregon, he has had over twenty-three OSB ethics complaints made against him. Id. Given the length of time it takes to investigate the complaints, plaintiff has been under OSB investigation nearly the entire time he has been in private practice in Oregon, except for a small period of time in 1996. Id.
In 1998, he began questioning whether the OSB Disciplinary Counsel's office, headed by Sapiro, was properly administered.Id. at ¶ 16. Plaintiff's frustration with the disciplinary process arose out of a particular complaint lodged against him which allegedly has taken an inordinate amount of time to proceed to a hearing. Id. at ¶ 17. Plaintiff contends that despite the initial summary dismissal of that ethics complaint, Sapiro proceeded with an investigation due to the continued "letter writing campaign" of the complainant. Id. Because Sapiro did not act quickly, plaintiff filed a formal ethics complaint against Sapiro, in approximately November 2001, alleging neglect of a legal matter in violation of Disciplinary Rule 6-101B. Id. at ¶ 18.
Additionally, plaintiff contends, although the investigation of the ethics complaint had been assigned to the local professional responsibility committee which routinely supervises such investigations, Sapiro took a personal interest in the matter and personally supervised it in all respects. Id. at ¶ 21. The case is still ongoing. Id.
In December 2001, plaintiff formally requested to be part of a "Disciplinary Task Force." Id. at ¶ 19. This group sought to examine the OSB Disciplinary Counsel's activities and methods, as well as other matters. Id.; see also id. at ¶ 41 (additional allegations about the task force). Plaintiff contends that the OSB was against the task force. Id. at ¶ 19.
On October 18, 2002, plaintiff was elected by members of Region Four of the OSB to a four-year term on the OSB's Board of Governors (BOG). Id. at ¶ 22. Plaintiff's term commenced January 1, 2003, and expires December 31, 2006. Id. at ¶ 23.
In February 2003, plaintiff initiated a Region Four newsletter, written in his official capacity as a BOG member under OSB Bylaw 2.1(D). Id. at ¶ 29. In May 2003, Cook, allegedly in a conspiracy with other unknown persons, sought to censor plaintiff's newsletter and prevent its publication by requiring that it first be sent to her for perusal. Id. at ¶ 30. She allegedly lacked authority for this action. Id. Plaintiff contends that "[d]efendants, and each of them, have sought to and have actually denied the Plaintiff's right to free speech by such artifices[.]" Id.
Additionally, beginning in 2003 and at other times thereafter, plaintiff has sent to each of the defendants, specific, written proposals of suggested changes for the OSB. Id. at ¶ 31. He contends that defendants have refused to present these proposals in an attempt to deny his rights to free speech. Id. He further contends that defendants have conspired to omit his proposals from BOG meeting minutes. Id.
As part of his position representing Region Four on the BOG, plaintiff is the Vice-Chair of the OSB Budget Finance Committee. Id. at ¶ 32. On May 7, 2004, plaintiff learned of an alleged "conspiracy" by Carter and Garst to purchase "The Living Enrichment Center" for the OSB for approximately $5 million.Id. Garst is allegedly a congregation member of the Living Enrichment Center and is a creditor of the insolvent Living Enrichment Center organization. Id. Plaintiff contends that Carter and Garst lacked the authority to authorize the purchase which, according to plaintiff, presented an "extraordinary" conflict of interest.Id.
In a May 15, 2004 memo, plaintiff "blew the whistle" on the alleged improper and unauthorized proposed purchase. Id. at ¶ 34. He contends that in retaliation for his action, Carter and Garst conspired to remove him from the BOG. Id.
Meanwhile, plaintiff alleges that in April 2004, Carter and the other individual defendants, acting under color of state law, "began a campaign of intimidation, defamation, coercion and retaliation with actual malice" against plaintiff while acting in their respective capacities with the OSB, and while acting beyond those capacities. Id. at ¶ 25. The individual defendants began publishing to third persons a series of defamatory communications pertaining to plaintiff, acting outside their official duties with the OSB. Id. As an example, plaintiff cites the following statement by Carter: "I don't think it would be unreasonable to advise prominent members of the bar in his Region 4 what he is up to, in order that they can consider what, if anything, they want to do about it. I don't think we can sit by and let him disrupt the bar. . . ." Id.
This "campaign" included a June 10, 2004 demand for plaintiff's resignation by Carter, which plaintiff alleges conflicted with the OSB bylaws. Id. at ¶ 26. When Carter was unsuccessful, he allegedly "suborned Defendant LeSage to make false and defamatory statements published to third persons about the Plaintiff at the [OSB BOG] Meeting on August 13, 2004." Id. This statement by LeSage included language to the effect that plaintiff had an actual conflict of interest while serving on the BOG because he was simultaneously making allegations against other board members and staff in connection with his pending disciplinary proceeding. Id.
Plaintiff alleges that OSB Bylaw 2.6 makes it clear that having a personal disciplinary matter pending while also serving as a BOG member does not constitute an actual conflict of interest.Id. at ¶ 27. He further notes that on April 28, 2004, the OSB General Counsel (presumably Riemer although plaintiff does not name him here), wrote to Carter and Garst that Carter "has no authority over the issues involved, . . ." and that plaintiff "is entitled to complain about whomever he wants and he is entitled to put on whatever defense he wants." Id.
Plaintiff contends that as further demonstration of malice, Carter again suborned LeSage into demanding that plaintiff resign from his BOG position. Id. at ¶ 28. Plaintiff again refused to resign. Id.
Sometime before September 4, 2004, Carter met with Chief Justice Wallace Carson of the Oregon Supreme Court in an effort to further his conspiracy to retaliate, coerce, defame, and intimidate plaintiff. Id. at ¶ 35. While acting with actual malice, Carter allegedly uttered falsehoods to Chief Justice Carson concerning plaintiff, in violation of the Oregon Code of Judicial Conduct which prohibits a judge from communicating with a party about any matter in an adversary proceeding. Id. Plaintiff contends that at the time, Carter represented the OSB in an adversary proceeding against him. Id. He contends that Carter has a history of acting outside his official duties and without authority. Id. at ¶ 36.
In August 2004, the individual defendants, acting with malice, caused to be published false and defamatory statements to third parties in an official OSB publication entitled the "Bar Leader Communicator." Id. at ¶ 37. Defendants knew or should have known that the statements were false and defamatory. Id. The statements were made to keep plaintiff from being an OSB President-Elect candidate. Id.
The alleged conspiracy continued into the fall of 2004 when Carter established a "special committee," whose purpose, according to plaintiff, was to draft bills of attainder and retroactive legislation which resulted in plaintiff's suspension as a member of the BOG effective October 14, 2004. Id. at ¶ 38;see also id. at ¶ 2 (on October 14, 2004, BOG retroactively adopted a bylaw which resulted in plaintiff's immediate suspension from the BOG). Riemer, as part of the conspiracy against plaintiff, kept track of the minutes and drafted the "conspiratorial document which resulted in the Plaintiff's suspension." Id. at ¶ 38.
Rawlinson, in conspiracy with Carter and the other individual defendants, began to "groom" plaintiff and led plaintiff to believe that Rawlinson was plaintiff's "confidante." Id. at ¶ 38. In the context of this relationship, Rawlinson, with malicious intent, falsely told plaintiff that it was unnecessary for plaintiff to "defend himself" before the October 14, 2004 vote leading to his suspension. Id.
The "bills of penalties/attainder" and "retroactive legislation" were allegedly enacted illegally and with malice to intentionally remove plaintiff from his eligibility to become OSB President-Elect and to prevent him from being part of the evaluation process for Garst. Id. at ¶ 40.
STANDARDS
I. Motion to Dismiss
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). The court should construe the complaint most favorably to the pleader:
In appraising the sufficiency of the complaint, we follow, of course, the accepted rule that the complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.Conley v. Gibson, 355 U.S. 41, 45-46 (1957); American Family Ass'n, Inc. v. City County of San Francisco, 277 F.3d 1114, 1120 (9th Cir.), cert. denied, 537 U.S. 886 (2002). The allegations of material fact must be taken as true. Moyo v. Gomez, 40 F.3d 982, 984 (9th Cir. 1994).
II. Motion to Strike
The court may order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent or scandalous matter. Fed.R.Civ.P. 12(f). Granting a motion to strike is within the discretion of the district court. FDIC v. Niblo, 821 F. Supp. 441, 449 (N.D. Tex. 1993).
Motions to strike are not favored and should not be granted unless it "can be shown that no evidence in support of the allegation would be admissible." Pease Curren Refining, Inc. v. Spectrolab, Inc., 744 F. Supp. 945, 947 (C.D. Cal. 1990) (internal quotation omitted), abrogated on other grounds, Stanton Rd. Assocs. v. Lohrey Enters., 984 F.2d 1015 (9th Cir. 1993).
DISCUSSION
I. FAC
Plaintiff filed the original Complaint on October 15, 2004. On November 4, 2004, defendants moved to dismiss the Complaint. In response to the motion, plaintiff filed a FAC.
In their reply memorandum, defendants argue that the FAC cannot stand because plaintiff failed to obtain leave of court or defendants' consent before filing it. They further argue that leave should not be given as it would be futile.
Under Federal Rule of Civil Procedure 15(a), a party may amend its pleading once as a matter of course at any time before a responsive pleading is served. Fed.R.Civ.P. 15(a). Otherwise, a party may amend its pleading only by leave of court or by written consent of the adverse party. Id.
Defendant's argument is premised on its erroneous interpretation of the law. Defendants contend that plaintiff was required to obtain leave of court or defendants' consent to amend because the FAC was filed after the motion to dismiss, which defendants consider to be a "responsive pleading" under Rule 15(a). Defendants are mistaken. Ninth Circuit law is clear that a motion to dismiss is not a Rule 15(a) "responsive pleading."E.g., Shaver v. Operating Eng'rs Local 428 Pension Trust Fund, 332 F.3d 1198, 1201 (9th Cir. 2003). Thus, plaintiff was entitled to file his FAC in response to the motion without leave of court or consent from defendants. It is the operative pleading at this point.
II. First and Second Claims for Relief
A. Description of the Claims
These claims are brought against all defendants. The First Claim for Relief is entitled "Civil Rights ( 42 U.S.C. § 1983) — First and Fourteenth Amendment." Plaintiff contends that defendants acted willfully, knowingly, purposefully, and with malice and the specific intent to deprive him of his rights secured to him by the First and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. §§ 1983, 1985, and by 18 U.S.C. § 245. FAC at ¶ 48.
He further contends that OSB Bylaw 18.107 precludes his freedom of speech when he is accused of a disciplinary violation although it does not prevent defendants' alleged defamatory speech. Id. at ¶ 49. He contends that Carter
maliciously and falsely commenced this campaign against Plaintiff using the entire leadership of the Oregon State Bar and the Chief Justice of the Oregon Supreme Court, using the publications of the Oregon State Bar, using the bully pulpit of the Annual Meeting of the House of Delegates and others to falsely defame the Plaintiff with impunity because of this Bylaw in denial of the Constitution of the United States as amended.Id.
He contends that he has suffered mental anguish and will continue to do so, and has been humiliated, all amounting to $250,000 in damages. Id. at ¶ 50. He further contends that he has incurred expenses for attorneys, court reporters, and for investigations in the amount of $50,000. Id. He also contends that defendants' actions have caused him $150,000 in lost earnings. Id.
His Second Claim for Relief is entitled "Civil Rights ( 42 U.S.C. § 1983) — Fifth and Fourteenth Amendment." He contends that defendants acted willfully, knowingly, purposefully, and with malice and the specific intent to deprive him of his rights secured to him by the Fifth and Fourteenth Amendments to the United States Constitution and by 42 U.S.C. §§ 1983, 1985, and by 18 U.S.C. § 245. FAC at ¶ 54. He makes the same damages allegations as he did in his First Claim for Relief. Id. at ¶¶ 55, 56, 57.
B. Defendants' Motion No. 1
Defendants' motion number one is directed at the first two claims for relief. Defendants argue that the individual defendants are not "persons" under section 1983 for a claim of money damages brought against them in their official capacities and that the OSB is similarly not a "person" under section 1983 for a claim of money damages against it. I agree.
In pertinent part, section 1983 provides that "[e]very person who, under color of any statute. . . ." 42 U.S.C. § 1983 (emphasis added). As explained by the Ninth Circuit, "[c]laims under § 1983 are limited by the scope of the Eleventh Amendment."Doe v. Lawrence Livermore Nat'l Lab., 131 F.3d 836, 839 (9th Cir. 1997). Thus, "[s]tate officers in their official capacities, like States themselves, are not amenable to suit for damages under § 1983." Arizonans for Official English v. Arizona, 520 U.S. 43, 69 n. 24 (1997); see also Lawrence Livermore Nat'l Lab., 131 F.3d at 839 ("state officials sued in their official capacities are not 'persons' within the meaning of § 1983.").
Moreover, "[s]tates or governmental entities that are considered arms of the State for Eleventh Amendment purposes are not 'persons' under § 1983." Lawrence Livermore Nat'l Lab., 131 F.3d at 839 (internal quotation omitted). Oregon law provides that the "Oregon State Bar is a public corporation and an instrumentality of the Judicial Department of the government of the State of Oregon[.]" O.R.S. 9.010; see also Clark v. Washington, 366 F.2d 678, 681 (9th Cir. 1966) (bar association was an agency of the state and therefore, not a person within the meaning of section 1983). Thus, the OSB cannot be a "person" amenable to suit under section 1983.
However, to the extent the allegations are against the individual defendants in their individual, or non-official, capacities, they are considered "persons" under section 1983.Hafer v. Melo, 502 U.S. 21, 31 (1991) ("[S]tate officials, sued in their individual capacities, are 'persons' within the meaning of § 1983."). Here, plaintiff alleges in the FAC that certain actions taken by defendants were "outside" their official capacities. To the extent the First and Second Claims for Relief are based on allegations that the individual defendants were not acting in their official capacities, the allegations are not subject to dismissal on the basis that the individuals are not "persons" under section 1983.
Defendants next contend that the First and Second Claims for Relief should be dismissed because plaintiff has set forth only "bald assertions and conclusory allegations" which are insufficient to state a claim, particularly regarding how the acts or omissions of any of the defendants caused the deprivation of rights alleged. Defendants note that liability under section 1983 must be based on the personal involvement of the defendant,Barren v. Harrington, 152 F.3d 1193, 1194 (9th Cir. 1998), and to the extent plaintiff fails to allege such personal involvement of a particular defendant, that defendant should be dismissed. Additionally, as defendants note, while the court must accept the alleged facts as true for the purposes of a Rule 12(b)(6) motion, the court is "not bound to accept as true a legal conclusion couched as a factual allegation." Papasan v. Allain, 478 U.S. 265, 286 (1986).
Even with the amendments made in the FAC, the allegations are muddled at times and often lack a connection between the factual allegation and the type of claim at issue, e.g. a First Amendment claim, a Due Process claim, or a defamation claim. Nonetheless, all that is required in federal court is a short and plain statement of the claim showing that the plaintiff is entitled to relief. Fed.R.Civ.P. 8(a)(2). Thus, for a section 1983 claim, plaintiff must set forth sufficient allegations showing that defendants acted under color of state law and that defendants' conduct deprived him rights, privileges, or immunities secured by the Constitution or laws of the United States. Johnson v. Howe, 388 F.3d 676, 681 (9th Cir. 2004). I conclude that plaintiff has met his obligation.
Plaintiff's FAC can be fairly read to contend that Sapiro proceeded with a disciplinary complaint against him, despite its prior summary dismissal, and took the alleged extraordinary step of personally involving himself in the case, in retaliation for plaintiff's questioning whether the OSB Disciplinary Counsel's office, headed by Sapiro, was properly administered, and possibly in retaliation for plaintiff having filed his own ethics complaint against Sapiro for taking so long to investigate the case. FAC at ¶¶ 16-18, 21. These are adequate allegations of Sapiro's personal involvement and of causation under Rule 8(a)(2).
Plaintiff's FAC can also be fairly read to contend that Cook imposed a "prior restraint" of plaintiff's Region Four newsletter by requiring that plaintiff submit his newsletter to her before sending it and that this violated his First Amendment rights.Id. at ¶¶ 29, 30. These are adequate allegations of Cook's personal involvement and of causation.
In the FAC, plaintiff also contends that Garst, Riemer, and Sapiro conspired to deny his free speech rights by using their disciplinary department to file false and defamatory ethical complaints against plaintiff. Id. at ¶ 31. Again, these are adequate allegations of Garst's, Riemer's, and Sapiro's personal involvement and of causation.
In addition to these specific instances, the FAC can also be read to assert that certain defendants' actions culminated in passage of the bylaw which resulted in plaintiff's suspension from the BOG during the pendency of his disciplinary case, and that this action was taken in retaliation for plaintiff's various First Amendment activities such as his prior complaints to the OSB regarding the Disciplinary Counsel's office, his suggested proposals and changes regarding OSB administration, and his "whistleblower" letter in May 2004 regarding the alleged purchase of the Living Enrichment Center. Id. at ¶¶ 26, 31, 32, 34, 38, 40.
Individual participants and their actions are adequately delineated in the FAC as follows: (1) Carter and Garst allegedly conspired to remove plaintiff from the BOG as a result of the May 2004 memorandum regarding the Living Enrichment Center; (2) LeSage allegedly told the BOG members at an August 2004 meeting that plaintiff had a conflict of interest in serving on the BOG because he was making allegations against other BOG members and OSB staff in connection with this pending disciplinary proceeding; (3) Carter established the "special committee" to examine the issue; (4) Riemer drafted the bylaw; and (5) Rawlinson convinced plaintiff he need do nothing to protect himself. It is the culmination of these actions which allegedly led to the passage of the bylaw which in turn, caused plaintiff's suspension, which allegedly violated plaintiff's First Amendment rights. With these allegations, each individual defendant is alleged to have committed some unconstitutional act and causation is adequately alleged under the notice pleading standard of the federal rules.
I have not analyzed, at this point, if the passage of the bylaw and the consequential suspension of plaintiff from his position on the BOG, with nothing more, establishes a constitutional violation as alleged in plaintiff's First and Second Claims for Relief. I have also not analyzed, at this point, if reading the FAC as one alleging retaliation (that is, the acts were taken, and in particular, the bylaw was passed, in retaliation for plaintiff's previous protected activities), establishes a constitutional violation as alleged in plaintiff's First and Second Claims for Relief. Since defendants have asked for nothing more, in this motion, than an analysis of whether plaintiff has pleaded adequate factual allegations to put them on notice of the claim, I decline to more fully examine the merits of the claims at this time.
I note, however, that given my ruling above regarding the dismissal of the claims against the individual defendants to the extent they are made against them in their official capacities and for money damages, it would be advisable for plaintiff to amend the FAC to make more clear what specific actions and by which specific defendants, were taken in an individual capacity as opposed to an official capacity. While plaintiff has attempted to make this distinction on a couple of occasions, there remain several allegations that do not separate official versus individual capacity conduct. Keeping in mind the requirements of Rule 11, plaintiff is ordered to amend the FAC in this regard. Accordingly, I grant in part and deny in part defendants' motion number one.
C. Defendants' Motion Nos. 7, 8, 9, 10, 11, 13
Defendants bring these motions as alternatives to motion number one and in the event motion number one is not fully granted.
1. Motion No. 7
In this motion, defendants OSB, Garst, Riemer, and Sapiro move to strike plaintiff's First Claim for Relief for failure to specify the wrongdoing by each one of these defendants. For the reasons stated above, the OSB is already dismissed as a defendant as to plaintiff's First and Second Claims for Relief because it is a state agency and cannot be sued under section 1983 in federal court. As to the claims against the individual defendants (asserted in their individual, non-official capacities), the discussion above demonstrates that there are allegations against each of these individual defendants sufficient to show their individual participation in the alleged wrongdoing. I deny motion number seven as moot as to the OSB and deny the motion outright as to the remaining defendants on whose behalf the motion is brought.
2. Motion No. 8
In this motion, defendants move to strike the references to 18 U.S.C. § 245 in the First and Second Claims for Relief. The statute is the criminal analog to section 1983 and establishes a crime for violation of certain constitutional rights. Because criminal statutes provide no private right of action, see generally Aldabe v. Aldabe, 616 F.2d 1089, 1092 (9th Cir. 1980), I grant motion number eight. Plaintiff's Second Amended Complaint shall omit all references to 18 U.S.C. § 245.
3. Motion No. 9
Defendants move to strike the references to section 1985 in the First and Second Claims for Relief because it fails to provide a basis for the deprivation of the rights alleged. 42 U.S.C. § 1985 provides:
(1) Preventing officer from performing duties
If two or more persons in any State or Territory conspire to prevent, by force, intimidation, or threat, any person from accepting or holding any office, trust, or place of confidence under the United States, or from discharging any duties thereof; or to induce by like means any officer of the United States to leave any State, district, or place, where his duties as an officer are required to be performed, or to injure him in his person or property on account of his lawful discharge of the duties of his office, or while engaged in the lawful discharge thereof, or to injure his property so as to molest, interrupt, hinder, or impede him in the discharge of his official duties;
(2) Obstructing justice; intimidating party, witness, or juror
If two or more persons in any State or Territory conspire to deter, by force, intimidation, or threat, any party or witness in any court of the United States from attending such court, or from testifying to any matter pending therein, freely, fully, and truthfully, or to injure such party or witness in his person or property on account of his having so attended or testified, or to influence the verdict, presentment, or indictment of any grand or petit juror in any such court, or to injure such juror in his person or property on account of any verdict, presentment, or indictment lawfully assented to by him, or of his being or having been such juror; or if two or more persons conspire for the purpose of impeding, hindering, obstructing, or defeating, in any manner, the due course of justice in any State or Territory, with intent to deny to any citizen the equal protection of the laws, or to injure him or his property for lawfully enforcing, or attempting to enforce, the right of any person, or class of persons, to the equal protection of the laws;
(3) Depriving persons of rights or privileges
If two or more persons in any State or Territory conspire or go in disguise on the highway or on the premises of another, for the purpose of depriving, either directly or indirectly, any person or class of persons of the equal protection of the laws, or of equal privileges and immunities under the laws; or for the purpose of preventing or hindering the constituted authorities of any State or Territory from giving or securing to all persons within such State or Territory the equal protection of the laws; or if two or more persons conspire to prevent by force, intimidation, or threat, any citizen who is lawfully entitled to vote, from giving his support or advocacy in a legal manner, toward or in favor of the election of any lawfully qualified person as an elector for President or Vice President, or as a Member of Congress of the United States; or to injure any citizen in person or property on account of such support or advocacy; in any case of conspiracy set forth in this section, if one or more persons engaged therein do, or cause to be done, any act in furtherance of the object of such conspiracy, whereby another is injured in his person or property, or deprived of having and exercising any right or privilege of a citizen of the United States, the party so injured or deprived may have an action for the recovery of damages occasioned by such injury or deprivation, against any one or more of the conspirators.42 U.S.C. § 1985.
As for section 1985(1), the Ninth Circuit has said that "[t]he clear import of this language is that the statute's protections extend exclusively to the benefit of federal officers." Canlis v. San Joaquin Sheriff's Posse Comitatus, 641 F.2d 711, 717 (9th Cir. 1981). Because plaintiff fails to allege that he is a federal officer, he fails to state a section 1985(1) claim.
To state a claim under the first clause of section 1985(2), a plaintiff must prove: (1) a conspiracy by defendants; (2) to injure a party or witness in his or her person or property; (3) because he or she attended federal court or testified in any matter pending in federal court; (4) resulting in injury or damages to the plaintiff. Portman v. County of Santa Clara, 995 F.2d 898, 909 (9th Cir. 1993). Because plaintiff fails to allege that any of the alleged actions taken against him were because he attended federal court or testified in a federal court matter, he fails to state a claim under the first part of section 1985(2).
The second part of section 1985(2) pertains to state courts. 42 U.S.C. § 1985(2). Additionally, the 'equal protection' language of the second clause requires an allegation of class-based animus. Portman, 995 F.2d at 909. Here, plaintiff has not alleged that defendants denied him access to state courts, and he has not alleged that he was a member of a protected class. Thus, he fails to state a cause of action under the second clause of section 1985(2).
This requirement for class-based animus also defeats any claim asserted under section 1985(3) which requires an allegation that defendants conspired to deprive plaintiff of his constitutional rights because of class-based, invidious animus. Griffin v. Breckenridge, 403 U.S. 88, 102 (1971); Sever v. Alaska Pulp Corp., 978 F.2d 1529, 1536 (9th Cir. 1992). Plaintiff fails to state a claim under section 1985(3).
I grant defendants' motion number nine. Plaintiff's Second Amended Complaint shall omit all references to 42 U.S.C. § 1985.
4. Motion No. 10
Defendants move to strike all references to a claim under the Fifth Amendment. The due process and equal protection components of the Fifth Amendment apply only to actions of the federal government and not to those of state or local governments. Lee v. City of Los Angeles, 250 F.3d 668, 687 (9th Cir. 2001). Thus, defendants contend, because plaintiff fails to allege that any of the defendants are federal actors, his references to the Fifth Amendment must be stricken. I agree with defendants that plaintiff has failed to state a Fifth Amendment due process or equal protection claim.
I grant motion number ten. Plaintiff's Second Amended Complaint shall omit the references to the Fifth Amendment.
5. Motion No. 11
In various places in the FAC, plaintiff refers to a "Bill of Penalties" or a "Bill of Attainder." He also refers to "retroactive legislation." Reading the allegations in the FAC as a whole, it is clear that these references are to the new OSB Bylaw adopted in October 2004 which allegedly resulted in plaintiff's suspension from the BOG.
I note here that the FAC makes only one reference to the bylaw at issue. In paragraph 49, plaintiff refers to Bylaw 18.107. While the court is ordinarily limited to the facts alleged in the complaint in resolving a motion to dismiss, it may properly consider certain matters of judicial notice. United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003); see also Fed.R.Evid. 201 (governing judicial notice of adjudicative facts). Here, I take judicial notice of the fact that the OSB bylaws contain no bylaw numbered 18.107. Furthermore, the bylaw clearly at the heart of plaintiff's allegations is Bylaw 18.6 which provides that
[t]he service of members of the Board of Governors, local professional responsibility committees, and the State Professional Responsibility Board against whom charges of misconduct have been approved for filing by the State Professional Responsibility Board is suspended until the charges filed against them have been resolved. If a member is suspended as a result thereof, the member may not resume service on the board or committee until the member is once again authorized to practice law or as otherwise provided by ORS 9.025(5)(a). Charges of misconduct include those authorized to be filed pursuant to BR 3.4.
OSB Bylaw 18.6 (located at www.osbar.org). I take judicial notice of Bylaw 18.6.
Defendants argue that the references to "Bill of Penalties," "Bill of Attainder," and "retroactive legislation," should be stricken because these references create unnecessary confusion and are immaterial to plaintiff's claims. Defendants contend that as a matter of law, the relevant bylaw is neither a Bill of Penalty nor a Bill of Attainder. While defendants' argument has appeal, I conclude that it is premature to resolve this on a motion to dismiss for failure to state a claim and that it is not necessary to strike the references.
"[L]egislative acts, no matter what their form, that apply either to named individuals or to easily ascertainable members of a group in such a way as to inflict punishment on them without a judicial trial are bills of attainder prohibited by the Constitution." United States v. Munsterman, 177 F.3d 1139, 1141 (9th Cir. 1999) (internal quotation omitted). "Three requirements must be met to establish a violation of the bill of attainder clause: [S]pecification of the affected persons, punishment, and lack of a judicial trial." Id. (internal quotation omitted).
The framers of the Constitution apparently referred to "bills of pains and penalties" to mean legislation subjecting specified persons to penalties short of death. Bellsouth Corp. v. FCC, 144 F.3d 58, 62 (D.C. Dir. 1998); see also Citicorp v. Currie, 75 N.C. App. 312, 316, 330 S.E.2d 635, 638 (1985) ("A bill of pains and penalties is a legislative act that inflicts punishment on a person without a trial" and "is proscribed by the United States Constitution which prohibits bills of attainder.").
At this point in the case, there is no reason why plaintiff's references to a "bill of penalties" or a "bill of attainder" need be stricken when they are properly understood to refer to OSB Bylaw 18.6. As to plaintiff's suggestion in the allegations that Bylaw 18.6 is a bill of penalties or a bill of attainder, that is more properly addressed in a motion for summary judgment when additional evidence outside of the FAC may be considered. I deny motion number eleven.
6. Motion No. 13
Defendants move to strike any allegations suggesting a claim of substantive due process. Again, because of the poorly drafted FAC, it is difficult to ascertain whether plaintiff intends to bring a substantive due process claim. However, none of plaintiff's claims for relief are so entitled and no such claim is readily apparent from the other allegations. Thus, I do not read the FAC as stating a substantive due process claim. Accordingly, I deny motion number thirteen as moot.
II. Third Claim for Relief
A. Description of the Claim
Plaintiff's Third Claim for Relief is for defamation and is brought against all defendants. Plaintiff contends that each of the defendants has maliciously published matters about plaintiff that are untrue, in an attempt to intimidate, harass, and otherwise harm plaintiff, to plaintiff's personal and professional damage. FAC at ¶ 59. He indicates that he has been forced to incur costs and expenses for attorneys and court reporters in an amount of $50,000, and has been damaged in an amount of $150,000 in lost earnings. Id. at ¶¶ 60, 61.
B. Motion No. 2
Defendants move to dismiss the defamation claim because the alleged defamatory statements at issue are protected by absolute privilege. Defendants cite three sources of absolute privilege they contend apply here: (1) absolute privilege in judicial proceedings; (2) absolute privilege in legislative proceedings; and (3) absolute privilege regarding OSB disciplinary proceedings.
In paragraph 35 of the FAC, plaintiff contends that Carter met with Chief Justice Carson and that Carter uttered falsehoods to the Chief Justice, with malice, while a particular ethics case against plaintiff was pending before the Oregon Supreme Court. FAC at ¶ 35. He contends that at the time, Carter represented the OSB in this adversary proceeding against him and the communication between Carter and the Chief Justice was a violation of the Oregon Code of Judicial Conduct which prohibits a judge from communicating with a party about any matter in an adversary proceeding. Id.
Chief Justice Carson is not a party to this litigation. Carter is not governed by the Oregon Code of Judicial Conduct because he is not a judicial officer. Thus, I understand the essence of these allegations to be that Carter allegedly defamed plaintiff during an inappropriate ex parte communication he had with Chief Justice Carson about a pending disciplinary proceeding against plaintiff and the fact that the communication allegedly violates the Oregon Code of Judicial Conduct exposes Carter's malice.
Defendants argue that Carter's statements are protected by the absolute privilege accorded to statements made as part of judicial and quasi-judicial proceedings or alternatively, that the statements are protected by the statute rendering immune statements made in the context of OSB disciplinary proceedings. Because I agree with defendants' latter argument, I do not address the former.
Oregon Revised Statute § 9.537(2) provides that
[t]he Oregon State Bar, its officers, the members of local professional responsibility committees, the state professional responsibility board, the board of bar examiners, the board of governors, the disciplinary board, and bar counsel, investigators and employees of the bar shall be absolutely immune from civil liability in the performance of their duties relative to the proposed or pending admission, reinstatement or disciplinary proceedings.
Because Carter is an officer of the OSB, and plaintiff alleges he was representing the OSB in his communication with Chief Justice Carson, and plaintiff further alleges that the communication concerned a pending disciplinary matter, Carter is immune from civil liability for any statements made to the Chief Justice in this context.
Additionally, in paragraph 41 of the FAC, plaintiff contends that Garst, Riemer, and Sapiro began a conspiracy to deny plaintiff his free speech rights by using their disciplinary department to file false and defamatory ethical complaints against plaintiff. FAC at ¶ 31. These statements are also subject to the immunity set forth in O.R.S. 9.537(2).
Some of the other allegations plaintiff alleges are defamatory are privileged under the privilege afforded to statements made in the context of legislative proceedings. Oregon law recognizes a legislative communications privilege. Noble v. Ternyik, 273 Or. 39, 41-42, 539 P.2d 658, 659-60 (1975). The privilege extends to members of "lesser legislative bodies" such as commissions and councils. Id. Absolute privilege extends to any person with "authority to exercise some portion of the sovereign power of the state, either in making or administering, or executing the laws."Johnson v. Brown, 193 Or. App. 375, 385, 91 P.3d 741, 747 (2004) (internal quotation omitted). Here, the relevant authority is in making the laws.
The OSB, as noted above, is an arm of the Judicial Department of the State of Oregon. As such, its BOG is a "lesser legislative body" with rulemaking authority. Thus, any alleged statements by LeSage, Carter, or other BOG members, regarding plaintiff, made as part of the rulemaking process culminating in the adoption of Bylaw 18.6, are absolutely privileged. This would include LeSage's alleged defamatory comment made on August 13, 2004, at a BOG meeting regarding plaintiff's alleged conflict of interest created by his serving on the BOG while making allegations against other BOG members and OSB staff in his disciplinary proceeding.
In paragraph 37 of the FAC, plaintiff alleges that defendants published "these false and defamatory statements" to third parties in the August 2004 "Bar Leader Communicator." FAC at ¶ 37. Without more specificity, I cannot discern the antecedent to the reference to "these" false and defamatory statements. As a result of the vague reference, I cannot fully analyze what, if any, immunity may apply to the statements. Depending on the statements actually published, the disciplinary proceeding immunity under O.R.S. 9.537(2) may apply, the legislative proceedings immunity may apply, or no immunity may apply.
Although the motion directed at the defamation claim is one to dismiss for failure to state a claim based on various immunity arguments, I construe the motion, as directed to paragraph 37, as one challenging vague and conclusory allegations. So construed, I grant the motion as to paragraph 37. I order plaintiff to amend paragraph 37 to specifically delineate the contents of the statements actually published in the August 2004 publication.
There is one allegation that does not appear to be governed by a privilege for judicial proceedings, for legislative proceedings, or by O.R.S. 9.537(2). In paragraph 25 of the FAC, plaintiff alleges that Carter published the following statement to third persons: "I don't think it would be unreasonable to advise prominent members of the bar in his Region 4 what he is up to, in order that they can consider what, if anything, they want to do about it. I don't think we can sit by and let him disrupt the bar. . . ." FAC at ¶ 25.
This alleged statement was not made in the context of a judicial proceeding and does not appear, from this particular quotation, to refer to a pending matter in litigation. The statement does not on its face suggest that Carter would enjoy the immunity afforded by O.R.S. 9.537(2) because it does not pertain to a disciplinary proceeding. Additionally, it is not alleged to have been made in the context of adopting Bylaw 18.6. Thus, none of the privilege or immunity arguments put forth by defendants apply to this alleged statement. While at first blush this statement does not appear to be defamatory, defendants do not make that argument in support of the motion and I have not considered it.
Accordingly, defendants' motion number two directed at the defamation claim is granted except in regard to the allegation pertaining to Carter in paragraph 25 of the FAC. In the Second Amended Complaint, plaintiff may amend paragraph 37 of the FAC in conformance with this Opinion.
III. Fourth Claim for Relief
A. Description of the Claim
Here, plaintiff brings a claim for intentional infliction of emotional distress (IIED) against all defendants. Plaintiff first incorporates paragraphs 1 through 46, thereby alleging that all of defendants' conduct was undertaken with the intent to cause him severe emotional distress and in fact caused him such distress. FAC at ¶ 62. He alleges that defendants have a special relationship with him and "through proceedings," maliciously intended to inflict emotional distress upon him. FAC at ¶ 63. Plaintiff additionally alleges that each of the defendants intended to inflict severe mental or emotional distress on him by publishing "said defamations" and knew that such emotional distress was certain or substantially certain to result from defendants' conduct. Id. at ¶ 64. He asserts that defendants' acts are "socially tolerable in the extreme." Id. As a result of defendants' conduct, he contends that he has suffered severe emotional distress causing actual damages of $250,000. Id. at ¶ 64. He also seeks punitive damages. Id. at ¶ 65.
B. Motion No. 3
Defendants contend that this claim should be dismissed because (1) the absolute privilege in judicial proceedings or O.R.S. 9.537(2) applies to those allegations which relate to the pending disciplinary proceeding; (2) any decisions to create a committee to study the issues that arise when a disciplinary complaint is pending against a BOG member, to adopt Bylaw 18.6, or to prosecute any disciplinary proceeding against plaintiff, are protected by the discretionary function provision of the Oregon Tort Claims Act; (3) that the alleged conduct does not amount to an extraordinary transgression of the bounds of socially tolerable conduct; and/or (4) that plaintiff fails to allege that defendants acted with malice.
As to this last argument, defendants acknowledge in their reply memorandum that in the FAC, plaintiff alleges that defendants acted with malice. As to the other arguments, because I agree with defendants that the alleged actions do not amount to an extraordinary transgression of the bounds of socially tolerable conduct, I do not address defendants' contentions regarding absolute privilege or discretionary function.
To state an IIED claim under Oregon law, plaintiff must prove,inter alia, that defendants' actions "constituted an extraordinary transgression of the bounds of socially tolerable conduct." Babick v. Oregon Arena Corp., 333 Or. 401, 411, 40 P.3d 1059, 1063 (2002) (internal quotation omitted). Conduct that is merely "rude, boorish, tyrannical, churlish, and mean" does not support an IIED claim. Patton v. J.C. Penney Co., 301 Or. 117, 124, 719 P.2d 854, 858 (1986). "[T]he tort does not provide recovery for the kind of temporary annoyance or injured feelings that can result from friction and rudeness among people in day-to-day life even when the intentional conduct causing plaintiff's distress otherwise qualifies for liability." Hall v. The May Dep't Stores Co., 292 Or. 131, 135, 637 P.2d 126, 129 (1981); see also Watte v. Maeyens, 112 Or. App. 234, 237, 828 P.2d 479, 480-81 (1992) (no claim where employer threw a tantrum, screaming and yelling at his employees, accused them of being liars and saboteurs, then fired them all); Madani v. Kendall Ford, Inc., 312 Or. 198, 205-06, 818 P.2d 930, 934 (1991) (no claim where employee terminated for refusing to pull down pants).
The FAC generally alleges that defendants allegedly made false and defamatory statements about plaintiff's conduct as a member of the OSB, about his conduct as a member of the BOG, and about his disciplinary proceedings; and that defendants conceived and passed Bylaw 18.6 resulting in plaintiff's suspension from the BOG during the pendency of the disciplinary proceeding. Added to this is the allegation that Garst and Carter allegedly conspired against plaintiff in retaliation for his having exposed their plan to purchase the Living Enrichment Center.
As a matter of law, I conclude that the conduct does not rise to the level required to state an IIED claim. As noted above, the law in Oregon recognizes that even if the alleged conduct might otherwise qualify for liability (e.g. as a defamation claim, or a whistleblower claim), it does not necessarily establish the requisite level of outrageousness for an IIED claim. While plaintiff's allegations, if true, may expose some inappropriate conduct by certain defendants, the allegations do not show a transgression of the bounds of socially tolerable conduct.
I grant defendants' motion number three.
IV. Fifth Claim for Relief
A. Description of the Claim
This claim is entitled "Injunction." Plaintiff states he has no adequate remedy at law as a result of defendants' disenfranchisement of plaintiff as a representative of Region Four. FAC at ¶ 68. He further contends that because the allegations involve free speech, irreparable harm is presumed.Id. He also contends that the lawyers of Region Four will suffer irreparable damage in that over 900 members of the OSB will not be represented to the BOG. Id. at ¶ 70. He alleges that to remedy defendants' unconstitutional behavior, the OSB should be ordered to rescind its suspension of plaintiff as a BOG member. Id. at ¶ 69. Finally, he seeks costs and attorney's fees under 16 U.S.C. § 470w-4. Id. at ¶ 71.
B. Motion No. 4
Defendants note that plaintiff restricts his injunctive relief claim to a request that defendants be ordered to rescind Bylaw 18.6 which resulted in his suspension. Defendants contend that because the act of passing the bylaw is a legislative function, defendants enjoy absolute immunity and thus, this act cannot form the basis of a claim for injunctive relief. Moreover, defendants add, plaintiff cannot obtain an injunction based on a violation of state law because federal courts do not have jurisdiction over claims for injunctive relief against state officials based on state law.
The only possible claims that could support plaintiff's request for injunctive relief are his First and Second Claims for Relief which are brought under section 1983. Miller v. French, 530 U.S. 327, 332 (2000) (noting that Pennhurst State School Hospital v. Halderman, 465 U.S. 89 (1984) held that the Eleventh Amendment deprives federal courts of jurisdiction over claims for injunctive relief against state officials based on state law). Under Miller and Pennhurst, the remainder of plaintiff's claims cannot be a basis for an award of injunctive relief because they are state claims.
As to the section 1983 claims, however, "[l]ocal legislators are entitled to absolute immunity from § 1983 liability for their legislative activities." Bogan v. Scott-Harris, 523 U.S. 44, 54 (2002). This immunity "attaches to all acts taken in the sphere of legitimate legislative activity." Id. (internal quotation omitted).
The acts of suggesting, debating, initiating, and passing a resolution to create a bylaw are quintessentially legislative activities. As discussed above in connection with the defamation claim, the BOG was acting in a legislative capacity, and thus its members are entitled to legislative immunity, in adopting Bylaw 18.6. Legislative immunity applies to section 1983 actions seeking declaratory or injunctive relief, as well as to those seeking damages. Supreme Court of Va. v. Consumers Un. of the United States, 446 U.S. 719, 731-34 (1980) (distinguishing between legislating attorney disciplinary rules and enforcing those rules). Because plaintiff limits his injunctive relief claim to a rescission of his suspension, this act falls within defendants' enforcement of the Bylaw and not within defendants' legislative activities of enacting the Bylaw. Thus, the injunctive relief sought is not precluded by legislative immunity.
Finally, his asserted basis for attorney's fees, 16 U.S.C. § 4702-4, is part of the National Historic Preservation Act which has absolutely nothing to do with the claims alleged in the FAC. Accordingly, I grant defendants' motion number four in part and strike references to attorney's fees under this act.
V. Sixth Claim for Relief
A. Description of the Claim
This is a claim for punitive damages against all defendants. Plaintiff alleges that as a direct and proximate result of defendants' actions, he has suffered mental anguish and will continue to do so, and has been humiliated and held up to public scorn and derision, resulting in $250,000 in damages. FAC at ¶ 73. He further alleges that he has been forced to incur attorney's fees and other costs in the amount of $50,000. Id. at ¶ 74. He also contends that he has incurred a substantial loss of earnings, in the amount of $150,000. Id. at ¶ 75.
B. Motion No. 6
Although plaintiff's allegations in support of his punitive damages claim are simply a repeat of his other damages requests, there are sufficient allegations in the remainder of the FAC to support this claim, in part. First, plaintiff cannot obtain punitive damages on the defamation or IIED claims. I have dismissed the IIED claim and the only allegation remaining in support of the defamation claim is an alleged defamatory statement by Carter. However, under Oregon law, punitive damages cannot be awarded for a speech-based tort, such as defamation or intentional infliction of emotional distress, resulting from speech only. Wheeler v. Green, 286 Or. 99, 118-19, 593 P.2d 777, 789 (1979); see also Huffman Wright Logging Co. v. Wade, 317 Or. 445, 468-69, 857 P.2d 101, 117 (1993) (Unis, J. dissenting).
Second, as discussed above, and noted again below, plaintiff fails to state a claim under section 1985 and thus, he is not entitled to rest a claim for punitive damages on that statute.
In their initial motion to dismiss, defendants argued that plaintiff could not sustain a claim for punitive damages under section 1983 because he had alleged that defendants acted only in their official capacities and he had failed to allege that defendants were motivated by an evil motive or intent or acted with "reckless or callous indifference to the federally protected rights of others." Smith v. Wade, 461 U.S. 30, 56 (1983). Plaintiff's FAC cures these deficiencies. E.g., FAC at ¶¶ 8, 9, 25. Thus, to the extent plaintiff alleges in his section 1983 claims that defendants, in violating his constitutional rights, acted in their individual, non-official capacities and with an evil motive or intent or with reckless indifference to his rights, he has adequately pleaded a punitive damages claim.
VI. Seventh Claim for Relief
A. Description of the Claim
This claim is entitled "Conspiracy" and is brought against all defendants. Plaintiff contends that defendants conspired among themselves and with other persons, in violation of 42 U.S.C. § 1985(2), for the purpose of retaliating, coercing, defaming, and intimidating plaintiff in an attempt to remove him from the BOG. FAC at ¶ 77. Plaintiff further alleges that defendants conspired among themselves and with others to injure plaintiff for lawfully attempting to obtain his rights under the laws and constitution of the United States in violation of 42 U.S.C. § 1985(3). Id.
B. Motion No. 5
Defendants move to dismiss this claim on the basis that plaintiff's allegations fail to state a claim for relief under section 1985. For the reasons explained above in connection with defendants' motion number nine, I agree with defendants. I grant defendants' motion number five.
VII. Eighth Claim for Relief
A. Description of the Claim
In this claim, which was added in the FAC, plaintiff alleges a violation of Oregon's public employee whistleblower law under O.R.S. 659A.200 — 659A.224. Plaintiff contends he is an employee, and that the OSB is an employer, as defined by the law. FAC at ¶ 80. He then recites what he considers to be illegal actions under the law. Id. at ¶¶ 81, 82.
B. Unnumbered Motion to Dismiss
In their reply brief, defendants contend that plaintiff fails to state a claim under O.R.S. 659A.200. I agree with defendants. Plaintiff's allegation that the OSB is an employer under O.R.S. 659A.200(3)(a) need not be taken as true on a motion to dismiss because it is an assertion of a legal conclusion, not of fact.Ileto v. Glock, Inc., 349 F.3d 1191, 1200 (9th Cir. 2003) (court need not assume truth of legal conclusions cast in the form of factual allegations), petition for cert. filed, 73 U.S.L.W. 3216 (U.S. Sept. 24, 2004) (No. 04-423).
The state defines "public employer," in relevant part, as "[t]he state or any agency of or political subdivision in the state[.]" O.R.S. 659A.200(3)(a). O.R.S. 9.010(1), while providing that the OSB is a public corporation and an instrumentality of the Judicial Department of the State of Oregon, further provides that "the bar is not subject to any other statute applicable to a state agency, department, board or commission or public body unless such statute expressly provides that it is applicable to the Oregon State Bar." O.R.S. 9.010(1). Thus, here, even if at first glance the OSB would appear to fall within the "public employer" definition in O.R.S. 659A.200, O.R.S. 9.010(1) forecloses such a conclusion because O.R.S. 659A.200 — 659A.224 does not expressly provide that the whistleblower statute applies to the OSB.
I grant defendants' motion to dismiss the whistleblower claim.
VIII. Additional Motions Nos. 12 14
A. Motion No. 12
Defendants move to strike plaintiff's reference to Article I, section 18 of the Oregon Constitution in paragraph 9C of the FAC. There, plaintiff alleges that defendants have violated plaintiff's rights secured to him by the Fifth and Fourteenth Amendments to the United States Constitution, and Article I, section 18 of the Oregon Constitution, by suspending his vested rights as a duly elected member of the BOG. FAC at ¶ 9C.
Article I, section 18 of the Oregon Constitution is the state's analog to the Fifth Amendment's takings provision. It provides:
Private property shall not be taken for public use, nor the particular services of any man be demanded, without just compensation; nor except in the case of the state, without such compensation first assessed and tendered; provided, that the use of all roads, ways and waterways necessary to promote the transportation of the raw products of mine or farm or forest or water for beneficial use or drainage is necessary to the development and welfare of the state and is declared a public use.
Or. Const. art. I, § 18.
I agree with defendants that plaintiff fails to allege (1) how he has been deprived of any rights under this provision; (2) that any private property has been taken from him; and (3) how such property was taken from him by Bylaw 18.6. Accordingly, I grant defendants' motion to strike plaintiff's reference to Article I, section 18.
B. Motion No. 14
Here, defendants move in the alternative in the event that its motions against the defamation and IIED claims are not granted in full, to substitute the OSB as a defendant in plaintiff's Third and Fourth Claims for Relief. Because there is one allegedly defamatory statement remaining in support of the Third Claim for Relief for defamation, it is appropriate to consider this motion.
Under O.R.S. 30.265, the state entity is the only proper defendant in a cause of action for any tort under state law which is allegedly committed by (1) an officer, employee, or agent of a public body; (2) who is acting within the scope of their employment or duties; and (3) is eligible for representation and indemnification under O.R.S. 30.285 or 30.287. The statute also provides that "[i]f an action or suit is filed against an officer, employee or agent of a public body, on appropriate motion the public body shall be substituted as the only defendant." O.R.S. 30.265(1). Additionally, under O.R.S. 9.010(1), O.R.S. 30.265 is specifically applicable to the OSB. O.R.S. 9.010(1).
Defendants contend that they are each officers, employees, or agents of the OSB. They further contend that they are all eligible for indemnification pursuant to O.R.S. 30.285 or 30.287.
At the time defendants originally brought this motion, plaintiff alleged that defendants had acted entirely in their official capacities. Now, however, as noted above, plaintiff asserts in the FAC that defendants acted both inside and outside their official capacities. In the only remaining actionable defamation allegation, plaintiff expressly contends that Carter was acting outside of his official duties with the OSB. FAC at ¶ 25. As such, substituting the OSB as a defendant for Carter would be inappropriate because substitution requires that the alleged tort be committed by an official, employee, or agent while acting within the scope of that person's employment. I deny defendant's motion number fourteen to substitute.
CONCLUSION
Defendants' motion to dismiss (#18) is granted in part and denied in part. Plaintiff is ordered to submit a Second Amended Complaint conforming to this Opinion, within ten days.IT IS SO ORDERED.