Opinion
3:23-cv-01301-JR
04-01-2024
ZACK JONES, Plaintiff, v. TARGET CORPORATION, Defendant.
FINDINGS AND RECOMMENDATION
Jolie A. Russo, United States Magistrate Judge
Defendant Target Corporation moves to dismiss pro se plaintiff Zack Jones' amended complaint pursuant to Fed.R.Civ.P. 12(b)(6). Alternatively, defendant moves for a more definite statement under Fed.R.Civ.P. 12(e) in regard to plaintiff's sexual harassment claim. For the reasons stated below, defendant's motion should be granted in part and denied in part.
BACKGROUND
At all relevant times, plaintiff was employed at a store operated by defendant on Tomahawk Island Drive in Portland, Oregon. Am. Compl. pg. 2 (doc. 24). On or about May 26, 2023, while plaintiff was in the employee break room, a Target store employee, referred to as “Jane Doe . . . for privacy,” approached him and forcibly attempted to remove his pants against his will. Id. Specifically, the employee “unzipped and slightly pulled the plaintiff's pants down,” and carried out other acts that included “direct contact, gro[ping] and jerking of the genitals with direct skin contact” with such force as to leave bruising. Id.
That same day, plaintiff reported the event to the store manager, a member of defendant's Asset Protection Department, and a member of defendant's Human Resources department. Id. at pg. 3. On May 27, plaintiff filed a report with the Portland Police Department. Id. Plaintiff alleges that the Asset Protection Team member “assured [him] that the break room . . . was under surveillance and the footage would be burned to a disc for retrieval if needed.” Id. at pg. 2. Another of defendant's employees told detectives that there were cameras inside the employee break room. Id. at pg. 3.
Plaintiff was informed “a few days” after the incident that Target's investigation had concluded with no results, even though “plaintiff wasn't even interviewed for the internal investigation.” Id. Shortly thereafter, plaintiff was informed by a member of defendant's Asset Protection Department that the break room camera “was not operational at the time of the incident.” Id. at pg. 4. “The Portland Police and Detective requested the break room footage multiple times from the . . . Asset Protection and HR departments but were told that aside from all other cameras in the store functioning, that particular camera was not functioning and no footage was available.” Id.
Plaintiff alleges that defendant's employees “lied to the detective” about the existence of the break room security footage and that such footage did exist based on an incident report completed by one of defendant's Asset Protection Department employees in which the employee noted “Video and Photo evidence was retained.” Id. at pgs. 4-5. Plaintiff's request to be transferred to a “different location or a virtual position” were denied. Id. at pg. 5.
In July 2023, plaintiff initiated this action in Multnomah County Circuit Court alleging: (1) sexual harassment pursuant to Or. Admin. R. 839-005-0030(1)(b); (2) negligence pursuant to Or. Rev. Stat. § 654.305; (3) intentional infliction of emotional distress (“IIED”); (4) spoliation of evidence pursuant to Or. Rev. Stat. § 40.135(1)(c); (5) retaliation pursuant to Or. Rev. Stat. § 653.470; (6) failure to preserve evidence pursuant to Or. Rev. Stat. §§ 133.707 and 162.295(1)(a); and (7) civil conspiracy pursuant to Or. Rev. Stat. § 161.455.
In September 2023, defendant timely removed plaintiff's complaint to this Court and sought dismissal under Fed.R.Civ.P. 12(b)(6). On December 28, 2023, the Court granted defendant's motion. Jones v. Target Corp., 2023 WL 9065120 (D. Or. Nov. 17), adopted by 2023 WL 8947922, *1 (D. Or. Dec. 28, 2023). District Judge Simon also ordered that any amended complaint must be: (1) “file[d] under [plaintiff'] legal name if it is not Zack Jones”; (2) accompanied by “a statement declaring under penalty of perjury that Zack Jones is his legal name” if he chooses to proceed under that name; or (3) “[i]f Zack Jones is not his legal name and he wishes to continue litigating in that name, he must file a motion to proceed under a pseudonym explaining why extraordinary circumstances exist supporting such relief.” Id. at *3.
During the objections process, defendant raised a concern that plaintiff's legal name may not be Zack Jones, and that he was bringing additional lawsuits under his legal name (i.e., Muhammed Soyege).
On January 24, 2024, plaintiff filed his first amended complaint and “Declaration of Name.” Plaintiff alleges the same seven claims as his initial complaint (although his negligence and retaliation claims proceed under different legal theories), as well as adding a claim under the Oregon Workplace Fairness Act (“OWFA”). On February 6, 2024, defendant filed the present motion. Briefing was completed in regard to that motion on March 5, 2024.
STANDARDS
“A party may move for a more definite statement of a pleading to which a responsive pleading is allowed but which is so vague or ambiguous that the moving party cannot reasonably prepare a response.” Fed.R.Civ.P. 12(e). Motions for a more definite statement are generally disfavored, left to the district court's discretion, and rarely granted. Barnes v. Olive, 2015 WL 5813193, *2 (D. Or. Sept. 30, 2015) “A motion for a more definite statement must be considered in light of the liberal pleading standards of Fed.R.Civ.P. 8(a).” Mil-Ray v. EVP Int'l, LLC, 2021 WL 2903225, *1 (D. Or. July 8, 2021) (citation and internal quotations omitted). Furthermore, “where the detail sought is available through discovery, the motion should be denied.” Obsidian Fin. Grp., LLC v. Crystal Cox, 2011 WL 13253340, *1 (D. Or. May 19, 2011).
Additionally, where the plaintiff “fails to state a claim upon which relief can be granted,” the court must dismiss the action. To survive a motion to dismiss, the complaint must allege “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). For the purposes for the motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters, 719 F.2d 1422, 1424 (9th Cir. 1983). Regardless, bare assertions that amount to nothing more than a “formulaic recitation of the elements” of a claim “are conclusory and not entitled to be assumed true.” Ashcroft v. Iqbal, 556 U.S. 662, 680-81 (2009). Rather, to state a plausible claim for relief, the complaint “must contain sufficient allegations of underlying facts” to support its legal conclusions. Starr v. Bacca, 652 F.3d 1202, 1216 (9th Cir. 2011).
Pro se pleadings are held to a less stringent standard than those drafted by lawyers. See, e.g., Haines v. Kerner, 404 U.S. 519, 520 (1972). The court, in many circumstances, instructs the pro se litigant regarding deficiencies in the complaint and grants leave to amend. Eldridge v. Block, 832 F.2d 1132, 1136 (9th Cir. 1987). Nevertheless, a pro se plaintiff's claims may be dismissed without leave to amend where it appears beyond doubt that the plaintiff can prove no set of facts that would entitle him or her to relief. Barrett v. Belleque, 544 F.3d 1060, 1061-62 (9th Cir. 2008).
DISCUSSION
I. Plaintiff's Legal Name
On January 24, 2024, plaintiff filed his first amended complaint and attached a document entitled “Declaration of Name,” in which he states, in relevant part, “My name is Zack Jones.” Jones Decl. ¶ 2 (doc. 24-2).
As such, plaintiff failed to comply with Judge Simon's December 2023 order. That is, plaintiff does not specify under penalty of perjury that his “legal name is [or is not] Zack Jones” Jones, 2023 WL 8947922 at *3 (emphasis added), and if not pursue one of the two alternatives provided by Judge Simon. Id. Moreover, defendant has introduced additional documentation indicating that plaintiff's legal name may not be Zack Jones, including pleadings and medical records that plaintiff filed publicly in a separate suit. Falcone Decl. Ex. 1, at 1 (doc. 39-1); Falcone Decl. Ex. 2, at 1 (doc. 39-2).
“[C]ourt filings and other matters of public record” are ordinarily considered appropriate subjects of judicial notice pursuant to Fed.R.Evid. 201(b) because they are “readily verifiable.” Reyn's Pasta Bella, LLC v. Visa USA, Inc., 442 F.3d 741, 746 n.6 (9th Cir. 2006).
Thus, before plaintiff may proceed with this lawsuit, he must either demonstrate that his legal name is Zack Jones by filing a declaration consistent with Judge Simon's December 2023 order or file a motion to proceed under a pseudonym. If plaintiff chooses the latter, he must establish extraordinary circumstances demonstrating a need for anonymity. See Jones, 2023 WL 8947922 at *3 (“the identity of the parties in any action, civil or criminal, should not be concealed except in an unusual case, where there is a need for the cloak of anonymity”) (citation and internal quotations omitted).
II. Sexual Harassment-Hostile Work Environment Claim
Defendant asserts that plaintiff must reveal the identity of the employee who allegedly sexually assaulted him. Def.'s Mot. Dismiss 7 (doc. 27). Otherwise, defendant argues, the claim is “so vague and ambiguous that Target cannot reasonably prepare a response.” Id. In the alternative, defendant moves to dismiss plaintiff's hostile work environment claim for failing to allege sufficient facts that demonstrate conduct “severe or pervasive enough to alter the conditions of [his] employment and create an objectively hostile or abusive work environment.” Id. at 7-8 (citation and internal quotations omitted).
Defendant's Rule 12(e) arguments are unconvincing. The amended complaint reflects that plaintiff communicated the identity of the alleged harasser directly to defendant's Human Resources and Asset Protection departments. Am. Compl. pgs. 2-3 (doc. 24). “Jane Doe” is also employed by defendant. Id. Further, the Portland Police Department has contacted defendant to investigate the alleged assault. Id. at pgs. 3-4. Thus, defendant does not need to wait “for the detail sought . . . through discovery,” but instead may simply turn to its own internal records to uncover the alleged harasser's identity. Obsidian Fin. Grp., 2011 WL 13253340 at *1. In other words, defendant's assertion that it does not have knowledge of the alleged harasser's identity, such that it is unable to mount a defense, appears specious.
Concerning Rule 12(b)(6), as this Court previously explained, plaintiff must allege facts demonstrating the following to state a plausible hostile work environment claim: “(1) [he] was subjected to verbal or physical conduct of a sexual nature, (2) this conduct was unwelcome, and (3) the conduct was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment.” Craig v. M & O Agencies, Inc., 496 F.3d 1047, 1054 (9th Cir. 2007) (citation and internal quotations omitted).To satisfy the third element, the conduct complained of must be both objectively and subjectively hostile or abusive. Id.
As previously explained, state law claims pursuant to Chapter 659A are construed consistently with Title VII, such that “federal cases interpreting Title VII are instructive.” Shepard v. City of Portland, 829 F.Supp.2d 940, 954 (D. Or. 2011) (citations and internal quotations omitted).
In making the objective determination, the court evaluates the totality of the circumstances, “including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance.” Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71 (2001) (citations and internal quotations omitted). “The required level of severity or seriousness varies inversely with the pervasiveness or frequency of the conduct.” Nichols v. Azteca Rest. Enters., Inc., 256 F.3d 864, 872 (9th Cir. 2001) (citation and internal quotations omitted). Thus, although rare, “a single unusually severe incident of harassment may be sufficient to constitute a Title VII violation.” Brooks v. City of San Mateo, 229 F.3d 917, 926-27 (9th Cir. 2000) (citation and internal quotations omitted).
The Court finds that the amended complaint pleads sufficient facts to state a hostile work environment claim based on sexual harassment. Specifically, the amended complaint alleges “Jane Doe” cornered plaintiff in an isolated location and forcibly attempted to remove plaintiff's pants, and then “gro[ped] and jerk[ed]” his genitals with such force as to cause physical injury and “severe physical, mental and emotional pain.” Am. Compl. pg. 2 (doc. 24). Plaintiff alleges further that defendant neglected to conduct any meaningful investigation into the incident, obscured his and the Portland Police Bureau's efforts to obtain video surveillance evidence, and denied his requested transfer to a different store location or permission to work remotely. Id. at pg. 3. Construing these facts liberally, it is reasonable to infer that defendant did not take any corrective action and otherwise acquiesced to the harasser's conduct. See id. pgs. 2, 4 (“[t]he incident and the defendant's dismissive response unreasonably interfered with the plaintiff's work performance [and] made the plaintiff feel unsafe to return to work” at that store location).
In sum, although apparently an isolated incident, the amended complaint outlines conduct that is sexual, unwelcome, and of adequate severity to qualify as both objectively and subjectively abusive at this stage in the proceedings. Defendant's motion is denied as to plaintiff's hostile work environment claim.
III. Negligence Claim
Defendant argues that plaintiff's second claim for common law negligence must be dismissed because “Oregon courts do not recognize employers to have a duty to investigate under common law principles.” Def.'s Mot. Dismiss 9-10 (doc. 27).
To state a claim for negligence, the plaintiff must show the defendant: (1) owed the plaintiff a duty, (2) the defendant's conduct created a foreseeable and unreasonable risk of legally cognizable harm to the plaintiff, and (3) the defendant's conduct in fact caused that kind of harm to the plaintiff. Sloan on behalf of Est. of Sloan v. Providence Health Sys.-Or., 437 P.3d 1097, 1102 (D. Or. Apr. 4, 2019) (citing Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17, 734 P.2d 1326 (1987)).
Plaintiff alleges defendant owed him a duty to “maintain a safe working environment” and “properly investigate reports of sexual harassment.” Am. Compl. pgs. 6-7 (doc. 24). Plaintiff fails, however, to provide any support for the contention that such a duty to investigate exists. The amended complaint does not allege that defendant knew or should have known of “Jane Doe's” interest in plaintiff or propensity towards assault, or that there were repeated incidents of sexual harassment. In other words, the co-worker's alleged sexual harassment occurred once and ceased with plaintiff's reporting. Nor has plaintiff pointed to any employment contract clause, statute, or case law that would require defendant to undertake these measures in the present context. And plaintiff has not cited to any authority that impose on employers a duty owed to employees to provide or inspect break room security features. Defendant's motion is granted as to plaintiff's common law negligence claim.
In the amended complaint, plaintiff cites two cases: Donaca v. Curry Cty., 303 Or. 30, 734 P.2d 1339 (1987); and Fazzolari, 303 Or. at 1. Am. Compl. pgs. 6-7 (doc. 24). Additionally, in his response, plaintiff relies on Faragher v. City of Boca Raton, 524 U.S. 775 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998); Harris v. Forklift Sys., Inc., 510 U.S. 17 (1993); and the Restatement (Second) of Torts § 314A. Pl.'s Resp. to Mot. Dismiss 9 (doc. 31). None of these sources of law support plaintiff's common law negligence claim. Donaca concerns a municipality's duty to trim tall grass and bushes that obstructed a motorist's view, and Fazzolari concerns educators' duty to maintain the safety of their students. Faragher, Ellerth, and Harris are cases regarding sexual harassment under Title VII. Likewise, Restatement (Second) of Torts § 314A addresses premises liability for harm to a third party.
IV. Intentional Infliction of Emotional Distress Claim
Defendant argues that the amended complaint fails to cure the previously identified pleading deficiencies, such that plaintiff's IIED claim must be dismissed for the same reasons. Def.'s Mot. Dismiss 10 (doc. 27).
To state an IIED claim, plaintiff must allege: “(1) that defendants intended to cause plaintiff severe emotional distress or knew with substantial certainty that their conduct would cause such distress; (2) that defendants engaged in outrageous conduct, i.e., conduct extraordinarily beyond the bounds of socially tolerable behavior; and (3) that defendants' conduct in fact caused plaintiff severe emotional distress.” House v. Hicks, 218 Or.App. 348, 357-58, 179 P.3d 730 (2008) (citation omitted). Regarding the second element, the conduct must be “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.” Id. at 358 (citation and internal quotations omitted). While “the inquiry is fact-specific, the question of whether the defendant's conduct exceeded the farthest reaches of socially tolerable behavior” is, initially, “a question of law” for the court. Gordon v. Kleinfelder W., Inc., 2012 WL 844200, *14 (D. Or. Mar. 12, 2012) (citation and internal quotations omitted).
In his amended complaint, plaintiff again supports his IIED claim by alleging defendant failed to investigate his sexual harassment report but adds that defendant neglected to “follow up with the plaintiff” and “misrepresent[ed the existence] of surveillance footage.” Am. Compl. pg. 7 (doc. 24). Plaintiff then concludes these failures were “extreme, outrageous, and beyond the bounds of decency,” and that they were “either intentional or carried out with reckless indifference.” Id.
Thus, as with his original complaint, plaintiff broadly asserts that defendant acted in an outrageous manner with willful disregard for his well-being but includes no well-plead supporting facts. And, as this Court stated previously, “case law makes clear that failing to prevent or investigate sexual harassment does not amount to conduct that could support an IIED claim.” Jones, 2023 WL 9065120 at *4 (collecting cases). Defendant's motion is granted as to plaintiff's IIED claim.
V. Spoliation of Evidence and Failure to Preserve Evidence Claims
Defendant contends plaintiff failed to cure his fourth and seventh claims such that they should be dismissed with prejudice. Def.'s Mot. Dismiss 12-13 (doc. 27). In particular, defendant asserts the cited criminal statutes do not provide a private right of action and that “Oregon has not recognized an independent cause of action for negligent or intentional spoliation.” Id. at 12.
As this Court previously explained, ambiguity surrounds negligent and intentional spoilation claims in Oregon:
While the Oregon Supreme Court has yet to address intentional or negligent spoliation of evidence as an independent cause of action, the Court of Appeals has, without defining its precise contours, suggested that such a claim exists. See, e.g., Marcum v. Adventist Health Sys./W., 215 Or.App. 166, 190-92, 168 P.3d 1214 (2007), rev'd on other grounds, 345 Or. 237, 193 P.3d 1 (2008); Classen v. Arete NW, LLC, 254 Or.App. 216, 221-26, 294 P.3d 520 (2012). In addition, a district court from outside of the Ninth Circuit has held that the Oregon Supreme Court would recognize claims for intentional and negligent spoliation. See In re Helicopter Crash Near Wendle Creek, B.C., On Aug. 8, 2002, 2009 WL 1391422, *l-2 (D. Conn. May 18, 2009). This District, however, has expressly rejected the viability of an intentional spoliation claim under Oregon law. See Blincoe v. W.States Chiropractic Coll., 2007 WL 2071916, *7-9 (D. Or. July 14, 2007) (citations omitted).
The foregoing demonstrates that, far from clarifying this issue, courts from both within and outside of Oregon have struggled with whether the relevant sources of law establish spoliation of evidence as an independent cause of action.Jones, 2023 WL 9065120 at *5 (quoting Verdv. I-Flow, LLC, 2013 WL 2178081, *5 (D. Or. May 14, 2013)).
To that end, this District recently emphasized that “Oregon courts have not yet recognized the tort of spoliation of evidence.” Bliss v. Adewusi, 2023 WL 6961979, *14 (D. Or. Oct. 20, 2023) (collecting cases). Regardless, any such claims are “premature” unless the plaintiff had already suffered or established a diminution in value of his claims. Id. (citing Classen, 254 Or.App. at 222); see also Melo v. Oregon, 2016 WL 297430, *2 (D. Or. Jan. 20, 2016) (spoliation claim, to the extent cognizable, was premature because the plaintiff had not yet suffered a diminution in value of her claims). The Court finds the reasoning in Bliss and the cases cited therein persuasive. Because plaintiff has not yet suffered any diminution in the value of his underlying claims, defendant's motion is granted as to plaintiff's spoilation claim.
Plaintiff's continued reliance on criminal statutes - specifically, Or. Rev. Stat. §§ 133.707 and 162.295(1)(a) - is misplaced. As the Court previously stated, these statutes concern “the preservation of biological evidence in a criminal investigation, and the crime of tampering with physical evidence, respectively.” Jones, 2023 WL 9065120 at *4. As such, they provide no support for a civil claim. Id.; see also Schwettmann v. Starns, 2023 WL 8284064, *2 (E.D. Cal. Nov. 30, 2023) (“[a] citizen does not have authority to bring criminal charges, either under state or federal law”); Hart v. Granado, 2023 WL 7301872, *2-3 (D. Ariz. Nov. 6, 2023) (dismissing the pro se plaintiff's claims pursuant to criminal statutes with prejudice, explaining “criminal provisions provide no basis for civil liability”) (citation and internal quotations omitted). Defendant's motion is granted as to plaintiff's failure to preserve evidence claim.
VI. Retaliation Claim
Defendant argues that plaintiff's fifth claim must be dismissed because he fails to allege any facts that show retaliation for engaging a protected activity. Def.'s Mot. Dismiss 12-13 (doc. 27).
To state a retaliation claim under Title VII, a plaintiff must allege: “(1) involvement in a protected activity, (2) an adverse employment action and (3) a causal link between the two.” Brooks, 229 F.3d at 928. An employer's actions may constitute an adverse employment action if they would be reasonably likely to deter employees from engaging in a protected activity. Ray v. Henderson, 217 F.3d 1234, 1243 (9th Cir. 2000). Actions such as termination, dissemination of poor employment references, undeservedly issuing a negative performance review, and denial of a promotion may constitute an adverse employment action. Brooks, 229 F.3d at 928. Conversely, an employer refusing to hold a position open for an employee or “badmouthing an employee outside the job reference context” do not constitute adverse employment actions. Id. at 928-29.
The amended complaint concludes that, “after [p]laintiff reported the sexual harassment incident, [d]efendant engaged in retaliatory actions.” Am. Compl. pg. 8 (doc. 24). However, the amended complaint contains no reference to particular instances that could constitute adverse employment actions. Namely, although plaintiff alleges defendant did not include him in staff meetings, offer a remote option for what is ostensibly an in-store position, or provide him developmental opportunities despite his absence, the amended complaint reflects that defendant maintained the status quo. In other words, defendant retained plaintiff in his current position despite his reports, however, plaintiff simply elected not to return to work. Further, plaintiff's vague references to an overall increase in hostile treatment are insufficient. Defendant's motion is granted as to plaintiff's retaliation claim.
VII. Oregon Workplace Fairness Act Claim
Defendant argues that plaintiff's OWFA claim must be dismissed because the amended complaint “fails to allege any facts that would afford him a private right of action.” Def.'s Mot. Dismiss 14 (doc. 27).
Plaintiff alleges that defendant “failed to adhere to the requirement set forth in [OWFA]” and cites to Or. Rev. Stat. § 659A.885 and Faragher. Am. Compl. pg. 9 (doc. 24).
Initially, it is unclear whether plaintiff's OWFA claim was intended to be distinct from his Title VII claim. As denoted above, state law claims under Chapter 659A are construed consistently with Title VII (and Faragher is a Title VII case). Thus, the Court's reasoning in Section II applies equally to any state law sexual harassment claim asserted under Chapter 659A.
However, to the extent plaintiff identifies OWFA as a separate basis of liability, his claim fails. The provision invoked by plaintiff - i.e., Or. Rev. Stat § 659A.885 - “provid[es] a cause of action for any person claiming to be aggrieved by an unlawful practice that violates ORS § 659A.370.” Khalfa v. Or. Health & Sci. Univ., 2023 WL 8602123, *5 n.7 (D. Or. Dec. 12, 2023) (citation and internal quotations omitted). Section 659A.370, et seq. generally concern an employer's written policies and contracts. See generally id.; see also Def.'s Mot. Dismiss 13-14 (doc. 27) (“OWFA requires employers to implement and distribute a written antidiscrimination and harassment policy, and prohibits employers from requiring an employee (as part of any employment agreement) to agree to not disclose alleged unlawful conduct, disparage the employer, or be re-employed by the employer”) (citing Or. Rev. Stat. §§ 659A.370, 659A.375). Because plaintiff does not include any allegations surrounding defendant's written policies, or lack thereof, defendant's motion is granted in this regard.
VIII. Civil Conspiracy
Defendant argues that plaintiff's civil conspiracy claim must be dismissed with prejudice because he has yet to plead the involvement of two or more people. Def.'s Mot. Dismiss 14 (doc. 27).
A valid civil conspiracy claim in Oregon requires “a combination of two or more persons by concerted action to accomplish an unlawful purpose, or to accomplish some purpose not in itself unlawful by unlawful means.” Yanney v. Koehler, 147 Or.App. 269, 279, 935 P.2d 1235 (1997) (quoting Bonds v. Landers, 279 Or. 169, 174, 566 P.2d 513 (1977)) (citations omitted). The conspiracy claim must allege facts showing: (1) two or more persons; (2) an object to be accomplished; (3) a meeting of minds on the object or course of action; (4) one or more unlawful overt acts; and (5) damages as the proximate result thereof. Id.
The amended complaint still does not identify two or more persons or entities that engaged in a conspiracy, or any facts indicating that defendant's employees were acting individually for personal benefit. As this Court previously explained:
Defendant cannot conspire with employees or departments within its own corporation to commit civil conspiracy. See Bliss v. S. Pac. Co., 212 Or. 634, 643, 321 P.2d 324 (1958) (“‘A corporation cannot conspire with itself any more than a private individual can, and it is a general rule that the acts of the agents are the acts of the corporation.'”) (quoting Nelson Radio & Supply Co., Inc., v. Motorola, Inc., 200 F.2d 911, 914 (5th Cir. 1952)); see also Morasch v. Hood, 232 Or.App. 392, 402, 222 P.3d 1125 (2009) (“civil conspiracy is not, itself, a separate tort for which damages may be recovered; rather, it is a way in which a person may become jointly liable for another's tortious conduct”) (citation and internal brackets and quotations omitted). The Oregon Supreme Court acknowledged that a claim for conspiracy may lie if employees of a corporation are acting individually for personal benefit, but there are no facts in plaintiff's complaint to that effect. See Bliss, 212 Or. at 644.Jones, 2023 WL 9065120 at *6. Accordingly, plaintiff failed to cure the previously identified defects and defendant's motion is granted as to this claim.
Despite the amended complaint's deficiencies, the Court declines to dismiss plaintiff's claims with prejudice. See Def.'s Mot. Dismiss 4 (doc. 27) (“Target respectfully moves this Court to dismiss Plaintiff's claims with prejudice and without leave to amend”). As discussed herein, plaintiff has adequately stated a sexual harassment claim. Further, plaintiff is proceeding pro se and has only had one opportunity to seek amendment, such that the Court cannot conclude, at least at this stage in the proceedings, that the other claims' deficiencies are incurable as a matter of law. The Court reiterates, however, that any claims premised on criminal statutes, a premature spoilation theory, and/or IIED for failure to prevent or investigate sexual harassment fail to state a claim and are subject to immediate dismissal.
RECOMMENDATION
For the foregoing reasons, defendant's Motion to Dismiss (doc. 27) should be denied as to plaintiff's sexual harassment claim, and granted in all other respects. The parties' requests for oral argument are denied as unnecessary.
However, before plaintiff may proceed with either the existing claim or the filing of an amended complaint, he must comply with Judge Simon's December 2023 order. Therefore, within 30 days of the District Judge's order, plaintiff must either: (1) file a corrected declaration indicating that Zack Jones is his legal name; or (2) refile his pleadings under his legal name or move to proceed under a pseudonym. Likewise, any motion to amend the complaint must conform with this Findings and Recommendation and be filed within 30 days of the District Judge's order.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment or appealable order. The parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days within which to file a response to the objections. Failure to timely file objections to any factual determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo consideration of the factual issues and will constitute a waiver of a party's right to appellate review of the findings of fact in an order or judgment entered pursuant to this recommendation.