Opinion
Case No. 3:19-cv-00850-AC
06-30-2020
RAYMOND MAXWELL UPCHURCH, Plaintiff, v. MULTNOMAH UNIVERSITY, CURT. J. BICKLEY, an individual and JAKE COBURN, an individual, Defendants.
FINDINGS AND RECOMMENDATION :
Introduction
Plaintiff Raymond Maxwell Upchurch ("Upchurch") sues Defendants Multnomah University ("MU"), Curt. J. Bickley ("Bickley") and Jake Coburn ("Coburn") (collectively "Defendants") for racial discrimination, alleging violation of 42 U.S.C. § 2000d as to MU and violation of ORS § 659A.403 as to individual defendants Bickley and Coburn. Coburn moves to dismiss Upchurch's allegations against him with prejudice. Coburn's Rule Motion to Dismiss ("Motion") (Def.'s Mot., ECF No. 15 ("Mot.")) should be GRANTED, with leave to amend, because Upchurch has not sufficiently pleaded that MU is a place of public accommodation.
The court finds disposition of this motion is appropriate without oral argument. LR 7-1(d)(1).
Factual Background
In August 2016, Upchurch started college at MU, a school he selected because it claimed to provide "a diverse community that equips students to love Christ and serve their neighbors through their lives and work," and because at MU, he could fulfil his dream of playing college basketball. (Compl., ECF No. 1 ("Compl."), at ¶¶ 8-9.) MU "was and is a domestic non-profit corporation, formed in the state of Oregon[.]" (Id. at ¶ 5.) Coburn was an agent and employee of MU. (Id. at ¶ 7.) At some point during Upchurch's time at MU, he worked for Coburn in MU's athletic department. (Id. at ¶ 37.)
Upchurch first faced challenges at MU due to his basketball coach, Defendant Bickley. In June 2017, Bickley routinely compared Upchurch and his teammates to "slaves" bound by their scholarships, and routinely threatened to revoke those scholarships. (Id. at ¶¶ 12-13.) After Upchurch sat during the National Anthem before a January 2018 game, Bickley wrote slogans on the whiteboard in the locker room such as "good at bringing drama," "ungrateful," "soft," "spoiled," and "broken trust," and subsequently red-shirted Upchurch. (Id. at ¶¶ 15-18.)
Upchurch's experience at MU subsequently worsened. In April 2018, MU staff members encouraged Upchurch to apply for the Student Government Association's "Intercultural Inclusion Chair," which he accepted. (Id. at ¶ 19.) However, he asserts MU did not train adequately train him, equip him for success, or supply him with mentorship and guidance for the position. (Id. at ¶ 20.)
In November 2018, Upchurch organized and executed MU's "Mosaic Week," a week of programming for which Upchurch participated in the theming, development, and execution of the agenda, set up rooms, found speakers and sponsors, and attended every event and devotional. (Id. at ¶¶ 21-22.) Upchurch's Mosaic Week experience, however, resulted in deleterious personal consequences: "pressure" that caused him to "emotionally crash" into a "mental health crisis" caused by "significant mental and emotional strain from the racial trauma and weight of the issues" discussed at the event; and afterward, the "'guilt,' 'shame,' and conflict that MU's white 'progressive' students, faculty and attendants experienced following the Mosaic Week" that "were laid at Plaintiff's feet as feedback." (Id. at ¶¶ 23-25.)
That same month, Upchurch was "anonymously" reported for having alcohol in his room. (Id. at ¶ 26.) In response, "MU staff marched Plaintiff to his room, collected the contraband and placed it in a conspicuous package," then proceeded to "perp walk" Upchurch across campus with that package. (Id. at ¶ 27.) This incident, combined with his Mosaic Week experience, "stoked Plaintiff's 'social anxiety.'" (Id. at ¶ 28.)
In December 2018, Upchurch accepted MU's sanctions for the alcohol incident despite maintaining his innocence, which included a "mandated" referral for counseling and a requirement that he select a school employee as a mentor. (Id. at ¶¶ 29-30, 37.)
In early January 2019, Upchurch discovered that his room had been vandalized during the Christmas Break. (Id. at ¶ 32.) The incident caused him to become violently ill, suffering abdominal pains, vomiting, loss of appetite, and difficulty concentrating. (Id. at ¶ 34.) As a result, Upchurch made multiple hospital visits and missed time from school. (Id))
Upchurch thereafter sought to move off-campus for his health, safety, and well-being, and his therapist recommended he do so to minimize his "symptoms." (Id. at ¶¶ 34, 38.) MU initially denied Upchurch's request, but ultimately allowed him to move off-campus after his parents met with MU's Dean of Students and several faculty members. (Id. at ¶¶ 39-43.)
Upchurch chose to move in with Coburn, his school employee mentor, seeking a "safe haven to rest, heal and complete his education." (Id. at ¶ 43.) He paid Coburn $600 in rent. (Id.) Shortly after Upchurch moved in, however, Coburn "bombarded Plaintiff and his friends with racist and sexist remarks." (Id. at ¶¶ 44-47.) Coburn "provid[ed] and allow[ed] alcohol, drugs and opposite sex interactions contrary to MU policy" and "used intimidation, control, substances, and the staff/student power differential to secure [Plaintiff's] silence." (Id. at ¶¶ 47-48.)
On February 13, 2019, Upchurch called his father in panic and begged him to "Get me out of here!". (Id. at ¶ 49.) Though his father initially insisted he remain at MU to complete the semester and maintain his academic standing, Upchurch's counselor urged his father to remove him from the MU environment for his son's "mental, emotional and psychological well-being." The counselor further advised that Upchurch would need "extensive therapy to process and overcome his experiences at MU." (Id. at ¶¶ 50-52.) The next day, Upchurch's father allowed him to leave MU. (Id. at ¶ 53.)
Preliminary Procedural Matters
Coburn asks the court to take judicial notice of "the fact that Multnomah University has a selective admissions process." (Def.'s Reply,., ECF No. 23 ("Reply"), at 2.) Specifically, Coburn asks the court to take judicial notice of statistics concerning MU's admissions from Fall 2018 published by the Institute of Educational Services ("IES"), an arm of the United States Department of Education, on its website. (Id. at 2-3.) Additionally, Coburn avers it is general knowledge that MU, "like many universities, are not simply open to the public." (Id. at 3.) Coburn argues:
It is common and general knowledge that prospective students who wish to attend Multnomah University must apply before they are entitled to enjoy the benefits of its higher education program. An individual who has not been accepted to the University cannot simply attend its classes, participate in its student organizations or team sports, live in its dormitories or benefit from any of the amenities that is exclusively offers to students.(Id. at 3.)
Generally, a court may not consider material beyond the complaint when deciding a Federal Rule of Civil Procedure ("Rule") 12(b)(6) motion. FED. R. CIV. P. 12(d) (explaining that if court considers other materials, the motion is converted into a motion for summary judgment under Rule 56); see also Akhtar v. Mesa, 698 F.3d 1202, 1212 (9th Cir. 2012) (quoting Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir. 2007) (per curiam)). However, a court may consider materials beyond the pleadings in certain circumstances without converting the Rule 12(b)(6) motion into a Rule 56 motion for summary judgment under two exceptions: incorporation by reference and judicial notice. Khoja v. Orexigen Therapeutics, Inc., 899 F.3d 988, 998 (9th Cir. 2018); Lee v. City of Los Angeles, 250 F.3d 668, 688 (9th Cir. 2001) (discussing that a court may take judicial notice of matters of public record without converting a motion to dismiss into a motion for summary judgment). The incorporation by reference doctrine "is a judicially created doctrine that treats certain documents as though they are part of the complaint itself." Khoja, 899 F.3d at 999.
In contrast, judicial notice under Federal Rule of Evidence 201 permits a court to take judicial notice of undisputed facts in matters of public record. Khoja, 899 F.3d at 999. A court may take judicial notice of an adjudicative fact that is "'not subject to reasonable dispute' if it is 'generally known,' or 'can be accurately and readily determined from sources whose accuracy cannot reasonably be questioned.'" Id. (quoting FED. R. EVID. 201(b)(1)-(2)).
A court may take judicial notice of matters of public record. Id. (quoting Lee, 250 F.3d at 689). "Government-agency websites, and the information contained therein, are matters of public record appropriate for judicial notice under Rule 201." Century Indem. Co. v. Marine Group, LLC, No. 3:08-CV-1375-AC, 2015 WL 5144330, at *2 (D. Or. Aug. 31, 2015). A court is limited to taking judicial notice only of undisputed matters in public records. Lee, 250 F.3d at 689-90. "When a court takes judicial notice of a public record, 'it may do so not for the truth of the facts recited therein, but for the existence of the [record], which is not subject to reasonable dispute over its authenticity.'" Vesta Corp. v. Amdocs Mgmt. Ltd., 129 F. Supp. 3d 1012, 1021 (D. Or. 2015) (quoting Klein v. Freedom Strategic Partners, LLC, 595 F. Supp. 2d 1152, 1157 (D. Nev. 2009) (quoting Lee, 250 F.3d at 690) (alteration in original)). For example, a trial court may properly take judicial notice of a fact sheet available from the United States Fish and Wildlife Service website and the information contained therein, such as the purpose of the Portland Harbor Natural Resource Trustee Council, the identification of the current trustees serving on that council, and a summary of the legal authority of that council. Century Indem. Co., 2015 WL 5144330, at *2. But a trial court may not take judicial notice of the validity of an extradition waiver that is yet unproved, though the court may take judicial notice "of the fact that a Waiver of Extradition was signed by [the plaintiff's son], and the fact that [he] purportedly waived his right to challenge his extradition . . ." Lee, 250 F.3d at 689-90 (emphasis in original).
A trial judge may take judicial notice of facts generally known within the territorial jurisdiction of the trial court (FED. R. EVID. 201(b)(1)), but "is prohibited from relying on his personal experience to support the taking of judicial notice." U.S. v. Lewis, 833 F.2d 1380, 1385 (9th Cir. 1987). Nor may a judge use "that which he knows only as an individual observer outside of court." Id. (quoting 9 J. WIGMORE, EVIDENCE IN TRIALS AT COMMON LAW § 2569, at 723 (J. Chabourn rev. ed. 1981) (emphasis in original) (internal quotation marks omitted). For example, a trial judge may not rely on his own reaction to anesthetic in determining the admissibility of a statement made after waking up from general anesthetic administered during surgery, id. at 1384-85, nor may a trial judge rely on personal driving experience to make an observation that a particular road is heavily traveled, U.S. v. Mariscal, 285 F.3d 1127, 1131-32 (9th Cir. 2002) (rejecting judicial notice "of that 'fact' just as quickly as we have rejected the supposed fact that the post office generally delivers mail overnight to 'locally designated cities,'" and noting that "[it] is nothing like the obvious fact that surgery is painful and can have dire consequences, . . . [n]or is it like common knowledge about the general shape of snowmen." (citations omitted)). In contrast, in a case evaluating an NHL by-law prohibiting a player with one eye to play in the league, the trial judge properly took judicial notice of the obvious fact that "ice hockey is a very rough physical contact sport, and that there is bound to be danger to players who happen to be on [appellant's] blind side, no matter how well his mask may protect his one good eye." Neeld v. Nat'l Hockey League, 594 F.2d 1297, 1300, n.1 (9th Cir. 1979).
The court takes judicial notice of MU's admissions statistics published by the IES. Those statistics are properly before the court because they are published on a government agency website and are matters of public record. The court takes judicial notice of the fact that such statistics exist in public record regarding MU's admissions and of the information contained therein. Because the court may take judicial notice of undisputed matters of public record, such as these statistics, the court need not decide whether MU's selectivity in its admissions is general knowledge.
Legal Standards
Under Rule 12(b)(6), a party may move to dismiss a complaint for "failure to state a claim upon which relief can be granted." FED. R. CIV. P. 12(b)(6). A court may grant a motion to dismiss "'based on the lack of cognizable legal theory or the absence of sufficient facts alleged'" under a cognizable legal theory. UMG Recordings, Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir. 1990)).
To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007); see also CallerID4u , Inc. v. MCI Commc'ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir. 2018). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009); Teixeira v. Cty. of Alameda, 873 F.3d 670, 678 (9th Cir. 2017). The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff's complaint pleads facts that are "merely consistent with" a defendant's liability, the plaintiff's complaint "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id. at 557 (brackets omitted).
The court must accept as true the allegations in the complaint and construe them in favor of the plaintiff. Teixeira, 873 F.3d at 678; see also Iqbal, 556 U.S. at 679; Snyder & Assocs. Acquisitions LLC v. United States, 859 F.3d 1152, 1157 (9th Cir. 2017). Rule 8 requires that complaints in federal court consist of "a short and plain statement of the claim showing that the pleader is entitled to relief[.]" FED. R. CIV. P. 8(a)(2). The pleading standard under Rule 8 "does not require 'detailed factual allegations,' but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 555); see also FED. R. CIV. P. 8(a) (2). "[L]abels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555. However, a claim "may proceed even if it strikes a savvy judge that actual proof of [necessary] facts is improbable," and the plaintiff is unlikely to succeed on the merits. Id. at 556.
Leave to amend should be given freely when justice so requires (FED. R. CIV. P. 15(a)(2)), unless the court determines the pleading could not possibly be cured by the allegation of other facts. Cook, Perkiss and Liehe, Inc. v. Northern California Collection Service, Inc., 911 F.2d 242, 247 (9th Cir. 1990).
Discussion
In Upchurch's second claim for relief, he sues Defendants Coburn and Bickley for discrimination in a public accommodation based on race, in violation of ORS § 659A.403, part of the Oregon Public Accommodations Act ("OPAA"). (Compl. ¶ ¶ 73-93). Coburn argues that MU is not a place of public accommodation as defined in ORS § 659A.400. (Mot., at 7-9.) Coburn argues that because MU is not a place of public accommodation, there can be no cause of action against him for any alleged discrimination in violation of ORS § 659A.403. (Id. at 8-9.) Coburn further argues that his home is not a place of public accommodation, and that even if Upchurch lived with Coburn at MU's directive and Coburn's home was acting as an extension of MU while Upchurch resided there, ORS § 659A.403 would not apply. (Id. at 9.) Upchurch responds that whether MU is a place of public accommodation is a question of fact the court cannot be resolved on a motion to dismiss. (Pl.'s Resp., ECF No. 21 ("Pl.'s Resp."), at 5-6.) Upchurch argues that the public accommodation at issue is Coburn's service as a mentor based on his employment at MU, not Coburn's home. (Id. at 6-7.) Coburn replies that whether he was providing services to Upchurch is irrelevant because if MU is not a place of public accommodation, any services it provides are not covered by the statute. (Reply, at 5-6.)
I. Whether MU is a "Place of Public Accommodation" Under the OPAA
Under ORS § 659A.403, "all persons within the jurisdiction of this state are entitled to the full and equal accommodations, advantages, facilities and privileges of any place of public accommodation, without any distinction, discrimination or restriction on account of race, color, religion, sex, sexual orientation, national origin, marital status or age . . . ." OR. REV. STAT. § 659A.403 (2019). A "place of public accommodation" includes "[a]ny place or service offering to the public accommodations, advantages, facilities or privileges whether in the nature of goods, services, lodgings, amusements, transportation or otherwise." OR. REV. STAT. § 659A.400(1)(a). "The legislative history is clear that this definition is intended to be a broad one and to apply to all types of businesses which offer goods and/or services to the public." Schwenk v. Boy Scouts of America, 275 Or. 327, 335 (1976). However, a "place of public accommodation" does not include "[a]n institution, bona fide club or place of accommodation that is in its nature distinctly private." OR. REV. STAT. § 659A.400(2)(e). Thus, an organization is exempt from the OPAA if it is distinctly private. Abukhalaf v. Morrison Child & Family Servs., No. CV 08-345-HU, 2009 WL 4067274, at *6 (D. Or. Nov. 20, 2009).
Oregon courts use a two-step inquiry to determine whether a private entity is a place of public accommodation under the statute: "First, the court must ask whether the entity is a 'business or commercial enterprise.'" Vejo v. Portland Public Schools, 204 F. Supp. 3d 1149, 1167 (D. Or. 2016), rev'd on other grounds, 737 Fed. App'x. 309 (9th Cir. 2018). Second, "[i]f so, the court must determine whether the entity's 'membership policies are so unselective that the organization can fairly be said to offer its services to the public." Vejo, 204 F. Supp. 3d at 1167 (quoting Lahmann v. Grand Aerie of Fraternal Order of Eagles, 202 Or. App. 123, 127 (2005) ("Lahmann II")).
A private college or university can be "distinctly private," and as such exempt from the OPAA, if its admissions process is "not so unselective that it is de facto open to the public." Vejo, 204 F. Supp. 3d at 1167. In Vejo, a graduate student in a counseling program sued Lewis & Clark College for discrimination pursuant to ORS § 659A.403. Id. at 1156, 1166. The court considered whether Lewis & Clark met the definition of a "place of public accommodation" as defined by the OPAA, "without falling into the exception" set forth for "[a]n institution, bona fide club or place of accommodation that is in its nature distinctly private." Id. at 1167; OR. REV. STAT. § 659A.400(2)(e). The Vejo court applied the two-step inquiry to determine whether a private entity is a place of public accommodation under the statute, and found Lewis & Clark, as a commercial or business entity, met the first prong of the test. Id. at 1167. The Vejo court, however, found that Lewis & Clark did not meet the second prong because its membership processes were "not so unselective that it is de facto open to the public." Id. at 1168. Specifically, the court determined that "a program that rejects one-third of its applicants is not de facto open to the public." Id. at 1168, n.10 ("assuming" two-thirds of applicants are accepted because the exhibit cited by the plaintiff "contains information about the number of students admitted to the counseling program each year (thirty-two), it does not appear to state what percentage of applicants are admitted or how many applications the school typically receives.")
The Vejo court found the Abukhalaf analysis persuasive on the question of nonselectivity. Vejo, 204 F. Supp. 3d at 1168 (discussing Abukhalaf, 2009 WL 4067274, at *6-8). The Vejo court cited the analogy between the Abukhalaf defendant's organization - a foster-parent recruiter - and a wholesaler that the Oregon Court of Appeals found to be nonpublic in Graham v. Kold Kist Beverage Ice, Inc., 43 Or. App. 1037 (1979):
Similarly, like the wholesaler who advertises its wares to retailers, but retains discretion as to which retailers it sells to, defendant advertises the opportunity to become a foster parent to the public, but then ultimately retains discretion as to which applicants are chosen. Both are selective, rather than nonselective, processes. Both involve discretion, and indeed the selection of a foster parent candidate seems at least as selective as the selection of retailers, if not more so.Vejo, 204 F. Supp. 3d at 1168 (quoting Abukhalaf, 2009 WL 4067274, at *7). Applying that analysis, the Vejo court found Lewis & Clark's "membership processes are not so unselective that it is de facto open to the public." Id. at 1168.
Likewise, a "membership-based technology incubator" was not a place of public accommodation under the OPAA. Barnett v. E:Space Labs LLC, No. 6:18-cv-00419-MC, 2018 WL 3364660, at *4 (D. Or. July 10, 2018). In Barnett, the incubator, E:Space Labs, granted permission to use its facilities on a selective basis. Id. at *4. To use the incubator's facilities, individuals or companies had to contract directly with the incubator or apply to be a member. Id. at *1. E:Space Labs had exclusive access and control over its office space, and members were issued keys to access the facilities. Id. at *1, 4. The court therefore found "[o]n the face of the complaint, E:Space Labs' membership is restricted and the facilities are not open to the public" and concluded "E:Space Labs is not a place of public accommodation . . . ." Id. at *4 (internal quotation marks omitted).
By contrast, Oregon courts have found that two fraternal organizations which excluded only women, but otherwise emphasized recruiting and accepted male applicants unselectively, had "de facto nonselective membership polic[ies]." Abukhalaf, 2009 WL 4067274, at *7 (discussing Lahmann II, 202 Or. App. 123 (2005), and Lloyd Lions Club v. Int'l Assoc. of Lions Clubs, 81 Or. App. 151 (1986)). In Lahmann II, where the selectivity of the Fraternal Order of the Eagles organization was at issue, the court affirmed the trial court's finding that:
Either the written requirements, or actual practices of this Aerie are so loose and nonselective that it can easily be said that the Eagles offer their services to the public. The net effect of these very easy membership requirements is that it cannot be said the Eagles are 'in its nature distinctly private' . . . .Lahmann II, 202 Or. App. at 128. Similarly, in Lloyd Lions Club, the court affirmed the trial court's decision that the defendant organization, International Association of Lions Clubs, was not "private" because it was "open to virtually all, except women." Lloyd Lions Club, 81 Or. App. at 157. The International Association of Lions Clubs claimed its membership selection criteria were highly selective, but despite the "appearance of being elaborate, formal and structured," the trial court found "the application process is not selective and almost all men who apply are admitted to membership." Id. at 154. The trial court further noted the defendant's "emphasis on membership recruitment is pervasive and incessant," including constant encouragement to solicit and recruit members; recruiting drives; encouragement of local clubs to sponsor recruiting contests; and awards, plaques, and prizes given to those who recruit the most new members. Id.
The OPAA also covers services offered to the public. OR. REV. STAT. § 659A.400(1)(a). Airbnb, for example, was a place of public accommodation under the OPAA because it offered to the public the service of searching for, finding, and booking an accommodation using its online platform. Harrington v. Airbnb, Inc., 348 F. Supp. 3d 1085, 1092 (D. Or. 2018). The court found that "even though users must join Airbnb as a members and create a member profile to be allowed access to Airbnb's online platform services," Airbnb as a service is "de facto" open to the public because it is "so unselective in [its] membership criteria that [it is] effectively public." Id. at 1092-93 (quoting Lahmann v. Grand Aerie of Fraternal Order of Eagles, 180 Or. App. 420, 429 (2002) ("Lahmann I")) (internal quotation marks omitted). Moreover, the court found it "irrelevant that Airbnb does not itself directly rent or own the accommodations being rented out because what Airbnb provides to the public is the service of using its online platform to browse, locate, book, and pay for accommodations in private homes." Id. at 1093.
Upchurch has not pleaded sufficient factual matter to plausibly state a claim under ORS § 659A.403, because he has not alleged facts sufficient for the court to reasonably infer that MU is a place of public accommodation. It follows that Upchurch also fails to state a claim that Coburn's alleged actions as an employee or agent of MU fall within the purview of the OPAA. Upchurch alleges the following facts about MU:
1. MU offers to the public accommodations, advantages, facilities and privileges in the nature of goods, services and lodgings;
2. At all material times, MU was and is a domestic non-profit corporation, formed in the State of Oregon, thus it is responsible under state law for the
acts and omission of its agents and other employees, including those whose conduct is at issue herein;(Compl. ¶¶ 5, 8-10, 13, 56, 67, 70, 75.) None of these allegations state or reasonably suggest MU's admissions process is nonselective.
3. On or about August 27, 2016, Plaintiff enrolled in and started attending MU;
4. Plaintiff chose MU because of its claims that it "is a diverse community that equips students to love Christ and serve their neighbors through their lives and work";
5. Plaintiff also chose MU to fulfil his dream of playing college basketball;
6. Plaintiff had a basketball scholarship at MU;
7. MU receives Federal financial assistance, including but not limited to, federal grants and loan subsidies;
Other allegations similarly lack a basis for inferring MU is a nonselective institution. The court may reasonably infer from Plaintiff's allegations that students paid MU costs for tuition, books, and living expenses. (Id. at ¶¶ 70, 90.) The court may infer MU required students like Plaintiff to live on-campus unless they "need[] the move as an 'accommodation' under the Americans with Disabilities Act." (Id. at ¶ 39.) The court may further infer that MU has a Dean of Students, faculty members, and staff that may deal with issues affecting students and give sanctions to students in response to proscribed conduct. (Id. at ¶¶ 26-31, 37, 40-42.) The court may also infer MU had a policy or policies in some way prohibiting "alcohol, drugs and opposite sex interactions," based on the event for which Plaintiff received sanctions and Plaintiff's allegation that Coburn acted contrary to that policy while Plaintiff lived with him. (Id. at ¶¶ 26-30, 48, 65, 81.) None of these allegations or the inferences which may be reasonably drawn from them, however, address the primary question of whether MU is a nonselective institution such that it constitutes a place of public accommodation under ORS § 659A.403.
Upchurch has not alleged any facts pertaining to the selectivity of MU; not alleged any facts about MU's recruiting or admissions practices, written or actual; and not alleged facts pertaining to the number of applicants, rates of admissions and enrollment, or recruitment policies. For example, on admissions, Upchurch's complaint is silent and on recruiting, its only mention appears in the prayer for relief that "MU's faculty and staff . . . undergo diversity training before recruiting another student of color." (Compl. 13 ¶ 1(b)) (emphasis added).
Finally, the IES admission statistics judicially noticed do not demonstrate that MU is nonselective. Those statistics, without more, demonstrate MU is not de facto open to the public because, like Lewis & Clark in Vejo, where the court found Lewis & Clark's admissions processes were "not so unselective that it is de facto open to the public," Vejo, 204 F. Supp. 3d at 1168, the statistics here suggest MU was selective enough in its admissions that it does not meet the second part of the Vejo two-part test. Upchurch fails to allege facts sufficient for the court to reasonably infer that Oregon law applies differently to MU than it did to Lewis & Clark.
Because Upchurch alleges Coburn was an agent and employee of MU, he must allege facts that, when accepted as true, allow the court to draw the reasonable inference that MU is a place of public accommodation under the OPAA. See Iqbal, 556 U.S. at 678; Teixeira, 873 F.3d at 678. At the outset, Upchurch alleges "MU offers to the public accommodations, advantages, facilities and privileges in the nature of goods, services and lodgings," (Compl. at ¶ 75), but "labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do[.]" Twombly, 550 U.S. at 555. Rather, under Oregon law, Upchurch must allege sufficient facts making plausible the inference that MU is a place of public accommodation under Vejo's two-part test. The parties do not dispute MU is a "business or commercial enterprise," and thus the first part of the test is met. (See Mot., at 8; Pl.'s Resp., at 5.) But Upchurch also must allege facts sufficient for the court to draw the reasonable inference that MU's membership policies are so unselective that MU can fairly be said to offer its services to the public, Vejo, 204 F. Supp. 3d at 1167 (quoting Lahmann II, 202 Or. App. at 127), and he has not alleged such facts. Instead, Upchurch's allegations, even when taken as true and considering the facts judicially noticed, permit the reasonable inference only that MU falls under the statutory exception from the OPAA because it is distinctly private. See OR. REV. STAT. § 659A.400(2)(e).
Neither does Upchurch sufficiently allege Coburn's service as a mentor brings him within the scope of a "place of public accommodation." See Barnett, 2018 WL 3364660, at *4. Upchurch argues "[t]t was Coburn's 'service' as a mentor — based on his employment by MU — that is the public accommodation at issue: Not his home." (Pl.'s Resp., at 7.) Without plausible allegations to support the inference that MU is a place of public accommodation, Coburn's mentor status does not help Upchurch's argument.
Thus, in the absence of sufficient facts alleged under Upchurch's theories of liability, the court should dismiss his claim against Coburn. UMG Recordings, Inc., 718 F.3d at 1014 (quoting Balistreri, 901 F.2d at 699).
II. Leave to Amend
Coburn asks the court to dismiss Upchurch's allegations against him with prejudice. (Mot., at 12.) Coburn argues Upchurch cannot allege different facts that would demonstrate that either MU or Coburn's private residence is a place of public accommodation. (Id. at 10.) Further, Coburn argues Upchurch cannot pursue alternative theories of liability against him. (Id. at 10-11.) Upchurch responds the pleading may be cured by amendments based on allegations already contained therein, argues there is no prejudice, and notes that the amendments, if allowed, would be well within the applicablp statutes of limitations. (Pl.'s Resp., at 7.)
Leave to amend should be given freely when justice so requires, FED. R. CIV. P. 15(a)(2); unless the court determines the pleading could not possibly be cured by the allegation of other facts. Cook, Perkiss and Liehe, Inc., 911 F.2d at 247. Here, it is possible Upchurch can cure his pleading by alleging additional facts that would support a reasonable inference MU's admissions policies are "so unselective that the organization can fairly be said to offer its services to the public." Vejo, 204 F. Supp. 3d at 1167 (quoting Lahmann II, 202 Or. App. at 127).
Conclusion
Based on the foregoing, the court should GRANT Coburn's Motion (ECF No. 15) to Dismiss, but grant Upchurch leave to amend his complaint.
Scheduling Order
The above Findings and Recommendation will be referred to a United States District Court Judge for review. Objections, if any, are due in 14 days. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due within 14 days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
DATED this 30th day of June, 2020.
/s/_________
JOHN V. ACOSTA
United States Magistrate Judge