Obsidian Finance Group, LLC et al v. Cox
OPINION & ORDER: Plaintiffs' motion to dismiss, or alternatively for summary judgment 36 , is granted and all of defendant's counterclaims are dismissed. See 8-page opinion & order attached. Ordered by Judge Marco A. Hernandez. Copy of order mailed and emailed to defendant. (mr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
OBSIDIAN FINANCE GROUP, LLC, and
KEVIN D. PADRICK,
OPINION & ORDER
Steven M Wilker
David S. Aman
TONKON TORP LLP
1600 Pioneer Tower
888 S.W. Fifth Avenue
Portland, Oregon 97204
Attorneys for Plaintiffs
1 - OPINION & ORDER
Crystal L. Cox
P.O. Box 1610
Eureka, Montana 59917
Defendant Pro Se
HERNANDEZ, District Judge:
Plaintiffs Obsidian Finance Group, LLC and Kevin Padrick move to dismiss, or
alternatively for summary judgment as to, defendant Crystal Cox's counterclaims. I grant the
The background of this defamation action is fully set out in the prior opinions resolving
plaintiffs' earlier summary judgment motion. See July 7, 2011 Op. & Ord. (dkt #26); Aug. 23,
2011 Op. & Ord. (dkt #31). I do not repeat it here.
On a motion to dismiss, the court must review the sufficiency of the complaint. Scheuer
v. Rhodes, 416 U.S. 232, 236 (1974). All allegations of material fact are taken as true and
construed in the light most favorable to the nonmoving party. American Family Ass'n, Inc. v.
City & County of San Francisco, 277 F.3d 1114, 1120 (9th Cir. 2002). However, the court need
not accept conclusory allegations as truthful. Holden v. Hagopian, 978 F.2d 1115, 1121 (9th Cir.
A motion to dismiss under Rule 12(b)(6) will be granted if plaintiff alleges the "grounds"
of his "entitlement to relief" with nothing "more than labels and conclusions, and a formulaic
recitation of the elements of a cause of action[.]" Bell Atlantic Corp. v. Twombly, 550 U.S. 544,
2 - OPINION & ORDER
555 (2007). "Factual allegations must be enough to raise a right to relief above the speculative
level, . . . on the assumption that all the allegations in the complaint are true (even if doubtful in
fact)[.]" Id. (citations and footnote omitted).
To survive a motion to dismiss, the complaint "must contain sufficient factual matter,
accepted as true, to state a claim to relief that is plausible on its face[,]" meaning "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, 129 S. Ct. 1937, 1949 (2009)
(internal quotation omitted). Additionally, "only a complaint that states a plausible claim for
relief survives a motion to dismiss." Id. at 1950. The complaint must contain "well-pleaded
facts" which "permit the court to infer more than the mere possibility of misconduct." Id.
II. Summary Judgment
Summary judgment is appropriate if there is no genuine dispute as to any material fact
and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a). The
moving party bears the initial responsibility of informing the court of the basis of its motion, and
identifying those portions of "'the pleadings, depositions, answers to interrogatories, and
admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence
of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) (quoting
Fed. R. Civ. P. 56(c)).
Once the moving party meets its initial burden of demonstrating the absence of a genuine
issue of material fact, the burden then shifts to the nonmoving party to present "specific facts"
showing a "genuine issue for trial." Fed. Trade Comm'n v. Stefanchik, 559 F.3d 924, 927-28
(9th Cir. 2009) (internal quotation omitted). The nonmoving party must go beyond the pleadings
3 - OPINION & ORDER
and designate facts showing an issue for trial. Celotex, 477 U.S. at 322-23.
The substantive law governing a claim determines whether a fact is material. Suever v.
Connell, 579 F.3d 1047, 1056 (9th Cir. 2009). The court views inferences drawn from the facts
in the light most favorable to the nonmoving party and draws all reasonable inferences in that
party's favor. Long v. City & County of Honolulu, 511 F.3d 901, 905 (9th Cir. 2007).
If the factual context makes the nonmoving party's claim as to the existence of a material
issue of fact implausible, that party must come forward with more persuasive evidence to support
his claim than would otherwise be necessary. Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 587 (1986).
Along with her Answer, defendant filed a separate document entitled "Counter
Complaint" which, as explained in the July 7, 2011 Opinion & Order, appeared to assert several
counterclaims against plaintiffs, as well as claims against several non-parties. July 7, 2011 Op.
& Ord. at p. 15. As articulated in the July 7, 2011 Opinion & Order, I recognized only the
counterclaims brought against plaintiffs. Id. No counterclaims against any other persons named
in the "Counter Complaint" are considered to be pending in this case. Id. Further, I explained
that while defendant referred to Oregon's Anti-SLAPP statute, I did not consider the filing to be a
motion under that statute because defendant had filed an Answer to the Complaint and she failed
to timely bring an appropriate motion under Oregon Revised Statute § 31.150. Id.
I also attempted to discern the nature of the counterclaims defendant asserted and
4 - OPINION & ORDER
concluded that there were two: defamation and intentional interference with economic relations.1
I invited plaintiffs to move against the counterclaims because they appeared to fail to state a
claim or suggested that they could be disposed of on summary judgment before trial.
Plaintiffs have now filed that motion and argue that the counterclaims for harassment,
conspiracy, and defamation should be dismissed for failure to state a claim, or that summary
judgment should be granted to plaintiffs on those counterclaims. Although they did not expressly
recognize the intentional interference with economic relations claim, I consider the arguments to
also be directed at that claim.
The general factual background defendant provides in support of the counterclaims
recites allegations in no particular order, chronological or otherwise. Defendant appears to base
all of her claims on the following allegations: (1) the filing of the defamation action against her;
(2) a desire by plaintiffs to silence her; (3) conspiring with others to harass, defame, and make
threats against her; (4) attempting to ruin her career; and (5) tortiously interfering with her ability
to run her business. Counter Compl. at pp. 5-10.
Following these allegations, in "Count I," she brings a claim for "Conspiracy," contending
that plaintiffs have engaged in conduct constituting a felony by threatening the use of physical
force against property or against a person, or by soliciting, commanding, inducing, or
Unfortunately, the copy of the Counter Complaint I relied on at that time was missing
page 13, which expressly delineates claims for conspiracy and harassment. I now consider those
claims to have been asserted, along with the expressly delineated defamation claim.
Furthermore, defendant expressly alleges that plaintiffs (and others) "torturously [sic] interfered
with my ability to run my business," that the public has a right to know what she posts and that
the "frivolous" lawsuit filed against her has harmed her real estate brokerage business. Counter
Compl. at pp. 9, 14. I interpret these allegations to assert an interference with economic relations
claim based on the filing of this lawsuit by plaintiffs.
5 - OPINION & ORDER
endeavoring to persuade others to engage in such conduct. Counter Compl. at p. 13. In "Count
II," she brings a claim for "Harassment," contending that plaintiffs have filed a frivolous lawsuit,
continued a "pattern" of selective prosecution, and have discriminated against her. Id. In "Count
III," she brings a claim for "Defamation," in which she contends that plaintiffs have
discriminated against her "in the media exposure of the Summit 1031 Bankruptcy," and defamed
her among potential real estate clients by filing a frivolous lawsuit against her. Id. at p. 14. She
alleges that she has suffered $150,000,000 in damages. Id. at pp. 13-15.
Plaintiffs argue that the claims must be dismissed because defendant fails to allege
sufficient facts in support of the claims, the conduct of filing the lawsuit against her is absolutely
privileged, and that to the extent the motion is one for summary judgment, defendant cannot
sustain her burden to show the existence of an issue of fact on any of the claims. I agree with
First, to the extent defendant's "conspiracy" counterclaim attempts to allege the violation
of criminal laws, it does not state a claim. See generally Aldabe v. Aldabe, 616 F.2d 1089, 1092
(9th Cir. 1980) (criminal statutes create no privately enforceable rights and do not give rise to
civil liability); see also Allen v. Gold Country Casino, 464 F.3d 1044, 1048 (9th Cir. 2006)
(criminal statutes do not give rise to civil liability).
Second, to the extent any of defendant's counterclaims are based on the filing of this case
against her, they must be dismissed. Wallulis v. Dymowski, 323 Or. 337, 348, 918 P.2d 755, 761
(1996) (statements made in judicial proceedings are absolutely privileged); Wollam v. Brandt,
154 Or. App. 156, 162 n.5, 961 P.2d 219, 222 n. 5 (1998) (absolute privilege applies not only to
defamation action, but "to any tort action based on statements made in connection with a judicial
6 - OPINION & ORDER
Third, I am unaware of any Oregon case recognizing an independent tort of "harassment"
and thus, this claim fails to state a claim. See Roy v. City of Eugene, No. CV-07-6290-HO, 2008
WL 4616704, at *1 (D. Or. Oct. 15, 2008) (summary judgment granted to defendant on plaintiff's
civil claim for "harassment" because "[p]laintiff cites to no cases recognizing this tort, and the
court finds no such cases").
Fourth, defendant's attempt to allege a counterclaim for "conspiracy" fails to state a claim
under Oregon law. While one problem is her pleading the existence of a conspiracy in a
conclusory fashion2, another is that a 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.'" Morasch v. Hood, 232 Or. App. 392, 402, 222 P.3d 1125, 1132
(2009) (quoting Granewich v. Harding, 329 Or. 47, 53, 985 P.2d 788 (1999)) (brackets omitted).
Defendant asserts no cognizable separate tort and thus, her allegations of conspiracy do not state
Finally, Padrick states in a declaration that he has never directly or indirectly threatened
defendant, and has never conspired with anyone to threaten her with physical force. Padrick
Sept. 9, 2011 Decl. at ¶ 2. In response, defendant submits no admissible evidence capable of
creating an issue of fact regarding her allegations that plaintiffs threatened her, either directly or
indirectly. Her response to the motion consists only of a memorandum in opposition, with no
E.g., Counter Compl. at p. 5 (alleging that plaintiffs' filing of the Complaint in this case
is part of their "conspiratorial activities"); Id. at p. 7 (defendant has reason to believe that
Obsidian Finance and Padrick have "conspired" with non-parties to defame and harass); Id. at p.
8 (alleging that plaintiffs have conspired to send her a death threat).
7 - OPINION & ORDER
factual evidence whatsoever. In the face of Padrick's assertions, plaintiffs are entitled to
summary judgment on any of defendant's counterclaims based on allegations that plaintiffs
Plaintiffs' motion to dismiss, or alternatively for summary judgment , is granted and
all of defendant's counterclaims are dismissed.
IT IS SO ORDERED.
/s/ Marco A. Hernandez
Marco A. Hernandez
United States District Judge
8 - OPINION & ORDER