Osako et al v. Crowne Plaza Hotel et al
Filing
32
OPINION AND ORDER: The Magistrate Judge's Findings and Recommendation 26 in this proceeding is ADOPTED as modified, and this proceeding is DISMISSED, with prejudice. Signed on 8/22/11 by Judge Malcolm F. Marsh for Judge James A. Redden.
UNITED STATES DISTRICT COURT
DISTRICT OF OREGON
PORTLAND DIVISION
YOSHIHIRO OSAKO,
CV 10-1446-ST
Plaintiff,
OPINION AND ORDER
v.
CROWNE PLAZA HOTEL and DENNIS
KOSASIH,
Defendants.
_________________________________
REDDEN, District Judge:
Plaintiff filed a pro se Complaint asserting claims against defendants for negligence and
intentional infliction of emotional distress relating to the death of his daughter while she was
staying at the Crowne Plaza Hotel. Plaintiff alleged that Crowne Plaza Hotel employees
unreasonably failed to discover his daughter’s body until three days after her death, discarded
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potential evidence, and gave misleading information to the police, which led them to erroneously
conclude that his daughter’s cause of death was suicide. Crowne Plaza Hotel moved to dismiss
the complaint and Magistrate Judge Stewart subsequently appointed volunteer pro bono counsel
to represent plaintiff. On April 21, 2011, Magistrate Judge Stewart issued a Findings and
Recommendation (doc. #26), in which she recommended that the court grant Crowne Plaza
Hotel’s Motion to Dismiss (doc. #6), and enter judgment dismissing the Complaint in its entirety
with prejudice.
The matter is now before me pursuant to 28 U.S.C. § 636(b)(1)(B) and Federal Rules of
Civil Procedure 72(b) and 54(d)(2)(D). The magistrate judge makes only recommendations to
the district court, and any party may file written objections to those recommendations. 28 U.S.C.
§ 636(b)(1)(C). When a party timely objects to any portion of the magistrate’s Findings and
Recommendation, the district court must conduct a de novo review of the portions of the
Findings and Recommendation to which objections are made. 28 U.S.C. § 636(b)(1)(C);
McDonnell Douglas Corp. v. Commodore Business Machines, 656 F.2d 1309, 1313 (9th Cir.
1981), cert. denied, 455 U.S. 920 (1982). The district court may then “accept, reject, or modify
the recommended decision, receive further evidence, or recommit the matter to the magistrate
with instructions.” 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b). The district court is relieved of
its obligation to review the record de novo as to those portions of the Findings and
Recommendation to which the parties do not object. Thomas v. Arn, 474 U.S. 140, 149 (1985);
United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
Plaintiff timely objected to Magistrate Judge Stewart’s recommendation that the court
dismiss the Complaint with prejudice. Plaintiff seeks an order dismissing the Complaint without
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prejudice, so that he may file an amended complaint alleging additional facts to support his claim
against Crowne Plaza Hotel for intentional infliction of emotional distress. As support, plaintiff
submits a declaration in which he alleges that the hotel’s general manager’s brother-in-law was
involved in his daughter’s death. Decl. in Supp. of Objections ¶ 5. Plaintiff alleges that Crowne
Plaza Hotel employees mishandled evidence to cover up his daughter’s death. Id. ¶ 5-6.
Plaintiff alleges that the hotel’s general manager erased security camera footage after showing it
to police, and then discarded his daughter’s jacket and other clothing even though the police
were still investigating the cause of his daughter’s death. Id. ¶ 7. Plaintiff also alleges that the
hotel refuses to produce the registration card his daughter completed upon checking into the
hotel, which would prove that his daughter’s body was found in a different hotel room than the
one in which she was staying. Id.
I have, therefore, given these portions of the Findings and Recommendation a de novo
review, and considered the additional facts set forth in plaintiff’s Declaration. Although courts
should “freely” grant leave to amend when justice requires, it is clear that plaintiff’s additional
factual allegations cannot cure the deficiencies in his claim against Crown Plaza Hotel. Fed. R.
Civ. P. 15(a)(2); see also Cook, Perkiss and Liehe, Inc. v. N. Cal. Collection Serv. Inc., 911 F.2d
242, 247 (9th Cir. 2000) (“A district court should grant leave to amend . . . unless it determines
that the pleading could not possibly be cured by the allegations of other facts.”). To hold
Crowne Plaza Hotel vicariously liable for an employee’s tortious conduct, plaintiff must plead
and prove that the employee acted “within the course and scope of employment.” Vinsonhaler v.
Quantum Res. Corp., 189 Or. App. 1, 5, 73 P.3d 930, 932 (Or. Ct. App. 2003). To establish that
an employee acted within the course and scope of employment, a plaintiff must demonstrate that:
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(1) the tortious act “occurred substantially within the time and space limits authorized by the
employment”; (2) the employee “was motivated, at least partially, by a purpose to serve the
employer”; and (3) the act “is of a kind which the employee was hired to perform.” Chesterman
v. Barmon, 305 Or. 439, 442, 753 P.2d 404, 406 (Or. 1988). The fact that employment provided
an opportunity to engage in tortious conduct is insufficient. Vinsonhaler, 189 Or. App. at 5.
Accepting plaintiff’s additional factual allegations as true, it is clear that he cannot state a
claim against Crowne Plaza Hotel based on the allegedly tortious conduct of its employees.
None of plaintiff’s additional factual allegations support finding that the actions of the general
manager and other employee to cover up the murder of his daughter could be “motivated . . . by
a purpose to serve the employer.” Chesterman, 305 Or. at 442. Similarly, plaintiff does not
allege and cannot show that covering up the daughter’s death or mishandling the evidence were
the kinds of acts that the employees were hired to perform. See Vinsonhaler, 189 Or. App. at 6
(employer not vicariously liable for sexual assault committed by manager because conduct was
not motivated by desire to serve employer). Accordingly, there is no basis upon which to hold
Crowne Plaza Hotel vicariously liable for the allegedly tortious actions of its employees.
Because it is “absolutely clear” that the deficiencies in plaintiff’s Complaint cannot be cured by
amendment, I adopt Magistrate Judge Stewart’s Findings and Recommendation as modified
above. Lopez v. Smith, 203 F.3d 1122, 1130-31 (9th Cir. 2000).
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CONCLUSION
The Magistrate Judge's Findings and Recommendation (#26) in this proceeding is
ADOPTED as modified, and this proceeding is DISMISSED, with prejudice.
IT IS SO ORDERED.
DATED this 22
day of August, 2011.
/s/ Malcolm F. Marsh for
James A. Redden
U.S. District Court Judge
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