Mallery McLean v. Pine Eagle School District, No. 61 et al

Filing 61

Opinion and Order - Plaintiff's Motion for Entry of Final Judgment as to Plaintiff's 42 U.S.C. § 1983 Claims Under Federal Rule of Civil Procedure 54(b) (ECF 49 ) is GRANTED. Signed on 9/29/2016 by Judge Michael H. Simon. (mja)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

LINDA MALLERY MCLEAN,
Plaintiff,

Case No. 3:15-cv-654-SI
OPINION AND ORDER

v.
PINE EAGLE SCHOOL DISTRICT,
NO. 61; JOHN MINARICH, MARK
BUTLER, WILLIAM JOHNSON, DAVID
SCHMITT, DWIGHT SAUNDERS,
ROBERT SEAL, MICHAEL CORLEY,
CAMMIE DECASTRO, and SHAWN
THATCHER, in their individual and official
capacities; and ALPINE ALARM
COMMUNICATIONS AND
CONSTRUCTION, LLC, an Oregon limited
liability company,
Defendants.
Ralph E. Wiser, WISER & ASSOCIATES, One Centerpointe Drive, Suite 570, Lake Oswego,
OR 97035; Roderick Boutin, BOUTIN & ASSOCIATES, PC, 5005 Meadows Road, Suite 405, Lake
Oswego, OR 97035; Cody B. Hoesly, LARKINS VACURA, LLP, 121 S.W. Morrison Street,
Portland, OR 97204. Of Attorneys for Plaintiff Linda Mallery McLean.
Karen M. Vickers and Blake H. Fry, MERSEREAU SHANNON LLP, One S.W. Columbia Street,
Suite 1600, Portland, OR 97258. Of Attorneys for Defendants Pine Eagle School District,
No. 61; John Minarich; Mark Butler; William Johnson; David Schmitt; Dwight Saunders; Robert
Seal; Michael Corley; Cammie DeCastro; and Shawn Thatcher.
David R. Auxier, COUGHLIN & LEUENBERGER, PC, Post Office Box 1026, Baker City,
OR 97814. Of Attorneys for Defendant Alpine Alarm Communications and Construction, LLC.
PAGE 1 – OPINION AND ORDER

Michael H. Simon, District Judge.
Plaintiff Linda Mallery McLean (“McLean”) brought various federal constitutional
claims under 42 U.S.C. § 1983 (“§ 1983”) as well as Oregon common law claims, arising out of
an unannounced active shooter drill that took place at the school where she was a teacher. The
Court granted summary judgment against McLean’s § 1983 claims and denied summary
judgment against McLean’s common law claims. Before the Court is McLean’s Motion for Entry
of Final Judgment as to her § 1983 Claims under Federal Rule of Civil Procedure 54(b). For the
reasons that follow, McLean’s Motion is granted.
STANDARDS
Rule 54(b) of the Federal Rules of Civil Procedure states:
JUDGMENT ON MULTIPLE CLAIMS OR INVOLVING MULTIPLE
PARTIES. When an action presents more than one claim for relief—
whether as a claim, counterclaim, crossclaim, or third-party
claim—or when multiple parties are involved, the court may direct
entry of a final judgment as to one or more, but fewer than all,
claims or parties only if the court expressly determines that there is
no just reason for delay. Otherwise, any order or other decision,
however designated, that adjudicates fewer than all the claims or
the rights and liabilities of fewer than all the parties does not end
the action as to any of the claims or parties and may be revised at
any time before the entry of a judgment adjudicating all the claims
and all the parties’ rights and liabilities.
Fed. R. Civ. P. 54(b).
In considering a motion for entry of final judgment under Rule 54(b), a “district court
must first determine that it has rendered a ‘final judgment,’ that is, a judgment that is ‘an
ultimate disposition of an individual claim entered in the course of a multiple claims action.’”
Wood v. GCC Bend, LLC, 422 F.3d 873, 878 (9th Cir. 2005) (quoting Curtiss-Wright Corp. v.
Gen. Elec. Co., 446 U.S. 1, 7 (1980)). If a district court determines that it has rendered a final
judgment for purposes of Rule 54(b), the court must then determine whether any just reason for
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delay exists. Id. at 878. “[A] district court must take into account judicial administrative interests
as well as the equities involved.” Curtiss-Wright Corp., 446 U.S. at 8. Courts in the Ninth Circuit
apply a “pragmatic approach” to Rule 54(b) certification, “focusing on severability and efficient
judicial administration.” Cont’l Airlines, Inc. v. Goodyear Tire & Rubber Co., 819 F.2d 1519,
1525 (9th Cir. 1987).
BACKGROUND
McLean is a former school teacher with the Pine Eagle School District, No. 61 (“Pine
Eagle”), located in Halfway, Oregon. On April 17, 2015, McLean filed this lawsuit against Pine
Eagle and several of the school district’s administrators, employees, and school board members,
as well as a private corporation.1
McLean’s claims arise from an unannounced active shooter drill that took place at the
Pine Eagle Charter School on April 26, 2013. On the afternoon of April 26th, one school board
member and one school employee donned paintball masks to disguise their identities and entered
the school building carrying firecrackers and starter pistols. Inside the building, the employee lit
a firecracker near the main entrance and proceeded down a hallway toward McLean’s classroom.
McLean was in her classroom alone, sitting at her desk reading emails, when she heard a loud
bang. McLean turned and saw the masked employee come into her room. The employee pointed
a starter pistol at McLean while standing about twelve feet away from her and pulled the trigger.
The starter pistol let off a loud bang and filled the room with smoke. According to McLean, she
did not immediately recognize the employee, nor did she realize that the situation was merely a

1

The private corporation filed a separate response joining in the response submitted by
the school district’s administrators, employees, and school board members. See ECF 57. The
Court will refer to all remaining defendants as “Defendants.”
PAGE 3 – OPINION AND ORDER

drill. The gun looked real to McLean, and she thought that she was going to die. The employee
was only in McLean’s room for several seconds before he ran out.
McLean originally asserted four federal civil rights claims under § 1983, including
violations of substantive due process, procedural due process, unreasonable seizure, and “failure
to train.” After Defendants moved for summary judgment, McLean agreed to dismiss her
procedural due process claim, and the Court dismissed her remaining claims under § 1983. ECF
38 at 17; ECF 48 at 34.2 The Court concluded that McLean did not have a valid substantive due
process claim because she did not argue that she “suffered physical pain or bodily injury.”
ECF 48 at 12. McLean’s unreasonable seizure claim was unsuccessful because “no show of
authority occurred and a reasonable person would have felt free to leave under the
circumstances.” ECF 48 at 21. McLean’s “failure to train” theory was not a legally cognizable
claim. ECF 48 at 9-10. Finally, the Court denied Defendants’ motion for summary judgment
with regard to McLean’s two common law claims, intentional infliction of emotional distress and
civil assault.
DISCUSSION
McLean seeks to appeal the Court’s grant of summary judgment against her § 1983
claims and asks the Court to certify those claims under Rule 54(b).3 To grant a Rule 54(b)
motion, a district court must determine that a there has been an ultimate disposition of an
individual claim entered in the course of a multiple claims action and no just reason for delay
2

McLean also originally sued five additional school board members. Before any
Defendant responded to the Complaint, McLean dismissed one of the board members from this
lawsuit. ECF 15. In her response to their motions for summary judgment, she conceded that the
four other board members “had nothing to do with the active shooter drill.” ECF 38 at 57 n.2.
Accordingly, the Court dismissed the four additional board members from this action. ECF 48
at 4 n.1.
3

McLean does not seek to appeal the portion of the ruling dismissing several defendants.

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exists. For the following reasons, the Court finds that these two requirements have been met and
certifies McLean’s § 1983 claims for interlocutory appeal.
A. Finality of the Judgment and Number of Claims
The Court’s Opinion and Order granting partial summary judgment was final in that it
conclusively disposed of four of McLean’s theories of recovery under § 1983, but the parties
dispute, for Rule 54(b) purposes, whether the dismissed claims were distinct from the common
law claims that the Court allowed to proceed. The Court finds that this is a multiple claims case.
Despite the fact that McLean asserted four federal civil rights claims and two common
law claims in her complaint, Defendants argue that McLean only has one claim for purposes of
Rule 54(b) because all of her theories of recovery arise from the same set of operative facts, the
unannounced active shooter drill. Defendants cite to CMAX, Inc. v. Drewry Photocolor Corp.,
295 F.2d 695 (9th Cir. 1961), and Hasbrouck v. Sheet Metal Workers Local 232, 586 F.2d 691
(9th Cir. 1978), to support their contention that McLean has brought only a single claim and
therefore Rule 54(b) certification is not appropriate. The Ninth Circuit has, however, clarified
that this argument relies on an “outdated and overly restrictive view of the appropriateness
of Rule 54(b) certification.” Texaco, Inc. v. Ponsoldt, 939 F.2d 794, 798 (9th Cir. 1991). Under
current Ninth Circuit law, “[t]he Rule 54(b) claims do not have to be separate from and
independent of the remaining claims” in order for certification to be appropriate. Sheehan v.
Atlanta Int’l Ins. Co., 812 F.2d 465, 468 (9th Cir. 1987). Rule 54(b) certification may be
appropriate even when the appealed claims and the remaining claims “require proof of the same
facts.” Texaco, Inc., 939 F.2d at 798. Therefore, the fact that all of McLean’s § 1983 claims arise
from the same unannounced active shooter drill does not bar Rule 54(b) certification.
Defendants also rely on Wood, 422 F.3d at 882, and Lowery v. Federal Express Corp.,
426 F.3d 817, 819-20 (6th Cir. 2005), to support their argument that McLean did not bring more
PAGE 5 – OPINION AND ORDER

than one claim for relief. In Lowery, the Sixth Circuit found that a Title VII unlawful retaliation
claim and a breach of contract claim were the same claim because they arose from the same
underlying retaliatory action taken by the employer. Id. at 821. The “alleged breach of contract
was the retaliation.” Id. Similarly, in Wood, a plaintiff asserted state and federal wrongful
demotion and constructive discharge claims after her employer allegedly demoted her due to her
age and she resigned. Id. at 876-77. In Wood, the Ninth Circuit held that the plaintiff’s two
theories for relief were “not truly separable,” finding that “the factual issues overlap[ped]
entirely—not just substantially; and the only legal right asserted [was] the right not to be
discriminated against on account of age.” Id. at 881-82 (emphasis added).
Neither Wood nor Lowery are controlling here. McLean alleges violations of multiple
constitutional rights, not the single legal right asserted in Wood. In this case, “the aggregate of
operative facts that give rise to each of the rights to be vindicated are sufficiently separate to
confer jurisdiction despite the presence of some overlap.” Planned Parenthood Sw. Ohio Region
v. DeWine, 696 F.3d 490, 502 (6th Cir. 2012); see also U.S. Citizens Ass’n v. Sebelius, 705 F.3d
588, 594-95 (6th Cir. 2013) (finding the analysis of Lowery unpersuasive in cases involving the
vindication of multiple constitutional rights). The constitutional rights to be free from
deprivations of substantive due process and unreasonable seizures by the state are distinct from
common law protections against assault and intentional infliction of emotional distress by
individual citizens. Further, McLean’s constitutional claims would require a jury to determine
distinct factual issues such as whether she “was deprived of a protected liberty interest,” whether
the employee made a “show of authority,” and whether “a reasonable person would have felt free
to leave.” ECF 60 at 4. A jury would not necessarily need to consider these issues in order to
render a verdict on McLean’s common law claims. Although the § 1983 claims and the common

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law claims overlap, they do not overlap “entirely.” Therefore, neither Wood, nor Lowery,
prohibit certification of the § 1983 claims.
This action presented six claims for relief when it was originally filed, and the Court’s
opinion and order was an ultimate disposition of four of those claims. Therefore, the Court’s
grant of summary judgment dismissing the § 1983 claims is certifiable.
B. Judicial Administrative Interests and Equities
The certification of the grant of partial summary judgment furthers judicial administrative
interests and the equities in this case. When the Ninth Circuit resolves the § 1983 claims, this
case may well settle. As the Supreme Court has made clear, certification may be justified on “a
finding that an appellate resolution of the certified claims would facilitate a settlement of the
remainder of the claims,” even when there is a “possibility that an appellate court would have to
face the same issues on a subsequent appeal.” Curtiss-Wright Corp., 446 U.S. at 8 n.2; see also
Alcan Aluminum Corp. v. Carlsberg Fin. Corp., 689 F.2d 815, 817 (9th Cir. 1982) (upholding
Rule 54(b) certification where it could “facilitate settlement of the remaining claims”).
Rule 54(b) certification of the § 1983 claims may encourage settlement of this case by
helping the parties determine the value of the suit. The § 1983 claims offer the potential for a
much larger recovery than do the remaining state law claims because the § 1983 claims lack a
statutory damages cap under state law and allow the prevailing party to seek attorney’s fees
under 42 U.S.C. § 1988(b). See Or. Rev. Stat. § 30.269 (limiting damages under the Oregon Tort
Claims Act). An affirmance of the grant of summary judgment may encourage McLean to settle
her remaining claims and not proceed to trial because she and her attorneys would stand to
recover much less from Defendants if McLean were to prevail only on her common law claims.
On the other hand, a reversal of the grant of summary judgment may encourage Defendants to
settle in order to prevent McLean from incurring further attorney’s fees, which would be
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recoverable if McLean were to prevail on her constitutional claims. During the time when the
fate of McLean’s constitutional claims is uncertain, the parties likely will continue to have
widely divergent views on the value of this lawsuit, making settlement unlikely.
Moreover, the remaining claims are ready for trial, but due to the Court’s calendar, a trial
on those claims is unlikely to occur until the second half of 2017. Cf. DC Comics v. Pac.
Pictures Corp., 2012 WL 6086928, at *2 (C.D. Cal. Dec. 5, 2012) (granting Rule 54(b)
certification where “little [was] left for [the] Court to do while the various claims remain[ed] on
appeal”). Because judicial administrative interests support certification of the § 1983 claims, the
Court certifies the § 1983 claims for interlocutory appeal.
CONCLUSION
Plaintiff’s Motion for Entry of Final Judgment as to Plaintiff’s 42 U.S.C. § 1983 Claims
Under Federal Rule of Civil Procedure 54(b) (ECF 49) is GRANTED.
IT IS SO ORDERED.
DATED this 29th day of September, 2016.
/s/ Michael H. Simon
Michael H. Simon
United States District Judge

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