Thames et al v. City of Portland et al

Filing 67

ORDER: Adopting in Part and Declining in Part the Magistrate's Findings and Recommendation 53 as follows: City Defendants' Motion to Dismiss and to Strike 20 is Granted as to Plaintiffs' Claim 2 - 14th Amendment Procedural Due Process. The motion is also Granted as to Plaintiffs' Claim 5 - First Amendment, to the extent premised on Plaintiffs' right to free association. City Defendants Ms. Archer and Ms. Hales are entitled to qualified immunity and are Dismissed from the case. Otherwise, the motion is Denied. OLCC Defendants' Motion to Dismiss and Strike 42 is Granted as to Plaintiffs' Claim 2 - 14th Amendment Procedural Due Process; Claim 5 - First Amendment, to the extent p remised on Plaintiffs' right to free association; Claim 12 - IIER; and Claim 13 - IIED. The motion is also Granted as to the following of Plaintiffs' claims against OLCC: Claim 9 - Assault, Claim 10 - Battery, and Claim 11 - False Arrest. Otherwise, the motion is Denied. Plaintiffs are Granted leave to amend. Even if Plaintiffs choose not to amend the dismissed claims, they must submit an amended complaint that reflects this Court's rulings as to City Defendants' and OLCC Defendants' motions. Plaintiffs' amended complaint is due within 10 days of the date below (or due by 10/13/2017). Signed on 10/3/17 by Judge Marco A. Hernandez. (gm)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

DONNA THAMES, COLUMBIA BAR &
GRILL, INC., an Oregon corporation, dba
EXOTICA,
Plaintiff,
No. 3:16-cv-01634-PK
v.
ORDER
CITY OF PORTLAND, a municipal corporation;
CHARLES HALES; OREGON LIQUOR
CONTROL COMMISSION; STEVEN MARKS;
JOHN ECKHART; DAVID LUSTER;
JEFFREY BELL; SHANNON HOFFEDITZ;
DAN MCNEAL; MIKE BOYER; MERLE
LINDSEY; MARK KRUGER; AMY ARCHER;
JASON TALLMADGE;
Defendants.

1 – ORDER

HERNÁNDEZ, District Judge:
Magistrate Judge Papak issued a Findings & Recommendation [53] on July 7, 2017, in
which he recommends that this Court grant in part and deny in part the motions to dismiss or
strike brought by City Defendants1 and OLCC Defendants.2 Defendants David Luster and Jeffrey
Bell are not included in either group of defendants and have not joined the motions presently
before the Court. The matter is now before the Court pursuant to 28 U.S.C. § 636(b)(1)(B) and
Federal Rule of Civil Procedure 72(b).
When any party objects to any portion of the Magistrate Judge’s Findings &
Recommendation (“F&R”), the district court must make a de novo determination of that portion
of the Magistrate Judge’s report. 28 U.S.C. § 636(b)(1); Dawson v. Marshall, 561 F.3d 930, 932
(9th Cir. 2009); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).
City Defendants raise several objections to the F&R. City Defendants argue that: (1)
Plaintiffs failed to adequately allege causation for their claims, (2) Plaintiffs failed to adequately
allege race-based animus with respect to Defendants Mr. Kruger and Ms. Archer, (3) Defendants
Ms. Archer and Mr. Hales are entitled to qualified immunity, and (4) the Court should strike the
historical allegations contained in paragraphs 27-30 of the complaint. The Court rejects City
Defendants’ objections, except that it agrees Defendants Ms. Archer and Mr. Hales are entitled
to qualified immunity.
OLCC Defendants object to the F&R’s denial of their motion to dismiss Plaintiffs’ Claim
12, alleging intentional interference with economic relations; and Claim 13, alleging intentional
infliction of emotional distress. The Court agrees with OLCC Defendants’ objections and
declines to adopt the F&R as to Claims 12 and 13.
1

The City Defendants are City of Portland, Charles Hales, Mike Boyer, Mark Kruger, and Amy Archer.
The OLCC Defendants are Oregon Liquor Control Commission (“OLCC”), Steven Marks, John
Eckhart, Shannon Hoffeditz, Dan McNeal, Merle Lindsey, and Jason Tallmadge.
2

2 – ORDER

The Court has also reviewed the pertinent portions of the record de novo and finds no
other errors in the Magistrate Judge’s F&R.
I.

Causation
City Defendants object to the F&R’s conclusion that Plaintiffs sufficiently alleged that

Defendants’ behavior caused the damages Plaintiffs suffered due to the Club’s closure. Their
objections mirror the arguments already put forth and rejected by Magistrate Judge Papak.
In their motion to dismiss, City Defendants brought a broad challenge to all of Plaintiffs’
claims against them, arguing that Plaintiffs failed to allege adequate causation. According to City
Defendants, Plaintiffs’ injuries and damages arise solely out of the closure of the Club. City
Defendants argue that Plaintiffs fail to allege facts plausibly suggesting that the City’s
investigation, negotiation, or request for a nuisance abatement plan caused Plaintiff Ms. Thames
to close her business.
Magistrate Judge Papak correctly rejected City Defendants’ arguments, finding that
Plaintiffs’ alleged damages include more than just damages caused by the Club’s closure. F&R
25, ECF 53. More importantly, Plaintiffs have adequately alleged that Defendants’ conduct
caused Plaintiff to close the Club. Id. Magistrate Judge Papak provides a detailed recitation of
facts alleged in the complaint that, when taken as true, support this conclusion. Id. at 25-28.
In their objections, City Defendants repeat the assertion that all of Plaintiffs’ alleged
damages, both non-economic and economic, arise solely out of the closure of the Club. However,
City Defendants ignore paragraph 179 of Plaintiffs’ Complaint, which is incorporated by
reference into all of Plaintiffs’ claims for relief:
As a direct and proximate result of Defendants’ actions as alleged herein, Plaintiffs have
suffered non-economic damages in the form of loss of reputation, bodily harm, emotional
and mental distress, degradation, embarrassment, and humiliation for which Plaintiff
seeks compensation in an amount to be proved at trial, but no less than $5,000,000.
3 – ORDER

Compl. ¶ 179. Such actions, “as alleged herein,” include acts preceding the closure of the Club.
Plaintiffs make similar allegations regarding economic damages. See Compl. ¶ 178. Thus, City
Defendants’ objection is unavailing.
II.

Allegations of Race-Based Animus as to Defendants Kruger and Archer
City Defendants object to Magistrate Judge Papak’s conclusion that race-based claims

against Defendants Mr. Kruger and Ms. Archer could withstand a motion to dismiss, despite the
absence of express allegations that Mr. Kruger or Ms. Archer knew that Plaintiff Ms. Thames is
African-American. City Defendants did not seek this relief in their motion to dismiss. Instead,
City Defendants sought dismissal of entire claims, not dismissal as to individual defendants.
While City Defendants’ Reply does state, in the context of seeking dismissal of Plaintiffs’
conspiracy claim, that there are no facts alleging that Mr. Kruger or Ms. Archer knew Plaintiff
was African-American, their motion to dismiss did not make any argument as to Mr. Kruger’s or
Ms. Archer’s knowledge of Ms. Thames’ race. See Delgadillo v. Woodford, 527 F.3d 919, 930 n.
4 (9th Cir. 2008) (holding that reply is not proper place to raise new arguments). The issue of
whether all race-based claims against Mr. Kruger and Ms. Archer could proceed was never
squarely presented to Magistrate Judge Papak. The Court declines to exercise its discretion to
consider such argument at this point. See Brown v. Roe, 279 F.3d 742, 745-46 (9th Cir. 2002)
(rejecting the Fourth Circuit’s holding that a district court must consider new arguments raised
for the first time in an objection to a magistrate judge’s F&R); (United States v. Howell, 231 F.3d
615 (9th Cir. 2000) (“[I]t would be fundamentally unfair to permit a litigant to set its case in
motion before the magistrate, wait to see which way the wind was blowing, and—having
received an unfavorable recommendation—shift gears before the district judge.” (citation
omitted)); Olmos v. Ryan, No. CV-11-00344-PHX-GMS, 2013 WL 3199831, at *8 (D. Ariz.
4 – ORDER

June 24, 2013) (“Generally, a district court need not consider new arguments raised for the first
time in objections to an R & R.”).3
III.

Qualified Immunity for Defendants Archer and Hales
The Court agrees with City Defendants’ objection to Magistrate Judge Papak’s

conclusion that Defendants Ms. Archer and Mr. Hales are not entitled to qualified immunity.
In their motion to dismiss, City Defendants argued that Ms. Archer and Mr. Hales were
entitled to qualified immunity. As to these two defendants, Plaintiffs bring eight claims:
1.
2.
3.
4.
5.
6.
7.
8.

42 U.S.C. § 1981—Race Discrimination
42 U.S.C. § 1983—14th Amendment Procedural Due Process
42 U.S.C. § 1983—14th Amendment Equal Protection
42 U.S.C. § 1983—First Amendment
42 U.S.C. § 1985(3)—Conspiracy to Interfere with Civil Rights
42 U.S.C. § 1986—Action for Neglect to Prevent Interference with Civil Rights
Intentional Interference with Economic Relations
Intentional Infliction of Emotional Distress

In all of these claims, Plaintiffs assert that Ms. Archer and Mr. Hales are liable based on their
individual actions. In addition, in five4 of the claims, Plaintiffs allege that their liability stems
from their involvement in a conspiracy with the other defendants.
Magistrate Judge Papak did not directly consider Ms. Archer’s and Mr. Hales’ claims of
immunity; instead, he denied qualified immunity for all City Defendants as to Plaintiff’s §
1985(3), § 1986 and § 1983—Equal Protection claims “because all of the defendants are alleged
to have intentionally treated African-American venue-owners differently than similarly-situated
white venue owners” and “because all of the defendants are alleged to have intentionally

3

City Defendants may choose to raise this argument in response to the amended complaint that Plaintiffs
must submit, pursuant to this Order.
4
Plaintiffs specifically alleged Ms. Archer’s and Mr. Hales’ involvement in a conspiracy in the following
claims: 42 U.S.C. § 1983—14th Amendment Procedural Due Process; 42 U.S.C. § 1983—14th
Amendment Equal Protection; 42 U.S.C. § 1983—First Amendment; 42 U.S.C. § 1985(3) Conspiracy to
Interfere with Civil Rights; and 42 U.S.C. § 1986—Action for Neglect to Prevent Interference with Civil
Rights.
5 – ORDER

conspired to deprive plaintiffs of their protected civil rights.” F&R 46. He did not discuss
immunity as to the other claims against Ms. Archer or Mr. Hales.
“Qualified immunity ‘represents the norm’ for government officials exercising
discretionary authority.” Lacey v. Maricopa Cty., 693 F.3d 896, 915 (9th Cir. 2012) (quoting
Harlow v. Fitzgerald, 457 U.S. 800, 807 (1982)). “[Q]ualified immunity is an immunity from
suit and not merely damages.” Id. “Under qualified immunity, an officer is protected from suit
when he makes a reasonable mistake of law or fact.” Id. (citing Pearson v. Callahan, 555 U.S.
223, 231 (2009)).
Determining whether a defendant is entitled to qualified immunity involves a twopronged analysis. First, the Court asks, “[t]aken in the light most favorable to the party asserting
the injury, do the facts alleged show the officer’s conduct violated a constitutional right?”
Saucier v. Katz, 533 U.S. 194, 201 (2001), overruled in part by Pearson, 555 U.S. at 235–236.
Second, the Court asks “whether the right was clearly established.” Id. A right is clearly
established if “it would be clear to a reasonable officer that his conduct was unlawful in the
situation he confronted.” Id. at 202.
The Court has discretion to decide “which of the two prongs of the qualified immunity
analysis should be addressed first in light of the circumstances in the particular case at hand.”
Pearson, 555 U.S. at 236; see also Mueller v. Auker, 576 F.3d 979, 993–94 (9th Cir. 2009).
“Only when an officer's conduct violates a clearly established constitutional right—when the
officer should have known he was violating the Constitution—does he forfeit qualified
immunity.” Lacey, 693 F.3d at 915.

///

6 – ORDER

A. Ms. Archer
Ms. Archer was employed by the City of Portland as the Acting Director/Operations and
Livability Programs Manager for the Office of Neighborhood Involvement. Compl. ¶ 24. As the
F&R notes, the complaint has many allegations that all defendants were motivated by racial
animus. See F&R 32, ECF 53. However, Plaintiff’s complaint only contains one allegation
specifically regarding Ms. Archer’s actions. Plaintiff alleges that, in a letter to Ms. Thames on
August 25, 2015, Ms. Archer wrote:
Dear Ms. Thames,
This letter is to advise you, as the licensee responsible for operating Exotica, that due to
your failure to enter into an acceptable abatement plan to resolve the Time Place Manner
Ordinance violation, the City of Portland intends to file a petition with the Code
Hearing's Office to address the violation. You will receive notice of the hearing once
scheduled.
If you have questions, you may contact Mike Boyer, Office of Neighborhood
Involvement Liquor License Program Coordinator at 503-823-3092.
Compl. ¶ 168.
Plaintiffs do not dispute that Ms. Thames did not enter into an abatement plan or that the
Director of the Office of Neighborhood Involvement or the Chief of Police may file a complaint
with the Code Hearings Officer when “1) The licensee refuses to actively and meaningfully
participate in the process of developing a nuisance abatement plan; or (2) The effort by the
Director or the Chief of Police to develop a nuisance abatement plan with the licensee fails.”
Portland City Code & Charter (“P.C.C.”) Ch. 14B.120.040(D) (available at
https://www.portlandoregon.gov/citycode/article/366259) (last accessed August 29, 2017). The
Court fails to see how Ms. Archer’s letter could constitute a constitutional violation. See White v.
Pauly, 137 S. Ct. 548, 552 (2017) (“[C]learly established law should not be defined at a high
level of generality . . . [instead] the clearly established law must be particularized to the facts of
7 – ORDER

the case . . . Otherwise, plaintiffs would be able to convert the rule of qualified immunity . . . into
a rule of virtually unqualified liability simply by alleging violation of extremely abstract rights.”)
(internal quotation marks and citations omitted).
Alternatively, even if sending the letter did violate a constitutional right, the Court agrees
with City Defendants that nothing about Ms. Archer’s conduct would have suggested to her that
she was violating Plaintiffs’ constitutional rights. See Ashcroft v. al-Kidd, 563 U.S. 731, 741
(2011) (“A Government official's conduct violates clearly established law when, at the time of
the challenged conduct, the contours of a right are sufficiently clear that every reasonable official
would have understood that what he is doing violates that right.”) (internal quotations omitted).
Therefore, to the extent Plaintiffs’ claims against Ms. Archer are based solely on Ms. Archer’s
individual conduct, the Court finds that Ms. Archer is entitled to qualified immunity.
Plaintiffs also assert that Ms. Archer’s liability stems from her involvement in a
conspiracy with the other defendants.5 As the Ninth Circuit has explained, “[c]onspiracy is not
itself a constitutional tort under § 1983” and “[i]t does not enlarge the nature of the claims
asserted by the plaintiff, as there must always be an underlying constitutional violation.” Lacey,
693 F.3d at 935. “Conspiracy may, however, enlarge the pool of responsible defendants by
demonstrating their causal connections to the violation; the fact of the conspiracy may make a
party liable for the unconstitutional actions of the party with whom he has conspired.” Id. “A
defendant's knowledge of and participation in a conspiracy may be inferred from circumstantial

The Court notes that the Ninth Circuit has not yet addressed “whether individual members of a single
governmental entity can form a ‘conspiracy.’” Portman v. County of Santa Clara, 995 F.2d 898, 910 (9th
Cir. 1993); Bey v. Oakland, No. 14-CV-01626, 2015 WL 8752762, at *14 (N.D. Cal. Dec. 15, 2015)
(discussing split in authority among the circuit courts applying the intra-corporate conspiracy doctrine and
explaining that five circuits currently bar conspiracy claims where allegations involve a single
governmental entity conspiring with its employees whereas four circuits have refused to apply the
doctrine). The Court does not need to address the issue at this time because it finds Plaintiffs’ claims
deficient on other grounds.
5

8 – ORDER

evidence and from evidence of the defendant's actions.” Id. As with all of Plaintiffs’ claims,
their allegations of conspiracy must satisfy Iqbal. Id.
Here, the complaint contains no evidence of Ms. Archer’s actions that would suggest her
knowledge of an alleged conspiracy or a part in a common objective. Nor does the complaint
contain any circumstantial evidence regarding Ms. Archer. See Iqbal, 556 U.S. at 681 (requiring
factual allegations that would plausibly suggest an entitlement to relief). At most, the complaint
contains legal conclusions such as: “As demonstrated by the actions described above, all
defendants . . . by agreement and concerted action, conspired to, intended to, and did in fact
deprive plaintiffs of their rights under the Fourteenth Amendment to the United States
Constitution.” Compl. ¶ 188. Such allegations are not enough to satisfy Iqbal. See also Lacey,
693 F.3d at 935 (“To be liable, each participant in the conspiracy need not know the exact details
of the plan, but each participant must at least share the common objective of the conspiracy.”).
Thus, Plaintiffs fail to state a claim as to Ms. Archer’s liability based on her involvement in a
conspiracy.
B. Mr. Hales
Mr. Hales was the Mayor of Portland at the time relevant to this lawsuit. Compl. ¶ 13.
Plaintiff’s complaint contains only one allegation regarding a specific action taken by Mr. Hales.
On June 18, 2015, Ms. Thames wrote an email to defendant Mike Boyer, Liquor License
Program Coordinator for the City’s Office of Neighborhood Involvement, and copied numerous
City and OLCC employees, including Mr. Hales. Id. at ¶ 160. Mr. Hales did not respond to Ms.
Thames’ email. Id. at ¶ 162. Instead, Mr. Boyer responded the following day. Id. ¶ 163. The
complaint also alleges that, “[o]n information and belief, Defendant Mayor Hales directed the
acts of his City employees described herein.” Id. at ¶ 170.

9 – ORDER

As to Mr. Hales’ failure to respond to Ms. Thames’ email or his alleged involvement in a
conspiracy, he is entitled to qualified immunity for the same reasons that apply to Ms. Archer.
The only question is whether liability can be imposed on Mr. Hales based on the allegation that
he directed the acts of his City employees. The Court agrees with City Defendants that such
allegation is devoid of any factual content. The mere fact that Mr. Hales held the position of
Mayor is insufficient to render him liable. Iqbal, 556 U.S. at 676 (“Government officials may not
be held liable for the unconstitutional conduct of their subordinates under a theory of respondeat
superior.”). Plaintiffs fail to state a claim as to Mr. Hales.
IV.

Motion to Strike
The Court rejects City Defendants’ objections to Magistrate Judge Papak’s denial of their

motion to strike the historical allegations contained in paragraphs 27-30 of the complaint. “The
rationale behind granting a motion to strike is to avoid prejudice to a party by preventing a jury
from seeing the offensive matter or giving the allegation any unnecessary notoriety.” Snow v.
Summers, No. 10-6224-HO, 2011 WL 1545610, at *1 (D. Or. Apr. 21, 2011) (citing Wailua
Assocs v. Aetna Cas. & Sur. Co., 183 F.R.D 550, 553 (D. Haw. 1998)). Thus, a motion to strike
is disfavored in the absence of prejudice. Id. Here, the Court does not find that Defendants are
prejudiced by allowing the allegations to remain in the complaint. As in Snow, any inappropriate
allegations will not be taken into account by the Court or submitted to a jury. See id. at *2. At
this point in the proceeding, however, Defendants have not met their burden to demonstrate that
the Court should strike the allegations.
V.

Plaintiffs’ Claim 12: Intentional Interference with Economic Relations (“IIER”)
To state a claim for intentional interference with economic relations (“IIER”), a plaintiff

must allege each of the following elements: “(1) the existence of a professional or business

10 – ORDER

relationship (which could include, e.g., a contract or a prospective economic advantage), (2)
intentional interference with that relationship, (3) by a third party, (4) accomplished through
improper means or for an improper purpose, (5) a causal effect between the interference and
damage to the economic relationship, and (6) damages.” McGanty v. Staudenraus, 321 Or. 532,
535, 901 P.2d 841, 844 (1995)
City Defendants moved to dismiss Plaintiffs’ claim for intentional interference with
economic relations, arguing that Plaintiffs failed to adequately allege that City Defendants
interfered with Plaintiffs’ business relationships and caused the Club to close. For the reasons
discussed above, the Court adopts Magistrate Judge Papak’s conclusion that Plaintiffs have
adequately alleged causation. Thus, Magistrate Judge Papak correctly denied City Defendants’
motion to dismiss on this basis.
On the other hand, the Court disagrees with Magistrate Judge Papak’s recommendation to
deny OLCC Defendants’ motion to dismiss Plaintiffs’ claim as to all individual OLCC
Defendants. In their motion, OLCC Defendants argued that Plaintiff fails to point to any specific
acts that constitute interference with any business relationship. They also argued that Plaintiffs
fail to plead that OLCC Defendants acted by improper means or for an improper purpose.
Finally, they contended that Plaintiff fails to plead a plausible allegation that OLCC Defendants
caused Plaintiffs’ damages.
The Court agrees with Magistrate Judge Papak, for the reasons explained in the F&R, that
Plaintiffs have adequately pleaded improper purpose and causation. However, Plaintiffs fail to
identify specific acts taken by OLCC Defendants that constitute interference with any business
relationship. Plaintiffs’ allegations against Mr. Marks, Director of OLCC, consist of the
allegation that he never brought to the Commission Ms. Thames’ requests to have OLCC’s

11 – ORDER

restrictions on her license removed, Compl. ¶¶ 59-62; he called Ms. Thames’ attorney to inform
him that OLCC was conducting an investigation into her case, Compl. ¶¶ 110, 112; he delayed
an OLCC meeting, Compl. ¶ 113; and he attended at least two meetings with Ms. Thames and
others. Compl. ¶¶ 114, 120. As to Mr. Eckhart, OLCC Director of Public Safety, he is alleged to
have attended two meetings with Ms. Thames and others, Compl. ¶¶ 114, 123. Shannon
Hoffeditz, OLCC Regional Manager, also never alerted the Commission regarding Ms. Thames’
request to have restrictions removed, Compl. ¶ 62; she spoke with Mr. Thames during an
incident involving Ms. Thames, Mr. Luster, and Mr. Bell, Compl. ¶ 99; she attended a meeting
with Ms. Thames and others, Compl. ¶¶ 123, 129; she sent Ms. Thames a questionnaire, Compl.
¶ 125; and she emailed Ms. Thames, Compl. ¶ 139. Plaintiff alleges that Mr. Lindsey, acting
Executive Director of OLCC, also failed to bring Ms. Thames’ requests to the Commission.
Compl. ¶ 59. The only allegation regarding Mr. McNeal, an OLCC License Inspector, is that he
compiled a list for OLCC of “21 events that supposedly had some bearing on Ms. Thames’
written request that the license restrictions be lifted.” Compl. ¶ 129. Finally, Plaintiff alleges that
Mr. Tallmadge, an OLCC Inspector, made false accusations regarding the adequacy of Plaintiffs’
security patrols and false statements to the Commission regarding the issuance of a proposed
license cancellation. Compl. ¶¶ 55-57, 67, 73-75.
Plaintiffs fail to identify how any of the acts listed above interfered with an existing
professional or business relationship held by Plaintiffs. Instead, Plaintiffs seek to impute liability
on to all the individual defendants by virtue of their involvement in a conspiracy. See Pl.’s Resp.
2-3, ECF 66 (“The OLCC Defendants’ arguments ignore plaintiffs’ allegations that the OLCC
defendants entered into a conspiracy.”). According to Plaintiffs, OLCC Defendants acts “may

12 – ORDER

seem innocent in isolation” but they are wrongful and actionable in the context of their
coordinated effort to advance a conspiracy.
The problem with Plaintiffs’ argument is that nowhere in their IIER claim is there any
mention of a conspiracy. Instead, the claim is brought against “Individual Defendants” and
alleges that the “above named defendants interfered with plaintiff’s business relations with
patrons, customers, the landlord, providers and others by the improper means and with improper
motives.” Compl. ¶ 251. This language stands in contrast to Plaintiffs’ Claims 2, 4, 5, 6, 7, all of
which state that Defendants conspired and deprived Plaintiffs of their rights “by agreement and
concerted action.” See Compl. ¶¶ 188, 203, 216, 222, 227. In sum, the complaint, as written, fails
to adequately state a claim for IIER as to OLCC Defendants.
VI.

Plaintiffs’ Claim 13: Intentional Infliction of Emotional Distress (“IIED”)
“To state a claim for intentional infliction of severe emotional distress, a plaintiff must

plead that (1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the
defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's
acts constituted an extraordinary transgression of the bounds of socially tolerable conduct.”
McGanty, 321 Or. at 543, 901 P.2d at 849.
City Defendants moved to dismiss Plaintiffs’ IIED claim, repeating the same argument
regarding causation that has been discussed above. The argument fails. OLCC Defendants’
motion to dismiss Plaintiffs’ IIED contended that Plaintiffs failed to adequately plead the first or
third elements of an IIED claim as to any of the individual OLCC defendants. In response,
Plaintiffs did not present any specific argument as to any specific OLCC defendants. Instead,
Plaintiffs argued that the complaint’s allegations, “taken as a whole,” support the inference that

13 – ORDER

OLCC Defendants wanted Ms. Thames to fail and conspired with City Defendants, because of
racial animus.
Whether the alleged conduct constitutes an extraordinary transgression of the bounds of
socially tolerable conduct is a question of law for the court. Harris v. Pameco Corp., 170 Or.
App. 164, 171, 12 P.3d 524, 529 (2000). In a 2008 case, the Oregon Court of Appeals explained
the following parameters of the tort:
A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by
assessing the allegedly tortious conduct to determine whether it goes beyond the farthest
reaches of socially tolerable behavior and creates a jury question on liability.
***
As explained in the Restatement [(Second) of Torts] at § 46 comment d [1965]:
“Liability has been found only where the conduct has been 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.”
House v. Hicks, 218 Or. App. 348, 358, 179 P.3d 730, 736 (2008) (internal quotation marks and
citations omitted).
The actual allegations in Plaintiffs’ complaint are insufficient to “meet the very high
standard” of “an extraordinary transgression of the bounds of socially tolerable conduct,” in
order to state an IIED claim against OLCC Defendants. As with the IIER claim, the Court
declines to view the IIED claim through Plaintiffs’ proposed lens of conspiracy, when the
complaint itself does not plead such facts for this claim. Thus, the Court dismisses Plaintiffs’
IIED claim against OLCC Defendants.
VII.

Leave to Amend
If the Court dismisses a complaint, it must decide whether to grant leave to amend. See

28 U.S.C. § 1653. The Ninth Circuit has repeatedly held that dismissal without leave to amend is
improper, even if no request to amend the pleading was made, unless it is clear that the defective
14 – ORDER

pleading cannot possibly be cured by the allegation of additional facts. Snell v. Cleveland, Inc.,
316 F.3d 822, 828 n. 6 (9th Cir. 2002) (citing Lee v. City of Los Angeles, 250 F.3d 668, 692 (9th
Cir. 2001)); Lopez v. Smith, 203 F.3d 1122, 1130–31 (9th Cir. 2000). Because Plaintiffs may be
able to cure the deficiencies in their pleadings by the allegation of additional facts, the Court
grants Plaintiff leave to amend.

///

///

///

///

///

///

///

///

///

15 – ORDER

CONCLUSION
The Court adopts in part and declines to adopt in part Magistrate Judge Papak’s Findings
and Recommendation [53], as follows:
-

City Defendants’ Motion [20] to Dismiss and to Strike is granted as to Plaintiffs’
Claim 2—14th Amendment Procedural Due Process. The motion is also granted as to
Plaintiffs’ Claim 5—First Amendment, to the extent premised on Plaintiffs’ right to
free association. City Defendants Ms. Archer and Ms. Hales are entitled to qualified
immunity and are dismissed from the case. Otherwise, the motion is denied.

-

OLCC Defendants’ Motion [42] to Dismiss and Strike is granted as to Plaintiffs’
Claim 2—14th Amendment Procedural Due Process; Claim 5—First Amendment, to
the extent premised on Plaintiffs’ right to free association; Claim 12—IIER; and
Claim 13—IIED. The motion is also granted as to the following of Plaintiffs’ claims
against OLCC: Claim 9—Assault, Claim 10—Battery, and Claim 11—False Arrest.
Otherwise, the motion is denied.

Plaintiffs are granted leave to amend. Even if Plaintiffs choose not to amend the
dismissed claims, they must submit an amended complaint that reflects this Court’s rulings as to
City Defendants’ and OLCC Defendants’ motions. Plaintiffs’ amended complaint is due within
10 days of the date below.
IT IS SO ORDERED.

DATED this ________________ day of _________________________________ , 2017.

____________________________________________________
MARCO A. HERNÁNDEZ
United States District Judge

16 – ORDER