Bokenfohr v. Gladen et al
Filing
43
Opinion and Order. The Court GRANTS Guidera's Motion (# 27 ) to Amend Answer and Affirmative Defenses as to Guidera's affirmative defense of in pari delicto and DEFERS ruling on Guidera's Motion as to her unclean-hands affirmative de fense. The Court GRANTS Gladen's Motion (# 28 ) for Leave to File FirstAmended Answer, Affirmative Defenses and Counterclaim as to Gladen's affirmative defenses of in pari delicto and laches and DEFERS ruling on Guidera's Motion as to her unclean-hands affirmative defense. The Court DIRECTS the parties to file no later than June 19, 2018, a stipulated agreement for the return and removal of Plaintiff's data from the SSD and Plaintiff's computer or other devices as set out in this Opinion and Order or to file a joint status report explaining why the parties have not stipulated to the return of the data as proposed.IT IS SO ORDERED. Signed on 5/29/18 by Judge Anna J. Brown. (jy)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
LORI BOKENFOHR,
Plaintiff,
3:17-cv-01870-BR
OPINION AND ORDER
v.
CYNTHIA GLADEN and
CHRISTINE GUIDERA,
Defendants.
KRISTEN L. TRANETZKI
EDWARD A. PIPER
Angeli Law Group LLC
121 S.W. Morrison Street
Suite 400
Portland, OR 97204
(503) 954-2232
Attorneys for Plaintiff
JOHN J. DUNBAR
Larkins Vacura LLP
121 S.W. Morrison St
Suite 700
Portland, OR 97204
(503) 222-4424
Attorneys for Defendant Cynthia Gladen
1 - OPINION AND ORDER
JEFFREY M. EDELSON
HEATHER ST. CLAIR
Markowitz Herbold PC
1211 S.W. Fifth Ave
Suite 3000
Portland, OR 97204
(503) 295-3085
Attorneys for Defendant Christine Guidera
BROWN, Senior Judge.
This matter comes before the Court on Defendant Christine
Guidera’s Motion (#27) to Amend Answer and Affirmative Defenses
and Defendant Cynthia Gladen’s Motion (#28) for Leave to File
First Amended Answer, Affirmative Defenses and Counterclaim.
For
the reasons that follow, the Court GRANTS Guidera’s Motion as to
her affirmative defense of in pari delicto and DEFERS ruling on
Guidera’s Motion as to her affirmative defense of unclean-hands.
The Court GRANTS Gladen’s Motion as to her affirmative defenses
of in pari delicto and laches and DEFERS ruling on Guidera’s
Motion as to her affirmative defense of unclean-hands.
BACKGROUND
The following facts come from Plaintiff’s Complaint,
Defendants’ Answers, and the parties’ filings related to
Defendants’ Motions.
In 2015 Defendant Cynthia Gladen was married to Kenneth
2 - OPINION AND ORDER
Kolarsky.1
Kenneth Kolarsky was having an affair at that time
with Plaintiff Lori Bokenfohr, an attorney who lived and
practiced law in Canada.
Plaintiff alleges in her Complaint that in 2015 she owned a
laptop computer on which she stored “a broad range of personal
and confidential information” including Plaintiff’s banking,
financial, and tax records; Plaintiff’s medical records as well
as the medical records of her children; and Plaintiff’s “private
photo albums.”
Compl. at ¶ 12.
Defendants assert, and Plaintiff
does not appear to contest, that Plaintiff also stored
confidential client information on the laptop.
In July 2015 Kolarsky purchased a solid-state computer drive
(SSD) or “flash drive.”
In August 2015 Kolarsky “gave [the SSD]
as a gift to Plaintiff.”
Plaintiff intended to use the SSD to
create a back-up copy of the contents of her laptop.
At some point before November 2015 Plaintiff asked Kolarsky
to copy the information from Plaintiff’s laptop to the SSD.
Kolarsky tried to do so, but the “attempt appeared to fail,
following which Kolarsky reformatted the SSD.”
Compl. at ¶ 14.
Kolarsky and Plaintiff believed the reformatting process
permanently deleted whatever information might have been
partially copied from Plaintiff’s laptop to the SSD.
Plaintiff
and Kolarsky were mistaken, however, and some of Plaintiff’s
1
Kolarsky is not a party to this action.
3 - OPINION AND ORDER
personal information including “intimate images depicting
Plaintiff and Kolarsky in bed and unclothed . . . were capable of
being recovered from the SSD.”
Compl. at ¶ 15.
Plaintiff left
the SSD with Kolarsky so he could attempt to install a new
operating system on the SSD.
On November 18, 2015, Kolarsky traveled to Canada to visit
Plaintiff and brought the SSD.
On November 22, 2015, Kolarsky
returned to Oregon and left his luggage in the car owned by
Kolarsky and Gladen while Kolarsky coached their child’s hockey
game.
During the hockey game Gladen removed “certain items” from
the family car “without Kolarsky’s (or plaintiff’s) knowledge or
consent.”
Compl. at ¶ 16.
Gladen denies removing the SSD from
the car at that time.
Gladen alleges in her proposed First Amended Answer that in
January 2016 she “found the flash drive in her home and she
believed the flash drive belonged to the family.”
Proposed Am. Answer at ¶ 56.
Gladen
Gladen alleges in her proposed
First Amended Answer that she could not open the SSD on her
personal computer.
Gladen, therefore, took the SSD and her
personal computer to Office Depot for technical assistance.
The
Office Depot employee was able to restore the SSD by using
Gladen’s personal computer, which resulted in the uploading of
images from the SSD to Gladen’s “electronic accounts, including
Google Photos, [that] ran through [Gladen’s] personal computer
4 - OPINION AND ORDER
and were accessible to her devices.”
Gladen Answer at ¶ 18.
Among the uploaded photographs were images of Plaintiff with
Kolarsky “in bed and with no clothing visible” some of which
“were taken in [Gladen’s] home.”
¶ 33; Answer at ¶ 33.
Gladen Proposed Am. Answer at
Gladen was upset by the images and sent
“images of plaintiff and [Kolarsky], sometimes in bed with no
clothing visible, to [Defendant Christine] Guidera” as well as
“an image or two to a small number of friends after seeing them.”
Gladen Answer at ¶ 33.
Guidera admits in her Answer that she
received “electronic photographic images from Gladen.”
Guidera
Answer at ¶ 6.
In February 2016 Gladen filed separation papers against
Kolarsky.
In June 2016 as part of Gladen and Kolarsky’s divorce
proceedings Gladen gave the SSD to Kolarsky.
Plaintiff alleges
in her Complaint that Gladen wrongfully continued to retain
copies of the images.
Gladen admits she and her attorneys
continue to possess copies of the images, but she notes
Plaintiff’s “lawyers demanded in 2016 and again in 2017 that
[Gladen] must preserve these images.”
Gladen Answer at ¶ 3.
Plaintiff alleges in her Complaint that on June 16, 2016,
Guidera “sent a series of unsolicited Facebook messages to a
woman who then was one of Kolarsky’s professinal colleagues.
messages contained an Intimate Image depicting Plaintiff and
5 - OPINION AND ORDER
The
Kolarsky in bed and unclothed.”
Compl. at ¶ 20.
Guidera alleges
in her Answer that she sent “a private message to Shanta Roberts
via Facebook Messenger, including a G-rated photograph of
plaintiff and [Kolarsky].”
Guidera Answer at ¶ 6.
Guidera
asserts in her Answer that she “did not send any graphic or
indecent photographs.”
Guidera Answer at ¶ 6.
On November 21, 2017, Plaintiff filed a Complaint in this
Court against Gladen and Guidera in which she brings claims for
(1) violation of the Computer Fraud and Abuse Act (CFAA), 18
U.S.C. § 1030, against Gladen; (2) violation of Oregon Revised
Statutes § 30.865(1)(d) against both Defendants; conversion
against both Defendants; replevin against both Defendants; and
intrusion upon seclusion against both Defendants.
Plaintiff
seeks compensatory and punitive damages or in the “alternative to
an award of compensatory damages reflecting the full value of
Plaintiff’s Personal Information (but not other compensatory
damages), an order of replevin requiring Defendants to identify
and return all of Plaintiff’s Personal Information”; and/or in
the “alternative to an award of compensatory damages reflecting
the full value of Plaintiff’s Personal Information (but not other
compensatory damages), an order imposing a constructive trust for
Plaintiff’s benefit on all of her Personal Information . . . that
is in either Defendant’s [sic] direct or indirect possession,
custody, or control.”
6 - OPINION AND ORDER
Compl. at 13.
On January 17, 2018, Gladen filed an Answer, Affirmative
Defenses, and Counterclaim in which she asserts affirmative
defenses of unclean hands, in pari delicto, ownership,
abandonment, privilege, standing, consent, waiver, and
unconstitutionality.
Gladen also asserted a Counterclaim for
declaratory judgment in which she sought a judgment that Gladen
may hire a qualified computer professional to
remove the images of her ex-husband together with
plaintiff, or any other information from the SSD
regarding plaintiff, from Ms. Gladen’s devices and
accounts, provided that Ms. Gladen maintains
through an attorney or qualified computer
professional a forensic copy of the SSD and any
other account or device in which the personal
information and images at issue in this litigation
were located or transmitted.
Gladen Answer at ¶ 68.
On January 17, 2018, Guidera filed an Answer and
Counterclaim2 to Plaintiff’s Complaint in which she asserted
affirmative defenses of failure to state a claim, waiver,
consent, abandonment, interest of Defendant Gladen, absolute
privilege of consent, standing, unclean hands, and in pari
delicto.
On February 9, 2018, Gladen filed a Notice of Dismissal of
Counterclaim in which she dismissed her Counterclaim for
declaratory judgment.
2
Although Guidera does not include affirmative defenses in
the title of her Answer, the Answer contains affirmative
defenses. Guidera, however, does not include any counterclaims
in her Answer.
7 - OPINION AND ORDER
On March 2, 2018, Plaintiff filed a Motion for Partial
Judgment on the Pleadings or, in the Alternative to Strike or for
Partial Summary Judgment in which she requests the Court to grant
partial judgment on the pleadings as to Defendants’ affirmative
defenses of unclean hands and in pari delicto or, in the
alternative, to grant partial summary judgment on those
affirmative defenses or to strike those affirmative defenses.
On March 15, 2018, the Court received an email from defense
counsel requesting clarification as to Defendants' time to
respond to Plaintiff’ Motion.
Specifically, counsel noted Local
Rule 7-1(e) provides parties must serve responses to motions
within 14 days of service of the motion.
Local Rule 7-1(f),
however, provides parties must serve responses to motions for
summary judgment within 21 days of service of the motion.
As
noted, Plaintiff's Motion was titled as a Motion for Judgment on
the Pleadings or to Strike or in the Alternative as a Motion for
Summary Judgment.
Thus, defense counsel was uncertain whether
the response deadline was 14 or 21 days from service of the
Motion.
On March 15, 2108, the Court entered an Order in which it
noted the email from defense counsel and advised it had reviewed
Plaintiff's Motion and noted “it is couched entirely in terms of
a motion for judgment on the pleadings or motion to strike.
In
other words, there is not any reference to evidence outside of
8 - OPINION AND ORDER
the pleadings and Plaintiff does not set out the Rule 56 standard
or address her arguments to that standard.
This appears,
therefore, to be a motion for partial summary judgment in title
only.”
Accordingly, to the extent that any party sought to amend
its pleadings or sought an extension of time to file a response
to pleadings, the Court directed the party to file a motion no
later than March 23, 2018.
The Court also held the briefing
schedule for Plaintiff’s Motion for Judgment on the Pleadings in
abeyance “until further order of the Court.”
On March 21, 2018, the parties filed a Joint Motion to
Extend Deadline for Discovery, Set Dispositive Motions Deadline,
and Stay Other Deadlines in which the parties sought an order
from the Court “(i) extend[ing] the deadline for the close of
discovery from March 22, 2018 to July 13, 2018, (ii) set[ting]
a dispositive motions deadline of August 31, 2018, and
(iii) stay[ing] all other deadlines until at least August 31,
2018.”
On March 23, 2018, the Court granted the parties’ Joint
Motion and struck all previously-set, case-management deadlines.
On March 23, 2018, Guidera also filed a Motion (#27) to
Amend Answer and Affirmative Defenses and Gladen filed a Motion
(#28) for Leave to File First Amended Answer, Affirmative
Defenses and Counterclaim in which, among other things, she
reasserts her Counterclaim for declaratory judgment.
9 - OPINION AND ORDER
On March 27, 2018, the Court signed the parties’ Stipulated
Protective Order limiting the use and dissemination of
Plaintiff’s private data, which is the subject of this action.
On April 6, 2018, Plaintiff filed a combined Response to
both Defendants’ Motions to Amend.
The Court took Defendants’
Motions to Amend under advisement on May 2, 2018.
STANDARDS
Federal Rule of Civil Procedure 15(a) provides a party may
amend a pleading after a responsive pleading has been filed only
by leave of court unless the opposing party consents to the
amendment.
Rule 15(a), however, also provides leave to amend
“shall be freely given when justice so requires.”
to be applied with “extreme liberality.”
This policy is
Moss v. United States
Secret Serv., 572 F.3d 962, 972 (9th Cir. 2009).
The Supreme Court has recognized several factors that a
district court should consider when determining whether justice
requires the court to grant leave to amend.
Those factors
include
undue delay, bad faith or dilatory motive on the
part of the movant, repeated failure to cure
deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of
allowance of the amendment, futility of the
amendment.
Eminence Capital, LLC v. Aspeon, Inc., 316 F.3d 1048, 1052 (9th
Cir. 2003)(quoting Foman v. Davis, 371 U.S. 178, 182 (1962)).
10 - OPINION AND ORDER
The factor that carries the greatest weight is whether the
amendment will prejudice the opposing party.
Id.
“Absent
prejudice or a strong showing of any of the remaining Foman
factors, there exists a presumption under Rule 15(a) in favor of
granting leave to amend.”
Id.
A proposed amendment "is futile only 'if no set of facts can
be proved under the amendment . . . that would constitute a valid
and sufficient claim.'"
Wisdom v. Centerville Fire Dist., Inc.,
391 F. App'x 580, 583 (9th Cir. 2010)(quoting Miller v. RykoffSexton, Inc., 845 F.2d 209, 214 (9th Cir. 1988)).
See also
Leadsinger, Inc. v. BMG Music Pub., 512 F.3d 522, 532 (9th Cir.
2008)(proposed amendment . . . is futile when the pleading “could
not be saved by any amendment.”).
"'If the underlying facts or
circumstances relied upon by a [party] may be a proper subject of
relief, he ought to be afforded an opportunity to test his claim
on the merits.'"
AmerisourceBergen Corp. v. Dialysist West,
Inc., 465 F.3d 946, 957 (9th Cir. 2006)(quoting Foman, 371 U.S.
at 182).
A party should be afforded an opportunity to test her
claim on the merits unless it appears beyond doubt that the
proposed amended pleading would be dismissed for failure to state
a claim under Federal Rule of Civil Procedure 12(b)(6).
AmerisourceBergen, 465 F.3d at 957.
11 - OPINION AND ORDER
DISCUSSION
Guidera seeks to amend her Answer to add facts in support of
her affirmative defenses of unclean hands and in pari delicto and
to add other clarifying facts.
Gladen seeks to amend her Answer
to add facts in support of her affirmative defenses of unclean
hands and in pari delicto, to assert an additional affirmative
defense of laches, and to add other clarifying facts.
Plaintiff
opposes both Defendants’ requested amendments on the ground that
amendment would be futile.
I.
In Pari Delicto
A.
Gladen’s Affirmative Defense of In Pari Delicto
In her Answer Gladen asserts the affirmative defense of
in pari delicto as follows:
To the extent plaintiff can prove any of her
claims, relief is barred as a result of
plaintiff’s participation in negligent, improper,
bad faith conduct. Plaintiff took pictures or
allowed them to be taken of herself in Gladen’s
home with [Kolarsky] without clothing. According
to plaintiff’s account, plaintiff also gave
Kolarsky access to her computer so that he could
copy its contents onto a portable storage device.
Plaintiff failed to take reasonable steps to
protect the information and images left on the
SSD. Plaintiff’s claims are barred.
Gladen Answer at ¶ 56.
In her Motion for Leave to File First
Amended Answer Gladen’s proposed affirmative defense of in pari
delicto relies in part on the following facts that Gladen alleges
also support her unclean hands defense:
12 - OPINION AND ORDER
Plaintiff has unclean hands and is not entitled to
equitable relief. This action involves
information copied onto a solid state drive. A
solid state drive is a flash drive, a small,
handheld storage device. Plaintiff alleges that
[Gladen] “stole” this flash drive from “his” (her
husband’s) car to obtain “unauthorized access” to
its contents, all of which [Gladen] denies.
[Gladen] found the flash drive in her home and she
believed the flash drive belonged to the family.
Moreover, plaintiff was either grossly negligent
or reckless in the way she handled her law firm
information and the images, as well as the privacy
of the information copied onto the flash drive.
The information on the flash drive included
sexually explicit photographic images of
plaintiff, including images depicting plaintiff
together with Dr. Kolarsky, [Gladen]’s husband at
the time. Some of these images were even taken in
[Gladen’s] home, without [Gladen’s] knowledge.
Despite the nature of the information, plaintiff
continued with a series of high-risk behaviors and
decisions, as described below.
Plaintiff seeks relief against [Gladen] with
respect to [Gladen’s] access to and handling of
the images in a way that plaintiff contends
violated her right to privacy, but plaintiff’s own
handling of the information was unreasonable and
put the information at risk of discovery.
According to plaintiff’s complaint, plaintiff
entrusted the copying of the contents of her
laptop, including her law firm information and the
explicit images, to [Kolarsky]. [Kolarsky] was
not skilled or adept in the handling of sensitive
computerized information. Even though plaintiff
knew that [Kolarsky] had botched his effort to
copy information onto the flash drive, according
to plaintiff, she was satisfied by his effort to
fix the problem and even allowed him to keep the
flash drive. At the time, on information and
belief, plaintiff was aware of the risks of
leaving information on electronic storage devices.
Further, on information and belief, plaintiff knew
that [Gladen] was already concerned that her
husband was involved in an affair with plaintiff,
and that [Gladen] was concerned about various
transactions that plaintiff had encouraged
13 - OPINION AND ORDER
Kolarsky to make. In light of plaintiff’s
knowledge, plaintiff’s own handling of the
information, and her failure to safeguard it, was
either grossly negligent or reckless, or both.
Plaintiff’s gross negligence and recklessness led
to [Gladen] accessing the images and to [Gladen]’s
reaction to them. Plaintiffs’ conduct caused
[Gladen] needless pain and suffering.
Gladen’s Proposed Am. Answer at ¶¶ 56-57.
Specifically, Gladen
proposes the following amended affirmative defense of in pari
delicto:
“Plaintiff incorporates paragraphs 55 to 57 above.
Having engaged in the intentional, grossly negligent and reckless
conduct described above, plaintiff is in pari delicto and is not
entitled to relief.”
B.
Gladen Proposed Am. Answer at ¶ 58.
Guidera’s Affirmative Defense of In Pari Delicto
Guidera alleges the affirmative defense of in pari
delicto in her Answer as follows:
“To the extent plaintiff can
prove any of her claims against the defendants, relief is barred
as a result of plaintiff’s share of misdeeds, including the bad
faith actions, negligence, and unethical conduct described
above.”
Guidera Answer at ¶ 18.
In her Proposed Amended Answer Guidera's proposed
affirmative defense of in pari delicto relies in part on the
following facts that Guidera alleges also support her unclean
hands defense:
Plaintiff was engaged in an extramarital affair
with [Kolarsky]. Plaintiff’s course of conduct
throughout the affair was marked with deceitful,
inequitable, reckless and grossly negligent
behavior, including:
14 - OPINION AND ORDER
•
Photographing or permitting Kolarsky to
document their affair with explicit
photographs, even in [Gladen’s] home and
bed;
•
Storing those photographs on the same
computer on which she kept client
information;
•
Permitting Kolarsky to copy client
information and the photographs onto a
flash drive;
•
Allowing Kolarsky to retain the flash
drive with all of its contents, and to
bring the drive into the home he shared
with [Gladen];
•
Helping Kolarksy cover up the affair and
lie to [Gladen] about his whereabouts
and activities;
•
Advising Kolarsky on wasting marital
assets and reducing his liabilities to
Gladen and their children in eventual
divorce proceedings;
•
Repeatedly refusing to permit defendants
to delete the images from their
possession, even after the flash drive
had been relinquished, insisting that
copies and metadata be preserved for
litigation for more than a year and a
half before filing suit.
Plaintiff was reckless and grossly negligent with
the contents of her laptop computer, which not
only contained the photographic evidence of her
extramarital affair, but may have also contained
client information related to her legal business,
and other evidence of her conduct.
Afraid of the consequences that plaintiff might
suffer if this information became public in
Canada, where plaintiff practices law, plaintiff
then maliciously began interfering with Gladen and
Kolarsky’s divorce proceedings. Plaintiff sent a
letter on her official letterhead to Gladen’s
15 - OPINION AND ORDER
divorce attorney, claiming to be Kolarsky’s “legal
agent” in order to obtain confidential
information. Kolarsky admitted in depositions to
paying plaintiff five thousand dollars in legal
fees, and contended that the pair shared
attorney-client privilege. Plaintiff and Kolarsky
later filed a bar complaint against Gladen’s legal
counsel in Oregon, which was unsubstantiated.
When Guidera subsequently filed a bar complaint
against plaintiff in Canada because of this gross
misconduct and unethical behavior, plaintiff
maliciously brought this lawsuit against both
defendants. Plaintiff implores the court for
relief from the consequences of her own misdeeds
and unethical conduct, but is barred from any
equitable relief sought because of her unclean
hands.
To the extent that plaintiff can spear [Gladen]
with a conversion claim and reach through her to
[Guidera], [Guidera] is entitled to invoke the
same shield that protects [Gladen]. [Guidera]
would not have been in possession of any images of
plaintiff if [Gladen] had not been in possession
of those images. [Gladen] would not have been in
possession of any images of plaintiff without
plaintiff’s reckless and negligent behavior in
ensuring [Gladen] became aware of her. Therefore,
[Guidera] would not have been in possession of any
images of plaintiff without plaintiff’s reckless
and negligent behavior in assuring that result.
Guidera Proposed Am. Answer at ¶¶ 18-21.
Specifically, Guidera
alleges in her proposed affirmative defense of in pari delicto:
To the extent plaintiff can prove any of her
claims against the defendants, relief is barred as
a result of plaintiff’s share of misdeeds,
including her bad faith, deceitful, and
inequitable actions, her reckless actions, gross
negligence, and unethical conduct described above.
[Guidera] . . . benefits from the same defense as
[Gladen] in that plaintiff’s claims against her
are dependent on plaintiff’s claims against
[Gladen].
Guidera Proposed Am. Answer at ¶ 22.
16 - OPINION AND ORDER
C.
The Law
“In pari delicto has been referred to as a ‘companion
principle’ to the equitable maxim of clean hands, to be applied
in actions at law where equitable doctrines are irrelevant.”
McKinley v. Weidner, 73 Or. App. 396, 398-401 (1985).
See also
Vukanovich v. Kine, 268 Or. App. 623, 639 n.10 (2015)(holding the
defense of unclean hands applies only in equitable cases, and
“the applicable defense in a ‘law case’ is in pari delicto.”).
In McKinley the Oregon Court of Appeals explained
[t]he proper nomenclature . . . is that the
parties were in pari delicto, i.e., “[i]n equal
fault; in a similar offense or crime; equal in
guilt or in legal fault.” Black's Law Dictionary
1270 (4th Ed. Rev. 1968). That the parties are in
pari delicto is often asserted in contract
disputes and claims for indemnity. It has also
been applied in negligence actions.
73 Or. App. at 400-01.
The defense of in pari delicto requires a defendant to
plead and to prove that the plaintiff “engaged in misconduct in
connection with the matter for which . . . she seeks relief.”
Vukanovich, 268 Or. App. at 639.
“[F]or the doctrine to apply,
‘the misconduct must be serious enough to justify a court's
denying relief on an otherwise valid claim.
not require saintliness.’”
[The doctrine] does
Id. (citing N. Pac. Lumber Co. v.
Oliver, 286 Or. 639, 651 (1979)(noting courts have applied the
doctrine when a plaintiff's conduct constituted a crime, fraud,
17 - OPINION AND ORDER
or bad faith).
In Vukanovich the court declined to apply the
doctrine because the plaintiff’s conduct did not “constitute
misconduct” and the plaintiff did not do anything
“impermissible.”
269 Or. App. at 641.
The Oregon Court of Appeals also explained:
The doctrine of in pari delicto may — but not need
— be applied to prevent recovery in a law action,
when the party against whom it is to be applied is
as culpable as, or more culpable than, his
opponent. The question then becomes whether, on
the state of the record the trial court had before
it in this case, it could be established that
plaintiff was equally culpable with, or more
culpable than, defendant.
McKinley, 73 Or. App. at 401.
Thus, the defense of in pari
delicto requires a defendant to plead and to prove that the
plaintiff engaged in misconduct “serious enough to justify a
court's denying relief on an otherwise valid claim” in connection
with the matter for which the plaintiff seeks relief.
A
defendant must also establish on the record that the plaintiff
was equally or more culpable than the defendant.
D.
Analysis
As noted, Plaintiff opposes Defendants’ proposed
amendments to in pari delicto affirmative defenses on the ground
that amendment would be futile.
Specifically, Plaintiff asserts
Defendants fail to allege, nor can they allege, that Plaintiff
and Defendants acted in concert.
Defendants, however, point out
that the Oregon Supreme Court has recognized in pari delicto can
18 - OPINION AND ORDER
apply when parties have “act[ed] independently or jointly.”
S. Pac. Co. v. Morrison-Knudsen Co., 216 Or. 398, 405-06
(1950)(citing Restatement on Restitution § 102).
Similarly, in
Bateman Eichler, Hill Richards, Inc. v. Berner, 472 U.S. 299, 307
(1985), the Supreme Court noted “[n]otwithstanding [the]
traditional limitations, many courts have given the in pari
delicto defense a broad application to bar actions where
plaintiffs simply have been involved generally in ‘the same sort
of wrongdoing’ as defendants.”
Plaintiff also asserts amendment would be futile
because she acted less culpably than Defendants and her alleged
wrongdoing was not the same type as Defendants’ alleged
wrongdoing.
Plaintiff’s assertion, however, is based on her
version of the facts that underlie her claims.
As noted,
however, Defendants dispute those facts and allege materially
different facts related to Plaintiff’s claims and Defendants’
affirmative defenses.
On this record, therefore, the Court concludes
Plaintiff has not established “no set of facts can be proved
under the amendment . . . that would constitute a valid and
sufficient claim.'"
See Wisdom, 391 F. App'x at 583.
Accordingly, the Court GRANTS Defendants’ Motions to
Amend their Answers as to their in pari delicto affirmative
defenses.
19 - OPINION AND ORDER
II.
Unclean Hands
A.
Gladen’s Affirmative Defense of Unclean Hands
In her Answer Gladen asserts the affirmative defense of
unclean hands as follows:
Plaintiff participated in an extramarital affair
with plaintiff’s husband and participated in
making images of herself with [Gladen’s] husband
in [Gladen’s] home and bed. Plaintiff assisted in
the cover-up of the affair and, on information and
belief, in other misconduct involving [Gladen’s].
Plaintiff has unclean hands and is not entitled to
equitable relief.
Gladen Answer at ¶ 55.
In her Motion for Leave to File First Amended Answer
Gladen proposes the following amended affirmative defense of
unclean hands:
Plaintiff has unclean hands and is not entitled to
equitable relief. This action involves
information copied onto a solid state drive. A
solid state drive is a flash drive, a small,
handheld storage device. Plaintiff alleges that
[Gladen] “stole” this flash drive from “his” (her
husband’s) car to obtain “unauthorized access” to
its contents, all of which [Gladen] denies.
[Gladen] found the flash drive in her home and she
believed the flash drive belonged to the family.
Moreover, plaintiff was either grossly negligent
or reckless in the way she handled her law firm
information and the images, as well as the privacy
of the information copied onto the flash drive.
The information on the flash drive included
sexually explicit photographic images of
plaintiff, including images depicting plaintiff
together with Dr. Kolarsky, [Gladen]’s husband at
the time. Some of these images were even taken in
[Gladen’s] home, without [Gladen’s] knowledge.
Despite the nature of the information, plaintiff
continued with a series of high-risk behaviors and
decisions, as described below.
20 - OPINION AND ORDER
Plaintiff seeks relief against [Gladen] with
respect to [Gladen’s] access to and handling of
the images in a way that plaintiff contends
violated her right to privacy, but plaintiff’s own
handling of the information was unreasonable and
put the information at risk of discovery.
According to plaintiff’s complaint, plaintiff
entrusted the copying of the contents of her
laptop, including her law firm information and the
explicit images, to [Kolarsky]. [Kolarsky] was
not skilled or adept in the handling of sensitive
computerized information. Even though plaintiff
knew that [Kolarsky] had botched his effort to
copy information onto the flash drive, according
to plaintiff, she was satisfied by his effort to
fix the problem and even allowed him to keep the
flash drive. At the time, on information and
belief, plaintiff was aware of the risks of
leaving information on electronic storage devices.
Further, on information and belief, plaintiff knew
that [Gladen] was already concerned that her
husband was involved in an affair with plaintiff,
and that [Gladen] was concerned about various
transactions that plaintiff had encouraged
Kolarsky to make. In light of plaintiff’s
knowledge, plaintiff’s own handling of the
information, and her failure to safeguard it, was
either grossly negligent or reckless, or both.
Plaintiff’s gross negligence and recklessness led
to [Gladen] accessing the images and to [Gladen]’s
reaction to them. Plaintiffs’ conduct caused
[Gladen] needless pain and suffering.
Gladen’s Proposed Am. Answer at ¶¶ 56-57.
B.
Guidera’s Affirmative Defense of Unclean Hands
In her Answer Guidera asserts the affirmative defense
of unclean hands as follows:
Plaintiff was engaged in an extramarital affair
with [Kolarsky]. Gladen was unaware of the affair
and trapped in an abusive marriage to a man that
spent years cheating on her, and emotionally
abusing her. Upon information and belief,
plaintiff’s affair with Kolarsky prompted her to
give him legal advice on how to waste marital
21 - OPINION AND ORDER
assets and otherwise reduce his liability to
Gladen in eventual divorce proceedings. Plaintiff
had sexual relations with [Kolarsky], in Gladen’s
home, and in Gladen’s bed. Plaintiff then
carelessly permitted her married lover to copy
images of the pair’s activities onto an external
storage device (the alleged “SSD”), presumably for
his own gratification.
Plaintiff was negligent with the contents of her
laptop computer, which not only contained the
photographic evidence of her extramarital affair,
but may have also contained client information
related to her legal business, and other evidence
of her conduct.
Afraid of the consequences that plaintiff might
suffer if this information became public in
Canada, where plaintiff practices law, plaintiff
then maliciously began interfering with Gladen and
Kolarsky’s divorce proceedings. Plaintiff sent a
letter on her official letterhead to Gladen’s
divorce attorney, claiming to be Kolarsky’s “legal
agent” in order to obtain confidential
information. Kolarsky admitted in depositions to
paying plaintiff five thousand dollars in legal
fees, and contended that the pair shared
attorney-client privilege. Plaintiff and Kolarsky
later filed a bar complaint against Gladen’s legal
counsel in Oregon, which was unsubstantiated. When
Guidera subsequently filed a bar complaint against
plaintiff in Canada because of this gross
misconduct and unethical behavior, plaintiff
maliciously brought this lawsuit against both
defendants. Plaintiff implores the court for
relief from the consequences of her own misdeeds
and unethical conduct, but is barred from any
equitable relief sought because of her unclean
hands.
Guidera Answer at ¶¶ 15-17.
In her Motion to Amend Answer Guidera proposes the
following amended affirmative defense of unclean hands:
Plaintiff was engaged in an extramarital affair
with [Kolarsky]. Plaintiff’s course of conduct
22 - OPINION AND ORDER
throughout the affair was marked with deceitful,
inequitable, reckless and grossly negligent
behavior, including:
•
Photographing or permitting Kolarsky to
document their affair with explicit
photographs, even in [Gladen’s] home and
bed;
•
Storing those photographs on the same
computer on which she kept client
information;
•
Permitting Kolarsky to copy client
information and the photographs onto a
flash drive;
•
Allowing Kolarsky to retain the flash
drive with all of its contents, and to
bring the drive into the home he shared
with [Gladen];
•
Helping Kolarksy cover up the affair and
lie to [Gladen] about his whereabouts
and activities;
•
Advising Kolarsky on wasting marital
assets and reducing his liabilities to
Gladen and their children in eventual
divorce proceedings;
•
Repeatedly refusing to permit defendants
to delete the images from their
possession, even after the flash drive
had been relinquished, insisting that
copies and metadata be preserved for
litigation for more than a year and a
half before filing suit.
Plaintiff was reckless and grossly negligent with
the contents of her laptop computer, which not
only contained the photographic evidence of her
extramarital affair, but may have also contained
client information related to her legal business,
and other evidence of her conduct.
Afraid of the consequences that plaintiff might
suffer if this information became public in
23 - OPINION AND ORDER
Canada, where plaintiff practices law, plaintiff
then maliciously began interfering with Gladen and
Kolarsky’s divorce proceedings. Plaintiff sent a
letter on her official letterhead to Gladen’s
divorce attorney, claiming to be Kolarsky’s “legal
agent” in order to obtain confidential
information. Kolarsky admitted in depositions to
paying plaintiff five thousand dollars in legal
fees, and contended that the pair shared
attorney-client privilege. Plaintiff and Kolarsky
later filed a bar complaint against Gladen’s legal
counsel in Oregon, which was unsubstantiated.
When Guidera subsequently filed a bar complaint
against plaintiff in Canada because of this gross
misconduct and unethical behavior, plaintiff
maliciously brought this lawsuit against both
defendants. Plaintiff implores the court for
relief from the consequences of her own misdeeds
and unethical conduct, but is barred from any
equitable relief sought because of her unclean
hands.
To the extent that plaintiff can spear [Gladen]
with a conversion claim and reach through her to
[Guidera], [Guidera] is entitled to invoke the
same shield that protects [Gladen]. [Guidera]
would not have been in possession of any images of
plaintiff if [Gladen] had not been in possession
of those images. [Gladen] would not have been in
possession of any images of plaintiff without
plaintiff’s reckless and negligent behavior in
ensuring [Gladen] became aware of her. Therefore,
[Guidera] would not have been in possession of any
images of plaintiff without plaintiff’s reckless
and negligent behavior in assuring that result.
Guidera Proposed Am. Answer at ¶¶ 18-21.
C.
The Law
To state a claim for unclean hands a party must allege
(1) the party seeking relief has engaged in “bad conduct” and
(2) the conduct is “related to the transaction giving rise to the
claim.”
Oliver, 286 Or. at 653.
24 - OPINION AND ORDER
As noted, unclean hands is an
equitable doctrine that applies only to equitable remedies rooted
in the concept that
when a person who seeks the aid of a court of
equity has himself been guilty of wrong in his
prior conduct related to the matters upon which he
seeks the aid of the court, he is denied the
remedy he seeks, for he comes before the court
with unclean hands.
Id. at 648 (quotation omitted).
D.
Analysis
As noted, Plaintiff opposes Defendants’ Motions to
Amend on the ground that the amendments would be futile.
Specifically, Plaintiff asserts negligent or reckless conduct is
insufficient to support an unclean-hands defense, the wrongful
conduct that Defendants allege Plaintiff engaged in is unrelated
to Plaintiff’s privacy claims, and Defendants do not allege any
injury that would support the defense of unclean hands.
The
parties dispute at some length both the nuances of the elements
of the doctrine of unclean hands and its application to the facts
that Defendants have asserted in their Answers and Proposed
Amended Answers.
The Court notes pursuant to Oliver that Defendants’
affirmative defense of unclean hands applies only to Plaintiff’s
requested equitable relief.
Plaintiff, however, only seeks
equitable relief in the alternative to damages and for either
replevin or imposition of a constructive trust.
In both
alternative requests for equitable relief Plaintiff seeks an
25 - OPINION AND ORDER
order requiring Defendants to identify and to return all of
Plaintiff’s personal information.
Defendants, in turn, appear
more than willing to return Plaintiff’s personal information.
For example, Gladen alleges in her Counterclaim that she seeks to
reassert in her Proposed Amended Answer that she “has no interest
in continuing to maintain on any device or account the images of
[Kolarsky] together with plaintiff or any other information
regarding plaintiff.”
Proposed Am. Answer at ¶ 70.
Gladen also
alleges in her Counterclaim that she advised Plaintiff’s counsel
in July 2016 and again in November 2017 that she is “willing to
arrange for the deletion of the images at issue, while preserving
information for litigation purposes. . . .
agree.”
Proposed Am. Answer at ¶ 71.
Plaintiff did not
In her Counterclaim for
declaratory judgment Gladen requests the Court to
determine the rights of the parties and issue a
judgment that [Gladen] may hire a qualified
computer professional to remove the images of
[Kolarsky] together with plaintiff or any other
information from the SSD regarding plaintiff, from
[Gladen’s] devices and accounts, provided that
[Gladen] maintains through an attorney or
qualified computer professional a forensic copy of
the SSD and any other account or device in which
the personal information and images at issue in
this litigation were located or transmitted.
Proposed Am. Answer at ¶ 71.
It appears to the Court that the
parties should be able to resolve Plaintiff’s claims for
equitable relief as follows:
Return Plaintiff’s data while
counsel retain forensic copies of the SSD and/or other accounts
26 - OPINION AND ORDER
of devices to which the images were transferred solely for use
in this litigation and subject to the Protective Order entered
March 27, 2018.
The Court, therefore, DIRECTS the parties to confer
through counsel in real time (and preferably in person) regarding
the return and removal of Plaintiff’s personal data and the
potential retention of forensic copies of that data as needed for
this litigation subject to the Protective Order entered
March 27, 2018.
The Court DIRECTS the parties to file no later
than June 19, 2018, a stipulated agreement for the return and
removal of Plaintiff’s data from the SSD and Plaintiff’s computer
or other devices that satisfies both Plaintiff’s alternative
claims for equitable relief of replevin or a constructive trust
and Gladen’s requested relief for removal of Plaintiff’s data
from the SSD and her computer or other devices while counsel
retain forensic copies necessary only for this litigation or to
file a status report explaining why they were unable to reach
agreement on this apparently uncontested issue.
After the parties file their stipulated agreement, the
Court will deny as moot Defendants’ Motions to Amend as to the
unclean hands affirmative defenses and Gladen’s Counterclaim for
declaratory judgment.
If the parties file a status report in
lieu of a stipulated agreement regarding returning the data that
is the subject of this litigation, the Court will give the
27 - OPINION AND ORDER
parties additional instructions.
III. Laches
Finally, Gladen seeks to amend her Answer to assert an
affirmative defense of laches as follows:
“Plaintiff did not
file this action until almost a year and-a-half after she learned
that [Gladen] had found the images.
requests for equitable relief.”
¶ 66.
Laches bars plaintiff’s
Gladen Proposed Am. Answer at
Plaintiff asserts Gladen’s laches defense is futile.
“The laches doctrine bars a party from asserting an
equitable claim when the party had ‘knowledge of relevant facts
under which it could have acted earlier” and the party's delay
substantially prejudiced the opposing party.’”
Hammond v.
Hammond, 246 Or. App. 775, 783 (2011)(quoting Myers v. Weems, 128
Or. App. 444, 446 (1994)).
“The laches inquiry depends on the
facts and circumstances of each case and ‘will not be applied
mechanically to every situation’ merely because a party has acted
with neglect.”
Hammond, 246 Or. App. at 783 (quoting Hilterbrand
v. Carter, 175 Or. App. 335, 343 (2001)).
“‘Courts often look to an analogous statute of limitations
to define a presumptively reasonable period within which one may
file a claim in equity.’”
Eichner v. Anderson, 229 Or. App. 495,
499 (2009)(quoting Fraiser v. Nolan, 195 Or. App. 211, 215
(2004)).
Thus, when a plaintiff has filed an action within the
limitation period, it is considered “presumptively reasonable”
28 - OPINION AND ORDER
and the defendant must rebut the presumption.
Plaintiff asserts she brought her claims within the
applicable limitations periods and Gladen has not established
substantial prejudice.
Gladen, however, notes Plaintiff alleges
in her claim for conversion that Gladen has held Plaintiff’s
pictures and information for so long that Plaintiff has been
deprived of the full value of the pictures and information.
The
record reflects Plaintiff knew Gladen had the information at
issue no later than June 2016.
Gladen alleges in her Answer that
Gladen’s counsel informed Plaintiff’s counsel in July 2016 and
again on November 17, 2017, that Gladen was willing to arrange
for the deletion of the images, but Plaintiff would not agree.
Instead Plaintiff filed her Complaint alleging, among other
things, that the claim for conversion is based in part on
Defendants’ continued possession of the images at issue despite
Defendants’ efforts to work with Plaintiff to delete the data.
Thus, according to Gladen, Plaintiff demanded Gladen retain the
data at issue and then asserted a claim for conversion based in
part on Gladen’s continued retention of the data.
According to
Gladen, therefore, she has rebutted the presumption of
reasonableness and established potential prejudice.
The Court agrees with Gladen to the extent that Gladen’s
laches defense relates to any part of Plaintiff’s claims in which
she asserts she is entitled to equitable relief on the basis that
29 - OPINION AND ORDER
Gladen continued to retain the images after she sought to reach
an agreement with Plaintiff to remove the data from Gladen’s
devices.
The Court, therefore, concludes Gladen has established
her proposed amendment to add a laches defense is not futile.
Accordingly, the Court GRANTS Gladen’s Motion for Leave to
File First Amended Answer to the extent that Gladen seeks to add
her proposed affirmative defense of laches.
CONCLUSION
For these reasons, the Court GRANTS Guidera’s Motion (#27)
to Amend Answer and Affirmative Defenses as to Guidera’s
affirmative defense of in pari delicto and DEFERS ruling on
Guidera’s Motion as to her unclean-hands affirmative defense.
The Court GRANTS Gladen’s Motion (#28) for Leave to File First
Amended Answer, Affirmative Defenses and Counterclaim as to
Gladen’s affirmative defenses of in pari delicto and laches and
DEFERS ruling on Guidera’s Motion as to her unclean-hands
affirmative defense.
The Court DIRECTS the parties to file no later than June 19,
2018, a stipulated agreement for the return and removal of
Plaintiff’s data from the SSD and Plaintiff’s computer or other
devices as set out in this Opinion and Order or to file a joint
status report explaining why the parties have not stipulated to
30 - OPINION AND ORDER
the return of the data as proposed.
IT IS SO ORDERED.
DATED this 29th day of May, 2018.
/s/ Anna J. Brown
ANNA J. BROWN
United States Senior District Judge
31 - OPINION AND ORDER
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