Ouma v. Portland State University Registrar's Office

Filing 22

OPINION & ORDER ON MOTION TO DISMISS: Defendant's Motion to Dismiss, ECF 16 , is GRANTED. Any amended complaint must be filed on or before April 7, 2025. Plaintiff must serve any amended complaint and Summons on Defendant and file proof of service on or before April 14, 2025. Signed on 3/7/2025 by Judge Karin J. Immergut. (Deposited in outgoing mail to pro se party on 3/7/25.) (jy)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

WASH OUMA,
Plaintiff,
v.

Case No. 3:24-cv-00991-IM
OPINION AND ORDER GRANTING
DEFENDANT’S MOTION TO
DISMISS

PORTLAND STATE UNIVERSITY,
Defendant.
Wash Ouma, Portland, OR 97214. Pro Se.
Erin M. Burris, Miller Nash LLP, 1140 SW Washington Street, Suite 700, Portland, OR 97205.
Attorney for Defendant.
IMMERGUT, District Judge.
Before this Court is a Motion to Dismiss (“Mot.”) filed by Defendant Portland State
University (“PSU” or “Defendant”), 1 ECF 16, to dismiss Plaintiff Wash Ouma’s Complaint,
ECF 1. Defendant moves to dismiss all claims with prejudice under Federal Rules of Civil
Procedure 12(b)(1) for lack of subject matter jurisdiction, 12(b)(2) for lack of personal
1

Plaintiff purports to sue PSU and PSU’s Registrar’s Office as separate defendants, but
as Defendant points out, the Registrar’s Office is not a distinct entity. Mot., ECF 16 at 7 n.4. This
Court construes Plaintiff’s Complaint to be against PSU only.
PAGE 1 – OPINION AND ORDER ON MOTION TO DISMISS

jurisdiction, 12(b)(4) for insufficient service, and 12(b)(6) for failure to state a claim upon which
relief can be granted. Mot., ECF 16 at 1.
As discussed below, Plaintiff failed to properly serve Defendant, but a final opportunity
to serve Defendant is warranted under the circumstances.
This Court determines that Plaintiff’s equal protection claim is barred by sovereign
immunity and his allegations are insufficient to plausibly allege intentional discrimination based
on race. This claim is dismissed with leave to amend.
Plaintiff’s state law claims also fail. Plaintiff’s educational discrimination claim similarly
fails to allege intentional discrimination, is not timely, and does not comply with the mandatory
notice requirement. Plaintiff’s “educational malpractice” claim also fails to satisfy this notice
requirement, is time-barred, and fails to state a claim. Leave to amend these two claims is denied
on futility grounds. This Court also concludes that Plaintiff inadequately pleaded claims for
breach of contract and fraudulent misrepresentation, but he has leave to amend his complaint to
reallege these claims if he believes that amendment is appropriate. Plaintiff must serve any
amended complaint and summons on PSU and file proof of service with the Court to avoid
dismissal of this action. 2
BACKGROUND
This is the second time Plaintiff has filed suit against Defendant based on PSU’s award of
Plaintiff’s bachelor’s degree. In his initial action, Plaintiff sued PSU for allegedly awarding him
the wrong degree. Notice of Removal, Complaint, Case No. 3:23-cv-01795-YY, ECF 1-1, at 4.

2

Plaintiff may consult Chapter 8 of the District of Oregon’s Handbook for SelfRepresented Parties for instructions on how to properly serve Defendant, available at
https://www.ord.uscourts.gov/phocadownload/userupload/prose/Handbook%20for%20SelfRepresented%20Parties.pdf.
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On March 19, 2024, this Court adopted Magistrate Judge You’s Findings & Recommendations
(“F&R”) and granted PSU’s motion to dismiss without prejudice for lack of service and failure
to state a claim. F&R, Case No. 3:23-cv-01795-YY, ECF 13; Order, Case No. 3:23-cv-01795YY, ECF 15.
Turning to this case, although the Complaint is somewhat difficult to follow, the Court
discerns the following facts from the Complaint. Plaintiff became a PSU student in 1992.
Complaint (“Compl.”), ECF 1 at 6. He was in good academic standing, with 227 credit hours for
bachelor’s degrees programs and 69 in masters/PhD programs. Id. at 7. On June 17, 2023, PSU
awarded Plaintiff a Bachelor of Science in liberal studies. Id. at 35. Plaintiff alleges that PSU
promised to award Plaintiff his degree on July 28, 2022, but did not do so. Id. at 11. Plaintiff
alleges that PSU failed to timely provide him with his undergraduate degree before registering
him for masters and PhD courses while timely awarding such degrees to white students. Id. at 8.
Plaintiff is Black and alleges that a white PSU Registrar’s Office employee called him an
academic failure and the n-word. Id. at 8, 11.
On June 21, 2024, Plaintiff filed this action for (1) breach of contract; (2) educational
malpractice; (3) unlawful discrimination in education under O.R.S. 659-850; (4) fraudulent
misrepresentation; and (5) a violation of the Fourteenth Amendment Equal Protection Clause. Id.
at 14–15. On October 10, 2024, this Court issued an Order to Show Cause because Plaintiff had
failed to properly serve Defendants, ECF 6. On October 30, 2024, Defendant filed its Motion to
Dismiss, ECF 16.
DISCUSSION
This Court first addresses whether Plaintiff properly served Defendant, and then
addresses each of Plaintiff’s claims in turn.

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A. Improper Service
PSU moves to dismiss under Rule 12(b)(4) for insufficient process and Rule 12(b)(2) for
lack of personal jurisdiction. Mot., ECF 16 at 4. A federal court lacks personal jurisdiction over a
defendant if the defendant was not properly served. Direct Mail Specialists, Inc. v. Eclat
Computerized Techs., Inc., 840 F.2d 685, 688 (9th Cir. 1988). While Plaintiff has not shown that
he properly served Defendant, he has demonstrated good cause or excusable neglect.
1. Plaintiff Failed to Properly Effect Service
Defendant argues that Plaintiff’s service was insufficient because Plaintiff failed to serve
a summons on PSU. Mot., ECF 16 at 4. Plaintiff maintains that he did serve the Summons and
Complaint on Defendant. Response to Motion to Dismiss (“Resp.”), ECF 19 at 2.
Plaintiff is required to serve the complaint and summons on Defendant. Fed. R. Civ. P.
4(c)(1) (requiring that a complaint and summons be delivered for proper process of service); Or.
R. Civ. P. 7(D)(1) (same). Failure to serve a summons is “fatal” and cannot be excused by the
defendant’s actual notice of the pending action. Adnan v. Whole Foods Mkt. Pac. Nw., Inc., No.
CV 10-44-MO, 2010 WL 1335144, at *4 (D. Or. Mar. 30, 2010). When a defendant challenges
service, the plaintiff bears the burden of establishing proper service. Brockmeyer v. May, 383
F.3d 798, 801 (9th Cir. 2004); see also Freestream Aircraft (Bermuda) Ltd. v. Aero L. Grp., 905
F.3d 597, 602 (9th Cir. 2018) (“[T]he plaintiff bears the burden of demonstrating that its
allegations establish a prima facie showing of personal jurisdiction.”).
Plaintiff filed his Complaint on June 21, 2024. ECF 1. Service was due by September 19,
2024. See Fed. R. Civ. P. 4(m) (providing 90-day limit for service after complaint is filed).
Plaintiff filed a certificate of service, ECF 5, but did not issue a summons, let alone serve one on
Defendant, within this timeframe. On October 1, 2024, this Court issued an Order to Show Cause
for insufficient service and gave Plaintiff fourteen additional days to effect service. ECF 6. In
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response, Plaintiff timely issued a summons, ECF 8, and filed proof of service, ECF 9. Plaintiff
then filed an affidavit of service a week after Defendant’s Motion to Dismiss was fully briefed,
ECF 21.
Plaintiff’s certificate of service, proof of service, and affidavit of service each reflect
“service” on Defendant through the U.S. Postal Service’s Certified Mail service with return
receipt. See ECF 5, 9, 21. It is entirely unclear from these filings what documents Plaintiff
mailed to PSU. These filings provide no evidence that Plaintiff delivered a copy of the summons
and complaint to PSU. A copy of the summons appears in the proof of service, but Plaintiff did
not complete the enclosed form that asks about service of the summons. See ECF 9 at 2. For its
part, PSU submitted a declaration of Clair Callaway Pinkerton, the employee responsible for
handling PSU’s legal mail, in support of its motion to dismiss. ECF 18 ¶ 2. Ms. Pinkerton attests
that the mailings PSU received from Plaintiff with respect to this case did not include a
summons. Id. ¶ 5. Plaintiff has not carried his burden of showing that he served the summons on
PSU and thus has not shown effective service.
2. Rule 4(m) Analysis
Since Plaintiff’s attempted service on Defendant was insufficient, this Court must assess
what relief is appropriate. This Court must determine whether Plaintiff has shown good cause for
the delay, and if so, the court must extend the time for service. Fed. R. Civ. P. 4(m); In re
Sheehan, 253 F.3d 507, 512 (9th Cir. 2001). If not, courts have “broad” discretion to dismiss the
action without prejudice. Fed. R. Civ. P. 4(m); In re Sheehan, 253 F.3d at 513. Alternatively, if
the plaintiff shows excusable neglect, the court may extend the time for service. Lemoge v.
United States, 587 F.3d 1188, 1198 (9th Cir. 2009). Defendant argues that this Court should
dismiss Plaintiff’s Complaint with prejudice and does not address the good cause or excusable

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neglect standards. See Mot., ECF 16 at 1, 4–5. Based on the record, this Court concludes that
Plaintiff has demonstrated good cause, or, at the very least, excusable neglect.
Factors pointing to good cause include: the defendant received actual notice of the
lawsuit; the defendant would suffer no prejudice; and the plaintiff would be severely prejudiced
if his complaint were dismissed. In re Sheehan, 253 F.3d at 512. A plaintiff may be prejudiced
by the dismissal if the statute of limitations will have expired. United States v. 2,164 Watches,
More or Less Bearing a Registered Trademark of Guess?, Inc., 366 F.3d 767, 773 (9th Cir.
2004). Similarly, excusable neglect factors include: the danger of prejudice to the defendant; the
length of the delay and its potential impact on the proceedings; the reason for the delay; and
whether the plaintiff acted in good faith. Bateman v. U.S. Postal Serv., 231 F.3d 1220, 1223–24
(9th Cir. 2000); Lemoge, 587 F.3d at 1192.
Here, Plaintiff would be severely prejudiced if this Court dismissed this action because,
as discussed below, Plaintiff has leave to amend his equal protection claim, and this claim may
be barred by the statute of limitations if he had to refile. Defendant does not argue that it has
suffered prejudice. Further, the length of delay is not substantial. Plaintiff appears to have acted
in good faith by repeatedly attempting to serve Defendant, and he states that any failure to
comply with Rule 4 was unintentional. Response to Order to Show Cause, ECF 7 at 2; see
Fimbres v. United States, 833 F.2d 138, 139 (9th Cir. 1987) (“Intentional delay of service is
more inexcusable than inadvertence.”).
This Court grants Plaintiff one final opportunity to properly serve Defendant with the
summons and any amended complaint and to file appropriate proof of service with the Court.
This Court will not grant Plaintiff any further leave absent extraordinary and unforeseeable
circumstances.

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B. Rule 12(b) Defenses
1. Legal Standards
This Court construes Plaintiff’s filings liberally and affords him the benefit of any doubt.
Erickson v. Pardus, 551 U.S. 89, 94 (2007) (noting that documents filed by a self-represented
litigant must be liberally construed, and the complaint “must be held to less stringent standards
than formal pleadings drafted by lawyers”).
A motion brought under Rule 12(b)(6) “tests the legal sufficiency of a claim.” Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). A motion to dismiss for failure to state a claim may be
granted only when there is no cognizable legal theory to support the claim or when the complaint
lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New
Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency
of a complaint’s factual allegations, the court must accept as true all well-pleaded material facts
alleged in the complaint and construe them in the light most favorable to the non-moving party.
See Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a
presumption of truth, allegations in a complaint “may not simply recite the elements of a cause
of action, but must contain sufficient allegations of underlying facts to give fair notice and to
enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th
Cir. 2011).
Under Rule 12(b)(1), a party may move to dismiss for lack of subject-matter jurisdiction.
Fed. R. Civ. P. 12(b)(1). The party opposing the motion bears the burden of proving that the
court possesses subject matter jurisdiction. Ass’n of Am. Med. Colls. v. United States, 217 F.3d
770, 778 (9th Cir. 2000). District courts may consider affidavits when evaluating a Rule 12(b)(1)
motion to dismiss. Savage v. Glendale Union High Sch., Dist. No. 205, 343 F.3d 1036, 1039 n.2
(9th Cir. 2003). “Ordinarily, a case dismissed for lack of subject matter jurisdiction should be
PAGE 7 – OPINION AND ORDER ON MOTION TO DISMISS

dismissed without prejudice so that a plaintiff may reassert his claims in a competent court.”
Frigard v. United States, 862 F.2d 201, 204 (9th Cir. 1988).
A court “may decline to grant leave to amend only if there is strong evidence of ‘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, [or] futility of amendment.’” Sonoma Cnty. Ass’n of Retired Emps.
v. Sonoma Cnty., 708 F.3d 1109, 1117 (9th Cir. 2013) (alteration in original) (quoting Foman v.
Davis, 371 U.S. 178, 182 (1962)).
2. Equal Protection Claim
Defendant argues that Plaintiff has failed to state an equal protection claim because PSU
is entitled to sovereign immunity and Plaintiff failed to allege discriminatory intent. Mot., ECF
16 at 6–8. Defendant also argues that this claim is barred by the statute of limitations. Id. at 8.
This Court agrees that Plaintiff has failed to state an equal protection claim, but grants leave to
amend as it is not untimely.
Defendant argues that PSU is not a “person” subject to liability under 42 U.S.C. § 1983.
Id. at 7. State agencies that are an “arm of the state” are shielded from suit under the doctrine of
sovereign immunity and are not “persons” under § 1983. Will v. Mich. Dep’t of State Police, 491
U.S. 58, 71 (1989); P.R. Aqueduct & Sewer Auth. v. Metcalf & Eddy, Inc., 506 U.S. 139, 144
(1993). PSU, like other state universities, is an “arm of the state” and is immune from suit under
§ 1983. Brainard v. W. Or. Univ., No. 3:17-CV-0253-SI, 2017 WL 1534191, at *3 (D. Or. Apr.

PAGE 8 – OPINION AND ORDER ON MOTION TO DISMISS

26, 2017); Harrell v. S. Or. Univ., No. CIV. 08-3037-CL, 2009 WL 321014, at *2–3 (D. Or. Feb.
9, 2009). Sovereign immunity thus bars Plaintiff’s equal protection claim. 3
In any event, Defendant is correct that Plaintiff has failed to allege an equal protection
claim. See Mot., ECF 16 at 7. The Equal Protection Clause provides in relevant part: “[n]o State
shall * * * deny any person within its jurisdiction the equal protection of the laws.” U.S. Const.
amend. XIV, § 1. It requires the government to treat all similarly situated people equally.
Hartmann v. California Dep’t of Corr. & Rehab., 707 F.3d 1114, 1123 (9th Cir. 2013). To state a
claim for a violation of the Equal Protection Clause, “a plaintiff must show that the defendants
acted with an intent or purpose to discriminate against the plaintiff based upon membership in a
protected class.” Furnace v. Sullivan, 705 F.3d 1021, 1030 (9th Cir. 2013).
Plaintiff alleges that he is Black and that PSU discriminated against him on the basis of
race and ethnicity because PSU “failed to timely provide” him “with equal academic services,
advises, information[], guidance, degrees, diplomas” as PSU provided to white students. Compl.,
ECF 1 at 15 (emphasis omitted). Plaintiff further alleges that a white PSU Registrar Department
official called him derogatory slurs including the “n-word” and an “academic failure.” Id. at 8
(emphasis omitted). Plaintiff does not allege when these statements occurred in comparison to
the timing of the degree conferral. Even construing Plaintiffs allegations liberally and drawing all
inferences in his favor, Plaintiff has failed to plausibly allege facts to show that Defendant’s
failure to timely award Plaintiff’s degree was motivated by discriminatory intent based on race.
Plaintiff is granted leave to amend if he believes that he can cure these defects.

3

Plaintiff does not allege facts from which this Court can construe his equal protection
claim to be against specific individuals. Regardless, such construction is not necessary as
Plaintiff otherwise fails to state an equal protection claim, as described below.
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Defendant also argues that Plaintiff’s equal protection claim is time-barred. Mot., ECF 16
at 8. Defendant asserts that this claim accrued on July 28, 2022, when PSU allegedly failed to
award Plaintiff the degree as promised. Id. Section 1983 claims accrue “when the plaintiff knows
or has reason to know of the injury that is the basis of the action.” Belanus v. Clark, 796 F.3d
1021, 1025 (9th Cir. 2015). This Court agrees that Plaintiff’s equal protection claim accrued on
July 28, 2022, as he knew or had reason to know on that date that PSU did not award his degree
on that date as promised. The statute of limitations for this claim is two years. Wallace v. Kato,
549 U.S. 384, 387 (2007) (holding statute of limitations for § 1983 actions is borrowed from the
state statute of limitations for personal injury torts); O.R.S. 12.110(1) (creating two-year statute
of limitations for personal injury torts). Plaintiff filed this lawsuit on June 21, 2024, Compl., ECF
1, within the statute of limitations.
Defendant argues that this claim is nevertheless barred because “plaintiff did not
effectuate proper service” within the statute of limitations. Mot., ECF 16 at 8. But Plaintiff need
not have effectuated service within the statute of limitations for this federal claim. By timely
filing the Complaint, Plaintiff tolled the statute of limitations. See Fed. R. Civ. P. 3 (“A civil
action is commenced by filing a complaint with the court.”); S.J. v. Issaquah Sch. Dist. No. 411,
470 F.3d 1288, 1291, 1293 (9th Cir. 2006) (“Rule 3 provides the tolling rule for a borrowed state
statute of limitations when an action is brought under federal law.”); Sain v. City of Bend, 309
F.3d 1134, 1138 (9th Cir. 2002) (“[W]e hold that a § 1983 action is commenced in federal
district court for purposes of the statute of limitations when the complaint is filed.”). Plaintiff’s
equal protection claim is not barred by the statute of limitations.
3. O.R.S. 659.850 Claim
Defendant argues that Plaintiff’s educational discrimination claim fails because he did
not allege that he was treated differently based on race, he did not allege compliance with the
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grievance requirement, this claim is time-barred, and he failed to allege that he provided notice
as required under the Oregon Tort Claims Act (“OTCA”). Mot., ECF 16 at 9–10.
O.R.S. 659.850 prohibits discrimination in schools that receive state funds. For purposes
of the statute, “discrimination” means: “any act that unreasonably differentiates treatment,
intended or unintended, or any act that is fair in form but discriminatory in operation, either of
which is based on race . . . .” O.R.S. 659.850(1)(a)(A).
Like his equal protection claim, Plaintiff fails to plausibly allege facts to show that
Defendant discriminated against him based on his race. Leave to amend is not appropriate
because, as discussed below, this claim is time-barred and fails to allege compliance with the
OTCA notice requirement.
Claims under O.R.S. 659.850 must be filed within one year of filing a grievance with the
university’s governing board, and, in turn, the grievance must have been filed within 180 days of
the alleged discrimination. O.R.S. 659.860(2)–(3). Plaintiff has not alleged that he filed a
grievance with PSU, and this action was filed nearly two years after the date on which Defendant
allegedly promised to award Plaintiff’s degree, July 28, 2022. Even if Plaintiff timely filed a
grievance, he failed to file this action within one year of any grievance. Plaintiff’s state law
discrimination claim is thus time-barred. See Camarata v. Portland Cmty. Coll., No. 3:19-CV00738-HZ, 2019 WL 4723769, at *4 (D. Or. Sept. 26, 2019) (dismissing O.R.S. 659.850 claim
as untimely where there was no allegation that a grievance was filed and the action was filed
over two years after the incident). Leave to amend would be futile. Novak v. United States, 795
F.3d 1012, 1020 (9th Cir. 2015) (“Futility alone can justify a court’s refusal to grant leave to
amend.”).

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Further, this claim must be dismissed because Plaintiff failed to comply with the OTCA
notice requirement. The OTCA requires plaintiffs bringing claims other than wrongful death to
provide defendants with notice “within 180 days after the alleged loss or injury.” O.R.S.
30.275(2). The notice requirement may be satisfied by formal or actual notice, by commencing
the action within 180 days, or payment of the claim by or on behalf of the public body. Id.
30.275(3). Formal notice must contain a “description of the time, place and circumstances giving
rise to the claim,” the claimant’s name, and mailing address. Id. 30.275(4)(b)–(c). Actual notice
“is a communication that (1) allows the recipient to acquire ‘actual knowledge of the time, place
and circumstances’ that give rise to the specific claim or claims that the plaintiff ultimately
asserts; and (2) would lead a reasonable person to conclude that the plaintiff has a general intent
to assert a claim.” Flug v. Univ. Of Oregon, 335 Or. 540, 554 (2003) (emphasis omitted). The
plaintiff has the burden of proving that sufficient notice was given. O.R.S. 30.275(7). Plaintiff
failed to plead that he gave notice of this claim. See Curtis v. Oregon, No. 3:12-CV-02369-BR,
2013 WL 3466533, at *4 (D. Or. July 9, 2013) (dismissing tort claims where pro se plaintiff
failed to plead that he gave notice of his claim under the OTCA).
4. Educational Malpractice Claim
Plaintiff alleges that Defendant “acted arbitrarily and in bad faith” by failing to “timely
provide” Plaintiff with his degree and by registering him in graduate courses before issuing
Plaintiff’s undergraduate degree. Compl., ECF 1 at 14. As Defendant points out, under Oregon
law, courts can only review a university’s academic decision if it was made arbitrarily or in bad
faith. Mot., ECF 16 at 11; Tate v. N. Pac. Coll., 70 Or. 160, 167 (1914) (“The faculties of
colleges, who are authorized to examine their students and pass on the question whether the
students have performed all the conditions prescribed, to entitle them to degrees, exercise quasi

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judicial functions, and their decisions are conclusive, if they act within their jurisdiction, and in
good faith, and not arbitrarily.”).
Plaintiff’s “educational malpractice” claim 4 must be dismissed because he failed to
comply with the notice requirement of the OTCA as described above, and the claim is timebarred.
The statute of limitations for educational malpractice is two years. O.R.S. 12.110(1). In
Oregon, an action is not commenced for statute of limitation purposes until the plaintiff has both
filed the complaint and served the summons on the defendant. O.R.S. 12.020(1). If the summons
is served on the defendant within sixty days of the filing of the complaint, then the action is
deemed to have commenced on complaint’s filing date. O.R.S. 12.020(2). The Ninth Circuit has
held that O.R.S. 12.020 applies to Oregon law claims in federal court. Torre v. Brickey, 278 F.3d
917, 920 (9th Cir. 2002); see Smith v. City of Portland, No. 3:22-CV-927-SI, 2024 WL 2747502,
at *5 (D. Or. May 29, 2024). Plaintiff failed to serve Defendant with the summons within sixty
days of the filing of the complaint. This claim is dismissed without leave to amend as
amendment would be futile.
5. Breach of Contract Claim
Plaintiff alleges that PSU breached a contract with Plaintiff when PSU (1) failed to timely
provide Plaintiff with a liberal studies degree on July 28, 2022, as promised; and (2) failed to
provide Plaintiff’s degree before registering Plaintiff and collecting tuition from him for
masters/PhD courses. Compl., ECF 1 at 7–8. “To state a claim for breach of contract, plaintiff
4

This Court does not understand Plaintiff to be making an educational malpractice claim,
even though he labels it as one. He does not appear to challenge any academic decision, but
rather the administerial issue of when he received his degree. To the extent that Plaintiff is
challenging the former, Defendant is correct that he has not alleged facts sufficient to show bad
faith or arbitrariness on the part of PSU.
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must allege the existence of a contract, its relevant terms, plaintiff’s full performance and lack of
breach and defendant’s breach resulting in damage to plaintiff.” Huskey v. Dep’t of Corr., 329
Or. App. 397, 399 (2023).
Defendant argues that Plaintiff has failed to allege the existence of a contract,
consideration, or breach. Mot., ECF 16 at 13. This Court agrees. Plaintiff alleges that PSU
promised that PSU would “immediately and timely award” him with a degree “without further
delay (Exhibit 8),” Compl., ECF 1 at 21, but Exhibit 8 contains no such promise. Exhibit 8 is an
email exchange between Plaintiff and a PSU employee who recommends that Plaintiff request a
liberal arts degree. Id. at 41. This email makes no mention of when Plaintiff will be awarded this
degree. Plaintiff has further not alleged what consideration PSU received in exchange for making
such a promise. See Kornbrodt v. Equitable Tr. Co., 137 Or. 386, 392 (1931) (“There must be a
consideration for every contract . . . .”).
Plaintiff is granted leave to amend if he believes that he can cure these defects.
6. Fraudulent Misrepresentation
Defendant argues that Plaintiff fails to state a claim for fraudulent misrepresentation.
Mot., ECF16 at 14.
A claim for fraudulent misrepresentation requires a plaintiff to prove the following
elements: “(1) a representation; (2) its falsity; (3) its materiality; (4) the defendant’s knowledge
of its falsity or ignorance of its truth; (5) the defendant’s intent that the representation should be
acted on by the plaintiff and in the manner reasonably contemplated; (6) the plaintiff's ignorance
of its falsity; (7) the plaintiff’s reliance on its truth; (8) the plaintiff’s right to rely on the
representation; (9) and the plaintiff’s resulting injury.” Smallwood v. Fisk, 146 Or. App. 695, 700
(1997). Additionally, as PSU observes, fraud claims must be alleged under the heightened
standard required by Federal Rule of Civil Procedure 9(b).
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Plaintiff’s fraudulent misrepresentation claim appears to be based on alleged false
statements that PSU made to the court in the previous lawsuit:
Defendants PSU et al knowingly and recklessly provided those
concerned and even this court with[] false, fraudulent and
misleading information: a) regarding plaintiff’s academic
qualifications; b) they lied and continued to lie that the Defendants
PSU “awarded” plaintiff with a political science minor degree on
June 17, 2023; c) also they lied that plaintiff is claiming for a
“social studies” degree; d) also they lied that plaintiff became a
PSU student for the first time in the year 1997 through year 2002.
e) Also they lied that plaintiff only claim for “a degree[.]”
Plaintiff[’s] claim [was] for equal and appropriate timely proper
services, academic advises, information, degrees, diplomas, as
they/PSU been timely providing for their non-colored white
students e) the list of the Defendants PSU’[s] reckless fraudulent
misrepresentation of this matter goes on and on.
Compl., ECF 1 at 16–17 (emphasis omitted). These allegations, construed liberally, do not
satisfy prongs three through nine. It is unclear how these alleged false representations are
material. Plaintiff has not alleged that PSU knew of their falsity or ignorance of their truth or that
PSU intended Plaintiff to act on these representations. These allegations simply suggest that
Plaintiff disagreed with PSU’s presentation of the facts in its motion to dismiss. Plaintiff has not
alleged that he was ignorant of the falsity of these alleged representations or that he relied on
their truth in any way. Finally, Plaintiff has not alleged any injury as a result of any
representations.
Plaintiff is granted leave to amend this claim if he believes he can cure these defects.
CONCLUSION
Defendant’s Motion to Dismiss, ECF 16, is GRANTED. Any amended complaint must
be filed on or before April 7, 2025. Additionally, Plaintiff must serve any amended complaint
and Summons on Defendant and file proof of service on or before April 14, 2025.
//
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IT IS SO ORDERED.
DATED this 7th day of March, 2025.
/s/ Karin J. Immergut
Karin J. Immergut
United States District Judge

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