Russi v. Wissenback

Filing 17

OPINION AND ORDER: Defendant's partial Motion to Dismiss 9 is GRANTED. Plaintiff's claims for abuse of a vulnerable person, IIED, and violation of the CFAA are dismissed. Defendant's motion for a more definite and certain statement is DENIED. Plaintiff is granted leave to amend her complaint. Within thirty (30) days of this order, plaintiff shall file a second amended complaint. Signed on 4/28/2019 by Judge Ann L. Aiken. (ck)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGNE DIVISION

DEBORAH ELAINE RUSSI,

Case No. 6:18-cv-01028-AA
OPINION AND ORDER

Plaintiff,
vs.
CATHERINE WISSENBACK,
Defendant.

AIKEN, District Judge:
Plaintiff Deborah Russi filed this action against defendant Catherine
vVissenback, asserting claims of (1) abuse of a vulnerable person under ORS 124.100;
(2) intentional infliction of emotion distress ("IIED"); (3) invasion of privacy (intrusion
upon seclusion); and (4) a civil action under the Computer Fraud and Abuse Act, 18
U.S.C. § 1030(g) ("CFAA''). Defendant moves to dismiss plaintiffs, first, second, and
fourth claims.
For the following reasons, defendant's partial Motion to Dismiss (doc. 9) is
GRANTED.

Page 1 - OPINON AND ORDER

BACKGROUND
Plaintiff and defendant are sisters. Their father established a trust, and
plaintiffs husband, Joseph Russi, is the trustee. Plaintiff alleges that defendant
became upset either about her lack of beneficial interest in the trust, or the fact that
Mr. Russi was named trustee and began to harass plaintiff through phone calls, voice
mails, text messages, email, and social media.

Defendant's threatening and

harassing communications made plaintiff fear for her physical and emotional safety.
Plaintiff also alleges that defendant further harassed her by (1) using
plaintiffs personal email account to send plaintiffs "confidential personallyidentifying information to third parties" in an effort to spam plaintiff with unwanted
emails; (2) logging into plaintiffs financial accounts; and (3) using plaintiffs identify
to engage in a "presently unknown number of online transactions." Amend. Compl.

,r 8(a).
Plaintiff suffers from multiple myeloma, a form of cancer, and is deemed
disabled by the Social Security Administration. Plaintiff alleges that her medical
condition and physical vulnerabilities make her susceptible to emotional injury,
threats, duress, and undue persuasion. Plaintiff further alleges that defendant's
actions caused her severe anxiety and emotional distress, which in turn "worsened"
her medical condition. Amend. Compl.

if 9.

On June 11, 2018, plaintiff filed this action against defendant, asserting claims
of (1) abuse of a vulnerable person, ORS 124.100; (2) IIED; (3) invasion of privacy;
and (4) a civil action under the CFAA.

Page 2 - OPINON AND ORDER

On October 10, 2018, plaintiff filed an

Amended Complaint asserting the same claims. Defendant now moves to dismiss
plaintiffs first, second, and fourth claims.

STANDARDS
When considering a motion to dismiss, a court construes a complaint in favor
of the plaintiff and takes all factual allegations as true. Odom v. Microsoft Corp., 486
F.3d 541, 545 (9th Cir. 2007). "[F]or a complaint to survive a motion to dismiss, the
non-conclusory 'factual content,' and reasonable inferences from that content, must
be plausibly suggestive of a claim entitling the plaintiff to relief." Moss v. U.S. Secret

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (quoting Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009)). A "formulaic recitation of the elements of a cause of action'' or "naked
assertions devoid of further factual enhancement" and not sufficient to state a
plausible claim. Iqbal, 556 U.S. at 678. "A claim has facial plausibility when the
plaintiff pleads factual content that allows the court to draw the reasonable inference
that the defendant is liable for the misconduct alleged." Id. "Dismissal under Rule
12(b)(6) is proper only when the complaint either (1) lacks a cognizable legal theory
or (2) fails to allege sufficient facts to support a cognizable legal theory." Zixiang Li

v. Kerry, 710 F.3d 995, 999 (9th Cir. 2013).

DISCUSSION
Defendant moves to dismiss the following claims: (1) abuse of a vulnerable
person, ORS 124.100; (2) IIED; and (4) violation of the CFAA.

Alternatively,

defendant moves for an order to make the complaint more definite and certain. I
address each in turn.

Page 3 - OPINON AND ORDER

As a preliminary matter, plaintiffs pleadings frequently fall short of the
minimal threshold established in Iqbal.

Plaintiffs allegations often amount to

nothing more than formulaic recitations of the elements of a claim supported by legal
conclusions couched as factual allegations. Plaintiff also often employs terms so
vague or ambiguous that it is impossible for the Court to determine if the conduct
they describe rises an actionable level.

I.

Abuse of a Vulnerable Person (ORS 124.100)
ORS 124.100(2) creates a statutory cause of action for physical and financial

abuse of a "vulnerable person." ORS 124.100(2), (4) (cause of action); ORS 124.105
(physical abuse); ORS 124.110 (financial abuse). Plaintiff alleges that defendant's
actions amounted to both physical and financial abuse of a vulnerable person under
Oregon law.
A.

Physical Abuse

An action may be brought under ORS 124.100 for physical abuse when the
defendant engages in (1) conduct that would constitute the crimes of assault,
menacmg, recklessly endangering another person, criminal mistreatment, rape,
sodomy, unlawful sexual penetration, sexual abuse, strangulation, ORS 124.105(1);
(2) subjecting a vulnerable person to prolonged deprivation of food or water, ORS
124.105(2); and (3) using physical or chemical restraints or psychotropic medication
on a vulnerable person without an order from a licensed physician, ORS 124.105(3).
The Amended Complaint does not specify a theory of physical abuse, but the parties'
arguments focus on a theory of fourth-degree assault under ORS 163.160.

Page 4 - OPINON AND ORDER

As relevant here, ORS 163.160 provides that "[a] person commits the crime of'
fourth-degree assault if the person "[i]ntentionally, knowingly or recklessly causes
physical injury to another[.]" Plaintiff alleges that defendant caused physical injury
by making her cancer worse. Plaintiff also alleges that defendant "knew or should
have known of Plaintiffs vulnerable status, and that her conduct would cause both
emotional and physical injury[.]" Amend. Compl.

,r

9. But this allegation is too

conclusory to allege facts supporting a knowing mental state. Similarly, plaintiffs
allegations do not support an inference that defendant was aware that her alleged
harassing messages and electronic meddling "created a substantial and unjustifiable
risk of physically injuring another person" or that defendant "consciously disregarded
that risk and, by doing so, grossly deviated from the standard of care that a
reasonable person would observe in the situation[.]" State v. Teitsworth, 257 Or. App.
309, 313 (2013) (describing the "reckless" element of fourth-degree assault).
Accordingly, to the extent that plaintiffs physical abuse claim is based on an assault
theory, the claim is dismissed.
The only other theory of physical abuse that is potentially relevant to plaintiffs
allegations is that defendant engaged in conduct that would constitute menacing
under ORS 163.190. ORS 124.105(1)(b) (an action for physical abuse may be brought
for conduct that would constitute menacing). Menacing occurs when a person "by
word or by conduct . . . intentionally attempts to place another person in fear of
imminent serious physical injury."

ORS 163.190.

Here, plaintiff alleges that

defendant sent her harassing communications "in an effort to terrorize, harass, and

Page 5 - OPINON AND ORDER

intimidate" her and "place her in fear for her physical and emotional safety[.]"
Amend. Compl. ,i 8(b). That bare assertion does not meet federal pleading standards.
Additionally, plaintiff does not allege sufficient factual detail about the
communications to assess whether they were, as plaintiff alleges, intended to place
plaintiff in fear, let alone fear of imminent serious physical injury. Accordingly,
plaintiff has failed to state a claim for physical abuse of a vulnerable person.

B.

Financial Abuse

An action may be brought under ORS 124.100 for financial abuse "[w]hen a
person wrongfully takes or appropriates money or property of a vulnerable person,
without regard to whether the person taking or appropriating the money or property
has a fiduciary relationship with the vulnerable person."

ORS 124.ll0(l)(a).

Defendant argues that plaintiff has not alleged a taking of money or property as
contemplated by Oregon's financial elder abuse laws.
Plaintiff alleges that defendant wrongfully took or appropriated plaintiffs
"identity and property" by (1) accessing plaintiffs email account; (2) logging into "one
or more financial accounts owned by Plaintiff;" (3) using plaintiffs identity "to engage
in presently unknown number [sic] of online transactions[;]" and (4) by harassing her.
Amend. Compl. ,i,i 7-8.
ORS chapter 124 does not define the phrase "takes or appropriates." However,
Oregon courts give the term "take" its "ordinary meaning," which is "to transfer into
one's own keeping [or to] enter into or arrange for possession, ownership, or use of[.]"

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Church v. Woods, 190 Or. App. 112, 117 (2003); Schmidt v. Noonlwster, 287 Or. App.
48, 54 (2017).
As an initial matter, plaintiff does not expressly allege that defendant
committed financial abuse by taking or appropriating her money. To the extent that
plaintiff seeks to allege a direct taking or appropriation, the Amended Complaint does
not state a plausible claim. Plaintiff alleges that defendant accessed her financial
accounts and used her identity to engage in an unknown number of transactions.
Drawing all reasonable inferences in plaintiffs favor, those allegations, at most,
establish that defendant had the ability to transfer or use plaintiffs money, not that
defendant actually did so. To state a claim the factual allegations must present more
than "the mere possibility of misconduct." Iqbal, 556 U.S. at 678.
Plaintiff asserts three theories of financial abuse by "taking or appropriating"
property: (1) defendant "took" plaintiffs interest in their father's trust because the
purpose of her entire course of conduct was to obtain plaintiffs interest in the trust;
(2) defendant "appropriated" her identity by using plaintiffs identity to engage in
online transactions; and (3) defendant "appropriated" that plaintiffs email account
and financial records by using and accessing them, respectively.
Plaintiffs allegations do not establish that defendant "took" plaintiffs interest
m the trust.

Plaintiff alleges that defendant's harassment "constitut[ed] an

arrangement for possession of Plaintiffs property rights in" her father's trust.
Amend. Compl.

,r 8.

That is a legal conclusion that the Court is not bound to accept

as true. Moreover, plaintiffs remaining allegations do not establish that defendant's

Page 7 - OPINON AND ORDER

conduct was such an arrangement. Arrange means to "plan," "make preparations
for," or "come to an agreement, understanding, or settlement." Schmidt, 287 Or. App.
at 55. Although plaintiffs response to the Motion to dismiss argues that defendant's
purpose was to obtain plaintiffs interest in the trust, that purpose cannot reasonably
be inferred from the sparse and vague allegations in the Amended Complaint.
Plaintiffs allegations also do not establish that defendant "appropriated"
plaintiffs property. The Oregon Supreme Court recently defined, in dicta, the phrase
"wrongfully takes or appropriates" as "refer[ring] to the improper acquisition by
another person of the vulnerable person's money or property - such as by fraud,
conversion, or theft." Bates v. Banhers Life & Cas. Co., 362 Or. 337, 344 (2018). A
recent decision from this district relied, in part, on that definition to conclude that
financial abuse claims under ORS 124.ll0(l)(a) involve "the complete acquisition of,
and not mere interference with or improper use of, a vulnerable person's money or
property." Goldingay v. Progressive Casualty Ins. Co., 306 F. Supp. 3d 1259, 1270 (D.
Or. 2018). The court in Goldingay suggested that "interference with a vulnerable
person's right of possession of money or property'' may give rise to a claim if the
interference was "so persistent or severe as to rise to the level of conversion or
wrongful acquisition." Id. That definition of "takes or appropriates" is consistent
with both the ordinary meaning of appropriate and with the term's definition in the
context of Oregon's theft statutes. See Webster's Third New Int'l Dictionary 160
(unabridged ed. 2002) (defining "appropriate" as "to claim or use as ifby an exclusive
preeminent right" and observing that the term "signifies ... to take over or acquire

Page 8 - OPINON AND ORDER

without authority or with questionably authority, usu[ally] also implying a
conversion to one's own use of the thing taken over"); ORS 164.005(1) (defining
"appropriate" as to "[e]xercise control over property of another, ... , permanently or
for so extended a period or under such circumstances as to acquire the major portion
of the economic value or benefit of such property").
Here plaintiff alleges that defendant interfered with her rights in her identity,
email account, and financial accounts, but the Amended Complaint does not allege
sufficient factual content to establish interference with that property that is so
persistent or severe that it is equivalent to a conversion or wrongful acquisition.
Accordingly, plaintiff has failed to state a claim for financial abuse of a vulnerable
person. Because plaintiff also failed to state a claim for physical abuse of a vulnerable
person, plaintiffs claim under ORS 124.100 is dismissed.

II.

Intentional Infliction of Emotional Distress
Intentional infliction of emotional distress requires that, among other things,

a defendant's act constitute an "extraordinary transgression of the bounds of socially
tolerable conduct," which is a question oflaw for the court. McGanty v. Staudenraus,
321 Or. 532, 543 (1995); Harris v. Pameco Corp., 170 Or. App. 164, 171 (2000).
Socially intolerable conduct is conduct that is "outrageous in the extreme." Patton v.

J.C. Penney Co., 301 Or. 117, 124 (1986). Conduct that is merely "rude, boorish,
tyrannical, churlish and mean does not satisfy that standard, ... nor do insults, harsh
or intimidating words, or rude behavior ordinarily ... result in liability even when

Page 9 - OPINON AND ORDER

intended to cause distress." Watte v. Edgar Maeyens, Jr., M.D., P.C., 112 Or. App.
234, 239 (1992) (quotation marks and citations omitted).
Plaintiff argues that whether conduct is socially intolerable is determined
under the totality of the circumstances, which include "whether a special relationship
exists between the defendant and plaintiff' and "whether the conduct was
undertaken for an ulterior purpose or to take advantage of an unusually vulnerable
individual." Rosenthal v. Erven, 172 Or. App. 20, 23-24 (2001). Plaintiff argues that,
in this case, all three factors weigh in favor of concluding that defendant's conduct
was an extraordinary transgression. However, plaintiffs and defendant's sibling
relationship is not the kind of "special relationship" that Rosenthal was referring to.
Instead, a "special relationship" is one where a heightened duty of care is imposed
because of the plaintiffs reliance on defendant, such as the relationship between a
physician and patient, an attorney and client, or a common-carrier and passenger.

Id. at 23. The fact that unkind treatment from a sibling might be especially hurtful
does not elevate the relationship to the level of a "special relationship" for purposes
ofIIED without some additional reliance. Additionally, plaintiffs allegations are too
conclusory and vague to establish that she is an "unusually vulnerable individual."
Finally, plaintiff does not allege enough factual detail about the communications,
account activity, or online transactions to assess whether it was outside the bounds
of what is socially tolerable. Accordingly, plaintiffs IIED is dismissed for failure to
state a claim.

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III.

Computer Fraud and Abuse Act (18 U.S.C. § 1030)
The CFAA is primarily a criminal statute that was enacted to give the federal

government a means to prosecute hacking. United States v. Nosal, 676 F.3d 854, 858
(9th Cir. 2012). However, the CFAA provides for civil liability under certain narrow
circumstances. 18 U.S.C. § 1030(g). Those circumstances include when an individual
intentionally accesses a computer "without authorization or exceeds authorized
access" and obtains "information contained in a financial record of a financial
institution, or of a card issuer" or "contained in a file of a consumer reporting agency
on

a

consumer"

or

"information

from

any

protected

computer[.]"

18 U.S.C. § 1030(a)(2)(A), (C).
Under the CFAA, the term "computer" means a "high speed data processing
device performing logical, arithmetic, or storage functions, and includes any data
storage facility or communications facility directly related to or operating in
conjunction with such device[.]"

18 U.S.C. § 1030(e)(l).

The term "protected

computer" includes any computer "used in or affecting interstate or foreign commerce
or communication, including a computer located outside the United States that is
used in a manner that affects interstate or foreign commerce or communication of the
United States[.]" 18 U.S.C. § 1030(e)(2).
A civil action under the CFAA must also involve one of the forms of harm
described in subsection (c)(4)(A)(i), which include "the modification or impairment, or
potential modification or impairment, of the medical examination, diagnosis,

Page 11- OPINON AND ORDER

treatment, or care of 1 or more individuals" and "physical injury to any person." 18
U.S.C. § 1030(c)(4)(A)(i)(Il), (III).
Plaintiff alleges that, by accessmg plaintiffs email to send plaintiffs
information to spammers, logging into "one or more" of plaintiffs "financial accounts,"
and "using Plaintiffs identity to engage in presently unknown number [sic] of online
transactions[,]" defendant "accessed one or more computers without authorization or
exceeded authorized access, and in doing so, obtained Plaintiffs information stored
on a protected computer or stored in a financial record of a financial institution" in
violation of the CFAA. Amend. Compl.

,r,r

8(a), 19. Plaintiff further alleges that

defendant's conduct caused "physical injury" and "the modification or impairment" of
a "medical examination, diagnosis, treatment, or care" by making plaintiffs medical
conditions worse. Amend. Compl.

if 20.

Although the definitions of the terms "computer" and "protected computer" are
broad enough to encompass email and financial accounts, plaintiffs allegations that
defendant did so "without authorization or exceeding authorized access" and that
defendant "obtained ... information stored on a protected computer" or "in a financial
record of a financial institution" are bare assertions that are not entitled to the
assumption of truth and are not supported by sufficient factual allegations in the
Amended Complaint.

Additionally, plaintiff has not plausibly alleged that

defendant's conduct caused her to suffer a physical injury, nor has plaintiff plausibly
alleged that defendant's poorly-described conduct interfered with plaintiffs medical
examination, diagnosis, treatment, or care. As noted, formulaic recitations of the

Page 12 - OPINON AND ORDER

elements of a claim are not sufficient, nor are legal conclusions. Plaintiff must allege
sufficient facts to state a plausible claim. Accordingly, plaintiff fails to state a claim
under the CFAA and that claim is dismissed.
IV.

Defendant's Motion to Make More Definite and Certain
In the alternative, defendant seeks an order requiring plaintiff to her claims

more definite as to legal theory, facts, and dates of the alleged conduct. Because the
Court agrees with defendant that plaintiffs abuse, IIED, and CFAA claims must be
dismissed and many of these issues should be resolved if plaintiff amends her
complaint to meet the pleading standards under Iqbal, the Court denies defendant's
alternative motion.

CONCLUSION
For the reasons stated above, defendant's partial Motion to Dismiss (doc. 9) is
GRANTED. Plaintiffs claims for abuse of a vulnerable person, IIED, and violation
of the CFAA are dismissed. Defendant's motion for a more definite and certain
statement is DENIED. Plaintiff is granted leave to amend her complaint. Within
thirty (30) days of this order, plaintiff shall file a second amended complaint.

IT IS SO ORDERED.

DATED t h i s ~ ~ f April 2019.

Ann Aiken
United States District Judge

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