The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
EUGENE DIVISION
WILLIAM M. WEISHAMPEL, Case No. 6:18-cv-00429-AA
OPINION & ORDER
Plaintiff,
VS.
CIRCLE OF CHILDREN; CAROLINA
ALLEN; THOMAS PRICE; CHARLES
COXON
Defendants.
AIKEN, District Judge:
Plaintiff Wiliam M. Weishampel filed this suit pro se and in forma pauperis
against defendants Circle of Children, a nonprofit organization, and its board
members Thomas Price, Carolina Allen, and Charles Coxon. Plaintiff held many
positions at Circle of Children, including caretaker, executive director, and board
member. Plaintiff alleges that defendants wrongfully terminated him from those
positions.
Circle of Children, now known as Triangle Lake Center (“TLC”), moves to
dismiss plaintiffs claims. For the reasons stated below, the Motion te Dismiss (doc.
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57) is GRANTED in part and DENIED in part. Additionally, plaintiff is ordered to
amend the Complaint to include the changes he asked for the Court’s leave to make
in his motions to amend (docs. 19-21).
LEGAL STANDARDS
To survive a motion to dismiss under the federal pleading standards, the
complaint must include a short and plain statement of the claim and “contain
sufficient factual matter, accepted as true, to ‘state a claim for relief that is plausible
on its face.” Ashcroft v. Iqbal, 556 U.S, 662, 678 (2009) (quoting Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007)). A complaint is construed in favor of the plaintiff,
and its factual allegations are taken as true, Daniels-Hall v. Nat'l Educ. Ass'n, 629
F.3d 992, 998 (9th Cir. 2010). “Generally, the scope of review on a motion to dismiss
for failure to state a claim is limited to the [cjomplaint[.]’ Jd.
Pro se pleadings are held to less stringent standards than pleadings by
attorneys. Haines v. Kerner, 404 U.S. 519, 520-21 (1972). That is, courts should
construe pleadings by pro se plaintiffs liberally and afford the plaintiffs the benefit of
any doubt. Karim-Panahi v. L.A. Police Dep't, 889 F.2d 621, 623 (9th Cir.1988),
Additionally, a pro se litigant is entitled to notice of the deficiencies in the complaint
and the opportunity to amend, unless the complaint's deficiencies cannot be cured by
amendment. fd.
DISCUSSION
TLC’s Motion asserts that the Complaint should be dismissed because (1) the
claims are time barred; (2) plaintiff fails to state a claim upon which relief can be
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granted; and (3) the Court lacks subject matter jurisdiction over the claims under
Rule 12(b)(1).
I, Subject Matter Jurisdiction
The Court will consider TLC’s Rule 12(b)(1) metion separate from its Rule
12(b}(6) motions. Subject matter jurisdiction grants power to federal courts to hear
a case and can never be waived or forfeited. Gonzalez v. Thaler, 565 U.S. 134, 141
(2012). Courts may consider subject matter jurisdiction at any time sua sponte. Id.
Federal subject matter jurisdiction must be based upon either the presence of a
federal question or on diversity of citizenship. 28 U.S.C, §§ 1881, 1332,
A, Federal Question
To invoke federal question jurisdiction, a plaintiff must plead that the
defendant has vielated some constitutional or federal statutory provision. 28 U.S.C.
§ 1331; Franchise Tax Ed. v. Construction Laborers, 468 U.S. 1, 27-28 (1988).
In this ease, plaintiff cites multiple federal statutes as bases for federal
question jurisdiction. However, many of the statutes cited are criminal statutes that
allow the United States government to prosecute individuals for committing criminal
acts. See Compl. Ex. at 1 (citing 18 U.S.C. § 1028; 18 U.S.C. § 1708; 18 U.S.C, § 2292;
18 U.S.C. § 1622; 10 U.S.C. § 929, Art. 129; 18 U.S.C. § 1623: 18 U.S.C. § 2319(b); 25
C.FR. § 11.401; 25 C.FLR. § 11.429; 43 C.F_R. § 9269.3). These federal criminal
statutes do not generally provide a private right of action. See Cent. Bank of Denver,
N.A. v. First Interstate Bank of Denver, N.A., 511 U.S. 164, 190 (1994),
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Plaintiff also asserts a claim for “wrongful disclosure of individually
identifiable health mnformation” under 42 U.S.C. § 1820(d)(6). Compl. Ex. 1 at 1.
Section 1320(d)(6) is a Social Security statute and does not address disclosure of
sensitive health information.
Next, plaintiff asserts a defamation claim under 28 U.$.C, § 4101, which is a
definition section for a chapter of the United States Code about foreign judgments.
Section 4101 does not provide a cause of action for defamation.
Finally, Plaintiff asserts a copyright claim under 17 U.S.C. § 501, which
provides a cause of action for copyright infringement. Jd. To state a claim for
copyright infringement, a plaintiff must show that they are the legal or beneficial
owner of the exclusive right under a copyright. 17 U.S.C. § 501(b). Plaintiff has not
alleged facts demonstrating that he is the owner of a legal copyright, nor do the facts
of this case suggest that any copyright issues are implicated. Therefore, plaintiff has
failed to state a copyright claim. Because plaintiff has failed to state a federal claim,
the Court concludes that there is no basis for subject matter jurisdiction based on a
federal question.
B. Diversity Jurisdiction
To establish diversity jurisdiction, a plaintiff must show that the parties are
domiciled in different states and that the amount in controversy exceeds $75,000.
28 U.S.C. § 1832(a). An individual is domiciled in a state where the person has
established a “fixed habitation or abode in a particular place, and [intends] to remain
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there permanently or indefinitely.” Lew v. Moss, 797 F.2d 747, 750 (9th Cir. 1986).
Domicile is established at the time at which the lawsuit is filed. Id.
The Complaint asserts diversity as the basis for this Court’s jurisdiction.
Plaintiff states that the amount in controversy is $1,204,016, which exceeds the
$75,000 requirement. Plaintiffs allegations also establish that he was a resident of
California at the time of filing as he used a California address for his mailing address
in the Complaint. Plaintiff alleges that the individual defendants are residents of
Oregon and that TLC is a nonprofit incorporated and based in Oregon. Plaintiff's
allegations are therefore sufficient to establish diversity jurisdiction.
TI, TLC’s Untimely 12(b)(6) Motions
Under Federal Rule of Civil Procedure 12, a motion to dismiss “must be made
before pleading if a responsive pleading is allowed.” Fed. R. Civ. P, 12(b). Rule 12(b)
motions filed after an answer are considered untimely. Aetna Life Ins. Co. v. Alla
Med. Serv,, 855 F.2d 1470, 1474 (9th Cir. 1988}. A motion to dismiss filed after an
answer is treated as a motion for judgment on the pleadings. Aldabe v. Aldabe, 616
F.2d 1089, 1093 (9th Cir, 1980).
A party may move for judgment on the pleadings after the pleadings are
closed, but early enough not to delay trial. Fed. R. Civ. P. 12(c). “Analysis under Rule
12(c) is substantially identical to analysis under Rule 12(b)(6) because, under both
rules, a court must determine whether the facts alleged in the complaint, taken as
true, entitle the plaintiff to a legal remedy.” Prt River Tribe v. Bureau of Land Memt.,
7938 F.8d 1147, 1155 (8th Cir. 2015) (citation and quotation marks omitted).
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Accordingly, "[a] judgment on the pleadings is properly granted when, taking all
allegations in the pleadings as true, the moving party is entitled to judgment as a
matter of law." Owens v, Kaiser Found, Health Plan, Inc., 244 F.3d 708, 718 (Sth Cir.
2001) (quotation marks omitted).
TLC filed its Answer (doc. 23) in June 2018 and then filed this Motion to
Dismiss in April 2019, Because TLC filed this Motion after filing its Answer, the
Motion to Dismiss will be considered as a motion for judgment on the pleadings.
A. Statute of Limitations
TLC asserts that the Complaint is untimely because the statute of limitations
expired before the plaintiff filed his complaint. This motion is relevant only to the
wrongful termination claim. A wrongful termination claim must be brought within
a year of the termination date, whereas the other claims raised by plaintiff have
longer statutes of limitations. See ORS §§ 12.080 (six year limitations period for most
contract claims), 12.110(1) (two year lmitations period for most tert claims),
65.167(4) (one year limitations period for wrongful termination claims),
A statute of limitations defense may be raised in a motion to dismiss if “the
running of the statute is apparent on the face of the complaint.” Von Saher v. Norton
Sunon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th Cir. 2010). “[A] complaint
cannot be dismissed unless it appears beyond doubt that the plaintiff can prove no
set of facts that would establish the timeliness of the claim.” Supermatl Cargo, Inc.
v. United States, 68 F.3d 1204, 1207 (9th Cir.1995).
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There is a dispute as to when plaintiff was actually terminated, The board
initially terminated plaintiff on February 5, 2017, but defendant Carolina Allen
stated in her Answer (doc. 24) that this removal was “not legal”. The board, with the
help of an attorney, then conducted a second termination hearing on March 24, 2017,
where the board voted to “remove [plaintiff]...from the Board as president as well as
executive director (doc. 24).” This creates twe possible dates of termination, only one
of which falls outside of the statute of limitations. As previously noted, a motion to
dismiss for the running of a statute of limitations can only be sustained if the running
of a statute is apparent on the face of the complaint. See Supermatl Cargo, Inc., 68
F.3d at 1207. Because both the plaintiff and defendants recognize a dispute over the
operative date of termination in other pleadings, the motion is DENIED.
B. Fatlure to State a Claim
TLC also moves to dismiss plaintiffs claims for failure to state a claim,
Plaintiffs federal claims are all dismissed, as discussed above, and so the Court
considers whether plaintiff has adequately alleged any state law claim. Plaintiffs
Complaint is not entirely clear, but the Court understands that it alleges claims for
(1) breach of contract; (2) wrongful termination: (3) breach of fiduciary duty; and (4)
intentional infliction of emotional distress. The Court concludes that plaintiff has
failed to adequately plead his state law claims and so TLC’s motion for judgment on
the pleadings for failure to state a claim is GRANTED. However, as discussed in the
following section, plaintiff will be given leave to file an amended complaint to remedy
the deficiencies in these pleadings.
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1. Breach of Contract
Plaintiff alludes to breach of contract regarding his positions as caretaker and
independent contractor for the organization. To plead a breach of contract claim, a
plaintiff must demonstrate (1) the existence of a contract; (2) the relevant terms of
the contract; (8) plaintiffs full performance and lack of breach; and (4) defendant's
breach resulting in damage to plaintiff. Dynamic Measurement Group, Inc, v. Univ.
of Or., 121 F.Supp.3d 1047, 1060 (D. Or. 2015).
The Complaint, as currently pleaded, does not elaborate on any terms of the
contract relevant to the issue at hand, nor does it explain which terms TLC breached
by terminating plaintiffs positions at the nonprofit. The Complaint also does not
demonstrate that plaintiff fully performed the terms of the contract. Plaintiff does
allege that TLC’s breach led to damages through loss of housing and wages but fails
to provide information for the other necessary elements, Therefore, the Court
concludes plaintiff has failed to state a claim for breach of contract.
2. Wrongful Termination
Plaintiff asserts that he was wrongfully terminated from his positions at TLC.
In order to bring a wrongful termination claim, there must be a discharge and it must
be wrongful. Moustachetts v. Oregon, 319 Or. 319, 324 (1994). In general, an
employee may be terminated for any reason, “absent a contractual, statutory or
constitutional requirement[.]” Babick v. Or. Arena Corp,, 333 Or, 401, 407 n, 2 (2002),
Wrongful termination can also occur where the employee was discharged for
“exercising a job-related right of important public interest” or where the employee
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was “complying with a public duty.” Whitley v. City of Portland, 654 F.Supp.2d 1194,
1223 (D. Or. 2009).
Plaintiff has not alleged any facts that suffice any of these theories of wrongful
termination. Therefore, plaintiff has failed to state a wrongful termination claim.
3. Breach of Fiduciary Duty
Plaintiff asserts that TLC owes him a higher duty of care because of his
involvement on the board and in the community, and therefore the Court interprets
a claim for breach of fiduciary duty. A fiduciary duty exists where there has been a
“special confidence reposed in one who in equity and good conscience is bound to act
in good faith and with due regard to the interests of the one reposing the confidence.”
Bennett v. Farmers Ins, Co, of Or,, 150 Ov. App. 63, 80 (1997), To recover for breach
of fiduciary duty, a plaintiff must prove (1) the existence of a spectal fiduciary
relationship between the parties; (2) a breach of the duties arising from the
relationship; and (3) damage resulting from said breach. Giuliano v. Anchorage
Advisors, LLC, 19 F.Supp.3d 1087, 1103 (D. Or. 2014),
Here, plaintiff has failed to demonstrate what special relationship is owed to
plaintiff and what duties TLC breached. Therefore, plaintiff has failed to state a
claim for breach of fiduciary duty.
4, Intentional Infliction of Emotional Distress
Finally, plaintiff alleges that he suffered great community and financial loss
because TLC removed him from his positions and refused mediation requested by
members of the community, which the Court interprets as a claim for intentional
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infliction of emotional distress (“TIED”). When analyzing an I[ED claim, courts
consider whether (1) defendant intended or were substantially certain that their
actions would cause severe emotional distress; (2) defendant’s conduct was
“extraordinarily beyond the bounds of socially tolerable behavior”; and (3) defendant's
conduct did in fact cause plaintiff severe emotional distress. House v. Hicks, 218 Or.
App. 348, 357-58 (2008). Determining whether the defendant’s conduct is beyond the
bounds of socially tolerable behavior is a question of law for courts to resolve. Tenold
Weyerhauser Co., 127 Or. App. 511, 513 (1994).
While plaintiff does allege that TLC’s board was incorrect in the manner of his
termination, the termination alone and lack of communication afterward does not
constitute an “extraordinary transgression” from how any other entity would treat a
terminated employee. Plaintiff has therefore failed to state a claim for WED.
Il, Plaintiff Ordered to Amend the Complaint
Plaintiff previously filed a series of Motions to Amend (does. 18-21). The Court
granted the motions and ordered plaintiff to file an Amended Complaint (doc. 33).
The Court then vacated all deadlines (doc. 87) to allow the parties to engage in
settlement negotiations. The Court ordered the parties to inform the Court whether
new case deadlines should be set.
TLC’s Motion demonstrates that the parties did not settle, and that TLC
wishes to proceed with litigation. However, the parties did not inform the Court that
new deadlines should be set, Accordingly, plaintiff is ordered to file an amended
complaint to include the changes requested in his previous motions,
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Plaintiff should also amend the Complaint te correct the deficiencies in his
claims, as addressed in the previous section. Many of the deficiencies in plaintiffs
state law claims could easily be remedied by the allegation of additional facts,
Federal Rule of Civil Procedure 15 provides that courts should be liberal in granting
leave to amend, especially when the plaintiffis pro se. Fed. R. Civ. P. 15(a)(2); Karim-
Panaht, 839 F.2d at 628.
Accordingly, dismissal of plaintiffs complaint shall be with leave to amend.
Plaintiff shall have thirty (80) days in which to file an amended complaint.
CONCLUSION
For the reasons set forth above, defendant TLC’s motion to dismiss for lack of
jurisdiction is DENIED. Defendant TLC’s Motion to Dismiss, which the Court
interprets as a motion for judgment on the pleadings, is GRANTED in part and
DENIED in part. Plaintiffis ordered to file an amended complaint to incorporate the
changes he requested in his motions to amend, as well as to address the issues
brought up in this Opinion and Order. Plaintiff shall have thirty (30) days in which
to file an amended complaint. Plaintiff advised that failure to file an amended
complaint withm the allotted time will result in the entry of a judgment of dismissal.
IT IS SO ORDERED.
Dated this SPA September 2019.
‘
ANN AIKEN
United States District Judge
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