Woody v. Fred Meyer Stores, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

SAMANTHA WOODY, APRIL ALLEN, No. 3:22-cv-01800-HZ

DELIA CRUZ, CANDICE TRENT, and

NICOLE URVINA, OPINION & ORDER

Plaintiffs,

v.

FRED MEYER STORES, INC.,

Defendant.

Richard B. Myers

Bennett Hartman, LLP

210 SW Morrison St, Ste 500

Portland, OR 97204

Attorney for Plaintiffs

April L. Upchurch Fredrickson

Edward Choi

Matthew A. Tripp

Miller Nash LLP

111 SW 5th Ave, Ste 3400

Portland, OR 97204

Sasha A. Petrova

Steven M. Wilker

Tonkon Torp LLP

888 SW 5th Ave, Ste 1600

Portland, OR 97204

Attorneys for Defendant

HERNÁNDEZ, District Judge:

Plaintiffs sued Defendant Fred Meyer Stores for failure to pay wages, unlawful

deductions from wages, and an equitable accounting. First Am. Compl. (“FAC”), ECF 5.

Defendant moves for judgment on the pleadings on Plaintiffs’ claims for unlawful deductions

and an equitable accounting. Def. Mot., ECF 18. For the following reasons, the Court grants the

motion in part and denies it in part.

BACKGROUND

This putative class action arises out of Defendant’s activation of new human resources

program and payroll system in September 2022. FAC ¶ 19. Plaintiffs are current and former

employees of Defendant who allege that the new payroll system “caused widespread pay errors

for Plaintiffs” and other prospective class members. Id. ¶ 20. Plaintiffs allege that the class has

over 10,000 members. Id. ¶ 11. The alleged errors include missing or late paychecks; canceled

direct deposits of wages; missing, reduced, or inaccurately recorded work hours on paychecks;

reduced wage rates; reduced or missing supplemental pay; reduced or missing leave banks;

incorrect or unauthorized deductions or withholdings from wages; incorrect or missing

statements of deductions or withholdings; and delayed disbursement of deductions or

withholdings to the appropriate recipients. Id. ¶ 20. Plaintiffs allege that Defendant knew or

should have known that the new payroll system would cause widespread pay errors, and that

Defendant “did not conduct adequate planning and testing” to ensure accurate payroll after

activation. Id. ¶ 22.

Plaintiffs allege that many employees went weeks without pay, and that Defendant “has

given some employees a limited number of prepaid debit cards and gift cards that can only be

used at Fred Meyer stores.” Id. ¶ 23. Plaintiffs allege that the cards “do not reflect the amounts of

wages actually owed to the employees,” and that most employees have not received any such

cards. Id. Plaintiffs allege that some employees have had to get payday loans. Id. Some

employees have not been able to access public benefits because they did not have accurate

statements of their wages. Id. ¶ 24.

Plaintiffs filed their original Complaint on November 17, 2022. ECF 1. They filed the

FAC on December 1, 2022. Plaintiffs bring four claims for relief: failure to pay all wages at

regular paydays under O.R.S. 652.120 (claim 1); failure to pay all wages at termination under

O.R.S. 652.140 and 652.150 (claim 2); unauthorized withholding of wages under O.R.S. 652.610

and 652.615 (claim 3); and an equitable accounting of wages (claim 4). FAC ¶¶ 29-54.

Defendant answered the FAC on January 4, 2023. ECF 7. Defendant filed the present motion on

November 17, 2023, seeking judgment on the pleadings on the third and fourth claims only.

Discovery in this case is set to be completed by February 28, 2024, and dispositive motions are

due on April 26, 2024. ECF 23.

STANDARDS

“After the pleadings are closed—but early enough not to delay trial—a party may move

for judgment on the pleadings.” Fed. R. Civ. P. 12(c). “[T]he same standard of review applicable

to a Rule 12(b) motion applies to its Rule 12(c) analog,” because the motions are “functionally

identical.” Dworkin v. Hustler Mag., Inc., 867 F.2d 1188, 1192 (9th Cir. 1989). In reviewing a

motion brought under Rule 12(c), the court “must accept all factual allegations in the complaint

as true and construe them in the light most favorable to the non-moving party.” Fleming v.

Pickard, 581 F.3d 922, 925 (9th Cir. 2009). The court will grant a motion for judgment on the

pleadings if there is no issue of material fact in dispute, and the moving party is entitled to

judgment as a matter of law. Id. A Rule 12(c) motion may be based on either (1) the lack of a

cognizable legal theory, or (2) insufficient facts to allege a cognizable claim. See Godecke v.

Kinetic Concepts, Inc., 937 F.3d 1201, 1208 (9th Cir. 2019).

A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the

“grounds” of his or her “entitlement to relief” with nothing “more than labels and conclusions,

and a formulaic recitation of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550

U.S. 544, 555 (2007) (brackets omitted). “Factual allegations must be enough to raise a right to

relief above the speculative level on the assumption that all the allegations in the complaint are

true (even if doubtful in fact)[.]” Id. (citations and footnote omitted). “To survive a motion to

dismiss, a complaint must contain sufficient factual matter, accepted as true, to state a claim to

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation

marks omitted). A plaintiff must “plead[] factual content that allows the court to draw the

reasonable inference that the defendant is liable for the misconduct alleged.” Id. In other words, a

complaint must state a plausible claim for relief and contain “well-pleaded facts” that “permit the

court to infer more than the mere possibility of misconduct[.]” Id. at 679.

DISCUSSION

The Court concludes that Plaintiffs’ third claim for relief states a cognizable claim, and

Defendant is entitled to judgment on the pleadings on Plaintiffs’ third claim only to the extent

that Plaintiffs seek relief that is not permitted under the statute. The Court also concludes that

Defendant is entitled to judgment on the pleadings on Plaintiffs’ fourth claim for relief to the

extent that Plaintiffs base the claim on a fiduciary relationship, but not to the extent that the

claim is based on the complexity of the accounts in this case.

I. Third Claim for Relief

A. Claim under O.R.S. 652.610

In their third claim for relief, Plaintiffs argue that Defendant “impermissibly withheld,

deducted, or diverted wages” and failed to provide “accurate itemized statements showing funds

withheld, deducted, or diverted,” in violation of O.R.S. 652.610. FAC ¶¶ 44-45. Defendant

argues that it is entitled to judgment on the pleadings on this claim because the statute does not

cover “payroll errors or miscalculations.” Def. Mot. 5.

The statute instructs that covered employers “shall provide the employee on regular

paydays and at other times payment of wages, salary or commission is made, with an itemized

statement as described in paragraph (b) of this subsection.” O.R.S. 652.610(1)(a). The statement

must include basic information, including but not limited to the date of payment, dates of work,

the employee’s name, the rate(s) of pay, gross and net wages, and “[t]he amount and purpose of

each deduction made during the respective period of service that the payment covers[.]” O.R.S.

652.610(1)(b). The statute also provides that “[a]n employer may not withhold, deduct or divert

any portion of an employee’s wages unless” one of the conditions specified by the statute is met.

O.R.S. 652.610(3).

Defendant points to caselaw involving “an affirmative subtraction from an employee’s

wages—typically manifested as a set amount or percentage deducted post-calculation of

wages—reflecting an employer’s decision to reduce an employee’s total pay for various reasons,

such as benefits contributions, garnishments, or recoupments.” Def. Mot. 6. Defendant relies on

a case in which a court in this district concluded that O.R.S. 652.610 did not cover a claim for

failure to pay overtime wages. Id. at 6-7 (citing Sears v. Blackwell’s N. Am., Inc., 2005 WL

2663504 (D. Or. Oct. 18, 2005)). Defendant also relies on the text, context, and legislative

history of the statute to argue that it was not intended to cover the present situation. Id. at 7-17.

Plaintiffs counter that “a claim under ORS 652.615 does not depend on whether the employer’s

violation was knowing or willful.” Pl. Resp. 2, ECF 21. They argue that Defendant ignores the

allegations in the FAC and “attempts to recast this dispute as a case of unintentional and

inadvertent miscalculations.” Id. at 3.

Plaintiffs are correct that the FAC does not allege a purely inadvertent error. The FAC

alleges that Defendant knew or should have known that the new payroll system would cause

errors and did not adequately plan or test it to ensure accurate payment of wages before

activating it. FAC ¶ 22. While this case is different from one in which an employer decides to

withhold part of the plaintiff’s wages for a bond, see Taylor v. Werner Enterprises, Inc., 329 Or.

461, 988 P.2d 384 (1999), Defendant mischaracterizes the FAC to the extent it characterizes its

actions as purely inadvertent or unknowing.

Defendant also appears to conflate Plaintiffs’ claims for unpaid wages with the claim for

improper deductions. Defendant distinguishes between deductions from gross pay and “‘above-

the-line’ payroll discrepancies such as miscalculations of hours worked or pay rates[.]” Def. Mot.

9-10. But the FAC alleges that the pay errors caused by the new payroll system included both

reduced wages and incorrect or unauthorized deductions or withholdings from wages. FAC ¶ 20.

Plaintiffs have brought different claims for failure to pay wages. FAC ¶¶ 29-42. The third claim

for relief refers to withholdings and deductions, not failure to pay wages. Id. ¶¶ 43-49. The Court

interprets Plaintiffs’ third claim to address only the withholdings and deductions, not the failure

to pay wages, which is covered by the first two claims.

When the FAC is interpreted this way, Defendant’s remaining argument is that because it

did not intend or desire to cause the erroneous deductions, it cannot be liable as a matter of law.

The Court rejects this reasoning. The FAC alleges that the wrongful deductions arose from

Defendant’s choice to activate the new payroll system, and that Defendant activated that system

with knowledge that it was not ready and would cause errors. Defendant then issued paychecks

that improperly withheld or deducted portions of employees’ wages. It is reasonable to infer

from the FAC that even if Defendant did not know that a particular deduction in a particular

paycheck was improper, it deliberately issued paychecks knowing that the payroll system was

causing erroneous deductions. In short, although Defendant did not intend to make the improper

deductions, it knowingly took actions that virtually guaranteed such deductions would occur.

The Court does not read the statute to require that the employer intend or desire that the

deduction or withholding occur. The Oregon Supreme Court has prescribed a three-step process

for statutory interpretation. First, the court should consider the text and context of the statute.

State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009). Second, “a party is free to proffer

legislative history to the court, and the court will consult it after examining text and context, even

if the court does not perceive an ambiguity in the statute’s text, where that legislative history

appears useful to the court’s analysis.” Id. at 172. Third, “[i]f the legislature’s intent remains

unclear after examining text, context, and legislative history, the court may resort to general

maxims of statutory construction to aid in resolving the remaining uncertainty.” Id.

Defendant correctly points out that the statute does not define “withhold,” “deduct,” or

“divert.” Def. Mot. 8. Defendant offers both standard dictionary definitions of these terms and

definitions from Black’s Law Dictionary. Id. at 8-9. Plaintiffs do not contest the proffered

definitions or offer an alternative. The Court finds Defendant’s definitions reasonable. Under

those definitions, to “withhold” is “‘to hold back’ or ‘to desist or refrain from granting, giving, or

allowing : keep in one’s possession or control : keep back.’” Id. at 8 (citing Webster’s Third New

Int’l Dictionary 2627 (unabridged ed. 2002)). To “deduct” is “‘to take (an amount) away from a

total : take off : REMOVE <the tax is ~ed from the paycheck>.’” Id. at 9 (citing Webster’s Third

New Int’l Dictionary 589 (unabridged ed. 2002)). Finally, to “divert” is “‘to turn from one

course, direction, objective, or use to another (<~tax money to his own pocket>).’” Id. (citing

Webster’s Third New Int’l Dictionary 663 (unabridged ed. 2002)). These definitions require a

conscious act. While Defendant argues that these terms “reflect calculated and deliberate

reductions to an employee’s total wages,” Def. Mot. 9, the dictionary definitions to not require

that level of intent. At least with respect to “withhold” and “deduct,” they do not require a

particular intent or desire. The text of O.R.S. 652.610(3) does not support Defendant’s position.

In support of its position, Defendant relies on Sears. Def. Mot. 10. In Sears, another court

in this district held that unpaid overtime wages did not constitute an unauthorized deduction from

gross wages under O.R.S. 652.610. 2005 WL 2663504, at *1. Sears does not apply here because,

as discussed above, Plaintiffs’ third claim addresses deductions from wages, not failure to pay

wages. Defendant’s reliance on Sears and the other cases it cites, see Def. Mot. 10-11, is based

on a mischaracterization of Plaintiffs’ claim.

With respect to the context of the statute, Defendant points out that the provision

requiring an itemized statement of wage information requires the employer to include “[t]he

amount and purpose of each deduction” from the employee’s wages. Def. Mot. 11-12 (citing

O.R.S. 652.610(1)(b)(J)). Defendant argues that this language regarding the purpose of a

deduction “necessarily implies a conscious, deliberate subtraction from an employee’s wages[.]”

Id. at 12. Plaintiffs counter that “[n]o court has held that ORS 652.610 includes such a

requirement of intent.” Pl. Resp. 10. The Court also observes that O.R.S. 652.610(3) does not

refer to purpose in stating the general rule barring withholding, deduction, or diversion of wages;

rather, it prohibits deductions unless they meet one of the exceptions listed. This indicates that

the deduction is improper unless it has a proper purpose, not that a deduction made without

purpose is outside the coverage of the statute.

Plaintiffs also rely on Gessele v. Jack in the Box, Inc., 427 F. Supp. 3d 1276, 1305-06 (D.

Or. 2019). In Gessele, the district court held that the defendant employer improperly over-

withheld the plaintiffs’ contributions to a workers benefit fund. Id. at 1304. The defendant

conceded that this over-withholding violated O.R.S. 652.610(3). Id. at 1304-05. The defendant

argued that it did not act willfully because the over-withholding was a result of an error in its

payroll software. Id. at 1306. The court concluded that the defendant acted willfully because the

record showed that the defendant was aware of the change in the assessment rate for the fund but

failed to adjust the assessment rate for employees. Id. Defendant argues that Gessele does not

resolve the question of what constitutes a withholding or deduction because the employer

conceded the issue. Def. Reply 2 n.1, ECF 24. While Defendant is correct that the issue was not

litigated in Gessele, the Court still finds the case instructive. Gessele shows that an employer

cannot rely on software errors to disclaim responsibility for its actions where those errors are

ultimately traceable to the knowing acts or omissions of the employer. The FAC alleges that

Defendant’s activation of the new payroll software, with knowledge that it was not ready to be

activated, caused the improper deductions.

Defendant argues that the requirement “to timely remit deductions to the appropriate

recipients, further demonstrat[es] the legislature’s intent to limit the statute to deliberate

subtractions for particular purposes.” Def. Mot. 12. Defendant points to provisions covering

deductions authorized for contribution to charitable organizations or union dues. Id. (citing

O.R.S. 652.610(5)(a)-(b)). Defendant states, “The inclusion of these provisions demonstrates that

the Legislature intended ORS 652.610 to apply to actions that purposefully redirect a portion of

an employee’s wages to another recipient—for example, a charity or a union—and not to

inadvertent or unknown payroll errors of the sort alleged by Plaintiffs in this case.” Id. Plaintiffs

counter that “[t]he text of ORS 652.610(3) makes clear that it is intended to guard against all

unauthorized withholding of wages, not just deductions for the benefit of third parties.” Pl. Resp.

9. As Plaintiffs point out, courts have found violations of the statute where the employer, rather

than a third party, kept the funds. Id. at 9-10 (citing Nash v. Res., Inc., 982 F. Supp. 1427, 1438

(D. Or. 1997) (employer withheld portions of employee’s paycheck because of employee’s poor

performance and kept the funds)). Defendant does not dispute this. Def. Reply 6. Defendant

argues that the requirement “to timely remit payments to intended recipients, however, would

make little sense if paragraph (3) extended to inadvertent or unknown payroll errors of the sort

alleged by Plaintiffs in this case.” Id. This, again, relies on Defendant’s characterization of its

actions as inadvertent, which is not what the FAC alleges. The context of the statute does not

support Defendant’s argument that the restriction on withholdings and deductions only applies to

deductions the employer desired or intended to bring about. It reflects an expectation that such

deductions will be the most common, but it does not exclude other types of deductions.

Finally, Defendant provides a thorough discussion of the legislative history of O.R.S.

652.610. Def. Mot. 13-16. This discussion, however, relies on Defendant’s characterization of its

conduct as an inadvertent error and a failure to pay wages. The FAC alleges knowing or

intentional acts by Defendant that caused the issuance of paychecks with improper deductions or

withholdings of pay. The legislative history does not change the Court’s conclusion. The Court

declines to hold at this point in the case that Plaintiffs cannot, as a matter of law, state a claim for

violation of O.R.S. 652.610(3).

B. Scope of Relief Under O.R.S. 652.615

Defendant asserts that Plaintiffs’ recovery for violations of O.R.S. 652.610 is limited to

the greater of either actual damages or a sum of $200 per person. Def. Mot. 17-19. The FAC

states, “Pursuant to ORS 652.615, Plaintiffs and members of the Class are entitled to recover

actual damages or a statutory penalty of $200, whichever is greater, for each impermissible

withholding, deduction, or diversion from wages.” FAC ¶ 48.

O.R.S. 652.615 creates a private cause of action for violations of O.R.S. 652.610(3) and

states that the relief may be either “actual damages or $200, whichever is greater.” Although

Oregon appellate courts have not interpreted this provision, courts in this district, including this

Court, have consistently held that a plaintiff is limited to either actual damages or a recovery of

$200 per type of violation, not $200 per successive occurrence of the same type of violation of

O.R.S. 652.610. Brinkman v. ABM Onsite Servs. - W., Inc., 383 F. Supp. 3d 1120, 1127 (D. Or.

2019); Gessele v. Jack in the Box, Inc., 427 F. Supp. 3d 1276, 1326 (D. Or. 2019) (adopting

Brinkman); Albiston v. Three Leaves, LLC, No. 6:22-CV-01284-AA, 2023 WL 3375850, at *3

(D. Or. May 11, 2023) (adopting Brinkman); Stavrum v. NW Precision Constr. LLC, No. 3:21-

CV-01761-SB, 2022 WL 16798577, at *6 (D. Or. Oct. 14, 2022) (adopting Brinkman), findings

and recommendation adopted, No. 3:21-CV-01761-SB, 2022 WL 16782688 (D. Or. Nov. 7,

2022); Gessele v. Jack in the Box, Inc., No. 3:14-CV-01092-HZ, 2023 WL 2707364, at *4 (D.

Or. Mar. 30, 2023) (applying Brinkman).

Defendant relies on Brinkman to argue that Plaintiffs seek more than the statute

permits—namely, the sum of $200 for each wrongful withholding or deduction. Def. Mot. 17-18.

Plaintiffs respond that their pleading is proper and that Defendant is misconstruing the FAC. Pl.

Resp. 5-6. Although Plaintiffs argue that Defendant has “manufacture[d] a contradiction,” the

text of the FAC appears to seek relief that courts in this district have concluded is not available.

Plaintiffs provide no argument against Brinkman and indeed rely on the case in their brief. Pl.

Resp. 6. To the extent that Plaintiffs seek multiple recoveries of $200 for successive occurrences

of the same improper deduction for the same individual, such relief is unavailable. But if a

plaintiff suffered different types of violation of O.R.S. 652.610(3), that plaintiff can recover

either actual damages or $200 for each type of violation. Brinkman, 383 F. Supp. 3d at 1127.

II. Fourth Claim for Relief

Plaintiffs’ fourth claim seeks an equitable accounting. FAC ¶¶ 50-54. Plaintiffs base the

claim on an alleged fiduciary relationship between the parties and the complexity of the pay

discrepancies. Id. ¶¶ 52-54. Defendant argues that Plaintiffs are not entitled to an equitable

accounting because they have not adequately alleged a fiduciary relationship and because they

have an adequate remedy at law. Def. Mot. 19-23. The Court concludes that Defendant is right

on the first point, but the second argument is premature, and Plaintiffs may be entitled to an

accounting based on the complexity of the accounts.

Defendant correctly states that “[a]n equitable accounting is ‘a bookkeeping process

whereby debits and credits are balanced or a balance of mutual accounts is struck.’” Id. at 19

(citing Carey v. Hays, 243 Or. 73, 79, 409 P.2d 899 (1966) (en banc)). The Oregon Supreme

Court has described several alternative bases on which a party may be entitled to an equitable

accounting. These include (1) the existence of a trust; (2) the existence of a fiduciary relationship

between the parties; (3) the accounting is incidental to other equitable relief; and (4) “the account

is so complex that justice cannot be done without resort to the superior equipment of the equity

court.” Flaherty v. Bookhultz, 207 Or. 462, 466-67, 291 P.2d 221 (1955), adhered to on

reh’g, 207 Or. 462, 297 P.2d 856 (1956), holding modified on other grounds by Schroeder v.

Schaefer, 258 Or. 444, 483 P.2d 818 (1971). Some courts in this district have phrased the rule in

a manner that could be interpreted to require the presence of all four bases. See Swango v.

Nationstar Sub1, LLC, 292 F. Supp. 3d 1134, 1146 (D. Or. 2018) (citing Brown’s Indus., Inc. v.

Snow Mountain Pine Co., No. 87-cv-1119-FR, 1989 WL 142411, at *22 (D. Or. Oct. 26, 1989)).

These cases relied on Flaherty, which discusses the four bases as alternatives, and the Court

treats them accordingly. Only the second and fourth bases are relevant here.

Defendant first argues that Plaintiffs have failed to allege a cognizable fiduciary

relationship. Def. Mot. 20-21. No fiduciary duties are implied “unless the parties are in a ‘special

relationship’” under Oregon law. Bennett v. Farmers Ins. Co. of Oregon, 332 Or. 138, 160, 26

P.3d 785 (2001) (citing Conway v. Pacific Univ., 324 Or. 231, 237, 924 P.2d 818 (1996)). A

special relationship exists when one party “ha[s] some obligation to pursue the interests of the

other party.” Conway, 324 Or. at 237. “[T]he party who is owed the duty effectively has

authorized the party who owes the duty to exercise independent judgment in the former party’s

behalf and in the former party’s interests.” Id. at 240. Examples of special relationships include

the relationships between lawyers and clients, doctors and patients, and agents and principals. Id.

at 239-40. In Conway, the Oregon Supreme Court held that the employer-employee relationship

between the plaintiff professor and defendant university was not a special relationship, noting

that the parties were each pursuing their own interests at the relevant time. Id. at 243. See also

Vanderselt v. Pope, 155 Or. App. 334, 340 n.2, 963 P.2d 130 (1998) (reaffirming that

“employment, in and of itself, does not create a ‘special relationship’”).

Plaintiffs have not adequately alleged facts from which a jury could find a special

relationship between the parties. Plaintiffs’ allegation that such a relationship exists, FAC ¶ 52, is

a legal conclusion not entitled to be taken as true. The well-pleaded facts in the FAC describe an

ordinary employer-employee relationship, which is not a special relationship. In arguing that an

employer-employee relationship can constitute a fiduciary relationship, Plaintiffs rely on

factually distinct cases that confirm no such relationship is present here. See Pl. Resp. 14-15.

First is Parr v. Forest River, Inc., in which a district court in Texas held that the defendant

employer had adequately pleaded that the plaintiff employee owed it a fiduciary duty when the

defendant alleged that the plaintiff had more responsibility to manage the defendant’s operations

in Texas than anyone else at the company. No. W:14-CV-354, 2014 WL 12588299, at *3 (W.D.

Tex. Nov. 17, 2014). Similarly, in Wolfe Financial Inc. v. Rodgers, a district court in North

Carolina explained that although North Carolina law generally does not find an employer-

employee relationship to constitute a fiduciary relationship, there is an exception “when an

employer reposes such confidence in an employee that the employee exercises domination and

influence over the employer[.]” No. 1:17CV896, 2019 WL 203183, at *13 (M.D.N.C. Jan. 15,

2019), report and recommendation adopted, No. 1:17CV896, 2019 WL 2465218 (M.D.N.C.

Feb. 1, 2019). Finally, in Rodrick v. Danieli Corp., a district court in Ohio stated that an

employer could owe a fiduciary duty to its employees when administering pension plans or

insurance benefits, but normally would owe no such duty for general employment matters. No.

4:06CV0982, 2006 WL 8454334, at *6 (N.D. Ohio July 12, 2006). The FAC alleges no

circumstances similar to these cases. And Plaintiffs cite no Oregon cases supporting the

existence of a fiduciary relationship. They fail to plead the existence of a fiduciary relationship.

However, the FAC adequately pleads that the accounts in this case may be sufficiently

complex that they should be resolved by the Court rather than a jury. “A court of equity may

assume jurisdiction of a case in which an accounting is sought even though the defendant is not a

fiduciary, provided it satisfactorily appears that the account is so complex that justice can not be

done without resort to the superior equipment of an equity court.” Huebener v. Chinn, 186 Or.

508, 530, 207 P.2d 1136 (1949). See Thompson v. Coughlin, 329 Or. 630, 639-40, 997 P.2d 191

(2000) (favorably citing Huebener); Prehall v. Weigel, 232 Or. App. 148, 159, 221 P.3d 157

(2009) (stating that claims for an accounting based on the complexity of the account sound in

equity). Plaintiffs allege widespread, ongoing, and varied payroll errors affecting a class of

potentially 10,000 members. Plaintiffs also allege that Defendant has been unable to account for

the discrepancies in pay. FAC ¶ 53. Although Defendant suggests that Plaintiffs should be able

to obtain the necessary information through discovery, Def. Mot. 22, the Court concludes that it

is premature to dismiss Plaintiffs’ claim. After the close of discovery, Defendant may move for

summary judgment on this claim on the basis that discovery has revealed the amounts due and

owing. It is premature to conclude that Plaintiffs have an adequate remedy at law.

In sum, the Court declines to dismiss Plaintiffs’ fourth claim for relief to the extent it

relies on the complexity of the accounts. The Court dismisses the claim to the extent it relies on a

fiduciary relationship. In their response, Plaintiffs state, “[a]lthough not strictly a fiduciary

relationship, the circumstances alleged in this case are the type of relationship of trust and

dependence that gives rise to a fiduciary duty.” Pl. Resp. 15. Plaintiffs are incorrect. And they

cite no new facts supporting their assertion that a fiduciary relationship existed. The Court

therefore declines to grant leave to amend and instead will permit Plaintiffs to move for leave to

amend the FAC within 14 days.

CONCLUSION

Defendant’s Motion for Judgment on the Pleadings [18] is GRANTED IN PART and

DENIED IN PART. Plaintiffs may submit a motion for leave to amend the First Amended

Complaint, attaching a proposed Second Amended Complaint, within 14 days.

IT IS SO ORDERED.

DATED: ___J_a_n__u_a_ry_ _2_4_,_ 2_0__2_4_____.

______________________________

MARCO A. HERNÁNDEZ

United States District Judge