Anderson v. Central Point School Dist. No. 6

• Decision Date: 16 November 1982
• Docket Number: Civ. No. 81-6155-ME-RE.
• Citation: 554 F. Supp. 600
• Parties: Jerry L. ANDERSON, Plaintiff, v. CENTRAL POINT SCHOOL DISTRICT NO. 6, a municipal corporation, Defendant. Rod GROSHONG, in his individual and official capacities, Defendant and Counter-Claimant, v. OREGON EDUCATION ASSOCIATION, Defendant as to the Counterclaim.
• Court: U.S. District Court — District of Oregon

554 F. Supp. 600

Jerry L. ANDERSON, Plaintiff, v. CENTRAL POINT SCHOOL DISTRICT NO. 6, a municipal corporation, Defendant.

Rod GROSHONG, in his individual and official capacities, Defendant and Counter-Claimant, v. OREGON EDUCATION ASSOCIATION, Defendant as to the Counterclaim.

Civ. No. 81-6155-ME-RE.

United States District Court, D. Oregon.

November 16, 1982.

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Robert D. Durham, Kulongoski, Heid, Durham & Drummonds, Eugene, Or., for plaintiff and defendant as to the counterclaim.

Mark C. McClanahan, Jeffrey B. Millner, Miller, Nash, Yerke, Wiener & Hager, Portland, Or., for defendant and counter-claimant.

OPINION

REDDEN, District Judge:

I. BACKGROUND

Plaintiff Jerry L. Anderson sues to redress defendants' alleged violation of his constitutional rights under the First and Fourteenth Amendments to the United States Constitution and under Article I, Sections 8 and 20 of the Oregon Constitution. He seeks declaratory and injunctive relief, damages and attorneys' fees. Jurisdiction is based on 28 U.S.C. §§ 1331, 1343 and 2201 and 42 U.S.C. § 1983 (1981). Plaintiff urges pendent jurisdiction over the state constitutional claims.

On February 11, 1981 plaintiff was a teacher-coach employed by defendant school district. Defendant Central Point School District No. 6 is a municipal corporation organized under Oregon law. Codefendant Rod Groshong was superintendent of the district. The Oregon Education Association is joined as a defendant for the purpose of a counterclaim filed by Groshong and the Central Point School District. Plaintiff alleges that defendants denied his civil rights by relieving him of his coaching duties as a disciplinary action based upon his writing and sending a February 11, 1981 letter to the members of the District school board. The letter contained plaintiff's suggestions concerning the athletic policies and programs of the district.

In a subsequent March 3, 1981 letter, defendant Groshong informed Anderson that Anderson's letter violated Board policy, Oregon Administrative Rules and the National Education Association Committee on Professional Ethics Code. Groshong informed Anderson that "it is my considered opinion that athletics at Crater High School are not benefited with you as a member of the coaching ranks. Hereafter, you will not be assigned a coaching role in School District 6." Exhibit E, Pretrial Order.

Plaintiff filed this action April 24, 1981 and moved for a preliminary injunction. On June 1, 1981, Judge Hogan granted the preliminary injunction ordering defendants to "cease and desist from according any weight to the fact that plaintiff sent a letter on February 11, 1981, to the district school board in any coaching decision, ...."

On May 12, 1982, Judge Hogan granted defendant Groshong leave to file an omitted counterclaim and to add the Oregon Education Association (OEA) as a defendant. The counterclaim alleges a common law tort of abuse of process by plaintiff and OEA. On June 24, 1981, Anderson and OEA moved this court to abstain from exercising jurisdiction over the counterclaim, or, in the alternative, to dismiss the counterclaim under Fed.R.Civ.P. 12(b)(6).

On September 17, 1982, plaintiff moved for partial summary judgment on the issue of the defendants' liability. On September 20, 1982, the defendants moved for partial summary judgment on the issue of damages claimed by plaintiff as well as on the issue of Groshong's good faith immunity defense. Defendants also moved the court to abstain from exercising pendent jurisdiction over plaintiff's claims under the Oregon Constitution. Finally, defendants filed motions in limine to prohibit plaintiff from making any reference to the preliminary injunction, the pending counterclaim and the amendment to the District's channels policy. I had earlier advised the parties that the counterclaim, if not dismissed, would be bifurcated for trial purposes.

II. DISCUSSION

A. Plaintiff's Motion to Abstain or Dismiss

Plaintiff Anderson and counterclaim defendant OEA move the court to decline to exercise pendent jurisdiction over the counterclaim. In the alternative, they moved to dismiss the counterclaim for failure to state a claim upon which relief can be granted.

Defendant Groshong counters by contending that the counterclaim is compulsory under Fed.R.Civ.P. 13(a) and, therefore, ancillary, not pendent, jurisdiction applies. He further argues that the 12(b)(6) motion should be denied because he has alleged the necessary elements of the tort of abuse of process.

I conclude that the counterclaim is permissive, rather than compulsory. The rule on compulsory counterclaims provides that a party shall state, as a counterclaim, any claim "the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party's claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction." Fed.R.Civ.P. 13(a). The term "transaction" is construed liberally to mean claims that are logically related. Moore v. New York Cotton Exchange, 270 U.S. 593, 46 S.Ct. 367, 70 L.Ed. 750 (1926). I hold that the abuse of process claim is not logically related to Anderson's first amendment claim.

Anderson's claim is that he was disciplined for exercising his first amendment rights; Groshong's abuse of process claim is that Anderson's present action is not for the legitimate purpose of recovering damages, but for the collateral purpose of coercing the district into accepting a proposed collective bargaining agreement. The two claims require different proof and have different factual bases. Bose Corp. v. Consumers Union of United States, Inc., 384 F.Supp. 600 (D.Mass.1974). Accord, Cochrane v. Iowa Beef Processors, 596 F.2d 254, 262 (8th Cir.1979), cert. denied, 442 U.S. 921, 99 S.Ct. 2848, 61 L.Ed.2d 290.

Permissive counterclaims, unlike compulsory counterclaims, require an independent basis of jurisdiction. I find that I have pendent jurisdiction over the counterclaim. Pendent jurisdiction, in the sense of judicial power, exists whenever there is a substantial federal claim and the relationship between that claim and the state claim "permits the conclusion that the entire action before the court comprises but one constitutional `case.'" United Mine Workers v. Gibbs, 383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966). Pendent jurisdiction, however, is a doctrine of discretion. Id. Under Gibbs, I must consider judicial economy, convenience and fairness to the litigants. I must also determine whether joinder of the state claims with the federal cause of action will cause confusion to the trier of fact. I am also mindful of my duty to avoid rendering needless decisions on state law questions. Id.

I decline to exercise pendent jurisdiction over the counterclaim. The elements of plaintiff's § 1983 claim differ greatly from those of the tort of abuse of process. Clark v. Lutcher, 436 F.Supp. 1266, 1268 (M.D.Pa.1977). To prove his § 1983 claim, Anderson must show that his February 11th letter was protected activity under the first amendment, and that this protected activity was a substantial factor in the defendants' decision to discipline him. To prove his abuse of process counterclaim, Groshong must show that Anderson and OEA had an ulterior purpose and acted wilfully in the improper use of process in the regular conduct of the proceeding. Larsen v. Credit Bureau, 279 Or. 405, 408, 568 P.2d 657 (1977). It would be difficult for the trier of fact to keep separate the elements of the claims. In addition, while the abuse of process claim does not address the merits of plaintiff's first amendment claim, the jury might mistakenly apply some of the defendant's evidence on the counterclaim to the merits of plaintiff's claim.

Furthermore, the case law in Oregon is not completely settled as to whether special injury needs to be pled and proven in an abuse of process claim. See Brood v. Davis, 42 Or.App. 587, 601 P.2d 487, reversed on other grounds, 44 Or.App. 261, 605 P.2d 749 (1980). Partly to avoid a needless decision of state law, I decline to exercise pendent jurisdiction over the counterclaim. The counterclaim is dismissed without prejudice.¹

B. Plaintiff's Motion for Partial Summary Judgment

Anderson moves for summary judgment on the issue of defendants' liability. Specifically, plaintiff argues that defendants disciplined him for writing and sending the February 11 letter and thus, he was disciplined for exercising his first and fourteenth amendment rights. Defendants counter that Anderson was disciplined for violating the district's "channels rules" which require district employees to channel their remarks to the Board through the superintendent.

Defendants also contend that they disciplined Anderson not only for his February 11 letter, but also for other violations. In his deposition, Rod Groshong states:

There were four incidents a year ago starting with the print shop circumvention of rules, the retard incident, the Chadwick incident, and the school board mail-out. I then and now view this as a progressive discipline process.

Rod Groshong Deposition, Vol. I, p. 51 (attached to the Affidavit of Jeffrey B. Millner).

This case presents a classic mixed motive case. In such a case, the initial burden is on plaintiff to show that the conduct was constitutionally protected and was a substantial factor in defendants' decision to discipline. Mt. Healthy City School District Board of Education v. Doyle, 429 U.S. 274, 287, 97 S.Ct. 568, 576, 50 L.Ed.2d 471 (1977). If a plaintiff meets this burden the defendants must show, by preponderance, that they would have reached the same decision even if plaintiff had not so acted. Id. Accord, Nicholson v. Board of Education, 682 F.2d 858, 862 (9th Cir.1982). "Since questions of motive predominate in the inquiry about how big a role...