Doe v. Phoenix-talent Sch. Dist. Ben Bergreen
| Decision Date | 18 February 2011 |
| Docket Number | Civ. No. 10-3119-CL |
| Parties | JANE DOE, by and through her Guardian ad Litem J.M., Plaintiff, v. PHOENIX-TALENT SCHOOL DISTRICT #4, BEN BERGREEN, GERRY FLOCK, and GEORGE KUFIN, Defendants. |
| Court | U.S. District Court — District of Oregon |
This matter comes before the Court on plaintiff Jane Doe's ("plaintiff") motion to strike (#34), and defendants Phoenix-Talent School District #4 ("the District"), Ben Bergreen ("Bergreen"), and Gerry Flock's ("Flock") (collectively, "the District Defendants") motion to dismiss (#32). For the reasons stated below, plaintiff's motion to strike is granted in part and denied in part, and the District defendants' motion to dismiss is granted in part and denied in part.
Plaintiff Jane Doe, by and through her guardian ad litem J.M., filed this action October 29, 2010, alleging eight claims for relief arising out of a single incident of alleged sexualmisconduct by Ivuhn, a kindergarten teacher at Orchard Hill Elementary School ("Orchard"), which is owned and operated by the District. Bergreen is the District's Superintendent, and Flock is the Principal at Orchard. Plaintiff alleges these claims variously against Kuhn, the District, Bergreen, and Flock.
Federal Rule of Civil Procedure 12(f) permits a court to "strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." The function of a motion to strike is "to avoid the expenditure of time and money" associated with litigating "spurious issues." Sidnev-Vinstein v. A.H. Robins Co.. 697 F.2d 880, 885 (9th Cir. 1983). A defense may be insufficient as a matter of law or as a matter of pleading. Where a defense cannot succeed under any set of circumstances, it is insufficient as a matter of law. Fed. R. Civ. P. 12(1); see also Waste Mgmt. Holdings. Inc. v. Gilmore. 252 F.3d 316, 347 (4th Cir. 2001) (citing 5 A A. Charles Allen Wright & Arthur R. Miller, Federal Practice & Procedure § 1380, 647 (2d ed. 1990)), cert, denied, 535 U.S. 904, 122 S.Ct. 1203 (2002). Where an affirmative defense fails to give plaintiff fair notice of the defense, it is insufficiently pled. Wvshak v. City Nat'l Bank. 607 F.2d 824, 827 (9th Cir. 1979).
Under FRCP 12(b)(6), a district court must dismiss a complaint if it fails to state a claim upon which relief can be granted. The question presented by a motion to dismiss is not whether the plaintiff will prevail in the action, but whether the plaintiff is entitled to offer evidence in support of the claim. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds by Davis v. Scherer, 468 U.S. 183 (1984). in answering this question, the court must assume that the plaintiffs' allegations are true and must draw all reasonable inferences in the plaintiffs' favor. See Usher v. City of Los Angeles. 828 F.2d 556, 561 (9th Cir. 1987). A complaint need not make "detailed factual allegations, " however, "a formulaic recitation of the elements of a cause of action will not do." Bell Atlantic Corp. v. Twombly. 550 U.S. 544, 55556 (2007). To survive a motion to dismiss under FRCP 12(b)(6), plaintiffs must allege sufficient facts to "raise a right to relief above the speculative level." Id. at 555. That is, plaintiffs must show that their claims not merely conceivable, but plausible. Id. at 570; Ashcroft v. Iqbal, ~ U.S.--,--, 129 S.Ct. 1937, 1950 (2009). This plausibility inquiry is "a context specific task that requires the reviewing court to draw on its judicial experience and common sense." Iqbal, 129 S.Ct, at 1950. The court inquiry is limited to the face of the complaint, id., and matters that may be judicially noticed, MGIC Indem. Corp. v. Weisman. 803 F.2d 500, 504 (9th Cir. 1986).
If the court dismisses the complaint, it must then decide whether to grant leave to amend. Leave to amend should be granted unless it is clear that the complaint cannot possibly be cured by the allegation of other facts. Lucas v. Dep't of Corrs.. 66 F.3d 245, 248 (9th Cir. 1995); see also Fed. R. Civ. P. 15(a) (). The court must also consider whether granting leave to amend will result in undue prejudice to the opposing party, is sought in bad faith or for a dilatory motive, is futile, or creates undue delay. Lee v. SmithKline Beecham. Inc.. 245 F.3d 1048, 1052 (9th Cir. 2001). When amendment would be futile, dismissal may be ordered with prejudice. Oki Semiconductor Co. V. Wells Fargo Bank. Nat. Ass'n. 298 F.3d 768, 772 (9th Cir. 2002) (citine Dumas v. Kipp. 90 F.3d 386, 393 (9th Cir. 1996)).
I. MOTION TO STRIKE
Failure to state a claim on which relief can be granted is an affirmative defense that may be raised in any pleading allowed or ordered under Rule 7(a), by motion, or at trial. Fed. R. Civ. P. 12(h)(2). Plaintiff argues that the heightened pleading standard enunciated by the United States Supreme Court in Bell Atlantic Com, v. Twombly. 550 U.S. 544, 555, 127 S.Ct. 1955 (2007), and clarified in Ashcroft v. Iqbal.-U.S.--, 129 S.Ct. 1937 (2009), should apply to the pleading of affirmative defenses, and that under this standard Kuhn's first affirmative defense, "Failure to State a Claim, " is insufficiently pled and should therefore be stricken. (Mot. to Strike at 2). In plaintiffs view, an affirmative defense is insufficiently pled, and therefore vulnerable to a motion to strike, if it simply states a legal conclusion without providing supporting facts that explain how the defense relates to the instant case. (Id.). However, neither the Ninth Circuit nor any other Circuit Court of Appeal has held that Twombly and Iqbal govern the pleading standard for affirmative defenses. This court need not decide the issue here. Plaintiffs claims all arise out of a single alleged incident of conduct, which Kuhn denies, thus the basis for his First Affirmative Defense (Failure to State a Claim) is unmistakable. The affirmative defense is properly asserted as allowed by Rule 12(h). Plaintiff's motion to strike is therefore DENIED.
Plaintiff's Complaint asserts eight claims for relief, all arising out of a single incident of alleged conduct occurring on or about May 21, 2009. (Compl, at 5, ¶ 8). Plaintiffs seven tort claims are subject to a two year statute of limitations. Or. Rev. Stat. § 12.110(1). Plaintiff'sclaim for violation of her civil rights under 42 U.S.C. § 1983 is subject to the same two year statute of limitations. Cooper v. City of Ashland. 871 F.2d 104, 105 (9th Cir. 1988); Davis v. Harvey. 789 F.2d 1332 (9th Cir. 2986). Plaintiffs Complaint was filed October 29, 2010, well within two years of the date on which the alleged conduct giving rise to her injuries occurred. Kuhn does not argue that the alleged conduct occurred on a different date, rather, he denies that it occurred altogether. Because Kuhn does not argue that the conduct occurred on a date beyond the statute of limitations, the defense fails as a matter of law. Therefore, plaintiffs motion to strike Kuhn's Second Affirmative Defense (Statute of Limitations) is GRANTED.
Plaintiffs' Complaint asserts claims against Kuhn for intentional infliction of emotional distress ("TIED"), sexual battery, false imprisonment, and negligence. Kuhn's Third Affirmative Defense (Oregon Tort Claims Act) asserts immunity from suit as to all plaintiffs' statutory claims under the Oregon Tort Claims Act ("OTCA"), Or. Rev. Stat. § 30.260, et seq. The OTCA provides, in relevant part, that the sole cause of action for any tort of employees of a public body acting within the scope of their employment or duties and eligible for representation and indemnification shall be against the public body. Or. Rev. Stat. § 30.265(1). Under either the Twombly/Iqbal standard or the more lenient Wyshak standard, the pleading is sufficient. Plaintiff alleges that Kuhn was acting within the scope and course of his employment with the District at all material times, and was motivated in part to serve the interests of his employer. (Compl, at 4, ¶ 6). She does not allege alternative claims that Kuhn acted outside the course and scope of his employment. Should Kuhn be entitled to indemnification and a defense under the OTCA, he could properly move to substitute the District as the sole defendant. Therefore, plaintiffs motion to strike Kuhn's Second Affirmative Defense is DENTED.
Kuhn's Third Affirmative Defense (Qualified Immunity) asserts immunity "from liability for civil damages because his conduct does not violate any clearly established constitutional right." Plaintiff's First Claim for Relief asserts a claim under 42 U.S.C. § 1983 for violation of her 4th and 14th Amendment due process rights, (Compl, at 6), to which qualified immunity is a defense. "Qualified immunity is an affirmative defense that must be pleaded by a defendant official." Siegert v. Gilley. 500 U.S. 226. 231. Ill S.Ct. 1789 (1991) (citing Gomez v. Toledo. 446 U.S. 635, 640, 100 S.Ct. 1920 (1980); Harlow v. Fitzgerald. 457 U.S. 800, 814, 102 S.Ct. 2727 (1982)). Therefore, plaintiffs motion to strike Kuhn's Fourth Affirmative Defense is DENIED.
The District defendants move to dismiss defendants Bergreen and Flock from plaintiffs Second Claim for Relief, which alleges a claim for IIED against all defendants, arguing that the court is required to substitute the District as the sole defendant upon proper motion by the defendants pursuant to OR. Rev. Stat. § 30.265(1). Plaintiff argues that substituting the District as the sole defendant at this stage of the proceedings is premature in light of the Oregon Supreme Court's decision in Clarke v. Oregon Health Sciences University. 343 Or. 581, 175 P.3d 418 (2007). Resolving this question...
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