Jane Doe 130 v. Archdiocese of Portland in Or.

Decision Date04 May 2010
Docket NumberNo. CV 08-193-PK,CV 08-193-PK
Citation717 F.Supp.2d 1120
PartiesJANE DOE 130, Plaintiff, v. The ARCHDIOCESE OF PORTLAND IN OREGON, The Roman Catholic Archbishop of Portland in Oregon, and Fr. J.V.H., Defendants.
CourtU.S. District Court — District of Oregon

Kelly W.G. Clark, Peter B. Janci, Gilion C. Dumas, Kristian S. Roggendorf, O'Donnell Clark & Crew LLP, Portland, OR, for Plaintiff.

Andrew J. Lee, Margaret A. Hoffmann, Sara Kobak, Thomas V. Dulcich, Schwabe Williamson & Wyatt, PC, Susan Elizabeth Reese, Susan Elizabeth Reese, PC, Portland, OR, for Defendants.


MOSMAN, District Judge.

On April 8, 2010, Magistrate Judge Papak issued Findings and Recommendation ("F & R") (# 82) in the above-captionedcase recommending that I DENY plaintiff's Motion to Compel (# 44), DISMISS plaintiff's claim of misrepresentation, DENY AS MOOT defendants' Motion to Dismiss (# 52) as to Jane's misrepresentation claim, DENY the remainder of the Motion to Dismiss (# 52), and GRANT IN PART AND DENY IN PART defendants' Motion for Judicial Notice (# 54). No objections were filed.


The magistrate judge makes only recommendations to the court, to which any party may file written objections. The court is not bound by the recommendations of the magistrate judge, but retains responsibility for making the final determination. The court is generally required to make a de novo determination of those portions of the report or specified findings or recommendation as to which an objection is made. 28 U.S.C. § 636(b)(1)(C). However, the court is not required to review, under a de novo or any other standard, the factual or legal conclusions of the magistrate judge as to those portions of the F & R to which no objections are addressed. See Thomas v. Arn, 474 U.S. 140, 149, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003). While the level of scrutiny under which I am required to review the F & R depends on whether or not objections have been filed, in either case, I am free to accept, reject, or modify any of the magistrate judge's F & R. 28 U.S.C. § 636(b)(1)(C).

Upon review, I agree with Judge Papak's recommendation, and I ADOPT the F & R (# 82) as my own opinion. Plaintiff's Motion to Compel (# 44) is DENIED. Plaintiff's claim of misrepresentation is DISMISSED without prejudice. Defendants' Motion to Dismiss (# 52) is DENIED AS MOOT with respect to the misrepresentation claim and otherwise DENIED. Defendants' Motion for Judicial Notice (# 54) is GRANTED IN PART AND DENIED IN PART as described in Judge Papak's F & R.



PAPAK, Magistrate Judge:

Fictitiously-named plaintiff Jane Doe 130 ("Jane") filed this action against defendants The Archdiocese of Portland in Oregon (the "Archdiocese"), The Roman Catholic Archbishop of Portland in Oregon (the "Archbishop" and, collectively with the Archdiocese, the "archdiocesan defendants"), and Father J.V.H. on February 14, 2008. On November 26, 2008, Farley, Piazza & Associates were appointed as Jane's guardian ad litem. Jane alleges defendants' vicarious liability for sexual battery of a child prior to July 6, 2004,1 sexual battery of a child following July 6, 2004, intentional infliction of emotional distress prior to July 6, 2004, and intentional infliction of emotional distress following July 6, 2004, on a theory of respondeat superior, and direct liability for negligence and for misrepresentation. This court has jurisdiction over Jane's action pursuant to 28 U.S.C. § 1334(b), based on the relatedness of these proceedings to a case arising under Title 11 of the United States Code.2

Now before the court are Jane's motion (# 44) to compel production of documents from the archdiocesan defendants, the archdiocesan defendants' motion (# 52) to dismiss, and the archdiocesan defendants' motion (# 54) for judicial notice. I have considered the parties' motions, oral argument on behalf of the parties, and all of the pleadings on file. For the reasons set forth below, I recommend that the motion to compel be denied, that the motion to dismiss be denied as moot as to Jane's claim for misrepresentation and otherwise denied, and that the motion for judicial notice be granted in part and denied in part as set forth below.

I. Motion for Judicial Notice

Federal Rule of Evidence 201(d) provides that "[a] court shall take judicial notice [of an adjudicative fact] if requested by a party and supplied with the necessary information," An adjudicative fact is subject to judicial notice when the fact is "not subject to reasonable dispute in that it is either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot be reasonably questioned." Fed. R. Evid. 201(b).

II. Motion to Dismiss

To survive dismissal for failure to state a claim pursuant to Rule 12(b)(6), a complaint must contain more than a "formulaic recitation of the elements of a cause of action;" specifically, it must contain factual allegations sufficient to "raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). To raise a right to relief above the speculative level, "[t]he pleading must contain something more ... than ... a statement of facts that merely creates a suspicion [of] a legally cognizable right of action." Id., quoting 5 C. Wright & A. Miller, Federal Practice and Procedure § 1216, pp. 235-236 (3d ed. 2004); see also Fed.R.Civ.P. 8(a). Instead, the plaintiff must plead affirmative factual content, as opposed to any merely conclusory recitation that the elements of a claim have been satisfied, that "allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Ashcroft v. Iqbal, --- U.S. ----, 129 S.Ct. 1937, 1949, 173 L.Ed.2d 868 (2009). "In sum, for 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. United States Secret Serv., 572 F.3d 962, 970 (9th Cir.2009), citing Iqbal, 129 S.Ct. at 1949.

"In ruling on a 12(b)(6) motion, a court may generally consider only allegations contained in the pleadings, exhibits attached to the complaint, and matters properly subject to judicial notice." Swartz v. KPMG LLP, 476 F.3d 756, 763 (9th Cir.2007). In considering a motion to dismiss, this court accepts all of the allegations in the complaint as true and construes them in the light most favorable to the plaintiff. See Kahle v. Gonzales, 474 F.3d 665, 667 (9th Cir.2007), Moreover, the court "presume[s] that general allegations embrace those specific facts that are necessary to support the claim." Nat'l Org. for Women v. Scheidler, 510 U.S. 249, 256, 114 S.Ct. 798, 127 L.Ed.2d 99 (1994), quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). The court need not, however, accept legal conclusions "cast in the form of factual allegations." Western Mining Council v. Watt, 643 F.2d 618, 624 (9th Cir.1981).

III. Motion to Compel

Federal Civil Procedure Rule 26(b)(1) authorizes discovery regardingany matter, not privileged, that is relevant to the claim or defense of any party. Rule 26(b)(1) is to be construed broadly, and encompasses any matter that bears on, or that reasonably could lead to other matters that would bear on, any issue that is or may be in the case. See, e.g., Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351, 351 n. 12, 98 S.Ct. 2380, 57 L.Ed.2d 253 (1978).

If a party elects to oppose a propounding party's discovery requests, the opposing party bears the burden of establishing that the discovery is overly broad, unduly burdensome or not relevant. See Graham v. Casey's General Stores, 206 F.R.D. 251, 253-4 (S.D.Ind.2000). "Boilerplate, generalized objections are inadequate and tantamount to not making any objection at all." Walker v. Lakewood Condominium Owners Assoc., 186 F.R.D. 584, 587 (C.D.Cal.1999); see also Farber and Partners, Inc. v. Garber, 234 F.R.D. 186 (C.D.Cal.2006).

Federal Civil Procedure Rule 37(a)(3)(B) empowers a propounding party to "move for an order compelling an answer, designation, production, or inspection" if:

(i) a deponent fails to answer a question asked under Rules 30 or 31;
(ii) a corporation or other entity fails to make a designation under Rule 30(b)(6) or 31(a)(4);
(iii) a party fails to answer an interrogatory submitted under Rule 33, or
(iv) a party fails to respond that inspection will be permitted-or fails to permit inspection-as requested under Rule 34.

Fed. R. Civ. Pro. 37(a)(3)(B). Moreover, Rule 37(a)(4) provides that "an evasive or incomplete disclosure, answer, or response must be treated as a failure to disclose, answer, or respond." Fed.R.Civ.P. 37(a)(4). Rule 26 provides that "[f]or good cause, the court may order discovery of any matter relevant to the subject matter involved in the action." Fed, R. Civ. Pro. 26(b)(1).


Jane is a minor female born in 1991. Between August of 1993 and June of 1999, J.V.H. was a seminarian at Mt. Angel Seminary in Oregon, an educational institution within the authority of the archdiocesan defendants. Between June 1999 and 2007, Fr. J.V.H. was a Catholic priest directly employed by the Archdiocese Defendants. Jane alleges that Fr. J.V.H. provided pastoral and educational services to her in his capacity as a priest,3 in the course of which he acted within the course and scope of his employment or agency in performing duties for and on behalf of the archdiocesan defendants.

I. History of the Parties' Dispute

Jane testified in deposition that J.V.H. first began touching her sexually when she was approximately 6 or 7 years old, in or around 1997. At that time, Jane lived in Virginia, and J.V.H. was a seminary...

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