MOSMAN, District Judge.
On April 8, 2010, Magistrate Judge Papak issued Findings and Recommendation ("F & R") (# 82) in the above-captioned
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.
IT IS SO ORDERED.
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,
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).
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).
Federal Civil Procedure Rule 26(b)(1) authorizes discovery regarding
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:
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,
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 student in Mt. Angel, Oregon. The initial sexual touching took place in Virginia, in Jane's grandmother's home.
J.V.H. was ordained as a priest of the Archdiocese of Portland in June 1999. Jane moved to Portland, Oregon, in 2004, when she was approximately 14. It appears that Fr. J.V.H. continued abusing Jane from approximately 1997 through some time in 2004, after Jane's family moved to Oregon.
Neither Jane nor her parents have ever been members of a parish to which Fr. J.V.H. was assigned. The Archdiocese has not received any complaints of sexual misconduct
In her complaint, Jane refers to this process as one of "Grooming." She alleges that:
Jane further alleges that Fr. J.V.H., "while acting within the course and scope of his employment and agency, and using the authority and position of trust as a priest for the Archdiocese Defendants— through the Grooming process—induced and directed Plaintiff to engage in sexual contact with Fr. J.V.H. both prior to and after July 6, 2004." She alleges that this sexual abuse continued for approximately six years, from a time when she was approximately eight years old to a time when she was approximately 14.
In connection with Jane's claims against the archdiocesan defendants for sexual battery of a child and for intentional infliction of emotional distress, alleged on a theory of respondeat superior, Jane alleges that "Fr. J.V.H. used the Grooming process to accomplish his sexual battery of Plaintiff," and that "Fr. J.V.H. used the Grooming process to intentionally inflict severe emotional distress by his acts of sexual molestation of the Plaintiff."
In connection with Jane's claim against the archdiocesan defendants for negligence, alleged on a theory of direct liability, Jane alleges as follows. First, she alleges that the archdiocesan defendants owed her a special duty of care:
Second, she alleges that the archdiocesan defendants had notice that Fr, J.V.H. posed a threat to children by not later than August 1993:
Third, she alleges that the archdiocesan defendants were actionably negligent in the following ways:
Fourth, she alleges that:
On July 28, 2009, Jane served the archdiocesan defendants with a set of requests for production of documents. On September 2, 2009, the archdiocesan defendants responded to the requests for production, inter alia refusing to produce documents responsive to Request for Production No. 23. Jane now seeks to compel production of documents responsive to Request for Production No. 23, and the archdiocesan defendants seek a protective order as to that same request.
Request for Production No. 23, and the archdiocesan defendants' response thereto, are as follows:
The archdiocesan defendants move for judicial notice of the following facts:
As noted above, 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). Here, the familial relationship between defendant Fr. J.V.H. and Jane is clearly not a fit matter for judicial notice. It is rather a matter of purely private import, not generally known in this district, and I am unaware of any unimpeachably authoritative source by which it could be determined. Similarly, to notice facts employing value-laden qualifiers such as "widely" in the purported fact that "it was widely reported by the news media that the Archdiocese's bankruptcy filing was prompted by the costs of legal actions against the Archdiocese" would require questions of judgment as to what such qualifiers might mean in the contexts in which they are proposed, and therefore can be neither generally known nor accurately determined.
By contrast, the remaining putative facts, stripped of all vague, value-laden qualifiers, are each either generally known or readily determinable, and are therefore fit matters for judicial notice. I recommend that the motion for judicial notice be granted in part and denied in part, and that the court take judicial notice of the following facts for the purpose of determining the archdiocesan defendants' motion to dismiss:
The archdiocesan defendants move to dismiss Jane's claims against them for sexual battery of a child and for intentional infliction of emotional distress on the
According to Oregon law:
Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404 (1988) (citations omitted).
The Chesterman court specified, however, that where there is a "`time-lag' between the act allegedly producing the harm and the resulting harm," it is inappropriate to analyze the applicability of the respondeat superior doctrine "as of the time that the injury occurred." Id. at 444, 753 P.2d 404. Under that circumstance, the court ruled, "[t]he focus should be on the act on which vicarious liability is based and not on when the act results in injury." Id. (emphasis original). Applying that principle, the court found that an employer could be vicariously liable for its employee's acts where the employee ingested a hallucinogenic drug allegedly for the purpose of maintaining focus at work and then later, outside the workplace and outside the scope of his employment—but still under the influence of the drug and, allegedly, in consequence of the drug's effects— entered a woman's home and sexually assaulted her. See id. at 443-444, 753 P.2d 404.
Eleven years later, in a case (like the one now before the court) involving sexual assault allegedly committed by an employee of the Archdiocese, the Oregon Supreme Court had occasion to clarify the Chesterman ruling. Noting that "an employee's intentional tort rarely, if ever, will have been authorized expressly by the employer," the court in Fearing v. Bucher, 328 Or. 367, 977 P.2d 1163 (1999), acknowledged that the employee's "sexual assaults... clearly were outside the scope of his employment," but held that "the [vicarious liability] inquiry does not end there." Fearing v. Bucher, 328 Or. 367, 374, 374 n. 4, 977 P.2d 1163 (1999). Instead, the court held, "[t]he Archdiocese still could be found vicariously liable, if acts that were within [the employee]'s scope of employment resulted in the acts which led to injury to plaintiff." Id. (citation, internal quotation marks omitted; emphasis supplied). That is, "where ... the employer's
The Fearing court recited the material allegations of the plaintiff's complaint as follows:
Id. Based on these allegations, the Fearing court reasoned that "a jury could infer that the sexual assaults were the culmination of a progressive series of actions that began with and continued to involve [the employee]'s performance of [his] ordinary and authorized duties." Id. at 375, 977 P.2d 1163.
Id. The Fearing court expressly rejected the Archdiocese's argument that the allegations of the complaint amounted only to legal conclusions or mere restatements of the Chesterman factors themselves. Id. at 375 n. 5, 977 P.2d 1163. The court reasoned that:
Id. (citations omitted).
The Fearing court further expressly rejected the argument that, because the alleged sexual abuse could not reasonably have furthered any interest of the employer, it could not have been within the scope of the employee's duties, reasoning that:
Id. at 375-376, 977 P.2d 1163 (emphasis original).
The Fearing court specifically distinguished the facts before it from those where the circumstances of employment merely created an opportunity for an intentional tort to be committed, indicating that mere opportunity was not sufficient to support a finding of vicarious liability:
Id. at 377, 977 P.2d 1163 (citation omitted).
Finally, the Fearing court also affirmed the well-established proposition that "[w]hether an employee has acted within the scope of employment at any given time generally is a question for the trier of fact, except in cases where only one reasonable conclusion may be drawn from the facts pled." Id. at 374, 977 P.2d 1163.
Shortly after the Fearing opinion issued, in Lonrim v. Swensen, 328 Or. 380, 977 P.2d 1157 (1999), a case involving sexual assault upon a minor Boy Scout by a Boy Scout troop leader, the Oregon Supreme Court relied upon the same reasoning employed in Fearing to conclude that an extended course of employment-related cultivation of the trust of a minor and his family could give rise to vicarious employer liability. The Lourim court recited the material facts of the plaintiffs complaint as follows:
Lourim, 328 Or. at 384-385, 977 P.2d 1157. Accepting these allegations as true, and applying the principles articulated in Fearing, the court concluded that "a jury reasonably could infer that the sexual assaults were merely the culmination of a progressive series of actions that involved the ordinary and authorized duties of a Boy Scout leader." Id. at 396, 977 P.2d 1163. The court further concluded that:
Id. at 386-387, 977 P.2d 1157.
Similarly, in Bray v. American Prop. Mgmt. Corp., 164 Or.App. 134, 988 P.2d 933 (1999), the Oregon Court of Appeals applied the Fearing/Lourim standard to find an employer vicariously liable for its employee's actions when an employee fatally stabbed a third party in the workplace. The third party habitually parked a delivery van in the defendant's parking garage without permission, and the defendant instructed its employee parking attendant to prevent the third party from continuing to do so; the defendant neither authorized nor prohibited the use of force in carrying out its instruction. See Bray, 164 Or.App. at 136-137, 988 P.2d 933. When the attendant informed the third party that he could no longer park in the garage, a scuffle ensued which culminated in the attendant killing the third party with a knife. See id. at 137, 988 P.2d 933. The court concluded that:
Bray, 164 Or.App. at 140-141, 988 P.2d 933 (emphasis supplied; citations, internal quotation marks, and modifications omitted). The court expressly observed that, under "Fearing and Lourim, direct causation, not `reasonable foreseeability' ..., is the sine qua non of respondeat superior liability." Id. at 141, 988 P.2d 933.
Three years later, in Minnis v. Oregon Mutual Ins. Co., 334 Or. 191, 48 P.3d 137 (2002), the Oregon Supreme Court found that no vicarious liability attached in connection with a managerial employee's sexual assault of an employee under his supervision. The managerial employee allegedly both sexually harassed the supervised employee in the workplace and sexually assaulted her outside the workplace, specifically in his own apartment, See Minnis, 334 Or. at 197, 48 P.3d 137. The Minnis court held that because the Minnis plaintiff had testified that the workplace conduct and the sexual assault were "episodes in a series," rather than that the sexual harassment "resulted in or caused" the sexual assault, "the Chesterman `time-lag' standard" was inapplicable, and the respondeat superior test was to be applied solely to the conduct taking place at the managerial employee's apartment. Id. at 202, 48 P.3d 137 (emphasis original), 203. Because this conduct was not within the manager's employment duties, the court found that the employer was not vicariously liable under Chesterman, See id. at 203-204, 48 P.3d 137. The Minnis court expressly distinguished Fearing and Lourim on the ground that the tortfeasor's workplace conduct had not been alleged to be a necessary precursor or otherwise a cause of the subsequent sexual assault. See id. at 204-206, 48 P.3d 137.
The Oregon Court of Appeals recently applied the Fearing/Lourim standard once again to allegations of sexual assault by priest employees of the Archdiocese. In Schmidt v. Archdiocese of Portland, 218 Or.App. 661, 180 P.3d 160 (Or.Ct.App. 2008), Father F., one of two priests alleged to have molested the plaintiff during his minority, was present when the plaintiff, then aged seven or eight, fell while rollerskating and skinned his knees. Schmidt, 218 Or.App. at 665, 180 P.3d 160. Fr. F. helped the boy to his feet, took him into a church basement on the pretext of examining his scraped knees, and there sodomized him. See id. The plaintiff had never met his abuser before the incident occurred. See id. at 667, 694, 180 P.3d 160.
In analyzing whether the priest's employers could be found vicariously liable for their agent's sexual assault, the Schmidt court affirmed the Fearing court's holding that:
Id. at 690, 180 P.3d 160 (emphasis supplied). Applying that analysis, the court found, first, that the record contained no evidence that Fr. F, had, as had the priest in Fearing, cultivated a relationship of trust with his victim before assaulting him. See id. at 694, 180 P.3d 160. Next, "[a]s an alternative to cultivation of a trust relationship as a basis for imposing vicarious liability," the court analyzed the priest's conduct immediately preceding the assault to determine whether the record contained "evidence of conduct by [Fr. F.] that was motivated, at least in part, by a purpose to serve the archdiocese; that was of a kind
Here, it is clear that Jane has alleged that Fr. J.V.H. engaged in conduct referred to as "grooming" her within the course and scope of his employment duties, and that such grooming resulted in the abuse she suffered.
Despite these concerns, for purposes of the archdiocesan defendants' motion to dismiss I construe the allegations of the complaint in the light most favorable to Jane and therefore acknowledge the logical possibility that at or around the time of Fr. J.V.H.'s ordination the abuse would not have continued but for the alleged employment-related grooming. On this construal of Jane's allegations, Jane's allegations
Jane alleges that all defendants—apparently including Fr. J.V.H. as well as the archdiocesan defendants—were negligent in failing "to investigate, monitor, supervise, restrict, or remove Fr, J.V.H. during his formation and ministry" despite having allegedly become aware of "potential warning signs" that he might be dangerous to those entrusted to his care or influence. Jane alleges that the "potential warning signs" the archdiocesan defendants had reason to be aware of created a foreseeable risk of danger to persons entrusted to Fr. J.V.H.'s care or influence.
To state a claim for negligence under Oregon common law, a plaintiff must show that the defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused the plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14-17, 734 P.2d 1326 (1987). In the absence of a specific duty created, defined, or limited by a specified status, relationship or standard of conduct, a defendant may be liable for negligence if the defendant's conduct "unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff." Cowan v. Nortdyke, 232 Or.App. 384, 384, 222 P.3d 1093 (Or.Ct. App.2009). The archdiocesan defendants argue that a claim for negligent supervision of a priest is simply not cognizable against a church authority under First Amendment principles requiring civil courts to defer to ecclesiastic authority in deciding matters related to religious dogma, and in the alternative that Jane has failed to plead ultimate facts that, if proven, would establish the existence of a special relationship between them and Jane of a kind that would create a duty of care and/or any foreseeable risk to Jane of the
As to the archdiocesan defendants' Constitutional argument, the First Amendment "requires that civil courts defer to the resolution of issues of religious doctrine or polity by the highest court of a hierarchical church organization." Jones v. Wolf, 443 U.S. 595, 602, 99 S.Ct. 3020, 61 L.Ed.2d 775 (1979) (citations omitted). Based on this consideration, "[i]n the absence of fraud, collusion, or arbitrariness, the decisions of the proper church tribunals on matters purely ecclesiastical, although affecting civil rights, are accepted in litigation before the secular courts as conclusive, because the parties in interest made them so by contract or otherwise." Presbyterian Church in United States v. Mary Elizabeth Blue Hull Mem'l Presbyterian Church, 393 U.S. 440, 447, 89 S.Ct. 601, 21 L.Ed.2d 658 (1969). Courts therefore must apply neutral principles of law in deciding disputes involving ecclesiastical issues. See id. at 449, 89 S.Ct. 601. Here, no ecclesiastical issues are raised by Jane's claim; the same neutral principles of law would apply whether the alleged abuser were a priest or a groundskeeper, and the factors considered in determining whether a man may be ordained as a priest do not arise. The First Amendment therefore cannot bar Jane's negligence claim.
As to whether Jane has adequately pled a special relationship between herself and the archdiocesan defendants of a kind that would create a cognizable duty of care, Jane alleges and argues that "[a]s a young girl entrusted to the care and influence of the Catholic Church and Fr. J.V.H., an agent and employee of Archdiocese Defendants," she had "a special relationship with Defendants." However, under Oregon law:
Shin, v. Sunriver Preparatory Sch., Inc., 199 Or.App. 352, 367, 111 P.3d 762 (Or.Ct. App.2005) (emphasis original), quoting Conway v. Pacific Univ., 324 Or. 231, 239-240, 924 P.2d 818 (1995). Under this standard, it is clear that the kind of "special relationship" Jane pled is not of a kind that gives rise to a heightened duty of care. Jane does not allege that she was a parishioner of any church of the Archdiocese. Neither Jane nor her family authorized the Archbishop or the Archdiocese to exercise independent judgment in Jane's interests or gave the archdiocesan defendants responsibility for or control over Jane's welfare. That is, although Jane's allegations contain the phrase "special relationship," no ultimate facts are pled that suggest the existence of the kind of relationship that could give rise to a duty of care. I therefore conclude that defendants are correct to the extent they argue that Jane has not adequately pled the existence
As to whether Jane has pled facts giving rise to a foreseeable risk to a protected interest of the kind of harm she suffered, Jane has alleged that the archdiocesan defendants had knowledge of specific facts that a reasonable person would have construed as creating a risk that children entrusted to Fr. J.V.H.'s care might be unsafe. However, for purposes of the foreseeability analysis, the issue is not solely one of the archdiocesan defendants' knowledge, but whether, in light of that knowledge, the archdiocesan defendants' conduct created a foreseeable risk to a protected interest of the kind of harm Jane suffered. Assuming without deciding that a reasonable person possessed of the knowledge Jane imputes to the archdiocesan defendants would have understood that children would be unsafe with Fr. J.V.H., it would clearly have constituted actionable negligence had the archdiocesan defendants permitted Fr. J.V.H. to conduct a youth ministry, formally entrusted children to his care, or otherwise authorized him to minister to children unsupervised. Here, however, there is no allegation that the archdiocesan defendants did any of these things. Instead, the question for the court is whether the archdiocesan defendants' alleged failures to investigate or follow up on potentially troubling findings from J.V.H.'s psychological examinations, to monitor or supervise Fr. J.V.H.'s interactions with minors, to restrict Fr. J.V.H.'s interactions with children, and/or to remove Fr. J.V.H. from the ministry created an unreasonable risk of harm.
Jane has expressly alleged that the abuse she suffered resulted from "grooming" conduct that Fr. J.V.H. engaged in within the course and scope of his employment duties. Assuming the truth of Jane's allegations, some of the abuse she suffered at Fr. J.V.H.'s hands therefore would not have occurred but for J.V.H.'s status as an ordained priest of the Roman Catholic church. That is, assuming the truth of Jane's allegations, some of the abuse would not have taken place but for the archdiocesan defendants' failure to investigate, monitor, restrict, and/or defrock Fr. J.V.H. Moreover, in light of the authority and status enjoyed by Roman Catholic priests within the Roman Catholic community, a finder of fact could reasonably conclude that failure to investigate, monitor, restrict, and/or defrock a Roman Catholic priest whose record and behavior suggested a potential sex abuse risk created a foreseeable, unreasonable risk to children entrusted to his care or permitted to come into unsupervised contact with him.
Because the record does not foreclose the possibility that the archdiocesan defendants' conduct could give rise to liability for negligence, motion to dismiss should be denied as to Jane's negligence claim.
As noted above, Jane has represented to the court that she will voluntarily withdraw her misrepresentation claim. In consequence of Jane's assertion, the misrepresentation claim should be dismissed without prejudice. See Fed.R.Civ.P. 41(a)(1). The archdiocesan defendants' motion to dismiss should therefore be denied as moot as to the misrepresentation claim.
Jane asserts a right to punitive damages from the archdiocesan defendants, premised on her claim for negligence, Under Oregon law, "[p]unitive damages are not recoverable in a civil action unless it is proven by clear and convincing evidence that the party against whom punitive damages are sought has acted with malice or has shown a reckless and outrageous
Although it is clear under Oregon law that simple negligence, without more, cannot support an award of punitive damages, see O.R.S. 31.730(1), where the evidentiary record supports findings of both negligence and the additional factors of aggravated misconduct requisite for award of punitive damages, a punitive damages award may lie in connection with a negligence claim, see Georgetown Realty v. Home Ins. Co., 113 Or.App. 641, 644-645, 833 P.2d 1333 (Or.Ct.App.1992), quoting Boger v. Norris & Stevens, Inc., 109 Or.App. 90, 94-95, 818 P.2d 947 (1991), citing Wilson v. Tobiassen, 97 Or.App. 527, 777 P.2d 1379 (1989).
Oregon Supreme Court jurisprudence recognizes that no single formulation of the legal standard for award of punitive damages could apply to the entire range of cases in which punitive damages may be appropriate:
Andor v. United Air Lines, Inc., 303 Or. 505, 510-511, 739 P.2d 18 (1987) (footnoted citations omitted). The Andor court noted, further, that the legal standard for award of punitive damages may properly be tailored to the particular "type" of defendant at issue in any given case:
Id. at 512, n. 8, 739 P.2d 18, quoting Owen, Civil Punishment and the Public Good, 56 S. Cal. L. Rev. 103, 105 (1982). Where, as here, the defendant is an institution or enterprise, "punitive damages serve the function to deter enterprises from accepting the risks of harming other private or public interests...." Id. at 514, 739 P.2d 18, quoting Schmidt v. Pine Tree Land Dev., 291 Or. 462, 466, 631 P.2d 1373 (1981). The decisions of such institutional defendants "may well be wholly impersonal with respect to any victim, indeed conducted with the hope that no harm will
Moreover, under Oregon law "[i]t is well-established that whether a defendant's conduct is aggravated or wanton or comes within any of the other characterizations that permit the imposition of punitive damages is for the jury to decide, as long as there is evidence upon which the finding can be based." Id. at 509, 631 P.2d 1373; see also, e.g., Webster v. Dieringer's Variety, Inc., 84 Or.App. 519, 524, 734 P.2d 402 (Or.Ct.App.1987); Friendship Auto v. Bank of Willamette Valley, 300 Or. 522, 535-537, 716 P.2d 715 (1986); State ex rel. Young v. Crookham, 290 Or. 61, 71, 618 P.2d 1268 (1980).
Here, it does not appear overwhelmingly likely that Jane will ultimately sustain her evidentiary burden to establish the archdiocesan defendants' "malice or... reckless and outrageous indifference to a highly unreasonable risk of harm and... conscious indifference to the health, safety and welfare of others," but neither do her allegations foreclose the possibility that she will do so. Indeed, she has expressly alleged that, in failing to investigate, monitor, supervise, restrict, or remove Fr. J.V.H. despite their knowledge of facts suggesting that he presented a risk to children, the archdiocesan defendants "acted with malice or a reckless and outrageous indifference to a highly unreasonable risk of harm and with a conscious indifference to the health, safety, and welfare of [Jane]."
Jane has met her burden to plead an evidentiary basis for her prayer for punitive damages at this stage of these proceedings. Because a reasonable finder of fact could conclude on the basis of the Jane's allegations that the archdiocesan defendants' conduct met the appropriate standard for award of punitive damages, the motion to dismiss should be denied as to Jane's punitive damages request.
Jane moves to compel production of documents responsive to her Request for Production No. 23. While these documents—all demand letters, responses thereto, and civil complaints regarding child sexual abuse claims made against the Archdiocese of Portland from 1975 to 2004-were likely of significant relevance to Jane's voluntarily withdrawn misrepresentation claim, they are not of clear relevance to her remaining claims. The archdiocesan defendants' notice of prior claims of sexual abuse by priests other than Fr. J.V.H. is without bearing on whether any defendant's liability for sexual battery or for intentional infliction of emotional distress or on whether the archdiocesan defendants were actionably negligent in their supervision or retention of Fr. J.V.H. This holds true in particular where, as here, it is undisputed that the archdiocesan defendants were aware at all material times that numerous complaints of sexual abuse by priests of the Archdiocese had been filed over the decades preceding Fr. J.V.H.'s ordination.
Because the requested discovery is neither relevant to Jane's remaining claims nor reasonably calculated to lead to the production of admissible evidence, Jane's motion to compel should be denied,
For the reasons set forth above, I recommend that Jane's motion (# 44) to compel production of documents be denied, that Jane's claim of misrepresentation be dismissed without prejudice, that the archdiocesan
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
If objections are filed, then a response is due fourteen (14) days after being served with a copy of the objections. When the response is due or filed, whichever date is earlier, the Findings and Recommendation will go under advisement.
