IN THE CIRCUIT COURT OF THE STATE OF OREGON FOR THE COUNTY OF MULTNOMAH. Oral Argument Requested

Transcription

1 // :: PM CV MICHAEL BOYLE, v. IN THE CIRCUIT COURT OF THE STATE OF OREGON Plaintiff, CITY OF PORTLAND, a municipal corporation, Defendant. FOR THE COUNTY OF MULTNOMAH Oral Argument Requested Case No. CV DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS (Oral Argument Requested) Defendant City of Portland ( City ) requests oral argument on its Motion to Dismiss. The time estimated is minutes. Court reporting service is requested. Pursuant to ORS.0, the City of Portland is not required to pay the reporting fee. UTCR.0() Certificate of Compliance Pursuant to UTCR.0(), counsel for defendant hereby certifies that a good faith effort was made to confer with plaintiff to resolve, without success, the issues disputed in this motion. I. MOTION A. Motion to Dismiss Defendant City of Portland hereby moves to dismiss all claims for economic damages in paragraphs,, and, and plaintiff s prayer for relief, paragraphs 1 through, because plaintiff is not legally entitled to economic damages in this action. This motion is based upon ORCP A, ORCP A(), and the Points and Authorities set forth below. Page 1 DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

2 II. POINTS AND AUTHORITIES A. Motion to Dismiss 1. Standard of review for motion to dismiss. In considering a motion to dismiss, the Court s review is limited to the face of the 1 1 Complaint. Durham v. City of Portland, 1 Or App 0, (0); Ramex, Inc. v. Northwest Basic Indus., Or App, (01). The Court may additionally take judicial notice of facts that are generally known within the territorial jurisdiction of the trial court or facts that are capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. ORS 0.0; Oregon Evidence Code Rule 1(b). The Court assumes the truth of all well-pled allegations and any reasonable inferences that may be drawn from there, and views them in the light most favorable to the non-moving party. Barke v. Maeyens, Or App 1, (01), rev denied, Or (0). ORCP A requires the complaint to plead [a] plain and concise statement of the ultimate facts constituting a claim for relief without unnecessary repetition. The requirement that facts rather than legal conclusions be pled was codified into the Oregon Rules of Civil Procedure. The commentary to ORCP reiterates the fact pleading requirement in Oregon courts. The Council on Court Procedures, Staff Comment to Rule, is in part as follows: The Council decided to retain fact pleading as opposed to notice pleading, i.e., to retain a requirement of fairly specific description of facts as opposed to adopting the less specific fact description allowable in federal courts. * * * The necessity of pleading ultimate facts retains the present Oregon requirements of pleadings facts at a fairly specific level. * * * See Welch v. Bancorp Management Services, Or,, Pd (). Thus, a plaintiff must plead specific facts to support all the elements of his or her claim. When considering the sufficiency of the pleadings, the court does not consider legal conclusions contained therein. Tydeman v. Flaherty, 1 Or App 0, (). In Davis v. Tyee Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

3 1 1 Industries, Inc., Or,, Pd (), the Oregon Supreme Court observed: The general rule has been that a pleading must contain factual allegations which, if proved, establish the right to the relief sought. This rule has been carried forward in the Oregon Rules of Civil Procedure. Alleging the legal elements of a claim is insufficient: mere recitation of the elements of a particular claim for relief, without more, is not a statement of ultimate facts sufficient to constitute that claim for relief. Huang v. Claussen, Or App 0,, Pd (). Oregon rules require more specific fact pleading than the general notice pleading permitted in federal court: Code pleading requires more specificity in allegations than does notice pleading. In that way, code pleading serves to constrain the scope of discovery at the front end of the litigation. That is, if a party attempts to raise issues in discovery or at trial that are not framed by the pleadings, then the opposing party may object on grounds of relevancy in an effort to block discussion or the introduction of evidence on that issue. Oregon Civil Litigation Manual (0 rev. with 0 supp.), Chapter, Pleadings and Parties,.. In this case, the City moves to dismiss plaintiff s claims for economic damages because such an award would give plaintiff a windfall by compensating him twice for the same alleged harm. Plaintiff has therefore not stated a claim for economic damages under ORCP A.. An award of economic damages in this case would enable plaintiff to recover twice for the same harm because plaintiff has already been compensated by a prior jury verdict. Plaintiff seeks a recovery of damages for which he has already been compensated. Plaintiff cannot recover damages twice for the same harm. It is a basic principle of law that a plaintiff s recovery can be reduced when a plaintiff has already recovered compensatory damages for harm. See, e.g., Santiago v. Tamarack Tree Co., 0 WL (D Or Oct., 0, at *-*) ( Here, however, the damages Plaintiffs seek under AWPA arise from violations that are almost entirely duplicative of the violations alleged under OCRA the Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

4 1 1 Court concludes a partial reduction of Plaintiff s damages is sufficient to balance the competing interests of avoiding duplicative awards. ); Passantino v. Johnson & Johnson Consumer Products, Inc., Fd, 0 (th Cir. 0) (affirming the district court s allocation of duplicative damages after a jury found for the plaintiff on equivalent federal and state law claims). For example, any award of front pay must be tempered because of the potential for windfall. Traxler v. Multnomah County, Fd 0, 1-1, citing Duke v. Uniroyal Inc., Fd 1, (th Cir. 1). In this case, plaintiff has separated his claims into two cases, but both cases alleged the same harm and plaintiff recovered for that harm in his first case. Plaintiff filed a prior lawsuit, Michael Boyle v. City of Portland, Multnomah County Case No. -0, against the City of Portland on May 1, 1. As part of that case, plaintiff raised a claim for Failure to Provide Veteran s Preference in Public Employment pursuant to ORS 0.0 and alleged similar claims to the matter at hand. Plaintiff alleged that he had been informed of his layoff from the Senior Public Works Supervisor position effective June 0, 1, and that he had then unsuccessfully applied for multiple positions at the City. Plaintiff alleged claims for age discrimination, failure to provide veteran s preference under ORS 0.0, discrimination because of opposing an unlawful employment practice under ORS A.00(f), and retaliation against whistleblowing. The case proceeded to trial, where a jury found in favor of plaintiff solely on his veteran s preference claim and awarded him $,000 in economic damages and $0,000 in non-economic damages. (See attached Exhibit A, Jury Verdict). The economic damages that the jury awarded to the plaintiff represented his lost past and future compensation. In his direct examination during that trial, plaintiff who currently is still employed with the City of Portland stated that he only had four more years left to work: / / / / / / / / / / Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

5 1 1 BY MR. SNYDER: Q. At your current full-time job as the Parking Security Coordinator, how much do you earn per year? A. Just a little under $,000, I believe. Q. How many more years -- MR. LANDRUM: I'm sorry, say that again. I didn't hear the answer. THE WITNESS: $,000. MR. LANDRUM: Thank you. BY MR. SNYDER: Q. I think you said just under. A. Just under. Q. Yes. How many more years do you intend to work? A. Four more years. (See attached Exhibit B, Excerpt from Trial Transcript of Michael Boyle v. City of Portland, :-). Plaintiff s counsel referred to this time period during closing argument when he asked the jury to consider plaintiff s economic damages: We calculated $,000 for Mr. Boyle's economic damages.... He would have earned about $,000 if he would have gotten the Principal Management Analyst job.... He lost $,00 in loss of premiums. And then for the next approximately three months he had to pay a cost premium, which was -- it cost another $,0. And then beginning in July until he was hired, and that's a full-time -- it was in May -- he had to pay one quarter in premiums. And he also told you about what his work plans will be for the future. He's told you how long he intends to work. And he's going to lose about another $,000 during that period of time. Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

6 1 1 Actually, I think that's a little shy (inaudible). He's going to lose quite a bit of money because he didn't get this job. This is also, as you probably know, going to affect his ultimate Social Security; it probably affects his PERS retirement program, because he's not paying in as much money in those last couple of years. He's not earned as much money in those last couple of years before he retires. So that's a big income from him. (See attached Exhibit C, Boyle Trial Transcript, 1:-1:). At the previous trial, the plaintiff stated that he only intended to work four more years, and plaintiff s counsel referred to that time period when he argued for plaintiff s economic damages and asked the jury to award him an additional $,000 for that time period. Plaintiff testified about his economic damages on direct examination, and during closing argument, his attorney requested economic damages totaling $,000. He received economic damages in that amount. Therefore, plaintiff was compensated for any loss he would suffer for the remainder of his career. Defendant requests that the Court take judicial notice of the prior excerpts of the trial transcript and the fact that plaintiff received a jury verdict of $,000 in economic damages in the case of Michael Boyle v. City of Portland, Multnomah County Case No. -0. The trial transcript and jury verdict are part of the official Multnomah County Circuit Court record. Furthermore, the statements made in the transcript and the jury verdict are facts capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned. ORS 0.0; Oregon Evidence Code Rule 1(b). Following the prior jury verdict, plaintiff now seeks economic damages for the same harm and time period for which he was compensated in Michael Boyle v. City of Portland, Multnomah County Case No. -0. Plaintiff seeks up to $00,000 for current economic damages. The economic damages of plaintiff s previous jury award compensated him for all lost wages that occurred subsequent to the verdict. If he were to get economic damages in this matter, plaintiff would be compensated twice for the same period of time. Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

7 1 1 Such a result would run contrary to the restorative purpose of economic damages. Plaintiff would be compensated twice for his remaining working years. Plaintiff seeks to recover twice for the same harm, and such a damage award is legally impermissible because it would amount to double recovery. The court should dismiss plaintiff s claims for economic damages and not allow for the possibility of plaintiff recovering that pay twice for the same time period. CONCLUSION For the reasons explained above, this court should grant the City s motion. DATED: December,. Respectfully submitted, /s/ Heidi K. Brown Heidi K. Brown, OSB No. Deputy City Attorney heidi.brown@portlandoregon.gov Daniel Simon, OSB No. Deputy City Attorney Of Attorneys for Defendant Page DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

8 1 1 CERTIFICATE OF SERVICE I hereby certify that I served the foregoing DEFENDANT CITY OF PORTLAND S MOTION TO DISMISS on: Daniel Snyder Law Office of Daniel Snyder 00 SW Broadway, Suite 00 Portland, OR Of Attorneys for Plaintiff on December,, by causing a full, true and correct copy thereof, addressed to the lastknown address (or fax number) of said attorney, to be sent by the following method(s): by mail in a sealed envelope, with postage paid, and deposited with the U.S. Postal Service in Portland, Oregon. by hand delivery. by facsimile transmission. by . /s/ Heidi K. Brown HEIDI K. BROWN, OSB # Deputy City Attorney heidi.brown@portlandoregon.gov Fax: (0) -0 Of Attorneys for Defendant Page 1 CERTIFICATE OF SERVICE 1 SW TH AVENUE, RM. 0 PORTLAND, OREGON TELEPHONE: (0) -0 FAX: (0) -0

9 Exhibit A Page 1 of

10 Exhibit A Page of

11 Transcript of Proceedings - Vol. September, 1 -- I hear, Mr. Landrum, that there's a lot of Page detail. And if there's detail that's not entirely necessary, you should be mindful of scheduling. So anyway, take a break. (The morning break was held.) THE COURT: Welcome back. You may be seated. Mr. Snyder, you may continue. MR. SNYDER: Thank you. BY MR. SNYDER: Q. At your current full-time job as the Parking 1 Security Coordinator, how much do you earn per year? 1 A. Just a little under $,000, I believe. Q. How many more years -- MR. LANDRUM: I'm sorry, say that again. I didn't hear the answer. THE WITNESS: $,000. MR. LANDRUM: Thank you. BY MR. SNYDER: Q. I think you said just under. A. Just under. Q. Yes. How many more years do you intend to work? A. Four more years. Q. So you're now? Beovich Walter & Friend Exhibit B Page 1 of 1

12 Transcript of Proceedings - Vol. September 1, 1 much the jobs paid. The one exception is the Page 1 Principal Management Analyst job, and there's an between Suzanne Kahn and the payroll people that says how much the job was going to pay. I think it's $0,0 per annum. And it's also in the budgets of how much these jobs pay. We calculated $,000 for Mr. Boyle's economic damages. We know that he was completely without income and City benefits for about nine months. He would have earned about $,000 if he would have gotten the Principal Management Analyst 1 job. He hadn't been working during that time. He 1 had to pay a significant amount of money, about $00 a month for his health insurance during that slightly more than nine months. He lost $,00 in loss of premiums. And then for the next approximately three months he had to pay a cost premium, which was -- it cost another $,0. And then beginning in July until he was hired, and that's a full-time -- it was in May -- he had to pay one quarter in premiums. And he also told you about what his work plans will be for the future. He's told you how long he intends to work. And he's going to lose about another $,000 during that period of time. Beovich Walter & Friend Exhibit C Page 1 of

13 Transcript of Proceedings - Vol. September 1, Page 1 1 Actually, I think that's a little shy (inaudible). He's going to lose quite a bit of money because he didn't get this job. This is also, as you probably know, going to affect his ultimate Social Security; it probably affects his PERS retirement program, because he's not paying in as much money in those last couple of years. He's not earned as much money in those last couple of years before he retires. So that's a big income from him. Also here was someone who had basically 1 worked at the City of Portland for almost all of his 1 adult working life. He had a couple of short-term jobs working at the post office for a year; doing some part-time work at the Veterans Administration. He worked a little while for the county. But this was pretty much his career since he was a young man. And this has been taken away from him, and it's very, very, very hard for older workers to reestablish themselves in life. It's very hard when you are an older person and something like this is taken away from you. I remember when I was years old, and I found out that I had passed the Oregon State Bar and I thought that my entire life is ahead of me. You Beovich Walter & Friend Exhibit C Page of