Breyer v. Pacific University

Motion to Dismiss for Failure to State a Claim and Memorandum in Support. Oral Argument requested.

D. Or.February 16, 2017

Page 1 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 P.K. Runkles-Pearson, OSB No. 061911 pk.runkles-pearson@millernash.com Taylor Richman, OSB No. 154086 taylor.richman@millernash.com MILLER NASH GRAHAM & DUNN LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: 503.224.5858 Facsimile: 503.224.0155 Attorneys for Defendant Pacific University UNITED STATES DISTRICT COURT DISTRICT OF OREGON PORTLAND DIVISION REBEKAH JOY BREYER, an individual, Plaintiff, v. PACIFIC UNIVERSITY, a domestic nonprofit corporation, Defendant. CV No. 3:17-cv-00036-AC DEFENDANT'S MOTION TO DISMISS AND MEMORANDUM IN SUPPORT ORAL ARGUMENT REQUESTED LR 7-1 CERTIFICATE In compliance with Local Rule 7-1, counsel for defendant certifies that she contacted counsel for plaintiff personally and made a good-faith effort to resolve the dispute, but that the parties have been unable to agree. Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 1 of 8 Page 2 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 MOTION Pursuant to Federal Rule of Civil Procedure 12(b)(6), defendant Pacific University (the "University") requests as follows: (1) That this Court dismiss Plaintiff's Third Claim for Relief for failure to state a claim upon which relief may be granted, because the University is not a public accommodation as defined in ORS 659A.400; and (2) That this Court dismiss Plaintiff's Fourth Claim for Relief for failure to state a claim upon which relief may be granted, because Plaintiff's complaint does not establish that Plaintiff had a contract with the University or that Plaintiff is entitled to economic damages resulting from any breach. MEMORANDUM A. Introduction. Plaintiff is a former student in the University's graduate School of Professional Psychology (SPP) who attended classes for approximately two months in Fall 2015 before she voluntarily withdrew. Plaintiff's complaint against the University alleges public accommodation claims related to disability under Title III of the Americans with Disabilities Act, Section 504 of the Rehabilitation Act, and Oregon statute; and contract and quasi-contract claims. Plaintiff's Third and Fourth Claims for Relief fail to plead matters as to which relief may be granted. In order to allege the Third Claim, Plaintiff must plead facts sufficient to demonstrate that the University is a public accommodation under Oregon law. In order to allege the Fourth Claim, Plaintiff must plead facts sufficient to demonstrate that she had a cognizable contract with the University and that she was entitled to damages resulting from a breach. The University requests that those claims be dismissed because the complaint does not meet those standards. Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 2 of 8 Page 3 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 B. Standards. Federal Rules of Civil Procedure 8(a) provides that a complaint "must contain . . . a short and plain statement of the claim showing that the pleader is entitled to relief . . . ." That rule "requires a 'showing,' rather than a blanket assertion, of entitlement to relief." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 n.3 (2007); see also Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) ("a complaint must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face" (citation and internal quotation marks omitted)). This Court may dismiss claims that fail to state a claim upon which relief may be granted under Federal Rule of Civil Procedure 12(b)(6). C. Plaintiff fails to state a claim under Oregon public accommodations law because the University is not a "public accommodation" subject to ORS 659A.142(4). The complaint asserts a claim for disability discrimination by a public accommodation under ORS 659A.142(4). This Court should dismiss that claim because the University is not a "public accommodation" as defined in Oregon statute. It is an unlawful practice for a public accommodation to discriminate because of a customer's or patron's disability. ORS 659A.142(4). But ORS 659A.400(2)(e) provides that a "public accommodation" does not include any "institution . . . that is in its nature distinctly private." Oregon courts have construed this exception expansively, holding that when organizations are selective about the recipients of their services, they no longer offer those services to the public and thus are not public accommodations. Lahmann v. Grand Aerie of Fraternal Order of Eagles, 202 Or App 123, 127 (2005) (internal quotations omitted) ("[T]he question whether an organization is a place of public accommodation * * * turns on * * * (2) whether its membership policies are so unselective that the organization can fairly be said to offer its services to the public."). The exception applies beyond private clubs. For example, in Graham v. Kold Kist Beverage Ice, Inc., 43 Or App 1037, 1042 (1979), the court held that a Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 3 of 8 Page 4 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 company that sold commercial equipment wholesale (but not retail) was not a public accommodation because it did not sell goods "to the public." The District of Oregon has already applied that standard to dismiss a public accommodation claim against a private university. Vejo v. Portland Pub. Sch., 2016 WL 4708534, at *11 (D. Or. Sept. 6, 2016) (Aiken, J.) (Lewis & Clark College was not a public accommodation under ORS 659A.400 because "its membership processes are not so unselective that it is de facto open to the public"). The complaint contains no facts sufficient to demonstrate that the University is so unselective that it can be said to "offer its services to the public." Nor can it. In fact, the University's admissions rates for the SPP program are at least as selective as those alleged in Vejo. In Vejo, the plaintiff contended that the counseling program admitted two-thirds of its applicants. The court responded, "Even assuming that is the case, a program that rejects one- third of its applicants is not de facto open to the public." 2016 WL 4708534 at *11. Plaintiff's own complaint alleges that the University required her to apply, attend interviews, and meet academic qualifications to be admitted to the doctoral psychology program. Compl. at ¶¶ 2, 13-14. In fact, the University's publicly available statistics demonstrate that of 252 students who applied in 2016, only 56 matriculated.1 There is no doubt that the University selects its students through an application process and does not open its doors to the public at large. Plaintiff has not alleged facts sufficient to show that the University is a "public accommodation" under Oregon law, and she cannot so allege. This Court should dismiss Plaintiff's Third Claim for Relief with prejudice. 1 See https://www.pacificu.edu/future-graduate-professional/colleges/college-health- professions/areas-study/psychology-clinical-psychology-psyd/admissions (last visited February 16, 2017). Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 4 of 8 Page 5 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 D. Plaintiff fails to state a breach-of-contract claim. To prevail on her breach-of-contract claim, Plaintiff must show that (1) she had an enforceable contract with the University, Klimek v. Perisich, 231 Or 71, 80 (1962); (2) she performed her obligations under the contract, MacLean & Associates v. American Guaranty Life, 85 Or App 284, 293-94, rev denied, 304 Or 55 (1987), (3) the University breached a material term of the contract, Modoc Meat & Cattle Co. v. First State Bank of Oregon, 271 Or 276, 286 (1975); and (4) she sustained recoverable damages as a result of the University's breach. As described below, Plaintiff's breach-of-contract claim should be dismissed because the complaint fails to plausibly allege the existence of an enforceable contract or any recoverable damages. 1. The University's student handbook and other publications are not contracts. The "determination whether a contract was formed * * * is a question of law." Real Estate Loan Fund v. Hevner, 76 Or App 349, 355 (1985) (citations omitted). A private university is contractually bound to its students only if it makes "'individualized agreements' to provide specific services to particular students," Gibson v. Walden Univ., LLC, 66 F Supp 3d 1322, 1324 (D Or 2014) (quoting Bird v. Lewis & Clark Coll., 104 F Supp 2d 1271, 1277 (D Or 2000), or its handbook or other publications "includ[e] an 'Agreement Contract,' which require[s] the student to read, sign, and abide by the guidelines contained within the handbook." Gibson, 66 F Supp 3d at 1325 (citing Dauven v. George Fox Univ., 2010 WL 6089077, at *17 (D Or Dec. 3, 2010). Alleged promises contained in a "generally applicable student handbook" and similar publications and marketing materials of a private university are not enforceable as contracts under Oregon law. Gibson, 66 F Supp 3d at 1325. Here, the complaint does not plausibly show that Plaintiff entered an enforceable contract with the University. Instead of pleading that she had an actual contract with the University, Plaintiff alleges that the University was bound to unspecified "promises" set forth in its "admission and enrollment agreements, catalog, student handbook, bulletin, circulars, and Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 5 of 8 Page 6 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 other student contracts or policies." (Compl. ¶ 61.) Plaintiff does not specify any particular promise in any particular document that was breached. Neither does Plaintiff allege that the University agreed to provide her with specific services or that she signed an "Agreement Contract." Plaintiff's claim therefore fails to plausibly allege the existence of a binding contract, and it should be dismissed. 2. Plaintiff fails to allege any recoverable damages. Plaintiff's claim also fails because she does not plausibly plead that the University's alleged breach resulted in economic damages. Recoverable damages for breach of contract are limited to the economic "loss incurred as a result of the defendant's breach." Zehr v. Haugen, 318 Or 647, 658 (1994) (emphasis added). Plaintiff claims that the University breached the purported contract in four ways: (i) when one of Plaintiff's professors asked her to talk about cerebral palsy to her clinic skills class (Compl. ¶ 27); (ii) by discussing whether Plaintiff could administer certain assessments that were a required component of the curriculum (Compl. ¶ 30); (iii) when one of Plaintiff's professors allegedly told Plaintiff that she was uncomfortable recommending her for a practicum placement (Compl. ¶ 33); and (iv) by not providing unspecified accommodations. (Compl. ¶¶ 33-34). None of these alleged actions plausibly resulted in any economic damage to Plaintiff. Plaintiff's claimed economic damages are tuition reimbursement and lost future wages associated with her exit from the SPP program. Compl. ¶ 36. But as plaintiff admits, she withdrew from the University; the University did not expel her. (Compl. ¶¶ 35-36.) Because the associated damages are not attributable to the University's alleged breach, they are not recoverable through a breach-of-contract claim. See Dauven, 2010 WL 6089077 (alleging economic damages due to the university's wrongful expulsion of the plaintiff); Vejo, 2016 WL 4708534 (alleging economic damages based on additional tuition incurred as a result of the Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 6 of 8 Page 7 - Defendant's Motion to Dismiss and Memorandum in Support 4825-0233-0946.2 college imposing additional graduation requirements on the plaintiff). Breyer's claim therefore fails to allege any recoverable damages. The Court should dismiss Plaintiff's breach-of-contract claim because the complaint fails to plausibly suggest that a contract existed between Plaintiff and the University or that Plaintiff sustained any recoverable damages. CONCLUSION The University respectfully requests that this Court grant its motion. DATED this 9th day of February, 2017. MILLER NASH GRAHAM & DUNN LLP s/ P.K. Runkles-Pearson P.K. Runkles-Pearson, OSB No. 061911 pk.runkles-pearson@millernash.com Taylor Richman, OSB No. 154086 taylor.richman@millernash.com Phone: 503.224.5858 Fax: 503.224.0155 Attorney for Defendant Pacific University Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 7 of 8 Page 1 - Certificate of Service 4825-0233-0946.2 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW TELEPHONE: 503.224.5858 3400 U.S. BANCORP TOWER 111 S.W. FIFTH AVENUE PORTLAND, OREGON 97204 CERTIFICATE OF SERVICE I hereby certify that on February 16, 2017, I electronically filed the foregoing Defendant's Motion to Dismiss and Memorandum in Support with the Clerk of the Court using the CM/ECF system and that by doing so I served the foregoing on all parties of record in the subject case via CM/ECF system transmission. DATED this 16th day of February, 2017. s/ P.K. Runkles-Pearson P.K. Runkles-Pearson, OSB No. 061911 Attorney for Defendant Pacific University Case 3:17-cv-00036-AC Document 8 Filed 02/16/17 Page 8 of 8