Francis v. Oregon State University et al

MOTION to Dismiss for Failure to State a Claim

S.D. Cal.November 30, 2016

MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - CASE NO. 16CV1860WQHWVG Michael C. Sullivan (State Bar No. 131817) PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 101 West Broadway, Ninth Floor San Diego, California 92101-8285 Telephone: (619) 237-5200 Facsimile: (619) 615-0700 msullivan@paulplevin.com Michael Porter, P.C., OSB No. 003560 (admitted pro hac vice) 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 mike.porter@millernash.com Attorneys for Defendant Oregon State University UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SYDNEY FRANCIS, Plaintiff, v. OREGON STATE UNIVERSITY, TARAS LISKEVYCH, and DOES 1 Through 100 inclusive, Defendants. Case No. 3:16-cv-01860-WQH-WVG DEFENDANT OREGON STATE UNIVERSITY'S MOTION TO DISMISS NO ORAL ARGUMENT UNLESS REQUESTED BY THE COURT Judge: Hon. William Q. Hayes Trial Date: Not Set MOTION In accordance with Fed. R. Civ. P. 12(b)(6), defendant Oregon State University ("OSU") moves to dismiss the complaint because it fails to state a claim Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 1 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 2 - CASE NO. 16CV1860WQHWVG on which relief can be granted. OSU relies on the points and authorities below and the records and files in this matter. MEMORANDUM I. INTRODUCTION Sydney Francis is a former OSU volleyball player. Her complaint alleges that she was promised an athletic scholarship for her freshman and senior years, but that after her freshman year, she learned that she would have to "earn" her senior-year scholarship. According to the complaint, however, over the next two years, Francis's playing time decreased and her relationship with her coach soured. After her junior year, Francis was dismissed from the team-but the complaint does not indicate whether she received a scholarship for her senior year. Francis nevertheless accuses OSU and her former coach of breaching her scholarship contract, and alleges claims for intentional infliction of emotional distress ("IIED"), civil conspiracy, and punitive damages.1 Because Francis fails to allege facts sufficient to support any viable claim against OSU, the court should grant OSU's motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6). Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (to survive a motion to dismiss, plaintiff's factual allegations must "state a claim to relief that is plausible on its face.") (internal quotation marks and citation omitted). 1 Francis also appears to assert claims for "Fraud-Deceit" and "Fraud-Bad Faith." (Compl. ¶ 46.) But the fifth page of Francis's complaint was not filed, and therefore these claims (and paragraphs 24 through 32) are missing from the complaint. As this Court is aware, OSU's counsel notified Francis's counsel that this page was missing from the complaint, but Francis's counsel has not yet corrected the issue. Accordingly, because there are no allegations currently in the complaint pertaining to "Fraud-Deceit" and "Fraud-Bad Faith," these claims should be dismissed. Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 2 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 3 - CASE NO. 16CV1860WQHWVG II. THE ALLEGATIONS OF THE COMPLAINT Francis is a senior at OSU and formerly a member of its women's volleyball team.2 She was recruited by OSU's former head volleyball coach, Taras Liskevych. (Compl. ¶¶ 8-9.) The complaint asserts that "to persuade [Francis] to play at OSU," Liskevych promised her a full scholarship, without "any conditions or qualifications," for her freshman and senior years. (Compl. ¶ 11.) She was not promised a scholarship for her sophomore and junior years. Francis received a full scholarship during her freshman year (the 2013-2014 academic year). But according to the complaint, in the spring of that year, Liskevych "called a meeting with [Francis] and told her that in order to receive her second year of scholarship she would have to earn it . . . [by] start[ing] more than one-half of the games" during her sophomore and junior years. (Compl. ¶ 13.) Over the course of her sophomore and junior years, Francis's coaches reiterated these performance standards (Compl. ¶¶ 16, 20), which Francis asserts were "completely contrary" to the scholarship offer to which she had agreed. (Compl. ¶ 14.) Francis's parents also raised this issue with the OSU Athletic Department. (Compl. ¶ 18.) During Francis's junior year (the 2015-2016 academic year), a scholarship became available for the women's volleyball team. The scholarship covered tuition and fees for the winter, spring, and summer quarters of the 2015- 2016 academic year (but not fall quarter of that year). OSU offered the scholarship to Francis, but according to the complaint, she "refused to accept" it. (Compl. ¶ 23.) The complaint appears to suggest-but does not specifically 2 For purposes of this motion to dismiss only, OSU treats all allegations as true. Keams v. Tempe Tech. Inst., Inc., 39 F.3d 222, 224 (9th Cir. 1994). Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 3 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 4 - CASE NO. 16CV1860WQHWVG allege-that the scholarship was initially offered in lieu of providing Francis with a scholarship during her senior year. Id. Near the end of the volleyball season during Francis's junior year, Francis received a "Return[ing] Players Letter," which she apparently interpreted as confirmation that she would keep her position on the team the following year. (Compl. ¶ 23.) At the end of her junior-year season, however, Francis was dismissed from the team. (Compl. ¶ 19.) This lawsuit followed, alleging that OSU breached an agreement with Francis, and that Francis's coach acted tortiously by imposing performance standards on Francis and "threat[ening] [to] withdraw" her scholarship if she did not meet these standards. The complaint does not allege that OSU actually failed to provide Francis with a full scholarship for her senior year. III. POINTS AND AUTHORITIES A. The Complaint Fails to State a Breach-of-Contract Claim Because Francis Has Not Alleged That OSU Failed to Perform Its Contractual Obligations. Francis's first cause of action alleges a breach of contract. It appears from the complaint that the alleged breach occurred when, after promising Francis a full scholarship for her senior year, defendants (1) informed Francis that "she would have to earn" her senior-year scholarship by "start[ing] more than one-half of the games" in her sophomore and junior years (Compl. ¶ 13) and then (2) offered her a different scholarship during her junior year. (Compl. ¶ 23.) As noted above, the complaint does not allege that OSU failed to award Francis the Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 4 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 5 - CASE NO. 16CV1860WQHWVG promised senior-year scholarship, which is independent of her dismissal from the volleyball team.3 As an initial matter, this claim is properly analyzed under Oregon law. Federal courts sitting in diversity apply the choice-of-law rules of the state where the court sits. Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941). Under Cal. Civ. Code § 1646, "[a] contract is to be interpreted according to the law and usage of the place where it is to be performed." Since there is no dispute that the contract (the athletic scholarship) was to be performed at OSU in Oregon, Oregon law applies. To state a viable breach of contract claim under Oregon law, Francis must allege that (1) the parties had an enforceable contract, (2) OSU breached the terms of this contract, and (3) Francis sustained recoverable damages as a result of OSU's breach. 1. Francis does not allege a contractual breach. Francis's breach-of-contract claim should be dismissed because it fails to allege that OSU actually breached any of its contractual obligations to Francis. Although Francis asserts that she was promised a full scholarship for her senior year at OSU, she does not allege that she did not receive this scholarship. Accordingly, absent any allegations that OSU failed to award Francis the promised scholarship, Francis's first cause of action fails as a matter of law. 2. Francis also does not allege any recoverable damages. Francis's also fails to plead facts to establish the third element of a viable breach of contract claim because she does not identify any recoverable damage as a result of OSU's alleged conduct. The remedy for breach of contract is 3 To clarify, students may still be eligible to receive an athletic scholarship when they are dismissed from an OSU athletic team. Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 5 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 6 - CASE NO. 16CV1860WQHWVG limited to a party's expectation interest. Zehr v. Haugen, 318 Or. 647, 658, 871 P.2d 1006 (1994). A party's expectation interest "plac[es] the aggrieved party in the position that he or she would have occupied had the contract been fully performed." Id. Here, Francis's expectation interest is the value of her senior-year scholarship. But Francis has not alleged that OSU failed to award her this scholarship. Thus, even if Francis plausibly alleges that OSU breached its contractual obligations by requiring her to earn her senior-year scholarship, her claim still fails because she has not alleged recoverable damages. The Court should dismiss Francis's breach-of-contract claim because the complaint fails to plausibly suggest that OSU breached any contractual obligation to Francis or that Francis has sustained any recoverable damages. B. Francis's IIED Claim Should be Dismissed Because The Complaint Does Not Allege Outrageous Conduct. Francis next claims that OSU is liable for IIED because Liskevych allegedly threatened to withdraw Francis's athletic scholarship. (Compl. ¶ 38.) This claim should be dismissed because it fails to plausibly state a claim for IIED. 1. Francis's IIED claim should be analyzed under Oregon law. As explained in Section A, a federal court sitting in diversity applies the choice-of-law rules of the state in which the court sits. Klaxon Co., 313 U.S. at 496. California courts have held that a tort completed in a foreign jurisdiction provides a presumptive interest in applying the foreign state's law. Castro v. Budget Rent-A-Car Sys., Inc., 154 Cal. App. 4th 1162, 1180, 65 Cal. Rptr. 3d 430 (2007). In this case, the allegedly tortious conduct (meetings at which defendants allegedly threatened to take away Francis's scholarship) took place in Oregon. Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 6 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 7 - CASE NO. 16CV1860WQHWVG (See, e.g., Compl. ¶¶ 13, 16, 20.) Consequently, under California's choice-of-law rules, Francis's claim is governed by Oregon law. 2. The alleged conduct is not outrageous under Oregon law. To prove IIED under Oregon law, a plaintiff must establish that "(1) the defendant intended to inflict severe emotional distress on the plaintiff, (2) the defendant's acts were the cause of the plaintiff's severe emotional distress, and (3) the defendant's acts constituted an extraordinary transgression of the bounds of socially tolerable conduct." McGanty v. Staudenraus, 321 Or. 532, 543, 901 P.2d 841 (1995) (internal quotation marks and citation omitted). Only conduct "'so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community'" will support a sufficiently outrageous transgression to sustain an IIED claim. House v. Hicks, 218 Or. App. 348, 358, 179 P.3d 730 (2008) (quoting Restatement (Second) of Torts § 46 cmt. d (1965)). Whether the defendant's alleged conduct rises to this level of outrageousness is a question of law. Tenold v. Weyerhaeuser Co., 127 Or. App. 511, 517, 873 P.2d 413 (1994), rev. dismissed, 321 Or. 561 (1995). As a matter of law, Francis does not allege conduct that is sufficiently outrageous to sustain an IIED claim. Francis's claim is essentially that when she was recruited to play volleyball for OSU, she was promised an athletic scholarship for her senior year (Compl. ¶ 11) and she later became distressed when her coaches told her that she would have to earn this scholarship through her athletic performance during her sophomore and junior years. (Compl. ¶¶ 13, 16, 20.) These alleged "threats" to Francis's scholarship do not constitute outrageous conduct sufficient to state a claim for IIED. First, it is not outrageous for a college athlete to be expected to earn a scholarship through athletic Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 7 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 8 - CASE NO. 16CV1860WQHWVG performance-irrespective of whether she understood this when she was recruited. Moreover, Francis does not even allege that OSU carried out these alleged "threats" to withdraw her scholarship-thus wholly undermining Francis's claim that defendants' conduct was so outrageous in character as to be actionable. Accordingly, Francis has failed to state a claim for IIED that is plausible on its face under Oregon law.4 C. Francis's Civil Conspiracy and Punitive Damages Claims Should Be Dismissed Because Neither Is a Recognized Claim in Oregon or in California. Francis's claims for civil conspiracy and punitive damages should be dismissed because neither of these claims is a recognized cause of action under Oregon or California law. 1. Civil conspiracy is a theory of joint liability, not a cause of action. Francis' fifth cause of action alleges that OSU engaged in a civil conspiracy. This claim should be dismissed because civil conspiracy is not a 4 In addition, as explained in Section D, Francis's claims against Liskevych should be dismissed because Liskevych has not been served in accordance with Fed. R. Civ. P. 4. (Defense counsel appears on behalf of Liskevych for the limited purpose of asserting that this Court does not have jurisdiction over Liskevych.) Moreover, the Oregon Tort Claims Act (the "OTCA") bars Francis from asserting a tort claim against any employee of OSU. See ORS 30.260(4), 174.117 (defining "public university" as a "special government body"), 174.109 (defining "special government bodies" as a "public body" for the purposes of the OTCA). The application of the OTCA to Francis's claim is appropriate under principles of comity. See, e.g., Milwaukee Cty. v. M.E. White Co., 296 U.S. 268, 272-73 (1935) ("Where suits to enforce the laws of one state are entertained in the courts of another on the principle of comity, the federal District Courts sitting in that state may entertain them and should if they do not infringe federal law or policy."). Under the OTCA, "[t]he sole cause of action for a tort committed by . . . employees . . . of a public body acting within the scope of their employment or duties . . . is an action under [the OTCA]. . . . No other form of civil action is permitted." ORS 30.265(2). Accordingly, tort claims against employees of OSU are not cognizable. Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 8 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 9 - CASE NO. 16CV1860WQHWVG separate cause of action under Oregon or California law; rather, it is a theory of joint liability. See Bonds v. Landers, 279 Or. 169, 175, 566 P.2d 513 (1977) (explaining that "civil conspiracy is not an independent tort" in Oregon); Granewich v. Harding, 329 Or. 47, 53, 985 P.2d 788 (999) (affirming that civil conspiracy is not a separate cause of action, but instead is one "of several ways in which a person may become jointly liable for another's tortious conduct"); Applied Equip. Corp. v. Litton Saudi Arabia Ltd., 7 Cal. 4th 503, 510-11, 869 P.2d 454 (1994) (explaining that in California, "[c]onspiracy is not a cause of action, but a legal doctrine that imposes liability on persons who . . . share with the immediate tortfeasors a common plan or design in its perpetration"). Consequently, Francis's allegation that OSU "consented, intended, and/or acquiesced to the [allegedly tortious] conduct" (Compl. ¶ 43) fails to plausibly state a claim for relief recognized under Oregon or California law. This claim should be dismissed with prejudice. 2. Public entities are not subject to punitive damages under California or Oregon law. Francis's final cause of action asserts that OSU is liable for punitive damages under Cal. Civ. Code § 3294. (Compl. ¶ 46.) Like Francis's civil conspiracy claim, a claim for punitive damages does not constitute a separate cause of action. And in any event, the California Government Code specifically abolished any liability for punitive damages against public entities, such as OSU. See Cal. Gov't Code § 818 ("Notwithstanding any other provision of law, a public entity is not liable for damages awarded under Section 3294 of the Civil Code or other damages imposed primarily for the sake of example and by way of punishing the defendant.") (emphasis added). Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 9 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 10 - CASE NO. 16CV1860WQHWVG Francis is also prohibited from seeking punitive damages under Oregon law. In Oregon, "[p]unitive damages may not be awarded on any claim subject to [the OTCA]." ORS 30.269(1). Because Francis's causes of action against OSU, and its officers, employees, and agents, are subject to the OTCA, her claim for punitive damages is barred as a matter of law and should be dismissed with prejudice. ORS 30.265(1) (scope of liability of public body, officers, employees, and agents). D. Liskevych Has Not Been Properly Served.5 In accordance with Fed. R. Ci. P. 4, service of process on an individual defendant may be executed only by personal service, by service at the defendant's dwelling or usual place of abode, by service to an authorized agent of the defendant, or according to the laws of the state where the district court is located. Since this Court sits within California, service of process may be executed by one of the methods identified in Cal. Code Civ. P. § 415.10 et seq. The Court must dismiss the complaint if service of process is not completed within 90 days after the complaint has been filed. Fed. R. Civ. P. 4(m). Francis filed her complaint on July 21, 2016. As of the date of OSU's motion, Francis has not effected personal service on Liskevych, nor served Liskevych through any of the other acceptable methods of service of process.6 See Fed. R. Civ. P. 4(e); Cal. Civ. P. Code § 415.10 et seq. Because it has been more 5 As previously noted, counsel appears on behalf of Liskevych for the limited purpose of asserting that this Court does not have jurisdiction over Liskevych because he has not received proper service of process. 6 Francis attempted to serve Liskevych by delivering a copy of the summons and complaint to the OSU Office of General Counsel. But OSU is not an authorized agent of Liskevych for the purpose of service of process, and therefore this attempt at service was not good service. Liskevych is not employed by OSU. (Declaration of Naomi Horne.) Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 10 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 11 - CASE NO. 16CV1860WQHWVG than 90 days since Francis filed her complaint and Liskevych yet to be properly served, the Court should dismiss all claims against Liskevych. IV. CONCLUSION For the reasons described above, Francis cannot prevail on any of her claims against OSU or her former coach as a matter of law. Francis fails to allege that OSU actually breached any contractual promise to her, her complaint does not identify sufficiently outrageous conduct to state a claim for IIED, and her claims for civil conspiracy and punitive damages are not viable under Oregon or California law. In addition, because Liskevych has not received proper service under Fed. R. Civ. P. 4, all claims against this individual defendant fail. Accordingly, all of Francis's claims should be dismissed and judgment entered for OSU and Liskevych. DATED this 30th day of November, 2016. MILLER NASH GRAHAM & DUNN LLP s/Michael Porter Michael Porter, OSB No. 003560 michael.porter@millernash.com Miller Nash Graham & Dunn LLP 111 S.W. Fifth Avenue, Suite 3400 Portland, Oregon 97204 Telephone: (503) 224-5858 Fax: (503) 224-0155 Attorneys for Defendant Oregon State University Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 11 of 12 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - CASE NO. 16CV1860WQHWVG PROOF OF SERVICE Francis v. Oregon State University et al. Case No. 16 CV 1860 WQH WVG STATE OF OREGON, COUNTY OF MULTNOMAH At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Multnomah, State of Oregon. My business address is 111 S.W. Fifth Avenue, Suite 3400, Portland, Oregon 97204. On November 30, 2016, I served true copies of the following document(s) described as DEFENDANT OREGON STATE UNIVERSITY'S MOTION TO DISMISS on the interested parties in this action as follows: Mr. Thomas Christy Law Office of Thomas Christy 9750 Miramar Road, Suite 215 San Diego, California 92126 Telephone: (858) 586-0486 E-Mail: tom@thomaschristy.com Attorney for Plaintiff BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am admitted pro hac vice of the bar of this Court and that service was made. Executed on November 30, 2016, at Portland, Oregon. s/Michael Porter Michael Porter Case 3:16-cv-01860-WQH-WVG Document 13 Filed 11/30/16 Page 12 of 12 1 2 3 4 5 6 7 8 9 IO 11 12 13 14 15 16 17 18 19 20 21 22 23 Michael C. Sullivan, CSB No. 131817 PAUL, PLEVIN, SULLIVAN & CONNAUGHTON LLP 101 West Broadway,, Ninth Floor San Diego, California 92101-8285 Telephone: (619) 237-5200 Facsimile: (619) 615-0700 msullivan@paulplevin.com Michael Porter, P.C., OSB No. 003560 (admitted P!O hac vicel MILLER NASH GRAHAM & DUNN LLP 3400 U.S. Bancorp Tower 111 S.W. Fifth Avenue Portland, Oregon 97204 Telephone: (503) 224-5858 Facsimile: (~03). 224-0155 mike.porter@millemash.com Attornexs for Defendant Oregon State University UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF CALIFORNIA SYDNEY FRANCIS, Plaintiff, v. OREGON STATE UNIVERSITY, TARAS LISKEVYCH, and DOES 1 Through 100 inclusive, Defendants. Case No. 3:16-cv-01860-WQH-WVG DECLARATION OF NAOMI HORNE IN SUPPORT OF DEFENDANT OREGON STATE UNIVERSITY'S MOTION TO DISMISS DECLARATION OF NAOMI HORNE 24 I, Naomi Horne, declare as follows: 25 1. I am employed as an Executive Assistant to the General Counsel at 26 Oregon State University ("OSU"). Unless otherwise indicated, I have personal 27 28 4815-1210-3741.1 MILLER SH GRAHAM & UNN LLP ATTORNEYS LAW PORTLAND - 1 - CASE NO. 16CV1860WQHWVG Case 3:16-cv-01860-WQH-WVG Document 13-1 Filed 11/30/16 Page 1 of 4 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 knowledge of the facts set forth in this declaration and, if called as a witness, could and would testify to the following facts: 2. On October 26, 2016, a copy oft12:,e· summons and complaint in the above captioned case was hand delivered to me at the OSU General Counsel's Office at Kerr Administration Building 638, 1500 SW Jefferson Avenue, Corvallis, OR 97331. On November 14, 2016, another copy of the summons and complaint was hand delivered to me at the OSU General Counsel's Office. Copies of the summonses and complaints from October 26 and November 14 are attached as Exhibits 1 and 2 respectively. 3. According to OSU's employment records, Liskevych was not an OSU employee on October 26, 2016, and he has not been employed by OSU since then. 4. OSU was not an authorized agent ofLiskevych for the purpose of service of process on October 26, 2016, nor has OSU been an authorized agent of Liskevych for the purpose of service of process since then. ,, "'i I declare under penalty of perjury under tl;ie laws of the United States of America that the foregoing is true and correct. Executed on this day ofNovember, 2016, at"""""'""-"-..""'1.!.!lV.,_-=-~~'-"-'-- Naomi Horne 1· 4815-1210-3741.1 - 2 - CASE NO. 16CV1860WQHWVG MILLER NA ;RAHAM & D NN LLP ATTORNEYS AT L W PORTLAND Case 3:16-cv-01860-WQH-WVG Document 13-1 Filed 11/30/16 Page 2 of 4 Table of Contents for Exhibits Exhibit Description Page No. 1 Summons & Complaint hand delivered on October 26, 2016, to Naomi Horne at the OSU General Counsel's Office 1-8 2 Summons & Complaint hand delivered on November 14, 2016, to Naomi Horne at the OSU General Counsel's Office 9-16 Case 3:16-cv-01860-WQH-WVG Document 13-1 Filed 11/30/16 Page 3 of 4 MILLER NASH GRAHAM & DUNN LLP ATTORNEYS AT LAW PORTLAND 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 - 1 - CASE NO. 16CV1860WQHWVG PROOF OF SERVICE Francis v. Oregon State University et al. Case No. 16 CV 1860 WQH WVG STATE OF OREGON, COUNTY OF MULTNOMAH At the time of service, I was over 18 years of age and not a party to this action. I am employed in the County of Multnomah, State of Oregon. My business address is 111 S.W. Fifth Avenue, Suite 3400, Portland, Oregon 97204. On November 30, 2016, I served true copies of the following document(s) described as DECLARATION OF NAOMI HORNE IN SUPPORT OF DEFENDANT OREGON STATE UNIVERSITY'S MOTION TO DISMISS on the interested parties in this action as follows: Mr. Thomas Christy Law Office of Thomas Christy 9750 Miramar Road, Suite 215 San Diego, California 92126 Telephone: (858) 586-0486 E-Mail: tom@thomaschristy.com Attorney for Plaintiff BY CM/ECF NOTICE OF ELECTRONIC FILING: I electronically filed the document(s) with the Clerk of the Court by using the CM/ECF system. Participants in the case who are registered CM/ECF users will be served by the CM/ECF system. Participants in the case who are not registered CM/ECF users will be served by mail or by other means permitted by the court rules. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct and that I am admitted pro hac vice of the bar of this Court and that service was made. Executed on November 30, 2016, at Portland, Oregon. s/Michael Porter Michael Porter 4821-0586-1437.1 Case 3:16-cv-01860-WQH-WVG Document 13-1 Filed 11/30/16 Page 4 of 4 Exhibit 1 Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 1 of 9 United States District Court SOUTHERN DISTRICT OF CALIFORNIA Sydney Francis Plainliff v. Oregon State University. Taras Liskevych, and Does 1 Through l 00 inclusive Defendant Civil Action No. 16cv1860-WQH-WVG SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) A lawsuit has been filed against you. Within 21 days after seivice of this swnmons on you (not counting the day you received it) - or 60 days if you are the United States or a United States agency, or an office or employee of the United States described in Fed. R. Civ. P. 12(a)(2) or (3)- You must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must b:e served on the plaintiff or plaintiff's attorney, whose name and address are: Thomas Christy 9 750 Miramar Road, Suite 215 San Diego, CA 9212 (858) 586-0486 If you fail to respond, judgment by default will be entered against you for the relief demanded in the: complaint. You also must file your answer or motion with the court. Date: 7/21116 ____ __; __ =-.;... _____ ___ John Morrill CLERK OF COURT St M. Niebla Signature of Clerk or Deputy Clerk EXHIBIT 1 - 1 . wcw :t& P¥ a :;::ue s ms ( . . . ,.,.AIP . 01 , ;aeutiSSIUJ& a own ! Cle ( "' di Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 2 of 9 AO.WI ~ummons in a Civil Action Civil Action No.16-cv-1860-WQH-q Date Issued: 7/21/16 PROOF OF SERVICE (This secfi(>n should not be flied with the court unless required by Fed. R. Civ. P. 4(1)) This summons for (name of individual and ritle, if any)---------------- was received by me on rdateJ ----- ------ Date: 1 personally served the summons on the individual at (place)-------------- ____________________ on (date) _______ ; or I left the summons at the individual's residence or place of abode with (name) -------- ____________ ___,. a person of suitable age and discretion who resides there, on (date) -------...J and mailed a copy to the individual's last known address; or I served the swnmons on (name of the individual) , who is -------------~ d1esignated by law to accept service of process on behalf of (name of organization) ------- ______________________ on (date) _____ ; or I returned the summons unexecuted because ; or ----------------------- 0th er {specify): My fees are $ _____ for travel and $-----for services, for a total of$ ___ _ I declare under penalty of perjury that this infonnation is true. Server's Signature Printed name and title Server's address NOTICE OF RIGHT TO CONSENT IO TRIAL BY A UNITED STATES MAGISTRATE JUDGE IN ACCORDANCE WITH THE PROVISION OF 28 USC 636(C) YOU ARE HEREBY NOTIFIED THAI A U.S. MAGISTRATE JUDGE OF THIS DISTRICT MAY, UPON CONSENT OF ALL PARTIES, CONDUCT ANY OR ALL PROCEDDINGS, INCLUDING A JURY OR NON-JURY TRJAL, AND ORDER THE ENIR Y OF A FINAL JUDGMENT. YOU SHOULD BE AWARE THAT YOUR DECISION TO CONSENT OR NOT CONSENT IS ENTIRELY VOLUNTARY AND SHOUL BE COMMUNICATED SOLELY TO THE CLERK OF COURT. ONLY IF ALL PARTIES CONSENT WILL THE JUDGE OR MAGISTRATE JUDGE WHOM THE CASE HAS BEEN ASSIGNED BE INFORMED OF YOUR DECISION. JUDGMENTS OF THE U.S. MAGISTRATE JUDGES ARE APPEALABLE TO THE U.S. COURT OF APPEALS IN ACCORDANCE WITH THIS STATUTE AND THE FEDERAL RULES OF APPELLATE PROCEDURE. EXHIBIT 1 - 2 ::;: ;Q&;t Ad% bj$(( 440 . . :ms.s k_t.14%0 . g ,o S.S g . • *A.®G!EfWWW OCS =~#UC.MSW I • • w ... = · Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 3 of 9 <·::C:USC • a~~ ~.J.O·CV-Ul~t°')WQH-WVG Document 1 Filed ORl/16 Page 1 of 6 1 Thomas Christy. EsQ.(SBN 159818) LAW OFFICE" OF 'l"HOMAS CHRIS1Y 2 9750 Miramar Ro~ Suite 21 S San Di~~._ Califonua 92126 3 =3::4~.CQm 4 S AUomey for Plaintiff SYDNEY FRANCIS FILED I JUL H 2016 CLERK US DIS I i·=1tCT COURT SOVTHERN DISTRICT OF CALIFORNIA I BY DEPUTY 6 1 8 9 UNITED STATES 9ISTRICT COURT "' . SOUTHERN DISTRICT OF CALIFORNIA 10 SYDNEY FRANCIS, 11 12 13 v. PJailrtiff 14 OREGON STATE UNIVERSITY, TARAS LISKEVYCH, and DOES 1 15 Through 100 inclusive 16 Defendants 17 c.aseNY>CV 1860 WQH WVG · COMPLAINT FOil DAMAGES :·) JURY TRIAL DEMANDED COMES NOW the Plaintift' named herein, and for Complaint against the Defendants named herein, 18 Plaintiff further shows the Court the following: 19 20 JURISDJCTIQN AND VENUE 21 Jurisdiction in this Complaint is based on complete Diversity of Citi7.enship between Plaintiff and 22 Defendams and the matter in controversy greatly exceeds the smn of seventy-five thousand dollars 23 ($75,000.00), exclusive of interest and costs. In addition. veuue is proper in thi8 Court as the original 24 coniract was made, in part in the Southem District of California. 2S QENERAL AI.LEGATIONS COMMON TO ALL CAUSES OF ACTION 26 1. Plaintiff SYDNEY FRANCIS, {Hereinafter "FRANCIS") is an individual, a resident of 27 San Diego County California. and a student at OREGON STA TE UNIVERSITY. 28 2. Defendant OREGON STA TE UNIVERSITY (Hereinafter "OSU"), is a coeducational, 1 EXHIBIT 1 - 3 4$ • Q .._.,._,_..;:a;:::_ ol>&tNJ!dH c • .. :::: oWJ . • . • ;.w:; ,s .. ; ;. ,µQC;lJ .. JC -- C µU:W,@ULIW . w . Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 4 of 9 1 public resemch university located in Corvallis, OJeson. 2 3. Defendant TARAS LISKEVYCH (Hereinafter "Coach Terry") is an individual and bearl 3 coach of the women's volleybell t.eam at OSU. 4 4. . The true names and capacities of DOES 1 through 100 are unknown to Plaintiff, who S therefore sues said Defendants by such fictitious names. Plaintiff will seek leave of court to amend this complaint to allege each Defendant's true name and capacity when ascertained. Plaintiff is 6 informed and believes and thereon alleges that each of the fictitiously named Defendants is 7 msponsibl~ in some manner, for the acts and conduct alleged in this complaint and the Plaintifrs 8 harm and losses, as herein alleged, were directly and proximately caused by the acts and conduct of 9 said fictitiously named Defendants. 10 5. Plain1iff is informed and believes, and thereon alleges, that at all times herein mentioned, 11 each of the Defendants was, and is. the directors. officers, partners, agents, servants, representatives, 12 independent contractors, joiDt vmnuezs, alt.eMsgos and/or employee of each or soine of the 13 Defmdurts named~ and in doing the things alleged in this complain~ ea:h such Defendant 14 was acting within the coune and sa>pe of said reprearntalive capacity with the full knowledge, 15 consent, approval, permission and ratification of oaeh other Defendant named herein. 16 17 18 FIRST CAUSE OF AC1JQN (Breach of Contract) 6. Plaintiff refers to paragraphs 1 through S and incorporate the same herein as though fUlly 19 set forth in this place. 20 7. In 2012 and 2013 Sydney Francis, (FRANCIS) had drawn the attention of collegiate 21 rccrui1erS from a number of.universitim who were seeking to recruit talen1ed players to play for their 22 women.ts volleyball programs. FRANCIS was a stellar p~yer. a four-year starter and an outstanding 23 student at La Costa Canyon High School in Sao Diego. California. 24 25 &. Defendant Taras Liskcvych (COACH TRRR.Y) was the head coach of the women's volley ball team at Defendmt Oregon State University (OSU) and had come to 8an Diego a number of times to witness FRANCIS playing in games and toumaments to evaluate her talent level and 26 detennioe whether she was good eoouah player to recruit for the program. 27 28 2 EXHIBIT 1 - 4 Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 5 of 9 "'"'" .., .. ur~v-uJ.tltfU-WQH-WVG Document 1 Filed or~/16 Page 3 of 6 1 9. COACH TERRY, bad observed her play during her junior year (2012) and her senior 2 Year (2013) and concJuded that she was a very good player and important enough that she should b 3 offered an athletic scholarship to play at OSU. 4 10. By her senior year, FRANCIS had already received scholarship offers from other 5 6 7 universities and was assessing the various universities, the academics, the athletic program, coache! locale and ultimately whether they offered scholarships, as paying tuition would be a financial hardship. 11. COACH TERRY actively sought to recruit FRANCIS and met with her on several 8 occasions and tried to persuade her to play at OSU. COACH TERRY represented to FRANCIS and 9 her fiunily that he would offer 2 years of full scholarship for her Freshman and Senior years. At no 10 time were any conditions or qualifications placed oo the offer. After some consideration. FRANCIS 11 agreed to play for COACH TERRY at OSU and committed to the university. 12 12. For her Freshman and Sophomore years FRANCIS was the ide811 student athlete. She was 13 an honor student and good player. She worked bard, took instruction easily,. attendoo all the practices 14 and mmings, and was well-lilced by both the coaches and her teammates. 15 13. Although FRANCIS bad unequivocally been promised that she would receive 2 years of paid scholarship, in May 2014, COACH TERRY called a meeting with FRANCIS and told her that 16 in order to receive her second year of scholarship she would have to earn it. FRANCIS was further 17 told that unless she started more than o~balf of the games she would not get her scholarship. 18 14. This information was completely contrary to the agreed upon scholarship offer presented l 9 to FRANCIS when she accepted the offer to come and play for OSU. Further, COACH TERRY had 20 complete control over FRANCIS' playing time and could arbitrarily bench her and make it 21 impossible for FRANCIS to fulfill this new demand. 22 15. This exact scenario waswbat came to pass at the beginning of FRANCIS Junior 23 year. Notwithstantting the fact that FRANCIS had a great pre-season and was playing well going 24 into the season, FRANCIS' playing time was reduced so substantially that she would not even play 25 in the games. The reduction of her playing time was automatically done just by the coach altering the playing scheme where the defensive players were replaced by offensive players. As a result, it 26 was apparent the FRANCIS would not be able to fulfill this new requirement and receive the 27 scholarsbip for her Senior year. 28 3 EXIDBIT 1 - 5 Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 6 of 9 ~ . . M . iPJC - - • w -~··r ... ~..-vv v\.:l uocument l Filed 051116 Page 4 of 6 1 16. A meeting was scheduled on November 30, 201 S to discuss the situation. COACH 2 TERRY and two other coaches were present. Nominally it was presen1ed as a meeting to USC3S a 3 player's sticngths mid weaknesses. Once the meeting commenced however, it became imnwtiately 4 obvious that the meeting was oot for the purpose of a genuinely evaluating FRANCIS' skill as a S player, but one in which FRANCIS was to resign herself to 1be fact that her scholarship had been 6 taken from her. 11. FRANCIS was devastated that she bad been lied-to end manipulated to fail. She infonne< 7 her parc:ms of the situation and oontactal the university's office of P.quity and Inclusion to protest 8 her treatment and request a hearing on the matter. 9 18. In addition. FRANCIS' father sent a letter to the Athletic Department inquiring about the 10 situation, and the prior representations which had been made to FRANCIS and her family. 11 19. In retaliation, without warning or jUBtifiable cause, COACH TERRY dismissed 12 FRANCIS fiom the team. 13 20. A conference regmding the matter was conducted in January 2016. In an attempt to 14 support bis conduct, COACH TERRY cited FRANCIS' lack of play, and made false statements 15 ostensibly attnDutable to FRANCIS to make her look as if she were a poor player who was insubordinate and confrontational. 16 17 21. FRANCIS to some degree had anticipaled that COACH TERRY would seek to justify bi conduct by attacking her~ so she had prepared herself with the accurate record of the events and 18 statements to demoDStrate that COACH TERRY was then attempting to cover-up bis conduct by 19 defaming her. 20 22. As further evidence that COACH TERRY was retaliating against FRANCIS and 21 kicked her off the team umc.lated to her performance, she had recently received her "Returnee 22 Players Letter" which was approved by the coaching staff BDd given out only to the players who 23 were part of the team and expected to follow the instructional program to prepare for the next 24 season. 23. FRANCIS was then contacted by 1be Athletic Department and began pressuring her to accept an invalid 3-tenn scholarship deal instead of the 4-term, which was in violation of NCAA 26 rules. FRANCIS refused to accept 1he offer. 27 28 . o+a .... a . ;w:c :e :. .a.za ea • .,....;ses p;;;a: $ . 4 EXHIBIT 1 - 6 . L ;as I ... . :c e.ae » Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 7 of 9 - --- ... . ... v ..,.,, ·v.1..uvv~~v1..JH~wvc.; Document 1 Filed ORl/16 Pag,e 5 of 6 '· . 1 33. Defendants acted in bad faith aod fraudulently as they knew the claims of additional 2 performance were false and intentionally and wrongfully prevented the Plaintiff from performing. 3 34. FRANCIS has suffered harm end damage as a direct and proximate result of 4 Defendant's Fraud/Bad Faith in an amount to be de1ermined at time of trial. s 6 7 8 FOUR.TH CAUSE OF ACTION (Intentional lniliction of Emotional Distress) 35. Plaintiff ref en to paragraphs 1 through 34 and incorporates the same herein as though 9 fully set forth in this place. 10 36. Defendants conduct of deceiving and deftauding Plaintiff cause her severe emotional 11 distress. 12 37. Defendantt conduct was outrageous in that the Defmdants abused a position of 13 authority as coaches and mentors and bad real and/or apparent power to affect Plaintiff's interest. 14 38. Further, Defendants conduct was outrageous as the Defendant's knew as a player 15 Plaintiff was not only subject to Defendant's apparent position of authority,, but also that she was especially wlnerable as they had control over her financial interest in her scholarship and would 16 39. Defendants knew 1hat the conduct would result in Plaintiff's emotional distrea be emotionally distressed by the threat of withdrawing the scholarship. 17 18 40. FRANCIS bas suffered harm and damage as a direct and proximate result of 19 Defendant•s Intentional Infliction of Emotional Distress in an amount to be determined at time of 20 trial. 21 22 23 24 FIFTH CAUSE OF ACTION (Civil Conspiracy) 4 t . Plaintiff refers to paragraphs 1 through 40 and incorporates the same herein as though 25 fully set forth in this place. 26 27 28 42. Plaintiff was harmed by the conduct of two or more individuals who agreed to the wrongful conduct. 43. A civil c.on.spiracy was formed between two or more Defendants who knew of the 6 EXHIBIT 1 - 7 Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 8 of 9 Cl::>t:: ,:,;io-cv-018~-WQH-WVG Document 1 Filed 0712,1/16 Page 6 of 6 ) 1 circumsrances and conscntt.d, intended, and/or acquiesced to the conduct in the furtherance of the 2 wrongdoing. 3 44. FRANCIS has suffered hann and damage as a direct and proximate result of 4 Defendant' s Civil Conspiracy in an amount to be determined at time of trial. s 6 7 SIXTH CAUSE OF ACTION (Punitive Damages) 45. Plaintiff refers to paragraphs l through 44 and incorporaaes the same herein as though 8 fully set forth in this place. 9 46. The aforemen.tioned Fraud-~ Fraud-Bad Faith, Intentional Inftiction of Emotional 10 Di~ and Civil Conspiracy was done with a conscious dUngmd of the rights of the Plaintiff and 11 and constituies malice, fraud, and/or oppression under California Civil Code Section 3294 thereby 12 entitling Plaintiff' to punitive and exemplary damages in an amount sufficient to punish and deter 13 Defendants. 14 15 WHEREFORE, Plaintift' seeks judgment and Defendants. and each of them as follows: J'OR THE FIRST, SECOND, THIRD, J'OURTH, FOTH AND SIXTH CAUSE OF ACTION 16 17 18 19 20 21 22 23 24 25 26 27 28 OF THIS COMPLAINT: 1. For damages in amount to be determined by proof at trial; 2. For interest according to law; 3. For punitive damages according to proof, 4. Costs of the suit according to law; S. For attorney's fees pursuant to written agreement or by statute; and 6. Such further relief as the court deems proper. Dated: July 1, 2016 7 EXHIBIT 1 - 8 Case 3:16-cv-01860-WQH-WVG Document 13-2 Filed 11/30/16 Page 9 of 9 Exhibit 2 Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 1 of 9 1\0 .WJ.- S•unmons in a Civil Ai:tion •. ;,a; c ( United States District Court SOUTHERN DISTRICT OF CALIFORNIA Sydney Francis Plaintiff v. Oregon State University. Taras Liskevych, and Does I Through 100 inclusive Defendant Civil Action No. 16cvl860-WQH-WVG SUMMONS IN A CIVIL ACTION To: (Defendant's name and address) A lawsuit has been filed against you. Within 21 days after service of this summons on you (not counting the day you received it)· or 60 days if you are the United States or a United States agency, or an office or employee of the United States described in Fed. R. Civ. P. 12(a)(2)1 or (3)- You must serve on the plaintiff an answer to the attached complaint or a motion under Rule 12 of the Federal Rules of Civil Procedure. The answer or motion must be served on the plaintiff or plaintiff':; attorney, whose name and address are: Thomas Christy 9750 Miramar Road, Suite 21 S San Diego, CA 9212 (858) 586-0486 If you fail to respond. judgment by default will be entered against you for the relief demanded in the complaint. You also must file your answer or motion with the court. Date: 7121/16 John Morrill CLERK OF COURT SI M. Niebla Signature of Clerk or Deputy Cleric EXHIBIT 2 - 9 . . . 5 . ! .& ' 4 44;; .... 3 .( """ - . . ..:Mz ; a J , to , .. Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 2 of 9 l\Cl ~I Summons in a Civil Action . . Civil Action No. 16-cv-1860-WQH-W\j Date Issued: 7121/16 PROOF OF SERVICE (This section should not be filed with the court unless required by Fed R. Civ. P. 4 (1)) This summons for (name of individual and title, if any)---------------- was received by me on fda1eJ ----------- (Page 2 1 personally served the summons on the individual at (place)-------------- ____________________ on {date) _______ ; or I left the summons at the individual's residence or place of abode with (name) -------- _____________ , a person of suitable age and discretion who resides there, on (date) --------' and mailed a copy to the individual's last known address; or I served the swnmons on {name of the indMdual) , who is ----------------- designated by law to accept service of process on behalf of (name of organization) ------- ______________________ on (daJe) _ _ ___ ;or I returned the summons unexecuted because-~~..._... ........ __._....._ __________ ; or Other (specify); My fees are$ -----for travel and$ _____ for services, for a total of$ ___ _ I declare under penalty of perjury that this information is true. Date: --------- Server's Signature Printed name and title Server's address NOTICE OF RIGHI TO CONSENT TO TRIAL BY A UNITED STATES MAGISTRATE JUDGE IN ACCORDANCE WITH THE PROVISION OF 28 use 636(C) YOU ARE HEREBY NOTIFIED THAT A u .s. MAGISTRATE JUDGE OF THIS DISTRICT MAY, UPON CONSENT OF ALL PARTIES, CONDUCT ANY OR ALL PROCEDDINGS. INCLUDING A JURY OR NON-JURY TRI.AL, AND ORDER THE ENTRY OF A FINAL JUDGMENT. YOU SHOULD BE A WARE THAT YOUR DECISION TO CONSENT OR NOT CONSENT IS ENTIRELY VOLUNTARY AND SHOUL BE COMMUNICATED SOLELY TO THE CLERK OF COURT. ONLY IF ALL PARTIES CONSENT WILL THE JUDGE OR MAGISTRATE JUDGE WHOM THE CASE HAS BEEN ASSIGNED BE INFORMED OF YOUR DECISION. JUDGMENTS OF THE U.S. MAGISTRATE JUDGES ARE APPEALABLE TO THE U.S. COURT OF APPEALS IN ACCORDANCE WITH THIS STATUTE AND THE FEDERAL RULES OF APPELLATE PROCEDURE. EXHIBIT 2 - 10 .. £ §! ;;;::. a 3; ;a . v :£ :a RQ ...s.~ .. ;»ktuos:t ... ( . ;;:n::;M!ii)M4.& . .• " "" .. J . s ew · Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 3 of 9 a~t' .) . .Lo-l:v-uu~~o}WQH-WVG Document 1 Filed 0(!2;1116 Page 1 of 6 1 Thomas Christy. F&LCSBN 159818) LAW OFFICE" OF THOMAS CHRISTY 2 9750Miramar~ Sui1e21S San Di~ Califonua 92126 3 f!~=m~ty.CQDl 4 5 Atto~ for Plaintiff SYDNEY FRANCIS FILED JUL 21 2016 CLERK US DIS I nlCT COURT SOUTHERN DISTRICT Of CALIFORNIA BY DEPUTY 6 7 8 9 UNITED STATES j>JSTR.ICT COURT " . SOUTHERN DISTRICT OF CALIFORNIA 10 SYDNEYFRANCIS. 11 12 13 v. Plaintiff 14 OREGON STATE UNIVERSITY, TARAS LISKEVYC~ and DOES l I 5 Through l 00 inclusive 16 17 Defendants ease MB CV 1860 WQH WVG ·,.,COMPLAINT FOR DAMAGES JURY TRIAL DEMANDED l I COMF.8 NOW the Plaintiff named herein, and for Complaint against the Defendants named herein, Plaintiff further shows the Court the following: 19 20 JURISDICTION AND VENUE 21 Jurisdiction in this Complaint is based on complete Diversity of Citiunship between Plaintiff and 22 Defendants and the matter in controversy greatly exceeds the swn of seventy-five thousand dollars 23 ($75,000.00), exclusive of interest and costs. fu addition, venue is proper in this Court as the original 24 contract was made, in part in the Southern District of California. 2S GENERAL ALLEGATIONS COMMON TO ALL CAUSES OF ACTION 26 1. Plaintiff SYDNEY FRANCIS, (Hm:inafter "FRANCISj is an individual, a resident of 27 San Diego County California. and a student at OREGON STATE UNIVERSITY. 28 2. Defendant OREGON STATE UNIVERSITY (Hereinafter "OSU"). is a coeducational, 1 EXHIBIT 2 - 11 Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 4 of 9 ' .1&4 $.$. ( . ·-- -· ... ....... '\'.v·yv'mplet.cly contrmy to the agreed upon scholarship offer presented 19 to FRANCIS when she accept.ed the offer to come and play for OSU. Further, COACH TERRY bad 20 complete control over FRANCIS' playing time and could arbitrarily bench her and make it 21 impossible for FRANCIS to fulfill this new demand. 22 IS. This ex.aet scemrio waswbat came to pass at 1be beginning of FRANCIS Junior 23 year. Notwithstanding the fact that FRANCIS had a great pre-season and was playing well going 24 into the season, FRANCIS' playing time was reduced so substantially that she would not even play 25 in the games. The reduction of her playing time was automatically done just by the coach altering the playing scheme where the defensive players were replaced by offensive players. As a resul~ it 26 was apparent the FRANCIS would not be able to fulfill this new requirement and receive the 27 scholamhip for her Senior year. 28 3 EXHIBIT 2 - 13 _z,t _ ,¥.Qll9S.S:l.ltt l .. . . 0 .4! .T !4 ffZ. t . $ t .AC .. . . _ ~ 4 ;u n,.xwo.& &ii¥ .;ow .:m .. a Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 6 of 9 -· --"'T ... ~· ·-v11 v \.:I uucument 1 Filed 051116 Page 4 of 6 1 16. A meeting VAIS scheduled on November 30, 2015 to discuss the situation. COACH 2 TERRY and two other coaches were present. Nominally it wu presented as a meeting to 8.'ISCSS a 3 player's strengths and weeknesscs. Once the meeting commenced however, it became immediately 4 obvious that the meeting was not for the purpose of a genuinely evaluating FRANCIS' skill as a 5 player, but one in which FRANCIS was to resign herself to 1he fiu:t that her scholarship bad been 6 taken fiom her. 17. FRANCIS was devastated that she bad been lied-t.o and manipulated to ml. She informec 7 her parents oftbe situation and contacted the university's office of Equity and Inclusion to protest 8 her treatment and request a hearing on the matter. 9 18. Jn addition, FRANCIS' father sent a letter to the Athletic Department inquiring about the l 0 situation, and the prior representations which had been made to FRANCIS and her family. l l 19. In retaliation, without wamiog or justifiable cause. COACH TERRY dismissed 12 FRANCIS from the team., 13 20. A conference regarding the matter was conducted in Janwny 2016. In an attempt to 14 support his conduct. COACH TERRY cited FRANCIS' lack of play, and made false statements 15 ostensibly attributable to FRANCIS to make her look as if she were a poor player who was 16 insubordinate and confrontational. 21. FRANCIS to some degree had anticipated that COACH TERRY would seek to justify bis 17 conduct by attacking her, so she had prepared herself with the accurate record of the events and IS statemenis to demonstrate that COACH TERRY was then attempting to cover-up his conduct by 19 defaming her. 20 22. As further evidence that COACH TERRY was retaliating agai.mt FRANCIS and 21 kicked her off the team unrelated to her perfonnance, she Jwf recently received her ' 'Returnee 22 Players Letter" which was approved by the coaching staff and given out only to the players who 23 were part of the team and expected to follow the instructional program to prepare for the next 24 season. 25 23. FRANCIS was then contacted by the Athletic Department and began pressuring her to accept an invalid 3-tenn scholarship deal instead of the 4-term, which was in violation of NCAA 26 rules. FRANCIS refused to accept the offer. 27 28 ZS, .SC.Si& .A4!> a:a=c 4 cs.: ' 7..0 4 J J-llZtiE t lJI EXHIBIT 2 - 14 , ;: . $CJ. Z .$ .. Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 7 of 9 - -·-- - ·•V vv -v.&.uyv-~vvM·WV(:; Document 1 Filed 0~1/16 Page 5 of 6 \ . . 1 33. Defendants acted in bad &ith nnd fraudulently as they knew the claims of additional 2 performance were fillsc and intentionally and wrongfully prevented the Plaintiff ftom performing. 3 34. FRANCIS has suffered harm nnd damage as a direct and proximate result of 4 Defendant's Fraud/Bad Faith in an amount to be determined at time of trial. 5 6 7 8 FOURTH CAUSE OF ACTION (Intentional Infliction of Emotional Distress) 35. Plaintiff refers to paragraphs 1through34 and inccrporates the same herein as though 9 fully set forth in this place. I 0 36. Defendants conduct of deceiving and deftaudiDg Plaintiff cause her severe emotional 11 distress. 12 37. Defendants conduct was outrageous in that the Defendants abused a position of 13 authority as coaches and mentors and had real and/or apparent power to affect Plaintjff's interest. 14 38. Further, Defendants conduct was outrageous u 1hc Defendant~s knew as a player Plaintiff was not only subject to Defcodant•s apparent position of authority, but also that she was lS especially vulnerable as they had control over her financial interest in her scholarship and would 16 39. Defendants knew that the conduct would result in Plaintiff's emotional distress. be emotionally distressed by the threat of withdrawing the scholarship. 17 18 40. FRANCIS bas suffered harm and damage as a direct and proximate result of 19 Defendant~s Intentional hlfliction of Emotional Distress in an amount to be determined at time of 20 trial. 21 22 23 F1FfHCAU8EOFACTION (Civil Conspiracy) 24 41. Plaintiff refers to paragraphs 1 through 40 and incorporates the same herein as though 25 fully set forth in this place. 26 27 28 , ltWW 42. Plaintiff was harmed by the conduct of two or more individuals who agreed to the wrongful conduct. til l ~- 43. A civil conspiracy was funned between two or more Defendants who knew of the 6 EXHIBIT 2 - 15 e.s . &£. __ _ a. . mwe;ca:.;:g,WWWJ UL 3 .It ....... ,.w . a. ; _ e;t ;t~ Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 8 of 9 a:>~ .l ;10-cv-Ul8~-WQH-WVG Document 1 Filed O?fi.,1116 Page 6 of 6 1 cirwmsuuu.s and consentOO. intended, and/or acquiesced to the conduct in the t\Jrthenmce of the 2 wrongdoing. 3 44. FRANCIS has suffered bann and damage as a direct and proximate result of 4 Defendant's Civil Conspiracy in an amount to be determined at. time of trial. s 6 7 SIXJHCAUSBOFACTION (Punitive Damages) 45. Plaintiff refers to paragraphs 1 through 44 and incorporates the same herein as though 8 fully set forth in this place. 9 46. The aforementioned Fraud-Decei~ Fraud-Bad Faith,. Intentional InJliction of Emotional 10 Distres,, and Civil Conspiracy was done with a conscious disregard of the rights of the Plaintiff and 11 and constituies malice, fraud, and/or oppression Wider California Civil Code Section 3294 then:by 12 entitling Plaintiff to punitive and exemplary damages In an amount sufficient to punish and deter 13 Deii:ndants. 14 15 WHEREFORE, Plaintiff seeks judgment and Defendants., and each of them as follows: FOR THE FIRST, SECOND, THIRD, FOURTH. F'DTH AND SIXTH CAUSE OF ACTION 16 17 18 19 20 21 22 23 24 25 26 27 28 OF THIS COMPLAINT: 1. For damaga in amount to be detcnnined by proof at trial; 2. For interest according to law; 3. For punitive damages according to proof, 4. Costs of the suit according to Jaw; S. For attorney's fees pursuant to written agreement or by statute; and 6. Such further relief as the court deems proper. Dated: July l, 2016 7 EXHIBIT 2 - 16 Case 3:16-cv-01860-WQH-WVG Document 13-3 Filed 11/30/16 Page 9 of 9