1 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

Kelly S. Riggs, OSB No. 094862

kelly.riggs@ogletreedeakins.com

Ogletree, Deakins, Nash, Smoak & Stewart, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500

Portland, OR 97201

Telephone: 503.552.2140

Fax: 503.224.4518

Attorneys for Defendant 

MATRIX ABSENCE MANAGEMENT, INC.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

PORTLAND DIVISION

MARY MCINTIRE,

Plaintiff,

v.

SAGE SOFTWARE, INC., a foreign 

business corporation, and MATRIX 

ABSENCE MANAGEMENT, INC., a 

foreign business corporation,

Defendants.

Case No.: 3:15-cv-00769-JE

DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO 

FINDINGS AND RECOMMENDATION

I. INTRODUCTION

The Magistrate Judge correctly ruled that “because Matrix is not governed by [the FMLA 

or OFLA] in respect to its relationship with Plaintiff, those same statutes cannot then, in turn, 

furnish the improper means required for an intentional interference with economic relations 

claim” and should therefore be dismissed with prejudice. Findings & Recommendations 

(“F&R”), p. 8 (Dkt. 34). 
2 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

It is undisputed that Matrix was never Plaintiff’s employer (or joint employer). Nor is 

there any dispute that, consequently, neither the FMLA nor OFLA applies to Matrix and that as a 

result, Plaintiff cannot not assert direct claims for violations of the FMLA or OFLA against 

Matrix. Indeed, Plaintiff already voluntarily dismissed her direct FMLA claim against Matrix. 

Nevertheless, she continues to assert a claim for tortious interference against Matrix based upon 

the exact same allegations: that Matrix interfered with her employment relationship by violating 

the FMLA and/or OFLA. See Am. Compl. ¶¶ 1, 40 (incorporating ¶¶ 19, 20, 27, and 28).

However, as set forth further in Matrix’s motion to dismiss (Dkt. 26) and reply brief (Dkt. 

29), and the Magistrate Judge’s Findings and Recommendations granting Matrix’s motion (Dkt. 

34), which are incorporated by reference herein, Oregon law does not allow a plaintiff to pursue 

a tortious interference claim that is based upon a non-viable statutory claim. See e.g. Noel v. 

Hall, 2012 U.S. Dist. LEXIS 110575, * 42 (D. Or. Apr. 27, 2012)(dismissing tortious 

interference claim based upon alleged statutory wiretapping violation that legally did not apply 

to the defendant). See also Reply, p. 5-6 (Dkt. 29). Plaintiff did not cite a single authority to the 

contrary, let alone any applicable authority which permits a tortious interference claim against a 

third party leave administrator that was based upon alleged violations of the FMLA or OFLA–

statutes which indisputably do not apply to Matrix. Id. Upon review of the parties’ written 

submissions and oral arguments, the Magistrate Judge therefore correctly concluded that Plaintiff 

could not pursue a tortious interference claim against Matrix based upon the FMLA and OFLA, 

and recommended dismissal of her claim with prejudice because Plaintiff had failed to point to 

any set of facts that would support her claim. F&R, p. 8 (Dkt. 34).

Plaintiff now objects to the Magistrate Judge’s Findings and Recommendations, arguing 

that the Magistrate Judge: 1) improperly distinguished the single out-of-circuit authority –
3 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

Arango v. Work & Well, Inc., 2012 WL 3023338 (N.D. Ill. July 24, 2012) – that she relied upon 

in support of her argument that she could pursue a tortious interference claim against a third 

party administrator based upon alleged violations of the FMLA, and 2) failed to properly 

distinguish the cases cited by Matrix – Noel, Witt, Ahern, and Gardner – establishing that 

Oregon law does not allow a tortious interference claim based upon alleged non-viable statutory 

violations. However, the Magistrate Judge correctly concluded that Arango is factually and 

legally distinguishable because it did not address the material issue raised by Matrix’s motion 

and applied a materially different standard for tortious interference claims under Illinois law. 

F&R, p. 6-8 (Dkt. 34). The Magistrate Judge also properly relied upon Noel and Witt to find that 

Oregon law does not allow tortious interference claims based upon statutes that do not apply to 

the defendant or conduct. Id. 

Plaintiff also raises two entirely new legal arguments in her Objections in attempt to 

argue that the Magistrate Judge erred in recommending that Matrix’s motion to dismiss be 

granted, namely: 1) that the Magistrate Judge failed to consider that Matrix was bound to ensure 

FMLA compliance; and 2) that the Magistrate Judge failed to consider the effect of a tortious 

interference claim as an interstitial tort to provide a remedy where one would otherwise be 

denied. Plaintiff offers absolutely no explanation for her failure to raise either argument in the 

underlying proceedings, and none is apparent. Accordingly, the District Court should exercise 

its discretion not to consider these additional arguments and legal theories raised for the first 

time in Plaintiff’s Objections. B&K Livestock Auction, Inc. v. Oregon Dept. of Environmental 

Quality, 2013 U.S. Dist. LEXIS 107254, *3-4 (D. Or. Jul. 31, 2013), citing United States v. 

Howell, 231 F.3d 615, 621 (9th Cir. 2000) (noting that in the Ninth Circuit a District Court “has 

discretion, but is not required” to consider “new evidence” raised in Objections to a Magistrate’s 
4 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

Findings and Recommendations, and exercising its discretion not to consider the plaintiff’s new 

arguments raised for the first time in objections on a motion to dismiss where plaintiff offered no 

explanation for why those arguments were not raised previously). 

However, even if these new arguments were properly before the Court at this time, 

neither spares Plaintiff’s claim against Matrix from dismissal because Plaintiff cites no factual or 

legal authority to support either argument. Moreover, Plaintiff’s assertion that she will otherwise 

be denied a remedy if her claims against Matrix are not allowed is simply wrong, because her 

claims against her employer, Sage, will remain intact and provide a potential remedy. 

For all of these reasons, and as set forth further in Matrix’s motion, reply, and argument 

below, the Magistrate Judge was correct in recommending that Plaintiff’s tortious interference 

claim against Matrix be dismissed with prejudice, and the District Court should adopt his 

Findings and Recommendations in full.

II. LEGAL STANDARD 

When a party objects to a magistrate judge’s proposed findings and recommendations, 

the District Court “shall make a de novo determination of those portions of the . . . specified 

proposed findings or recommendations to which objection is made.” 28 U.S.C § 636(b)(1)(C). 

See also Fed. R. Civ. P. 72(b)(3) the District Court “must determine de novo any part of the 

magistrate judge's disposition that has been properly objected to.” The essential elements of a de 

novo review under 28 U.S.C. § 636 were defined by the Supreme Court in United States v. 

Raddatz, 447 U.S. 667, 65 L. Ed. 2d 424, 100 S. Ct. 2406 (1980). The Supreme Court noted that 

“. . . [n]ormally, the judge . . . will consider the record which has been developed before the 

magistrate and make his own determination on the basis of that record. . . .” North American 
5 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

Watch Corp. v. Princess Ermine Jewels, 786 F.2d 1447, 1450 (9th Cir. Cal. 1986) (citations and 

emphasis omitted)). 

Federal Rule of Civil Procedure 12(b)(6) provides for dismissal of a claim if the plaintiff 

fails to allege facts sufficient to state a claim for relief that is plausible on its face. Ashcroft v. 

Iqbal, 556 U.S. 662, 678 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007). To 

satisfy the plausibility standard, a plaintiff’s allegations must show that defendant’s liability is 

more than a sheer possibility. Id. The Court must accept as true the allegations in the complaint 

and construe them in favor of the plaintiff. Intri-Plex Techs., Inc. v. Crest Group, Inc., 499 F.3d 

1048, 1050 n.2 (9th Cir. 2007). However, the Court need not accept merely conclusory 

allegations as true. Warren v. Fox Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003). 

Threadbare recitals of the elements of a cause of action, supported by mere conclusory 

statements, are insufficient to withstand a motion to dismiss. Iqbal, 556 U.S. at 678.

III. THE MAGISTRATE CORRECTLY CONCLUDED THAT PLAINTIFF’S 

TORTIOUS INTERFERNECE CLAIM AGAINST MATRIX SHOULD BE 

DISMISSED WITH PREJUDICE

A. The Magistrate Judge Correctly Distinguished Arango and Found it 

Unpersuasive Because It Did No Address the Critical Issue of Whether a 

Tortious Interference Claim Can Be Based upon Non-Viable Statutory 

Violation Under Oregon Law.

Plaintiff’s argument that the Magistrate Judge incorrectly distinguished Arango v. Work 

& Well lacks merit. As noted above, Plaintiff has not cited a single case from this District or 

Circuit allowing a plaintiff to pursue a tortious interference claim against a third party 

administrator based upon alleged violations of the FMLA or OFLA. Instead, Plaintiff relies

upon on a single out-of-Circuit case for her tortious interference theory, Arango v. Work & Well, 

2012 WL 3023338 (N.D. Ill. July 24, 2012), which allowed a plaintiff to pursue a tortious 

interference claim against a third party administrator under Illinois common law. See Pl. Resp., 
6 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

p. 6-7 (Dkt. 28). However, as set forth further in Matrix’s reply brief, Arango is inapplicable and 

not helpful to Plaintiff’s argument because it did not address the critical issue raised by this 

motion, and it applied Illinois, not Oregon, common law. See Matrix’s Reply, p. 4-5 (Dkt. 29). 

The Magistrate Judge agreed and distinguished Arango, finding it “unpersuasive because it 

necessarily applies Illinois’ different standard for intentional interference and because it does not 

address the specific issue here, namely, whether a defendant’s liability for intentional 

interference may be based on statutory requirements that do not govern that defendant.” F&R, p. 

6 (Dkt. 34).

Despite Plaintiff’s concession that, unlike Illinois, Oregon law requires a plaintiff to 

prove an additional element that the interference was accomplished “through improper means or 

for an improper purpose,” Plaintiff argues that the Magistrate Judge should not have 

distinguished Arango because the standards applied by Illinois and Oregon are only “slightly 

different.” Pl. Objs., p. 5 (Dkt. 37). See also Reply, p. 3-5 (Dkt. 29) (citing Top Service Body 

Shop., 283 Or. at 209-210) for further discussion of the requirements to plead a tortious 

interference claim and the improper means element. However, this difference between Illinois 

and Oregon law is, in fact, a substantial and material difference that goes to the heart of Matrix’s 

motion. Plaintiff’s claim against Matrix is premised upon an allegation that Matrix acted 

through “improper means or for an improper purpose” by violating the FMLA or OFLA. Am. 

Compl. ¶ 40. Indeed, elsewhere in her Objections, Plaintiff concedes that the “the fundamental 

issue is whether Matrix . . . interfered with that relationship through an improper means or an 

improper motive,” i.e., by allegedly violating the FMLA and/or OFLA. Pl. Objs. p. 7-8 (Dkt. 

37). It defies logic for Plaintiff to concede that the improper means element is the fundamental 

issue in this case, while at the same time arguing that the Illinois standard, which does not 
7 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

include that element, is not materially distinguishable. Because the fundamental question here is

whether Plaintiff can rely upon statutes that do not apply to show improper means under Oregon

law, the Magistrate Judge was correct in finding Arango inapplicable. 

Plaintiff’s argument that the Magistrate incorrectly distinguished Arango on the basis that

it did not address the critical issue raised in this motion is also logically deficient. Plaintiff 

concedes that Arango didn’t address the fundamental issue of whether a tortious interference 

claim may be based upon statutory requirements that do not govern the defendant. Pl. Objs. P. 6 

(Dkt. 37). Instead, she argues that Arango’s failure to address this issue doesn’t matter because 

“neither OFLA nor FMLA is the basis of Plaintiff’s intentional interference claim.” Id. But that 

is exactly what Plaintiff is alleging. The entire basis of Plaintiff’s claim against Matrix are her 

allegations that “Matrix wrongfully interfered with Plaintiff’s economic relationship with Sage 

by violating FMLA and OFLA policies,” and “by engaging in conduct in an improper manner” 

including actions that “violated Plaintiff’s rights under OFLA” and “violated Plaintiff’s rights 

under FMLA.” Am. Compl. ¶¶ 1, 40 (incorporating ¶¶ 19, 20, 27, and 28). Indeed, just three 

sentences earlier in her Objections, Plaintiff expressly states that “Matrix’s actions as alleged are 

violations of FMLA standards.” Pl. Objs. P. 6 (Dkt. 37). Thus, Plaintiff cannot plausibly deny 

that her claim is premised upon alleged violations of the FMLA and OFLA – statutes which 

indisputably do not apply directly to Matrix because it was never Plaintiff’s employer. 

Accordingly, it does matter here that Oregon law doesn’t permit her to pursue a tortious 

interference claim on the grounds that those statutes do not govern Matrix. Thus, because 

Arango does not address that question, the Magistrate Judge correctly found it to be 

unpersuasive. 
8 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

B. The Magistrate Judge Correctly Relied Upon Cases Cited By Matrix 

Establishing that Under Oregon Law a Tortious Interference Claim May Not 

Be Based Upon Statutory Violations That Do Not Govern the Defendant.

Plaintiff has not identified a single case in this District or Circuit holding that a tortious 

interference claim based upon alleged violations of the FMLA or OFLA can be asserted against a 

third party administrator such as Matrix, or any case finding that a tortious interference claim can 

be based upon violation of an alleged statute that legally does not apply to the defendant or 

conduct at issue. On the contrary, the overwhelming authority in this District establishes that a 

plaintiff cannot use a non-viable statutory violation as the “improper means” to support a tortious 

interference claim. See Reply, p. 4-6 (Dkt. 29), citing and discussing Witt Company v. RISO, 

Inc., 948 F. Supp. 2d 1227, 1245 (D. Or. 2013), Noel v. Hall, 2012 WL 3241858 (D. Or. Apr. 27, 

2012), Gardner v. Martino, 2005 U.S. Dist. LEXIS 38970, *34-35 (D. Or. Sept. 19, 2005), 

Ahern v. Oregon Pub. Emples. Union, 329 Or. 428, 436 (1999). 

Accordingly, the Magistrate Judge correctly concluded that Plaintiff’s tortious 

interference claim against Matrix should be dismissed because neither the FMLA nor OFLA –

which do not apply to Matrix – can furnish the improper means to support Plaintiff’s tortious 

interference claim. F&R, p. 8 (Dkt. 34). Indeed, the Magistrate Judge went on to aptly explain

that “it would contradict common sense for this Court to conclude that Matrix could nevertheless 

be held liable for intentional interference based on the ‘improper means’ of allegedly violating 

those self-same statutes.” Id.

Plaintiff’s argument that the Magistrate Judge failed to properly distinguish the cases 

cited by Matrix lacks merit. For example, Plaintiff argues that Witt is distinguishable because 

there the alleged conduct was not prohibited by the statute at issue (the Sherman Act), but here, 

Matrix’s alleged conduct “violated its obligation to ensure FMLA compliance.” Pl. Objs. p. 6-7
9 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

(Dkt. 37). As an initial matter, Plaintiff cites absolutely no authority for her assertion that Matrix 

had any “obligation to ensure FMLA compliance,” let alone that it violated such obligation. 

Moreover, even assuming such an obligation existed, that does not change the general 

proposition for which Witt was cited: that Judge Hernandez dismissed a tortious inference claim 

where the underlying statutory claim failed because it was “inseparably tied to the anti-trust 

claim” and failed along with it. Witt, 948 F. Supp. 2d at 1245. Because Plaintiff’s tortious 

interference claim is expressly based on the FMLA and OFLA, like in Witt, her claim is 

inextricably tied to non-viable statutory claims and there is no set of facts upon which Plaintiff 

could prove her tortious interference claim without relying upon inapplicable statutes. Thus, the 

Magistrate Judge properly considered and relied upon Witt in finding that Oregon law does not 

allow a tortious interference claim to be based upon a legally non-viable statutory claim. 

Plaintiff also fails in her attempt to distinguish Noel. First, Plaintiff appears to 

mistakenly focus on the wrong part of Noel which addressed the court’s analysis of the 

Plaintiff’s federal wiretapping claims, which failed for a different reason. The relevant portion 

of Noel cited by Matrix and relied upon by the Magistrate Judge, however, discussed the 

plaintiff’s tortious interference claim based upon allegations of wiretapping in violation of state

law. 2012 U.S. Dist. LEXIS 110575, *42 (D. Or. Apr. 27, 2012). See also Matrix’s Reply, p. 5-

6 (Dkt. 29). As set forth in Matrix’s reply brief, in Noel, Judge Acosta dismissed the tortious 

interference claim where the alleged improper means relied on alleged violations of the Oregon 

wiretapping statute because the wiretapping statute applied only to conduct in which the district 

attorney or law enforcement was involved, and the defendant, a private individual acting alone, 

legally could not violate the statute. Id. at *30-31. Because the claim was asserted only against 

a private individual, the statutory wiretapping claims failed as a matter of law, and “d[id] not 
10 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

furnish the improper means required for [the tortious interference claim]” and “the tortious 

interference claims necessarily fail[ed] as well.” Id. Thus, Noel is directly analogous to the 

present situation, in which Plaintiff is trying to base a tortious interference claim upon an alleged 

violation of a statute that Matrix legally could not violate, and the Magistrate Judge properly 

considered it in concluding that Plaintiff’s claim against Matrix must be dismissed. 

Finally, Plaintiff argues that the other cases – Ahern and Gardner – cited by Matrix for 

the proposition that a tortious interference claim cannot be based upon a statute that doesn’t 

apply to the defendant’s conduct should be distinguished because they did not involve the FMLA 

and/or OFLA, or third party administrators. Pl. Objs. p. 7 (Dkt. 37). However, that distinction 

does not negate the persuasiveness of these cases to support the general rule that, in Oregon, a 

tortious interference claim cannot be based upon a non-viable statutory claim if the defendant’s 

conduct legally could not have violated the statute relied upon. See Reply, p. 5-6 (Dkt. 29).

Thus, Plaintiff’s attempt to distinguish this line of case fails, and the Magistrate Judge was 

correct in concluding Plaintiff has not and cannot assert a viable tortious interference claim 

against Matrix based upon the FMLA or OFLA. 

C. Plaintiff Offers No Support For Her New Argument That Matrix Was 

“Bound to Administer Sage’s Leave Policy According to FMLA/OFLA.”

Plaintiff’s Objections also argue that the Magistrate Judge “failed to consider that Matrix, 

as a third-party administrator is bound in contract to Sage to administer its leave policy in 

accordance with standards set forth under those Statutes.” Pl. Objs. p. 2 (Dkt. 37). This is an 

entirely new allegation and argument that Plaintiff did not include in her original or First 

Amended Complaint, nor in the underlying proceedings, so the Magistrate Judge could not have 

erred in failing to consider it. Additionally, because Plaintiff has not and cannot offer any 

reasonable explanation for her failure to raise this argument previously, the District Court should 
11 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

not consider it now. See B&K Livestock Auction, 2013 U.S. Dist. LEXIS 107254 at *3-4, citing 

Howell, 231 F.3d at 621.

However, even if this argument were properly raised at this time, it is lacking in any 

factual or legal basis. Aside from the fact that plaintiff offers no factual support for her assertion 

that “it stands to reason that Matrix’s contract with Sage similarly requires Matrix to ensure 

FMLA compliance,” she fails to identify any applicable authority to support such an assumption. 

Pl. Objs. p. 2 (Dkt. 37). The only case to which Plaintiff cites in support of this argument is 

Arango, which, as discussed above, is an out-of-circuit case that is both legally and factually 

distinguishable and does not apply here. Further, contrary to Plaintiff’s assertion, the mere fact 

that this one, specific contract in Arango obligated the third party leave administrator to ensure 

FMLA compliance does not establish an “industry standard,” let alone that Matrix had such an 

obligation here. And even if it did, a contractual duty to ensure FMLA and OFLA compliance 

(if there even was one) would be a duty owed to Sage as Plaintiff’s employer, not to Plaintiff,

and would not support Plaintiff’s attempt to assert a claim against Matrix.

D. Plaintiff’s Assertion that Her Claim Against Matrix Should Be Allowed As 

An Interstitial Tort Fails. 

Plaintiff also argues for the first time in her Objections that the Magistrate Judge should 

have considered the application of her tortious interference claim against Matrix as an interstitial 

tort to provide a remedy where Plaintiff would otherwise be denied. Pl. Objs. p. 3 (Dkt. 37). 

Plaintiff did not raise the “interstitial tort” theory in the underlying proceedings, and should not 

now be allowed to argue that the Magistrate Judge failed to consider it in attempt to avoid 

dismissal of her claim against Matrix. See B&K Livestock Auction, 2013 U.S. Dist. LEXIS 

107254 at *3-4, citing Howell, 231 F.3d at 621.
12 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

In any case, even if the argument is properly raised before the District Court at this stage, 

Plaintiff’s interstitial tort theory and the cases she relies upon fail to spare her claim against 

Matrix. First of all, Plaintiff doesn’t cite a single authority holding that a claim for tortious 

interference is an interstitial tort under Oregon law, nor is Matrix aware of any. The only cases 

she cites – Draper, Dunwoody, and Pacosa – discuss common law wrongful discharge claims as 

an interstitial tort, but did not discuss claims for tortious interference. Moreover, each of the 

wrongful discharge cases cited by Plaintiff involves claims against the Plaintiff’s employer, not 

claims against third parties such as Matrix. Further, Plaintiff’s reliance on Pacosa for the 

proposition that the FMLA and OFLA do not preempt wrongful discharge claims in Oregon is 

inapposite, because it addresses only an employee’s ability to pursue a common law wrongful 

discharge claim as against the employer, a party to which the FMLA and OFLA actually apply. 

Pacosa therefore provides no support for Plaintiff’s attempt to extend a tortious interference 

claim based upon the FMLA or OFLA to a third party like Matrix who is not governed by those 

statutes. Thus, each case cited by Plaintiff is materially distinguishable and does not support her 

argument that her tortious interference claim against Matrix based upon alleged violations of the 

FMLA and OFLA should be allowed to proceed on an interstitial tort theory. 

Further, even if tortious interference were appropriately viewed as an interstitial tort in 

Oregon, that theory still would not apply here because Plaintiff is not without a remedy for her 

alleged FMLA and OFLA violations. As noted by Plaintiff, an interstitial tort (where that theory 

applies) is one that fills a gap to provide a remedy where one would otherwise be denied. See 

e.g. Draper v. Astoria School Dist. No. 1C, 995 F. Supp. 1122, 1128 (D. Or. 1998). Here, 

dismissing Plaintiff’s tortious interference claim against Matrix, the third party leave 

administrator, does not leave her without a potential remedy because her claims against her 
13 – DEFENDANT MATRIX ABSENCE 

MANAGEMENT, INC.’S RESPONSE TO 

PLAINTIFF’S OBJECTIONS TO FINDINGS 

AND RECOMMENDATION

OGLETREE, DEAKINS, NASH, SMOAK & STEWART, P.C.

The KOIN Center

222 SW Columbia Street, Suite 1500 | Portland, OR 97201

Phone: 503.552.2140 | Fax: 503.224.4518

actual employer, Sage, for alleged violations of the FMLA, OFLA, and common law wrongful 

discharge will remain intact. Thus, she will still have a potential remedy available against her 

employer (the proper party against which to direct her claims based upon the FMLA and OFLA), 

and there is no remedial gap to fill, let alone a legal basis to fill it by allowing her to pursue a 

tortious interference claim against Matrix. 

IV. CONCLUSION

For the reasons set forth above, and in Matrix’s underlying motion and reply brief, Matrix 

respectfully requests that the Court adopt the Magistrate Judge’s Findings and Recommendations 

and grant Matrix’s Motion to Dismiss Plaintiff’s Amended Complaint against Matrix with 

prejudice, and for such other relief as the Court deems appropriate.

Dated: November 13, 2015.

OGLETREE, DEAKINS, NASH, SMOAK & 

STEWART, P.C.

By: s/ Kelly S. Riggs

Kelly S. Riggs, OSB No. 094862

kelly.riggs@ogletreedeakins.com

Telephone: 503.552.2140

Attorneys for Defendant 

MATRIX ABSENCE MANAGEMENT, INC.

22703681.1

042289.000001