1 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

Amanda Bolliger Crespo, OSB No. 103452

amanda.crespo@ogletreedeakins.com

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 REPLY IN

SUPPORT OF MOTION TO DISMISS

PLAINTIFF’S AMENDED COMPLAINT

AGAINST MATRIX

I. INTRODUCTION

Plaintiff fails to state a claim for tortious interference against Matrix because she fails to

attribute any “improper means or purpose” to Matrix. She does not allege any inherently

wrongful or tortious conduct by Matrix, such as violence, threats or other intimidation, deceit or

misrepresentation, bribery, unfounded litigation, defamation, or disparaging falsehood. Nor does
2 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

Plaintiff allege that Matrix violated any statute or regulation that governed Matrix’s relationship

with Plaintiff.

Instead, Plaintiff contends that Matrix interfered with her relations using the “improper

means” of violating the FMLA/OFLA. Plaintiff’s argument misses the point of Matrix’s Motion.

As set forth in detail in Matrix’s Motion, Matrix cannot and could not violate the FMLA with

regard to Plaintiff because it never employed Plaintiff. See, e.g., Shoemaker v. ConAgra Foods,

Inc., 2015 U.S. Dist. LEXIS 11597, *14-16 (E.D. Tenn. Feb. 2, 2015). Nor can Matrix violate

OFLA, either directly or via Oregon’s “aiding and abetting” statute. By their own terms, OFLA

and Oregon’s aiding and abetting statute only apply to employers and employees of the

plaintiff’s employer, not to third parties like Matrix. Plaintiff implicitly concedes that she cannot

state an FMLA or OFLA claim against Matrix, in that she voluntarily withdrew the FMLA claim

and never even attempted to assert an OFLA claim against Matrix.

Plaintiff’s tortious interference claim fails with the FMLA claim she already withdrew,

and Plaintiff’s opposition papers fail to show otherwise. Plaintiff fails to cite any case from

Oregon or this District that permitted a tortious interference claim to proceed based on a theory

that a third party administrator violated the FMLA/OFLA, and Matrix is not aware of any.

Plaintiff instead relies on an out-of-Circuit case that analyzed an Illinois state law tortious

interference claim that did not even require the “improper means” element at the crux of this

Motion. Arango v. Work & Well, 2012 WL 3023338 (N.D. Ill. July 24, 2012).

By contrast, overwhelming authority in Oregon establishes that a plaintiff cannot use a

non-viable statutory claim as the improper means to state a tortious inference claim. Rather, the

derivative interference claim stands or fails along with the underlying statutory claim. And that

makes sense. Allowing a plaintiff to use a non-actionable statutory claim to state a tortious

inference claim would impermissibly expand the boundaries of that statute to cover parties and

conduct that the legislature never intended, and thus would contravene legislative intent. Here, it

would allow Plaintiff to expand the FMLA and OFLA to cover non-employers/third party
3 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

administrators when the plain language of FMLA and OFLA excludes those parties. Oregon law

does not permit Plaintiff to use non-actionable FMLA/OFLA claims to state a tortious inference

claim against Matrix. Her claim must be dismissed.

II. PLAINTIFF FAILS TO STATE A TORTIOUS INTERFERENCE CLAIM

AGAINST MATRIX

A. Plaintiff Alleges No Improper Purpose or Improper Means by Matrix Other

Than Its Alleged Violation of the FMLA and OFLA.

To survive a motion to dismiss, an Oregon common law claim for tortious interference

requires some act that “is wrongful by some measure beyond the fact of the interference itself.”

Top Service Body Shop, Inc. v. Allstate Insurance Company, 283 Or. 201, 209 (1978) (emphasis

added). Here, Plaintiff identifies no improper purpose by Matrix, nor any inherently wrongful

conduct such as “violence, threats or other intimidation, deceit or misrepresentation, bribery,

unfounded litigation, defamation, or disparaging falsehood.” Top Service Body Shop, 283 Or. at

210, n.11. Instead, Plaintiff argues that Matrix used an “improper means” by violating “some

objective, identifiable standard, such as a statute or other regulation.” Dkt. 28, p. 5. The only

statutes or regulations that Plaintiff cites, however, are the FMLA and OFLA. For the reasons

stated below, those statutes cannot supply any “objective, identifiable standard” for Matrix’s

actions toward Plaintiff because they never applied to Matrix as a third party administrator.

B. Matrix Could Not Violate Any Standards Embodied in the FMLA or OFLA

With Regard to Plaintiff Because It Undisputedly Never Employed Plaintiff.

Plaintiff does not dispute that Matrix neither employed her nor acted as her joint

employer, and that it acted solely as a third party administrator. As set forth at length in Matrix’s

moving papers, those undisputed facts preclude her from asserting any FMLA claim against

Matrix. See Dkt. 26 at 7-13. Plaintiff makes no argument to the contrary.

Plaintiff appears to suggest that she could somehow state an OFLA claim against

Matrix—despite the undisputed fact that Matrix never employed her—by relying on Oregon’s

“aiding and abetting” statute, ORS 659A.030(1)(g). That argument also fails.
4 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

The express language of ORS 659A.030(1)(g) makes it an unlawful employment practice

for “any person, whether an employer or an employee, to aid, abet, incite, compel or coerce the

doing of any of the acts forbidden under this chapter or to attempt to do so.” (Emphasis added.)

Thus, Judge Brown held that “ORS 659A.030(1)(g) does not permit a claim for aiding and

abetting against [third parties] because they were neither the plaintiff’s employer nor employees

of [the plaintiff’s employer].” Larmanger v. Kaiser Foundation Health Plan of the Northwest,

805 F. Supp. 2d 1050, 1056 (D. Or. 2011).

C. Plaintiff Cites No Case Authorizing an Oregon Common Law Claim for

Tortious Interference Based on a Third Party Administrator’s Alleged FMLA

Violation; Case Law Applying Illinois Law Is Unavailing.

Plaintiff fails to cite a single case from Oregon, this District, or even this Circuit, which

permitted a tortious interference claim against a third party administrator to proceed based upon

alleged violations of the FMLA. Instead, Plaintiff relies on a single out-of-Circuit case for her

tortious interference theory. Dkt. 28, at 6-7, citing Arango v. Work & Well, 2012 WL 3023338

(N.D. Ill. July 24, 2012).

Arango is not helpful to Plaintiff. As an initial matter, the defendant in Arango does not

appear to have argued that it could not legally violate the FMLA as a reason for dismissing

Plaintiff’s tortious interference claim. Thus, Arango did not address or decide the critical issue

raised here. More importantly, Arango analyzed whether a plaintiff stated a claim for tortious

interference under Illinois law. Illinois law does not apply to Plaintiff’s Oregon state common

law claim for tortious interference. Indeed, the elements required to prove a claim for tortious

interference under Illinois common law differ significantly from those in Oregon. Critically,

Oregon requires a plaintiff to plead (and ultimately prove) that the defendant engaged in conduct

that is wrongful by some measure beyond the fact of the interference itself through “improper

means” or for an “improper purpose.” Top Service Body Shop., 283 Or. at 209-210. By contrast,

Illinois law requires only that the interference was “intentional and unjustifiable.” See, e.g.,

Arango v. Work & Well, 930 F. Supp. 2d 940, 944 (N.D. Ill. 2013) (citing Anderson v. Vanden
5 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

Dorpel, 172 Ill. 2d 399 (Ill. 1996)). Arango did not and could not address whether a plaintiff can

rely on a fatally flawed statutory claim to supply the “improper means” element of an Oregon

tortious inference claim. Arango has no bearing on the instant Motion.

D. Oregon Law Does Not Permit a Tortious Interference Claim Based Upon

Alleged Violations of Statutes That the Defendant Legally Cannot Violate.

Next, Plaintiff argues that her inability to pursue an FMLA/OFLA claim against Matrix

should not preclude her tortious interference claim because she need not “prove all elements of

the other tort.” Dkt. 26 at 5 (citing N.W. Natural Gas v. Chase Gardens, Inc., 328 Or. 487

(1999), Lewis v. Oregon Beauty Supply Co, 302 Or. 616 (1987), and Top Service Body Shop. v.

Allstate Ins. Co., 283 Or. 201, 209-210 (1978)). However, none of the cases upon which

Plaintiff relies presented an improper means theory that a defendant violated a statute that legally

does not apply to it. Lewis relied on the defendant’s violent and intimidating conduct to find

improper means. 302 Or. at 622. Top Service discussed fraudulent misrepresentations as an

improper means. 283 Or. at 209-210. N.W. Natural Gas dismissed the tortious interference

claim after determining the allegedly wrongful conduct related to execution of a lien was lawful.

328 Or. at 498. That case supports Matrix’s argument, not Plaintiff’s.

Moreover, numerous Oregon cases have addressed – and dismissed – tortious

interference claims where the alleged improper means depended on a non-viable statutory or

common law claim. For example, in Noel v. Hall, Judge Acosta dismissed a tortious interference

claim where the alleged improper means relied on alleged violations of a wiretapping statute that

did not apply to the defendant’s alleged conduct. 2012 U.S. Dist. LEXIS 110575, *42 (D. Or.

Apr. 27, 2012). The court explained that the wiretapping statute at issue only applied to conduct

in which the district attorney or law enforcement was involved, so a private individual acting

alone legally could not violate the statute. Id. at *30-31. Because the statutory wiretapping

claims failed as a matter of law, they “d[id] not furnish the improper means required for [the

tortious interference claim]” and “the tortious interference claims necessarily fail[ed] as well.”

Id. at 42.
6 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

Similarly, in Witt Company v. RISO, Inc., 948 F. Supp. 2d 1227 (D. Or. 2013), Judge

Hernandez dismissed a tortious interference claim that relied on alleged anti-trust violations for

the improper means element. Id. at 1245. The tortious inference claim was “inseparably tied to

the anti-trust claim” and failed along with it. Id.; see also Gardner v. Martino, 2005 U.S. Dist.

LEXIS 38970, *34-35 (D. Or. Sept. 19, 2005) (dismissing tortious interference claim based upon

alleged defamatory statements because the defamation claim was not actionable); Ahern v.

Oregon Pub. Emples. Union, 329 Or. 428, 436 (1999) (dismissing tortious interference claim

where alleged improper means were based upon alleged picketing activities in violation of

ORS 243.672, because a statutory unfair labor practice claim would be preempted, noting that “a

court must consider the nature of the matter, not the label that a party has placed on it.”).

Like the plaintiffs in Noel and Witt, Plaintiff’s tortious interference claim faces far greater

deficiencies than simply failing to allege all elements of the underlying statutory violation. In

other words, this is not simply a matter of Plaintiff failing to plead all of the facts showing that

she had a serious health condition or other required elements to show a violation of the

FMLA/OFLA. Rather, Plaintiff wants to rely on statutes that did not – as a matter of law –

govern her relationship with Matrix, and on conduct that could never support a viable statutory

claim against Matrix. Plaintiff cannot state a claim for tortious interference based on a statutory

violation that – as a matter of law – Matrix could not have committed. Because Matrix could

not, as a matter of law, violate the FMLA or OFLA with respect to Plaintiff, her allegations that

Matrix improperly interfered with her employment relationship with Sage by violating the

FMLA and/or OFLA fail as a matter of law and must be dismissed with prejudice.

E. Dismissal With Prejudice is Appropriate Because Plaintiff Points to No Set of

Facts That Could Spare Her Claim Against Matrix.

For all of the reasons set forth above, Plaintiff’s response still fails to point to any set of

facts that could support a tortious interference claim against Matrix. Accordingly, allowing

leave to amend would be futile, and Matrix’s Motion to Dismiss should be granted with

prejudice. See e.g. Lockheed Martin Corp. v. Network Solutions, Inc., 194 F.3d 980, 986 (9th
7 –MATRIX’S REPLY IN SUPPORT OF

MOTION TO DISMISS PLAINTIFF’S

AMENDED COMPLAINT AGAINST

MATRIX

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

Cir. 1999); see also additional arguments and authorities cited in Matrix’s motion (Dkt. 26 at 13-

14).

III. CONCLUSION

For the reasons set forth herein, Matrix respectfully requests that the Court dismiss with

prejudice Plaintiff’s complaint against Matrix, and for such other relief as the Court deems just

and proper.

Dated: August 21, 2015.

OGLETREE, DEAKINS, NASH, SMOAK &

STEWART, P.C.

By: /s/ Amanda Bolliger Crespo

Amanda Bolliger Crespo, OSB No. 103452

amanda.crespo@ogletreedeakins.com

Kelly S. Riggs, OSB No. 094862

kelly.riggs@ogletreedeakins.com

Telephone: 503.552.2140

Attorneys for Defendant

MATRIX ABSENCE MANAGEMENT, INC.

22098780.3