IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

LIFESTYLE VENTURES, LLC, 3:15-CV-01291-SB

an Oregon Limited Liability 

Company, ORDER

Plaintiff, 

v. 

 

COUNTY OF CLACKAMAS, MICHAEL

MCALLISTER, and REBECCA CENIGA,

individually and in their capacity

as employees of the Clackamas 

County Planning Division,

 Defendants.

BROWN, Judge.

Magistrate Judge Stacie Beckerman issued Findings and

Recommendation (#34) on May 18, 2016, in which she recommends (1)

the Court dismiss Plaintiff’s First and Second Claims on

Plaintiff’s own Motion,1

 (2) deny as moot Defendants' 

1

 Plaintiff voluntarily withdrew its First and Second Claims

as stated in its Opposition (#23) to Defendants’ Motion to

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Case 3:15-cv-01291-SB Document 46 Filed 08/04/16 Page 1 of 10
Motion (#18) to Dismiss Plaintiff’s Complaint for lack of

jurisdiction,2

 and (3) grant in part and deny in part Defendants’

Motion (#18) to Dismiss Plaintiff’s Third and Fourth Claims for

failure to state a claim. Defendants filed timely Objections as

to that part of the Findings and Recommendation in which the

Magistrate Judge denied Defendants’ Motion (#18) to Dismiss as to

Plaintiff’s Third Claim and granted Plaintiff leave to amend its

Complaint as to its Fourth Claim. The matter is now before this

Court pursuant to 28 U.S.C. § 636(b)(1) and Federal Rule of Civil

Procedure 72(b).

When any party objects to any portion of the Magistrate

Judge's Findings and Recommendation, the district court must make

a de novo determination of that portion of the Magistrate Judge's

report. 28 U.S.C. § 636(b)(1). See also Dawson v. Marshall, 561

F.3d 930, 932 (9th Cir. 2009); United States v. Reyna-Tapia, 328

F.3d 1114, 1121 (9th Cir. 2003)(en banc). 

DISCUSSION

In its Third Claim Plaintiff alleges Defendants violated

Dismiss.

2

 In a Status Report (#32) filed April 25, 2016, Plaintiff

advised the Magistrate Judge that Plaintiff had dismissed its

appeal to the Oregon Land Use Board of Appeals and that

Defendants’ Motion to Dismiss for lack of jurisdiction was now

moot. In correspondence to the Magistrate Judge, Defendants

agreed with Plaintiff.

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Plaintiff’s right to equal protection under the United States

Constitution and, as a result, Plaintiff seeks recovery pursuant

to 42 U.S.C. § 1983. In its Fourth Claim Plaintiff alleges

common-law negligence in connection with Defendants’ refusal to

permit the development of a building lot (Lot 4200) in Clackamas

County. Defendants move to dismiss both of these claims for

failure to state a claim pursuant to Federal Rule of Civil

Procedure 12(b)(6) on the basis that judicial estoppel bars

Plaintiff’s Third Claim and Plaintiff’s allegations do not

support its Fourth Claim for negligence.

The development of Lot 4200 is at the heart of this dispute.

Lot 4200 is located within the boundaries of a Special Flood

Hazard Area (SFHA) in the Sandy/Salmon River Principal River

Conservation Area. The development of property within the SFHA

depends in part on whether the property is in a regulated

floodplain. If property is below the Base Flood Elevation (BFE),

it is within a regulated floodplain where a Floodplain

Development Permit (FDP) is required for most developments. 

Plaintiff alleges Lot 4200 is above the BFE, and, therefore,

Plaintiff is not required to obtain an FDP prior to development. 

In addition, Plaintiff contends Defendants violated Plaintiff’s

equal-protection rights by imposing requirements on Plaintiff

that were not imposed on other developers, including Defendants’

refusal to accept BFE certificates from professional land

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surveyors showing Lot 4200 is above BFE and requiring Plaintiff

to obtain an FDP despite the fact that Lot 4200 is above BFE

according to those surveys. Plaintiff also contends Defendants’

conduct in improperly enforcing zoning regulations negligently

caused a foreseeable risk of harm to Plaintiff.

The Magistrate Judge recommends this Court deny Defendants’

Motion to Dismiss Plaintiff’s Third Claim (brought under § 1983)

on the ground that the statements made in other litigation by Kip

O’Connor (the previous owner of Lot 4200 and principal of

Plaintiff) to the effect that Lot 4200 is located within the

regulated floodplain do not trigger judicial estoppel for the

reasons set out below and, therefore, do not bar Plaintiff’s

Third Claim. Defendants object to the Magistrate Judge’s

recommendation.

The Magistrate Judge also recommends the Court grant

Defendants’ Motion to Dismiss Plaintiff’s Fourth Claim on the

ground that a common-law negligence claim may not be based on

intentional, willful, or malicious misconduct. The Magistrate

Judge, however, recommends this Court grant Plaintiff leave to

amend its Fourth Claim for negligence to cure its pleading

deficiencies. Defendants object to the Magistrate Judge’s

recommendation to allow Plaintiff to amend its Fourth Claim on

the ground that any amendment would be futile because Plaintiff’s

Fourth Claim is improperly based on the same operative facts as

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Plaintiff’s Third Claim brought under § 1983 regardless how

Plaintiff’s Fourth Claim is characterized.

I. Plaintiff’s Third Claim

A. Judicial Estoppel

Defendants argue judicial estoppel bars Plaintiff’s Third

Claim in which Plaintiff contends Lot 4200 is not located within

a regulated floodplain. Defendants assert Kip O’Connor stated in

O’Connor v. County of Clackamas3 before District Court Judge

Michael Simon that Lot 4200 is within a regulated floodplain and

Judge Simon, in granting summary judgment for the defendant,

agreed. See Opin. and Order (#144)(issued by J. Simon on 

July 22, 2013). Plaintiff, however, contends judicial estoppel

does not apply because Plaintiff’s allegations in its Complaint

are not, in fact, inconsistent with O’Connor’s statements in the

other action. 

The Magistrate Judge concluded even though the two factual

allegations facially appear to contradict one another because Lot

4200 is apparently mapped as being in a regulated floodplain,

both O’Connor and Plaintiff have consistently challenged the

mapping of Lot 4200. The Magistrate Judge pointed out that “the

parties have been litigating for years the issue whether Lots

4200 and 4400 are appropriately mapped within a regulated

3 The Magistrate Judge took judicial notice of the complaint

in O’Connor v. County of Clackamas, No. 3:11-cv-01297-SI, 2013 WL

3818143 (D. Or. July 22, 2013).

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floodplain.” Thus, the Magistrate Judge concluded Plaintiff’s

position is not “clearly inconsistent” with O’Connor’s position. 

Judicial estoppel is an equitable doctrine that a court may

invoke in its discretion to prevent a litigant from taking

contradictory positions. Ryan v. Editions Ltd. W., Inc., 786

F.3d 754, 763 (9th Cir. 2015). Although judicial estoppel

generally “bars only inconsistent positions taken by the same

party in two different matters,” courts also have invoked the

doctrine to bar parties who stand in privity to another litigant. 

Milton H. Greene Archives, Inc. v. Marilyn Monroe LLC, 692 F.3d

983, 996-998 (9th Cir. 2012). 

In New Hampshire v. Maine the Supreme Court set forth a

three-part analysis to determine whether judicial estoppel

applies: (1) A party’s later position must be “clearly

inconsistent” with its earlier position; (2) whether the party

succeeded in persuading the court in the earlier case to accept

that party’s earlier position, which would result in judicial

acceptance of an inconsistent position in a later proceeding and

create “the perception that either the first or the second court

was misled”; and (3) whether the party seeking to assert an

inconsistent position “would derive an unfair advantage or impose

an unfair detriment on the opposing party if not estopped.” 532

U.S 742, 750-51 (2001).

In this case Plaintiff alleges “Lot 4200 is above BFE” and

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that Defendants “have failed and refused to accept . . . valid

and accurate BFE certificates from licenses surveyors that Lot

4200 is above BFE, and therefore not in a floodplain or

floodway.” Compl. At ¶¶ 10 and 33. Similarly in O’Connor v.

County of Clackamas, O’Connor alleged “Plaintiff verified the BFE

information, by obtaining elevations (sic) certificates from

professional land surveyors, which indicated the homes were

buildable because they were to be located above the BFE.” 

O'Connor Compl. at ¶ 24.

The Magistrate Judge ultimately declined to invoke judicial

estoppel under these circumstances and concluded, as noted, that

Plaintiff’s “position in this case is not clearly inconsistent

with O’Connor’s position” in the earlier case (emphasis added),

that Plaintiff “has not created a perception that [Plaintiff] is

seeking to mislead this Court,” and that Plaintiff “does not

derive an unfair advantage by its pleading language.” The

Magistrate Judge, accordingly, recommended this Court deny

Defendants’ Motion to Dismiss as to Plaintiff’s Third Claim. 

On this record the Court does not find any error in the

Magistrate Judge’s Findings and Recommendation and, accordingly,

adopts the recommendation to deny Defendants’ Motion to Dismiss

Plaintiff’s Third Claim on the ground of judicial estoppel.

B. Collateral Estoppel

In their Objections Defendants raise for the first time in

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support of their Motion (#18) to Dismiss the applicability of

collateral estoppel. Defendants argue the court’s earlier

finding on summary judgment in the O’Connor case that Lot 4200

was within a regulated floodplain triggers collateral estoppel,

which precludes relitigation of that issue in this case and

thereby bars Plaintiff’s claim. Plaintiff contends the issue of

collateral estoppel was not raised in Defendants’ Motion; was not

addressed by the Magistrate Judge in the Findings and

Recommendation; and, therefore, should not be considered by this

Court.

The Court agrees and concludes on this record that because

the issue of collateral estoppel was not addressed to the

Magistrate Judge, it is not appropriately before this Court. 

II. Plaintiff’s Fourth Claim 

Defendants move to dismiss Plaintiff’s Fourth Claim for

negligence on the ground that Plaintiff has only alleged

Defendants acted intentionally, willfully, and maliciously and

has not alleged facts to support a claim that Defendants’ conduct

was negligent. The Magistrate Judge agreed and recommends this

Court dismiss Plaintiff’s Fourth Claim for negligence without

prejudice and grant Plaintiff leave to amend its Fourth Claim. 

Defendants, however, object to the Magistrate Judge’s

recommendation that this Court grant Plaintiff leave to amend its

Fourth Claim for negligence because that claim is based on the

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same operative facts as Plaintiff’s § 1983 claim, and, according

to Defendants, the same operative facts cannot support both a

claim for equal-protection violations and a claim for negligence. 

Defendants, however, acknowledge trial judges in this District

have concluded “at the initial pleading stage a plaintiff may

base claims of negligence under state law and claims of

constitutional violations under 42 U.S.C. § 1983 on the same

facts.” See, e.g., Rodriguez v. City of Portland, No. 3:09-cv00850-KI, 209 WL 3518004, at *2 (D. Or. Oct. 21, 2009). 

Nevertheless, Defendants contend Plaintiff’s reliance on the same

operative facts for both Claim Three and Claim Four constitutes

alternative pleading, and although alternative pleading applies

when “neutral facts, capable of alternative interpretations, may

be presented,” it does not allow “the impermissible pleading of

contradictory statements of fact.” 

The Magistrate Judge, however, did not find Plaintiff pled

contradictory statements of fact but merely concluded it was

improper for Plaintiff to incorporate allegations of Defendants’

intentional misconduct into its Fourth Claim for purposes of

pleading a negligence claim. The Magistrate Judge, therefore,

recommended in the exercise of discretion under Federal Rule of

Civil Procedure 15 that the Court allow Plaintiff to proceed at

the pleading stage with its negligence claim. This Court agrees. 

In summary, this Court has carefully considered Defendants’

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Objections and concludes they do not provide a basis to modify

the Findings and Recommendation. The Court also has reviewed the

pertinent portions of the record de novo and does not find any

error in the Magistrate Judge's Findings and Recommendation. 

CONCLUSION

The Court ADOPTS Magistrate Judge Beckerman’s Findings and

Recommendation (#34) and, therefore, GRANTS Plaintiff’s own

Motion to Dismiss the First and Second Claims; DENIES as moot

Defendants' Motion (#18) to Dismiss Plaintiff’s Complaint for

lack of jurisdiction; DENIES Defendants’ Motion (#18) to Dismiss

Plaintiff’s Third Claim; GRANTS without prejudice Defendants’

Motion (#18) to Dismiss Plaintiff’s Fourth Claim; and GRANTS

Plaintiff leave to amend its Complaint only as to the Fourth

Claim for negligence by a date to be set by the Magistrate Judge.

IT IS SO ORDERED.

DATED this 4th day of August, 2016.

/s/ Anna J. Brown

 

ANNA J. BROWN

United States District Judge

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