IN THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF OREGON 

MEDFORD DIVISION 

JAMES L. WENZEL, 

Plaintiff, 

vs. 

KLAMATHCOUNTYFIREDISTRICTNO. l; 

BOARD OF DIRECTORS OF KLAMATH 

COUNTY FIRE DISTRICT NO. 1; STEPHEN 

ROBERT HEDLUND; and JIM TODDY, 

Defendants. 

AIKEN, District Judge: 

Case No. 1:15-cv-1371-CL 

OPINION AND ORDER 

In this employment action, plaintiff Jam es 'Nenzel asserts that defendants-Klamath 

County Fire District No. 1 and its Board of Directors (collectively, "KCFD 1 "), Stephen Hedlund, 

and Jim Toddy-violated his rights under the United States Constitution, breached his 

employment agreement, and committed various torts against him under Oregon law. On August 

29, 2017, Magistrate Judge Clarke filed a Report and Recommendation ("R&R") recommending 

this Court grant in part and deny in part defendants' motions for summary judgment. Three days 

later, Judge Clarke issued a minute order ruling on defendants' motions to strike. The R&R and 

1 - OPINION AND ORDER 
minute order are now before me pursuant to 28 U.S.C. § 636(b) and Federal Rule of Civil 

Procedure 72. All paiiies filed objections to the R&R, and KCFD 1 filed an objection to the 

minute order. For the reasons set forth below, I decline to modify or set aside the minute order 

and adopt the R&R in full. 

The Magistrates Act establishes procedures for district judges to review orders issued by 

magistrate judges. Depending on the nature of the order, review may be de nova or for clear 

error. As relevant here, the minute order-which contains an evidentiary ruling regarding the 

scope of the summary judgment record-is reviewed for clear error. 28 U.S.C. § 636(b)(l)(A); 

Fed. R. Civ. P. 72(a). By contrast, for the R&R, I must review "de nova ... those portions ... to 

which objection is made." 28 U.S.C. § 636(b)(l)(C); accord Fed. R. Civ. P. 72(b)(3); Holder v. 

Holder, 392 F.3d 1009, 1022 (9th Cir. 2004). 

I find no error, much less clear error, in Judge Clarke's ruling on the motion to strike. In 

the Ninth Circuit, a court ruling on a motion for summary judgment "[does] not focus on the 

admissibility of the evidence's foim," but instead concerns itself with the admissibility of its 

contents. Fraser v. Goodale, 342 F.3d 1032, 1036 (9th Cir. 2003); see also Norse v. City of 

Santa Cruz, 629 F.3d 966, 973 (9th Cir. 2010) ("[T]he evidence presented at the summary 

judgment stage does not yet need to be in a form that would be admissible at trial[.]") As Judge 

Clarke noted, at trial, the standard changes, and the recording itself would be the only acceptable 

proof of the recording's content. See Fed. R. Evid. 1002. But on a motion for summary 

judgment, plaintiffs amateur transcript suffices, paiiicularly in the absence of any substantive 

challenge to the transcript's accuracy. 

I have reviewed the objected-to portions of the R&R de nova and find no error. With 

respect to the claim of intentional interference with economic relations, Hedlund and Toddy 

2 - OPINION AND ORDER 
advance alternative interpretations of the evidence, but the theory of the case advanced by 

plaintiff remains plausible; a factfinder could conclude, based on the evidence in the summary 

judgment record, that Hedlund had a personal vendetta against plaintiff and pursued it through 

the investigation, that Toddy shared Hedlund's wrongful motivation, and that their actions 

harmed his employment relationship with KCFD 1. Regarding the "stigma-plus" libe1ty interest 

claim, I agree with Judge Clarke that the stigmatizing allegations against plaintiff were 

published. Under Cox v. Roskelley, 359 F.3d 1105, 1112 (9th Cir. 2004), placement of 

stigmatizing information in an individual's personnel file constitutes publication if the 

information could be accessed via a public records request. KCFD! 's position in this litigation 

has been that the repmt is subject to disclosure under the state public records law. That means 

third parties could have gained access to the information through such a request, which is 

sufficient for publication under Cox. I also agree that on the facts of this case, Toddy's 

interviews ofKCFDl employees and others constituted publication. It is plain based on Toddy's 

testimony that the fifteen individuals he interviewed were made aware of the nature of the 

allegations against plaintiff, and Toddy testified he took no action whatsoever to prevent those 

interviewed from disclosing those allegations to third parties. I reject defendants' contention that 

such a ruling will be "disastrous" for employers; only a nai1ow range of misconduct qualifies as 

stigmatizing for due process purposes, and it is not unfair to expect employers who conduct a 

freewheeling inquiry without putting any disclosure safeguards in place to provide a nameclearing hearing. 

Turning to plaintiffs objections, the economic loss rule continues to bar all negligence 

claims. Plaintiff has identified a sole purported injury to person or prope1ty: his interest in 

continued employment. But for the reasons set out in the R&R, plaintiff did not have a property 

3 - OPINION AND ORDER 
interest in the renewal of his contract. Accordingly, he has alleged only economic losses, and his 

negligence claims cannot proceed unless defendants owed him a special duty of care. See Onita 

Pac. Corp. v. Trustees of Bronson, 843 P.2d 890, 896 n.6 (Or. 1992). The special duty 

requirement is fatal to plaintiffs negligence claims because he has not established that any of the 

defendants owed such a duty to him. He contends he was a third-party beneficiary ofHedlund's 

agreement to represent KCFDl and of Toddy's contract to perfonn the investigation, but that 

assertion is belied by the record. Plaintiff, as the subject of a fraud investigation, was not an 

intended beneficiary of that investigation. And although he may have been Hedlund' s client or 

an intended beneficiary of Hedlund's agreement to represent KCFDl with regard to other 

matters, he was not an intended third-party beneficiary of that agreement vis-a-vis the 

investigation of his own purported misconduct. Hedlund and Toddy certainly owed duties of 

honesty and competency to KCFDl, but those duties did not extend to plaintiff. 

I ADOPT Judge Clarke's R&R (doc. 159). Defendants' motions for summary judgment 

(docs. 115, 118, & 120) are granted in part and denied in part as set fo1ih in detail in the R&R. 

The parties are directed to contact Comiroom Deputy Cathy Kramer, 

Cathy Kramer@ord.uscourts.gov or (541) 431-4102, to set a telephonic status conference to 

discuss how this case will proceed. 

IT IS SO ORD~(· 

Dated this d,L day of November 2017. 

Ann Aiken 

United States District Judge 

4 - OPINION AND ORDER