1 - OPINION & ORDER

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

MAX ZWEIZIG, 

No. 3:15-cv-02401-HZ

Plaintiff/

Counter Defendant,

OPINION & ORDER

v.

NORTHWEST DIRECT TELESERVICES, INC.;

NORTHWEST DIRECT MARKETING OF 

OREGON, INC.; TIMOTHY ROTE; 

NORTHWEST DIRECT MARKETING 

(DELAWARE), INC.; NORTHWEST DIRECT 

OF IOWA, INC.; ROTE ENTERPRISES, LLC; 

NORTHWEST DIRECT MARKETING, INC.;

DOES 1-5.

Defendants/Counter Claimants.

Joel W. Christiansen

812 NW 17th Avenue

Portland, OR 97209

Attorney for Plaintiff/Counter Defendant

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Timothy Rote

24790 SW Big Fir Road

West Linn, OR 97068

Pro Se Defendant/Counter Claimant

HERNÁNDEZ, District Judge:

Pro se Defendant/Counter Claimant Timothy Rote brings three motions: (1) Motion to 

Dismiss for Lack of Subject Matter Jurisdiction; (2) Motion for Judicial Notice; and (3) Motion 

for Leave to Amend Counterclaims. The Court denies all of Defendant’s motions.

BACKGROUND

The parties’ litigation history in this matter was set forth by this Court in a prior Opinion 

& Order: 

Plaintiff Max Zweizig alleges that he was terminated by Defendant Northwest Direct 

Teleservices, Inc. (NDT), a corporate entity owned by Timothy Rote, after Zweizig

reported to the Oregon Department of Justice and the Lane County District Attorney that 

NDT had engaged in criminal activity. Compl. ¶¶ 17-18, ECF 1. Zweizig also alleges that 

Rote and NDT took other adverse actions against Zweizig, including publishing 

statements to third parties and the general public accusing Zweizig of destroying data and 

engaging in other criminal and civil misconduct during his employment at NDT. Id. at ¶ 

18. 

The parties engaged in arbitration related to this employment dispute for several years 

and, ultimately, an arbitrator found in Zweizig’s favor and awarded damages to Zweizig. 

Id. at ¶ 21. The arbitration award was reduced to a judgment; however, NDT has failed to 

satisfy that judgment. Id. at ¶ 22. On March 11, 2014, Zweizig filed a lawsuit against 

NDT, Rote, and related corporate entities, alleging that the defendants violated the 

Uniform Fraudulent Transfer Act and engaged in other fraudulent activity to defeat 

Zweizig’s ability to enforce his whistleblower retaliation judgment. Id. at ¶ 23.

On or about February 27, 2015, Defendants created a website, “Sitting Duck Portland,”

which describes the arbitration between Rote’s companies and Zweizig. Id. at ¶ 25. 

According to Zweizig, the Sitting Duck Portland website disparages Zweizig, his fiancée, 

and his counsel. Id. at ¶ 27.

On December 24, 2015, Zweizig filed the present employment discrimination action 

against Rote, a citizen of Oregon; six corporate entities allegedly owned by Rote, 

including NDT; and five Doe defendants. Zweizig alleges that the content of the Sitting 

Duck Portland website constitutes a series of ongoing adverse employment actions 

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targeted at Zweizig due to his participation in protected conduct. Id. at ¶ 28. Zweizig 

brings claims of whistleblower discrimination and retaliation, retaliation for opposing 

unlawful conduct, and aiding and abetting. Id. at ¶¶ 31-57.

Zweizig v. Nw. Direct Teleservices, Inc., No. 3:15-CV-02401-HZ, 2016 WL 755626, at *1 (D. 

Or. Feb. 25, 2016).

On March 10, 2016, Defendant filed a second amended answer to Plaintiff’s complaint. 

Second Am. Answer, ECF 29. In this second amended answer, Defendant asserted seven 

counterclaims. Id. On August 17, 2016, this Court granted Plaintiff’s motion to dismiss 

Defendant’s counterclaims. Opinion & Order (O&O), ECF 61. 

DISCUSSION

I. Motion to Dismiss for Lack of Subject Matter Jurisdiction

A. Plaintiff’s Claims Against Defendant

Defendant seeks to dismiss all of Plaintiff’s claims. However, one of those claims (which 

has two counts) is brought against the Corporate Defendants only. As this Court has previously 

informed Defendant, he may not represent the Corporate Defendants. See United States v. High 

Country Broad. Co., 3 F.3d 1244, 1245 (9th Cir. 1993) (stating that a corporation may appear in 

federal court only through licensed counsel); see also 28 U.S.C. § 1654. Thus, the Court only 

considers Defendant’s motion to dismiss the two claims Plaintiff brings against Defendant in his 

individual capacity: (1) Retaliation for Opposing Unlawful Conduct in Violation of Oregon 

Revised Statute § (O.R.S.) 659A.030(1)(f); and (2) Aiding and Abetting in Violation of O.R.S. 

659A.030(1)(g). Defendant contends that these claims should be dismissed because they are 

subject to arbitration. The Court denies Defendant’s motion to dismiss.

B. Standard

The Federal Arbitration Act, 9 U.S.C. §§ 1–16 (“FAA”), removes the Court's subject 

matter jurisdiction to hear a claim when there is a valid, enforceable arbitration clause. 

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Therefore, Defendant’s motion to dismiss is “one means to raise its arbitration defense. In effect, 

[Defendants’] motion is a petition to this court within the meaning of § 4 of the FAA.” Rogue v. 

Applied Materials, Inc., No. 03:03–cv–1564–ST, 2004 WL 1212110, at *4 (D. Or. Feb. 20, 

2004).

The FAA limits the Court's role to determining whether a valid arbitration agreement 

exists, and whether the agreement encompasses the disputes at issue. Nguyen v. Barnes & Noble 

Inc., 763 F.3d 1171, 1175 (9th Cir. 2014). Written agreements to arbitrate arising out of 

transactions involving interstate commerce “shall be valid, irrevocable, and enforceable, save 

upon such grounds as exist at law or in equity for the revocation of any contract.” 9 U.S.C. § 2. If 

the issue is referable to arbitration under the agreement, then the Court must direct the issue to 

arbitration and stay the trial. 9 U.S.C. § 3. An agreement to arbitrate is to be “rigorously 

enforce[d.]” Dean Witter Reynolds, Inc. v. Byrd, 470 U.S. 213, 221 (1985).

C. Arbitration Agreement

Defendant contends that this Court lacks subject matter jurisdiction over Plaintiff’s 

claims because the claims are encompassed by a 2001 Employment Agreement (“Agreement”)

entered into by Plaintiff and Defendant Northwest Direct Teleservices, Inc. (“NDT”) that 

mandates the use of arbitration to resolve disputes arising out of or related to Plaintiff’s 

employment with NDT. See Rote Decl. Ex. A, ECF 79-1.1 Defendant’s argument fails for 

several reasons.

 

1 Defendant includes the Agreement as an attachment to the “Declaration of Timothy Rote on Defendant 

Rote’s Motion for Summary Judgment.” ECF 79. The footer of that document states “Declaration of 

Timothy C. Rote in Opposition to Plaintiff’s Motion to Dismiss Counterclaims.” Id. The Court assumes 

that Defendant erred in the labeling of his declaration and the footer, and the Court construes the exhibit 

as corresponding to Defendant’s Motion to Dismiss for Lack of Subject Matter Jurisdiction. However, 

Defendant is warned to be more careful in the future in order to avoid confusion. 

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Defendant is not a signatory to the Agreement, although he did sign the Agreement on 

behalf of NDT. Defendant fails to explain how claims against him, as a non-signatory individual, 

fall within the Agreement. See United Steelworkers v. Warrior & Gulf Navigation Co., 363 U.S. 

574, 582 (1960) (“[A]rbitration is a matter of contract and a party cannot be required to submit to 

arbitration any dispute which he has not agreed so to submit.”); see also Rajagopalan v. Note 

World, LLC, 718 F.3d 844, 847 (9th Cir. 2013) (“We have never previously allowed a nonsignatory defendant to invoke equitable estoppel against a signatory plaintiff, and we decline to 

expand the doctrine here.”); Murphy v. DirecTV, Inc., 724 F.3d 1218, 1229 (9th Cir. 2013)

(“generally only signatories to an arbitration agreement are obligated to submit to binding 

arbitration”). Where other circuits have granted motions to compel arbitration on behalf of nonsignatory defendants against signatory plaintiffs, it was “essential in all of these cases that the 

subject matter of the dispute was intertwined with the contract providing for arbitration.” 

Rajagopalan v. NoteWorld, LLC, 718 F.3d 844, 847 (9th Cir. 2013) (quoting Mundi v. Union 

Sec. Life Ins. Co., 555 F.3d 1042, 1045 (9th Cir. 2009)). Here, the subject matter of the 

dispute—the content and allegedly disparaging nature of Defendant’s blog posts—is not 

intertwined with the parties’ 2001 Agreement. For this reason, Defendant’s argument fails. 

Even if Defendant could show that the Agreement applies to the claims against him, 

Defendant’s attempt to dismiss this case due to the Agreement’s arbitration provision fails 

because he waived his right to compel arbitration. See Van Ness Townhouses v. Mar Indus. 

Corp., 862 F.2d 754, 758 (9th Cir. 1988) (finding waiver of right to arbitration); Antuna v. Am. 

W. Homes, Inc., 232 F. App'x 679 (9th Cir. 2007) (unpublished) (same). “A party seeking to 

prove waiver of a right to arbitration must demonstrate: (1) knowledge of an existing right to 

compel arbitration; (2) acts inconsistent with that existing right; and (3) prejudice to the party 

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opposing arbitration resulting from such inconsistent acts.” Fisher v. A.G. Becker Paribas Inc., 

791 F.2d 691, 694 (9th Cir. 1986). 

Under the first prong of Fisher, the Court finds that Defendant has known of his right to 

compel arbitration since he signed the Agreement on behalf of NDT in 2001. In addition, 

Defendant declares that he used the Agreement to compel arbitration with Plaintiff in 2006. Rote 

Decl. ¶¶ 3-4, ECF 79. 

As to the second Fisher prong, Defendant has acted inconsistently with the right to 

arbitrate by actively defending himself in the present case and filing counterclaims against 

Plaintiff. As noted above, this case was filed against Defendant in December of 2015 and 

Defendant first filed an answer in January of 2015. Since that time, Defendant has submitted 

multiple filings in this case, including a motion to join counterclaim defendants and responses to 

Plaintiff’s motions to strike and dismiss. Defendant has also participated in several hearings 

before the Court. Now, for the first time, Defendant asserts that Plaintiff’s claims are subject to 

arbitration. Such behavior is inconsistent with a right to arbitrate. See, e.g., Martin v. Yasuda, 

829 F.3d 1118, 1126 (9th Cir. 2016) (finding defendants’ behavior inconsistent with a right to 

arbitrate when they “did not even note their right to arbitration until almost a year into the 

litigation”); Van Ness Townhouses, 862 F.2d at 759 (a party’s “extended silence and muchdelayed demand for arbitration indicates a conscious decision to continue to seek judicial 

judgment on the merits of the arbitrable claims”) (internal quotation marks omitted). 

Finally, the third Fisher prong is satisfied because Plaintiff would be prejudiced if this 

case were dismissed in favor of arbitration. Similar to Defendant, Plaintiff has vigorously 

litigated this case for a year. The Court has set a 2017 trial date. See Trial Mgmt. Order, ECF 76.

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To delay this case any further would cause prejudice. Therefore, the Court finds that Defendant 

waived any right to arbitration.

D. Ripeness and Mootness

Defendant argues that any claims Plaintiff has with respect to Defendant’s blog are based 

on a speculative future adverse employment action. Thus, Defendant argues that the claims are 

not ripe and should be dismissed. He also argues the claims are moot because he has removed 

and redacted Plaintiff’s name from indexable material on the blog. 

Defendant’s arguments fail. At this stage of the proceeding, the Court must view all facts 

in the light most favorable to Plaintiff. According to Plaintiff, as recently as September 12, 2016, 

Defendant wrote a blog post that falsely implied Plaintiff had engaged in wrongdoing. 

Christiansen Dec. ¶ 4, Ex. 2, ECF 84-2. Thus, Plaintiff’s claims are ripe and are not moot.

II. Motion for Judicial Notice

Defendant asks the Court to take judicial notice of two exhibits: (1) documents provided 

by the U.S. Marshals to Defendant regarding a telephone call that Plaintiff’s counsel made to 

Judge Jones; and (2) a declaration by Defendant’s brother, Gregory Rote, refuting statements 

made in a declaration of Plaintiff’s counsel. Defendant also asks the Court to take judicial notice 

of several paragraphs of argument regarding factual disputes in this case. 

Under Federal Rule of Evidence 201(b), the Court may take judicial notice of facts that 

are “not subject to reasonable dispute” because they “can be accurately and readily determined 

from sources whose accuracy cannot reasonably be questioned.” A court may not take judicial 

notice of a matter that is in dispute. Lee v. City of Los Angeles, 250 F.3d 668, 690 (9th Cir.

2001). A party requesting judicial notice bears the burden of persuading the trial judge that the 

fact is a proper matter for judicial notice. In re Tyrone F. Conner Corp., Inc., 140 B.R. 771, 781 

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(Bankr. E.D. Cal. 1992) (citing In re Blumer, 95 B.R. 143, 146 (B.A.P. 9th Cir. 1988)). Neither 

the documents nor Defendant’s arguments are sources “whose accuracy cannot reasonably be 

questioned.” Therefore, the Court denies Defendant’s request for judicial notice. 

However, the Court considers the documents under the doctrine of incorporation by 

reference. A document need not be attached to the complaint to be incorporated into it by 

reference if the plaintiff “refers extensively to the document or the document forms the basis of 

the plaintiff's claim.” United States v. Ritchie, 342 F.3d 903, 908 (9th Cir. 2003). A document is 

incorporated by reference if (1) the complaint refers to it; (2) the document is central to the 

plaintiff's claim; and (3) no party questions the document's authenticity. Marder v. Lopez, 450 

F.3d 445, 448 (9th Cir. 2006). The Court may treat such a document as part of the complaint and 

assume its contents are true for purposes of determining whether a claim has been sufficiently 

alleged. Id.; see also Ritchie, 342 F.3d 908 (district court may consider materials incorporated by 

reference without converting the motion to dismiss into a motion for summary judgment). 

Here, Plaintiff does not object to Defendant’s request for the Court to consider his 

attachments, nor does Plaintiff question the documents’ authenticity. Further, the documents are 

referred to in and are central to Defendant’s proposed counterclaims. Thus, the Court 

incorporates the documents by reference into Defendant’s counterclaims and assumes that their 

contents are true for purposes of Defendant’s motion for leave to amend. 

III. Motion for Leave to Amend

Defendant moves for leave to file a Third Amended Answer containing four 

counterclaims and several affirmative defenses. Defendant seeks to include counterclaims of 

defamation, abuse of process, intentional infliction of emotional distress, and aiding and 

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abetting.

2 Because Defendant’s proposed counterclaims are futile3

, the Court denies his motion 

to add those claims. Defendant is instructed to remove all counterclaims before submitting his 

Third Amended Answer. 

A. Standard 

Under Rule 15(a)(2), after a responsive pleading is filed, “a party may amend its pleading 

with the opposing party's written consent or the court's leave.” Fed. R. Civ. P. 15(a)(2). Rule 

15(a)(2) prescribes that “[t]he court should freely give leave when justice so requires.” Id. “‘This 

policy is to be applied with extreme liberality.’” C.F. ex rel Farnan v. Capistrano Unified Sch. 

Dist., 654 F.3d 975, 985 (9th Cir. 2011) (quoting Eminence Capital, LLC v. Aspeon, Inc., 316 

F.3d 1048, 1051 (9th Cir. 2003)). However, “the liberality in granting leave to amend is subject 

to several limitations. Leave need not be granted where the amendment of the complaint would 

cause the opposing party undue prejudice, is sought in bad faith, constitutes an exercise in 

futility, or creates undue delay.” Ascon Props., Inc. v. Mobil Oil Co., 866 F.2d 1149, 1160 (9th 

Cir. 1989) (citations omitted).

B. Alleged Violation of Stipulated Protective Order

In Plaintiff’s Response to Defendant’s Motion for Leave to Amend, Plaintiff contends 

that Defendant attached the deposition of Plaintiff from another case in this District, Max 

Zweizig v. Timothy C. Rote, et al., 3:14-cv-00406-YY, in violation of the Stipulated Protective 

Order from that case. In Defendant’s Reply, he submits a copy of an email from himself to 

Plaintiff’s counsel in which he challenges the designation of Plaintiff’s testimony as confidential. 

 

2

In Defendant’s Reply, he abandons his effort to add an additional counterclaim for “civil extortion.” 

Rote Reply at 9, ECF 91.

3

In addition, to the extent Defendant seeks to bring these counterclaims against “Plaintiff and Plaintiff 

Counsel,” the Court reiterates its prior ruling denying Plaintiff’s motion to join parties as counterclaim 

defendants. O&O, Feb. 25, 2016, ECF 25. The only potential counterclaim defendant in this case is 

Plaintiff.

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According to Defendant, because Plaintiff’s counsel never responded to the email, the deposition 

testimony is no longer subject to the Protective Order.

The Protective Order provides:

In the event that any party to this litigation disagrees at any point in these proceedings 

with any designation made under this Protective Order, the parties shall first try to 

resolve such dispute in good faith on an informal basis. If plaintiff provides a written 

objection to the designating party as to the designation of material as confidential, the 

designating party shall submit a motion to the court within twenty-one (21) days of such 

objection, or the material will not be subject to this order. If a motion is timely filed by 

the designating party, the designated document or information shall continue to be treated 

as “Confidential” subject to the provisions of this Protective Order, pending a ruling by 

the Court.

Marshall Decl. Ex. 1 (“Protective Order”) ¶ 4, ECF 90-1 (emphasis added). As emphasized 

above, the Protective Order as entered provides a mechanism for Plaintiff to object to the 

designation of material as confidential. It does not, however, provide the same mechanism to 

Defendant. The Court assumes this may have been a scrivener’s error; however, the parties will 

have to resolve that potential error in the case in which the Protective Order was entered. As 

applied to this case, Defendant is unable to refute Plaintiff’s contention that he violated the 

Protective Order by attaching Plaintiff’s deposition to his Proposed Third Amended Answer. 

Accordingly, the Court strikes the exhibit and removes it from the record. Until the parties 

resolve the issue of the Protective Order in case 3:14-00406-YY, Defendant is ordered not to 

include the deposition transcript or its contents in further filings in this case.

C. Background

Defendant’s counterclaims are based on alleged behavior by Plaintiff or his counsel in 

response to a blog post by Defendant that referenced U.S. District Court Judge Robert E. Jones. 

Defendant alleges that on November 12, 2015, Plaintiff’s counsel Joel Christiansen and Linda 

Marshall contacted Judge Jones’ chambers and alleged that Defendant intended to harm or posed 

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a threat to Judge Jones at his Lifetime Achievement Award ceremony. Proposed Third Am. 

Answer ¶ 32, ECF 86-2. Plaintiff’s counsel also accused Defendant of stalking his ex-wife with a 

handgun and having been previously arrested. Id. at ¶ 33. Plaintiff’s counsel also alleged that 

Defendant had been engaged in fraud and that “the U.S. District Court has a history of finding 

against Rote.” Id. at ¶ 33. 

D. Defamation

Defendant contends that Plaintiff defamed him when Plaintiff’s counsel contacted Judge 

Jones’ deputy. The elements of a claim for defamation are: (1) the making of a defamatory 

statement; (2) publication of the defamatory material; and (3) a resulting special harm, unless the 

statement is defamatory per se and therefore gives rise to presumptive special harm. L & D of 

Oregon, Inc. v. Am. States Ins. Co., 171 Or. App. 17, 22, 14 P.3d 617, 620 (2000); Nat'l Union 

Fire Ins. Co. of Pittsburgh Pennsylvania v. Starplex Corp., 220 Or. App. 560, 584, 188 P.3d 332, 

347 (2008).

The Court assumes, without deciding, that Defendant can bring a claim of defamation 

against Plaintiff even though Defendant admits that any allegedly defaming statements were

made by Plaintiff’s attorneys, not by Plaintiff. See Bleeck v. Mangold, 92 Or. App. 200, 203, 757 

P.2d 456, 458 (1988) (finding that an attorney who sent an allegedly defamatory letter to an 

opposing party acted as his client’s agent). In addition, the Court finds that the statements were 

published when they were made to Judge Jones’ courtroom deputy. Nevertheless, Defendant fails 

to state a claim for defamation.

First, as this Court has already decided in this case, a statement to Judge Jones’ 

courtroom deputy suggesting that Defendant’s blog post constituted a threat is an opinion 

statement protected by the First Amendment. See Milkovich v. Lorain Journal Co., 497 U.S. 1, 

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20 (1990) (statement of opinion relating to matters of public concern that do not contain a 

provably false factual connotation will receive full constitutional protection); Obsidian Fin. Grp., 

LLC v. Cox, 740 F.3d 1284, 1291-92 (9th Cir.) (“[P]ublic allegations that someone is involved in 

crime generally are speech on a matter of public concern.”). The same protection applies to any 

statement opining that Defendant is unstable.

Second, Defendant’s proposed counterclaim fails to allege any resulting special harm 

from Plaintiff’s statements. Defamation claims premised on an oral statement (slander) require 

that a plaintiff prove either that the statement falls within one of the actionable per se categories 

or that the statement caused the plaintiff special harm. L & D of Oregon, 171 Or. App. at 24, 14 

P.3d at 617. Defendant seeks $1 million in consequential damages and $5 million in punitive 

damages for this claim. However, there is no allegation in the defamation claim that Defendant 

was harmed in any way. Construing Defendant’s claim liberally by considering facts alleged 

elsewhere in the Proposed Third Amended Answer, Defendant alleges that the contact with 

Judge Jones’ chambers caused Defendant emotional distress. See, e.g., Third Am. Answer ¶ 48. 

Special harm for the purpose of a defamation claim, however, is “the loss of something having 

an economic or pecuniary value, such as a failure to realize a reasonable expectation of gain.” 

Nat'l Union Fire, 220 Or. App. at 586, 188 P.3d at 348 (citing Restatement (Second) of Torts, § 

575, comment b). Allegations of suffering psychological and emotional distress, humiliation and 

embarrassment are insufficient to allege a “special harm.” L & D of Oregon, 171 Or. App. at 28, 

14 P.3d at 623. 

Defendant also alleges that, to the extent the statements accused Defendant of a crime, 

the statements are defamatory per se. However, as discussed above, the statements did not 

accuse Defendant of a crime but, rather, offered an opinion as to the significance of Defendant’s 

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blog post about Judge Jones. Therefore, Defendant fails to state a defamation claim because he 

does not allege a special harm. 

E. Abuse of Process and Malicious Prosecution

Defendant alleges the following:

As a Third and Separate Counterclaim, this Answering Defendant alleges that plaintiff is 

engaged in harassment in the form of Abuse of Civil Process, pursuing the claims for his 

benefit and designed [sic] to extort, coerce, and damage Rote financially for publishing a 

blog critical of an arbitration involving the plaintiff. 

Proposed Third Am. Answer ¶ 42. Defendant further alleges that Plaintiff knows that his claims 

are subject to arbitration and are not timely filed. Id. at ¶ 43. According to Defendant, Plaintiff 

has an ulterior motive of forcing Plaintiff to hire counsel to represent Corporate Defendants, 

even though Plaintiff knows the corporations are inactive. Id. at ¶ 44.

Under Oregon law, the tort of abuse of process “is the perversion of a process that is 

regular on its face to a purpose for which the process is not intended.” Columbia County v. 

Sande, 175 Or. App. 400, 408 (2001). In other words, “[t]he tort involves the use of the process 

as a club by which to extort something unrelated to the process from the other party.” Clausen v. 

Carstens, 83 Or. App. 112, 118 (1986). To plead a claim of abuse of process, a plaintiff must 

allege (1) an ulterior purpose, beyond malice, that is unrelated to the process and (2) a willful act 

in the use of the process that is not proper in the regular conduct of the proceeding. Columbia 

County, 175 Or. App. at 408; see also Hartley v. State Water Resources Dept., 77 Or. App. 517, 

522 (1986) (a defendant cannot be liable for abuse of process where he has “done nothing more 

than carry out the process to its authorized conclusion, even though with bad intentions”).

Defendant’s claim fails. His description of Plaintiff’s behavior does not constitute “the 

use of the process that is not proper in the regular conduct of the proceeding.” Plaintiff has 

brought claims against Defendant and Corporate Defendants. Plaintiff’s claims were timely filed 

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and Defendant waived his right to compel Plaintiff to arbitrate the claims. Further, there is no 

evidence that Plaintiff engaged in this lawsuit for the ulterior purpose of forcing Defendant to 

obtain counsel for Corporate Defendants. Therefore, Defendant fails to state a claim.

F. Intentional Infliction of Emotional Distress

Defendant alleges that as a result of Plaintiff’s wrongful conduct, Defendant has suffered, 

and will continue to suffer, mental anguish, emotional distress, and embarrassment. Proposed 

Third Am. Answer ¶ 48. Specifically, Defendant alleges:

While defendant is not easily distressed emotionally over litigation, watching the plaintiff 

and plaintiff [sic] counsel posture one lie after another, attack his business ethics alleging 

fraudulent billing practices with no proof whatsoever, destroy evidence without 

accountability, submit false and unexamined evidence to an arbitrator privately, seek to 

enlist the help of Judge Jones twice, engage in a host of other outrageous acts, and then 

file a lawsuit when Rote exposes the corruption, one can only imagine that the otherwise 

unflappable demeanor of the defendant has been tested beyond social acceptability.

Id. at ¶ 49. 

To state an IIED claim, Defendant must show that Plaintiff intended to inflict severe 

emotional distress, Plaintiff’s acts were the cause of Defendant’s severe emotional distress, and 

Plaintiff’s acts constituted an extraordinary transgression of the bounds of socially tolerable 

conduct. McGanty v. Staudenraus, 321 Or. 532, 563, 901 P.2d 841, 849 (1995)). “Because proof 

of intent is often indirect and evidence of psychic harm is usually self-serving, proof of this tort 

largely turns on . . . whether a defendant's conduct is sufficiently outrageous.” House v. Hicks, 

218 Or. App. 348, 358, 179 P.3d 730, 736 (2008).

Whether the alleged conduct constitutes an extraordinary transgression of the bounds of 

socially tolerable conduct is a question of law for the court. Harris v. Pameco Corp., 170 Or. 

App. 164, 171, 12 P.3d 524, 529 (2000). In a 2008 case, the Oregon Court of Appeals explained 

the following parameters of the tort: 

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A trial court plays a gatekeeper role in evaluating the viability of an IIED claim by 

assessing the allegedly tortious conduct to determine whether it goes beyond the farthest 

reaches of socially tolerable behavior and creates a jury question on liability. 

* * *

As explained in the Restatement [(Second) of Torts] at § 46 comment d [1965]:

“Liability has been found only where the conduct has been 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.”

House, 218 Or. App. at 358, 179 P.3d at 736 (internal quotation marks and citations omitted). 

“Whether conduct is an extraordinary transgression is a fact-specific inquiry, to be 

considered on a case-by-case basis, based on the totality of the circumstances.” Id. Oregon law 

identifies “several contextual factors that guide the court's classification of conduct as extreme 

and outrageous.” Id. at 360, 179 P.3d at 737. The most important of these factors is “whether a 

special relationship exists between a plaintiff and a defendant” such as employer-employee, 

physician-patient, or government officer-citizen. Id. Courts are concerned with whether the 

defendant’s relationship to the plaintiff ‘imposes on the defendant a greater obligation to refrain 

from subjecting the victim to abuse, fright, or shock than would be true in arm's-length 

encounters among strangers.’” Id. (quoting McGanty, 321 Or. at 547–48, 901 P.2d at 851). Other 

factors include whether the conduct was undertaken with an ulterior motive or to take advantage 

of an unusually vulnerable individual. Id. The setting in which the conduct occurs, for example, 

whether it occurred in a public venue or in an employment context, also bears on the degree of 

its offensiveness. Id.

Here, there is no special relationship between Plaintiff and Defendant. While the parties 

previously had an employment relationship, Defendant has not employed Plaintiff in many years. 

See id. (absence of any special relationship is significant in finding no outrageous conduct). 

Furthermore, to the extent the parties previously had a legal relationship, it was Defendant, as 

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employer, who would have held the dominant position and would thus have a greater obligation 

to refrain from subjecting Plaintiff to emotional distress. Id. (“[C]ourts are more likely to 

categorize conduct as outrageous when it is undertaken by the dominant party in a legal 

relationship.”). 

In addition, there is no allegation by Defendant that Plaintiff’s conduct was motivated by 

a desire to take advantage of an unusually vulnerable individual. To the contrary, Defendant 

alleges that he “is not easily distressed emotionally over litigation” and he is generally 

“unflappable.” Proposed Third Am. Answer ¶ 49.

Instead, Defendant appears to base his claim on the assertion that Plaintiff’s conduct was 

undertaken with an ulterior motive to gain an advantage in litigation before another judge in this 

District. Defendant argues in his Reply that “[i]t is reasonable to conclude that the plaintiff group 

may have been disseminating this false information to a much broader group, not just to law 

enforcement.” Def.’s Reply 5, ECF 91. Defendant does not submit any evidence to support this 

assertion and the Court does not agree with Defendant that it would be reasonable to make such 

an inference based on the evidence available. Plaintiff’s counsel made the statements in private 

to Judge Jones’ courtroom deputy and the stated purpose of the phone call was to warn Judge 

Jones about a potential threat. These factors weigh against Defendant’s assertion of IIED. See

House, 218 Or. App. at 365, 179 P.3d at 740 (explaining that the “private and indirect character” 

of a defendant’s conduct makes it less likely to be classified as outrageous). Furthermore, even if 

some of the statements made to Judge Jones’ deputy were false, they were made “as part of an 

“otherwise legitimate complaint” regarding Defendant’s blog post and merely “set out the 

context of [Defendant’s] behavior.” See id. at 361, 364, 179 P.3d 730.

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17 - OPINION & ORDER

In sum, there is no special relationship between Plaintiff and Defendant, Defendant is not 

a particularly vulnerable individual, and there is no evidence that the actions were taken with an 

ulterior motive. Even taking the alleged facts in the light most favorable to Plaintiff, no 

reasonable factfinder would conclude that Plaintiff’s actions rose to the level of socially 

intolerable conduct. Defendant fails to state an IIED claim. 

G. Aiding and Abetting

This Court previously dismissed Defendant’s “aiding and abetting” claim, finding no 

support for the proposition that Oregon recognizes this as an independent tort and noting that, in 

states that do recognize such a tort, the tort is predicated upon the existence of some tortious 

conduct of other parties. See, e.g., Saunders v. Superior Court, 27 Cal. App. 4th 832, 846, 33 

Cal. Rptr. 2d 438, 446 (1994) (“Liability may also be imposed on one who aids and abets the 

commission of an intentional tort if the person (a) knows the other's conduct constitutes a breach 

of duty and gives substantial assistance or encouragement to the other to so act or (b) gives 

substantial assistance to the other in accomplishing a tortious result and the person's own 

conduct, separately considered, constitutes a breach of duty to the third person.”). Defendant 

does not amend his aiding and abetting claim in any way. Because Defendant’s proposed 

amended counterclaims fail to establish any tortious conduct of Plaintiff or anyone else, this 

claim necessarily fails. 

CONCLUSION

The Court denies Defendant Rote’s Motion to Dismiss for Lack of Jurisdiction [78], 

Motion for Judicial Notice [80] and Motion to Amend [85]. Defendant is ordered to remove all 

counterclaims from his Proposed Third Amended Answer and to submit the Third Amended 

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18 - OPINION & ORDER

Answer, without any other changes, within 10 days of the date below. The Clerk is instructed to 

strike ECF 86-4 from the record.

IT IS SO ORDERED.

Dated this ____________day of ________________________________, 2017.

________________________________________________

MARCO A. HERNÁNDEZ

United States District Judge

Case 3:15-cv-02401-HZ Document 96 Filed 01/05/17 Page 18 of 18