Patricia Holloway v. Clackamas River Water

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 19 2018
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
PATRICIA HOLLOWAY, No. 16-35884
Plaintiff-Appellant, D.C. No. 3:13-cv-01787-AC
v.
MEMORANDUM*
CLACKAMAS RIVER WATER; LEE E.
MOORE, Jr.; DEAN MARK PHILLIPS;
KATHERINE KEHOE; BARBARA
KEMPER; CINDI LEWIS-WOLFRAM;
MICHAEL CARDWELL; VANCE
VOYLES; LARRY SOWA; KENNETH
HUMBERSTON; HUGH KALANI;
SPECIAL DISTRICTS ASSOCIATION OF
OREGON; FRANK STRATTON; JENS
JENSEN; DOUG ANDERSON; TAMSEN
LEACHMAN,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Oregon
Marco A. Hernandez, District Judge, Presiding
Argued and Submitted June 7, 2018
Portland, Oregon
Before: GRABER and M. SMITH, Circuit Judges, and HELLERSTEIN,** District
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The Honorable Alvin K. Hellerstein, United States District Judge for
Judge.
Plaintiff-Appellant Patricia Holloway appeals the district court’s denial of
her motion for leave to amend the complaint. We have jurisdiction pursuant to 28
U.S.C. § 1291, and we affirm in part, reverse in part, and remand.
1. To pursue her civil RICO claims, Holloway must allege civil RICO
standing. Sedima, S.P.R.L. v. Imrex Co., 473 U.S. 479, 496 (1985). Because her
RICO claims are based on fraud, these allegations must meet Federal Rule of Civil
Procedure 9(b)’s heightened pleading standard. She failed to do so. Each of her
alleged injuries either does not constitute a “harm to a specific business or property
interest” or lacks the requisite connection to alleged racketeering activity. Newcal
Indus., Inc. v. Ikon Office Sol., 513 F.3d 1038, 1055 (9th Cir. 2008) (quoting Diaz
v. Gates, 420 F.3d 897, 900 (9th Cir. 2005) (en banc) (per curiam)). The district
court properly denied leave to amend these claims.
2. As to Holloway’s First Amendment retaliation claims, most of Defendants-
Appellees’ alleged conduct is not actionable. Conduct occurring before October 7,
2011, is outside the statute of limitations. See Or. Rev. Stat. § 12.110(1); Whidbee
v. Pierce County, 857 F.3d 1019, 1022 (9th Cir. 2017). Most of Defendants-
Appellees’ actions within the statute of limitations either (1) are protected under
the Noerr-Pennington doctrine and do not fall within the narrow sham litigation
the Southern District of New York, sitting by designation.
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exception, see Prof’l Real Estate Inv’rs, Inc. v. Columbia Pictures Indus., Inc., 508
U.S. 49, 60–61 (1993); or (2) are not adverse actions because they did not deprive
Holloway of the authority she enjoyed by virtue of her elected office, Blair v.
Bethel Sch. Dist., 608 F.3d 540, 545 n.4 (9th Cir. 2010).
Holloway does allege that the Clackamas River Water Board (Board) voted
to exclude her permanently from executive sessions on October 13, 2011, and that
the Board actually excluded her from an executive session on December 8, 2011.
These allegations are adverse actions because they deprived Holloway of the
“rights and prerogatives” of her elected office. Id. at 544. While no final action
may be taken at executive sessions, the Board can deliberate on important matters
and review documents at executive sessions, which can inform decision-making.
Or. Rev. Stat. § 192.660(2), (6). Holloway’s alleged exclusion from executive
sessions deprived her of those opportunities. Further, an executive session is a
type of meeting, which is “the convening of a governing body . . . for which a
quorum is required in order to make a decision or to deliberate toward a decision
on any matter.” Id. § 192.610(5). An executive session must therefore be open to
all members of that governing body, regardless of whether all Board members
actually attend. Therefore, we reverse the district court’s denial of Holloway’s
motion for leave to amend insofar as she sought to plead a First Amendment
retaliation claim based on her exclusion from executive sessions. We affirm the
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district court’s denial of Holloway’s motion for leave to amend her complaint with
respect to all other First Amendment retaliation claims. On remand, this case is
limited to the First Amendment retaliation claim based on Holloway’s exclusion
from executive sessions.
3. Reassignment is proper only in “rare and extraordinary circumstances.”
Krechman v. County of Riverside, 723 F.3d 1104, 1112 (9th Cir. 2013) (quoting
United Nat’l Ins. Co. v. R&D Latex Corp., 242 F.3d 1102, 1118 (9th Cir. 2001)).
There is no evidence that the district judge or the magistrate judge was unfair, id.,or exhibited personal bias, or that reassignment is necessary in order to maintain
the appearance of justice, see Nat’l Council of La Raza v. Cegavske, 800 F.3d
1032, 1045 (9th Cir. 2015). We therefore decline to reassign the case on remand.
Each party shall bear its own costs on appeal.
AFFIRMED IN PART, REVERSED IN PART, REMANDED.
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