Unpublished Disposition, 886 F.2d 1320 (9th Cir. 1988)

MEMORANDUM^* 

The Lows appeal what they term the district court's "effective denial" of their Rule 41(a) (2) motion for voluntary dismissal. They also appeal the district court's decision to grant Sears' motion for summary judgment on the Lows' intentional infliction of emotional distress claim. We affirm.

BACKGROUND

On May 11, 1987, plaintiff Joan Low returned to defendant Sears a Wee-Alert bed-wetting alarm system to defendant Sears, Roebuck and Co. that she had used on March 3 and 4, 1987 to treat her six-year-old son Nathaniel's bed wetting problem. Low gave a Sears employee a photograph of Nathaniel which showed sores in the form of wavy lines and small circles on Nathaniel's thigh and buttocks. Low explained that Nathaniel's pediatrician, Dr. Beryl Burns, had diagnosed the sores as buzzer ulcers caused by the Wee-Alert.

On May 14, 1987, Barbara Bjorn, a security agent at Sears, began preparing a product liability report regarding the Wee-Alert. While examining the photograph of Nathaniel that Joan Low left with Sears, it appeared to Bjorn that the circular marks on Nathaniel's leg and buttocks did not correlate with the architecture of the Wee-Alert pad. In addition, the marks appeared to be at different stages of healing which, Bjorn thought, signified different times of injury. Because of these observations, Bjorn began to question whether the Wee-Alert pad caused Nathaniel's injuries.

Around noon of the same day, Bjorn took the photograph of Nathaniel to a clinic located in the same shopping mall as Sears. Bjorn showed the photograph to Dr. Ann Wild without explaining the circumstances surrounding Bjorn's inquiry. Dr. Wild told Bjorn the sores on Nathaniel's buttocks were cigarette burns. Dr. Wild's inquiries indicated that she thought Nathaniel was Bjorn's son, at which time Bjorn explained the reason for her inquiry. That explanation included telling Dr. Wild about Low's claim that the Wee-Alert caused Nathaniel's injuries.

Dr. Wild then said that she needed to report her suspicion of child abuse to the Children's Services Division ("CSD") of the Oregon Department of Human Resources. Dr. Wild told Bjorn that it was Sears' obligation also to file a report and strongly encouraged Bjorn to do so. Dr. Wild then called CSD and filed a report.

Within an hour, in response to Dr. Wild's report, Officer Jordan questioned Low at her residence. While reviewing the photograph of Nathaniel with Low, Officer Jordan told Low that Nathaniel's sores looked like cigarette burns and Low agreed. Officer Jordan testified in his deposition that, in his opinion, anyone looking at the photograph of Nathaniel would have reasonable grounds to suspect child abuse and would be obligated under Oregon law to report it.

Later that same day, Bjorn told her security manager about her conversation with Dr. Wild. The manager told Bjorn that before she called CSD she should return to Dr. Wild and inquire further about the cause of the wavy line marks shown in the photographs of Nathaniel's thigh and buttocks. At about 5:00 Bjorn returned to Dr. Wild's office without the Wee-Alert and asked Dr. Wild about the wavy lines. Dr. Wild did not think that the Wee-Alert caused the wavy marks. Dr. Wild reiterated her opinion that the circular marks were cigarette burns and again admonished Bjorn about Sears' obligation to report the matter.

At about 5:30 p.m., Bjorn reported her suspicion of child abuse to CSD. In making her report, Bjorn did not mention the Wee-Alert or Dr. Burns' diagnosis. Pursuant to Bjorn's call, Officer Cassidy interviewed Low at her residence. Low explained that Officer Jordan had previously interviewed her regarding the same allegation and, as a result, Officer Cassidy promptly left.

On the following Monday, May 18, 1987, at the request of the police, Nathaniel Low was interviewed and examined by his school administrator. The investigation ended there and Joan Low and her husband, Eric, were "exonerated."

On June 23, 1987, Eric, Joan, and Nathaniel Low filed suit in federal court against Sears. The Lows' complaint contained eight claims for relief: (1) strict products liability; (2) negligence; (3) breach of the implied warranty of merchantability; (4) breach of implied warranty of fitness for a particular purpose; (5) intentional infliction of emotional distress; (6) malicious prosecution; (7) abuse of process; and (8) defamation.

On December 11, 1987, the Lows notified Sears that they intended to join additional defendants. The Lows discovered, however, that doing so would destroy diversity jurisdiction. Therefore, the Lows notified Sears that they intended to dismiss the action voluntarily and refile in state court so that they could join additional defendants. Sears filed its answer the following day, thereby precluding voluntary dismissal by the Lows without order of court under Fed. R. Civ. P. 41(a) (1) (i).

On September 18, 1987, the district court dismissed the Lows' claims of malicious prosecution (claim 6) and abuse of process (claim 7). The Lows then moved for voluntary dismissal of their complaint without prejudice on January 20, 1988. On February 22, 1988, the district court heard argument on the Lows' motion for voluntary dismissal but deferred ruling on the motion until after ruling on Sears' motion for partial summary judgment on the Lows' claims of intentional infliction of emotional distress (claim 5) and defamation (claim 8). Then, on May 18, 1988, the court granted partial summary judgment in favor of Sears on the Lows' emotional distress and defamation claims. The court granted summary judgment on the defamation claim on the ground that Sears is immune under Oregon Revised Statute ("ORS") Sec. 418.762 from any liability stemming from Bjorn's reporting of her suspicion of child abuse to CSD. The court granted partial summary judgment on the emotional distress claim on the ground that the Lows had failed to provide sufficient evidence in support of their claim.

The district court also gave the parties until June 24, 1988 to supplement the record on the Lows' pending motion for voluntary dismissal. The Lows' initial motion for voluntary dismissal was never addressed, however, because instead of supplementing the record, the Lows moved on June 10, 1988 for entry of final judgment pursuant to Fed. R. Civ. P. 54(b) on the claims that had been decided by partial summary judgment. In the same filing, the Lows moved in the alternative for voluntary dismissal under Rule 41(a) (2) of their first four claims without prejudice. These two motions were denied in separate orders filed July 20, 1988 and July 25, 1988.

The parties then stipulated to dismissal of the Lows' remaining claims (claims 1 through 4) with prejudice and the court ordered these claims dismissed on September 7, 1988. Finally, the court entered final judgment dismissing the Lows' action with prejudice on October 3, 1988.

STANDARD OF REVIEW

A lower court's ruling on a motion for voluntary dismissal pursuant to Rule 41(a) (2) is reviewed for an abuse of discretion. Sams v. Beech Aircraft Corp., 625 F.2d 273, 277 (9th Cir. 1980).

A grant of summary judgment is reviewed de novo. Darring v. Kincheloe, 783 F.2d 874, 876 (9th Cir. 1986) (citing Lojeck v. Thomas, 716 F.2d 675, 677 (9th Cir. 1983)). Summary judgment should only be granted if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). "There is no genuine issue of fact if, on the record taken as a whole, a rational trier of fact could not find in favor of the party opposing the motion." West v. State Farm Fire and Casualty Co., 868 F.2d 348, 350 (9th Cir. 1989). The burden to establish the absence of a material issue of fact for trial is on the moving party. British Airways Bd. v. Boeing Co., 585 F.2d 946, 951 (9th Cir. 1978), cert. denied, 440 U.S. 981 (1979). This burden may be discharged by showing that there is an absence of evidence to support the nonmoving party's case. Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The burden then shifts to the nonmoving party to "go beyond the pleadings and ... designate 'specific facts showing that there is a genuine issue for trial.' " Id. at 324.

DISCUSSION

Motion for Voluntary Dismissal

On appeal, the Lows contend that the district court improperly denied the Lows' renewed Rule 41(a) (2) motion to dismiss their first four claims. They also contend that the district court, by granting partial summary judgment in favor of Sears on their claims of defamation and emotional distress, effectively and improperly denied the Lows' initial Rule 41(a) (2) motion to have those two claims dismissed without prejudice.

The Lows' first contention is meritless. They may not appeal the district court's denial of their renewed motion to dismiss their first four claims without prejudice because they subsequently stipulated to dismissal of these claims with prejudice. See Seidman v. City of Beverly Hills, 785 F.2d 1447, 1448 (9th Cir. 1986).

We turn to the Lows' second contention and assume arguendo that the district court's grant of partial summary judgment was an effective denial of the Lows' motion and that this effective denial is appealable. In deciding whether to grant a Rule 41(a) (2)¹  motion for voluntary dismissal without prejudice, a court must consider whether the defendant will suffer plain legal prejudice other than the prospect of a second lawsuit. Hamilton v. Firestone Tire and Rubber Co., 679 F.2d 143, 145 (9th Cir. 1982). We do not, however, make such a determination de novo. Because we review the district court's decision not to grant the Lows' Rule 41(a) (2) motion for abuse of discretion, id. at 145, we will not reverse unless we have "a definite and firm conviction that the court below committed a clear error of judgment in the conclusion it reached upon a weighing of the relevant factors." Fjelstad v. American Honda Motor Co., 762 F.2d 1334, 1337 (9th Cir. 1985).

The Lows contend that the district court abused its discretion in failing to make a finding of "plain legal prejudice." We cannot agree. In deciding to defer the Lows' Rule 41(a) (2) motion until after consideration of Sears' motion for partial summary judgment, the district court specifically noted that much work had already been done on this case and, therefore, that its decision was "in the interests of [both] parties" and of judicial economy. We cannot now substitute our judgment for that of the district court. Chism v. National Heritage Life Ins. Co., 637 F.2d 1328, 1331 (9th Cir. 1981). We therefore conclude that the district court did not abuse its discretion in deferring consideration of the Lows' Rule 41(a) (2) motion until after ruling upon Sears' motion for partial summary judgment. We now consider whether the district court erred in granting Sears' motion for partial summary judgment.

Partial Summary Judgment

The district court granted Sears' motion for partial summary judgment on the Lows' claims of intentional infliction of emotional distress and defamation. Because the Lows do not discuss their defamation claim in their briefs, we assume that they are not appealing the district court's grant of partial summary judgment on this claim. See Leer v. Murphy, 844 F.2d 628, 634 (9th Cir. 1988) (issues raised in brief that are not supported by argument are deemed abandoned).

To prove intentional infliction of emotional distress, the plaintiff must first show that the defendant intended to inflict severe mental or emotional distress on the plaintiff. Second, the defendant's act must have in fact caused the plaintiff such distress. Third, the defendant's actions must have consisted of "some extraordinary transgression of the bounds of socially tolerable conduct" or the actions must have exceeded "any reasonable limit of social toleration." Patton v. J.C. Penney, 301 Or. 117, 719 P.2d 854, 857 (Or.1986) (citing Hall v. The May Dept. Stores, 292 Or. 131, 135, 137, 637 P.2d 126 (1981)).

Intentional infliction of emotional distress has been found where defendant made abusive and threatening telephone calls in an attempt to shame and frighten plaintiff into paying a medical bill, even after defendant knew that plaintiff had made settlement arrangements with the creditor. Turman v. Central Billing Bureau, 279 Or. 443, 568 P.2d 1382 (1977). In Brewer v. Erwin, 287 Or. 435, 600 P.2d 398 (1979), the court found intentional infliction of emotional distress where a landlord disconnected utilities, used physical violence and threats of physical violence against plaintiff and her friends, and demolished a portion of the building in which plaintiff was residing in order to bully and frighten plaintiff out of an apartment. Intentional infliction of emotional distress was also found in Hall v. The May Dept. Stores, 292 Or. 131, 637 P.2d 126 (1981), where defendant deliberately attempted to threaten and frighten plaintiff into admitting that she committed a crime when there was no proof of plaintiff's guilt.

In this case, the district court granted partial summary judgment on the Lows' emotional distress claim on the ground that the Lows' failed, as a matter of law, to provide sufficient evidence of the third element of an emotional distress claim--i.e., that Bjorn's acts constituted outrageous conduct. On appeal, the Lows contend that the district court erred because a rational finder of fact could decide that Bjorn's acts were motivated by a desire to deter the Lows' potential product liability claim or a desire to act out her fantasy to be a police officer. If Bjorn acted from these motives, argue the Lows, then her conduct was outrageous.

We cannot agree. The Lows offer no evidence that Bjorn harassed, threatened, or attempted to directly inflict harm on the Lows. Bjorn's only action that affected the Lows was the making of her report to CSD--this report triggered an investigation. Thus, Bjorn's conduct in reporting her suspicion of child abuse did not exceed the bounds of social toleration as did the conduct described in the above cited cases.

Because the Lows have the burden of establishing this element at trial, their failure to put forth evidence in support of this element makes partial summary judgment on their claim of emotional distress appropriate. Celotex, 477 U.S. at 322.

AFFIRMED.