An untitled proposal to amend Oregon’s Animal Cruelty statute was posted by the Oregon Secretary of State on November 14, 2018 and is available on its website.

The proposed amendment does not appear to have been formally introduced as a bill in the Oregon legislature.  The amendments, if enacted would permit anyone to file a civil action “for the protection and humane treatment of animals.”  By anyone, as the amendment provides, “plaintiff shall include any person even if the person does not have any legal interest or possessory lights in an animal.”  As another Oregon court recently observed, the state legislature might determine that the state could permit an unrelated party to file a complaint against an animal’s owner based on public policy and concerns about the humane care of animals.  See Justice v. Gwendolyn Vercher, Case No. 18CV17601 (Oregon Judicial Department, Washington County Circuit Court, Twentieth Judicial District, Sept. 17, 2018) previously discussed here.

The amendment also provides for temporary restraining order or preliminary injunction upon the filing of a verified complaint, and if the plaintiff requests it and plaintiff’s agent could be permitted “unrestricted access to the premises where the animal is located to evaluate, monitor, and provide minimum care to the animal.”

And “if it appears on the face of the complaint that the condition giving rise to the violation of O.R.S. §167.305-390 requires the animal to be removed from the defendant, then it shall be proper for the court in the order or injunction to allow the plaintiff to take possession of the animal and provide minimum care.”

Keep in mind that this is all without any evidentiary hearing of any sort, but simply based on the face of the complaint, in a suit filed by someone who, until after the complaint was filed may have had possession or first-hand knowledge of the conditions in which the animal was housed or its physical status.

But the amendment does not stop there.

It would require a defendant to post bond within ten days after a court allowed a plaintiff to take possession of the animal, and if not posted, “the court shall deem the animal to have been abandoned.”

Yikes!!

Oregon already permits a peace officer, based on probable cause, to obtain a search warrant and enter the premises or vehicle where an animal, believed to being treated inhumanely, “to provide the animal with food, water and emergency medical treatment and may impound the animal.”  Or. Rev. Stat. Ann. § 167.345 (West).

Oregon defines “peace officer” as:

(a) A member of the Oregon State Police;

(b) A sheriff, constable, marshal, municipal police officer or reserve officer as defined in ORS 133.005, or a police officer commissioned by a university under ORS 352.121 or 353.125;

(c) An investigator of the Criminal Justice Division of the Department of Justice or investigator of a district attorney’s office;

(d) A humane special agent as defined in ORS 181A.345;

(e) A regulatory specialist exercising authority described in ORS 471.775 (2);

(f) An authorized tribal police officer as defined in ORS 181A.680; and

(g) Any other person designated by law as a peace officer.

Or. Rev. Stat. Ann. § 161.015 (West).

The entirety of the proposed amendment is available here.

A discussion of several cases decided on the basis of Oregon’s animal cruelty statute to follow shortly.

 

The Court found that “each of the five named plaintiffs, on behalf of themselves and the three putative classes . . .[failed to allege with the specificity required for claims of fraud] that SeaWorld misled and deceived them and other consumers about the treatment and conditions of the killer whales in violation of various consumer statutes in California, Florida, and Texas.”1  The Court dismissed all claims, some with and others without prejudice, leaving the plaintiffs the opportunity to amend their claims for some of the counts.

 

The San Diego Plaintiffs assert four claims under California law: (1) violation of the California Unfair Competition Law (the ‘UCL’); (2) violation of the California False Advertising Law (the ‘FAL’); violation of the California Consumer Legal Remedies Act (the ‘CLRA’); and Deceit.

. . .

All four claims are premised on the same course of allegedly fraudulent conduct and based on the same alleged misrepresentations and omissions, meaning all of the claims are grounded in fraud and must be pled with particularity pursuant to the heightened pleading standards in Rule 9(b).

Before the Court considered the “whether Plaintiffs have pled any actionable misrepresentations or omissions with the requisite particularity under Rule 9(b),” the Court had to determine whether the plaintiffs actually relied on SeaWorld’s alleged misrepresentations about the orcas when purchasing tickets to the park. The Court held they failed to do so, stating:

[b]ecause the complaint does not allege (let alone with any specificity) that any of the named plaintiffs saw and relied on SeaWorld’s statements about its treatment of whales when purchasing their tickets, the named San Diego Plaintiffs lack standing to bring claims on behalf of the putative San Diego Class.

. . .

Accordingly, the San Diego Plaintiffs’ claims are dismissed without prejudice to the extent they are based on affirmative misrepresentations by SeaWorld.

The Court also found these plaintiffs “failed to plead with specificity that they relied on any omissions in purchasing their tickets and therefore lack standing to bring their claims based on purported omissions as well.”

The Court rejected plaintiffs assertion that SeaWorld had to provide information about the whales’ health that they did not disclose (whether actually true or not) finding that standard would expose any company to limitless legal liability since “any consumer would have standing to sue any company that fails to disclose product ingredients or component, or business practices that cause that consumer to regret patronizing that business.”

Moreover, although the FAC includes examples of alleged advertising and representations by SeaWorld, it does not allege that Plaintiffs viewed or relied on any this advertising or statements about orca conditions or treatment before they went to a SeaWorld park. Thus, the FAC fails to plead with specificity where any omitted information could have been revealed such that Plaintiffs would have seen it prior to purchasing their tickets. Lacking such allegations, the FAC fails to plead actionable fraud based on omissions with particularity as required by Rule 9(b). Accordingly, even if SeaWorld had a duty to disclose the allegedly omitted information about the health and conditions of the whales, the FAC fails to state a claim under the UCL, CLRA, FAL, or for deceit based on omissions by SeaWorld.

The Court also dismissed with prejudice (no chance to re-plead) plaintiffs’ claims based on the California Consumer Legal Remedies Act.

The Court dismissed the Orlando and San Antonio plaintiffs’ claims for similar reasons, based on Florida and Texas law.

Finally, while the Court also dismissed “all claims for injunctive relief” with prejudice, it noted that “[t]his holding may not preclude Plaintiffs from seeking an injunctive remedy in state court.”

While the result here is laudable, the Court’s comparison of SeaWorld’s whales as “analogous to a company’s employees” will likely be quoted in future cases to support claims that whales are “persons.”

1. All quotes from Hall v. Sea World Entm’t, Inc., Case No. 3:15-cv-00660, Slip Opinion (Order entered, entered December 23, 2015).