Michael Fuller, OSB No. 09357 Lead Trial Attorney for ...

[Pages:9]Case 1:17-cv-02004-CL Document 1 Filed 12/18/17 Page 1 of 9

Michael Fuller, OSB No. 09357 Lead Trial Attorney for Plaintiff Olsen Daines PC 924 Town Centre Drive Medford, Oregon 97504 michael@ Direct 503-201-4570

UNITED STATES DISTRICT COURT DISTRICT OF OREGON MEDFORD DIVISION

PEGGY CLARK,

Plaintiff,

v.

RUSHMORE LOAN MANAGEMENT SERVICES LLC,

Defendant.

Case No. 1:17-cv-2004 COMPLAINT 28 U.S.C. ? 1332 Invasion of Privacy Demand for Jury Trial

1. JURISDICTION AND THE PARTIES This Court has jurisdiction under 28 U.S.C. ? 1332 because the parties are citizens of different states and the amount in controversy is $250,000. Peggy Clark is a 71-year-old disabled individual living in Jackson County, Oregon. Rushmore Loan Management Services LLC (Rushmore) is a Delaware limited liability company.

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FACTUAL ALLEGATIONS This complaint's allegations are based on personal knowledge as to Ms. Clark's behavior, and made on information and belief as to the acts of others. Ms. Clark is a 71-year-old disabled woman suffering from dementia living in Central Point, Oregon. On December 17, 2016, Ms. Clark's home caught fire, and she was pulled from the blaze unconscious and in serious condition. It was unclear whether Ms. Clark would survive her injuries. See Exhibit 1.

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3. At all times material, Ms. Clark was represented pro bono by a local law firm with respect to her personal and legal affairs. Ms. Clark is a charming, sympathetic little old lady, and the local law firm agreed to represent her pro bono for the rest of her life, whenever she needed advice. Ms. Clark treated her local law firm like family, and vice versa. Ms. Clark had the personal cell phone number of the local law firm partner so she could call him whenever she needed advice.

4. In November and December 2017, Rushmore began repeatedly making high pressure calls to Ms. Clark. After Rushmore learned Ms. Clark's home burned down, Rushmore desperately wanted Ms. Clark to sign paperwork which stood to profit Rushmore but which provided Ms. Clark no financial benefit, and stood to cause her a substantial and unnecessary tax liability. Ms. Clark did not want to speak with Rushmore but inadvertently answered some of its calls because she had an old phone that did not have caller ID. Ms. Clark would sometimes answer Rushmore's calls when she thought her attorney was calling her.

5. Rushmore aggressively pursued Ms. Clark, and even threatened to send an agent to her home on multiple occasions to get her to sign its paperwork against her will.

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6. Ms. Clark suffered from dementia and Rushmore attempted to confuse her about the legal and tax consequences of signing its paperwork. Rushmore's continued persistence that Ms. Clark sign its paperwork eventually caused her such high stress and anxiety that she became willing to do whatever it would take to get Rushmore to finally just leave her alone.

7. Ms. Clark ultimately called her local law firm for help dealing with Rushmore's harassment. On the advice of her attorney, Ms. Clark then expressly told Rushmore to stop calling her and to instead communicate directly with her attorney. Ms. Clark provided Rushmore the cell phone number for her attorney. On December 8, 2017, Rushmore contacted Ms. Clark's attorney, who explained that his local law firm represented Ms. Clark pro bono. Rushmore was explicitly told not to contact Ms. Clark directly in the future, both by Ms. Clark and by her attorney. Later in the day on December 8, 2017, Rushmore emailed Ms. Clark's attorney a copy of the paperwork Rushmore had been pressuring Ms. Clark to sign. See Exhibit 2.

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8. After Rushmore learned that Ms. Clark's attorney had advised her not to sign its paperwork, Rushmore then called Ms. Clark directly, against her express wishes, causing her phone to ring repeatedly, and communicated with her against her will. Rushmore took advantage of Ms. Clark's advanced age and mental state in order to get her to return its unwanted calls, and even disparaged her attorney, in hopes of creating a wedge between Ms. Clark and her local law firm that could be exploited to get Ms. Clark to sign its paperwork against the advice of her counsel. Rushmore never told Ms. Clark that signing its paperwork stood to cause her a substantial and unnecessary tax liability. Rushmore also never told Ms. Clark that its paperwork sought to waive her right to a jury trial in the event her local law firm ever advised her to file a lawsuit against Rushmore.

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9. CLAIM FOR RELIEF Invasion of Privacy ? Intrusion Upon Seclusion The tort of invasion of privacy protects the right of a person "to be let alone." Humphers v. First Interstate Bank, 298 Ore. 706, 714 (1985). Oregon courts recognize "intrusion upon seclusion" as one theory of liability under the "invasion of privacy" umbrella. French v. Safeway Stores, 247 Ore. 554, 556 (1967). To establish a claim for intrusion upon seclusion, Ms. Clark "must prove three elements: (1) an intentional intrusion, physical or otherwise, (2) upon the plaintiff's solitude or seclusion or private affairs or concerns, (3) which would be highly offensive to a reasonable person." Mauri v. Smith, 324 Or. 476, 483 (1996).

10. As alleged in this complaint, Ms. Clark felt pressured and harassed by Rushmore's continued persistence that she sign its paperwork. Ms. Clark was confused by the paperwork and required the assistance of her pro bono local law firm to help explain the negative tax consequences of signing the paperwork. Both Ms. Clark and her attorney each expressly revoked any consent for Rushmore to contact Ms. Clark in the future.

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11. Rushmore knew it did not have consent from Ms. Clark or her attorney to contact Ms. Clark directly, yet Rushmore chose to call Ms. Clark directly anyway on numerous occasions and communicate with her outside the presence of her attorney. Rushmore's repeated, unwanted direct calls to Ms. Clark's home phone intruded into Ms. Clark's solitude, seclusion, and private affairs and infringed on her legally protected relationship with her local law firm.

12. Rushmore's intrusion into Ms. Clark's seclusion was undeniably intentional. Rushmore's agent personally, intentionally, and repeatedly caused Ms. Clark's phone to ring against her will, and eventually succeeded in communicating with Ms. Clark outside the presence of her attorney. The context and purpose of Rushmore's intrusion was highly offensive. Rushmore sought to compromise the sacred relationship between an attorney and their client, and sought to take advantage of an elderly person's advanced age and dementia, all in the name of profit. Further, Rushmore used its repeated intrusions into Ms. Clark's seclusion as an opportunity to disparage Ms. Clark's attorney, in hopes Ms. Clark would act against the advice of counsel and sign paperwork that stood to leave her with a large, unnecessary tax liability in her twilight years.

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13. Rushmore's intentional intrusion into Ms. Clark's seclusion would be highly offensive to any reasonable person, and directly caused Ms. Clark severe ongoing worry, confusion, anxiety, frustration, and other emotional harm for which she seeks compensatory damages in the amount of $250,000. See McCollough v. Johnson, Rodenburg & Lauinger, LLC, 637 F.3d 939 (9th Cir. 2011) (upholding jury verdict of $250,000 emotional distress based on a corporation's attempt to take advantage of a disabled person).

14. JURY TRIAL DEMAND Ms. Clark respectfully demands a trial by jury.

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