8/14/2018 1:00 PM

18CV17601

IN THE CIRCUIT COURT OF THE STATE OF OREGON

2 FOR THE COUNTY OF WASHINGTON
3
JUSTICE, an American Quarter Horse, by ) Case no. 18CV17601
and through his Guardian, Kim Mosiman, )
) DEFENDANT’S MOTION TO DISMISS
) FOR PLAINTIFF’S LACK OF LEGAL
6
Plaintiff, ) CAPACITY TO SUE UNDER ORCP 21A(4)
) AND FOR FAILU TO STATE FACTS
vs. ) SUFFICIENT TO CONSTITUTE A CLAIM
) UNDER ORCP 21A(8)
8
GWENDOL VERCHER, ) REQUEST FOR ATTORNEY FEES UNDER
9 ) ORS2O.105(1)
)
10
Defendant. ) Hearing requested 30 minutes
—

I. Motion To Dismiss
12
Defendant moves the Court for an order, under ORCP 21A(4), dismissing plaintiffs
13
Complaint for the named plaintiffs lack of legal capacity to sue, and/or under ORCP 21A(8)
14 for
plaintiffs failure to state ultimate facts sufficient to constitute a claim. Defendant’s counsel

certifies that he made a good faith effort to confer with plaintiffs counsel about these issues
16 as
17 required by UTCR 5.0 10(1) and that no resolution was reached.

18 A. The Named Plaintiff Lacks Standing To Sue

19
Oregon law says that every complaint in a civil case must state a cause of action
20 . . .

belonging to the named plaintiff, otherwise the complaint is vulnerable when attacked by a
21
pleading motion, including by what is the modern equivalent of a general demurrer. Title &
22
Trust Co. v. U.S. Fid. & Guar. Co., 32 P.2d 1035 (Or. 1934).
23
For example, such motions may challenge whether the plaintiff is the true owner of some

25 piece of property in question and has the requisite right, title or interest in the property to be
able
26 to pursue a claim on it. See generally, Keerins Bros. v. Mauney, 219 P.2d 753, 755 (Or.
1950);

PAGE 1 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I Serv. v. Sumpter Valley Ry.Co., 171 P. 202, 212 (Or. 1918) (‘to be a good complaint, immune
2
from the effects of a general demurrer, the plaintiff must show in himself legal connection with
2
the matter involved in litigation and a right in himself to recover the amount demanded”);
4
Schleefv. Purdy et. a!., 107 Or. 71, 214 P. 137 (Or. 1923) (in a foreclosure action, an objection
5
that plaintiff was not the real party in interest is sustainable where the evidence shows that
6
plaintiff was not the party to whom the land had been conveyed subject to the mortgage, and that

8 the original owner had not validly conveyed it to another).

9 Whether a cause of action belongs to the named plaintiff in turn requires a determination

10 of their “standing”, the traditional legal doctrine that addresses whether a party to a legal

proceeding possesses a recognized status or qualification necessary for the allowable assertion,
12
enforcement, or adjudication of legal rights or duties. City of Damascus v. Brown, 266 Or App
13
416, 337 P3d 1019 (2014).
14
Every standing analysis begins with the basic axiom that it is a “person” or “legal entity”
15
who is attempting to assert the right, the core question really then being whether that person or
16

17 entity in particular has the requisite status or qualification to make the specific claim being

18 asserted.

19 Here, where the named plaintiff is not a person or legal entity but is a horse, that
‘0 . .

- threshold assumption is not even met, and this Court is obligated to focus on the proposed
21
plaintiffs very capacity to even be a recognized form of legal entity that could bring any claim
22
at all regardless ofwhat type of claim it might be. The term “capacity” to sue and be sued
23
generally refers to an entity’s legal ability to bring or appear in any action whatsoever, much less

25
some specific type of one. See, e.g., Ass’n of Unit Owners of Bridgeview Condominiums v.

26

PAGE 2 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 Dunning, 187 Or App 595. 69 P3d 788 (2003) (holding that any properly organized nonpro
fit
2 corporation has the power to sue and be sued))
2
Only once capacity is initially determined can the standing analysis then proceed onward,
4
since standing is an aspect ofjusticiability that refers to the question whether the plaintiff— as a

peisoi or legal entity — will be substantially and practically affected themselves by some
6
decision in the case: if not, then the plaintiff—as a person or legal entity — has no standing, that

8 is. no right to ask the court to decide the issue in the first instance. Advancçd Draigç_S.y,Inc

9 V. City of Port , 214 Or App 534, 166 P3d 580 (2007).

10 In that second part of the analysis, a plaintiff may even have “standing” in one sense (to

ask the Court to determine if they are entitled to relief) but may lack ‘standing” for purposes of
12 . .

justiciability if the only relief available would not substantially and practically benefit him or her
13
anyway. Advanced Drainage Sys.. Inc. v. City of Portland, supra.
14
Here. this ‘p1aintiff’ s capacity is nonexistent from the start. A horse is simply not an
15
entity with a recognized legal ability to bring or appear in an action. See, Chiasson v. New
16

17 Orleans Pub. Grpjjc,., 761 So 2d 89. 94 (La Ct App 2000), writ den sub nom. Chiasson v. New

18 Orleans Pubig Gip.. Inc., 819 So 2d 344 (La 2002) (defining “capacity” as the legal ability to

19 pursue a right); Black’s Law Dictionry (10th ed. 2014) (defining capacity’ as “[t}he ability of a
20
particular individual or entity to use, or to be brought into, the courts of a forum”). Lack of
21
capacity to sue refers to some legal disability of the plaintiff, such as infancy or the condition of

being deceased, status level circumstances entirely foreclosing an ability to be a litigant at all.
23
See, Hendrickson’s Estate v. Warburton, 276 Or 989, 998, 557 P2d 224, 230 (1976); see, Reify.
24
-

‘An ORCP 21A(4) motion addressing capacity” is different from one under ORCP 26 regarding the “real
paav in
— interest”, a rule which refers to a person with an already legally cognizable interest, the pally who will be “ben
elited
or injured by the judgment in the case” 115 Or. 379. 238 P. 347 (Or. 1925).
PAGE 3 DEFENDANT’S MOTION TO DISMISS
-

Geordie Duckler, P.C.

PER ORCP 2IA(4) AND ORCP 2lA(8) REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20,105(1) Tigard, OR 97223
503.546.8052
 I Shatayeva, 998 NE2d 18 (Ill 2013) (“a dead person is a nonexistent entity and cannot be a party
2
to a lawsuit”).

An entity must qualify as a juridical person, that is, an entity to which the law attributes
4
juridical personality, in order to have the capacity to sue. See generally, In re Succession of
5
Sims, 210 So 3d 394 (La Ct App 2016); yçijfE1ectionsv.Graharn Cty. Bd. of
6
Commrs, 212 NC App 313, 712 SE2d 372 (2011) (a legal proceeding must be prosecuted by a

8 legal person, whether it be a natural person, sui juris, or a group of individuals or other entity

9 having the capacity to sue and be sued, such as a corporation, partnership, unincorporated

10 association, or governmental body or agency). Not only is a horse neither a natural person, nor

an artificial person, nor a quasi-artificial person (see. ADP Dealer Servs. Grp. v. Carroll Motor
12
Co, 195 SW3d I (Mo Ct App 2005)), but there is no state statute or state appellate court opinion
13
in the case law specifically in Oregon legislatively defining “person” to include a horse or any
14
animal in any manner. For that reason, the issue of lack of capacity ends the analysis here.
15

16
A few courts have had to struggle with deciding the (infrequent and unusual) question of

17 whether the plaintiff may be some special sort of entity which the law of the forum has not

18 previously dealt with, yet which could potentially be recognized as legally capable of possessing

19 and asserting a right of action. See, e.g., Philadelphia Facilities Mgmt. Corp. v. Biester, 60 Pa
20
Cmwlth 366, 431 A2d 1123 (1981) (city gas works was not a legal entity of any type and thus
21
was precluded from being a party plaintiff in suit); Grp. of Tenants From Grandview Homes v.
22
Mar-Len Realty. Inc., 40 Ohio App 2d 449, 321 NE2d 241 (Ohio Ct App 1974) (a group of
23
unnamed persons not constituting an unincorporated association is not a legal entity capable of

25
initiating an action).

26

PAGE 4- DEFENDANT’S MOTION TO DISMISS Geordie Duckler, PC.

PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 A minute subset of those courts have been presented with the proposition of a party’s
2
designation as one being just plain ridiculous (see, e.g., U. S. ex rel. Mayo v. Satan & His Staff

54 FRD 282, 283 (WD Pa 1971) (declining jurisdiction over “Satan and his staff’ as named
4
defendants); Hood v. United States, No. CV 12-01542 (N.D. Cal. Apr. 20, 2012) (dismissing the
5
fictional character of “Robin Hood” as a plaintiff for lack of standing). This case is easily one of
6
the examples from that subset.

8 Animal rights activist groups have aggressively worked the judiciary to advance their

9 political causes, but the effort is often thwarted right at the outset. See, e.g., Nw. Animal Rights

10 Network v. State, 158 Wash App 237, 242 P3d 891 (2010) (dismissing a group’s challenge to a

state’s animal cruelty legislation by holding that “it is the role of the legislature, not the judiciary,
12 . . . .

to balance public policy interests and enact law”). Some, fixated on litigation’s potential for
‘3
publicity, have angled for ways to circumvent procedural barriers, and the more imprudent have
14
tried, among other tactics, designating actual animals as named parties.
15

16
Those few odd cases divide into two procedural camps. One camp involves Endangered

17 Species Act (and related animal welfare related federal statute) type cases in federal courts where

18 the designation of the animal as one of several plaintiffs was simply never challenged by the

19 defendant, and thus where no decision by a court ever needed to have been made on its validity.
2
20
See, Mt. Graham Red Squirrel v. Yeutter, 930 F.2d 703 th
9
(
Cir. 1991); Paula v. Hawaii Dept. of
21
Land & Natural Resources, 852 F.2d 1106 th
9
(
Cir. 1988); Northern Spotted Owl v. Hodel, 716
“2

23

24
2
25 This is because federal courts have jurisdiction if at least one named plaintiff has standing to sue, even if another
named plaintiff in the suit doesn’t. Laub v. U.S. Dept. of Interior, 342 F.3d 1080, 1086 (9th Cir.2003). Because the
26 standing of the other parties was undisputed, no jurisdictional concerns obliged the court to consider whether the
animal had standing. Cf. Hawksbill Sea Turtle v. FEMA, 126 F.3d 461, 466 n. 2 (3d Cir.1997) (allowing turtle to
remain named in caption, but not deciding if it had standing because named human parties did).

PAGE 5 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 2lA(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I F.Supp. 479 (W.D. Wash. 1988); r tted Owl v. Lujn, 758 F.Supp. 621 (W.D. Wash.
2
1991).

The other camp is where the designation of an animal as the plaintiff has been
4
challenged. Of those, there have been a grand total of six over the last two and one half centuries

of American civil litigation, In every one of the six cases in which the defendant decided to take
6
the trouble and effort to point out the clear impropriety of an animal being named as the only (or

8 key) plaintiff, each court presented with the law on the issue has unhesitatingly ruled that

9 animals are treated under the law either as non “persons” or as the property of their owners,

10 rather than as anything like entities with their own legal rights, and thus cannot sue.

The six are:

12
1. Hawaiian Crow (‘Alala) v. Luj, 906 F Supp 549 (D Haw 1991) (bird
13
protected by Endangered Species Act (ESA) was not “person” within meaning of ESA’s citizen
14
suit provision, so as to be authorized to be named plaintiff; case dismissed);
15

16 2. Citizens to End Animal Suffering & pLoitation, Inc. v. New England

17 jim, 836 F Supp 45, 49 (D Mass 1993) (dolphin lacked standing to maintain action on

18 violation of the Marine Mammal Protection Act which expressly authorized suits brought by

19 persons, not animals, with the Court stating “The MMPA does not authorize suits brought by
20
animals” and “[I]f Congress and the President intended to take the extraordinary step of
21

23

24 Not only was it that none of the defendants challenged the animals’ standing or the propriety of naming
animals as
plaintiffs, but none of the cases had the animal as the on!)’ plaintiff either. Without question, had the
designation
25 been challenged in any of those cases, the animal plaintiff would have been dismissed since the ESA’s
citizen-suit
provision only permits “any pj” to commence a civil suit to enjoin alleged violations of the ESA or
regulations
issued under its authority. Ecpicf.hEthical Treatipentpfft imals, Inc. v. Miami Seaquarium,
189 F Supp 3d
1327, 1336 (SD Fla 2016), affd sub nom. PgpjjoEthical Treatment ofAnimals, Inc. V. Miami
879
F3d 1142(11th Cir 2018).

PAGE 6 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 2lA(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 authorizing animals as well as people and legal entities to sue, they could, and should, have said
2
so plainly”; case dismissed);

3. Cetacean Cmty, v. Bush, 386 F3d 1169, 1174 (9th Cir 2004) (where the sole
4
plaintiff was a “name chosen by the self-appointed attorney for all of the worlds whales,
5
porpoises, and dolphins”, and in which the federal district court dismissed on standing grounds
6
under a variety of federal animal welfare statutes holding “It is obvious that an animal cannot

8 function as a plaintiff in the same manner as a juridically competent human being” and “It is

9 obvious both from the scheme of the [ESA], as well as from the statute’s explicit definitions of

10 its terms, that animals are the protected rather than the protectors”; case dismissed);
11
4. IIjjiu rt Ethical Jreatment of Animals, Inc. v. Sea World
12
Parks & Entmt, Inc., 842 F Supp 2d 1259 (SD Cal 2012) (court held that Thirteenth Amendment
13
prohibition on slavery and involuntary servitude applied only to human beings or persons, rather

than non-persons, and thus orca whales, acting by their “next friends” PETA, lacked Article III

standing to bring action against operator of sea aquarium; case dismissed);

16

17 5. People ex re Nonhuman Rights Project, Inc. v. Lavery, 124 AD3d 148, 998

18 NYS2d 248 (2014) (filed “on behalf of’ Tommy, a chimpanzee, a plaintiff which the Court

19 determined was not a “person” entitled to rights and protections afforded by writ of habeas
20
corpus, and in which the Court held that “animals had not historically been considered persons
21
for purposes of the writ, and chimpanzees were incapable of accepting social responsibility, legal

responsibility, or duties necessary for rights of legal personhood”; case dismissed); and,
23
6. Naruto v. Slater, 888 F3d 418, 422 (9th Cir 2018) (a monkey, because it was a

25
non-human, lacked statutory standing under Copyright Act to sue photographer, with the Court

26

PAGE 7 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I stating “if animals are to be accorded rights to sue, the provisions involved therefore should state
2
such rights expressly”; case dismissed).

Each of the six very well reasoned opinions has made it as clear as any foundational legal
4
principle can be made clear that animals have neither constitutional nor statutory standing.
5
Naruto v. Slater, 888 F3d 418, 425 (9th Cir 2018). The purely imaginary “rights” of animals to
6
prosecute a civil cause of action are simply not protected by the Constitution as are the very real

8 “rights” of persons to do so. See also, Massachusetts Soc. for Prevention of Cruehy to Animals

9 v. Commr of Pub. Health, 339 Mass 216, 228, 158 NE2d 487, 495 (1959).

10 The attorneys for the “plaintiff’ horse here of course know full well about all six cases

and about that fundamentally unassailable rule that each of them have unhesitatingly pronounced
12
— but still decided to designate an animal in the caption anyway, deliberately making themselves
13
oblivious to how heavily stacked 250 years of American common law, statutory law, and
14
constitutional law, are against such a baseless position. As cavalierly as appears to be possible in
15
civil litigation, they propose to have their client again, a horse sue under the theory of
16 -
—

17 negligence per se and they claim to have divined the horse’s right to sue within ORS 167.305,

18 proclaiming that the position of animals being able to sue in a civil suit in Oregon is warranted

19 by asking this Court to “recognize that [a horse is] a member of the class intended to be protected
20
by Oregon’s anti-cruelty statute [and] may bring a negligence per se claim based on the standard
21
of care in the anti-cruelty statute, ORS 167.305 et seq.” çpljp at 3:1-4.

Examination of the statute identified discloses that there isn’t one single word in it,
23
however, that confers standing on any animal to sue at all, and in fact sections 5 and 6 of that
24

25
statute even declare otherwise, specifIcally designaiing “a government agency, humane

26

PAGE 8 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 investigation agency or its agent or a person that provides care and treatment for impounded or
2
seized animals” instead as the aggrieved parties, not any affected animal itself, ORS 167.305(6).

As the horse’s attorneys well know, to prevail on a statutory liability claim, a plaintiff
4
must be within the class of ersons that the legislature intended to protect. fiyic_y_çiyjf
5
Medford, 356 Or 336, 337 P3d 797 (2014). The Oregon legislature un-confusingly selected to
6
point to “a government agency, humane investigation agency or its agent or a person that

8 provides care and treatment for impounded or seized animals” as the class ofpersons needing

9 protection under ORS 167.305 and fairly obviously declined to add either the specific noun

10 “horses” or the even the general noun “animals” to that group definition.

The horse’s attorneys, who are presumed to be able to read the clear words of a state
12
statute no differently than anyone else, nevertheless invite this Court to creatively add brand new
13
words to a statute that don’t exist and which have never been legislated, read, or interpreted into
14
it. The legally unsupportable invitation to act as a de facto legislative body must be soundly
15
rejected. Patten v. State, 273 Or App 476, 359 P3d 469 (2015), çyççp 358 Or 551 (2016)
16

17 (where statutory language is plain, a court must enforce it according to its terms).

18 Our legislature’s broad biological and social observations in ORS 167.305(a) and (b), that

19 “Animals are sentient beings capable of experiencing pain, stress and fear” and that “Animals
20
should be cared for in ways that minimize pain, stress, fear and suffering”, are not in any manner
21
legal determinations that “Animals have rights” or that “Animals can sue”. The former two
22
sentences reflect an entirely distinct type of legislative expression from the latter two sentences:
23
as the Court thoughtfully observed in Cetacean Cmty. v. Bush, 386 F3d 1169, 1174 (9th Cir
24

25
2004) a concern for a dolphin’s well-being is just that alone, a concern, not a grant of power:

26 “Animals are not authorized to sue in their own names to protect themselves.” Id.

PAGE 9 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 It is intellectually dishonest for plaintiffs counsel to pretend to this Court that rights
2
magically arise simply upon a legislative body acknowledging the truism that living things can

undergo a variety of internal and external experiences; that position is, in fact, fundamentally
4
antithetical to what courts historically and thoughtfully have explained as to where rights

actually do come from, i.e., from constitutional charters and provisions written by people, about

people, and for people.

4 See, e.g., McGowan v. Lane Cty. Local Govt Boundary Cornmn, 102

8 Or App 381, 795 P2d 560, fçyciçn 310 Or 612 (1990) (regarding legal rights which originate

9 from the due process clause of the state constitution). Not just the weight of legal authority, but

10 in fact all legal authority says one thing and one thing only: animals lack standing.

B. The Namcd Plaintiff Fails To State A Claim For Negiigence Per Se

12
In addition to the patent lack of standing, plaintiffs counsel also fall down flat in
13
asserting any legally cognizable claim given their single theory of “negligence per se” upon
14
which they rely. At the outset, negligence per se requires that a statute or code expresses a
15
standard of care. Deckard v. Bunch, 358 Or 754, 370 P3d 478 (Or. 2016). The Oregon Supreme
16

17 court in Deckard stated that to prove a claim for statutory liability, the plaintiff must establish

18 that: (1) a statute imposed a duty on the defendant; (2) the legislature expressly or impliedly

19 intended to create a private right of action for violation of the duty; (3) the defendant violated the
20
duty; (4) the plaintiff is a member of the group of persons that the legislature intended to protect
21
by imposing the duty; and (5) the plaintiff suffered an injury that the legislature intended to

prevent by creating the duty.

23

24

25 See, e.g., Mi .Cit Council of Aucust Ga., 710 F2d 1542 (11th Cir 1983) (holding that Blackie the talking
cat “cannot be considered a “person” and is therefore not protected by the Bill of Rights” while helpfully noting that
“even if Blackie had such a right, we see no need for appellants to assert his rightjus ten/i. Blackie can clearly
— speak for himself”); People v. Fabing, 143 Ill 2d 48, 56, 570 NE2d 329, 333 (1991) (“Snakes...are not entitled to
due process”).

PAGE 10- DEFENDANT’S MOTION TO DISMISS Geordie Duckler, P.C.

PER ORCP 2lA(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 The statute placed in issue by the plaintiff therefore has to provide an independent
2
statutory right of action against the specific defendant. Deckard v. Bunch, supra. Because the

issue is one of legislative intent, the determination of whether an enactment created statutory
4
liability is a matter of statutory interpretation. Deckard v. Bunch, supra.
5
Plaintiffs counsel list two statutes which they purport somehow create an independent
6
statutory right of action against the defendant, ORS 167.325(1) and 167.330(1). Certainly,

8 neither statute expressly create any private right of action since neither state any words identical

9 or even akin to the “shall be liable in a civil suit for all damages” type language of clear

10 instances such as ORS 609.140 (right of action given to livestock owners) or ORS 30.780 (right

of action given to victims of gambling offenses).

12
The issue thus reduces down to whether either statute impliedly creates statutory liability.
13
That implication is all about the existence of a recognized duty, which in turn is a “legal
14
obligation that is owed or due to another and that needs to be satisfied; that which one is bound
15
to do, and for which somebody else has a corresponding right.” Black’s Law Dictionary 615 (1 0
th
16

17 ed. 2014) (emphasis added). The universal understanding is that one’s duties can only arise from

18 the recognition of another’s corresponding right.

19 Where, however, is the “right” of a horse implied anywhere within ORS 167.325(1) or
20
167.330(1)? The answer is “nowhere”, neither standing along nor cantering around a single
21
word, phrase, or supporting legislative history document of either code section. Plaintiffs

counsel are not shy at all about levying all sorts of accusations about defendant’s own “duty” and
23
“obligation”, that is, about the first element of the test, yet they then plop down thunderingly

25
silent when it comes to dealing with the very next obstacle in the path, identifying the horse ‘s

26 own discernable legal “right” to anything, the requisite second element of the test. That more

PAGE 11 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546,8052
 I than awkward silence sits heavily on top of the fact that neither ORS 167.325(1) nor 167.330(1)
2
even refer to any Jàrm ofcivil liability at all.

The death knell to the negligence per se claim continues as plaintiffs counsel then gloss
4
entirely over the fourth required element of the test (although they at least have the integrity to
5
cite the correct criterion that it must be found that “plaintiff was a member of the class of pcrsons
6
meant to be protected by the statute” (c plaint at 11:21) (emphasis added)). Since some

8 “person” has to be located who is entitled to invoke its protection (see, Brady v. Terminal R.

9 Ass’n of St. Louis, 303 US 10, 58 S Ct 426, 82 L Ed 614 (1938)), then it abruptly ends the

10 analysis to see that plaintiffs counsel have no person to point to at all, saddled as they are

merely with a horse alone. Unable to meet critical components of the test for negligence per se,
12
they fail to then state a cause of action under it.
13
For all of those reasons, the Complaint must be dismissed for the named plaintiffs lack
14
of legal capacity to sue as well as for plaintiff’s failure to state ultimate facts sufficient to
15
constitute a claim.
16

17 Request For Attorney Fees

18 As defendant’s motion to dismiss gets granted, defendant then respectfully requests that

19 she be awarded her reasonable attorney fees pursuant to ORS 20.105(1) for there being no
20
objectively reasonable basis for plaintiffs learned counsel — Michelle Smith, Matthew Liebman,
21
Sarah Hanneken, and Matthew Hammity — to have even asserted the claims in this suit in two
77
crucial respects.
23
A. There Was No Objectively Reasonable Basis for Plaintiff’s Counsel
24
To Name An Animal As The Plaintiff
75
- First, it is literally jarring that four presumably intelligent, educated, and experienced
26
attorneys join together here to claim that the position of animals being able to sue in a civil suit

PAGE 12 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 in Oregon is warranted by demanding this Court ‘recognize that [a horse is] a member of the
2 class intended to be protected by Oregon’s anti-cruelty statute [and] may bring a negligence per

se claim based on the standard of care in the anti-cruelty statute, ORS 167.305 et seq.”
4
Complaint at 3:1-4.
7
The Ninth Circuit, only a few short weeks ago. in Naruto v. Slater. 888 F3d 418, 422 (9th
6
Cir 2018) (Justice N. R. Smith concurring) called the claim by an animal rights group that

8 animals can sue as plaintiffs “frivolous”, and even awarded attorney fees for the claim being a

9 frivolous claim. This present lawsuit followed the Naruto decision within a matter of days: The

10 opinion in Naruto admonishing this sort of nonsense was issued on April 23. 2018, yet this

instant lawsuit was nevertheless still filed eight days later, on May 1, 2018.
12
The Ninth Circuit was particularly galled by Just what the animal nghts attorneys had
13
done in that case, disturbed by the realization that PETA “employ[ed] Naruto as an unwitting
14
pawn in its ideological goals” and that PETA’s ‘real motivation in this case was to advance its
15
own interests, not Naruto’s”. The frivolous nature of the gamesmanship by the
16 attorneys in

17 exploiting the animal, gamesmanship both literally and functionally identical to what the four

18 attorneys in this case have engaged in, was patent:

19 “Animal-next-friend standing is particularly susceptible to abuse. Allowing next-friend

standing on behalf of animals allows lawyers (as in Cetacean) and various interest groups (as
— here) to bring suit on behalf of those animals or objects with no means or manner to ensure the
21 animals’ interests are truly being expressed or advanced. Such a change would fundamentally
alter the litigation landscape. Institutional actors could simply claim some form of relationship to
22 the animal or object to obtain standing and use it to advance their own institutional goals with no
means to curtail those actions. We have no idea whether animals or objects wish to own
23 copyrights or open bank accounts to hold their royalties from sales of pictures. To some extent,
as humans, we have a general understanding of the similar interests of other humans. In the
24
habeas corpus context. we presume other humans desire liberty. Similarly, in actions on behalf of
75 infants, for example, we presume the infant would want to retain ownership of the property she
— inherited. But the interests of animals? We are really asking what another species desires. Do
26 animals want to own property. such as copyrights? Are animals willing to assume the duties
associated with the rights PETA seems to be advancing on their behalf? Animal-next-friend

PAGE 13 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8): REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I standing is materially different from a competent person representing an incompetent person. We
have millennia of experience understanding the interests and desire of humankind. This is not
2
necessarily true for animals. Because the “real party in interest” can actually never credibly
articulate its interests or goals, next-friend standing for animals is lefl at the mercy of the
institutional actor to advance its own interests, which it imputes to the animal or object with no
4 accountability. This literally creates an avenue for what Chief Justice Rehnquist feared: making
the actual party in interest a “pawn to be manipulated on a chessboard larger than his own case.”
5
Naruto v. Slater, 888 F3d 418, 432 (9th Cir 2018) (citations omitted) (Justice N. R. Smith
6
concurring).
7

8 To add insult to the injury which Oregon law is cruelly subjected to by these attorneys,

9 they then double down on their baseless legal position by citing to three Oregon cases in a

10 pretense that those cases support their demand — when in fact the cases do not support them at

all. Absolutely nothing in State v. Hess, 273 Or App 26, 35, 359 P3d 288, 293 (2015), rev den,
12
358 Or 529 (2016), in State v. Newcomb, 359 Or 756, 765—66, 375 P3d 434, 440 (2016), or in
13
State v. Fessenden, 355 Or 759, 333 P3d 278 (2014) hold that animals have rights to sue or are

“persons” for purposes of bringing a civil action. Indeed, State v. Newcornb, 359 Or 756, 765—

66, 375 P3d 434, 440 (2016) actually confirmed that dogs are “personal property” instead, not
16

17 “persons”.

18 Furthermore, not only was State v. Nix, 355 Or 777, 334 P3d 437 (2014)— another state
19 appellate opinion that the attorneys float out as supposed support — vacated (in 356 Or 768. 345
20
P3d 416 (2015)), but the lower court opinion before it specifically stated that horses were to be
21
considered as “victims”, not as “litigants”, and more importantly, as victims iy for purposes of
22
the anti-merger statute ORS 161.067(1), (2), a rule that State v. Hess adopted and which does not
23
apply to anything whatsoever about civil plaintiffs at all: “we nonetheless are persuaded by the

25
Nix court’s reasoning on the merger question, and we adopt it”. State v. Hess, 273 Or App 26,

26 35, 359 P3d 288, 293 (2015), rev den, 358 Or 529 (2016) (emphasis added).

PAGE 14 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 Had the horse’s attorneys taken even a bare second to actually look at the statute to which
2
Nix and Hess were talking about, they would have realized that the “merger question” to which

both cases were referring is a sentencing concern that involves particular circumstances in which
4
a criminal episode, though implicating only one statute, nevertheless affects more than one
5
victim, and which addresses how to then calculate, in a criminal sentencing proceeding, the
6
number of separately punishable offenses in light of the number of victims involved. State v.

8 Barrett, 331 Or 27, 10 P3d 901 (2000). The calculus of “merging criminal offenses” has as little

9 to do with the creation of “private rights of action in a civil case”, as the presence of livestock on

10 a ranch has to do with the presence of parties in a lawsuit.

11
Given a) the clear state of the current law in Oregon on the date that counsel filed their
12 . . . . .

pleading, b) the emphatic and particularized rebuke by the Ninth Circuit in Naruto eight days
13
before they filed it, bridling against exactly these sorts of activist shenanigans, and c) the
14
unwavering edifice of common law, decisional law, statutory law, and constitutional 1aw
15
stacked high against plaintiff’s counsel and solidly in place for the two centuries before their
16

17 filing, there simply could have been no objectively reasonable basis for those lawyers to have

18 named an animal as the plaintiff in this suit when they filed it.

19 B. There Was Also No Objectively Reasonable Basis for Plaintiff’s Counsel

To Identify Ms. Mosiman As The Horse’s “Guardian”
20

21 Second, and in addition, the cpiaint at 3:13-16 brazenly asserts the following

22 remarkable three sentences: “Kim Mosiman is the Executive Director of Sound Equine Options

23 and is Justice’s guardian. She is the person responsible for Justice’s care and well-being. As
24

25

26 - . . . . .

Oregon Constitution, Section 10: “,..every man shall have remedy by due course of law for injury done him in his
person, property, or reputation”.

PAGE 15 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 2lA(4) AND ORCP 2lA(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 such, Justice’s interests are represented in this suit by and through Ms. Mosiman pursuant to
2
ORCP 27(A).” (Emphasis added).

Not one lick of actual evidence, however supports what can only be called an outright lie
4
to this Court. First, Justice’s “interests” cannot possibly be “represented in this suit by and

through Ms. Mosiman pursuant to ORCP 27(A)” since ORCP 27A refers only to “persons”:
6
“When a person who has a conservator of that pçps estate or a guardian is a party to
7
any action, the pçson shall appear by the conservator or guardian as may be appropriate
8 &r, if the court so orders, by a guardian ad lilem appointed by the court in which the
action is brought.” (Emphasis added).
9 The “plaintiff’ here again, a horse is not a “a minor or a person who is incapacitated
—
—

10 or financially incapable as those terms are defined in ORS 125.005” so even the initial reference

to ORCP 27A has no legal or factual basis, and a statement that says ORCP 27A is the rule relied
12
upon a rule that in fact uses the word “person” 54 times — is by definition an expressly false
13
statement. ORS 125.005, ORS 125.010, and ORS 125.012 all refer to “persons” as parties, not
14
“animals”.
15

16 Moreover, it is bad enough that plaintiffs attorneys all had to be fully aware that Ms.

17 Mosiman had not been, and could never be, appointed either a guardian or a guardian ad 1item to

18 a horse when they wrote down the words “Kim Mosirnan. . . is Justice’s guardian”. What is even
19 more infuriating, however, is that they didn ‘t even make any attempt to have that happen on or
20
before writing the statement, even though the Complaint’s footnote 1 — ajaw-droppingly inane
21
query soliciting the Court’s personal opinion on what motion might be “appropriate” for them to
22
file, and a query that would be highly objectionable to posit in any court document, much less as
23
a throwaway footnote in a pleading — reveals plaintiffs counsels’ express acknowledgment that

25
just such procedures exist.

26

PAGE 16 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 Of course, an excellent guess as to why they didn’t even fly to get a formal guardian
2
appointment for a horse is that the attempt would have necessarily been a disaster of monumental

proportions. ORS 125.005(4) says that a “guardian” means “a person appointed as a guardian
4
under the provisions of this chapter.” In turn, ORS 125.010(1) says that “any person who is
5
interested in the affairs or welfare of a respondent may file a petition for the appointment of a
6
fiduciary or entry of other protective order”. Section (2)(a) of the statute says that “a protective

8 proceeding is commenced by the filing of a petition in a court with jurisdiction over protective

9 proceedings. Section (3)(a) of the statute says that “the court may appoint any of the following

10 fiduciaries in a protective proceeding. a guardian, with the powers and duties specified in this
. .

chapter.”
12
Rigorously circumscribed by a set of clear statutory procedures, a guardianship
13
proceeding is a probate court matter per ORS 111.085(7). See, Iremonger v. Michelson, 97 Or
14
App 60, 63, 775 P2d 860, 862 (1989). Yet no petition for appointment or for any protective
15
proceeding at all under any of those statutes, or under any statute, was ever filed in any probate
16

17 court as of May 1, 2018, the date that the Complaint was filed, nor was any such petition or

18 proceeding ever filed immediately subsequent thereto, nor has any probate proceeding ever been

19 initiated even as of today, well over three and one half months later.
20
In turn, ORCP 27A only allows appearance once a guardian has been actually appointed
21
and not before: “When a person who has a. guardian is a party to any action, the person shall
. .

appear by the... guardian as may be appropriate.” As the achingly appropriate idiom goes, the
23
“cart” (an assertion that a guardianship exists) has been put well before the “horse” (actually

25
having a guardian appointed under ORS 125.010(1)). Of course in this particular application of

26

PAGE 17 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I the idiom, no “horse” could even move the proposed cart anyway in this case, regardless of the
2
respective positions of each object in line.

Worse, the sheer audacity of plaintiffs counsel self-proclaiming that “Justice’s interests
4
are represented” flies directly in the frice of Oregon law dictating that it is the Court, not the
5
parties, which makes determinations about the ward’s interests, special needs and circumstances.
6
State ex rd. Juvenile Dept of Multnornah Cty. v. Burke, 170 Or App 644, 648, 14 P3d 73, 75

8 (2000), rev den. 331 Or 583 (2001) (in order to approve a plan for guardianship, the Court must

9 determine the child’s interests and find that the “special needs or circumstances” of the child

10 support such a decision). It is the Court, not the parties, which determines just who the guardian

is going to be and just who is in fact suitable to protect the ward and under what conditions.
12
Windishar v. Windishar, 83 Or App 162, 731 P2d 445 (1986), opinion adh’d to on recons, 84 Or
13
App 580 (1987) (proposed guardian deemed unsuitable where he was geographically and
14
emotionally remote from protected person and was uninformed about and insensitive to protected
15
persons needs, and where his outlook and manner of controlling protected persons affairs was
16

17 detrimental to protected person).

18 Plaintiffs counsel, however, cavalierly prance past those directives and simply have Ms.

19 Mosiman appoint herself “guardian” (via some secret undisclosed criteria), and then construct
20
their own ‘judicial” findings on interests and suitability, conveniently obviating the need for the
21
pesky steps that every other litigant in the world has to comply with of a) filing a guardianship
22
petition, b) noticing and holding a hearing in open court, c) presenting competent evidence at the
23
hearing sufficient to meet the applicable standard of proof, d) providing others at the hearing a

25
chance to challenge the petition, and e) obtaining a judge’s independent decision on the proposed

26 appointment, the competing interests, and the proposed guardian’s suitability at the hearing. See,

PAGE 18 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 I Dept. of Human Serv. v. K.H., 256 Or App 242, 301 P3d 427, modified on recons, 258 Or App
2
532 (2013), rev den, 354 Or 699 (2014) (outlining all those steps); Iremonger v. Michelson, 97

Or App 60, 775 P2d 860 (1989) (court must initially determine whether guardianship is
4
warranted). While one can appreciate how immensely appealing litigation would be for attorneys
5
to get to be the judge as well as the advocate on their own case, and to ignore procedures that are
6
bothersome, the law thankfully doesn’t actually work that way in real life and plaintiffs
7 —

8 counsel know clearly all about “the appropriate procedures” they were obligated to try to adhere

9 to, but which they simply and deliberately skipped instead.

10 It is thus undeniable that the statement “Kim Mosirnan. .is Justice’s guardian”, as well as
.

the statement “Justice’s interests are represented in this suit by and through Ms. Mosiman
12
pursuant to ORCP 27(A)”, are both patently false statements, yet were certified under ORCP 17
13
by the attorneys for plaintiff to be statements purportedly backed by evidence — evidence which
14
in fact did not exist and which they knew did not exist at the time that they made such statements.
15
There simply could have been no objectively reasonable basis then for counsel to have named
16

17 Ms. Mosiman as the “guardian” in this suit when they filed it, yet name her they did.

18 Doing so then raises the thorny question as to just exactly whom the four counsel

19 represent: the horse or Ms. Mosiman? Although in the Complaint they specifically identify
20
themselves as “attorneys for plaintiff’ (cpi at 14:5), their client truly could not be the
21
horse given the breathtaking impossibility of their compliance then with the State Bar’s

professional responsibility rules were that somehow true, including the requirement of Or. R. Pr.
23
C. 1.2(a) to “abide by a client’s decisions concerning the objectives of representation” and

25
“consult with the client as to the means by which they are to be pursued”; the requirements of

26 Rule 1.4(a) or (b) to keep the client “reasonably informed about the status of a matter and

PAGE 19- DEFENDANT’S MOTION TO DISMISS Geordie Duckler, P.C.

PER ORCP 2IA(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 promptly comply with reasonable requests for information” or “explain a matter to the extent
2
reasonably necessary to permit the client to make informed decisions regarding the
2
representation”; or the requirement to get the client’s “informed consent” as required under
4
Rules 1.6(a) or l,8(a-k).
6
5
Yet their client cannot realistically be Ms. Mosiman either given that a) they don’t
6
indicate anywhere in their pleading that she in fact is represented by them. b) they never filed

8 any petition in a court with jurisdiction over protective proceedings on her behalf to get her

9 appointed guardian as was required by ORS 125.0 10(2) had she actually been their client, and c)

10 they couldn’t be the attorneys for both the “guardian” and the “ward” (see, e.g., Dayton Bar

Assn. v. Parisi, 131 Ohio St 3d 345, 965 NE2d 268 (2012) (representing both guardian and ward
12
violated rule of professional conduct regarding conflict of interest)) and they have already
13
signaled that they identify as the attorneys for the “ward” (Complaint at 14:5).

What all that muddle reveals is that “plaintiffs” counsels’ real client is in fact neither a
15
horse nor a stable owner, but is the Animal Legal Defense Fund, the animal rights activist group
16

17 to which all four self-righteously belong, and their untruthful assertions and legally void claim in

18 that capacity have the primary aims of generating press coverage for their group and of eliciting

19 support for a political cause advanced by their group, both goals being far, far distinct from “the
20
procurement of a fair adjudication of an authentic claim” as required, and both comprising
21
exactly the type of “bad faith” misconduct that ORS 20.105 is meant to redress. See, Mattiza v.

Foster, 311 Or 1, 803 P2d 723 (1990).

23

24
6
25 Perhaps they simply don’t care about adhering to professional responsibility rules, a distinct possibility since both
counsel Liebman and counsel Hanneken have already utterly disregarded Or. R. Pr. C. 3.6(a) by deliberately
26 organizing and arranging numerous public interviews with the local and national media immediately upon filing this
lawsuit in order to promote their organization’s political stance about how this “groundbreaking” suit will “expand
available remedies” and protect the “rights” of animals.

PAGE 20 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 2lA(4) AND ORCP 2lA(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 The four attorneys’ own subjective good faith beliefs in the rightness of their social cause
2 does not matter one whit (Seely v. Hanson, 317 Or 476, 857 P2d 121 (1993)) it is the absence of
3 . . .

merit to their claim that makes fees necessary here, and that absence is deplorable in light of
4
what they had to have known of the law when the case was filed. For all the reasons stated
5
above, therefore, defendant requests an award of reasonable attorney fees per ORS 20.105(1).
6
III. Conclusion

8 Four activist lawyers have concocted a poorly thought out fantasy, designed apparently to

9 test this Court’s patience for tolerating political rhetoric and frivolous lawsuits. The abuse and

10 neglect of a horse which they outrageously pretend that the animal itself seeks money for, pales

in comparison to the far more damaging abuse and neglect of the rule of law they themselves
12
commit by advancing a political position in lieu of asserting a valid claim for a civil remedy.
7
13
True ‘justice” not in the trivialized form of a farm animal’s media-contrived name, but

in the weighty form of the valuable social concept — requires that a defendant be as much entitled

to be rid of an unmeritorious lawsuit as a plaintiff is entitled to maintain a good one. See, Le

16

17 qggcois v. Fireplace Manufacturers, Inc., 68 Cal App 4th 1049, 80 Cal Rptr 2d 660 (1998).

18 This is undeniably not “a good one” in any rational respect, and defendant and the Court are both

19 entitled to be rid of it.

20
Defendant therefore respectfully requests:
21
1. That the Complaint be dismissed under ORCP 21A(4) and/or ORCP 21A(8); and,
77

23

24

25 Though ORCP 1 8 requires only “a plain and concise statement of ultimate facts”, plaintiff’s counsel eviscerate that
rule with a pleading broadcasting their stunt’s true nature by a) adding a full color picture of the horse, b) inserting
26 an “Introduction” rife with adjective and argument, c) reciting a “Legal Background” apropos of an appellate
brief
replete with footnotes, and d) unashamedly imploring this Court to use its (nonexistent) “broad inherent authority
to
prevent injustice”, ostensibly all to enlist sympathy, emotion, and politics as the real operative forces in the case.

PAGE 21 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 2lA(8); REQUEST 9397 Sw Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052
 1 2. That defendant be awarded reasonable attorney fees under ORS 20.105(1) upon

prevailing on this motion.

2

4 Respectfully submitted,

DATED: August /4 , 2018

6
By:
Geordie Duckler, OSB #873780
Attorney for defendant Gwendolyn Vercher
8

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

PAGE 22 DEFENDANT’S MOTION TO DISMISS

-
Geordie Duckler, P.C.
PER ORCP 21A(4) AND ORCP 21A(8); REQUEST 9397 SW Locust St.
FOR ATTORNEY FEES PER ORS 20.105(1) Tigard, OR 97223
503.546.8052