Green v. Harley-Davidson et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
GAVRIEL GREEN, an individual,
Plaintiff,
v.
VOLCANO HARLEY-DAVIDSON, a for-
profit corporation,
Defendant.
Case No. 3:24-cv-01509-SB
FINDINGS AND
RECOMMENDATION
BECKERMAN, U.S. Magistrate Judge.
Plaintiff Gavriel Green (“Green”), a self-represented litigant, filed this action in
September 2024, and his claims for breach of contract and the covenant of good faith and fair
dealing, fraud, and conversion against Defendant Volcano Harley-Davidson (“VHD”), survived
the Court’s preliminary screening orders.
VHD now move to dismiss the remaining claims in Green’s amended complaint for
failure to state a claim. (Def.’s Mot. Dismiss (“Def.’s Mot.”), ECF No. 22.) The Court has
jurisdiction over Green’s claims pursuant to 28 U.S.C. § 1331. For the reasons discussed below,
the Court recommends that the district judge grant VHD’s motion to dismiss.
///
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BACKGROUND1
I. 	FACTUAL ALLEGATIONS
Green’s claims arise from two applications he submitted to Harley Davidson Financial
Services, Inc. (“HDFS”) for a motorcycle loan. (Am. Compl. (“FAC”) at 2, ECF No. 11.) Green
applied to an HDFS subsidiary for the first motorcycle loan at the VHD dealership on June 2,
2023. (Id. ¶ 1.) Green signed the application “with a special [e]ndorsement,” which the bank
underwriter rejected. (Id. ¶¶ 2-3.)
The following day, Green returned to VHD to complete a new application for the same
motorcycle, which he signed “without prejudice, gavriel:green, beneficiary.” (Id. ¶¶ 4-5.) VHD’s
assistant sales manager informed Green that HDFS would not accept the application because he
used the phrase “without prejudice” next to his signature. (Id. ¶ 6.) Green informed the manager
that he would not apply for a loan without including that phrase. (Id. ¶ 8.) A few minutes later,
the manager informed Green that his application was approved. (Id. ¶ 9.)
Green requested a paper contract for the loan, to which HDFS agreed on the condition
that VHD hold the motorcycle until HDFS received the contract in the mail. (Id. ¶ 13.) When
Green arrived at VHD the next day, a VHD business manager told him that HDFS needed more
time, and that “[t]he bike will be paid off in one week, they’ll remove the lien, and the bike is
yours.” (Id. ¶ 19.)
On June 9, 2023, another VHD representative informed Green that HDFS was refusing to
pay VHD the funds from the loan without a new contract or an explanation for Green’s use of the
term “without prejudice.” (Id. ¶ 21.) Ultimately, HDFS never approved the loan application, and
1 “Except where otherwise stated, these facts are taken from [the plaintiff]’s complaint
and are accepted as true.” Hebrard v. Nofziger, 90 F.4th 1000, 1004 n.1 (9th Cir. 2024) (citing
Hoeft v. Tucson Unified Sch. Dist., 967 F.2d 1298, 1301 n.2 (9th Cir. 1992)).
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VHD refused to deliver the motorcycle to Green. (See generally FAC.) On July 11, 2023, VHD
refunded Green’s down payment. (Id. ¶ 41.)
II. 	PROCEDURAL HISTORY
Green filed an application to proceed in forma pauperis (“IFP”), which the Court granted.
(ECF Nos. 1, 4.) In a screening order, the Court dismissed with leave to amend most of Green’s
original complaint. (See Findings & Recommendation (“F&R I,” ECF No. 5; see also Order
adopting F&R I, ECF No. 16.)
Green subsequently filed an amended complaint on February 12, 2025. (See generally
FAC.) On April 1, 2025, the district judge adopted the Court’s recommendation to dismiss
several claims in Green’s FAC. (See generally Findings & Recommendation (“F&R II”), ECF
No. 12; Order, ECF No. 15.) The district judge permitted Green to “proceed only against VHD
and only on Plaintiff’s claims of breach of contract, breach of duty of good faith and fair dealing,
conversion, and fraud.” (Id. at 3.) The court “dismisse[d] with prejudice all other claims asserted
by [Green].” (Id.)
Following service, VHD filed a motion to dismiss Green’s FAC. (See generally Def.’s
Mot.) Green responded to VHD’s motion to dismiss (Pl.’s Resp. Mot. Dismiss (“Pl.’s Resp.”),
ECF No. 23), VHD filed a reply (Def.’s Reply Mot. Dismiss (“Def.’s Reply”), ECF No. 24), and
Green filed a sur-response (Pl.’s Sur-Resp. Opp’n Mot. Dismiss (“Pl.’s Sur-Resp.”), ECF No.
30).
For the reasons explained below, the Court recommends that the district judge grant
VHD’s motion to dismiss and dismiss Green’s remaining claims with prejudice.
///
///
///
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LEGAL STANDARDS
A plaintiff’s “complaint must contain sufficient factual matter, accepted as true, to ‘state
a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). The Supreme Court has
explained that “[a] claim has facial plausibility when the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Id. (citing Twombly, 550 U.S. at 556). Although “[t]he plausibility standard is not akin
to a ‘probability requirement,’ . . . it asks for more than a sheer possibility that a defendant has
acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556). Consequently, “where a complaint
pleads facts that are ‘merely consistent with’ a defendant’s liability, it ‘stops short of the line
between possibility and plausibility of entitlement to relief.’” Id. (quoting Twombly, 550 U.S. at
557).
“[A] Court’s finding that a complaint states a cognizable claim at screening under 28
U.S.C. § 1915A does not preclude the court from dismissing the complaint later for failure to
state a claim under Rule 12(b)(6).” Hudson v. Pfeiffer, No. 1:19-cv-00954-HBK, 2021 WL
5989158, at *3 (E.D. Cal. Dec. 17, 2021) (first citing Easley v. Pinnell, 182 F.3d 924, n.3 (9th
Cir. 1999); and then citing Coleman v. Maldonado, 564 F. App’x 893, 894 (9th Cir. 2014)),
findings and recommendation adopted, 2022 WL 6813645 (E.D. Cal. Oct. 11, 2022).
Courts “have a duty to read a pro se complaint liberally,” Sernas v. Cantrell, 857 F.
App’x 400, 401 (9th Cir. 2021) (citation omitted), and “[self-represented] litigants should be
treated with ‘great leniency’ when evaluating compliance with ‘the technical rules of civil
procedure.’” Seals v. L.A. Unified Sch. Dist., 797 F. App’x 327, 327 (9th Cir. 2020) (quoting
Draper v. Coombs, 792 F.2d 915, 924 (9th Cir. 1986)). As the Ninth Circuit has explained, there
is a “good reason that [courts] afford leeway to [self-represented] parties, who appear without
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counsel and without the benefit of sophisticated representation: ‘Presumably unskilled in the law,
the [self-represented] litigant is far more prone to making errors in pleading than the person who
benefits from the representation of counsel.’” Huffman v. Lindgren, 81 F.4th 1016, 1021 (9th Cir.
2023) (quoting Lopez v. Smith, 203 F.3d 1122, 1131 (9th Cir. 2000)).
There are, however, limits on the leeway that courts afford to self-represented litigants.
For example, although courts “construe pro se pleadings liberally, . . . [courts] ‘may not supply
essential elements of the claim that were not . . pled[.]’” Owen v. City of Hemet, No. 21-55240,
2022 WL 16945887, at *1 (9th Cir. Nov. 15, 2022) (first citing Hebbe v. Pliler, 627 F.3d 338,
342 (9th Cir. 2010); and then quoting Litmon v. Harris, 768 F.3d 1237, 1241 (9th Cir. 2014)).
DISCUSSION
I. 	BREACH OF CONTRACT
Green alleges that “[o]n Saturday, June 3, 2023, VHD sold Plaintiff a motorcycle,” but
then “retroactively denied selling [him] a motorcycle, and refused to work on it or release it.”
(Id. ¶¶ 68, 74.) Green alleges that VHD breached its agreement to sell Green the motorcycle. (Id.
¶ 82.)
VHD moves to dismiss Green’s breach of contract claim on the grounds that, inter alia, it
“fails because [Green] admits that he did not secure financing and also admits that financing was
a condition precedent to any obligation of VHD to sell him a motorcycle.” (Def.’s Mot. at 3.)
Green responds that “all conditions” were met because “[t]he [b]ank agreed to pay VHD” but
then later “refused to honor that agreement” and the “issues between VHD and [t]he [b]ank are
not [Green]’s responsibility.” (Pl.’s Resp. at 2.)
A. 	Applicable Law
A breach of contract claim requires a plaintiff to plead four elements: “the existence of a
contract, the relevant terms, plaintiff’s full performance and lack of breach, and defendant’s
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breach resulting in damages.” Bonilla v. Credit One Bank, Nat’l Ass’n, No. 3:24-cv-00837-AN,
2024 WL 3596959, at *2 (D. Or. July 30, 2024) (citing Slover v. Or. State Bd. of Clinical Soc.
Workers, 927 P.2d 1098, 1101 (Or. Ct. App. 1996)).
B. 	Analysis
The Court finds that Green has failed to state a breach of contract claim against VHD
because Green has not alleged his full performance and lack of breach of the alleged contract.
Specifically, Green fails adequately to plead that he paid for the motorcycle. Green
attaches the relevant bill of sale to his amended complaint, which includes a term obligating
Green to pay $21,417.50 for the motorcycle. (FAC Ex. 1.) Green alleges that he secured
financing for the motorcycle when VHD told him the loan was approved (FAC ¶¶ 6, 9), but
Green acknowledges in his complaint that the bank never approved the loan. (See FAC ¶ 92,
“The [b]ank refused to fulfill their agreement to pay VHD.”; see also id. ¶ 21, “[The bank]
“refus[ed] to pay VHD unless [Green] either autograph[ed] a new contract or provide[d] a basis
for his use of ‘without prejudice.’”) Thus, Green acknowledges in his pleading that he never
secured financing for the motorcycle, and he does not allege that he otherwise satisfied the
alleged contract’s payment term. Further, Green does not plausibly allege any agreement with
VHD that required VHD to give the motorcycle to Green even after his financing fell through.2
For these reasons, the Court concludes that Green has failed to state a breach of contract
claim and recommends that the district judge grant VHD’s motion to dismiss.
2 Green argues that VHD “expressly promised [Green] a free motorcycle with clear title.”
(Pl.’s Sur-Resp. at 10, citing FAC ¶¶ 19, 81, 92, 97.) However, the allegations on which Green
relies make it clear that VHD only agreed to give the motorcycle to Green once VHD received
the required payment. (See, e.g., FAC ¶ 19, alleging that the VHD representative “told [Green
that], ‘[w]e spoke to the bank’” and “[t]his bike will be paid off in one week, they’ll remove the
lien, and the bike is yours.’”)
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II. 	IMPLIED COVENANT OF GOOD FAITH AND FAIR DEALING
VHD moves to dismiss Green’s implied covenant claim on the ground that “it fails for
the same reasons his breach of contract claim fails, because the covenant does not create
obligations greater than the contract on which it is based.” (Def.’s Mot. at 3.) Green responds
that VHD violated the covenant by its “lack of respect and dignity toward him” by rescinding the
sale. (Pl.’s Resp. at 5, citing FAC ¶ 208.)
A. 	Applicable Law
Oregon “law imposes a duty of good faith and fair dealing in the performance and
enforcement of every contract.” Hampton Tree Farms, Inc. v. Jewett, 892 P.2d 683, 692 (Or.
1995) (citations omitted). This duty “serves to protect the objectively reasonable contractual
expectations of the parties.” Stevens v. Foren, 959 P.2d 1008, 1011 (Or. Ct. App. 1998) (citations
omitted). Under Oregon law, the duty of good faith “cannot contradict an express contractual
term,” and cannot “provide a remedy for an unpleasantly motivated act that is permitted
expressly by contract.” Zygar v. Johnson, 10 P.3d 326, 330 (Or. Ct. App. 2000) (citing Stevens,
959 P.2d at 1011); see also Or. Univ. Sys. v. Or. Pub. Emps. Union, Local 503, 60 P.3d 567, 570
(Or. Ct. App. 2012) (noting that the duty of good faith and fair dealing “may be implied as to a
disputed issue only if the parties have not agreed to an express term that governs that issue”);
U.S. Nat’l Bank of Or. v. Boge, 814 P.2d 1082, 1092 (Or. 1991) (“[T]he obligation of good faith
does not vary the substantive terms of the bargain[.]”) (en banc).
B. 	Analysis
For the reasons discussed above, Green has failed to state a plausible claim for breach of
contract, and his related claim for breach of the implied covenant of good faith and fair dealing
claim must also fail where VHD’s alleged conduct was consistent with the terms of the alleged
contract. See Marshall v. Wells Cap. Mgmt., Inc., No. 07-309-HU, 2007 WL 4565164, at *9 (D.
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Or. Dec. 19, 2007) (“Conduct consistent with the terms of the contract cannot serve as the basis
of a claim of violation of the duty of good faith.”); see also Stevens, 959 P.2d at 1011 (holding
that there cannot be an implied covenant claim where the defendant did not violate the
“objectively reasonable contractual expectations of the parties” (citing Slover, 927 P.2d at
1102)). Accordingly, the Court recommends that the district judge dismiss Green’s implied
covenant of good faith and fair dealing claim.
III. 	CONVERSION
VHD moves to dismiss Green’s conversion claim on the ground that “Green fails to state
a claim for conversion because he cannot plausibly allege that he owned the motorcycle that is
subject to the conversion claim.” (Def.’s Mot. at 10.) Green responds that VHD is liable for
conversion of the motorcycle because he “pa[id] in accordance with the contract, and . . .
provided no less consideration than any other VHD customer who contracted with VHD through
[t]he [b]ank.” (Pl.’s Sur-Resp. at 8.)
A. 	Applicable Law
To state a claim for conversion under Oregon law, “a party must establish the intentional
exercise of dominion or control over a chattel that so seriously interferes with the right of another
to control it that the actor may justly be required to pay the full value of the chattel.” Blocker v.
Universal Music Publ’g Grp., No. 3:14-cv-01650-SB, 2015 WL 9646823, at *2 (D. Or. Dec. 15,
2015) (simplified). “Implicit in that definition is the notion that the converter does not have the
legal right to exercise dominion or control over the property.” In re Martin, 970 P.2d 638, 642
(Or. 1998). “To determine whether conversion occurred, courts consider the extent and duration
of the actor’s exercise of control, the actor’s intent and good faith, the extent of the resulting
interference of control, the harm done to the chattel, and the resulting inconvenience and
expense.” Lucenford v. Carson, No. 3:22-cv-001387-SI, 2023 WL 4235465, at *7 (D. Or. June
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28, 2023) (citations omitted), revised and superseded in part, 2023 WL 9179204 (D. Or. July 28,
2023).
B. 	Analysis
Green acknowledges in the FAC that he never actually secured financing for the
motorcycle (see FAC ¶¶ 21, 92), and therefore he never obtained ownership and title over the
motorcycle. As a result, VHD necessarily maintained the legal right to exercise control over the
motorcycle and Green’s conversion claim fails as a matter of law. See Haley v. Herbert, 865 P.2d
389, 391 (Or. Ct. App. 1993) (“Conversion is an act of dominion, wrongfully exerted,
inconsistent with the plaintiff’s property right. To prevail on appeal, plaintiff must first show that
there is some evidence that he had an interest in the tractor that Herbert allegedly converted.”)
(simplified); Hunt v. First Nat’l. Bank, 202 P. 564, 565 (Or. 1921) (“As between the parties to an
action based on conversion, the plaintiff must allege a property in himself; otherwise there would
be nothing of which conversion could be predicated for him. No one has a cause of action for the
conversion of the property of another. He must aver property in himself, to which the act of
conversion is applicable at the time.”). For these reasons, the Court recommends that the district
judge grant VHD’s motion to dismiss Green’s conversion claim.
IV. 	FRAUD
Green alleges that VHD committed fraud because its manager omitted “without
prejudice” from Green’s loan application and then misrepresented that the loan was approved
when in fact “financing ha[d]n’t gone through and there [was] no sale.” (Id. ¶¶ 9, 33, 119.) VHD
moves to dismiss Green’s fraud claim on the grounds that he has not pleaded an actionable
misrepresentation nor any recoverable damages resulting from his reliance on any alleged
misrepresentation. (Def.’s Mot. at 10; Reply at 3, 8.)
///
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A. 	Applicable Law
To state a fraud claim under Oregon law, a plaintiff must allege with particularity that:
“[1] the defendant made a material misrepresentation that was false; [2] the defendant did so
knowing that [the] representation [w]as false; [3] the defendant intended the plaintiff to rely on
the misrepresentation; [4] the plaintiff justifiably relied on the misrepresentation; and [5] the
plaintiff was damaged as a result of that reliance.” Great Am. Ins. Co. v. Linderman, 116 F.
Supp. 3d 1183, 1192 (D. Or. 2015) (quoting Strawn v. Farmers Ins. Co. of Or., 258 P.3d 1199,
1209 (Or.), adhered to on reconsideration, 256 P.3d 100 (Or. 2011)).
B. 	Analysis
The Court agrees that Green has failed plausibly to allege that he suffered any
recoverable damages as a result of his reliance on VH D’s alleged misrepresentations.
Green alleges that he would not have applied for the motorcycle loan absent the “without
prejudice” language in the loan application, and that VHD induced him into submitting the
application by misrepresenting that the bank had accepted his reservation of rights. (FAC ¶¶ 118-
20.) As an initial matter, Green is clear that he insisted on including the “without prejudice”
language and that was the reason the bank rejected his loan application, and therefore he cannot
attribute his failure to secure financing to VHD’s alleged misrepresentations. As a result, Green
has not plausibly alleged that VHD’s alleged misrepresentations “deprived him of his new
Harley-Davidson.” (FAC ¶ 122.)
Green also alleges that he suffered “the waste of time and energy invested in the sale
[and] a hard inquiry on his credit report” (FAC ¶ 122), but VHD correctly points out that Green
alleges no resulting economic damages from VHD’s alleged misrepresentations. (Def.’s Mot. at
12-13; Def.’s Reply at 4-6.) In fact, Green alleges in the FAC that VHD promptly returned his
$500 down payment. (FAC ¶ 41.) Although Green further alleges that he suffered “significant
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stress, heartache, and aggravation” from the failed loan application, “emotional distress damages
for fraud are . . . unavailable.” Carney v. W. Coast Self Storage Grp., No. 3:25-cv-00377-AB,
2025 WL 2966834, at *5 (D. Or. Oct. 21, 2025); see also Nettleton v. Exact Sci. Corp., No. 6:22-
cv-01290-MC, 2025 WL 418983, at *3 (D. Or. Feb. 6, 2025) (“No Oregon case has held that
emotional distress damages are recoverable in a claim for fraud.”).
A common law fraud claim requires that “the plaintiff was damaged as a result of [his]
reliance[,]” Lindeman, 116 F. Supp. 3d at 1192, but Green fails to plead any recoverable
damages resulting from his reliance on VHD’s alleged misrepresentations.3 As a result, Green
has failed to state a plausible fraud claim and the Court recommends that the district judge grant
VHD’s motion to dismiss.
CONCLUSION
For the reasons stated, the Court recommends that the district judge GRANT VHD’s
motion to dismiss (ECF No. 22), and dismiss Green’s claims with prejudice.4
///
3 Green does not seek punitive damages in connection with his fraud claim (see FAC ¶¶
116-22), nor would his allegations support a prayer for punitive damages under Oregon law. See
Butters v. Travelers Indem. Co., No. 3:22-CV-726-SB, 2023 WL 3559472, at *6 (D. Or. May 18,
2023) (granting the defendant’s motion to dismiss the plaintiff’s request for punitive damages
and noting that “[i]n Oregon, ‘[p]unitive damages are not recoverable in a civil action unless it is
proven by clear and convincing evidence that the party against whom punitive damages are
sought has acted with malice or has shown a reckless and outrageous indifference to a highly
unreasonable risk of harm and has acted with a conscious indifference to the health, safety and
welfare of others.’” (citing OR . R EV. S TAT. § 31.730(1))).
4 The Court has twice allowed Green leave to amend his complaint. (See ECF Nos. 10,
15.) In light of the nature of the pleading deficiencies discussed herein, the Court concludes that
any further attempts to amend would be futile. (See Order adopting F&R II, “The Court
dismisses with prejudice all other claims asserted by Plaintiff.”); see also Nietzche v. Freedom
Home Mortg. Corp., No. 3:18-cv-1930-SI, 2019 WL 5057174, at *8 (D. Or. Oct. 8, 2019)
(holding that “[b]ecause amendment would be futile, [the plaintiff’s claims] are dismissed with
prejudice.”), aff’d, No. 19-35876, 2023 WL 2570417 (9th Cir. Mar. 20, 2023).
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SCHEDULING ORDER
The Court will refer its Findings and Recommendation to a district judge. Objections, if
any, are due within fourteen (14) days from service of the Findings and Recommendation. If no
objections are filed, the Findings and Recommendation will go under advisement on that date. If
objections are filed, a response is due within fourteen (14) days after being served with a copy of
the objections. When the response is due or filed, whichever date is earlier, the Findings and
Recommendation will go under advisement.
DATED this 9th day of December, 2025.
HON. STACIE F. BECKERMAN
United States Magistrate Judge
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