Ortega v. Pomerantz et al

Filing 17

OPINION & ORDER. Defendant Barton & Associates' Motion to Dismiss Plaintiff's First Amended Complaint 13 is GRANTED in part and DENIED in part. Plaintiff's claims for negligence, negligence per se, and negligent entrustment are dismissed against Defendant Barton & Associates. Plaintiff may file a second amended complaint within fourteen days of this Opinion & Order. IT IS SO ORDERED. Signed on 12/11/2018 by Judge Marco A. Hernandez. (gw)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION

LOURDES ORTEGA,
Plaintiff,
v.
GIGI POMERANTZ, an individual; and
BARTON & ASSOCIATES, INC., a
foreign corporation,
Defendants.

Paul Krueger
Kymber Lattin
PAUL KRUEGER LAW FIRM, PC
4380 SW Macadam Avenue, Suite 450
Portland, OR 97239
Attorney for Plaintiff
Alexander Wylie
Alejandra Torres
PREG O’DONNELL & GILLETT, PLLC
222 SW Columbia Street, Suite 650
Portland, OR 97201
Attorneys for Defendant Barton & Associates
1- OPINION & ORDER

No. 3:18-cv-00451-HZ
OPINION & ORDER

HERNÁNDEZ, District Judge:
Plaintiff Lourdes Ortega brings claims for negligence and negligence per se against
Defendants Gigi Pomerantz and Barton & Associates, Inc. and a claim for negligent entrustment
against Defendant Barton & Associates. Defendant Barton & Associates moves for a second time
to dismiss this action under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).1 For the
reasons that follow, the Court grants in part and denies in part Defendant Barton & Associates’
Motion to Dismiss Plaintiff’s First Amended Complaint.
BACKGROUND
Defendant Barton & Associates (“Defendant”) is a “Delaware corporation with its
principal place of business in Massachusetts.” Indresano Decl. ¶ 2, ECF 5. Defendant “identifies
open locum tenens positions at medical facilities and then pairs the medical facilities with one or
more health care providers, who may fill various temporary clinical roles based on individual
medical facility and community needs.” Id. at ¶ 3. Defendant states that it does not own any
property in Oregon or have any employees, offices, or assets in Oregon. Id. at ¶ 5. According to
Defendant, less than 2% of Barton’s total revenue comes from Oregon locum tenens clients,
“[l]ess than 1% of providers in Barton’s database indicate they reside in Oregon,” “[l]ess than
2% of the medical facilities in Barton’s database are located in Oregon,” and “[o]nly 1.32% of
the locum tenens assignments Barton has ever coordinated have been to medical facilities in
Oregon.” Id. at ¶¶ 6–8. Defendant contends that “not even a single Barton employee entered the
State of Oregon for business prior to the date of the accident in this case.” Id. at ¶ 9.

1

Defendant Pomerantz answered on March 23, 2018, and does not join in this motion to dismiss.
Answer, ECF 6.
2- OPINION & ORDER

Defendant contracted with One Community Health of Hood River, Oregon, to provide
locum tenens—or temporary—health care providers to the health center. Id. at Ex. 2. Per the
agreement, One Community Health would:
[R]eview and verify Ms. Pomerantz’s credentials and background, participate in
any risk management activities related to her services, set Ms. Pomerantz’s work
schedule, pay for all reasonable and necessary travel expenses, provide clinical
and professional direction and oversight for Ms. Pomerantz, and comply with all
applicable legal requirements regarding Ms. Pomerantz’s services such as
HIPAA, OSHA, Medicare and Medicaid, and industry guidelines.
Def. Mot. 5, ECF 4 (citing Indresano Decl. Ex. 2). Defendant agreed to “assist with preplacement procedures such as drug testing and background checks and to provide malpractice
insurance covering Ms. Pomerantz.” Id. at 6 (citing Indresano Decl. Ex 2. at 2). Defendant also
provided weekly invoices to the health center based upon the weekly time sheets of its locum
tenens providers. Indresano Decl. Ex. 2 ¶ 2.
Defendant Pomerantz, a resident of Wisconsin at the time the facts underlying this action
arose, id. at Ex. 1 ¶ 1,2 contracted with Defendant to provide temporary health services as a
Nurse Practitioner, id. at Ex. 1 at 9. The agreement with Defendant Pomerantz is titled
“Independent Contractor Agreement” and states that “[n]othing in this Agreement shall in any
way be construed to render IC an agent, employee or representative of Barton.” Id. at 3. Per the
agreement, Defendant would reimburse Defendant Pomerantz for travel and lodging expenses
while on assignment. Id. at 10 ¶ 5. The agreement also required Defendant Pomerantz to provide
Defendant with a time sheet at the end of each week verified by the health center in order to
receive payment. Id. at 9 ¶ 4. Defendant Pomerantz began her locum tenens service at the health
center in Hood River, Oregon, on February 29, 2016. Id. at Ex. 3.

2

At the time of filing, Defendant Pomerantz was a resident of the State of Washington. Notice of
Removal ¶ 7.
3- OPINION & ORDER

Plaintiff alleges that Defendant had the right to control the means by which Defendant
Pomerantz completed work on its behalf. First Am. Compl. ¶ 6, ECF 12. In support of this
assertion, Plaintiff contends that Defendant had (1) control over the specific details of jobs
completed on behalf of Defendant; (2) the manner the manner Defendant Pomerantz was paid;
(3) the places she travelled to complete her work for Defendant; (4) when she would appear for
an assignment; and (5) the kinds of tasks she would complete on behalf of Defendant. FAC ¶ 6.
In addition, Defendant Pomerantz worked only for Defendant, did not maintain her own
business, was vetted by Defendant to determine where she could work, and could not hire any
additional individuals to assist her in completing her work. FAC ¶ 6. Defendant also bore the risk
of loss for her work and was responsible for entering into the contracts with the entities where
Defendant Pomerantz was working. FAC ¶ 6.
On February 28, 2016, Defendant Pomerantz—while driving a car rented through Avis
Rent A Car System, Inc.—collided with a vehicle operated by Plaintiff, a resident of Oregon.
FAC ¶ 8. Plaintiff contends that Defendant Barton & Associates “rented and obtained” the rental
car and “granted permission to and generally entrusted defendant Gigi Pomerantz with
possession and control of the vehicle.” FAC ¶ 16; see also FAC ¶ 8 (alleging that either
Defendant or Defendant Pomerantz—acting in the course and scope of her agency with
Defendant—rented the car); Indresano Decl. ¶ 10 (admitting that Defendant had agreed to
reimburse Defendant Pomerantz for the expense of the rental car). She also alleges that
Defendant:
[K]new, or in the exercise of reasonable care, should have known, that Defendant
Gigi Pomerantz, lacked the maturity, licenses, skills, or competency to safely
operate the motor vehicle due to her unfamiliarity with the roads and location
where she was driving, unfamiliarity with the specific vehicle she was operating,
fatigue and general life circumstances defendant Pomerantz was experiencing
around the date and time of the collision.
4- OPINION & ORDER

FAC ¶ 17. Accordingly, Defendant was negligent in failing to provide sufficient training or
supervision to Defendant Pomerantz, whose duties included driving the rental car to reach her
work location. FAC ¶ 18.
Plaintiff alleges that the collision was caused by the negligence of Defendant Pomerantz
while she was acting in the “course and scope of her agency/employment with Defendant[.]”
FAC ¶¶ 5, 7. As a result of the accident, Plaintiff sustained physical injuries, including injuries to
her back and knee, and incurred economic and noneconomic damages associated with her
injuries. FAC ¶¶ 20–22.
STANDARDS
I.

Failure to State a Claim
A motion to dismiss under Federal Rule of Civil Procedure 12(b)(6) tests the sufficiency

of the claims. Navarro v. Block, 250 F.3d 729, 732 (9th Cir. 2001). “All allegations of material
fact are taken as true and construed in the light most favorable to the nonmoving party.” Am.
Family Ass'n, Inc. v. City & Cnty. of S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a
motion to dismiss, a complaint “must contain sufficient factual matter, accepted as true, to state a
claim to relief that is plausible on its face[,]” meaning “the plaintiff pleads factual content that
allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (internal quotation marks omitted). In
other words, a complaint must contain “well-pleaded facts” that “permit the court to infer more
than the mere possibility of misconduct[.]” Id. at 679.
However, the court need not accept conclusory allegations as truthful. See Warren v. Fox
Family Worldwide, Inc., 328 F.3d 1136, 1139 (9th Cir. 2003) (“[W]e are not required to accept
as true conclusory allegations which are contradicted by documents referred to in the complaint,
5- OPINION & ORDER

and we do not necessarily assume the truth of legal conclusions merely because they are cast in
the form of factual allegations.”) (internal quotation marks, citation, and alterations omitted).
A motion to dismiss under Rule 12(b)(6) will be granted if a plaintiff alleges the “grounds” of his
“entitlement to relief” with nothing “more than labels and conclusions, and a formulaic recitation
of the elements of a cause of action[.]” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Factual allegations must be enough to raise a right to relief above the speculative level on the
assumption that all the allegations in the complaint are true (even if doubtful in fact)[.]”
Id. (citations and footnote omitted).
II.

Personal Jurisdiction
Under Federal Rule of Civil Procedure 12(b)(2), a defendant may move for dismissal on

the grounds that the court lacks personal jurisdiction. Plaintiff has the burden of showing
personal jurisdiction. Boschetto v. Hansing, 539 F.3d 1011, 1015 (9th Cir. 2008).
If the district court decides the motion without an evidentiary hearing, which is
the case here, then the plaintiff need only make a prima facie showing of the
jurisdictional facts. Absent an evidentiary hearing this court only inquires into
whether the plaintiff's pleadings and affidavits make a prima facie showing of
personal jurisdiction. Uncontroverted allegations in the plaintiff's complaint must
be taken as true. Conflicts between the parties over statements contained in
affidavits must be resolved in the plaintiff's favor.
Id. (citations, internal quotation marks, and brackets omitted).
In diversity cases, the court looks to the law of the state in which it sits to determine
whether it has personal jurisdiction over the non-resident defendant. W. Helicopters, Inc. v.
Rogerson Aircraft Corp., 715 F. Supp. 1486, 1489 (D. Or. 1989); see also Boschetto, 539 F.3d at
1015 (“When no federal statute governs personal jurisdiction, the district court applies the law of
the forum state.”).

6- OPINION & ORDER

Oregon Rule of Civil Procedure (ORCP) 4 governs personal jurisdiction issues in
Oregon. Because Oregon's long-arm statute confers jurisdiction to the extent permitted by due
process, Gray & Co. v. Firstenberg Mach. Co., 913 F.2d 758, 760 (9th Cir. 1990) (citing ORCP
4L; and Oregon ex rel. Hydraulic Servocontrols Corp. v. Dale, 294 Or. 381, 657 P.2d 211
(1982)), the court may proceed directly to the federal due process analysis, see Harris Rutsky &
Co. Ins. Servs. v. Bell & Clements Ltd., 328 F.3d 1122, 1129 (9th Cir. 2003) (when state longarm statute reaches as far as the Due Process Clause, the court need only analyze whether the
exercise of jurisdiction complies with due process); see also Millennium Enters., Inc. v.
Millennium Music, LP, 33 F. Supp. 2d 907, 909 (D. Or. 1999) (because Oregon's catch-all
jurisdictional rule confers personal jurisdiction coextensive with due process, the analysis
collapses into a single framework and the court proceeds under federal due process standards).
To comport with due process, “the non-resident generally must have ‘certain minimum
contacts [with the forum state so that the exercise of jurisdiction] does not offend traditional
notions of fair play and substantial justice.’” Walden v. Fiore, 134 S. Ct. 1115, 1121 (2014)
(quoting Int’l Shoe Co. v. Wash., 326 U.S. 310, 316 (1945)). The forum state may exercise
either general or specific jurisdiction over a non-resident defendant. Boschetto, 539 F.3d at
1016.
DISCUSSION
I.

Motion to Dismiss for Failure to State a Claim
For a second time, Defendant moves to dismiss Plaintiff’s claims for negligence and

negligence per se on the grounds that Defendant Pomerantz was not an employee of Defendant
or acting in the scope of her alleged employment. Def. Mot. Dismiss FAC (“Def. Mot.”) 10–13,
ECF 13. Defendant also moves to dismiss Plaintiff’s negligent entrustment claim because

7- OPINION & ORDER

Plaintiff has not adequately alleged that Defendant had control or ownership over the vehicle or a
duty to investigate Defendant Pomerantz’s competency in operating a motor vehicle. Id. at 12–
13.
The Court finds that Plaintiff has failed to plausibly allege both that Defendant
Pomerantz was acting in the course and scope of her employment and that Defendant owned,
possessed, or otherwise exercised control over the vehicle such that it can be liable for negligent
entrustment. Thus, the Court dismisses Plaintiff’s negligence, negligence per se, and negligence
entrustment claims against Defendant Barton & Associates.
A. Negligence & Negligence Per Se
Defendant moves to dismiss Plaintiff’s negligence and negligence per se claims on the
grounds that Plaintiff has not adequately alleged that Defendant Pomerantz was an employee or
acting in the scope of her alleged employment. Def. Mot. 10–13. Under Oregon law, Plaintiff
must prove five elements to succeed on a common-law negligence claim:
(1) that defendant's conduct caused a foreseeable risk of harm, (2) that the risk is
to an interest of a kind that the law protects against negligent invasion, (3) that
defendant's conduct was unreasonable in light of the risk, (4) that the conduct was
a cause of plaintiff's harm, and (5) that plaintiff was within the class of persons
and plaintiff's injury was within the general type of potential incidents and
injuries that made defendant's conduct negligent.
Son v. Ashland Cmty. Healthcare Servs., 239 Or. App. 495, 506, 244 P.3d 835 (2010) (citing
Solberg v. Johnson, 306 Or. 84, 490–91, 760 P.2d 867 (1988)). When a defendant is alleged to
have violated a law or ordinance, the defendant is alleged to have been negligent per se. See
Barnum v. Williams, 264 Or. 71, 74, 504 P.2d 122 (1972) (“We have repeatedly held that
violation of a law or ordinance is negligence or contributory negligence in itself, i.e., per se.”).
With some exceptions, “the question of whether the actor acted as a reasonably prudent person is

8- OPINION & ORDER

irrelevant; the only question is, did the actor violate the statute?” Id. at 75–78 (finding “fault” a
relevant factor in whether a defendant was negligent per se in automobile litigation).
“In general, a principal is liable for all torts committed by its employees while acting
within the scope of their employment.” Vaughn v. First Transit, Inc., 346 Or. 128, 137, 206 P.3d
181 (2009) (citing Minnis v. Oregon Mutual Ins. Co., 334 Or. 191, 201, 48 P.3d 137 (2002)). To
conclude that an employee was acting within the course and scope of their employment, the
plaintiff must demonstrate three things: (1) “the act occurred substantially within the time and
space limits authorized by the employment”; (2) “the employee was motivated, at least partially,
by a purpose to serve the employer”; and (3) “the act is of a kind which the employee was hired
to perform.” Chesterman v. Barmon, 305 Or. 439, 442, 753 P.2d 404, 406 (1988); see also G.L.
Kaiser Found. Hosps., Inc., 305 Or. 54, 60–61, 757 P.2d 1347 (1988).
Whether an individual is an employee under Oregon law is determined by the “right to
control” test. Vaughn, 346 Or. at 137. Courts ask whether the individual “is a person employed to
perform services in the affairs of another and who with respect to the physical conduct in the
performance of the services is subject to the other’s control or right to control.” Schaff v. Ray’s
Land & Sea Food Co., Inc., 334 Or. 94, 100, 45 P.3d 936 (2002) (citing Restatement (Second),
Agency § 220(1) (1958)). Though the determination is a “legal conclusion,” it “depends on a
factual determination of the extent to which the purported employer has the right to control the
performance of services by an individual.” Id. at 99–100. While the terms of an agreement
describing an individual as an “independent contractor” are not dispositive, “they are evidence of
such a relationship.” Id. at 104 (citing Jenkins v. AAA Heating & Cooling, Inc., 245 Or 382, 384–
85, 421 P.2d 971 (1966)).

9- OPINION & ORDER

In its previous decision, the Court indicated that Plaintiff had not adequately alleged that
Defendant Pomerantz was an employee under Oregon law. O&O at 9, ECF 11. Plaintiff now
alleges that Defendant had control over specific details of the jobs Defendant Pomerantz
completed, how she was paid, where she travelled, when she would appear for assignments, and
the tasks she would complete. FAC ¶ 6. Defendant Pomerantz also did not maintain her own
business, nor could she hire other individuals to assist her in her work. FAC ¶ 6. Thus, to some
extent, Defendant is alleged to have had the right to control Defendant Pomerantz’s conduct in
the performance of her services.
However, Plaintiff has not made any allegations from which the Court can find that
Defendant Pomerantz was acting in the course and scope of her employment when she got into
the car accident. Plaintiff merely asserts that Defendant Pomerantz was “acting within the course
and scope of her agency/employment with Defendant Barton & Associates.” FAC ¶¶ 5, 7. But
Plaintiff must “identify and sufficiently plead a connection” between the alleged tortious acts and
the acts that the employee was hired to perform. Whelan v. Albertson’s, Inc., 129 Or. App. 501,
508, 879 P.2d 888 (1994). Here, there are no facts to suggest—one way or the other—that this
act was taken within the time and space limits authorized by performance, was motivated by a
purpose to serve Defendant, and of the kind she was hired to perform. Defendant Pomerantz was
allegedly employed by Defendant to provide services as a nurse practitioner or medical care
giver, FAC ¶ 5, and there is no connection between these services and the negligent acts.
Accordingly, the Court dismisses Plaintiff’s first and second claims for negligence and
negligence per se.
///
///

10- OPINION & ORDER

B. Negligent Entrustment
Under Oregon law, “[a] plaintiff in a negligent entrustment case must prove that there
was an entrustment and that the entrustment was negligent.” Piskorski v. Ron Tonkin Toyota,
Inc., 179 Or. App. 713, 718–19, 41 P.3d 1088 (2002) (citing Mathews v. Federated Service Ins.
Co., 122 Or. App. 124, 133, 857 P.2d 852 (1993)). Where there is no special relationship
between the plaintiff and the defendant, the plaintiff has to “allege that [the defendant’s]
entrustment was unreasonable under the circumstances, that it caused harm to plaintiff and that
the risk of harm to plaintiff (or the class of persons to whom he belongs) was reasonably
foreseeable.” Mathews, 122 Or. App. at 133–34. Further, in order to show that there has been
negligent entrustment, the plaintiff must demonstrate that the defendant “owned, possessed, or
otherwise exercised control” over the vehicle. See Barber v. George, 144 Or. App. 370, 374, 927
P.2d 140 (1996) (“Because plaintiffs failed to show that defendants owned, possessed, or
otherwise exercised control over the Bronco, their claim for negligent entrustment necessarily
fails.”).
Defendant again argues that Plaintiff fails to state a claim for relief for negligent
entrustment. This Court agrees. Plaintiff has not alleged facts to suggest that Defendant had
ownership or control over the vehicle such that it was Defendant’s vehicle to entrust to
Defendant Pomerantz. As stated previously, Plaintiff’s allegation that Defendant facilitated the
rental agreement is inadequate to state a claim for negligent entrustment, and there are no
allegations that Defendant wielded such control over the vehicle as to prevent Defendant
Pomerantz from obtaining it. See Barber, 144 Or. App. at 372, 374 (affirming the trial court’s
decision to grant summary judgment to the defendants on the plaintiff’s negligent entrustment
claim where the defendants had provided their son with money to purchase a vehicle but had not

11- OPINION & ORDER

otherwise “owned, possessed, or exercised control over” the vehicle). Accordingly, this claim is
also dismissed.
II.

Motion to Dismiss for Lack of Personal Jurisdiction
Defendant also moves a second time to dismiss Plaintiff’s claims on the grounds that this

Court does not have personal jurisdiction over Defendant. Specifically, Defendant brings to the
attention of the Court the U.S. Supreme Court case Bristol-Myers Squibb Co. v. Superior Court
of California, San Francisco, 137 S.Ct. 1773 (2017). Defendant contends that this case
demonstrates that personal jurisdiction is lacking here.
The issue in Bristol-Myers Squibb was whether California courts had specific jurisdiction
over the claims of nonresident plaintiffs. 137 S.Ct. 1773 (2017). There, a group of plaintiffs—
most of whom were not residents of California—sued the defendant in California state court
alleging that its drug had damaged their health. Id. at 1777.3 The defendant was incorporated in
Delaware, headquartered in New York, maintained substantial operations in New York and New
Jersey, and engaged in business activities—such as research—in California. Id. at 1777–78. The
drug in question was not developed, labeled, packaged, or manufactured in California, nor did
the defendant create a marketing strategy for the drug in California or work on regulatory
approval there. Id. at 1778. And the nonresident plaintiffs did not allege that they obtained the
drug through California physicians or that they were injured or treated in California. Id.
Emphasizing that there must be “‘an affiliation between the forum and the underlying
controversy, principally, [an] activity or an occurrence that takes place in the forum state’” for a
court to exercise specific jurisdiction over a claim, the Court held that personal jurisdiction was
not present. Id. at 1781 (citing Goodyear Dunlop Tires Operations, S.A. v. Brown, 564 U.S. 915,
3

Notably, the Court did not address the issue of whether jurisdiction over the claims brought by
resident plaintiffs was proper because it was never challenged by the defendant. Bristol-Myers
Squibb, 137 S.Ct. at 1779.
12- OPINION & ORDER

919 (2011)). The nonresident plaintiffs and their injuries had no connection to California. Id. at
1782. The Court noted that the relationship with a third party—there, the resident plaintiffs who
had suffered similar injuries from obtaining or ingesting the drug in California—was insufficient
alone to warrant the exercise of personal jurisdiction. Id. at 1781. The Court further found that
the “bare fact” that defendant contracted with a distributor in California was not enough to
establish jurisdiction. Id. at 1783. The plaintiffs did not allege that the distributor and the
defendant engaged in acts together in California, or that the defendant was derivatively liable for
the distributor’s acts. Id.
The present case is readily distinguishable. Here, Plaintiff is a resident of Oregon. The
alleged tortious conduct occurred in Oregon. Plaintiff suffered injury in Oregon. And the basis
for jurisdiction in this case is not merely the third-party contract with One Community Health, as
Defendant suggests. Def. Mot. 8–10. Rather, it is the fulfillment of that contract. As stated
previously:
Relevant to this case, in January of 2016, Defendant fulfilled the contract by
providing the health center with the services of Defendant Pomerantz for a period
of two months in Oregon. Indeed, Defendant states that Defendant Pomerantz was
presumably in Hood River, Oregon, as a result of this placement on the day of the
accident, and Plaintiff alleges that Defendant Pomerantz was acting in the course
and scope of her “agency/employment” at the time of the accident[.]
O&O at 15 (citations omitted). Thus, unlike in Bristol-Myers Squibb where there was no
connection between the defendant’s actions in the forum state and nonresidents of the forum,
there is an affiliation here between the forum and the controversy. Defendant is alleged to be
vicariously liable for the tortious acts of its employee, who it sent to the forum to fulfill an
ongoing obligation with an entity in the forum. Thus, the Court finds that— under the specific
circumstances of this case—Plaintiff has met her burden of making a prima facie showing of
personal jurisdiction.
13- OPINION & ORDER

CONCLUSION
Defendant Barton & Associates’ Motion to Dismiss Plaintiff’s First Amended Complaint
[13] is GRANTED in part and DENIED in part. Plaintiff’s claims for negligence, negligence per
se, and negligent entrustment are dismissed against Defendant Barton & Associates. Plaintiff
may file a second amended complaint within fourteen days of this Opinion & Order.
IT IS SO ORDERED.

Dated this _______________ day of ___________________, 2018.

MARCO A. HERNÁNDEZ
United States District Judge

14- OPINION & ORDER