Arriola-Caballero et al v. Vermeer Manufacturing Company et al

Filing 23

OPINION & ORDER: The Court concludes Defendant Vermeer has met its heavy burden and shown there is no "possibility that a state court would find that the complaint states a cause of action against any of the resident defendants." GranCare, 889 F.3d at 548. Accordingly, the Court concludes they have been fraudulently joined and their citizenship will be ignored for purposes of diversity jurisdiction. The Court DENIES Plaintiff's Motion to Remand, ECF 13. Based on the above findings, the Court has concluded Plaintiffs have not stated any claims against the Richards Defendants. Accordingly, the Court DISMISSES sua sponte Plaintiffs' claims against the Richards Defendants without prejudice. See, e.g., Warweg v. Lawson, 658 F. Supp. 3d 879, 883 (D. Nev. 2022). Signed on 3/10/2025 by Judge Amy M. Baggio. (jp)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

JOSE FRANCISCO JAVIER ARRIOLACABALLERO, a Resident of Washington;
and MA GUADALUPE MENDOZA-RUIZ,
a Resident of Washington,
Plaintiffs,

No. 3:24-cv-02008-AB
OPINION AND ORDER

v.
VERMEER MANUFACTURING
COMPANY, a Foreign Corporation; RDO
EQUIPMENT CO., A CORPORATION OF
DELAWARE, a Foreign Corporation;
PETER L. RICHARDS, a Resident of
Oregon; and BETTE J. M. RICHARDS, a
Resident of Oregon,
Defendants.
BAGGIO, District Judge:
This matter comes before the Court on Plaintiffs’ Motion to Remand (“Mot.”), ECF 13.
The Court DENIES Plaintiffs’ Motion to Remand for the reasons explained below.
BACKGROUND
Plaintiffs are Washington residents Jose Francisco Javier Arriola-Caballero and Ma
Guadalupe Mendoza-Ruiz. First Amended Complaint (“FAC”) ¶ 1, ECF 2-1. Defendants are
Vermeer Manufacturing Company, an Iowa corporation with its principal place of business in
Iowa; RDO Equipment Co., a Delaware corporation with its principal place of business in North

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Dakota; and Oregon residents Peter L. Richards and Bette J. M. Richards (the “Richards
Defendants”). Id.
Plaintiff Arriola-Caballero was employed at a landscaping company called Inexpensive
Tree Care (“ITC”). Id. ¶ 5. On October 18, 2022, he was working at the home of the Richards
Defendants at the direction of his employer ITC. Id. He was directed to use a Vermeer Mini Skid
Steer with a “log grapple attachment” to load wood from a fallen tree onto a truck. Id. While
doing so, Plaintiffs allege the attachment lodged and then swung back unpredictably, hitting
Plaintiff Arriola-Caballero so hard he lost consciousness. Id. ¶ 6. Nobody witnessed the incident
directly, but one of his coworkers found him unconscious. Id. ¶ 7. Paramedics were called and
they transported him to Legacy Emanuel Medical Center Neurotrauma Intensive Care Unit. Id. ¶
8. He was hospitalized until October 25, 2022, and in rehabilitation until November 1, 2022. Id.
By the time of the accident, he had been employed by ITC for 25 years and regularly used the Mini
Ski Steer for his work duties. Id. ¶ 6. Plaintiffs allege the Mini Ski Steer attachment was defective
because of its design, which made it unsafe for its intended use. Id. ¶ 9. Plaintiffs bring six counts
against the Richards Defendants as homeowners of the property where he was injured: CommonLaw Negligence; Employers’ Liability Law, Not Based on Safety Codes; Employers’ Liability
Law, Based on Safety Codes; Negligence Per Se; Oregon Safe Employment Act; Premises
Liability; and Loss of Consortium. Id. ¶¶ 26-53.
On December 2, 2024, Defendant Vermeer removed this case from state court. Notice of
Removal (“Notice”), ECF 1. Removal was timely and all Defendants consented to removal. Id.
at 3. Defendant Vermeer argues complete diversity exists even though the Richards Defendants
are Oregon residents because “Plaintiffs’ claims against the Richards Defendants are not supported
by Oregon law,” so they have been fraudulently joined. Id. at 4. Plaintiffs filed a motion to remand

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the case back to state court on December 13, 2024, arguing that the Richards Defendants have not
been fraudulently joined and they are residents of Oregon, so complete diversity does not exist.
Mot. at 3-4, ECF 13. Defendant Vermeer responded on January 14, 2025, opposing the motion to
remand. Opposition (“Opp.”), ECF 14. Plaintiffs replied in support of their motion on January
28, 2025. Reply, ECF 22.
LEGAL STANDARD
Complete diversity of citizenship among the parties is required for removal to federal court.
28 U.S.C. § 1332(a). One “exception to the requirement for complete diversity is where a nondiverse defendant has been fraudulently joined.” Hunter v. Philip Morris USA, 582 F.3d 1039,
1043 (9th Cir. 2009) (internal quotations omitted). If a party is found to be fraudulently joined,
“its presence as a resident defendant is ignored for removal purposes.” In re Girardi, 611 F.3d
1027, 1049 (9th Cir. 2010). “There are two ways to establish fraudulent joinder: ‘(1) actual fraud
in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action
against the non-diverse party in state court.’” GranCare, LLC v. Thrower by & through Mills, 889
F.3d 543, 548 (9th Cir. 2018) (quoting Hunter, 582 F.3d at 1044). “Fraudulent joinder is
established the second way if a defendant shows that” the allegedly fraudulently joined party
“cannot be liable on any theory.” Id. “But ‘if there is a possibility that a state court would find
that the complaint states a cause of action against any of the resident defendants, the federal court
must find that the joinder was proper and remand the case to the state court.’” Id. (quoting Hunter,
582 F.3d at 1046).
There is a “strong presumption” against removal jurisdiction, so the “defendant always has
the burden of establishing that removal is proper, and. . . the court resolves all ambiguity in favor
of remand to state court.” Hunter, 582 F.3d at 1042 (internal quotations omitted). A defendant

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“invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy
burden.’” GranCare, 889 F.3d at 548. The Ninth Circuit has clarified the fraudulent joinder
analysis is distinct from and more stringent than the analysis under Rule 12(b)(6) for failure to
state a claim. Id. at 550. The two standards are related in that if a claim can survive Rule 12(b)(6),
then it can survive a fraudulent joinder attack, but the reverse is not true because a claim can pass
the fraudulent joinder test yet fail under Rule 12(b)(6). Id.
To properly analyze fraudulent joinder claims, the Ninth Circuit has endorsed “piercing”
the pleadings to allow district courts to consider “summary judgment-type evidence such as
affidavits and deposition testimony.” Morris, 236 F.3d at 1068; see Ritchey v. Upjohn Drug Co.,
139 F.3d 1313, 1318 (9th Cir. 1998) (endorsing approach of going “further” than the pleadings to
“look at facts outside of the complaint” in cases of fraudulent joinder).
DISCUSSION
The Court concludes that Plaintiffs do not have a viable claim against the Richards
Defendants because as homeowners who relied on the expertise of ITC, they are categorically
exempt from liability on all of Plaintiffs’ counts against them. Accordingly, there is no “possibility
that a state court would find that the complaint states a cause of action against” the Richards
Defendants, so they have been fraudulently joined. GranCare, 889 F.3d at 548.

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A. Count One 1: Common Law Negligence
Plaintiffs allege the Richards Defendants “were generally negligent in failing to ensure that
the work performed by Inexpensive Tree Care, including the removal of a felled tree using a Mini
Skid Steer, was in compliance with applicable Oregon Occupational Safety and Health
Administration (‘OR-OSHA’) rules.” FAC ¶ 27, ECF 2-1. Despite invoking OR-OSHA in their
complaint, Plaintiffs argue this claim is based on broad principles of common law negligence
claims. See Mot. at 12-13, ECF 13. Defendant Vermeer argues that the Richards Defendants are
not bound by OR-OSHA because they were not Plaintiff Arriola-Caballero’s employer and OROSHA does not impose a duty on homeowners to ensure their hired contractors comply with state
safety laws. Notice at 5-6, ECF 1. Defendant Vermeer also argues that general negligence rules
would not apply here because “Oregon courts have developed special negligence rules addressing
the relationship between a property owner and personnel performing paid work on their property,”
which allowed the Richards Defendants to rely on ITC’s and Plaintiff Arriola-Caballero’s
expertise in tree care and their knowledge of the associated hazards. Opp. at 4, ECF 14.
The Court agrees with Defendant Vermeer that a special relationship applies. In Oregon,
a homeowner-defendant “cannot be liable for an injury to the plaintiff” resulting from a risk
associated with the plaintiff’s contracted work if three factors are met:
(1) when a risk is obvious and “inextricably intertwined with [the plaintiff’s employer’s]
performance of a specialized task”; (2) the defendant lacks expertise regarding and control
over the specialized task and, consequently, the risk; and (3) the defendant hired the
plaintiff’s employer because of its expertise in that work[.]

1

Plaintiffs’ FAC is organized into three “Claims for Relief” with counts underneath each
of the first two claims. ECF 2-1. The Second Claim for Relief is against the Richards Defendants
and contains five “counts” which seem to be distinct claims. Id. ¶¶ 26-53.
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Spain v. Jones, 257 Or. App. 777, 787 (2013) (quoting George v. Myers, 169 Or. App. 472, 48788 (2000)).
Starting with the first factor, Oregon courts look to the nature of the work a plaintiff was
hired to perform to determine whether the risks of the injury experienced were “inherent in the
plaintiff’s work”—such as, “a roofer’s risk of falling off a roof.” Spain, 257 Or. App. at 786.
Plaintiff Arriola-Caballero alleges he had “approximately twenty-five (25) years of experience
working as an arborist for Inexpensive Tree Care and regularly operated the Mini Skid Steer to
perform his job duties.” FAC ¶ 6, ECF 2-1. Accordingly, the Court concludes that use of the Mini
Steer Skid and its attendant risks were inherent in Plaintiff Arriola-Caballero’s job as an arborist
for ITC.
As to the next two factors, Plaintiffs allege the Richards Defendants “contracted with
Inexpensive Tree Care to remove a felled tree from their residence.” Id. ¶ 32. Vermeer’s
Opposition attaches declarations from the Richards Defendants in which they attest they hired ITC
to remove from their property four large trees that each ranged from 70 to 190 feet; neither of them
have experience in tree removal; they believed ITC to be skilled in tree removal; and neither
instructed, directed, or provided equipment to ITC or its employees when they arrived at the
Richards Defendants’ home. See Opp., ECF 14; P. Richards Decl. ¶¶ 2-8, ECF 15; B. Richards
Decl. ¶¶ 2-8, ECF 16. The Court may consider these declarations in determining whether joinder
was fraudulent. See Morris, 236 F.3d at 1068. Based on these declarations, the Court finds that
the Richards Defendants lacked the requisite expertise to remove large trees from their property
and hired ITC for its expertise in this field.
The Court concludes the three-part test in Spain is met. Because under Oregon law, the
Richards Defendants were entitled to rely on ITC’s specialized expertise in tree removal, Plaintiffs

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do not have a viable common law negligence claim, based on OR-OSHA or otherwise, against the
Richards Defendants.
B. Counts Two and Three: Employers’ Liability Law
Plaintiffs allege the Richards Defendants are liable under the Employers’ Liability Law
(“ELL”) (ORS 654.305–654.336) for two counts—one count not based on safety codes (Count
two) and one count based on safety codes (Count Three). FAC ¶¶ 29-41, ECF 2-1. Plaintiffs allege
the ELL applies to the Richards Defendants because they were “owners,” or in the alternative,
“indirect employers in charge of and responsible for work that involved risk or danger to plaintiff
Jose Francisco Javier Arriola-Caballero.” Id. ¶¶ 31-32.
In response, Defendant Vermeer argues the ELL does not apply to the Richards Defendants
for four independent reasons: “(1) the Richards did not ‘hav[e] charge of, or responsibility for, any
work involving a risk or danger to the employees or the employers or the public,’ ORS 654.305,
(2) the Richards are not ‘employers,’ (3) the Richards are not indirect employers, and (4) the
Richards are not ‘owners’” because they lack control over the work that was done on their property.
Opp. at 8-9, ECF 14.
Oregon’s ELL imposes liability on “‘all owners, contractors or subcontractors and other
persons having charge of, or responsibility for’ work involving a risk or danger.” Yeatts Whitman
v. Polygon Nw. Co., 360 Or. 170, 179 (2016) (quoting ORS 654.305). To be liable under ELL, the
Richards Defendants must fall into one of these categories.
First, it is undisputed that the Richards Defendants were not Plaintiff Arriola-Caballero’s
direct employers. FAC ¶ 2, ECF 2-1; Notice at 5, ECF 1; Mot. at 4, ECF 13. Second, the Court
finds the Richards Defendants are also not “owners” as defined in the ELL. The ELL defines
“owner” as “every person having ownership, control or custody of any place of employment or of

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the construction, repair or maintenance of any place of employment.” ORS 654.005(6). The
statutory definition of “place of employment” explicitly excludes, any “place where the only
employment involves nonsubject workers employed in or about a private home[.]”

ORS

654.005(8)(b). A nonsubject worker is defined, in part, as a “worker employed to do gardening,
maintenance, repair, remodeling or similar work in or about the private home of the person
employing the worker.” ORS 656.027(2). It is undisputed Plaintiff Arriola-Caballero was
employed by ITC to do yard work at the Richards’ home at the time of his accident. FAC ¶ 5,
ECF 2-1, Notice at 7, ECF 1. Accordingly, the Court finds that he meets the definition of
“nonsubject worker,” and the Richards Defendants are not owners for purposes of the ELL because
their private home does not meet the statutory definition of “place of employment” in ORS
654.005.
Third, the Richards Defendants are not “indirect owners” under Oregon case law. The
Oregon Supreme Court has a test to determine whether a defendant can be classified as an “indirect
employer” under the ELL:
in addition to a worker’s direct employer, liability under the ELL can be imposed on an
indirect employer who (1) is engaged with the plaintiff’s direct employer in a ‘common
enterprise’; (2) retains the right to control the manner or method in which the riskproducing activity was performed; or (3) actually controls the manner or method in which
the risk[-]producing activity is performed.”
Yeatts Whitman, 360 Or. at 179 (quoting ORS 654.305). The first prong requires “more than a
common interest in the economic benefit of the enterprise” and an “intermingling of duties and
responsibility.” Id. at 180. It is undisputed the Richards Defendants hired ITC for the discrete
task of removing trees from their property. FAC ¶ 32(a), ECF 2-1; Notice at 5, ECF 1. Because
they had no common economic interest and certainly no “intermingling of duties” with ITC, they
fail the first prong of the Yeatts indirect employer test. See id.

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As to the second prong, the “risk-producing activity” here can be characterized as moving
fallen trees from the land. Cf. Yeatts Whitman, 360 Or. at 179 (risk producing activity identified
as “plaintiff’s framing work at a dangerous height above a concrete surface”). The Richards
Defendants “retained control pertained solely to the scope of the work,”—removing the trees from
their land—and not the “the method and manner of” ITC’s “performance and, particularly, the
‘risk-producing activity’” of removing trees. George, 169 Or. App. at 477. The parties have cited
no Oregon cases that find a homeowner—who is not also the general contractor or builder on a
project—can be classified as an “indirect employer” simply because they retain the right to control
the overall scope of work of the contractors. While Plaintiffs label the Richards Defendants as
“general contractors” in portions of their complaint, this label contradicts their own factual
allegations that the Richards Defendants hired ITC to oversee the removal of trees. As such, the
Court need not accept Plaintiffs’ label as true. See Clegg v. Cult Awareness Network, 18 F.3d 752,
754–55 (9th Cir. 1994) (“the court is not required to accept legal conclusions cast in the form of
factual allegations if those conclusions cannot reasonably be drawn from the facts alleged.”).
The Richards Defendants attest in their declarations, and Plaintiffs do not dispute, that
neither of the Richards Defendants engaged in “active, on-site participation,” of ITC’s tree removal
work. See P. Richards Decl., ECF 15; B. Richards Decl., ECF 16. Thus, the Court concludes the
Richards Defendants fail the third and final prong of the Yeatts test of “actual control,” and
therefore they cannot be considered “indirect employers” under the ELL. In sum, Plaintiffs do not
have viable claims under Counts Two or Three because the Richards Defendants do not meet the
statutory definitions for any of the groups on which the ELL imposes liability.

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C. Count Four: Negligence Per Se; Oregon Safe Employment Act (“OSEA”)
Plaintiffs allege the Richards Defendants are liable under this count because their home
was a “place of employment” as defined in ORS 654.005(8), so it falls under the purview of the
OSEA. FAC ¶ 44, ECF 2-1. Plaintiffs also re-allege the Richard Defendants are owners under
ORS 654-005(6) and allege for the first time that that they were “employers, as that term is defined
in ORS 654.005(5), in that it had one or more employees.” Id. ¶¶ 45-46. Elsewhere in the FAC,
Plaintiffs repeatedly allege that ITC was Plaintiff Arriola-Caballero’s employer and that he had
worked for ITC for 25 years. See, e.g., FAC ¶¶ 5-6, ECF 2-1. Only in Count Four do Plaintiffs
switch to alleging the “Richards defendants were the employers in charge of and responsible for,
work involving risk or danger to plaintiff Arriola-Caballero.” Id. ¶ 43. Plaintiffs seem to walk
this back in their Motion to Remand: “plaintiffs do not allege, nor do they intend to allege, that the
Richards Defendants were ever Mr. Arriola-Caballero’s direct employer.” Mot. at 13, ECF 13.
Based on this admission, the inconsistency in the FAC, and the lack of factual support for the legal
conclusion that the Richards Defendants qualify as “employers” in this statutory context, the Court
will not accept the allegation that the Richards Defendants were Plaintiff Arriola-Caballero’s
employer as true. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (courts “are not bound to accept
as true a legal conclusion couched as a factual allegation”).
For the reasons discussed above and in Section B., supra, the Richards Defendants’ home
does not meet the statutory definition of “place of employment” in ORS 654.005(8). Because of
this, the Richards Defendants cannot as a matter of law meet the definitions of “owners” or
“employers” who are bound by the OSEA, and Plaintiffs’ Count Four is not viable.

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D. Count Five: Premises Liability
Under Count Five, Plaintiffs allege that as homeowners, the “Richard [sic] defendants
owed a duty of reasonable care to business invitees in general, and plaintiff Arriola-Caballero in
particular.” FAC ¶ 52, ECF 2-1. Plaintiffs allege the Richards Defendants breached this duty in
seven specific ways, all relating to a general failure to ensure ITC and its equipment were
reasonably safe. Id. Defendant Vermeer responds that even if Plaintiff was an invitee on the
Richards Defendants’ land, the “greatest duty the Richards could have owed to Plaintiff was to
warn of latent dangers to protect him ‘against dangers in the condition of the premises’ that they
knew or reasonably should have known.” Notice at 12, ECF 1 (citing Walsh v. C&K Mkt., Inc.,
171 Or. App. 536 539 (2000)). Because Plaintiffs do not allege that Plaintiff was harmed due to a
defect on the Richards Defendants’ land, Defendant Vermeer argues that this premises liability
claim is not viable. Id. at 12-13. It adds that Oregon’s Yowell doctrine further shields the Richards
Defendants from liability because of the specialized nature of the work that the Richards
Defendants hired ITC to complete. Id. at 13 (citing Yowell v. Gen. Tire & Rubber Co., 260 Or.
319, 325 (1971)). Yowell provides that:
A person who orders repairs or work to be done by a third party owes no duty to such third
party or his workman to discover and warn of any unknown dangerous conditions
surrounding the work which fall within a special expertise or knowledge, not shown to
have been had by the person ordering the work, and which the third party impliedly
represents to the public that he possesses.
260 Or. at 325. The Court agrees with Defendant Vermeer that the Richards Defendants did not
have a duty to “discover and warn of any unknown dangerous conditions surrounding the work”
of large tree removal because that work and the related use of the Mini Steer Ski fell within the
“special expertise or knowledge” of tree removal for which ITC was hired. Accordingly, Plaintiffs
do not have a viable premises liability claim against the Richards Defendants.

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E. Count Six: Loss of Consortium – Loss of Services
Plaintiff Ma Guadalupe Mendoza-Ruiz includes the Richards Defendants in her claim for
loss of consortium based on the other claims of liability against the Defendants. FAC ¶ 56, ECF
2-1. Defendant Vermeer argues that this sixth claim necessarily fails against the Richards
Defendants because the others do. Notice at 13, ECF 1. Plaintiffs do not directly respond to this
argument in their Motion or Reply. Plaintiff Mendoza-Ruiz’s claim relies on the alleged “strict
liability, negligence, and/or fault of defendants, and each of them, in one or more of the particulars
set forth” in the first two claims for relief.” FAC ¶ 56, ECF 2-1. The Court agrees this claim is
not viable because it requires at least one other viable claim of liability against the Richards
Defendants, and the Court concludes that the First Amended Complaint states no viable claims of
liability against the Richards Defendants.

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CONCLUSION
For the reasons above, the Court concludes Defendant Vermeer has met its heavy burden
and shown there is no “possibility that a state court would find that the complaint states a cause of
action against any of the resident defendants.” GranCare, 889 F.3d at 548. Accordingly, the Court
concludes they have been fraudulently joined and their citizenship will be ignored for purposes of
diversity jurisdiction. The Court DENIES Plaintiff’s Motion to Remand, ECF 13. Based on the
above findings, the Court has concluded Plaintiffs have not stated any claims against the Richards
Defendants.

Accordingly, the Court DISMISSES sua sponte Plaintiffs’ claims against the

Richards Defendants without prejudice. See, e.g., Warweg v. Lawson, 658 F. Supp. 3d 879, 883
(D. Nev. 2022).

IT IS SO ORDERED.
10th
DATED this ____ day of March, 2025.

_______________________
AMY M. BAGGIO
United States District Judge

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