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Goldingay v. Progressive Casualty Insurance Co.

United States District Court, D. Oregon

January 25, 2018

ROGER GOLDINGAY, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY and CHEVRON U.S.A. INC., Defendants. CAROL OTIS, Plaintiff,
v.
PROGRESSIVE CASUALTY INSURANCE COMPANY and CHEVRON U.S.A. INC., Defendants.

          Brooks M. Foster, Chenoweth Law Group, PC, Of Attorney for Plaintiff.

          J. Matthew Donohue and Kristin M. Asai, Holland & Knight LLP, Of Attorneys for Defendant Progressive Casualty Insurance Company.

          David A. Bledsoe and Julie A. Wilson-McNerney, Perkins Coie LLP, Of Attorneys for Defendant Chevron U.S.A. Inc.

          OPINION AND ORDER

          Michael H. Simon, United States District Judge.

         Plaintiffs Roger Goldingay (“Goldingay”) and Carol Otis (“Otis”) (collectively, “Plaintiffs”) are husband and wife. They each filed their own lawsuit in state court against Defendants Progressive Casualty Insurance Company (“Progressive”) and Chevron U.S.A Inc. (“Chevron”) (collectively, “Defendants”). Based on substantially identical factual allegations, Goldingay and Otis assert substantially identical legal claims based exclusively on state law. Defendants timely removed the two lawsuits to federal court, and the Court has consolidated these actions. Progressive has moved to dismiss all claims for failure to state a claim. After answering, Chevron has moved for partial judgment on the pleadings against Plaintiffs' claim of financial elder abuse and Plaintiffs' claim for declaratory relief. Because the standard for a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure is substantially identical to the standard for a motion for judgment on the pleadings under Rule 12(c), Progressive and Chevron's motions are evaluated together.

         STANDARDS

         A. Motion to Dismiss for Failure to State a Claim

         A motion to dismiss for failure to state a claim may be granted only when there is no cognizable legal theory to support the claim or when the complaint lacks sufficient factual allegations to state a facially plausible claim for relief. Shroyer v. New Cingular Wireless Servs., Inc., 622 F.3d 1035, 1041 (9th Cir. 2010). In evaluating the sufficiency of a complaint's factual allegations, the court must accept as true all well-pleaded material facts alleged in the complaint and construe them in the light most favorable to the non-moving party. Wilson v. Hewlett-Packard Co., 668 F.3d 1136, 1140 (9th Cir. 2012); Daniels-Hall v. Nat'l Educ. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010). To be entitled to a presumption of truth, allegations in a complaint “may not simply recite the elements of a cause of action, but must contain sufficient allegations of underlying facts to give fair notice and to enable the opposing party to defend itself effectively.” Starr v. Baca, 652 F.3d 1202, 1216 (9th Cir. 2011). All reasonable inferences from the factual allegations must be drawn in favor of the plaintiff. Newcal Indus. Inc. v. Ikon Office Sol., 513 F.3d 1038, 1043 n.2 (9th Cir. 2008). The court need not, however, credit the plaintiff's legal conclusions that are couched as factual allegations. Ashcroft v. Iqbal, 556 U.S. 662, 678-79 (2009).

         A complaint must contain sufficient factual allegations to “plausibly suggest an entitlement to relief, such that it is not unfair to require the opposing party to be subjected to the expense of discovery and continued litigation.” Starr, 652 F.3d at 1216. “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.” Iqbal, 556 U.S. at 678 (citing Bell Atl. Corp. v. Twombly, 550 U.S. 544, 556 (2007)).

         B. Motion for Judgment on the Pleadings

         A Rule 12(c) “motion for judgment on the pleadings faces the same test as a motion under Rule 12(b)(6).” McGlinchy v. Shell Chem. Co., 845 F.2d 802, 810 (9th Cir. 1988). Dismissal for failure to state a claim under Rule 12(b)(6) “is proper if there is a ‘lack of a cognizable legal theory or the absence of sufficient facts alleged under a cognizable legal theory.'” Conservation Force v. Salazar, 646 F.3d 1240, 1242 (9th Cir. 2011) (quoting Balistreri v. Pacifica Police Dep't, 901 F.2d 696, 699 (9th Cir.1988)). In addition, “to survive a motion to dismiss, a complaint must contain sufficient factual matter to state a facially plausible claim to relief.” Shroyer v. New Cingular Wireless Services, Inc., 622 F.3d 1035, 1041 (9th Cir. 2010) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)); see also Cafasso, United States ex rel. v. Gen. Dynamics C4 Sys., Inc., 637 F.3d 1047, 1054 n.4 (9th Cir. 2011) (Iqbal standard applies to review of Rule 12(c) motions).

         BACKGROUND

         Plaintiffs Goldingay and Otis are a married couple. Goldingay is approximately 67 years old, and Otis is approximately 68. In 2010, Plaintiffs purchased real property located at 8145 S.E. 82nd Avenue in Portland, Oregon. Plaintiffs refer to that property as “Cartlandia” because it hosts a variety of different food carts. In this lawsuit, the parties refer to that property as the “Cartlandia Property.” In 2005, Defendant Progressive purchased real property (the “Progressive Property”) that is northwest and uphill from the Cartlandia Property. At some point in time, Defendant Chevron, or its alleged predecessor, Standard Oil Co. Inc. (“Standard”) owned the Progressive Property. From approximately 1936 to 1955, Chevron (or Standard) allegedly operated a petroleum bulk plant on the Progressive Property. Neither Chevron nor Standard is the current owner or operator of the Progressive Property. The City of Portland owns a narrow public right-of-way (the “Springwater Corridor”), which lies between the Cartlandia Property and the Progressive Property.

         After purchasing the Cartlandia Property, Plaintiff hired Evergreen Environmental Management, LLC (“Evergreen”) to perform an environmental assessment at that site. Evergreen identified the presence of petroleum contamination in the groundwater. Evergreen opines that at least some of the contamination on Plaintiff's Cartlandia Property likely came from the petroleum bulk plant that Chevron previously operated on the Progressive Property, which is uphill from the Cartlandia Property. As part of its work for Plaintiffs, Evergreen obtained water samples from the Springwater Corridor. These samples reveal concentrations of petroleum in the groundwater in the Springwater Corridor only a few feet away from Progressive's property line. Groundwater in the area flows from the Progressive Property through the Springwater Corridor and across the Cartlandia Property on its way to a nearby creek.

         Goldingay and Otis have incurred costs paid or owed to Evergreen for its environmental consulting, sampling, and laboratory analyses. Plaintiffs, through their counsel, have demanded that Progressive and Chevron reimburse ...


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