United States District Court, D. Oregon
M. Foster, Chenoweth Law Group, PC, Of Attorney for
Matthew Donohue and Kristin M. Asai, Holland & Knight
LLP, Of Attorneys for Defendant Progressive Casualty
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.
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.
“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.
Motion to Dismiss for Failure to State a Claim
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).
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
Motion for Judgment on the Pleadings
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
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
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.
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 ...