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Ortega v. Pomerantz

United States District Court, D. Oregon, Portland Division

July 6, 2018

GIGI POMERANTZ, an individual, and BARTON & ASSOCIATES, INC., a foreign corporation, Defendants.

          Paul H. Krueger PAUL KRUEGER LAW FIRM, PC Attorney for Plaintiff

          Alexander S. Wylie PREG O'DONNELL & GILLETT, PLLC Attorney for Defendant Barton & Associates

          OPINION & ORDER


         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 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.


         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. ¶ 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.

         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 agreed to:

“review 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, OHSA, Medicare and Medicaid, and industry guidelines.”

Def. Mot. 5, ECF 4 (citing Indresano Decl. Ex. 2). Defendant agreed to “assist with pre- placement 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.

         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. Notice of Removal Ex. 5 (“Compl.”) ¶¶ 6-7, ECF 1; Compl. at ¶ 5. 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.” Compl. ¶ 15; see also Compl. ¶ 6 (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). Plaintiff alleges that the collision was caused by the negligence of Defendant Pomerantz, who she alleges was acting in the “course and scope of her agency/employment with Defendant Barton & Associates” at the time of the accident. Compl. ¶¶ 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. Compl. ¶¶ 19-21.


         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, 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.”).

         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 long-arm 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 ...

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