United States District Court, D. Oregon
M. Foster, Chenoweth Law Group, Attorney for Plaintiffs.
Matthew Donohue and Kristin M. Asai, Holland & Knight
LLP, Attorneys for Defendant Progressive Casualty Insurance
A. Bledsoe and Julie A. Wilson-McNerney, Perkins Coie LLP,
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 consolidated these actions. On January 25,
2018, the Court issued an Opinion and Order (ECF 30),
dismissing without prejudice many of Plaintiffs' claims,
including their request for declaratory judgment regarding
future remedial action costs. On February 8, 2018, Plaintiffs
filed an Amended Complaint in which they repleaded their
request for declaratory judgment. Progressive and Chevron now
move for partial judgment on the pleadings against
Plaintiffs' request for declaratory judgment regarding
future remedial action costs. For the reasons that follow,
Defendants' motion is granted.
Rule 12(c) of the Federal Rules of Civil Procedure, a
“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. In 2010, Plaintiffs
purchased real property located at 8145 SE 82nd Avenue in
Portland, Oregon. The parties refer to that property as
“Cartlandia, ” or the “Cartlandia Property,
” because a variety of food carts are situated on the
site. 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 predecessor, Standard Oil Co.
Inc. (“Standard”), previously 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, Plaintiffs hired
Evergreen Environmental Management, LLC
(“Evergreen”) to perform an environmental
assessment of the Cartlandia Property. Evergreen identified
the presence of petroleum contamination in the groundwater.
Evergreen opines that at least some of the contamination on
Plaintiffs' Cartlandia Property likely came from the
petroleum bulk plant that Chevron or Standard 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 show concentrations of petroleum in
the groundwater in the Springwater Corridor that is 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.
have incurred costs for Evergreen's environmental
consulting, sampling, and laboratory analyses. Plaintiffs
have demanded that Progressive and Chevron reimburse
Plaintiffs for these costs. Both Progressive and Chevron
declined. These costs are not at issue in the pending motion.
17, 2017, the Oregon Department of Environmental Quality
(“DEQ”) sent a letter to Progressive that
identified both Progressive and Chevron as potentially
responsible parties for the contamination found on the
Progressive Property. ECF 58-1. In its letter, DEQ explained
that the Progressive Property has been listed in the
DEQ's Environmental Cleanup Site Information Database
(“ECSI Database”). The Cartlandia Property,
however, is not currently listed in the ECSI Database.
response to an earlier motion, the Court dismissed
Plaintiffs' claims for declaratory judgment. The Court
found that Plaintiffs had not plausibly alleged that the
Cartlandia Property was likely to undergo DEQ-approved or
DEQ-required remedial action because the Cartlandia Property
was not a source of contamination. On January 31, 2018, after
the Court dismissed Plaintiffs' claims, DEQ sent a letter
to Plaintiffs informing them that “[t]he DEQ will NOT
be requesting Cartlandia to do any further work or remedial
action on a contaminant plume originating from an off-site
source, but rather would seek to identify the source and have
the property owner (or former owners) perform that
work.” ECF 59-1 (capitalization in original).
22, 2018, DEQ sent a letter to Progressive, stating that DEQ
considers remedial action on the Progressive Property to be a
high priority, and that the remedial action will include
delineation of the contamination on the Progressive Property
and other affected sites. ECF 58-6. DEQ's letter also
stated that if Progressive did not enter into a voluntary
cleanup program within 30 days, DEQ would initiate
negotiations for an enforcement order. ...