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Goldingay v. Progressive Casualty Insurance Co.

United States District Court, D. Oregon

August 3, 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, Attorney for Plaintiffs.

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

          David 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

         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 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.

         STANDARDS

         Under 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 12(c) motions).

         BACKGROUND

         Plaintiffs 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 Property.

         After 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.

         Plaintiffs 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.

         On July 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.

         In 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).

         On May 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. ...


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