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Clement v. Ecolab Inc.

United States District Court, D. Oregon

September 20, 2018

SCOTT E. CLEMENT, Plaintiff,
v.
ECOLAB, INC., and DOES I-V, Defendants.

          OPINION AND ORDER

          Honorable Paul Papak, United States District Judge.

         Plaintiff Scott E. Clement filed this action against defendant Ecolab, Inc. ("Ecolab"), and five fictitiously named Doe defendants in the Multnomah County Circuit Court on March 8, 2018. Ecolab removed Clement's action to this court on April 5, 2018, on diversity jurisdictional grounds, By and through his complaint, Clement alleges that he is the general manager of a McCormick & Schmick's restaurant (the "Restaurant") owned by Landry's. Inc. ("Landry's"), and that Landiy's had a contract with Ecolab pursuant to which Ecolab was obliged to provide pest control services at the Restaurant. Clement further alleges that under the contract, Ecolab agreed to respond by telephone to requests for service at the Restaurant within one hour, and to arrive at the restaurant to provide requested services within 24 hours. Clement further alleges that in July and August 2017, Ecolab failed to respond to requests for pest-control services in connection with the presence of spiders at the restaurant, and that on August 25, 2017, in light of Ecolab's failure to respond to his multiple requests for service, he cleared out spider webs at the restaurant by himself, in the course of which he was bitten by a brown recluse spider, causing him to suffer severe injury. Arising out of the foregoing, Clement alleges Ecolab's liability for negligence and for breach of contract. Clement seeks award of approximately $ 1 million in damages, plus pre-and post-judgment interest thereon.

         Because it appears to be undisputed that Clement is a citizen of the State of Washington, and that Ecolab is a Delaware corporation with its principal place of business in Minnesota, this court appears to have diversity jurisdiction over Clement's action pursuant to 28 U.S.C. § 1332 based on the complete diversity of the parties and the amount in controversy.

         Now before the court is Ecolab's motion (#23) for judgment on the pleadings as to Clement's claims against it. I have considered the motion, oral argument on behalf of the parties, and ail of the pleadings and papers on file. For the reasons set forth below, Ecolab's motion (#23) is granted as to Clement's negligence claim and denied as to his breach of contract claim, and Clement's negligence claim is dismissed with prejudice.

         LEGAL STANDARD

         Fed, R. Civ. P. 12(c) governs motions for judgment on the pleadings. Rule 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). "Judgment on the pleadings is proper when the moving party clearly establishes on the face of the pleadings that no material issue of fact remains to be resolved and that it is entitled to judgment as a matter of law. . . . However, judgment on the pleadings is improper when the district court goes beyond the pleadings to resolve an issue; such a proceeding must properly be treated as a motion for summary judgment." Hal Roach Studios, Inc. v. Richard Fewer & Co., 896 F.2d 1542, 1550 (9th Cir. 1989) (citations omitted). In evaluating a motion for judgment on the pleadings, the allegations of the non-moving party are credited as true, whereas those allegations of the moving party which have been denied are deemed false for purposes of the motion. See Id. (citation omitted).

         FACTUAL BACKGROUND

         I. The Parties

         It appeal's to be undisputed that plaintiff Clement is a citizen of the State of Washington. Clement is employed as the general manager of the Restaurant owned by Landry's in Portland, Oregon.

         Defendant Ecolab is a Delaware corporation headquartered in Minnesota. Ecolab is party to a contract with Landry's pursuant to which it agreed, inter alia, to provide certain specified pest elimination and pest control services at the Restaurant.

         II. Clement's Allegations in Support of His Claims[1]

         Clement has at all material times been the general manager of the Restaurant. See Complaint (#1-1), ¶ 5. At a material time, defendant Ecolab entered into a contract with Landry's, the owner of the Restaurant, to provide "pest elimination, pest control and exterminator services to Landry's-owned facilities nationwide, including the Restaurant." Id., ¶ 9. Pursuant to the contract between Ecolab and Landry's (the "Agreement"), "Ecolab was obligated to perform pest elimination and pest control services at the Restaurant, including promising [sic] 'proactive prevention1 through the use of reliable protocols supported by science to help protect customers through regular service visits by highly-trained and professional service specialists." Id., ¶ 10.

The Agreement provided for regular service visits. Additionally, in the Agreement, Ecolab also agreed that it could be contacted regarding pest activity and concerns, and that its representatives would be available 24 hours a day, seven days a week. Ecolab also promised to call back within one hour of such calls to schedule a visit, which visit would occur within 24 hours where immediate attention is requested. Ecolab also agreed to provide emergency services 24 hours a day, seven days a week.

Id., ¶ 11. Clement, in his capacity as general manager of the Restaurant, was responsible for "coordinating with Ecolab for performance of its pest elimination services at the Restaurant." Id., ¶ 12. In connection with that responsibility, Clement often brought pest concerns to Ecolab's attention between Ecolab's regular service visits, including "to address the elimination and prevention of spider infestation." Id.

         In the summer and early autumn of 2017, Clement placed several calls to Ecolab requesting that Ecolab perform services at the Restaurant in connection with eliminating spider infestations. See id., ¶ 13. Ecolab failed to timely respond to Clement's service calls of July and August 2017, and failed to perform the requested services (including the request to eliminate spider infestations), notwithstanding its knowledge that the presence of spiders at the Restaurant "posed a threat to the health and safety of the Restaurant's customers, employees and other visitors." Id. ¶ 16; see also id., ¶ 15.

         On August 25, 2017, Ecolab not having eliminated the spiders infesting the Restaurant, Clement cleared the spider webs in and around the Restaurant himself. See id., ¶ 18. While doing so, Clement was bitten by what he identifies as a brown recluse spider. See id., ¶ 19. As a result of the spider bite, Clement suffered physical injuries and was forced to miss work, causing him to incur economic damages. See id., ¶¶ 19-22.

         It is Clement's position that Ecolab's failure to respond to Clement's service calls of July and August 2017 umeasonably created a foreseeable risk of harm to Clement. See id., ¶ 26. It is further Clement's position that both Ecolab's failure to respond to Clement's service calls of July and August 2017 and its failure to provide pest elimination or pest control services in response to those calls constituted breach of the Agreement between Landry's and Ecolab, and that he was at all material times an intended beneficiary of that Agreement. See id., ¶¶ 30, 32.

         III. Ecolab's Evidentiary Proffer

         In support of its motion for judgment on the pleadings, Ecolab proffers a redacted copy of the Agreement between Landry's and Ecolab. Because Clement's breach of contract claim arises directly out of Clement's allegations that Ecolab's complained-of conduct constituted breach of Ecolab's contractual obligations under the Agreement, and because Clement's complaint refers extensively to that Agreement, I deem the Agreement incorporated by reference into Clement's complaint, and consider Ecolab's motion together with Ecolab's supporting evidentiary proffer without first construing it as a motion for summary judgment. See Daniels-Hall v. Nat'l Ednc. Ass'n, 629 F.3d 992, 998 (9th Cir. 2010).

         Ecolab and Landry's entered into the Agreement effective January 1, 2016. See Declaration (#24) of Jeanne Loftus ("Loftus Decl."), Exh, 1 (the Agreement) at 1, Pursuant to the Agreement, Ecolab was obliged to provide pest elimination and pest control services specified in detail in the Agreement's Exhibit A at restaurant locations specified in the Agreement's Exhibit B. See id., ¶ 1. The Agreement specified that "Exhibit B can change from time to time as [Landry's] purchases, opens, closes, sells or liquidates individual locations" but did not similarly indicate that the services listed in Exhibit A were subject to change. Id. (underlining original). Ecolab was obliged to provide the services specified in the Agreement's Exhibit A "at the times and locations reasonably requested by [Landry's]." Id., ¶ 6.

         Ecolab specifically agreed to provide pest elimination and pest control services at Landry's locations, including the Restaurant, in connection only with cockroaches (specifically defined as 'American, German, Oriental, Australian, Turkestan, Brown, and Smoky Brown cockroaches only"), rodents (specifically defined as "house mice, Norway rats and roof rats only"), ants (specifically defined as "all ants other than carpenter or other wood destroying insects, pharaoh, and fire"), and small flies (specifically defined as "red-eyed or dark-eyed fruit flies only"). Id., Exh. A at 2-3. Ecolab additionally offers such services in connection with large flies (specifically defined as "house, blow and bottle flies only"), birds, and termites, but Landry's declined to purchase Ecolab's large fly, bird, and termite pest elimination and pest control services. Id., Exh. A at 4-5. Ecolab further agreed to provide "Entry Point Protection" services at Landry's locations, including the Restaurant, in connection with the control of ants (as defined above) and cockroaches (as defined above) as well as "ground beetles, springtails, silverfish, crickets, centipedes, millipedes, sowbugs, pillbugs, and earwigs." Id., Exh. A at 3. Ecolab additionally offers "Air Quality" related ...


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