United States District Court, D. Oregon
SCOTT E. CLEMENT, Plaintiff,
ECOLAB, INC., and DOES I-V, Defendants.
OPINION AND ORDER
Honorable Paul Papak, United States District Judge.
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
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
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.
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).
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.
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
Clement's Allegations in Support of His
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
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.
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.
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.
Ecolab's Evidentiary Proffer
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.
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.
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