United States District Court, D. Oregon, Eugene Division
KRISTINE K. YATES, Plaintiff,
UNITED STATES ENVIRONMENTAL PROTECTION AGENGY; MARION COUNTY PLANNING DEPARTMENT; DICK ANDERSON CONSTRUCTION COMPANY; SILVERTON SOLAR, LLC; SILVERTON LAND CO., LLC; TLS CAPTIAL INC; CYPRESS CREEK RENEW ABLES, LLC; CYPRESS CREEK RENEWABLES DEVELOPMENT LLC; CYPRESS CREEK HOLDINGS, LLC; PINE GATE ENERGY CAPITAL, LLC; PINE GATE RENEWABLES, LLC; GORDON MOE; JUDY DUNN; NIKKI ANAS; ZOE GAMBLE HANES; JEROME O'BRIEN; BLUE OAK ENERGY; SAM LINES; PATRICK LETJ3ACK; and DOES 1-20, Defendants.
OPINION AND ORDER
Aiken United States District Judge.
Kristine Yates asserts that by permitting and constructing a
solar energy array on the property next to her home,
defendants have violated her rights. Plaintiff avers that she
did not receive notice prior to the construction of
the-array. She also alleges that, once construction began,
she experienced, and continues to experience, harms including
increased semi-track traffic by her house, "severe
ground vibrations" leading to windows rattling and walls
shaking throughout her home, and flooding. First Am. Compl.
¶ 122. There are several motions to dismiss pending
before the Court, and due to the substantial similarities
between the issues raised in these motions, the Court has
consolidated its consideration into a single Opinion and
Order. For the reasons set forth below, defendants' TLS
Capital Inc.; Patrick Leibach et al.; Cypress Creek Renewables,
LLC. et al.; Blue Oak Energy; and Gordon Moe and Judy
Dunn's Motions to Dismiss (docs. 68, 69, 77, 79,
81) are GRANTED and defendants' Pine Gate Energy Capital,
LLC, et al.'s Motion to Dismiss (doc. 82) is GRANTED IN
PART and DENIED IN PART.
Court has previously issued two Opinions and Orders that
address the factual underpinnings of this case. See Yates
v. U.S. Envtl. Prot. Agency, No. 6:17-cv-01819-AA, 2 (D.
Or. Jan. 2, 2018) (Opinion and Order granting leave to
proceed IFP) (doc: 5-1); Yates v. U.S. Envtl. Prot.
Agency, No. 6:17-cv-01819-AA, 2-3 (D. Or. April 30,
2018) (Opinion and Order) (doc. 56). The first Opinion
dismissed several of plaintiff s claims and defendants,
pointed out deficiencies in the original pleadings, and
granted leave to amend the complaint. Opinion and Order, Jan.
2018. Plaintiff filed an amended complaint (doc. 25). The
Court then issued a second Opinion dismissing more of
plaintiffs claims and defendants with prejudice after
concluding that further amendment would be futile. Opinion
and Order, April 2018 at 10-11. Many of the remaining
defendants have filed motions to dismiss for lack of personal
jurisdiction and for failure to state a claim upon which
relief can be granted.
evaluating a motion to dismiss, the court reviews the
complaint in the light most favorable to the plaintiff and
determines if it contains sufficient facts to
'"state a claim for relief that is plausible on
its face.'" Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009) (quoting Bell Atl Corp. v. Twbmbly,
550 U.S. 544, 570 (2007)). To be plausible on its face the
complaint must contain a "short and plain statement of
the claim showing that the pleader is entitled to
relief." Fed.R.Civ.P. 8(a)(2). The pleading standard
"does not require 'detailed factual
allegations,' but it demands more than an unadorned,
Ashcroft, 556 U.S. at 678 (quoting Bell Ad.
Corp., 550 U.S. at 555). The court need not accept iegal
assertions as true, and whiles'[t]he court
views the complaint liberally [it] will not supplant vague
and conciusory allegations." Commute v. Or. State
Univ., 2016 WL 4374945, *2 (D. Or. Aug. 11,
se litigants like this plaintiff are held to a less
stringent standard than attorneys. Haines v. Kerner,
404 U.S. 519, 520-21 (1972). Courts construe their pleadings
liberally and give them the benefit of the doubt. Id. Pro
se litigants are entitled to "notice of the
deficiencies in the complaint" and, if those
deficiencies can be cured, an opportunity to amend.
Karim-Panahi v. L.A. Police Dep't, 839 F.2d 621,
623 (9th Cir. 1988). However, "while the Court must
leniently construe pro se pleadings, Plaintiffs]
must still meet the federal pleading standards."
Hutchinson v. State, 2017 WL 5505572, *2 (D. Or.
Nov. 15, 2017). In this case, plaintiff has already amended
her complaint once after the court provided notice of
pending motions to dismiss assert that plaintiffs claims
should be dismissed for either lack of personal jurisdiction,
or failure to state a viable trespass or nuisance claim, or
both. I will consider each ground in turn.
jurisdiction is "the power of a court to enter judgment
against a specific defendant." Jack Friedenthal, et.
al., Civil Procedure Cases and Materials 71 (10th
ed. 2009). A court may exercise personal jurisdiction over a
defendant who is not present in that state only if the
defendant has had sufficient contact with the forum state
(where the court is located). Int'l Shoe Co. v.
Washington, 326 U.S. 310, 316 (1945). Oregon's long
aim statute allows a federal district court to exercise
personal jurisdiction over an out-of-state defendant to the
extent permitted by due process. L&A Designs, LLC v.
Xtreme ATVs, Inc., 860 F.Supp.2d 1196, 1198 (D. Or.
2012) (citing Gray & Co. v. Firstenberg Machinery
Co., 913 F.2d 758, 760 (9th Cir. 1990)). Due process
requires a court to consider whether the forum state may
exercise either general or specific personal jurisdiction
over each defendant. Id.
may exercise' general jurisdiction over an out-of-state
defendant if that defendant has continuous and systematic
contacts with the forum state such that it is essentially at
home in the forum and it could be expected to be haled into
court there, for actions unrelated to the contacts.
Daimler AG v. Bauman, 571 U.S. 117, 136 (2014). To
determine whether a nonresident defendant's contacts are
sufficiently continuous and systematic, a court considers the
"[I]ongevity, continuity, volume, economic impact,
physical presence, and integration into the state's
regulatory or economic markets" of the contacts.
Tuazon v. R.J. Reynolds Tobacco Co., 433 F.3d 1163,
1172 (9th Cir. 2006). The standard for general jurisdiction
is high, and it requires that the defendant's contacts in
the forum state "approximate physical presence."
Id. at 1169. Cypress Creek Renewables Development,
LLC; Cypress Creek Holdings, LLC; Pine Gate Energy Capital,
LLC; and Pine Gate Renewables Development, LLC are
corporations that contest personal jurisdiction in this case.
Their places of incorporation and principle places of
business are outside'of Oregon. Plaintiff has not alleged
that these corporations have any other connections with
Oregon besides the contested solar array, or that they are
integrated into the state's regulatory or economic
markets. Gordon Moe, Judy Dunn, Patrick Leibach, Nikki Anas,
Sam Lines, Jerome O'Brien, and Zoe Gamble Hanes are
individuals who contest personal jurisdiction in this case.
They each have out-of-state domiciles and no history of
visiting Oregon in connection with the solar array at issue.
None of these corporate or individual defendants have the
continuous and systematic contacts with Oregon necessary to
approximate physical presence here. Id. Therefore, I
conclude that this Court lacks general jurisdiction over