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Yates v. United States Environmental Protection Agency

United States District Court, D. Oregon, Eugene Division

November 9, 2018

KRISTINE K. YATES, Plaintiff,
v.
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

          Ann Aiken United States District Judge.

         Plaintiff 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[1] 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.

         BACKGROUND

         The 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.

         STANDARD OF REVIEW

         When 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, the-defendant-unlawfully-harmed-me accusation." 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, 2016).

         Pro 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 deficient pleadings.

         DISCUSSION

         All 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.

         I. Personal Jurisdiction

         Personal 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.

         A. General Jurisdiction

         A court 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 these defendants.

         B, Specifi ...


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