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Ortega v. Pomerantz

United States District Court, D. Oregon, Portland Division

December 11, 2018

GIGI POMERANTZ, an individual; and BARTON & ASSOCIATES, INC., a foreign corporation, Defendants.



          OPINION & ORDER


         Plaintiff Lourdes Ortega brings claims for negligence and negligence per se against Defendants Gigi Pomerantz and Barton & Associates, Inc. and a claim for negligent entrustment against Defendant Barton & Associates. Defendant Barton & Associates moves for a second time to dismiss this action under Federal Rule of Civil Procedure 12(b)(2) and 12(b)(6).[1] For the reasons that follow, the Court grants in part and denies in part Defendant Barton & Associates' Motion to Dismiss Plaintiff's First Amended Complaint.


         Defendant Barton & Associates (“Defendant”) is a “Delaware corporation with its principal place of business in Massachusetts.” Indresano Decl. ¶ 2, ECF 5. Defendant “identifies open locum tenens positions at medical facilities and then pairs the medical facilities with one or more health care providers, who may fill various temporary clinical roles based on individual medical facility and community needs.” Id. at ¶ 3. Defendant states that it does not own any property in Oregon or have any employees, offices, or assets in Oregon. Id. at ¶ 5. According to Defendant, less than 2% of Barton's total revenue comes from Oregon locum tenens clients, “[l]ess than 1% of providers in Barton's database indicate they reside in Oregon, ” “[l]ess than 2% of the medical facilities in Barton's database are located in Oregon, ” and “[o]nly 1.32% of the locum tenens assignments Barton has ever coordinated have been to medical facilities in Oregon.” Id. at ¶¶ 6-8. Defendant contends that “not even a single Barton employee entered the State of Oregon for business prior to the date of the accident in this case.” Id. at ¶ 9.

         Defendant contracted with One Community Health of Hood River, Oregon, to provide locum tenens-or temporary-health care providers to the health center. Id. at Ex. 2. Per the agreement, One Community Health would:

[R]eview and verify Ms. Pomerantz's credentials and background, participate in any risk management activities related to her services, set Ms. Pomerantz's work schedule, pay for all reasonable and necessary travel expenses, provide clinical and professional direction and oversight for Ms. Pomerantz, and comply with all applicable legal requirements regarding Ms. Pomerantz's services such as HIPAA, OSHA, Medicare and Medicaid, and industry guidelines.

Def. Mot. 5, ECF 4 (citing Indresano Decl. Ex. 2). Defendant agreed to “assist with pre- placement procedures such as drug testing and background checks and to provide malpractice insurance covering Ms. Pomerantz.” Id. at 6 (citing Indresano Decl. Ex 2. at 2). Defendant also provided weekly invoices to the health center based upon the weekly time sheets of its locum tenens providers. Indresano Decl. Ex. 2 ¶ 2.

         Defendant Pomerantz, a resident of Wisconsin at the time the facts underlying this action arose, id. at Ex. 1 ¶ 1, [2] contracted with Defendant to provide temporary health services as a Nurse Practitioner, id. at Ex. 1 at 9. The agreement with Defendant Pomerantz is titled “Independent Contractor Agreement” and states that “[n]othing in this Agreement shall in any way be construed to render IC an agent, employee or representative of Barton.” Id. at 3. Per the agreement, Defendant would reimburse Defendant Pomerantz for travel and lodging expenses while on assignment. Id. at 10 ¶ 5. The agreement also required Defendant Pomerantz to provide Defendant with a time sheet at the end of each week verified by the health center in order to receive payment. Id. at 9 ¶ 4. Defendant Pomerantz began her locum tenens service at the health center in Hood River, Oregon, on February 29, 2016. Id. at Ex. 3.

         Plaintiff alleges that Defendant had the right to control the means by which Defendant Pomerantz completed work on its behalf. First Am. Compl. ¶ 6, ECF 12. In support of this assertion, Plaintiff contends that Defendant had (1) control over the specific details of jobs completed on behalf of Defendant; (2) the manner the manner Defendant Pomerantz was paid; (3) the places she travelled to complete her work for Defendant; (4) when she would appear for an assignment; and (5) the kinds of tasks she would complete on behalf of Defendant. FAC ¶ 6. In addition, Defendant Pomerantz worked only for Defendant, did not maintain her own business, was vetted by Defendant to determine where she could work, and could not hire any additional individuals to assist her in completing her work. FAC ¶ 6. Defendant also bore the risk of loss for her work and was responsible for entering into the contracts with the entities where Defendant Pomerantz was working. FAC ¶ 6.

         On February 28, 2016, Defendant Pomerantz-while driving a car rented through Avis Rent A Car System, Inc.-collided with a vehicle operated by Plaintiff, a resident of Oregon. FAC ¶ 8. Plaintiff contends that Defendant Barton & Associates “rented and obtained” the rental car and “granted permission to and generally entrusted defendant Gigi Pomerantz with possession and control of the vehicle.” FAC ¶ 16; see also FAC ¶ 8 (alleging that either Defendant or Defendant Pomerantz-acting in the course and scope of her agency with Defendant-rented the car); Indresano Decl. ¶ 10 (admitting that Defendant had agreed to reimburse Defendant Pomerantz for the expense of the rental car). She also alleges that Defendant:

[K]new, or in the exercise of reasonable care, should have known, that Defendant Gigi Pomerantz, lacked the maturity, licenses, skills, or competency to safely operate the motor vehicle due to her unfamiliarity with the roads and location where she was driving, unfamiliarity with the specific vehicle she was operating, fatigue and general life circumstances defendant Pomerantz was experiencing around the date and time of the collision.

FAC ¶ 17. Accordingly, Defendant was negligent in failing to provide sufficient training or supervision to Defendant Pomerantz, whose duties included driving the rental car to reach her work location. FAC ¶ 18.

         Plaintiff alleges that the collision was caused by the negligence of Defendant Pomerantz while she was acting in the “course and scope of her agency/employment with Defendant[.]” FAC ¶¶ 5, 7. As a result of the accident, Plaintiff sustained physical injuries, including injuries to her back and knee, and ...

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