United States District Court, D. Oregon, Portland Division
Krueger Kymber Lattin, PAUL KRUEGER LAW FIRM, PC, Attorneys
Alexander Wylie Alejandra Torres, PREG O'DONNELL &
GILLETT, PLLC, Attorneys for Defendant Barton &
OPINION & ORDER
A. HERNÁNDEZ United States District Judge
Lourdes Ortega brings claims for negligence and negligence
per se against Defendants Gigi Pomerantz and Barton &
Associates, Inc. Defendant Barton & Associates moves for
a third time to dismiss this action under Federal Rule of
Civil Procedure 12(b)(6). For the reasons that follow, the Court
denies Defendant Barton & Associates' Motion to
Dismiss Plaintiff's Second Amended Complaint.
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. In the present case, Defendant contracted with One
Community Health of Hood River, Oregon, to provide locum
tenens health care providers to the health center.
Id. at Ex. 2.
Pomerantz, a resident of Wisconsin at the time the facts
underlying this action arose, id. at Ex. 1 ¶ 1,
contracted with Defendant to provide temporary medical
services at One Community Health 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.
alleges that Defendant had the right to control the means and
manner by which Defendant Pomerantz completed work on its
behalf. Second Am. Compl. (“SAC”) ¶ 7, ECF
18. In support of this assertion, Plaintiff contends that
Defendant had control over: (1) the specific details of jobs
completed on behalf of Defendant; (2) the manner in which
Defendant Pomerantz was paid; (3) the places she traveled 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. SAC ¶ 7. 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.
SAC ¶ 7. 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. SAC
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. SAC
¶¶ 8, 9. 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[.]” SAC ¶¶
5, 8. Specifically, Plaintiff alleges that she
“generally operated, behaved and acted within the time
and space dictated by [Defendant] as she was to begin working
the next morning, . . . and was required to travel from her
home in Wisconsin to appear at One Community Health to
fulfill her contract of employment with [Defendant].”
SAC ¶ 6(a). Defendant Pomerantz was allegedly traveling
to her lodging, gathering supplies, and familiarizing herself
with the location she was required to work for Defendant at
the time of the accident. SAC ¶ 6(b)-(c) (noting that
Defendant Pomerantz was required to travel to and from her
lodging-paid for by Defendant-in performing her services for
One Community Health). Plaintiff also alleges that Defendant
furnished and maintained her rental vehicle and lodging SAC
¶¶ 6(b), 8-9; see also Indresano Decl.
¶ 10 (admitting that Defendant had agreed to reimburse
Defendant Pomerantz for the expense of the rental car).
motion to dismiss under Federal Rule of Civil Procedure
12(b)(6) tests the sufficiency of the claims. Navarro v.
Block, 250 F.3d 729, 732 (9th Cir. 2001). “All
allegations of material fact are taken as true and construed
in the light most favorable to the nonmoving party.”
Am. Family Ass'n, Inc. v. City & Cnty. of
S.F., 277 F.3d 1114, 1120 (9th Cir. 2002). To survive a
motion to dismiss, a complaint “must contain sufficient
factual matter, accepted as true, to state a claim to relief
that is plausible on its face[, ]” meaning “the
plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable
for the misconduct alleged.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (internal quotation
marks omitted). In other words, a complaint must contain
“well-pleaded facts” that “permit the court
to infer more than the mere possibility of
misconduct[.]” Id. at 679.
the court need not accept conclusory allegations as truthful.
See Warren v. Fox Family Worldwide, Inc., 328 F.3d
1136, 1139 (9th Cir. 2003) (“[W]e are not required to
accept as true conclusory allegations which are contradicted
by documents referred to in the complaint, and we do not
necessarily assume the truth of legal conclusions merely
because they are cast in the form of factual
allegations.”) (internal quotation marks, citation, and
motion to dismiss under Rule 12(b)(6) will be granted if a
plaintiff alleges the “grounds” of his
“entitlement to relief” with nothing “more
than labels and conclusions, and a formulaic recitation of
the elements of a cause of action[.]” Bell Atl.
Corp. v. Twombly, 550 U.S. 544, 555 (2007).
“Factual allegations must be enough to raise a right to
relief above the speculative level on the assumption that ...