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Ortega v. Pomerantz

United States District Court, D. Oregon, Portland Division

May 29, 2019

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

          Paul Krueger Kymber Lattin, PAUL KRUEGER LAW FIRM, PC, Attorneys for Plaintiff

          Alexander Wylie Alejandra Torres, PREG O'DONNELL & GILLETT, PLLC, Attorneys for Defendant Barton & Associates.

          OPINION & ORDER

          MARCO A. HERNÁNDEZ United States District Judge

         Plaintiff 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).[1] For the reasons that follow, the Court denies Defendant Barton & Associates' Motion to Dismiss Plaintiff's Second 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. 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.

         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 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.

         Plaintiff 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 ¶ 7.

         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. 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).


         A 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.

         However, 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 alterations omitted).

         A 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 ...

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