Opinion
2:21-cv-01865-HL
06-29-2022
DOUGLAS BROWN and PATRICIA BROWN, Plaintiffs, v. CATERPILLAR INC., a Foreign Corporation; JLG INDUSTRIES, INC., a Foreign Corporation; LANDOLL COMPANY LLC, a Foreign Limited Liability Company, Defendants.
FINDINGS AND RECOMMEDNATION
ANDREW HALLMAN, UNITED STATES MAGISTRATE JUDGE
Presently before this Court is Plaintiffs' Motion to Remand this case to the Multnomah County Circuit Court on the basis that this Court lacks diversity jurisdiction over this action. ECF 5. This Court heard oral argument on this motion on April 27, 2022. ECF 19. For the reasons explained below, Plaintiffs' motion should be GRANTED, and the case should be remanded to the Multnomah County Circuit Court.
BACKGROUND
On April 12, 2021, Plaintiffs Douglas Brown and Patricia Brown, who are Oregon residents, filed this action in Multnomah County Circuit Court against the Defendants in this federal action: foreign business entities Caterpillar Inc. (“Caterpillar”), JLG Industries, Inc. (“JLG”), and Landoll Company, LLC (“Landoll”)-as well as Mark Allan Meredith (“Meredith”), an Oregon citizen doing business as Meredith Construction. Compl. ¶ 1, ECF 11.
Plaintiffs also named Defendant Oshkosh Corporation in their complaint in state court, but that defendant was previously dismissed. Defs. Notice Removal 3, ECF 1.
Plaintiffs' claims stem from injuries that Plaintiff Douglas Brown (“Mr. Brown”) sustained when a Telehandler that he was operating slipped off a trailer ramp on June 20, 2019. Id. ¶ 15. At the time, Mr. Brown was employed by a company that rented the Telehandler to Meredith Construction for use at a construction site. Id. ¶¶ 2-4. Mr. Brown was tasked with retrieving the Telehandler from the construction site. Id. ¶ 5. When Mr. Brown arrived at the site, no one from Meredith Construction was present, and the gate to the property was locked, which prevented Mr. Brown from driving onto the property to load the Telehandler. Id. ¶ 9. Mr. Brown therefore had to park on a nearby road, drive the Telehandler off road, and load the Telehandler where his trailer was parked. Id. While he was loading the Telehandler, it slipped off the ramp with Mr. Brown inside the operator's cabin and rolled down an embankment, causing multiple serious injuries to Mr. Brown. Id. ¶¶ 14-16.
In this action, Mr. Brown brings claims for strict products liability and negligence against the manufacturers and sellers of the Telehandler and the trailer, which are the removing Defendants (“Removing Defendants”) in this action: Caterpillar, JLG, and Landoll. Id. ¶¶ 1-51. Mr. Brown also alleged one claim with four counts against Meredith, the Oregon citizen: Count one alleges that Meredith was negligent in multiple respects, which are discussed in detail below. Id. ¶¶ 52-59. Counts two and three allege violations of the Employers' Liability Law. Id. ¶¶ 6070. Count four alleges negligence per se for violations of Oregon's safe employment act. Id. ¶¶ 71-75. Finally, Plaintiff Patricia Brown brings claims for loss of consortium against all Defendants. Id. ¶¶ 76-78.
On September 9, 2021, Meredith filed a motion to dismiss for failure to state a claim in state court. Decl. Heather C. Beasley (“Beasley Decl.”) Ex. 11, ECF 6. Over Plaintiffs' opposition, see id. at Exs. 17-19, on December 22, 2022, the Honorable Benjamin Souede issued an order granting Meredith's motion. Id. at Ex. 20. With respect to the dismissal of the negligence allegations in count one, Judge Souede concluded that “the Complaint fails to set forth facts that would, if proven, establish that the harms Plaintiffs allege were foreseeable to [Meredith].” Id. at 1. The Judge also concluded, however, that “[i]t does not appear to the Court that attempts to amend Count One of the Third Claim for Relief (Negligence) would inevitably be futile” and dismissed count one without prejudice. Id. at 2. The remaining claims under Oregon's Employers' Liability Law and Oregon's Safe Employment Act were dismissed with prejudice, without leave to amend, on the grounds that there were not sufficient facts to allege that Meredith was Mr. Brown's employer. Id.
In response to Judge Souede's order, Plaintiffs prepared a First Amended Complaint pleading additional allegations supporting the negligence claims against Meredith and removing the claims that were dismissed with prejudice. Decl. J. Randolph Pickett (“Pickett Decl.”) Ex. 3, ECF 5-1. Plaintiffs were prepared to file the First Amended Complaint in Circuit Court on January 3, 2022. Id. ¶ 3.
The parties dispute whether, as a matter of Oregon state law, Judge Souede's order granted leave to file an amended complaint. For reasons discussed below, this Court concludes that the dispute is not relevant to the fraudulent joinder inquiry under federal law.
On December 29, 2021, however, Removing Defendants filed a notice of removal in this action on the grounds that there was complete diversity of citizenship between the parties and that the amount in controversy exceeded $75,000. Defs. Notice Removal ¶ 10, ECF 1. The petition for removal alleges that all Defendants consented to the removal. Id. ¶ 18. The petition did not identify Meredith as a defendant in the current action, and he is not presently a party to this proceeding. Id. ¶¶ 12-15. Instead, the petition alleges that Judge Souede's order dismissing Plaintiffs' claim against Meredith “create[ed] diversity.” Id. ¶3.
This Court is not convinced that Meredith was dismissed from the Circuit Court action. Judge Souede's order only addressed the counts against Meredith in claim three, and it was silent as to Plaintiff Patricia Brown's loss of consortium claims against all Defendants, which included Meredith, in claim four. Furthermore, a judgment of dismissal was not entered as to Meredith, which would have been required to fully resolve the claims against him. See Or. R. Civ. P. 67. Nevertheless, this Court concludes that it is not necessary to determine the status of Meredith in the state court proceedings to resolve the fraudulent joinder issue.
On February 25, 2022, Plaintiffs filed this Motion to Remand, asserting that this Court lacks diversity jurisdiction. Pl. Mot. Remand, ECF 5.
LEGAL STANDARDS
“A defendant may remove an action to federal court based on federal question jurisdiction or diversity jurisdiction.” Hunter v. Philip Morris USA, 582 F.3d 1039, 1042 (9th Cir. 2009) (citing 28 U.S.C. § 1441). However, “‘it is to be presumed that a cause lies outside the limited jurisdiction of the federal courts and the burden of establishing the contrary rests upon the party asserting jurisdiction.'” Abrego v. The Dow Chem. Co., 443 F.3d 676, 684 (9th Cir. 2006) (brackets omitted) (quoting Kokkonen v. Guardian Life Ins. Co. of Am., 511 U.S. 375, 377 (1994)).
This “‘strong presumption against removal jurisdiction means that the defendant always has the burden of establishing that removal is proper,' and that the [district] court resolves all ambiguity in favor of remand to state court.” Hunter, 582 F.3d at 1042 (quoting Gaus v. Miles, Inc., 980 F.2d 564, 566 (9th Cir.1992)). Accordingly, “[f]ederal jurisdiction must be rejected if there is any doubt as to the right of removal in the first instance.” Gaus, 980 F.2d at 566 (citing Libhart v. Santa Monica Dairy Co., 592 F.2d 1062, 1064 (9th Cir. 1979)). Relatedly, the Ninth Circuit has concluded that “doubtful question[s] of state law . . . should be tried in the state court and not determined in removal proceedings.” Smith v. S. Pac. Co., 187 F.2d 397, 402 (9th Cir. 1951).
DISCUSSION
In their motion, Plaintiffs assert that “[b]ecause (1) defendant Meredith is a resident of Oregon; (2) plaintiffs did not voluntarily dismiss their claims against defendant Meredith; and (3) plaintiffs were granted leave to replead their negligence claim against this local defendant, defendants have removed in error.” Pl. Mot. Remand 6. In response, Removing Defendants assert that there is “no dispute that the dismissal of each of Plaintiffs' three claims against Meredith was involuntary, but the inquiry does not end there because the fraudulent joinder exception applies.” Defs. Memo. Opp'n Pl.'s Mot. Remand 2, 6, ECF 9.
In subsequent briefing, and at least in part in response to this Court's inquiries, Plaintiffs also argued that the case should be remanded because Removing Defendants “failed to demonstrate diversity of the parties in their Notice of Removal” and “failed to attach” the Circuit Court's order with their notice of removal. Pl. Second Suppl. Br. 2, ECF 21. Even assuming that Plaintiffs' arguments are correct, those arguments concern “procedural requirements” that should have been included in a timely motion to remand. Corona-Contreras v. Gruel, 857 F.3d 1025, 1029 (9th Cir. 2017). Because those arguments were not raised until the second round of supplemental briefing, and given this Court's recommended disposition of the fraudulent joinder issue, those supplemental, untimely arguments should not be considered.
Defendant Landoll has not separately responded to the Motion to Remand. The remaining Removing Defendants have averred, however, that Defendant Landoll consents to the removal. Thus, the Court presumes that Defendant Landoll joins in the remaining Removing Defendants' arguments.
For two reasons, this Court concludes that the Removing Defendants have not met their heavy burden of demonstrating fraudulent joinder. First, Judge Souede's order, which found that amendment would not be futile, demonstrates that there is at least a possibility that Plaintiffs' complaint could be cured by amendment. Second, the allegations raised in Plaintiffs' proposed First Amended Complaint demonstrates that there is a possibility that Plaintiffs could state a claim for negligence against Meredith. Accordingly, Plaintiffs' Motion to Remand should be granted, and this case should be remanded to the Multnomah County Circuit Court.
I. Fraudulent Joinder Legal Standard
Defendants removed this action asserting the existence of diversity jurisdiction under 28 U.S.C. § 1332(a), which “requires complete diversity of citizenship” between the parties. Morris v. Princess Cruises, Inc., 236 F.3d 1061, 1067 (9th Cir. 2001). One exception to the requirement of complete diversity, however, is when a non-diverse defendant has been fraudulently joined for the purpose of defeating diversity jurisdiction. McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987). Fraudulent joinder does not necessarily involve “fraud” as the term is commonly understood; rather, “[f]raudulent joinder is a term of art.” Morris, 236 F.3d at 1067 (quoting McCabe v. General Foods Corp., 811 F.2d 1336, 1339 (9th Cir. 1987)). “There are two ways to establish fraudulent joinder: ‘(1) actual fraud in the pleading of jurisdictional facts, or (2) inability of the plaintiff to establish a cause of action against the non-diverse party in state court.'” Grancare, LLC v. Thrower, 889 F.3d 543, 548 (9th Cir. 2018) (quoting Hunter, 582 F.3d at 1044).
Removing Defendants rely on the second method of establishing fraudulent joinder. “Fraudulent joinder is established the second way if a defendant shows that an ‘individual[ ] joined in the action cannot be liable on any theory.'” Grancare, 889 F.3d at 548 (emphasis added) (quoting Ritchey v. Upjohn Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998)). The Ninth Circuit has “emphasized . . . that a [district] court must find that a defendant was properly joined and remand the case to state court if there is [even] a ‘possibility that a state court would find that the complaint states a cause of action against any of the [non-diverse] defendants.'” Id. at 549 (quoting Hunter, 582 F.3d at 1046); see also McCabe, 811 F.2d at 1339 (holding that fraudulent joinder is established when a plaintiff “fails to state a cause of action against a resident defendant, and the failure is obvious according to the settled rules of the state[.]”). The “relative stringency” of this “standard accords with the presumption against removal jurisdiction, under which [courts] ‘strictly construe the removal statute,' and reject federal jurisdiction ‘if there is any doubt as to the right of removal in the first instance.'” Id. (quoting Gaus, 980 F.2d at 566).
“A defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder bears a ‘heavy burden' since there is a ‘general presumption against [finding] fraudulent joinder.'” Grancare, 889 F.3d at 548 (quoting Hunter, 582 F.3d at 1046). While courts normally “look only to a plaintiff's pleadings to determine removability,” where fraudulent joinder is alleged, “[t]he defendant seeking removal to the federal court is entitled to present the facts showing the joinder to be fraudulent.” Ritchey, 139 F.3d at 1318 (internal quotation marks and citations omitted).
II. Fraudulent Joinder Based on Judge Souede's Prior Order
The parties disagree as to the legal effect of Judge Souede's order, which dismissed the first count of negligence against Meredith without prejudice, on the fraudulent joinder analysis. Plaintiffs argue that the Multnomah County Circuit Court's “reasoning directly forecloses [the fraudulent joinder] argument because [the Circuit Court] held that plaintiffs could reasonably replead their negligence claim against defendant Meredith, thereby finding defendant Meredith a proper party to this action.” Pl. Mot. Remand 10. Conversely, the Removing Defendants “rely on . . . the process culminating in Judge Souede's Order,” which demonstrated “that the joinder of Meredith in the case was fraudulent because no claim against it could stand based on Meredith's relationship to the case and the settled law.” Defs. Suppl. Memo. Opp'n Pls.' Mot. Remand 5-7, ECF 16.
Plaintiffs focus the fraudulent joinder inquiry exclusively on the negligence count that was dismissed without prejudice, and they do not address in any detail the remaining counts that were dismissed with prejudice. Accordingly, this Court will only address whether Meredith was fraudulently joined based on the negligence count, without any discussion of Plaintiffs' original claims under Oregon Employers' Liability Law or Oregon Safe Employment Act.
To begin, the Court must consider the legal effect of Judge's Souede's order granting Meredith's Motion to Dismiss now that the case has been removed. Where a case is removed, the district court “takes the case as it finds it” and “treats everything that occurred in the state court as if it had taken place in federal court.” Butner v. Neustadter, 324 F.2d 783, 785 (9th Cir. 1963). After removal, “federal rather than state law governs the future course of proceedings, notwithstanding state court orders issued prior to the removal.” Preaseau v. Prudential Ins. Co. of Am., 591 F.2d 74, 79 (9th Cir. 1979) (quoting Granny Goose Foods, Inc. v. Teamsters, 415 U.S. 423, 437 (1974)). Accordingly, this Court must give effect to prior state court decisions unless they are appropriately subject to reconsideration or further review under the applicable federal rules. See id. (holding that a “federal court, within its discretion and for ‘cogent' reasons, could grant summary judgment notwithstanding the earlier denial by the state court”); Butner, 324 F.2d at 785-86 (explaining that “default judgment should be treated as though it had been validly rendered in the federal proceeding” and can be set aside pursuant to the Federal rules).
Other federal circuits have specifically considered whether a state court decision issued before removal can be dispositive of the fraudulent joinder analysis, with differing results. Compare Insinga v. LaBella, 845 F.2d 249, 254 (11th Cir. 1988) (relying on a prior state court decision to conclude that a defendant was fraudulently joined), with Poulos v. Naas Foods, Inc., 959 F.2d 69, 73 (7th Cir. 1992) (“[A] federal court considering fraudulent joinder in a case where the state court has come to judgment is not bound by the state court's decision.”). In Poulos, the Seventh Circuit noted that this “potential problem with res judicata can be avoided by careful compliance with the time limits in section 1446(b).” Id. at 73 n.4. Indeed, “[b]ecause fraudulent joinder will typically be apparent on the face of the complaint, in most cases a defendant should be able to ascertain any fraudulent joinder issue within thirty days following service.” Selman v. Pfizer, Inc., No. 11-CV-1400-HU, 2011 WL 6655354, at *4 (D. Or. Dec. 16, 2011). In this case, however, Removing Defendants assert that their notice of removal was timely, see Defs. Memo. Opp'n Pl.'s Mot. Remand 14-16, and Plaintiffs do not challenge that assertion. In addition, this Court cannot sua sponte consider the timeliness of the removal. See Corona-Contreras, 857 F.3d at 1029.
For these reasons, this Court examines the Circuit Court's order granting Meredith's Motion to Dismiss as if it had taken place in this Court. In dismissing Meredith's claims without prejudice, the Circuit Court concluded that the Complaint did not state a claim for negligence against Meredith, which would be the equivalent of this Court granting a motion to dismiss under Fed. R. Civ. P 12(b)(6). But, contrary to Removing Defendants' suggestion, “the fraudulent inquiry does not end there.” Grancare, 889 F.3d at 550.
The Circuit Court also concluded that “[i]t does not appear to the Count that attempts to amend . . . would inevitably be futile[.]” Pl. Ex. 2 (emphasis added). Both the Oregon Supreme Court and the Ninth Circuit have concluded that a “nonfutile claim must be one that ‘could . . . prevail on the merits[.]'” Eklof v. Persson, 369 Or. 531, 543 (2022) (quoting Smith v. Commanding Officer, Air Force Accounting, 555 F.2d 234, 235 (9th Cir. 1977)). Thus, in dismissing Plaintiffs' negligence claims against Meredith, the Circuit Court necessarily found that it was at least possible that Plaintiffs could amend their complaint to state a claim that could prevail on the merits.
This finding, standing alone, is sufficient to reject the Removing Defendants' assertion of fraudulent joinder. This Court must remand the case to state court if there is a possibility that a state court would find that the Complaint states a cause of action against Meredith. See Grancare, 889 F.3d at 549. Because the Circuit Court has already concluded that such a possibility exists, and because this Court must give effect to that decision, it necessarily follows that the Removing Defendants cannot demonstrate fraudulent joinder. Accordingly, this case should be remanded to the state court.
III. Fraudulent Joinder Based on Plaintiffs' Proposed Amended Complaint.
Even if Judge Souede's Order was not dispositive, this Court concludes that Removing Defendants cannot meet their heavy burden of establishing fraudulent joinder based on the allegations raised in the proposed amended complaint.
A. Plaintiffs' Proposed Amended Complaint
As an initial matter, this Court must resolve the parties' dispute as to whether this Court should consider Plaintiffs' proposed amended complaint, which was not filed in Circuit Court or this Court, in performing the fraudulent joinder analysis. See Pl. Mot. Remand 6; Defs. Memo. Opp'n Pl.'s Mot. Remand 6-10; Pls.' Reply 4, ECF 12. The parties focus their analysis on the state and federal procedural rules governing amendments to pleadings and dispute whether Plaintiffs should have sought leave to file their proposed amended complaint in either in Circuit Court or in this Court. Id. Neither party cites the Ninth Circuit's decision in Grancare, however, which controls how this Court must evaluate the allegations in Plaintiffs' unfiled proposed amended complaint.
In Grancare, the Ninth Circuit distinguished the Rule 12(b)(6) inquiry from the fraudulent joinder analysis and concluded that even if an initial complaint cannot withstand a Rule 12(b)(6) motion, “the district court must consider whether a deficiency in the complaint can possibly be cured by granting the plaintiff leave to amend.” Grancare, 889 F.3d at 550 (9th Cir. 2018) (emphasis added). Contrary to Removing Defendants' suggestion, there is no requirement that the party seeking remand submit a proposed amended complaint, much less have that complaint accepted by the Court. All that is required is a showing of some possibility that the amendment could cure the deficiencies. See, e.g., Williams v. Volkswagen Grp. of Am., Inc., No. 121CV00275JLTEPG, 2022 WL 538970, at *4 (E.D. Cal. Feb. 23, 2022); Miranda v. FCA US, LLC, 497 F.Supp.3d 880, 884 (E.D. Cal. 2020). Moreover, this Court's analysis is not limited to the pleadings, and it can consider evidence that the parties submit that is relevant to the fraudulent joinder analysis. See Ritchey, 139 F.3d at 1318. Therefore, this Court is required to consider whether there is any possibility that the allegations in Plaintiffs' proposed amended complaint could state a claim for negligence under Oregon law.
Removing Defendants further assert that, under Kruso v. Int'l Tel. & Tel. Corp., 872 F.2d 1416, 1426 n.12 (9th Cir. 1989), this Court “would be within its authority not to consider Plaintiffs' draft Amended Complaint at all.” Defs. Memo. Opp'n Pl.'s Mot. Remand 8-9. Before Grancare, federal district courts appear to be split as to whether, based on Kruso, the fraudulent joinder analysis must account for whether the plaintiff would be denied leave to amend. See Madayag v. McLane/Suneast, Inc., No. 1:16-CV-1082 AWI SAB, 2017 WL 30014, at *3 (E.D. Cal. Jan. 3, 2017) (collecting cases). However, Grancare has squarely addressed this issue and concluded that a district court must consider whether claims can be cured by amendment.
B. Negligence Under Oregon Law
Under Oregon law, when the parties do not enjoy a traditional duty relationship, the issue of liability “properly depends on whether [the defendant's] conduct unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the plaintiff.” Fazzolari By & Through Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 10 (1987). In determining whether harm was foreseeable, Oregon courts consider “whether plaintiffs' injuries were within the type of potential harms that made defendant's conduct unreasonable and whether plaintiffs were within a reasonably foreseeable class of injured persons.” Chapman v. Mayfield, 358 Or. 196, 206 (2015) (citing Towe v. Sacagawea, Inc., 357 Or. 74, 86 (2015); Fazzolari, 303 Or. at 17).
Oregon courts view the defendants' “‘conduct through the lens of the circumstances of the case,' necessarily from the standpoint of what defendants knew or should have known about the risks of harm at the time it engaged in the alleged negligent conduct.” F. T. v. W. Linn-Wilsonville Sch. Dist., 318 Or.App. 692, 701 (2022) (quoting Jennewein v. MCIMetro Access Transmission Services, 308 Or.App. 396, 400 (2021)). Foreseeability in negligence cases involves “(1) a factual assessment of whether the thing that happened could have been predicted or anticipated, and, if so, (2) a value judgment about whether that thing could and should have been prevented by altering the conduct on which the factual prediction of harm was made.” F. T., 318 Or.App. at 701 (citing Piazza, 360 Or. at 70 n.6).
“That ‘blended factual and normative' assessment is ‘value-laden' and, because of that, [Oregon courts] generally commit the question of foreseeability to the jury.” F. T., 318 Or.App. at 701. Recently, the Oregon Court of Appeals stated:
[L]egal liability for negligent acts is not without limits, and . . . the foreseeability determination is not untethered to principle. If the plaintiff's injury arose from a
concatenation of highly unusual circumstances, or an extended sequence of improbable chance occurrences, then we would deem the resulting harm unforeseeable as a matter of law. In cases where the foreseeability of the outcome based upon a defendant's conduct is at the outer margins, the trial court fulfills its role as gatekeeper by removing the issue from the jury's consideration. The question is whether a reasonable person considering the potential harms that might result from his or her conduct would “have reasonably expected the injury to occur.”Id. (cleaned up).
C. Application to Plaintiffs' Claims in the Proposed Amended Complaint
In asserting that it was foreseeable that Meredith's conduct could have caused the harm that Mr. Brown ultimately suffered, Plaintiffs assert the following: (1) “It is general practice within the construction industry to leave rental equipment in the same location where it was originally delivered, and in a condition that is ready to be picked up”; (2) Meredith knew that “attempting to load heavy machinery onto an equipment trailer on a main road creates foreseeable risks of harm,” which Plaintiffs further detail in the First Amended Complaint; (3) despite this knowledge, Meredith did not provide adequate access to the property so that Mr. Brown could load the telehandler or discuss the safety issues the safety issues with Mr. Brown before he retrieved the telehandler. Pls. Mot. Remand Ex. 3 (“Proposed FAC”) ¶ 56, ECF 5-3. Plaintiffs then assert that Meredith was negligent in several respects, including by his failure to provide adequate access to a safe location to retrieve the telehandler. Id. ¶ 58.
This Court concludes that there is at least a possibility that those allegations could state a claim for negligence against Meredith. Based on those allegations, this Court cannot conclude, as a matter of law, that “plaintiff's injury arose from a concatenation of highly unusual circumstances, or an extended sequence of improbable chance occurrences[.]” F. T., 318 Or.App. at 701. Nor can this Court conclude that Meredith's conduct is at the “outer margins,” Id., particularly given Plaintiffs' allegation that Meredith's conduct was contrary to the “general practice within the construction industry.” Proposed FAC ¶ 56. To the contrary, a reasonable juror could conclude, based on Plaintiffs' allegations, that Mr. Brown's injury would have been expected to occur given Meredith's alleged negligence in this case.
Removing Defendants also assert that the new allegations in Plaintiffs' proposed First Amended Complaint are insufficient to alter Judge Souede's prior conclusion that the injury was not foreseeable. Defs.' Second Suppl. Br. 6, ECF 20. This Court disagrees. To be sure, Plaintiffs' original complaint failed to allege particular facts that would demonstrate why it was foreseeable that Meredith's conduct on the work site could have caused the accident. But Plaintiffs' proposed amended complaint remedied those defects by including the new allegations discussed above. In particular, Plaintiffs allege why it was foreseeable that Meredith's failure to provide a safe location for loading the Telehandler would have caused the accident to occur. See Proposed FAC ¶¶ 7, 56, 58. These allegations describe “defendant's conduct through the lens of the particular factual circumstances of the case-with emphasis on what the defendant knew or should have known about the risk of harm to a particular class of plaintiffs[.]” See Chapman, 358 Or. at 208.
Removing Defendants also argue that Mr. Brown's injury was not foreseeable because it occurred off the property where Meredith was working. Defs.' Second Suppl. Br. 6-10. This Court agrees with Plaintiffs that Stewart v. Jefferson Plywood Co., 255 Or. 603 (1970) forecloses the general argument that Removing Defendants make. See Defs.' Second Suppl. Br. 10. In Stewart,
the plaintiff volunteered to assist in putting out a fire that the defendant had started at one plant and that then had spread to an adjacent warehouse. The plaintiff and others were hoisted to the roof of the warehouse by a forklift. In attempting to put out the fire, plaintiff fell through a covered skylight.Piazza, 360 Or. 58, 74 (describing Stewart). The Court in Stewart rejected the defendants' argument that the harm was not foreseeable because the plaintiff “voluntarily went on the premises over which the defendant had no custody or control” and instead focused on whether the harm was reasonably foreseeable. See Stewart, 255 Or. at 611-12. The same analysis applies here: there is no bright line rule that forecloses liability if the injury occurred on a property that the defendant had no control over. At the very least, no such rule is “obvious according to the settled rules” of Oregon law. See McCabe, 811 F.2d at 1339.
For these reasons, this Court concludes that the allegations in Plaintiffs' proposed First Amended Complaint could possibly cure the deficiencies in the original complaint, which is all that Plaintiff must demonstrate to overcome Removing Defendants' assertion of fraudulent joinder. See Grancare, 889 F.3d at 550.
RECOMMENDATION
Plaintiffs' Motion to Remand, ECF 5, should be GRANTED, and the case should be remanded to the Multnomah County Circuit Court.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any, are due fourteen (14) days from service of the Findings and Recommendation. If no objections are filed, then the Findings and Recommendation will go under advisement on that date.
A party's failure to timely file objections to any of these findings will be considered a waiver of that party's right to de novo consideration of the factual issues addressed herein and will constitute a waiver of the party's right to review of the findings of fact in any order or judgment entered by a district judge. These Findings and Recommendation are not immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1) of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.