[00:00:05] Speaker 01: whenever you're ready. [00:00:06] Speaker 01: Good afternoon, and may it please the court. [00:00:09] Speaker 01: Nadia Dahab for plaintiff Arreola Caballero. [00:00:11] Speaker 01: This case, as the court is aware, is about the proper scope of a district court's review of its removal jurisdiction in the context of fraudulent jointer. [00:00:20] Speaker 01: In plaintiff's view, the district court ran afoul of this court's decision in grand care and its decision in Hunter by doing precisely what we read those cases to foreclose. [00:00:30] Speaker 01: Grand Care holds that if there is any possibility that the plaintiff states a claim against the resident defendant, then remand is required. [00:00:38] Speaker 03: So what's your strongest claim? [00:00:39] Speaker 03: What do you think is a callable claim in the complaint? [00:00:42] Speaker 01: I think the strongest claim that plaintiffs allege against the richest defendant, Your Honor, was the ELL claim, the employer liability law claim. [00:00:51] Speaker 01: That's a claim that Oregon law allows against owners, employers, both indirect and direct, [00:00:57] Speaker 01: and general contractors of a workplace or a place of employment that involves risk or danger and places a higher duty of care on those individuals. [00:01:08] Speaker 01: We allege that the Richards defendants in this case were owners of the premises on which this work was occurring. [00:01:15] Speaker 05: So you dispute the level of control that the Richards' had for purposes of liability under the ELL, but also the OSCA. [00:01:24] Speaker 05: What alleged facts support this? [00:01:26] Speaker 05: Can you point me to the first amended complaint in the record for the facts that you're relating on? [00:01:32] Speaker 01: Yeah, sure, Your Honor, absolutely. [00:01:35] Speaker 01: We allege at the outset of the complaint in paragraph one that the Richards' defendants were owners, of course, of the premises. [00:01:40] Speaker 00: In terms of control that they retained in paragraph 32 a which is an er 37 We alleged that they contracted with inexpensive tree care at all the relevant times and retained the right to control about how inexpensive you you you you allege you allege that The language is there, but I think judge Desai was asking about facts sure and as close as I can see the only facts relevant to your argument whether or not they're winners or losers put aside for a second or that the [00:02:10] Speaker 00: Richard zoned the property, number one. [00:02:14] Speaker 00: And number two, Mr. Richards was watching out of the window while the work was being done. [00:02:21] Speaker 00: Is there any other fact that's alleged in the complaint that you think would give rise to their liability? [00:02:27] Speaker 01: I think, you know, in terms of the allegation of Mr. Richards being present on the property, Your Honor, that's at paragraph 50, which is at ER 46. [00:02:35] Speaker 01: It's not just that he was watching out the window. [00:02:38] Speaker 01: I want to clarify that. [00:02:39] Speaker 01: It's that he was present on the day of the incident, that he was monitoring the progress of the work. [00:02:44] Speaker 00: I think that's a very different... By looking out the window. [00:02:47] Speaker 00: Do you have any allegation that he was there telling them how to do the work, instructing them, doing anything else? [00:02:54] Speaker 00: Your allegation in a complaint that, as you say, has more than 50 paragraphs, is that he was watching it being done out the window. [00:03:03] Speaker 01: Mean we alleged and with respect. [00:03:05] Speaker 01: I think that's that may be enough for your honor. [00:03:07] Speaker 01: We we alleged that you whether it's enough Yeah, I'm just asking you what what allegations there are other than those two sure sure the the monitoring allegation in the same paragraph There's an allegation that he's in a position to observe the conditions and the safety of what's happening on his property and then you know I think the the very the fact of you know [00:03:28] Speaker 01: The paragraph 32 at ER 37, we allege the right to control, but also say that he has the right to control the Mandarin method. [00:03:35] Speaker 01: And I think that that's an allegation of fact. [00:03:38] Speaker 00: That's a legal conclusion, isn't it? [00:03:40] Speaker 00: There doesn't seem to be any evidence. [00:03:42] Speaker 00: So he calls the tree service to come there, tells them to do what they do. [00:03:48] Speaker 00: The incident occurs by the breaking, I take it, of a winch or the defectiveness of a winch in some kind. [00:03:54] Speaker 00: And I'm trying to figure out how Mr. Richards [00:03:57] Speaker 00: is supposed to supervise the winch or supervise the way that stuff is being lifted onto something. [00:04:04] Speaker 00: Again, this may not be fatal to your case, but I'm just trying to figure out what facts are alleged that would lead me to plausibly conclude that. [00:04:14] Speaker 05: Counsel, isn't this precise? [00:04:16] Speaker 05: And I understand that there is a question pending, but I'm going to add on to Judge Hurwitz's question, because I think this discussion right here, in my view, [00:04:26] Speaker 05: precisely why the cases indicate that these allegations that are at least raising some question about whether or not there is control needs to go beyond this very early stage of litigation to determine. [00:04:41] Speaker 05: It may very well be true that at some point later in the case that a motion to dismiss or motion for summary judgment stage, it turns out that there isn't enough in the complaint by alleging even conclusively that there was control [00:04:54] Speaker 05: tell us, I mean I am interested in your conclusion as to why this is enough. [00:05:01] Speaker 01: Well, I think this is enough to state a colorable claim, right? [00:05:05] Speaker 01: Absolutely. [00:05:05] Speaker 01: That the Richards defendants possibly retained a right to control. [00:05:11] Speaker 01: And right to control is enough to make- Why? [00:05:14] Speaker 03: Why? [00:05:14] Speaker 03: Why is it enough? [00:05:16] Speaker 03: Is the bare allegation of the legal conclusion enough? [00:05:18] Speaker 03: That's what I'm trying to get at. [00:05:19] Speaker 03: I think that's what Judge Hurwitz is trying to get at. [00:05:21] Speaker 01: I mean, I think an allegation of the- Sorry, Judge Hurwitz. [00:05:24] Speaker 00: No, no. [00:05:25] Speaker 00: Let me just flesh out Judge Kristen's point. [00:05:29] Speaker 00: If there were a plausible allegation that they've contained the right to control, then it seems to me we would then have to get into a whole series of Oregon cases, which may or may not impose liability under those circumstances. [00:05:42] Speaker 00: And we'd be back to Judge Desai's point about how sure do we have to be. [00:05:47] Speaker 00: But I'm trying to find out some factual allegation in this complaint that would allow me to even plausibly [00:05:56] Speaker 00: conclude that they retain the right to control, and I just don't see one. [00:06:00] Speaker 00: So that's why I'm asking about that. [00:06:04] Speaker 01: Sure. [00:06:04] Speaker 01: And we view the allegation that the Richards defendants retain the right to control the Mandarin method as an allegation of fact, and it may be both a factual question and a legal conclusion. [00:06:17] Speaker 01: But then the fact that he is out there, that Mr. Richard was present on the day, was monitoring. [00:06:23] Speaker 01: I think that monitoring allegation is important. [00:06:25] Speaker 01: As to the question of control those facts are sufficient at least to give rise to a colourful claim and sort of highlight I think this whole discussion highlights Maybe this was your point judge decided that that that there's a there's enough allegations here and the district court having review having dismissed this claim Finally for lack of jurisdiction and as to the Richards defendants in whole without any discovery of [00:06:49] Speaker 01: without any opportunity to cross-examine the richest defendants on the facts that they allege in their declaration is precisely the context in which the district court should remand this case to the state court and let that question play out with the benefit of additional fact-finding or further factual development. [00:07:05] Speaker 02: What about the Royer case? [00:07:07] Speaker 01: The Royer case, I think, establishes the same thing, sort of the same principle with respect to the district court's conclusion that what plaintiff was doing on this property was yard work within the meaning of the householder exemption. [00:07:21] Speaker 01: The Royer case specifically, in my view, sort of demonstrates this need for factual development. [00:07:28] Speaker 01: That was a case where the Oregon Court of Appeals found, based on a fully developed factual record in front of an ALJ, [00:07:37] Speaker 01: in the context of workers' compensation, that what that plaintiff there was doing was yard work or was work that fell within the scope of the household or exemption because of, and it made clear in its opinion, that the location and the nature of the work was essential to that determination. [00:07:53] Speaker 01: And that court had a full factual record to make this determination that that was a non-commercial... I think that's right. [00:08:00] Speaker 03: And so that's why, and I just want to give you a chance to respond to this, this seems to me to be the [00:08:04] Speaker 03: There's a bandwidth of what kind of work that could mean, what could be encompassing in yard work. [00:08:11] Speaker 03: But these were really tall trees that have to be taken down. [00:08:15] Speaker 03: It's a very dangerous operation to have that done. [00:08:17] Speaker 03: It seems to me that it's a great example of what would be an independent contractor. [00:08:21] Speaker 03: Homeowners don't know how to do that. [00:08:23] Speaker 03: These other folks do. [00:08:25] Speaker 03: They have specialized equipment, specialized expertise, specialized knowledge. [00:08:29] Speaker 03: So that's why I'm concerned about the facts of your case and how they [00:08:33] Speaker 03: seems to me that the baked into the facts is a lack of control. [00:08:38] Speaker 01: And let me make, I want to sort of un-tease your question, Judge Christin, because I think the Royer case goes to the application of the householder exemption. [00:08:47] Speaker 03: I appreciate that. [00:08:48] Speaker 01: And not to the specialized contractor doctrine. [00:08:50] Speaker 03: I appreciate that. [00:08:51] Speaker 03: But I think this case law is very tough for you, and I don't hear you engaging in it. [00:08:57] Speaker 03: I mean, it's not enough. [00:08:58] Speaker 03: I mean, I'm just one. [00:08:59] Speaker 03: But to say that we've made the allegation of lack of control [00:09:03] Speaker 03: I'm looking for the factual record, assertion of fact. [00:09:08] Speaker 03: And that's why I'm going to these facts. [00:09:10] Speaker 03: Given the way, and this is uncontested, your complaint explains what they were doing there. [00:09:15] Speaker 03: That seems to cut sharply against you. [00:09:21] Speaker 01: I view our complaint as containing at least the bare minimum of what is required on the right to retain control, both factually and legally. [00:09:29] Speaker 01: At this juncture, the district court and this court are required to construe those factual allegations in plaintiff's favor and not resolve disputed facts as the district court did on this record. [00:09:41] Speaker 00: That's why I'm trying to focus on the factual allegations as opposed to just [00:09:47] Speaker 00: the conclusion that they retain control. [00:09:50] Speaker 00: And it seems to be the only factual allegations of retention of control seem to be that he was looking out the window when the work was being done. [00:09:58] Speaker 00: I know you include the word monitoring, but that can be done through the window too. [00:10:03] Speaker 00: No allegation that he ever came outside and discussed it with anybody. [00:10:07] Speaker 00: Nothing from Vermeer that says, yes, we were waiting for instructions from him about how to do this. [00:10:14] Speaker 00: The other side submitted declarations. [00:10:16] Speaker 00: I don't think you did. [00:10:17] Speaker 00: And so I'm trying to figure out what facts are alleged that would lead me to conclude that you've plausibly pled control. [00:10:26] Speaker 00: And that's why I keep asking about the factual allegations of the complaint. [00:10:30] Speaker 01: I mean, I think our main factual allegations, Judge Hurwitz, is in paragraph 40, and just as I think [00:10:35] Speaker 01: as easily as you can construe monitoring as looking out the window, you can construe it also, as I think the district court was required to do here, in plaintiff's favor, to be a closer connection between what's actually happening outside and... Well, see, I'm not construing it... I'm sorry, I'm not construing it to say he was looking out the window. [00:10:55] Speaker 00: That's what you allege. [00:10:57] Speaker 01: Well, no, we allege he was monitoring the work. [00:10:59] Speaker 01: And I think that's a more active role, I think, than somebody who's just watching out the window. [00:11:07] Speaker 00: Is monitoring the same as control? [00:11:09] Speaker 01: I think it is an aspect of control, absolutely. [00:11:13] Speaker 05: So can you explain to us how, in this particular case, if we were to make these determinations in the first instance on appeal as to whether or not these allegations, which do in fact, as you've indicated at paragraph 50, paragraph 40, [00:11:29] Speaker 05: At least have they may be general allegations, but broad allegations of control tell me how that is going to impact our case law on the issue of fraudulent jointer if we in this particular case I think do something that hasn't been done in previous cases, which is to [00:11:51] Speaker 05: evaluate the merits of these claims in the first instance on appeal. [00:11:56] Speaker 01: And I suppose I would respectfully disagree, Judge, to say that it would change, that you would be doing something that you haven't already done. [00:12:04] Speaker 01: In grand care, this court dealt with the question of whether this fraudulent jointer standard is the same as a did you plead sufficient facts on a rule 12 motion standard. [00:12:14] Speaker 01: And so those two standards are different. [00:12:16] Speaker 05: The any possibility standard means that you're not you're not evaluating the sufficiency of the allegations of the complaint You're saying is there any possibility under state law that this claim could go forward I guess maybe you're misunderstanding my question if in this case we go further and say sort of in the Opposite of that and we say we are now looking at these claims and determining that they're not going to survive and [00:12:40] Speaker 05: And they are not viable. [00:12:44] Speaker 05: Tell me how that will require us to move away from our prior cases that talk about what the standard is for fraud. [00:12:51] Speaker 01: Sure. [00:12:52] Speaker 01: OK, I'm sorry. [00:12:52] Speaker 01: I misunderstood your question. [00:12:54] Speaker 01: I think that's indirect contravention to grand care. [00:12:57] Speaker 01: I mean, I think grand care tells this court and district courts [00:13:00] Speaker 01: to look potentially beyond the factual allegations of the complaint. [00:13:04] Speaker 01: And is there any possibility? [00:13:05] Speaker 01: And if this court turns and says, no, we're going to look at the allegations of the complaint, we're going to do a deep dive into the merits, which is what we perceive the district court to have done here. [00:13:13] Speaker 01: That's what, in my view, Grand Care says that this court doesn't do. [00:13:20] Speaker 01: So it would be a departure from Grand Care. [00:13:21] Speaker 01: It would be a significant departure from Grand Care, in our view. [00:13:24] Speaker 03: If we go back to Royer, is there an allegation in your complaint about commercial use? [00:13:31] Speaker 01: There a commercial purpose that I don't know I would have to go get the complaint I don't know that there is a commercial purpose allegations specifically as to I mean there's there's a sort of the nature of the work allegations I'm looking at this is all premised upon a workplace and this is their private home right isn't armed these trees being taken out of a backyard [00:13:58] Speaker 03: Or maybe it's a front yard. [00:13:59] Speaker 01: What we know is that they live on this property and that they own the property. [00:14:02] Speaker 01: Yeah. [00:14:02] Speaker 01: I don't think there's any other allegations and certainly no evidence about what they do with other aspects of the property and whether that's non-commercial or commercial in nature. [00:14:10] Speaker 01: OK. [00:14:11] Speaker 00: Can I ask one more question about the last thing you said? [00:14:14] Speaker 00: Sure. [00:14:14] Speaker 00: I take it we agree that liability could not be imposed on the homeowners simply because they own the property, correct? [00:14:25] Speaker 00: Solely because they own the property correct yes, no other allegations of control supervision. [00:14:31] Speaker 00: I think that's right. [00:14:33] Speaker 02: Yes, okay If I might reserve my last oh, we'll put a couple minutes. [00:14:38] Speaker 03: Okay when you come back We took up a lot of you did I fully get your not really, but that's okay I think it was me that didn't articulate it very well You might want to take a peek though if you could if you've got a citation for me about where there's an allegation regarding commercial Purpose that would that would be great when you come back, please plan on two minutes for the clock [00:15:00] Speaker 04: May it please the court and counsel, my name is Sarah Copac for the respondent Vermeer Manufacturing. [00:15:05] Speaker 04: The fraudulent Joinger analysis in this case does not involve any close questions of state law, nor does it involve any factual disputes. [00:15:17] Speaker 04: As the district court recognized, plaintiff's own factual allegations confirm that plaintiff cannot state a viable claim against the sole resident defendant as a matter of well-established Oregon law. [00:15:32] Speaker 04: And that is because Oregon Long has recognized that homeowners are- That might be true. [00:15:37] Speaker 05: That might be true that you can move to dismiss these claims. [00:15:40] Speaker 05: and win early on in the case. [00:15:44] Speaker 05: But that is a different standard than the fraudulent joiner standard that we apply. [00:15:49] Speaker 04: The fraudulent joiner standard is different than the 12b6 standards. [00:15:53] Speaker 04: We don't disagree with that. [00:15:54] Speaker 04: That was made very clear in the Grand Care case. [00:15:57] Speaker 04: But the fraudulent joiner standard necessarily requires the district court to look at what are the facts that are alleged in the complaint [00:16:07] Speaker 04: and do they state viable claims? [00:16:09] Speaker 04: The difference with the 12 v 6 rule analysis in the fraudulent Joinder is the district court is looking at whether the claims fail as a matter of well established Oregon law. [00:16:21] Speaker 04: But it's not a close call. [00:16:22] Speaker 04: These are obvious failures to state a claim. [00:16:25] Speaker 05: Okay, so maybe you can point me to the cases that you are relying on [00:16:29] Speaker 05: to make the argument that it is well as I understand that there are cases that under the particular facts of those cases as decided may have resulted in a claim failing for a particular plaintiff. [00:16:41] Speaker 05: But where is there a case that says there can never be a claim made that a homeowner who is exercising control, I think as your friend on the other side argued a moment ago, there were at least these [00:16:55] Speaker 05: these general allegations of control, monitoring, et cetera, point me to a case that says under no circumstances can that state a claim? [00:17:04] Speaker 04: So I think we would disagree with the premise of Your Honor's question, which is that the allegations in this complaint are sufficient to state that the homeowner retained control. [00:17:17] Speaker 05: OK, let's just assume for a moment then that I think that there are at least some [00:17:22] Speaker 05: basic claims of control. [00:17:24] Speaker 05: The real question I'm asking you is to point me to a case that forecloses an argument under these particular, under the ELL and the OSEA. [00:17:33] Speaker 05: What case says you cannot allege some sort of monitoring and control to state a claim against the homeowner? [00:17:40] Speaker 04: So I think if a complaint alleged facts that a homeowner actually was exercising control and had expertise, for example, in this area, but was actually on-site monitoring, participating in the project, it could be a different case. [00:17:55] Speaker 04: But I think it's really critical to recognize that that's not this case. [00:17:58] Speaker 05: Do you agree that there isn't any case under Oregon law that states, generally, that there cannot be a viable claim, or you cannot even assert a claim against a homeowner property? [00:18:09] Speaker 05: You allege that there is monitoring control you agree with me. [00:18:12] Speaker 04: Well. [00:18:13] Speaker 04: I think under the specialized contractor Except it's rule that Oregon applies There is really three things that that matter one that the harm was the result involved you keep pivoting away from my question I'm asking you for a case that Forecloses this claim as generally as you're arguing and you're not giving me a case and and I think that's because there is no such yeah I [00:18:36] Speaker 04: Your Honor, I would agree. [00:18:37] Speaker 04: I think the control is a pivotal question. [00:18:39] Speaker 04: And our position here is that it is entirely lacking in this complaint. [00:18:44] Speaker 00: Let me follow up on Judge Desai's question. [00:18:48] Speaker 00: It seems to me that your position is there's plenty of Oregon case law that says in the absence of something more, merely hiring an independent contractor to do this kind of work that results in this kind of accident doesn't impose liability on the [00:19:06] Speaker 00: on the homeowner. [00:19:07] Speaker 00: And I don't think anybody disagrees as to that. [00:19:10] Speaker 00: So your real argument is, I take it, that there's no way to read this complaint as providing the basis for finding such control. [00:19:26] Speaker 00: That's right, Your Honor. [00:19:27] Speaker 00: The question is, no, there are no cases. [00:19:31] Speaker 04: There are no cases. [00:19:32] Speaker 00: And I guess I would... She's asking you to assume that control was properly alleged. [00:19:37] Speaker 00: And so the question for us, it seems to me, is at this stage of the litigation, when we only have a complaint to look at and a declaration by your side, how positive do we have to be that the plaintiff's lawyers couldn't have done a better job if they'd only understood what they were supposed to do? [00:19:56] Speaker 04: So I think there's two key things to recognize. [00:20:00] Speaker 04: First, going to the facts that are alleged in the complaint. [00:20:04] Speaker 04: Oregon law is very clear that the mere fact that a property owner is on site and is monitoring the work, that is not enough to establish control. [00:20:14] Speaker 00: What's your best case? [00:20:14] Speaker 00: Tell me what case stands for that. [00:20:15] Speaker 04: And the best case for that is the George versus Myers case. [00:20:18] Speaker 04: That was a case where the property owner was on site. [00:20:21] Speaker 04: He was in fact a general contractor. [00:20:24] Speaker 04: There was no dispute. [00:20:25] Speaker 04: The facts showed that he regularly checked in, monitored the work. [00:20:29] Speaker 04: But the court said he was not either an indirect employer for purposes of the ELL, nor was he subject to liability under the specialized contractor exception. [00:20:41] Speaker 04: And that is because it matched exactly the fact pattern here. [00:20:44] Speaker 04: What stage of the litigation was that determination made in that case? [00:20:48] Speaker 04: I want to say that it was at the summary judgment stage. [00:20:51] Speaker 04: That's correct. [00:20:52] Speaker 04: But what I think is important to recognize in this case is the court does have to look at what were the facts that were alleged in the complaint. [00:21:01] Speaker 05: I agree with you, but I guess my point in asking you about the stage of the litigation is that if this were a case where we were just deciding [00:21:08] Speaker 05: the claims on their merits, either a motion to dismiss or summary judgment, we would be in a different place. [00:21:15] Speaker 05: But we are needing to apply our case law that talks about this higher standard at the fraudulent jointer. [00:21:22] Speaker 05: And you're right, we have to look at the allegations because we have to determine whether there's not even a mere possibility of a claim being asserted. [00:21:31] Speaker 05: And I'm having trouble understanding how we do that at such an early stage given the heightened standard under our fraudulent Joinder cases. [00:21:39] Speaker 04: Thank you, Your Honor. [00:21:40] Speaker 04: So I think what's important here is that the plaintiffs had an opportunity to amend their complaint. [00:21:46] Speaker 04: This was not a case where the complaint was dismissed with prejudice. [00:21:50] Speaker 04: They had an opportunity to amend their complaint if they had additional facts that they could have alleged or they wanted to allege to show the right to control, to go beyond just this conclusory legal allegation that the Richards had a right to control when in fact the only factual allegations were that they hired the tree company [00:22:14] Speaker 04: Mr. Richards just happened to be home when the incident occurred, and he was looking out his window, even accepting the characterization that he was monitoring the work. [00:22:23] Speaker 04: Oregon laws clear that's enough. [00:22:25] Speaker 04: And the district court said, it's not enough for you to say right to control. [00:22:31] Speaker 04: Identify facts that show that. [00:22:33] Speaker 04: Your facts contradict that. [00:22:35] Speaker 03: You just said that's enough. [00:22:36] Speaker 03: You meant not enough. [00:22:38] Speaker 04: I'm sorry. [00:22:38] Speaker 04: Yes, that's not enough. [00:22:39] Speaker 03: Your position has to be looking out of the window. [00:22:41] Speaker 04: That's correct. [00:22:42] Speaker 04: I mean, but even if Oregon law is clear, just looking out the window monitoring work is not enough to establish the right to control. [00:22:50] Speaker 04: And George is your best case for that. [00:22:53] Speaker 04: And George is the best case. [00:22:54] Speaker 04: Yates is another case. [00:22:56] Speaker 04: Yates versus Polygon is another case where it was a general contractor. [00:23:00] Speaker 04: They had the right to monitor the project. [00:23:02] Speaker 04: But they did not have sufficient control. [00:23:04] Speaker 04: They did not have the specialized expertise, and they were relying on the expertise of the contractor they hired. [00:23:12] Speaker 04: And that's exactly the rule that Oregon applies. [00:23:16] Speaker 04: An average homeowner does not know and reasonably cannot be expected to know about the dangers of specialized equipment [00:23:25] Speaker 04: or what types of safety protocols should be applied in a particular project? [00:23:29] Speaker 03: That's the thing about this case that strikes me as somewhat different when we talk about what is the plausible allegation. [00:23:37] Speaker 03: And particularly because I think control is very important. [00:23:39] Speaker 03: I also think I'm hoping hopes rings eternal that we're going to talk about Royer at some point. [00:23:43] Speaker 02: Oh, yes. [00:23:44] Speaker 03: That's all right. [00:23:46] Speaker 03: But it seems to me that we do look at, I mean, Judge Desai's point is very well taken, and you've acknowledged that. [00:23:53] Speaker 03: It's a very different standard. [00:23:54] Speaker 03: So when we look at what is plausible allegation of control, it matters on my scorecard that we're talking about removing really tall trees. [00:24:02] Speaker 03: And it's specialized equipment and knowledge, and it's a very dangerous operation. [00:24:05] Speaker 03: But I don't know that the case law really tells me that so much as I think that just gets baked into the plausibility standard that we use. [00:24:14] Speaker 03: And I want you to correct me if I'm wrong. [00:24:17] Speaker 04: Well, I think you're right. [00:24:18] Speaker 04: I mean, I think the very purpose of the specialized contractor rule is the recognition that property owners or people who hire contractors to do work can't be expected to know the work. [00:24:29] Speaker 03: It's kind of a slippery slope. [00:24:30] Speaker 03: And it goes to Judge Desai's point, which is we're right at the very outset of the litigation. [00:24:34] Speaker 03: And we're going to view these facts in the light most favorable. [00:24:38] Speaker 03: And so this may be a particular fact pattern that strikes me as being on sort of one end of the spectrum because of the nature of the work. [00:24:46] Speaker 03: But I don't know that I've seen Oregon courts really factor that in very much. [00:24:50] Speaker 03: Anyway, I'm sorry. [00:24:52] Speaker 03: That wasn't really a question, unless you want to comment on that. [00:24:55] Speaker 03: But I'm really hoping you're going to talk about Royer so that I can figure out where to go. [00:25:01] Speaker 04: File that yeah, well the the Royer case is really on all fours It was a case where homeowners hired a tree removal company to remove large trees from the property was a rural property and They removed large trees and one of the arguments that the plaintiffs made in that case is exactly the argument that plaintiffs made here which is that [00:25:23] Speaker 04: This type of work is sort of industrial in nature, the removal of trees. [00:25:27] Speaker 04: In that case, they were removing trees and milling the lumber to use on the property. [00:25:32] Speaker 04: And the Oregon Court of Appeals said no. [00:25:34] Speaker 04: What matters is the nature of the work and its location, namely that it involves home maintenance. [00:25:40] Speaker 04: And removing trees is a very ordinary home maintenance task. [00:25:44] Speaker 04: Home owners often have to remove trees because they're diseased or [00:25:48] Speaker 04: or maybe dangerous. [00:25:49] Speaker 04: And so what matters is really the nature of the work and where it's set in a private home. [00:25:54] Speaker 03: You're confusing me because it's either extraordinary and dangerous or it's ordinary. [00:25:58] Speaker 04: Well, it's an ordinary task that's dangerous. [00:26:00] Speaker 04: So it's a dangerous task that homeowners commonly need to do. [00:26:05] Speaker 04: Common may be the better word. [00:26:06] Speaker 03: But what if I wanted to have something dangerous done like remove a beehive? [00:26:10] Speaker 03: But I said, I don't want you to, I condition this contract on, you can't use pesticides. [00:26:17] Speaker 03: I want to make sure that there aren't toxins introduced into my backyard. [00:26:21] Speaker 03: Would that be a different scenario? [00:26:22] Speaker 03: It'd be dangerous. [00:26:23] Speaker 03: There's special expertise to remove bees. [00:26:27] Speaker 04: I think it would be a different situation because it wouldn't be an example of where the homeowner is retaining a right to control the method and the manner. [00:26:35] Speaker 04: Here, all that is alleged is that the Richards [00:26:38] Speaker 04: retain control over the scope of the work. [00:26:40] Speaker 04: In other words, they define what work needed to be done. [00:26:43] Speaker 03: Well, is it OK? [00:26:44] Speaker 03: So let's talk about the scope of the work, because I think you do make that concession that they retain control over that. [00:26:51] Speaker 03: Was it was there more to that than saying these are the three or four trees you want taken out? [00:26:56] Speaker 04: That's the allegations in the complaint. [00:26:58] Speaker 04: And that's what's alleged in the declarations. [00:27:00] Speaker 04: I think it's really important to note that declarations don't contradict the allegations in the complaint. [00:27:05] Speaker 04: They merely reaffirm what's in the complaint, which is that the Richards hired ITC to remove the trees. [00:27:13] Speaker 04: ITC, by plaintiff's own allegations, supplied the equipment and directed plaintiff how to perform the work. [00:27:22] Speaker 04: And the only involvement of the Richards was hiring them, telling them what trees to remove, and being in the home and looking out the windows. [00:27:31] Speaker 03: One more hypothetical. [00:27:32] Speaker 03: Yeah. [00:27:35] Speaker 03: a precise gardener, and I hired somebody to come prune my prize lilacs or something. [00:27:43] Speaker 03: It just seems to be a continuum. [00:27:49] Speaker 03: where there would be more control, certainly, if somebody wanted to be able to say, no, you're only pruning. [00:27:53] Speaker 03: You're not taking them out. [00:27:54] Speaker 03: You can prune them, and I don't want you to do this or that. [00:27:56] Speaker 03: Or maybe I'd open the window and hollered out about how I want them to do their work. [00:28:02] Speaker 03: So in other words, in this particular complaint, I'm like, I think what Judge Hurwitz is saying is resonating with me. [00:28:11] Speaker 03: And I'm looking for, what were the allegations of control? [00:28:14] Speaker 03: And I think your rule may be a bit extreme. [00:28:19] Speaker 03: Maybe your point is you don't have the allegations here. [00:28:22] Speaker 03: Were all of these trees were taken out completely or to be taken out completely? [00:28:26] Speaker 03: Is that right? [00:28:26] Speaker 04: The trees were, the allegations and complaint and the allegation and what the declarations confirm is they hired them to remove four trees. [00:28:35] Speaker 04: ITC supplied the equipment and told the plaintiff how to perform the work and they did the work as directed by ITC. [00:28:43] Speaker 03: Okay, but it's not enough then to say that it's just [00:28:45] Speaker 05: Yard work because there's a lot of yard work and you would agree that some of the some of it would and some of would not fall within this exception right well, I think I think this clearly falls as a type of home maintenance project and actually is is that it's the that claims like of this nature are foreclosed by the ELL no ESA period right I mean I'm trying to figure out why you're not taking this case to the Oregon [00:29:12] Speaker 05: courts to make this determination so that you then do have a case that you can point to that says these kinds of claims are foreclosed. [00:29:19] Speaker 04: Well, I think the Oregon law is clear on that. [00:29:22] Speaker 04: Based on the allegations in these complaints, again, the George versus Meyer case is one. [00:29:27] Speaker 04: The Yates case is another. [00:29:28] Speaker 05: Well, those are cases that are decided based on the facts of those cases as opposed to sort of this broad legal pronouncement that I think you need to be able to show under our fraudulent jointer. [00:29:39] Speaker 05: So I guess what I'm saying is it's possible that there may be a decision out of the Oregon courts that sort of makes a broader legal, you know, pronouncement that under as a, you know, sort of basic tort law principles, you can't have this kind of liability for homeowners when they are hiring expert, you know, independent contractors to do the work. [00:30:00] Speaker 05: You may be able to achieve a ruling like that that would foreclose these kinds of claims, but there isn't one right now. [00:30:07] Speaker 04: And Your Honor, we would just strongly disagree with that. [00:30:10] Speaker 04: Oregon law is very clear that it has, since 1971, it has applied this specializer contractor rule. [00:30:18] Speaker 04: And when the only facts that are alleged is that the property owner happened to be present and observed the work, Oregon case law, existing case law, is very clear that that is enough. [00:30:29] Speaker 04: And the court cannot speculate [00:30:31] Speaker 04: that the plaintiff might be able to allege additional facts. [00:30:35] Speaker 04: There's no allegations. [00:30:36] Speaker 04: They had an opportunity to do so. [00:30:38] Speaker 05: So the cases that you're talking about where it's very clear you would say are George V. Myers and Yates? [00:30:44] Speaker 04: And Yates. [00:30:44] Speaker 04: Both of them are cases where they were general contractors. [00:30:47] Speaker 04: They were present. [00:30:48] Speaker 04: They monitored the work. [00:30:50] Speaker 04: And the Oregon courts are very clear. [00:30:51] Speaker 04: That is not enough to establish control. [00:30:54] Speaker 04: And so for this court to find that it's enough, you'd have to rely on [00:31:01] Speaker 04: this general allegation that Richards had a right to control. [00:31:05] Speaker 04: The only specific factual allegations are those in paragraph 50, which is that they hired them, they happened to be home, Mr. Richards happened to be home, and he looked out the window and monitored the work. [00:31:17] Speaker 04: Oregon law is very clear that that is not enough. [00:31:19] Speaker 04: And again, the plaintiffs had an opportunity to amend their complaint. [00:31:24] Speaker 04: If they had additional facts to allege about control, they had an opportunity to do that. [00:31:30] Speaker 04: The district court was required to look at what was actually alleged in the complaint and decide whether it stated a viable claim. [00:31:38] Speaker 04: And that's the same position that this court is in. [00:31:41] Speaker 00: Can I ask a procedural question? [00:31:42] Speaker 00: Oh, yes. [00:31:44] Speaker 00: And I know we're taking you over time. [00:31:46] Speaker 00: You said they had the opportunity to amend their complaint. [00:31:49] Speaker 00: And he said before the judge dismissed the claim without prejudice. [00:31:52] Speaker 00: But this was a remand motion, was it not? [00:31:56] Speaker 04: This was a remand motion, but they had an opportunity... How did that procedurally occur? [00:32:00] Speaker 00: Just tell me how the opportunity to amend procedurally occurred. [00:32:03] Speaker 04: My understanding is that the complaint was dismissed without prejudice. [00:32:08] Speaker 00: And rather than seek leave to amend... Well, the complaint wasn't dismissed without prejudice. [00:32:12] Speaker 00: It's in front of us. [00:32:14] Speaker 00: So I'm trying to figure out what? [00:32:16] Speaker 00: Defendants were dismissed. [00:32:18] Speaker 00: I'm so sorry. [00:32:19] Speaker 04: Yes, these defendants, the claims against these defendants were dismissed, but without prejudice. [00:32:24] Speaker 04: And rather than seek leave to amend, the plaintiff said no, presumably because they couldn't have alleged additional facts. [00:32:31] Speaker 00: That's all I needed to know. [00:32:32] Speaker 00: Thank you. [00:32:32] Speaker 04: Thank you, Your Honor. [00:32:40] Speaker 01: Briefly, Your Honor. [00:32:41] Speaker 01: I want to touch briefly on the state of Oregon law, specifically the question, the representations about the George case and the Yates case. [00:32:50] Speaker 01: The George case, I think, was on summary judgment after a fully developed factual record. [00:32:54] Speaker 01: And it's clear in that case, and it was clear based on the contract that was in evidence in that case and the other facts in that case, that the only right to control was as to the scope of work. [00:33:04] Speaker 01: We have alleged something different as to the manner and the method and facts supporting that so I think that is not clear obvious Oregon law that required dismissal of these claims here Yeats was also a case it was that was Remanded back to the trial court and is very was very favorable to the plaintiff in the sense that the defendant there was the general contractor and the owner and the supreme court remanded for determination on the right to control against that individual and [00:33:32] Speaker 01: after it had been, after the defendant had prevailed below. [00:33:36] Speaker 01: And so I don't think those cases either are clear, obvious Oregon law, settled state law that required dismissal here. [00:33:43] Speaker 00: Judge- Let's assume for a second that there had been no allegation here of him looking out the window and monitoring the work. [00:33:52] Speaker 00: And would this, would we then have Roger rejoin you? [00:33:57] Speaker 01: Would say that again, I'm sorry. [00:34:01] Speaker 00: As close as I can tell the factual allegations and whatever they are, but take those factual allegations out for a second. [00:34:07] Speaker 00: Let's just assume that the rest of the transaction is alleged as it is. [00:34:16] Speaker 00: Would it meet the higher standard for fraudulent joiner at that point? [00:34:19] Speaker 00: In other words, all you would allege is that they hired these people to do the work. [00:34:23] Speaker 00: They did the work and your client, the plaintiff got hurt. [00:34:26] Speaker 01: I think, Your Honor, with the right to control and right to control the manner and method as putting aside the monitoring. [00:34:33] Speaker 00: Now we're talking past each other. [00:34:36] Speaker 00: I'm asking you to assume that all you alleged in a complaint, a different complaint, not this one, is that they hired the people to do the work. [00:34:44] Speaker 00: They did the work. [00:34:45] Speaker 00: The winch broke. [00:34:45] Speaker 00: The guy got hurt. [00:34:48] Speaker 00: Would you agree that under Oregon law, it would be obvious that you had no claim against the homeowners? [00:34:54] Speaker 01: I think that is a much more difficult case, yes, Your Honor. [00:34:58] Speaker 00: I understand. [00:34:58] Speaker 01: That's why I asked you the question. [00:35:03] Speaker 01: The standard under grand care, or grand care makes clear to this court that the standard is not failure to state a claim under Rule 12. [00:35:10] Speaker 00: No, I understand all that. [00:35:11] Speaker 00: I'm taking, it's a higher standard. [00:35:13] Speaker 02: Yeah. [00:35:14] Speaker 00: I'm asking, I don't think you can duck this one. [00:35:16] Speaker 00: So let's assume you just have a complaint that says we had trees in the yard, we hired these guys to take them out, they took them out, and when they took them out, [00:35:24] Speaker 00: the winch broke and my client got hurt, and I want to impose liability on the homeowner. [00:35:32] Speaker 00: Would that be sufficient to keep your case in federal court under diversity? [00:35:38] Speaker 01: to keep the case in state court. [00:35:40] Speaker 00: Because the question, I'm asking that because it's only the Richards. [00:35:43] Speaker 01: Yeah, I guess I think if the standard is not rule 12, if the standard is not a pleading deficiency, then yeah, there is a possibility on that. [00:35:50] Speaker 01: But you're still not answering my question. [00:35:52] Speaker 01: No, I'm trying to. [00:35:53] Speaker 01: There's a possibility on that fact. [00:35:55] Speaker 00: Let me tell you, I'm asking it. [00:35:56] Speaker 00: We're trying to figure out, all the three of us, what more is needed at this stage of the litigation in order to the judge to make this conclusion. [00:36:05] Speaker 00: And it can't be that, well, maybe later on we'll come up with more facts or maybe later on we'll come up with a different theory. [00:36:13] Speaker 00: So I'm trying to strip the complaint to its bare minimum. [00:36:17] Speaker 00: The complaint just simply said, we hired the tree service. [00:36:21] Speaker 00: Nobody watched them. [00:36:23] Speaker 00: Nothing else happened except the accident. [00:36:25] Speaker 00: Wouldn't you agree that it would be obvious under Oregon law that there was no liability on the part of the tree, of the homeowners? [00:36:34] Speaker 05: I think potentially, yes. [00:36:36] Speaker 05: I hear you saying that if you had a complaint that just had count one, violation of the ELL, count two, violation of the OSEA, that there would be a closer question as to whether or not we could determine at this stage of the litigation that the defendants were fraudulently joined. [00:36:58] Speaker 05: It would be a closer question. [00:37:00] Speaker 05: I don't hear you conceding that we would, under those facts, still have a clear path to affirming. [00:37:08] Speaker 05: But that isn't this case. [00:37:10] Speaker 05: Correct. [00:37:11] Speaker 05: OK. [00:37:11] Speaker 05: So in addition to having count one, this is a violation of ELL, count two, this is a violation of SEA, you have allegations that at least we can all debate how clear or robust those are. [00:37:25] Speaker 05: But there is something more than just stating a claim or [00:37:30] Speaker 05: I shouldn't even say, you shouldn't use those words. [00:37:31] Speaker 05: It's a term of art. [00:37:33] Speaker 05: Writing violation of BLL. [00:37:36] Speaker 01: Correct. [00:37:37] Speaker 00: Yes. [00:37:38] Speaker 00: But let me stay with this, because I think Judge Desai identifies the point that we need to worry about. [00:37:43] Speaker 00: So I want to be clear about it. [00:37:45] Speaker 00: You do allege other things. [00:37:46] Speaker 00: They owned the house. [00:37:48] Speaker 00: They hired the people. [00:37:48] Speaker 00: I mean, those are all facts that are alleged. [00:37:51] Speaker 00: But you do agree that in the absence of something more, whether it's appropriately alleged here or not, whether you need something more, [00:38:00] Speaker 00: in the complaint, that's not enough to impose liability. [00:38:05] Speaker 00: Merely owning the house and hiring the contractor is not enough to impose liability. [00:38:12] Speaker 03: I agree with that. [00:38:13] Speaker 03: I want to ask about George. [00:38:14] Speaker 03: I want to ask about this question about George. [00:38:16] Speaker 03: I really don't see you grappling with this case. [00:38:19] Speaker 03: The defendant that's the general contractor, it says that he checked in almost daily to answer questions and ensure that the subcontractor was following his design plans as he was framing this house. [00:38:27] Speaker 03: I'm sure you're familiar with this case. [00:38:29] Speaker 03: And then they talk about the general retaining the scope of the work, only the scope of the work, and saying but the defendant wasn't controlling the method and manner in which the subcontractor completed the work. [00:38:42] Speaker 03: And the court said that's not enough. [00:38:45] Speaker 03: So I'm comparing that language with the allegations in your complaint. [00:38:49] Speaker 03: What am I missing? [00:38:50] Speaker 01: I mean, our allegations, we include allegations that the Richards defendants were controlling the method and manner. [00:38:57] Speaker 01: That is different from George. [00:38:58] Speaker 03: So apart from what you've mentioned, which is the assertion, in terms of facts, we don't have any other factual allegations to support that. [00:39:11] Speaker 01: The factual allegations are the monitoring and the presence on the property. [00:39:16] Speaker 03: I think that you've answered that question. [00:39:18] Speaker 03: So I'm not going to belabor it, but that's the case that's troubling me on that side. [00:39:21] Speaker 03: So now can you, since you're almost five minutes over your time, I just really would like to hear your response to Royer, because it strikes me as a case that is, I don't know if it's on all fours, but it's awfully close. [00:39:33] Speaker 01: So Royer, in our view, goes to the householder exemption, not the specialized contractor doctrine. [00:39:41] Speaker 01: And the Oregon Court of Appeals and Royer made clear that, on a very fact-heavy record in front of an ALJ, that the touchstone, and that's the word that the Court of Appeals uses of the exemption, is the location and nature of the work as fundamentally private or noncommercial. [00:40:01] Speaker 01: And to your question earlier, Judge. [00:40:02] Speaker 03: I had questions about where do you allege anything about whether this is private and noncommercial? [00:40:07] Speaker 03: Do you? [00:40:08] Speaker 03: Well, so. [00:40:12] Speaker 01: The there's no there's no allegation about commercial or non-commercial there's allegations about the nature of the work in our view This is not clearly private and non-commercial work. [00:40:25] Speaker 01: We've we've phrased because it is large-scale You know they're they're removing heavy hundred two hundred foot trees and [00:40:33] Speaker 01: And there's a large-scale operation here with heavy, dangerous, risk-producing equipment. [00:40:37] Speaker 03: It's unlike sort of gardening and yard work and the stuff that I was mentioning earlier. [00:40:41] Speaker 03: Exactly. [00:40:41] Speaker 03: So you put this in a different category because it requires heavy equipment? [00:40:45] Speaker 01: Yeah, because it is sort of different in kind. [00:40:48] Speaker 01: And because there's no, I mean, we're, again, this sort of goes to the posture at which we are sitting here today, which is the absence of a developed factual record. [00:40:57] Speaker 01: At this stage, we construe all these facts in plaintiff's favor. [00:41:01] Speaker 01: And it may be, and there's no allegations here, and there's no contrary statements from defendants about commercial aspects of this property. [00:41:07] Speaker 01: That may make this case or these facts very different from Royer, and we just don't know that at this stage. [00:41:12] Speaker 01: Did you have an opportunity to amend your complaint for a second time? [00:41:16] Speaker 01: So the court did dismiss, enter a judgment of dismissal without prejudice. [00:41:21] Speaker 01: We did not amend. [00:41:22] Speaker 03: Is that another way of saying yes? [00:41:24] Speaker 01: Yes. [00:41:24] Speaker 02: Is it a yes? [00:41:27] Speaker 02: Yes. [00:41:28] Speaker 02: Okay. [00:41:29] Speaker 05: Yes. [00:41:30] Speaker 05: I'm sorry, I don't understand what you're saying yes to. [00:41:34] Speaker 05: So my question is, [00:41:37] Speaker 05: Was there a request by the plaintiffs to amend their complaint a second time? [00:41:43] Speaker 05: No. [00:41:44] Speaker 01: No. [00:41:44] Speaker 01: The court dismissed without prejudice, but there was not a request to do that. [00:41:48] Speaker 05: Was there any discussion about giving the plaintiffs leave to amend their complaint before dismissing the claim against them? [00:41:54] Speaker 05: Not of which I am aware. [00:41:58] Speaker 03: So maybe I am mistaken. [00:42:00] Speaker 03: Are you telling us then you think that you did not have the opportunity to amend again? [00:42:04] Speaker 03: It was dismissed without prejudice. [00:42:06] Speaker 03: So I thought that you were baking in that you did have the opportunity. [00:42:10] Speaker 03: Maybe my assumption's wrong. [00:42:11] Speaker 01: I think it's a little unclear to me, Your Honor, frankly, because the district court made a jurisdictional determination and said that under its view of the record, there's no possibility of a viable state court claim here. [00:42:25] Speaker 00: But the district court said you didn't dismiss the state court claim with prejudice, and therefore you had the opportunity if you wanted to. [00:42:34] Speaker 00: to amend the complaint, I take it you decided not to, knowing you had that opportunity, but decided not to. [00:42:41] Speaker 01: Right. [00:42:41] Speaker 01: I mean, it's frankly difficult to do so in the face of a district court ruling saying there's no possibility of a viable state. [00:42:47] Speaker 00: No, no, no. [00:42:47] Speaker 00: You would have had to ask. [00:42:49] Speaker 00: I'm not asking why you decided it. [00:42:51] Speaker 00: I'm just asking you decided that for whatever reason you didn't want to amend the complaint, you'd rather come up and appeal. [00:42:59] Speaker 00: And that's fine. [00:43:00] Speaker 00: I just want to make sure that you weren't prevented the opportunity from amending. [00:43:04] Speaker 01: No, we were not. [00:43:07] Speaker 03: You are now eight and a half minutes over your time, so we're going to call it a day. [00:43:09] Speaker 01: Thank you, Your Honors. [00:43:10] Speaker 01: We would request that the court reverse. [00:43:12] Speaker 03: Thank you both for your arguments. [00:43:13] Speaker 03: We'll take that matter under advisement. [00:43:16] Speaker 03: Stand in recess, please. [00:43:17] Speaker 03: Thank you. [00:43:18] Speaker 03: All rise.