DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 1

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

John Spencer Stewart, OSB #711648

jstewart@lawssl.com

Tyler J. Storti, OSB #034695

tstorti@lawssl.com

STEWART SOKOL & LARKIN LLC

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

Telephone: (503) 221-0699

Facsimile: (503) 223-5706

Attorneys for Defendant Moore Excavation Inc., d.b.a. MEI Group

UNITED STATES DISTRICT COURT

DISTRICT OF OREGON

PORTLAND DIVISION

LR 7.1 CERTIFICATION

The attorneys for Defendant Moore Excavation Inc. (“MEI”) certify that they 

conferred in good faith with opposing counsel and were unable to resolve the issues 

presented in this Motion.

MOTIONS

Pursuant to Fed. R. Civ. P. 12(b)(6), MEI moves the Court for an order 

dismissing with prejudice the claims asserted in Plaintiff’s Complaint (Doc. 1), because 

Plaintiff’s Complaint fails to state a claim upon which relief can be granted.

In the alternative, MEI moves the Court for an order under Fed. R. Civ. P. 12(e) 

requiring Plaintiff to amend his Complaint to provide a more definite statement of the 

DEAN WESSELS,

Plaintiff,

vs.

MOORE EXCAVATION INC., d.b.a. MEI 

GROUP,

Defendant.

Case No. 3:14-cv-01329-HZ

DEFENDANT MOORE EXCAVATION, 

INC.’S MOTION TO DISMISS 

COMPLAINT OR, IN THE 

ALTERNATIVE, TO MAKE MORE 

DEFINITE AND CERTAIN

 Pursuant to Fed. R. Civ. P. 12(b)(6), (e) 

REQUEST FOR ORAL ARGUMENT

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 1 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 2

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

allegations Plaintiff contends provide any basis for relief against MEI. Without such 

amendments, the specifics of which are set forth in the below Memorandum supporting 

this Motion, Plaintiff’s Complaint is too vague, ambiguous and indefinite to allow MEI to 

ascertain the nature of the claims against it and to file a responsive pleading.

These Motions are supported by the Memorandum below, and the pleadings and 

file herein.

STANDARDS

A. Motion To Dismiss Standard

Fed. R. Civ. P. 12(b)(6) requires dismissal where a complaint fails to state a 

claim upon which relief can be granted. To survive a motion to dismiss, a complaint 

must contain “factual allegations” sufficient to “raise a right to relief above the 

speculative level.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555, 127 S. Ct. 1955

(2007) (emphasis added). “The pleading must contain something more... than... a 

statement of facts that merely creates a suspicion [of] a legally cognizable right of 

action.” Id. (citation omitted). Rather, “for a complaint to survive a motion to dismiss, 

the non-conclusory ‘factual content,’ and reasonable inferences from that content, must 

be plausibly suggestive of a claim entitling the plaintiff to relief.” Moss v. U.S. Secret 

Serv., 572 F.3d 962, 969 (9th Cir. 2009) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 

S. Ct. 1937, 173 L. Ed. 2d 868 (2009)). Importantly, “[c]onclusory allegations of law and 

unwarranted inferences are not sufficient to defeat a motion to dismiss.” Associated 

Gen. Contractors of Am. v. Metro. Water Dist. of So. Cal., 159 F.3d 1178, 1181 (9th Cir. 

1998); see also Hogan v. NW Trust Services, Inc., No. 10-6028-HO, 2010 U.S. Dist. 

LEXIS 45597, at *12 (D. Or. May 7, 2010) (“court is ‘free to ignore legal conclusions, 

unsupported conclusions, unwarranted inferences and sweeping legal conclusions cast 

in the form of factual allegations.’”) (citations omitted).

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 2 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 3

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

“A pleading that offers labels and conclusions or a formulaic recitation of 

the elements of a cause of action will not do . . . . Nor does a complaint suffice if 

it tenders naked assertions devoid of further factual enhancement.” Iqbal, 129 S. 

Ct. at 1949 (citations and internal quotations omitted, emphasis added).

B. Motion for More Definite Statement Standard

Under Fed. R. Civ. P. 12(e), “[a] party may move for a more definite statement of 

a pleading to which a responsive pleading is allowed but which is so vague or 

ambiguous that the party cannot reasonably prepare a response.” While this motion 

must be considered in the light of the liberal pleading standards of Rule 8(a), relief may 

be granted where “the complaint is so indefinite that the defendants cannot ascertain 

the nature of the claims being asserted and ‘literally cannot frame a responsive 

pleading.’” Hubbs v. County of San Bernardino, 538 F. Supp. 2d 1254, 1262 (C.D. Cal. 

2007)(citation omitted), adopted by, 538 F. Supp. 2d 1254, 1259 (C.D. Cal. 2008).

MEMORANDUM

A. The Court Should Dismiss Plaintiff’s Claims For Relief, Because They Fail 

to State a Claim of Disability Discrimination Upon Which Relief Can Be 

Granted.

Plaintiff’s Complaint alleges two claims for relief, one for unlawful employment 

practices on the basis of disability under Title I of the Americans with Disabilities Act of 

1990, 42 U.S.C. §§ 12101-12213 (“ADA”), and the second for the state law equivalent 

under ORS Chapter 659A. “The standard for establishing a prima facie case of 

discrimination under Oregon law is identical to that used in federal law,” so this Motion 

addresses both federal and state claims together. Snead v. Metro. Prop. & Cas. Ins. 

Co., 237 F.3d 1080, 1087 (9th Cir. 2001).

In order to establish a prima facie case of disability discrimination, “a plaintiff 

must show that he: (1) is disabled or perceived as such; (2) is a qualified individual, 

meaning he is capable of performing the essential functions of the job; and (3) suffered 

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DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 4

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

an adverse employment action because of his disability.” Shepard v. City of Portland, 

829 F. Supp.2d 940, 963 (D. Or. 2011); see also Nunes v. Wal-Mart Stores, Inc., 164 

F.3d 1243, 1246 (9th Cir. 1999); 42 U.S.C. §§ 12111-12112. Plaintiff’s Complaint fails to 

allege facts to support any of these three elements, and instead offers merely 

conclusions, “a formulaic recitation of the elements” and “naked assertions devoid of 

further factual enhancement.” Iqbal, 129 S. Ct. at 1949

Under the first element, the ADA regulations define “disability” as “a physical or 

mental impairment that substantially limits one or more of the major life activities of such 

individual,” as someone with a “record of such an impairment,” or who is “regarded as 

having such an impairment.” 29 CFR § 1630.2(g). The regulations include “standing” 

and “walking” as “major life activities.” 29 CFR § 1630.2(i). Though the Complaint (at 

¶¶ 13, 14 and 21) alleges in a conclusory manner that Plaintiff has an unspecified

“disability” and recites the above-referenced definition that it “substantially limits him in 

one or more major life activities including, but not limited to, walking and standing,” it 

provides no factual allegations to in any manner explain what the alleged disability is, 

how or when it originated, or any other facts. The Complaint vaguely asserts that 

Plaintiff “suffers from a serious medical condition,” (Complaint at ¶ 13) but does not in 

any way identify anything about that alleged “condition.” MEI is left guessing what type 

of “disability” Plaintiff claims he has. Such guesswork is what the pleading rules of Fed. 

R. Civ. P. 8, as interpreted in the Iqbal and Twombly cases are designed to avoid. “A 

pleading that offers labels and conclusions or a formulaic recitation of the elements of a 

cause of action will not do . . . . Nor does a complaint suffice if it tenders naked 

assertions devoid of further factual enhancement.” Iqbal, 129 S. Ct. at 1949 (citations 

and internal quotations omitted).

Likewise, Plaintiff’s allegations (in the alternative) that he was “perceived as 

disabled” or “had a record of a disability” completely lack any factual support and merely 

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 4 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 5

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

recite in a conclusory fashion the language of the ADA. Complaint at ¶¶ 1, 23. Plaintiff 

offers no facts as to what “record” exists of his alleged disability, and does not even 

allege that Defendant MEI knew about or was aware of the unspecified disability such 

as to be able to “perceive” Plaintiff as being disabled. These alternative allegations also 

fail to state a plausible claim for relief.

The second element requires Plaintiff to allege facts that establish that he is a 

“qualified individual,” which is defined to mean that he “satisfies the requisite skill, 

experience, education and other job-related requirements of the employment position . . 

. and, with or without reasonable accommodation, can perform the essential functions of 

such position.” 29 CFR § 1630.02(m) and (n). Again, Plaintiff’s Complaint (at ¶ 22) 

merely recites in a conclusory fashion the regulatory definition, but provides no factual 

support or enhancement. As such, the Complaint fails to adequately allege this second 

element and fails to state a claim.

Finally, Plaintiff fails to adequately allege the third element, which requires him to 

put forth facts establishing that he suffered an adverse employment action because of 

his disability. The Complaint baldly asserts several conclusions straight from the ADA 

statute and regulations, but alleges no facts about what conduct Plaintiff actually claims 

constituted the alleged discrimination. In paragraphs 25 and 26, Plaintiff alleges that 

“Defendant failed and refused to accommodate [his] disability” and “failed and refused 

to engage in an interactive process to determine whether Defendant could 

accommodate [his] disability.” Complaint at ¶¶ 25, 26. In addition to not alleging any 

facts to support these conclusory assertions, Plaintiff’s Complaint omits a crucial 

element. In order for an employer to be found liable for unlawfully failing to make a 

reasonable accommodation, the employer must know of the alleged disability. See 42 

U.S.C. § 12112(b)(5) (discrimination includes “not making reasonable accommodations 

to the known physical or mental limitations of an otherwise qualified individual with a 

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DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 6

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

disability . . . .”) (emphasis added); 29 CFR § 1630.9 (“It is unlawful for a covered entity 

not to make a reasonable accommodation to the known physical or mental limitations . 

. . .”) (emphasis added). Plaintiff does not allege that MEI had any knowledge of 

Plaintiff’s alleged (though unspecified) “disability.” Similarly, in order to establish a 

violation for failing to provide a reasonable accommodation (and absent allegations of 

the employer’s knowledge of the need therefor), Plaintiff must request an 

accommodation. See, e.g., Shepard, 829 F. Supp.2d at 963; Brown v. Lucky Stores, 

Inc., 246 F.3d 1182, 1188 (9th Cir. 2001) (exception to “general rule that employee must 

make an initial request applies . . . only when the employer ‘(1) knows that the 

employee has a disability, (2) knows, or has reason to know, that the employee is 

experiencing workplace problems because of the disability, and (3) knows, or has 

reason to know, that the disability prevents the employee from requesting a reasonable 

accommodation.” (quoting Barnett v. U.S. Air, Inc., 228 F.3d 1105, 1112 (9th Cir. 2000)). 

Plaintiff’s Complaint fails to allege that Plaintiff requested any accommodation, does not 

allege any facts that reflect Defendant MEI had any knowledge of the unspecified, 

alleged disability or any need for reasonable accommodation and, therefore, fails to 

state a valid claim for relief.

Moreover, paragraph 27 of the Complaint contains the conclusory allegation that 

MEI treated Plaintiff “in a disparate, discriminatory and harassing manner because of 

his actual disability,” but offers no facts as to even the general form that such treatment 

allegedly took. Such labels and conclusions, devoid of factual enhancement, do not 

pass muster under Fed. R. Civ. P. 12(b)(6). See Iqbal, 129 S. Ct. at 1949. 

Plaintiff’s Complaint does not allege well-pleaded facts to support the bare legal 

conclusions offered as to any of the required elements of Plaintiff’s claims and, as such, 

fails to state a valid and plausible claim upon which relief can be granted. The Court 

should dismiss Plaintiff’s Complaint.

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 6 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 7

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

B. In the Alternative The Court Should Order Plaintiff To Amend His Complaint 

To Provide A More Definite Statement of the Factual Allegations Supporting 

His Alleged Claims.

If the Court is inclined not to dismiss Plaintiff’s Complaint for failure to state a 

claim, then (pursuant to Fed. R. Civ. P. 12(e) and in the alternative) the Court should at 

least order Plaintiff to make more definite and certain the vague and conclusory 

allegations in the Complaint, and to add well-pleaded factual allegations to support the 

currently-alleged unsupported legal conclusions. Specifically, the Court should order

Plaintiff to amend the Complaint to remedy the above-described pleading defects as 

follows:

1. Allege facts as to the existence, cause and nature of the specific “disability” 

and “serious medical condition” from which Plaintiff allegedly suffers;

2. Allege facts as to what “record” exists of Plaintiff’s alleged disability;

3. Allege facts as to if and, if so, how and when Defendant MEI allegedly had 

any knowledge or awareness of Plaintiff’s alleged disability or alleged need 

for reasonable accommodation, including what accommodations (if any) 

Plaintiff allegedly requested (and when and of whom they were requested);

4. Add factual allegations to support the alleged conclusion that Plaintiff “was 

able to perform the essential functions of his job position either with or without 

reasonable accommodation”; and

5. Put forth factual allegations to support the labels and conclusions as to what 

form of “disparate, discriminatory and harassing” treatment to which Plaintiff 

was allegedly subjected.

Additionally, the Court should either strike (under Fed. R. Civ. P. 12(f)) or order 

Plaintiff to make more definite and certain the insufficient, impertinent and potentially 

scandalous allegations that are completely devoid of any factual support in paragraphs 

1 and 31 of the Complaint. In paragraph 31, Plaintiff baldly alleges that “Defendant’s 

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 7 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 8

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

acts were part of a pattern and practice of discrimination against individuals with 

disabilities.” Paragraph 1 similarly refers to seeking to “vindicate the rights of [Plaintiff] 

and other qualified individuals.” Nowhere does Plaintiff’s Complaint allege any facts to 

support any such allegations about any “pattern” or “practice”, nor does it in any way 

identify any other “individuals.” Such unfounded and reckless allegations are 

insufficient and have no place in this pleading. On one hand, Plaintiff’s Complaint 

(including the prayer) only purports to seek relief on his own behalf and, assuming that 

is the case, then any allegations about other “individuals” are irrelevant. On the other 

hand, if Plaintiff intends to try to seek relief occasioned by alleged actions involving 

other individuals, Plaintiff must allege facts to establish, first, that he is the real party in 

interest with standing to pursue such claims and, second, identify such individuals and 

provide well-pleaded factual allegations to support any such claims. As currently plead, 

the referenced allegations are insufficient, impertinent and scandalous and should be 

stricken.

Finally, on a related note, Mr. Wessels’ Complaint makes at least two references 

to an unidentified “her,” without any explanation as to which female is being referenced 

or why she is relevant to this action. Complaint at ¶¶ 10, 32. If these allegations are 

other than typographical errors and intend to reference anyone other than Mr. Wessels, 

Plaintiff should be required to make such allegations more definite and certain.

CONCLUSION

Based on the foregoing, the Court should dismiss with prejudice Plaintiff’s 

Complaint for failure to state a claim upon which relief can be granted. In the 

alternative, the Court should order Plaintiff to amend to make the above-described 

allegations more definite and certain, and should strike the allegations in paragraphs 1, 

31, 10 and 32 that irrelevantly and confusingly refer to other individuals.

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 8 of 10
DEFENDANT MOORE EXCAVATION, INC.’S MOTION 

TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, 

TO MAKE MORE DEFINITE AND CERTAIN - 9

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

DATED this 30th day of September, 2014.

STEWART SOKOL & LARKIN LLC

By: s/Tyler J. Storti

John Spencer Stewart, OSB #711648

jstewart@lawssl.com

Tyler J. Storti, OSB #034695

tstorti@lawssl.com

Attorneys for Defendant Moore 

Excavation Inc., d.b.a. MEI Group

m:\wdocs\ssgmain\1040\1040.022\plead\01100862.docx

Case 3:14-cv-01329-HZ Document 8 Filed 09/30/14 Page 9 of 10
1040.022-01112415; 1

CERTIFICATE OF SERVICE - 1

2300 SW First Avenue, Suite 200

Portland, OR 97201-5047

(503) 221-0699

FAX (503) 223-5706

CERTIFICATE OF SERVICE

I hereby certify that I served the foregoing DEFENDANT MOORE EXCAVATION, 

INC.’S MOTION TO DISMISS COMPLAINT OR, IN THE ALTERNATIVE, TO 

MAKE MORE DEFINITE AND CERTAIN on:

Kerry Smith

Smith & Fjelstad

722 N. Main Ave.

Gresham, OR 97030

E-mail: kerrymls@frontier.com

Phone: (503) 669-2242

by the following indicated method or methods:

DATED this 30th day of September, 2014.

STEWART SOKOL & LARKIN LLC

By: s/Tyler J. Storti

John Spencer Stewart, OSB #711648

jstewart@lawssl.com

Tyler J. Storti, OSB #034695

tstorti@lawssl.com

Attorneys for Defendant Moore 

Excavation Inc., d.b.a. MEI Group

___ by E-filing a full, true and correct copy thereof to the attorney, as shown 

above, at the electronic mail address reflected on the court’s CM/ECF 

system, on the date set forth below.

____ by mailing a full, true and correct copy thereof in a sealed, first-class 

postage-paid envelope, and addressed to the attorney as shown above, the 

last-known office address of the attorney, and deposited with the United 

States Postal Service at Portland, Oregon on the date set forth below.

____ by e-mailing a full, true and correct copy thereof to the party as shown 

above, at the last known electronic mail address reflected above, on the date 

set forth below.

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