UNITED STATES DISTRICT COURT 

DISTRICT OF OREGON 

PORTLAND DIVISION 

T-W TRANSPORT, INC., a Washington 

corporation, 

Plaintiff, 

VS. 

TA OPERATING LLC, a Delaware limited 

liability company, dba MR. B'S LOUNGE, 

Defendant. 

A COST A, Magistrate Judge: 

Introduction 

Case No.: 3:15-CV-00099-AC 

FINDINGS AND 

RECOMMENDATION 

PlaintiffT-W Transport, Inc. ("T-W"), a Washington corporation, brings this action against 

Defendant TA Operating, LLC ("TA"), a Delaware limited liability company for: (1) indemnity, (2) 

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Case 3:15-cv-00099-AC Document 23 Filed 08/17/15 Page 1 of 14
contribution, (3) negligence, and (4) liquor liability under Oregon Revised Statute ("OR. REV. 

STAT.")§ 471.565. T-W alleges TA should indemnify T-W or contribute to the cost of a settlement 

with a third party ("K.E. "), and for payment of damages to public roads, a police vehicle, and for TW' s equipment. T-W also alleges TA violated OR. REV. STAT.§ 471.565 because TA's employee 

continued to serve alcohol to T-W's employee while he was visibly intoxicated. 

Currently before the court is TA's Motion to Dismiss pursuant to FED. R. C1v. P. 12(b)(6) 

against T-W's first, second, and fomth claims, and against T-W's Alternative Motion for Leave to 

File Second Amended Complaint pursuant to FED. R. C1v. P. 15. TA's Motion to Dismiss should 

be granted because T-W's allegations in the amended complaint do not state a legally cognizable 

claim for relief. In addition, T-W's Alternative Motion for Leave to File Second Amended 

Complaint should be denied. Finally, the court lacks subject matter jurisdiction because T-W's 

remaining claim is less than the amount in controversy requirement for diversity jurisdiction. 

Background 

At approximately 10:00 a.m. on March 17, 2013, Kenneth Burgess ("Burgess"), a truck 

driver then employed by T-W, was driving a tractor-trailer combination owned by T-W, when he 

stopped at a truck stop owned by TA in Troutdale, Oregon. (Am. Comp!. ii 6.) TA owns and 

operates a restaurant and bar called Mr. B's Lounge located within the truck stop, and operates Mr. 

B's Lounge under the assumed business name of TravelCenters of America. (Am. Comp!. ii 5.) 

Burgess entered Mr. B's Lounge and consumed multiple alcoholic beverages. (Am. Comp!. ii 7.) 

TA' s employee bartender continued to sell alcoholic beverages to Burgess even though Burgess was 

visibly intoxicated. (Id) T-W did not authorize Burgess to consume alcoholic beverages while 

using T-W's truck to make deliveries. (Am. Comp!. ii 8.) 

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Later that day, Burgess returned to T-W's tractor-trailer to sleep. (Am. Comp!. ii 9.) At 

around 4:00 a.m. on March 18, 2013, Burgess, while still intoxicated, began driving T-W's tractortrailer the wrong way on Interstate 84, heading westbound in the eastbound travel lanes. (Am. 

Comp!. ii 10.) Burgess eventually merged onto Interstate 205 and drove northbound in the 

southbound travel lanes onto Interstate 205's Glenn L. Jackson Memorial Bridge, which spans the 

Columbia River between Portland, Oregon, and Vancouver, Washington. (Am. Comp!. ii 11.) At 

around 4:15 a.m., Burgess collided head-on with a vehicle driven by an adult female ("K.E.") (Am. 

Comp!. ii 12.) K.E. suffered personal injuries and damage to her vehicle. (Id.) In addition, T-W 

sustained property damage to its tractor-trailer. (Id.) 

After the collision, police officers measured Burgess's blood-alcohol content at 0.15%. (Am. 

Comp!. ii 13.) K.E. asserted a claim for personal injuries and property damage against T-W. (Am. 

Comp!. ii 16.) On April 17, 2013, T-W served TA with written notice of intent to assert a claim for 

property damage against TA. (Id.) T-W claims TA is liable in tort to K.E. and T-Wunder OR. REv. 

STAT.§ 471.565 and other applicable laws. (Id.) T-W settled K.E.'s claims and paidK.E. $300,000. 

(Am. Comp!. ii 18.) In exchange, K.E. released all persons and entities from any and all claims 

related to the accident and her damages. (Id.) 

Legal Standard 

I FED. R. C!V. P. 12(b)(6) 

A well-pleaded complaint must have "a shott and plain statement of the claim showing that 

the pleader is entitled to relief." FED. R. C1v. P. 8(a). A FED. R. C1v. P. 12(b)(6) motion is granted 

ifthe allegations in the complaint are insufficient to state a claim for relief. In Bell Atlantic Corp. 

v. Twombly, 550 U.S. 544 (2007), the Court explained the necessity of including sufficient facts in 

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the pleading to give proper notice of the claim and its basis: "While a complaint attacked by a Rule 

12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiffs obligation to 

provide the 'grounds' of his 'entitlement to relief requires more than labels and conclusions, and 

formulaic recitation of the elements of a cause of action will not do." Id. at 555 (alteration omitted). 

The Court stated, "a well-pleaded complaint may proceed even if it strikes a savvy judge that actual 

proof of those facts is improbable, and 'that a recovery is very remote and unlikely."' Id. at 556 

(quoting Scheuer v. Rhodes, 416 U.S. 232, 236 (1974)). 

Later, in Ashcroft v. Iqbal, 556 U.S. 662, 678-679 (2009), the Comt illuminated two 

principles underlying its decision in Twombly. First, the proposition that a court must accept all 

allegations in a complaint does not force a court to accept all legal conclusions set forth in a pleading 

as true. Id. at 678. Second, the complaint must contain a plausible, not merely possible, claim for 

relief. Id. at 679. The Court clarified that "[d]etermining whether a complaint states a plausible 

claim for relief will ... be a context-specific task that requires the reviewing court to draw on its 

judicial experience and common sense." Id. (citing Iqbal v. Hasty, 490 F.3d 143, 157-58 (2nd Cir. 

2007)). The Court concluded"[ w]hile legal conclusions can provide the framework of a complaint, 

they must be suppotted by factual allegations. When there are well-pleaded factual allegations, a 

court should assume their veracity and then determine whether they plausibly give rise to entitlement 

to relief." Id. 

On a motion to dismiss for failure to state a claim, the court must take as true all allegations 

of material fact, construing them in the light most favorable to the nonmoving party. Am. Family 

Ass'n Inc. v. City & County ofS. F., 277 F.3d 1114, 1120 (9th Cir. 2002). The court's review is 

limited to the face of the complaint, any documents referenced in the complaint, and those matters 

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which the court may properly take judicial notice. Schwartz v. KPMG LLP, 476 F.3d 756, 763 (9th 

Cir. 2007). Othe1wise, as a general rule, a district court may not consider any material outside the 

pleadings when ruling on a FRCP l 2(b )(6) motion. Lee v. City of L. A., 250 F.3d 668, 688 (9th Cir. 

2001). 

II. FED. R. CIV. P. 15 

Rule 15 governs amendments to pleadings and states, in relevant part, that where a party 

already has been served with a responsive pleading, "a party may amend its pleading only with the 

opposing party's written consent or the court's leave. The court should freely give leave when 

justice so requires." FED. R. Crv. P. 15(a)(2). The standard applied to motions for leave to amend 

is a liberal one. AmerisourceBergen Co. v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). 

Even so, "a district court need not grant leave to amend where the amendment: (1) prejudices the 

opposing party; (2) is sought in bad faith; (3) produces an undue delay in litigation; or ( 4) is futile." 

Id. Furthermore, "[ w ]here the plaintiff has previously filed an amended complaint ... the district 

court's discretion to deny leave to amend is 'particularly broad."' Miller v. Yokohama Tire Corp., 

358 F.3d 616, 622 (9th Cir. 2004) (citing Chodos v. West Publ'g Co., 292 F.3d 992, 1003 (9th Cir. 

2002) (citation omitted)). 

III. FED. R. Crv. p. 12(h)(3) 

The federal district courts are courts oflimitedjurisdiction. See, e.g., Exxon Mobil Corp. v. 

Allapattah Servs., Inc., 545 U.S. 546, 552 (2005). Thus, federal courts can hear only certain types 

of cases, which include "all civil actions arising under the Constitution, laws, or treaties of the 

United States", or "all civil actions where the matter in controversy exceeds the sum or value of 

$75,000, ... , and is between (1) citizens of different states .... " 28 U.S.C. § 1331, § 1332. The 

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court has an independent obligation to determine whether subject matter jurisdiction exists, even in 

the absence of a challenge from any party. Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 583 

(1999). Subject matter jurisdiction, because it involves the court's power to hear a case, can never 

be forfeited or waived. U.S. v. Cotton, 535 U.S. 625, 630 (2002). Accordingly, when a federal court 

finds that it lacks subject matter jurisdiction, it must dismiss the complaint in its entirety. Arbaugh 

v. T & H Corp., 546 U.S. 500, 514 (2006). 

To justify dismissal, it must appear to a legal certainty that the claim is really for less than 

the jurisdictional amount. St. Paul Mercwy lndem. Co. v. Red Cab Co., 303 U.S. 283, 289 (1938); 

Crum v. Circus Circus Ente1prises, 231 F.3d 1129, 1131 (9th Cir. 2000). Generally, the amount in 

controversy is determined from the face of the pleadings. Id The amount in controversy is "the 

value of the object of the litigation" from the plaintiffs viewpoint. See Hunt v. Washington State 

Apple Advertising Comm 'n, 432 U.S. 333 (1977). 

Discussion 

T-W argues TA is liable in tort to T-W and K.E. under OR. REV. STAT. § 471.565. TA 

argues it has no liability under OR. REV. STAT. § 471.565 because K.E. did not provide notice of a 

claim against TA within 180 days, and because T-W is not a protected party under the statute. 

I. TA's Motion to Dismiss for Failure to State a Claim 

A. T-W's First Claim/or Indemnity 

T-W alleges a claim for common law indemnity against TA for discharging a legal obligation 

TA owed to K.E. (Am. Comp!. if 20-27.) T-W argues but for the settlement with K.E., TA is liable 

under OR. REV. STAT.§ 471.565 and should indemnifyT-W for the entire amount of the settlement. 

(Am. Comp!. if 22.) TA responds T-W failed to allege TA is liable under OR. REV. STAT.§ 471.565 

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pursuant to notice of a claim from K.E. (Defs Mem. in Supp. at S.) T-W responds TA is liable in 

tort because T-W gave actual notice under OR. REv. STAT.§ 471.565(7) to TA ofT-W's intent to 

assert a claim. (Am. Comp!. 'if 16.) 

Recently, the Oregon Supreme Comteliminated common law indemnity claims because they 

are inconsistent with Oregon's comparative negligence statutes. Eclectic Inc., LLCv. Patterson, 357 

Or. 25, 38 (2015). In Eclectic, plaintiff sued both Jackson county and a contractor for negligence. 

Id. at 27. A jury found plaintiff more than SO percent at fault; therefore, under OR. REV. STAT.§ 

31.600 neither the county or contractor were liable to plaintiff. Id. Jackson county also filed a crossclaim for common law indemnity against the contractor for costs incurred defending plaintiffs 

claims. Id. The court denied Jackson county's claim for common law indemnity because liability 

is several only and allocated by the degree of fault of each party. Id. at 38. The court ruled that 

Oregon law no longer provides for joint liability of multiple tortfeasors. Id. at 35. The court found 

that the Oregon Legislature instituted a system of comparative fault in which (1) the trier of fact 

allocates fault and responsibility for payment of damages between parties; and (2) each t01tfeasor 

is liable for damages attributable only to its own negligence. Id. at 35-6. 

Because the Oregon Supreme Court eliminated common law indemnity, T-W is unable to 

assert a claim for common law indemnity. Consequently, T-W's first claim for relief should be 

dismissed. 

B. T-W's Second Claim for Contribution 

T-W's second claim requests contribution from TA for the settlement with K.E. because the 

settlement extinguished TA's liability to K.E. (Am. Comp!. 'if 27.) TA responds T-W cannot prove 

TA is liable to K.E. under OR. REV. STAT. § 471.565. (Defs Mem. in Supp. at S.) In Oregon, 

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claims for contribution are cognizable under OR. REV. STAT. § 31.800(1). That statute provides in 

relevant part: 

Where two or more persons become jointly or severally liable in tort for the same 

injury to person or property or for the same wrongful death, there is a right of 

contribution among them even though judgment has not been recovered against all 

or any of them. There is no right of contribution from a person who is not liable in 

tort to the claimant. 

The elements for a contribution claim are: (1) a party is liable in tort for the same injmy; (2) 

there is a payment by the contribution plaintiff of more than a proportional share of the common 

liability; (3) the settlement extinguished the contribution defendant's liability for the injury; and ( 4) 

the settlement is reasonable for the injury. Jensen v. Alley, 128 Or. App. 673, 677 (1994). In this 

case, whether TA is also liable for the injuries K.E. suffered from Burgess's drunk driving is the 

primary issue. Under OR. REv. STAT.§ 471.565, a licensed alcohol provider is subject to suit for 

damages caused by an intoxicated patron if the claimant provides notice of a claim within 180 days 

after the claim accrues. Specifically, OR. REv. STAT.§ 471.565(3) provides in patt: 

An action for damages caused by intoxicated patrons or guests off the premises of a 

person licensed by the Oregon Liquor Control Commission, a person holding a 

permit issued by the commission or a social host may be brought only if the person 

asserting the claim has given the licensee, permittee, or social host notice required 

by subsection (5) of this section within the following time periods: ... (b) Ifa claim 

for damages for injuries other than wrongful death, notice must be given within 180 

days after the injury occurs, or within 180 days after the person asserting the claim 

discovers or reasonably should have discovered the existence of a claim under this 

section, whichever is later. 

A similar notice provision in the Oregon Torts Claim Act ("OTCA") has been construed to 

require the injured patty to send notice. In Mitchell v. Sherwood, 161 Or. App. 376, 381, rev. den. 

329 Or. 479 (1999), the Oregon Court of Appeals held that a third-party contribution claim could 

not be brought against the state of Oregon ifthe plaintiff did not provide the state with a 180-day tmt 

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claim notice. Id at 378. Here, K.E., the injured claimant, did not provide notice to TA of her claim 

under OR. REV. STAT. § 471.565. Instead, K.E. asserted a claim only against T-W. (Am. Comp!. 

~ 14.) 

T-W's complaint does not sufficiently allege a claim of contribution under OR. REV. STAT. 

§ 471.565. T-W failed to allege TA is liable to K.E. under OR.REV. STAT.§ 471.565. Accordingly, 

T-W's second claim should be dismissed. 

C. T-W's Foutth Claim of Statutory Liability' 

A federal court interpreting state law should interpret the law as would that state's supreme 

court. Planned Parenthood of Idaho, Inc. v. Wasden, 376 F.3d 908, 925 (9th Cir. 2004). Therefore, 

the court must "apply the familiar framework for statute interpretation established in Portland Gen. 

Elec. v. Bureau of Labor and Indus., 317 Or. 606 (1993), and subsequently modified by State v. 

Gaines, 346 Or. 160 (2009)." Sundermier v. State ex rel. Pub. Emps. Rel. Sys., 269 Or. App. 586, 

595 (2015). 

Under this framework, the primary goal of statutory construction is to discern the 

legislature's intent in enacting the statute at issue. Gaines, 346 Or. at 171; OR. REV. STAT. § 

174.020. To do so, the court first looks to the "text and context" of the statute as "there is no more 

persuasive evidence of the intent of the legislature than 'the words by with the legislature undertook 

to give expression to its wishes."' Id (quoting State ex rel. Cox v. Wilson, 277 Or. 747, 750 (1977)). 

Courts must assume the legislature intended the words of the statute to have their plain, 

natural, and ordinary meaning unless specifically defined by the legislature. Gaines, 346 Or. at 175. 

1

T-W labeled the fourth claim ofrelief"strict liability" instead of"statutory liability." 

(Pl.'s Resp. in Opp'n at 15.) 

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A statutory term's "context" includes both its immediate context - the phrase or sentence in which 

the term appears - and the "broader context," which includes other statutes "on the same subject." 

State v. Stamper, 197 Or. App. 413, 417-18 (2005). After reviewing the statuto1y text and context, 

the court should consider pertinent legislative history offered by the parties. Gaines, 346 Or. at 172. 

Finally, and only ifthe legislative intent remains in doubt after consideration of the text, context, and 

legislative history, the court may resort to general rules of statut01y construction for guidance in 

resolving the issue before it. Id. at 172. 

Examining the text of OR. REV. STAT. § 4 71.565, the statute consistently uses words limiting 

liability for licensed alcohol providers. In OR. REV. STAT. § 471.565(1), a patron or guest who 

voluntarily consumes alcoholic beverages served by a licensed alcohol provider does not have a 

cause of action. In addition, OR. REV. STAT. § 471.565(2) states a licensed alcohol provider is not 

liable for damages unless the plaintiff proves by clear and convincing evidence that the licensee 

provided alcohol when the patron was visibly intoxicated and the plaintiff did not contribute to the 

intoxication. Finally, OR. REV. STAT. § 471.565(3) states an action against a licensed alcohol 

provider can be brought only ifthe claimant provides notice within the time period provided in OR. 

REv. STAT.§ 471.565(5). The text of OR. REV. STAT.§ 471.565 illustrates the legislature's intent 

to precisely limit liability under the statute to only licensed alcohol providers. 

Next, the context of OR. REV. STAT. § 471.565 also illustrates an intention to limit the 

circumstances from which liability licensed alcohol providers will be liable because the st<1tute 

focuses exclusively on "automobile or traffic related injuries." Deckard v. Bunch, 267 Or. App. 41, 

47 (2014) (citing Gattman v. Favro, 306 Or. 11, 22 (1988)). The Deckard court examined the 

Gattman decision, which explained that OR.REV. STAT.§ 30.950, nowrecodified as OR. REv. STAT. 

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§ 471.565, was intended to protect only those plaintiffs injured in drunk-driving accidents. Gattman 

v. Favro, 306 Or. 11, 22 (1988). In Gattman, the plaintiff was stabbed by a drunk patron. Id. at 13. 

In deciding the plaintiff was not entitled to relief under OR. REV. STAT. § 471.565, the court 

expressed concern of expanding liability to licensed alcohol providers: 

Throughout the committee hearings, members assumed that the issue was the extent 

of licensee and permittee liability for injuries caused by intoxicated motorists under 

then existing caselaw and how such caselaw should be modified; at no time did 

anyone cite a fact pattern or example involving liability outside the context of 

automobile or traffic related injuries. 

Id at 22. The court concluded by reversing the Oregon Court of Appeals and stating "the entire 

legislative history is in terms of protection of persons injured by inebriated motorists." Id at 24. 

In addition, the Deckard court also explained how subsequent legislation further limited 

liability for licensed alcohol providers. In response to decisions in Grady v. Cedar Side Inn, Inc., 

330 Or. 42 (2000), and Fulmer v. Timber Inn Restaurant and Lounge, Inc., 330 Or. 413 (2000), the 

legislature revised OR. REV. STAT.§ 471.565 to exclude "non-innocent" plaintiffs who contributed 

to their own intoxication or who were complicit in the intoxication of a patron. Deckard v. Bunch, 

267 Or. App. 41, 48-50 (2014). The innocent-plaintiff requirement in OR. REV. STAT.§ 471.565 is 

set out in OR. REV. STAT.§ 471.565(2). Specifically, under OR. REV. STAT.§ 471.565(2) a licensed 

alcohol provider is: 

Not liable for damages caused by intoxicated patrons or guests unless the plaintiff proves by 

clear and convincing evidence that: 

(a) The licensee, permittee or social host served or provided alcoholic 

beverages to the patron or guest while the patron or guest was visibly 

intoxicated; and 

(b) The plaintiff did not substantially contribute to the intoxication of 

the patron or guest by: 

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Case 3:15-cv-00099-AC Document 23 Filed 08/17/15 Page 11 of 14
(A) Providing or furnishing alcoholic beverages to the 

patron or guest; 

(B) Encouraging the patron or guest to consume or 

purchase alcoholic beverages or in any other manner; 

or 

(C) Facilitating the consumption of alcoholic 

beverages by the patron or guest in any manner. 

T-W alleges TA violated OR. REV. STAT. § 471.565 because TA's bartender employee 

continued to serve Burgess, who was visibly intoxicated. (Am. Comp!. ii 34.) TA argues T-W does 

not fall under the class of persons OR. REV. STAT. § 471.565 is meant to protect, and the harm 

suffered is not the type the statute is meant to address. (Defs Mem. in Supp. at 10.) Specifically, 

TA argues OR. REV. STAT.§ 471.565 protects only innocent third-parties who are injured by drunk 

drivers, not employers whose intoxicated employee causes damages to the employer's vehicle. (Id.) 

T-W argues T-W is an innocent third-party because T-W did not give Burgess permission to drink 

on the job and T-W suffered harm from a drunk driving accident. (Am. Comp!. ii 8.) 

Based on the text, context, and legislative history underlying the statute, T-W does not fall 

within the class of persons protected under OR. REV. STAT. § 4 71.565. The legislative history of OR. 

REV. STAT. § 471.565 demonstrates the legislatures concern with cases expanding liability against 

licensed alcohol providers. 

Members of the 1979 legislature would be surprised to hear that in attempting to 

limit the liability of servers ofalcoholic beverages to the standard stated in Campbell, 

they instead created licensee and permittee liability for all actions of an intoxicated 

customer upon satisfaction of the standard first stated in Campbell, i.e., serving 

intoxicating person. 

Gattman v. Favro, 306 Or. 11, 22 (1988). The legislative history of OR. REV. STAT. § 471.565 

illustrates the legislature's intent to protect individuals such as K.E.; the legislature did not intend 

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Case 3:15-cv-00099-AC Document 23 Filed 08/17/15 Page 12 of 14
employers, such as T-W, to be protected under OR. REv. STAT.§ 471.565. 

Accordingly, T-W has failed to sufficiently state a claim for relief under OR. REv. STAT.§ 

471.565. T-W's fourth claim should be dismissed, with prejudice. 

II. Alternative Motion for Leave to File Second Amended Complaint 

The standard applied to motions for leave to amend is a liberal one. AmerisourceBergen Co. 

v. Dialysis West, Inc., 465 F.3d 946, 951 (9th Cir. 2006). Courts may decline to grant leave to 

amend only ifthere is strong evidence of"undue delay, bad faith or dilatory notice on the part of the 

movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice 

to the opposing party by virtue of allowance of the amendment, [or] futility of amendment." Foman 

v. Davis, 371 U.S. 178, 182 (1962). T-W did not sufficiently allege TA is liable in tort under OR. 

REV. STAT. § 4 71.565 ., and T-W' s Alternative Motion for Leave to File Second Amended Complaint 

would be futile because T-W is not within the protected class under OR. REV. STAT. § 471.565. 

Thus, T-W's Motion for Leave to Amend should be denied. 

III. Subject Matter Jurisdiction 

The court has an independent obligation to determine whether subject matter jurisdiction 

exists, even in the absence ofa challenge from any party. Ruhrgas AG v. Marathon Oil Co., 526 

U.S. 574, 583 (1999). Federal Civil Procedure Rule 12(h)(3) provides that "[i]fthe court determines 

at any time that it lacks subject-matter jurisdiction, the comt must dismiss the action." FED. R. C1v. 

P. 12(h)(3). T-W's remaining claim of negligence fails to meet the amount in controversy 

requirement of $75,000 or greater. T-W's claim alleges damages to a tractor-trailer valued at 

approximately $52,875. (Am. Comp!.~ 29.) T-W's complaint states a prayer forreliefless than the 

amount in controversy requirement and therefore, T-W' s remaining claim should be dismissed. 

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Case 3:15-cv-00099-AC Document 23 Filed 08/17/15 Page 13 of 14
Conclusion 

For the aforementioned reasons, Defendant's Motion to Dismiss (Dkt No. 6) should be 

GRANTED, and Plaintiffs Motion for Leave to Amend (DktNo. 14) should be DENIED. The court 

lacks subject matter jurisdiction for T-W's remaining claim. Therefore, that claim should be 

DISMISSED. 

Scheduling Order 

The Findings and Recommendation will be referred to a district judge. Objections, if any, 

are due August 31, 2015. Ifno objections are filed, then the Findings and Recommendation will go 

under advisement on that date. 

DATED this 17th day of August, 2015. 

clvCJi--

l HN V. ACOSTA 

United7States Magistrate Judge 

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