Gorman

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF OREGON

EUGENE GORMAN, Case No. 3:25-cv-01327-IM

Plaintiff, OPINION & ORDER GRANTING

DEFENDANT INTEL

v. CORPORATION’S MOTION TO

DISMISS

COMPASS GROUP PLC; COMPASS

GROUP USA, INC; EUREST SERVICES,

INC.; BON APPETIT MANAGEMENT

CO.; and INTEL CORPORATION,

Defendants.

J. Randolph Pickett, Kimberly O. Weingart, Kyle T. Sharp, Samantha N. Stanfill, Mayra A.

Ledesma, & Juliana B. Minn, Pickett Dummigan Weingart LLP, Centennial Block, Fourth Floor,

210 S.W. Morrison Street, Portland, OR 97204. Peter O. Hansen, Law Offices of Peter O.

Hansen, 620 S.W. Fifth Avenue, Suite 604, Portland, OR 97204. Attorneys for Plaintiff.

Nicholas Beyer, Pedro R. Zugazaga, & Patrick C. Wylie, Davis Rothwell Earle & Xochihua, PC,

200 SW Market St., Suite 1800, Portland, OR. Attorneys for Defendant Intel Corporation.

IMMERGUT, District Judge.

Plaintiff Eugene Gorman (“Plaintiff”) is a chef who worked at one of the cafeterias

owned by Defendant Intel Corporation (“Intel” or “Defendant”). Plaintiff is suing Defendants

Intel and its alleged contractors—Compass Group PLC; Compass Group USA, Inc; Eurest

Services, Inc.; Bon Appetit Management Co.—for a fall he suffered at work on Intel’s premises.

Plaintiff brings two negligence claims for relief. Complaint (“Compl.”), ECF 1. The first claim

consists of four counts against all Defendants: (1) a common-law negligence claim, (2) an

Employer Liability Law (“ELL”) negligence claim (not based on Safety Codes), (3) an ELL

negligence claim based on Safety Codes, and (4) an Oregon Safe Employment Act (“OSEA”)

negligence per se claim. Id. ¶¶ 1–33. The second claim is a premises liability claim against Intel.

Id. ¶¶ 34–38.

Before this Court is Defendant Intel’s Motion to Dismiss (“Mot.”), ECF 9. Intel moves to

dismiss Plaintiff’s first negligence claim for relief against Intel, which includes Plaintiff’s

common-law claim, ELL claims, and OSEA claim. Mot., ECF 9 at 4–5. For the reasons below,

this Court grants Defendant’s motion in full.

STANDARDS

A court may dismiss a complaint for failure to state a claim upon which relief may be

granted. Fed. R. Civ. P. 12(b)(6). “To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’”

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 554,

570 (2007)). In evaluating the sufficiency of a complaint, the court must accept as true all well-

pleaded material facts in the complaint and construe them in the light most favorable to the non-

moving party. Daniels-Hall v. Nat’l Educ. Ass’n, 629 F.3d 992, 998 (9th Cir. 2010). The court

need not, however, credit legal conclusions that are couched as factual allegations. Iqbal, 556

U.S. at 678–79. Conclusory allegations are not entitled to the presumption of truth, and

“[t]hreadbare recitals of the elements of a cause of action” will not do. Id. at 678, 681.

BACKGROUND

Plaintiff was making a pizza at Intel’s Ingredients Café when he tripped over a wrinkled

floor mat. Compl., ECF 1 ¶ 4. As he fell, he caught his hands on a wheeled cart, jerking his

shoulders upward before he landed on his knees. Id. Because of this fall, Plaintiff underwent a

surgical rotator cuff repair and attended physical therapy for his injuries. Id. ¶ 12.

At the time of the fall, Plaintiff was employed as a chef by Ingredients Oregon. Id. ¶ 1(e).

Ingredients Oregon is an unregistered entity that operates the Ingredients Café on Defendant

Intel’s premises. Id. ¶¶ 1(e), 4. The ownership of Ingredients Oregon is unknown, but the

catering manager of Ingredients Oregon has an Intel email address. Id. ¶ 1(e). Intel is not

Plaintiff’s direct employer. See generally Compl., ECF 1. Instead, Intel contracted with one or all

of its codefendants to provide food services for Intel’s employees. Id. ¶ 1.

Plaintiff alleges that the management of Ingredients Café was a “common enterprise”

under the control and direction of Defendants, who “(1) retained the right to control the work,

including job site safety; (2) had actual control of the work; and/or (3) . . . engaged in such on a

common enterprise with Ingredients.” Id. ¶ 6. Defendants allegedly “acted as owner and overseer

of management operations of the cafe” and “retained the right to require additional safety

measures and to inspect Plaintiff’s work site.” Id. ¶¶ 7, 22. Plaintiff now seeks over $2.8 million

in damages against Defendants. Id. at 22.

DISCUSSION

Defendant Intel moves to dismiss four counts of Plaintiff’s first claim of relief for

negligence: (1) a common law negligence claim, (2) an ELL negligence claim, (3) an ELL

negligence claim based on the violation of safety codes, and (4) an OSEA negligence claim.

Mot., ECF 9 at 4–5. Defendant Intel does not challenge Plaintiff’s second claim for relief for

negligence based on premises liability. Id. at 4.

Defendant argues that Plaintiff’s common law negligence claim must be dismissed

because it is subsumed in his premises liability claim. Id. Defendant also argues that Plaintiff

cannot maintain claims under the ELL and OSEA because Plaintiff has failed to allege facts that

support an employment relationship between Plaintiff and Intel. Id. at 4–5. Plaintiff responds that

his common law negligence claim is based on Intel’s involvement in the operation of Ingredients

Café, that Intel is Plaintiff’s indirect employer under the ELL and, that Intel is a liable owner

under the OSEA. Memorandum in Opposition (“Opp’n”), ECF 11 at 6–14.

This Court agrees with Defendant. First, Plaintiff has failed to allege facts sufficient to

support a common law negligence claim based on Intel’s involvement in the operation of

Ingredients Café. Second, Plaintiff has failed to allege facts sufficient to support its claim that

Intel is liable as an “indirect employer” under the ELL. Third, Plaintiff has failed to allege facts

that Intel violated any of its duties to Plaintiff under the OSEA. For those reasons, as explained

below, the four counts of Plaintiff’s first claim must be dismissed.

A. Common Law Negligence

A defendant is liable in negligence for harm resulting from his conduct if his conduct

“unreasonably created a foreseeable risk to a protected interest of the kind of harm that befell the

plaintiff.” Fazzolari v. Portland Sch. Dist., 303 Or. 1, 17 (1987). This liability can be limited by

a “status,” “relationship,” or “a particular standard of conduct that creates, defines, or limits the

defendant’s duty.” Id. Courts in this district applying Oregon law have permitted pleading

common law negligence and premises liability claims in the alternative. Anderson v. Intel Corp.,

No. 20-cv-2138-AC, 2021 WL 1401492, at *3 (D. Or. Apr. 14, 2021); Kemper v. MWH

Constructors, Inc, No. 21-cv-145-SI, 2021 WL 1914212, at *2 (D. Or. May 12, 2021).

Plaintiff argues that his common law negligence claim is based on Intel’s involvement in

the operation of Ingredients Café and not just Intel’s status as the owner of the premises. Opp’n,

ECF 11 at 7. To demonstrate Intel’s involvement, Plaintiff alleges that Intel contracted with the

other Defendants to provide food services for Intel’s employees, Compl., ECF 1 ¶ 1(b), that

Defendants “were aware of the working conditions of the food service workers,” id. ¶ 2, and that

the catering manager for Ingredients Café has an Intel email address, id. ¶ 1(e).

Plaintiff’s factual allegations, however, fail to support an inference, independent from

Intel’s status as an owner, that Intel was involved in the operation of Ingredients Café. First,

Plaintiff invokes the existence of contracts but fails to provide any non-speculative detail about

the contracts. Plaintiff asks this Court to infer that Intel’s contracts allocated safety requirements

and provided Intel with some ability to ensure that other defendants complied with those

allocations. Opp’n, ECF 11 at 9. Plaintiff is asking this Court to speculate about the contents of

the contracts between Defendants. Plaintiff has not provided this court with any concrete factual

allegations to infer that Intel had responsibility for Ingredients Café beyond its responsibility as

the owner of the premises.

Second, Plaintiff’s allegation that Defendants were aware of the working conditions of

the food service workers is conclusory and not entitled to the presumption of truth. Plaintiff does

not allege facts, independent from Intel’s status as an owner, that allow this Court to infer that

Intel was aware of the working conditions of the food service workers. Plaintiff has not alleged,

for example, that Intel employees worked in or oversaw the café. Intel may have known about

the use of unsecured floor mats in the kitchen based on its role as the owner of the premises, but

that does not support a claim independent of premises liability.

Third, the café’s managers’ Intel email address does not support the inference that Intel

played some role in the operations of the café. The two cases Plaintiff cites, see id. at 8, are not

to the contrary.

The first case, WhiteCryption Corp. v. Arxan Techs., Inc., No. 15-cv-754-WHO, 2016

WL 3275944 (N.D. Cal. June 15, 2016), does not suggest that the mere use of another

company’s email domain is sufficient to state a negligence claim against that company. There,

the court considered a subsidiary’s use of the parent company’s email addresses in holding that

Plaintiff had not sufficiently alleged alter ego or agency liability. Id. at *8–11. The Court

reasoned that the subsidiary’s use of the parent company’s email addresses was evidence of

involvement in day-to-day operations, but it was not sufficient to show pervasive and continual

control required to disregard the corporate form. Id. at 11. This Court agrees that the use of

another company’s email address can be evidence of involvement, but the allegation alone does

not support the inference that Intel or its employees were responsible for the conditions of the

café where Plaintiff worked.

The second case, Rankin v. PTC All. LLC, No. 21-1321, 2022 WL 3447307 (W.D. Pa.

Aug. 17, 2022), relied on far more detailed allegations to find that the plaintiff sufficiently

alleged “joint employer liability” under the Fair Labor Standards Act of 1983. Id. at *4. There,

Defendants “participated in weekly conference calls,” attended “management meetings regarding

personnel mattes and operations,” “rejected a proposal for employee wellness benefits and, most

critically, were involved in and approved the decision to terminate [the plaintiff].” Id. These

allegations far exceed the mere use of another company’s email address or contracting for

another company’s services. Rankin, therefore, does not move the needle.

Plaintiff has failed to allege facts to support its theory that Intel was involved in the

operations of Ingredients Café on any basis independent from Intel’s status as the premises

owner. This Court, therefore, must dismiss his common law negligence claim.

B. Employer Liability Law

The ELL “imposes a heightened statutory standard of care on a person or entity who

either is in charge of, or responsible for, any work involving risk or danger.” Tozer v. Katerra

Constr. LLC, 344 Or. App. 204, 213–14 (2025). In other words, the owner must be an “indirect

employer.” Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 179 (2016). Under the ELL, an

“indirect employer” can be liable if they (1) are “engaged with the plaintiff’s direct employer in a

‘common enterprise’; (2) retain “the right to control the manner or method in which the risk-

producing activity was performed; or (3) actually control the manner or method in which the risk

producing activity is performed.” Woodbury v. CH2M Hill, Inc., 335 Or. 154, 160 (2003).

(citation modified). “[L]iability is triggered if any of [the] three disjunctive tests is satisfied.”

Brown v. Boise-Cascade Corp., 150 Or. App. 391, 396 (1997).

“Common enterprise” liability requires that “both employees of the defendant and

employees of the direct employer of the plaintiff have intermingled duties and responsibilities in

performing the risk-creating activity” or that “equipment that the defendant controls is used in

performing that activity.” Yeatts, 360 Or. at 180. “Right to control” liability requires “some

source of legal authority” that the defendant “‘retained the right to control’ the pertinent risk-

producing activity” or some other basis “from which a retained right of control can be inferred.”

Id. at 184 (citation omitted). “Actual control” liability requires that the defendant “exercised

actual control over the manner or method in which the risk-producing activity . . . was

performed.” Id. at 182 (quoting Woodbury, 335 Or. at 163).

Here, most of Plaintiff’s allegations regarding Intel’s responsibility for Ingredients Café

are conclusory. Plaintiff alleges that the management of Ingredients Café was a “common

enterprise” under the control and direction of Defendants, who “1) retained the right to control

the work, including job site safety; 2) had actual control of the work; and/or 3) . . . engaged in

such on a common enterprise with Ingredients.” Compl., ECF 1 ¶ 6. Plaintiff also alleges

Defendants “acted as owner and overseer of management operations of the cafe” and “retained

the right to require additional safety measures and to inspect Plaintiff’s work site.” Id. ¶¶ 7, 22.

These allegations are merely threadbare recitals of the legal requirements for demonstrating

Defendant is an indirect employer under the ELL, so they are not entitled to the presumption of

truth given to well-pleaded factual allegations.

Plaintiff’s other factual allegations fail to demonstrate Intel is an indirect employer under

the ELL. Plaintiff alleges that Intel contracted with one or more co-defendants to provide food

services on its premises for its employees, id. ¶ 1(b), and that the catering manager of Ingredients

Café has an Intel email address, id. ¶ 1(e). These allegations do not provide a basis to infer that

Intel has liability as an indirect employer. First, these allegations do not show “common

enterprise” liability. These allegations do not provide a reasonable inference that Intel’s

employees have intermingled duties and responsibilities in performing the risk producing

activity, which plaintiff describes as “the use of unsecured mats on walking surfaces.” Id. ¶¶ 20–

21. These allegations also do not provide a reasonable inference that Intel controlled the

equipment used in that activity.

Second, Plaintiff has not shown that Intel had a right to control the risk-producing activity

based on the existence of contracts between Defendants and the catering manager’s Intel email

address. A contract is a source of legal authority, but Plaintiff asks this Court to wholly speculate

about the contents of contracts. A contract’s existence is not enough to find that Defendant

retained the right to control Plaintiff’s work. Further, a manager’s Intel email address does not

create an inference that Intel retained the right to control Plaintiff’s work.

Third, Plaintiff has not demonstrated that Intel actually controlled the work site where

Plaintiff was injured. Neither the existence of a contract nor the catering manager’s Intel email

address demonstrate that Intel had actual control over the manner or method in which Plaintiff

performed his work. Plaintiff has thus failed to allege facts demonstrating that Intel is an indirect

employer under common enterprise liability, right to control liability, or actual control liability.

Plaintiff has therefore failed to state a claim against Intel under the ELL.

C. Oregon Safe Employment Act

An owner can be liable under the OSEA when the defendant owner has violated an

applicable regulation. Brown, 150 Or. App. at 407–08. The regulation underlying the claim must

explicitly, or by nature, impose obligations on owners of premises. Id. at 408. Where a regulation

“by its terms applies only to employers,” it cannot support the imposition of OSEA negligence

per se liability against an owner. George v. Myers, 169 Or. App. 472, 485 (2000). Here, Plaintiff

only cites OSEA safety codes that impose obligations on employers. Compl., ECF 1 ¶ 27(a)

(“ORS 654.010. Employers to furnish safe place of employment.”); id. ¶ 27(b) (“29 CFR

§1926.20 . . . It shall be the responsibility of the employer”); id. ¶ 27(c) (“29 CFR §1926.21 . . .

Employer responsibility”); id. ¶ 27(d) (“OAR 437-001-0760 . . . Employers’ Responsibility”); id.

¶ 27(e) (“1910.22 . . . The employer must”); id. ¶ 27(f) (same). Because Plaintiff fails to identify

any safety codes that impose requirements on owners, Plaintiff has failed to state an OSEA

negligence per se claim against Defendant Intel.

CONCLUSION

Defendant Intel’s Motion to Dismiss, ECF 9 is GRANTED in full. Plaintiff’s (1)

common law negligence claim, (2) Employer’s Liability Law negligence claim, (3) Employer’s

Liability Law negligence claim based on the violation of safety codes, and (4) Oregon Safe

Employment Act negligence claim against Intel are DISMISSED with leave to amend. Plaintiff

is ORDERED to file an amended complaint that complies with this order within twenty-one (21)

days and no later than March 2, 2026.

IT IS SO ORDERED.

DATED this 9th day of February, 2025.

/s/ Karin J. Immergut

Karin J. Immergut

United States District Judge