Winslow v. Hotbox Farms, LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PENDLETON DIVISION
MICHAEL WINSLOW,
Plaintiff,
v.
HOTBOX FARMS, LLC; SNJ ONLINE, LLC; DUSTY
B LLC; and STEVEN MELAND,
Defendants.
Case No. 2:24-cv-01002-HL
FINDINGS AND
RECOMMENDATION
______________________________________
HALLMAN, United States Magistrate Judge:
Plaintiff Michael Winslow brings these claims against Defendants Hotbox Farms, LLC
(“Hotbox Farms”), SNJ Online LLC (“SNJ”), Dusty B LLC (“Dusty B”), and Steven Meland
(“Meland”). Third Am. Compl. (“TAC”), ECF 42. Plaintiff’s Complaint includes claims for
violations of Oregon’s Employer Liability Law and negligence under Oregon law. Id. at ¶¶ 15–
36. This matter now comes before the Court on Hotbox Farms’, SNJ’s, and Meland’s (the
“Hotbox Defendants”) Motion to Dismiss under Fed. R. Civ. P. (“Rule”) 12(b)(6) for failing to
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state a claim for relief. Mot., ECF 44. For the reasons discussed below, the Hotbox Defendants’
Motion should be DENIED.1
BACKGROUND
The following facts are taken from Plaintiff’s Complaint and accepted as true for the
purposes of evaluating the Hotbox Defendants’ Motion to Dismiss. Teixeira v. Cnty. of Alameda,
873 F.3d 670, 678 (9th Cir. 2017) (explaining that a court must accept as true the allegations in
the complaint and construe them in favor of the plaintiff).
Plaintiff worked as a pipelayer for Warrington Construction. TAC ¶ 5. Warrington
Construction, which is not a party to this lawsuit, was “the underground excavation contractor on
the Cookies Ontario” cannabis dispensary. See id. at ¶¶ 5, 8, 10.
Hotbox Farms and SNJ are Oregon limited liability companies, and either one or both are
the owners of the Cookies Ontario project. Id. at ¶ 2. Meland was a member of Hotbox Farms
and SNJ. Id. at ¶ 3. And Dusty B was a general contractor on the Cookies Ontario project. Id. at
¶¶ 4, 7.
On February 27, 2023, Plaintiff “was working within an excavation on the [Cookies
Ontario] jobsite when the excavation caved in, seriously injuring him.” Id. at ¶ 10. The
excavation was “a ‘tie-in’ to the sewer main, [and it] was approximately 20 feet long, four feet
wide, and nine feet deep.” Id. “The excavation was bare earth and was not shored or otherwise
protected from caving in or collapsing.” Id. When the excavation collapsed, Plaintiff “suffered
serious, permanent, and disabling injuries.” Id. at ¶ 12.
Plaintiff first filed this Complaint on June 24, 2024. ECF 1. He filed his First Amended
Complaint, which added Dusty B as a defendant, on November 4, 2024. ECF 15. Plaintiff filed
1 This Court concludes that this matter is proper for resolution without oral argument.
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the Second Amended Complaint, which added Meland as a defendant, on November 25, 2024.
ECF 19. And after the claims against the Hotbox Defendants in that Complaint were dismissed,
see Findings & Rec. (“FR”), ECF 39; see also Order, ECF 41 (adopting the FR), Plaintiff filed
this Complaint on June 12, 2025, ECF 42.
Plaintiff brings three claims of negligence per se based on alleged violations of Oregon’s
Employer Liability Law, Or. Rev. Stat. (“ORS”) §§ 654.305, 654.310, and three claims of
negligence under Oregon common law. TAC ¶¶ 15–36.2 Plaintiff alleges that his work in the
excavation “was work involving risk or danger.” Id. at ¶ 11. And he further alleges that each
defendant “retained the right to control the risk producing activity or condition causing harm” to
him. See id. at ¶¶ 16, 25, 29, 34.
As to Defendants Hotbox Farms and SNJ, Plaintiff alleges that they contractually
retained the right to control construction work performed on the Cookies Ontario project. Id. at ¶
16(a). For example, Plaintiff identifies a portion of SNJ’s contract with Radix, a subsequent
general contractor, see id. at ¶ 9,3 that allowed SNJ to stop work that did not comply with the
contract. Id. at ¶ 16(a). That contract establishes that the contractor is responsible to SNJ for the
acts and omissions of the contractor’s employees, as well as any subcontractor’s employees. Id.
at ¶ 16(b). And it notes that any subcontractors “will be paid/legal will be taken care of by
[SNJ.]” Id. at ¶ 16(c). Plaintiff alleges—on information and belief—that SNJ and Hotbox Farms
2 Because Defendant Dusty B has not separately moved to dismiss or joined in the Hotbox
Defendants’ Motion, see Answer, ECF 28, this Court’s discussion will focus on the claims
against the Hotbox Defendants.
3 Meland entered into this contract on behalf of SNJ. TAC ¶ 9. It was dated before Plaintiff’s
injury, but it did not take effect until after Plaintiff was injured. Id. There is no dispute as to
whether that contract controlled or bound the Parties here. Rather, Plaintiff appears to reference
it to allege that the Hotbox Defendants executed similar contracts with Dusty B and Plaintiff’s
employer, and that those contracts established the requisite “right to control” needed for
Plaintiff’s claims.
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“contractually retain[ed] the same or similar rights, as well as the right to enforce safety and
OSHA rule compliance,” with respect to Dusty B and Plaintiff’s employer. Id. at ¶¶ 16(d)-(e).
Plaintiff further alleges that SNJ and Hotbox Farms retained the authority to (1) control the
means and methods of construction on the jobsite; (2) enforce compliance with safety
requirements; and (3) hire and fire contractors and subcontractors, including for noncompliance
with safety standards. Id. at ¶¶ 16(f)-(h). And Plaintiff alleges that, “by either firing or electing
not to hire Dusty B as general contractor and removing it from the project,” SNJ and Hotbox
Farms caused the jobsite to be unsupervised by a general contractor and caused Plaintiff’s
employer “to be working under the specific direction of the Hotbox Defendants alone.” Id. at ¶
16(i).
Plaintiff argues that Hotbox Farms and SNJ failed to “use every device, care and
precaution which was practicable to use for the protection and safety of employees.” Id. at ¶ 17.
That includes (1) removing the general contractor, (2) directing Plaintiff’s employer to continue
without a general contractor, (3) acting as general contractor without the requisite knowledge
and skills, (4) failing to ensure that a shoring or protection system was in place to protect
workers during an excavation, (5) failing to have the excavation inspected, (6) failing to provide
protection from falling or rolling loose rock or soil from an excavation face, (7) and failing to
inspect the excavation or remedy the deficiencies that would have been found by an inspection.
Id. at ¶¶ 17(a)-(k), 26, 30.
Plaintiff alleges that Meland, as an agent or employee—or both—of SNJ and Hotbox
Farms, “was the individual who personally undertook all of the actions attributable to either
company.” Id. at ¶ 34. And he alleges that Meland was negligent and personally failed to
adequately protect employees in the same ways detailed above. Id. at ¶ 35(a)-(k).
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The Hotbox Defendants now move to dismiss under Rule 12(b)(6) for failing to state a
claim for relief. Mot.
STANDARDS
I. 	Rule 12(b)(6) motion to dismiss.
A pleading must contain “a short and plain statement of the claim showing that the
pleader is entitled to relief.” Fed. R. Civ. P. 8(a)(2). And under Rule 12(b)(6), a party may move
to dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R.
Civ. P. 12(b)(6). A court may dismiss “based on the lack of a cognizable legal theory or the
absence of sufficient facts alleged” under a cognizable legal theory. UMG Recordings, Inc. v.
Shelter Cap. Partners LLC, 718 F.3d 1006, 1014 (9th Cir. 2013).
The pleading standard under Rule 8 “does not require ‘detailed factual allegations,’ but it
demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v.
Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007));
see also Fed. R. Civ. P. 8(a)(2). “A pleading that offers labels and conclusions or a formulaic
recitation of the elements of a cause of action will not do.” Iqbal, 556 U.S. at 678; see also Kwan
v. SanMedica Int’l, 854 F.3d 1088, 1096 (9th Cir. 2017). A complaint also does not suffice if it
tenders “naked assertion[s]” devoid of “further factual enhancement.” Twombly, 550 U.S. at 557.
“Rule 8 does not empower [the] respondent to plead the bare elements of his cause of action . . .
and expect his complaint to survive a motion to dismiss.” Iqbal, 556 U.S. at 687.
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.” Twombly, 550 U.S. at
570; see also CallerID4u, Inc. v. MCI Commc’ns Servs. Inc., 880 F.3d 1048, 1061 (9th Cir.
2018). “A claim has facial plausibility when the plaintiff pleads factual content that allows the
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court to draw the reasonable inference that the defendant is liable for the misconduct alleged.”
Iqbal, 556 U.S. at 678 (internal citations omitted); Teixeira, 873 F.3d at 678. The plausibility
standard is not akin to a “probability requirement,” but it asks for more than a sheer possibility
that a defendant has acted unlawfully. Twombly, 550 U.S. at 556. When a plaintiff’s complaint
pleads facts that are “merely consistent with” a defendant’s liability, the plaintiff’s complaint
“stops short of the line between possibility and plausibility of ‘entitlement to relief.’” Id. at 557
(brackets omitted).
II. 	Oregon’s Employer Liability Law (ELL) and negligence per se.
Oregon’s Employer Liability Law (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.” Woodbury v. CH2M Hill, Inc., 335 Or. 154, 159 (2003). It does not create a cause of
action, rather, “an action under the ELL is ‘an action for negligence with a higher standard of
care.’” Harrison v. Vale Oregon Irrigation Dist., No. 2:23-cv-00334-HL, 2024 WL 1343123, at
*5 (D. Or. Mar. 29, 2024) (quoting Miller v. Goodyear Tire & Rubber Co., 434 F. Supp. 3d 877,
882 (D. Or. 2020)). “[A] violation of the [ELL] is negligence per se.” Skeeters v. Skeeters, 237
Or. 204, 217 (1964) (en banc). “[I]t is not any random violation of the statutory duty which will
make the employer liable, but violation by inadequate performance of a duty which, if properly
performed, would have prevented the injury.” Id.
A. 	Right to control and actual control.
“The ELL applies both to direct and indirect employers.” Thom v. Rokstad Power Inc.,
No. 3:23-cv-00454-AN, 2023 WL 4975963, at *1 (D. Or. Aug. 2, 2023). Indirect employers can
be liable under three theories: (1) common enterprise, (2) retained right to control, or (3) actual
control. Id. (citing Woodbury, 335 Or. at 160).
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As relevant here, “[t]o establish that defendant ‘retains a right to control,’ plaintiff ‘must
identify some source of legal authority for that perceived right.” Harrison, 2024 WL 1343123, at
*5 (citing and quoting Boothby v. D.R. Johnson Lumber Co., 341 Or. 35, 41 (2006)). Ultimately,
the indirect employer must “hav[e] charge of, or responsibility for” the work involving a risk or
danger. ORS § 654.305; see also Wilson v. Portland Gen. Elec. Co., 252 Or. 385, 390 (1968)
(explaining that, “[i]n order for an owner to be subject to the duties imposed by the statute he
must be one ‘having charge of, or responsible for’ the work”), overruled in part on other
grounds by Yeatts Whitman v. Polygon Nw. Co., 360 Or. 170, 185–92 (2016).
B. 	ELL claims based on ORS § 654.305.
ORS § 654.305 provides that, subject to certain limitations, “all owners, contractors or
subcontractors and other persons having charge of, or responsibility for, any work involving a
risk or danger to the employees . . . shall use every device, care and precaution that is practicable
to use for the protection and safety of life and limb . . . .” See also Yeatts Whitman, 360 Or. at
179 (citing and quoting ORS § 654.305) (explaining that the statute “imposes liability on ‘all
owners, contractors or subcontractors and other persons having charge of, or responsibility for’
work involving a risk or danger”).
C. 	ELL claims based on ORS § 654.310.
The ELL also provides that:
All owners, contractors, subcontractors, or persons whatsoever, engaged in the
construction, repairing, alteration, removal or painting of any building, bridge,
viaduct or other structure, or in the erection or operation of any machinery, or in
the manufacture, transmission and use of electricity, or in the manufacture or use
of any dangerous appliance or substance, shall see that all places of employment
are in compliance with every applicable order, decision, direction, standard, rule
or regulation made or prescribed by the Department of Consumer and Business
Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and 654.750 to
654.780.
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ORS § 654.310.
In short, a plaintiff must demonstrate that a defendant “violated an ‘applicable order,
decision, direction, standard, rule or regulation made or prescribed by the Department of
Consumer and Business Services pursuant to ORS 654.001 to 654.295, 654.412 to 654.423 and
654.750 to 654.780.’” Anderson v. Intel Corp., No. 3:20-cv-02138-AC, 2021 WL 1401492, at
*10 (D. Or. Apr. 14, 2021) (quoting and applying ORS § 654.310).
III. 	Negligence.
To establish negligence under Oregon common law, a plaintiff must prove that the
defendant’s conduct “created a foreseeable and unreasonable risk of legally cognizable harm to
the plaintiff and that the conduct in fact caused that kind of harm to the plaintiff.” Sloan ex rel.
Sloan v. Providence Health Sys.-Oregon, 364 Or. 635, 643 (2019); Stewart v. Jefferson Plywood
Co., 255 Or. 603, 609 (1970) (explaining that, under Oregon law, an actor is negligent if he
“ought reasonably to foresee that he will expose another to an unreasonable risk of harm”).
However, “liability in negligence does not extend to every failure to prevent a foreseeable
injury,” rather “‘a status, a relationship, or a particular standard of conduct’ may ‘create, define,
or limit’ a defendant’s duty to act.” Boothby, 341 Or. at 46 (cleaned up) (quoting Fazzolari ex
rel. Fazzolari v. Portland Sch. Dist. No. 1J, 303 Or. 1, 17 (1987)).
“[A]s a general rule, a person who hires an independent contractor is not liable to the
contractor’s employees for injuries that they sustain while performing contracted work[.]” Id.
(citing Warner v. Synnes, 114 Or. 451, 458 (1924), adhered to on reh’g, 114 Or. 451 (1925)).
And “a person’s liability in negligence for work involving a risk or danger is generally no more
extensive than [their] liability for that work under the ELL.” Id.; see also Howard v. Foster &
Kleiser Co., 217 Or. 516, 533 (1958) (en banc) (“If recovery cannot be had in this case under the
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[ELL], it follows that none is available under the common-law rule of due care.”). Indeed, the
ELL imposes a higher standard of care on employers than does the common law. Yeatts
Whitman, 360 Or. at 196–97.
DISCUSSION
For the reasons discussed below, Plaintiff’s Complaint states a claim for relief, and the
Hotbox Defendants’ Motion to Dismiss should be DENIED.
I. 	Negligence per se under ORS § 654.305.
The Hotbox Defendants argue that Plaintiff’s Complaint fails to plead facts from which
this Court can infer that they are his indirect employers and retained the right to control the work
involving risk or danger. Mot. 4–7. This Court disagrees.
As clarified by Plaintiff’s Response, he is proceeding under the theory that Hotbox Farms
and SNJ retained the right to control the excavation work that led to his injury. Resp. 2, ECF 46.
As described above, Plaintiff alleges that SNJ’s contract with Radix is similar to those entered
into with Dusty B and Plaintiff’s employer. TAC ¶¶ 16(d)-(e). The contract language identified
by Plaintiff includes a right to stop non-conforming work. Id. at ¶ 16(a). And critically, Plaintiff
further alleges—on information and belief—that the Hotbox Defendants retained the right to
enforce safety and OSHA rule compliance in their contracts with Dusty B and Plaintiff’s
employer. Id. at ¶¶ 16(d)-(e). Based on those provisions, Plaintiff alleges that Hotbox Farms and
SNJ retained the authority to control the means and methods of construction—as well as enforce
safety requirements—on the jobsite. Id. at ¶¶ 16(f)-(g).
Those allegations are sufficient to establish Hotbox Farms’ and SNJ’s liability as indirect
employers under the ELL. Plaintiff has identified legal authority—the contracts between the
Hotbox Defendants and Dusty B and Plaintiff’s employer—for his allegation that they retained
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the right to control the work. Although the Hotbox Defendants dispute the relevance of the Radix
contract, see Mot. 6, this Court construes Plaintiff’s reliance on it as being limited to providing
factual support for the provisions that he alleges are present in the contracts that were in effect
when he was injured. And because this Court must view the allegations—and inferences based
on them—in the light most favorable to Plaintiff, the Hotbox Defendants’ arguments about the
legal effect of the identified provisions, id., must be resolved at a subsequent stage of the
proceedings.
The Hotbox Defendants further argue that Plaintiff’s allegations “on information and
belief” are conclusory, id. at 6–7, and they violate the rules of pleading by failing to state the
factual basis for that belief, Reply 5 n.12, ECF 48. Here too, this Court disagrees. As an initial
matter, Plaintiff’s allegation that there are contractual provisions establishing that the Hotbox
Defendants retained the right to control the work and enforce safety codes is distinct from a bare
allegation that they retained such a right. Indeed, this Court can infer that those allegations are
based in part upon the provisions of the Radix contract identified in the Complaint. But in any
event, the Hotbox Defendants are mistaken in their argument that Plaintiff cannot make the
allegations “on information and belief.” The case cited by the Hotbox Defendants, Neubronner v.
Milken, 6 F.3d 666, 672 (9th Cir. 1993), explains that—due to Rule 9(b)’s heightened pleading
requirements—allegations of fraud may not be pleaded solely on information and belief. But for
claims not involving fraud or mistake, allegations based on information and belief “have been
held to be permissible, even after the Twombly and Iqbal decisions.” Charles Alan Wright &
Arthur R. Miller, 5 Federal Practice and Procedure § 1224 (4th ed.); see also Gonzalez v. Cnty.
of Merced, No. 1:16-cv-01682-LJO-SAB, 2017 WL 2345681, at *7–8 (E.D. Cal. May 30, 2017)
(discussing the justifications for allowing pleadings based on information and belief), report and
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recommendation adopted, 2017 WL 2812928 (E.D. Cal. June 29, 2017). Thus, Plaintiff’s use of
allegations based on information and belief state a claim for relief under the ELL.
In sum, this Court finds that Plaintiff has stated a claim for negligence per se under ORS
§ 654.305 because he alleged that Hotbox Farms and SNJ are his indirect employers and retained
a right to control the work involving risk or danger. Therefore, the Hotbox Defendants’ Motion
to Dismiss on that basis should be DENIED.
II. 	Negligence per se under ORS § 654.310.
Hotbox Farms and SNJ argue that, because the Complaint fails to plead sufficient facts to
establish their liability as indirect employers, the claim brought under ORS § 654.310 should
also be dismissed. Mot. 8. Based on its finding above, this Court disagrees.
“[ORS] § 654.310 imposes indirect employer liability under the ELL to the same extent
and employing the same analysis as [ORS] § 654.305.” Anderson, 2021 WL 1401492, at *10
(citing cases). Thus, where a plaintiff has established that a defendant is an indirect employer
under ORS § 654.305, stating a claim under ORS § 654.310 requires the plaintiff to allege that
the defendant “violated an ‘applicable order, decision, direction, standard, rule or regulation
made or prescribed by the Department of Consumer and Business Services.’” Quirk v. Skanska
USA Bldg., Inc., No. 3:16-cv-0352-AC, 2018 WL 2437537, at *25 (D. Or. May 30, 2018)
(quoting ORS § 654.310).
As discussed above, Plaintiff included sufficient facts to demonstrate that Hotbox Farms
and SNJ are indirect employers based on their right to control the work involving risk or danger.
And Plaintiff has alleged that Hotbox Farms and SNJ violated multiple rules and regulations
promulgated by the Department of Consumer and Business Services. See TAC ¶ 26. Therefore,
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this Court finds that Plaintiff has also stated a claim for negligence per se under ORS § 654.310,
and the Hotbox Defendants’ Motion to Dismiss on that basis should be DENIED.
III. 	Negligence against Hotbox Farms, SNJ, and Meland.
The Hotbox Defendants argue that the Complaint “is devoid of any facts establishing a
basis for holding [them] responsible for these claimed instances of negligence.” Mot. 8. Here too,
the Court disagrees.
As noted, the general rule is that a person who hires an independent contractor is not
liable to the contractor’s employees for injuries that they sustain while performing contracted
work. Boothby, 341 Or. at 46; see also Prince v. Joe Cronin Logging, LLC, 342 Or. App. 288,
292 (2025) (“In a negligence case, the specialized contractor doctrine potentially limits the duty
of a principal who retains an independent contractor to undertake a specialized task within the
contractor’s expertise.”). But that limitation is based on the extent of the employer’s control over
the independent contractor. Boothby, 341 Or. at 46 (explaining that, where a defendant had no
control over the way a subcontractor operated, that defendant had no duty under the ELL or
under common law negligence). “The right to exercise control is decisive,” and “[w]hether that
right exists is determined by examining the employment arrangement.” Soderback v. Townsend,
57 Or. App. 366, 369 (1982) (internal citation omitted).
First, as to Hotbox Farms and SNJ, the Complaint alleges that they retained the right to
control the excavation work, including by enforcing safety requirements. TAC ¶¶ 16(d)-(g), 29.
And Plaintiff alleges that they “therefore assumed responsibility for the project and its safety at
the time of [P]laintiff’s injury, beyond what would be expected from a passive owner of a
project.” Id. at ¶ 29. Those allegations establish a basis for holding Hotbox Farms and SNJ
responsible for the circumstances leading to Plaintiff’s injury.
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With regard to Meland, the Complaint alleges that he personally relieved Dusty B from
its duties as the general contractor, directed Plaintiff’s employer to continue work on the
excavation, and acted “as general contractor despite lacking the requisite knowledge and skills.”
Id. at ¶¶ 35(a)-(d). And Plaintiff alleges that Meland failed to ensure that there was shoring in
place, inspect the excavation, or remedy the deficiencies that would have been identified. Id. at
¶¶ 35(f)-(k). Here too, those allegations establish a basis for holding him responsible for the
circumstances leading to Plaintiff’s injury.
In sum, the Hotbox Defendants’ Motion to Dismiss on that basis should be DENIED.
RECOMMENDATION
The Hotbox Defendants’ Motion to Dismiss, ECF 44, should be DENIED.
SCHEDULING ORDER
The Findings and Recommendation will be referred to a district judge. Objections, if any,
are due fourteen (14) days from service of the Findings and Recommendation. If no objections
are filed, then the Findings and Recommendation will go under advisement on that date.
A party’s failure to timely file objections to any of these findings will be considered a
waiver of that party’s right to de novo consideration of the factual issues addressed herein and
will constitute a waiver of the party’s right to review of the findings of fact in any order or
judgment entered by a district judge. These Findings and Recommendation are not immediately
appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1)
of the Federal Rules of Appellate Procedure should not be filed until entry of judgment.
DATED this 22nd Day of October, 2025.
___________________________
ANDREW HALLMAN
United States Magistrate Judge
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