Taylor v. National Express LLC et al

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IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
TODD TAYLOR,
Case No. 3:25-cv-01539-JR
Plaintiff,
FINDINGS & RECOMMENDATION
v.
NATIONAL EXPRESS LLC, DURHAM
HOLDING II, LLC, DURHAM SCHOOL
SERVICES, LP, HIRERIGHT, LLC, AND
NW ONSITE DRUG TESTING, LLC,
Defendants.
__________________________
RUSSO, Magistrate Judge:
Plaintiff, Todd Taylor, brings this action alleging disability discrimination and negligence
against defendants National Express LLC, Durham Holding II, LLC, and Durham School Services,
LP (collectively Durham)1, HireRight, LLC, and NW OnSite Drug Testing, LLC. Plaintiff moves
to remand this case to the Multnomah County Oregon Circuit Court and defendant HireRight
moves to dismiss the claims against it. For the reasons stated below, the motion to remand is denied
and the motion to dismiss is granted.
1 Plaintiff also names National Express, LLC as a defendant under the rubric of the Durham defendants. Defendant
National Express is the member-manager for Durham Holding, but it does not appear to have been separately served
and has not appeared in this action. It appears that National Express is now known as Summit School Services
which is 100% owned by Durham Holding.
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BACKGROUND and ALLEGATIONS
Plaintiff initiated this action on July 15, 2025, in the Circuit Court for the State of Oregon
for the County of Multnomah. On August 29, 2025, the Durham defendants removed the action to
this Court based on diversity jurisdiction asserting plaintiff is a resident of Oregon and the Durham
defendants (including National Express) are either organized under the laws of Delaware or have
their principal place of business in Illinois. In addition, defendant HireRight is organized under the
laws of Delaware with its principial place of business in Tennessee. However, defendant NW
OnSite Drug Testing is an Oregon limited liability company, but the Durham defendants assert it
has been fraudulently joined in this action.
In the operative complaint, plaintiff alleges Durham employed plaintiff as a professional
school bus driver. Complaint (ECF 1-1) at ¶ 7. On November 17, 2023, Durham subjected plaintiff
to a random drug and alcohol screening, conducted by defendant NW OnSite Drug Testing where
he underwent a breathalyzer test and was asked to provide a urine sample. Id. at ¶ 10. Plaintiff
alleges he passed the breathalyzer test but was unable to produce a sufficient urine sample after
multiple attempts with consumption of fluids. Id. at ¶ 11. Plaintiff asserts he has a history of shy
bladder but that he was not provided with a shy bladder evaluation form. Id. Plaintiff alleges
Durham's General Manager Michelle Hoyt then placed plaintiff on unpaid leave and sent him
home. Id. at ¶ 12.
Plaintiff alleges Hoyt was Durham's designated employer representative (DER) and was
responsible for overseeing Durham's drug and alcohol testing program. Id. at ¶ 13. Plaintiff alleges
Hoyt contacted him on November 28, 2023, and instructed him to pick up a shy bladder evaluation
form to take to his doctor. Id. ¶ 14. Plaintiff asserts:
On or about November 30, 2023, as instructed by Ms. Hoyt, Plaintiff submitted
documentation from his health care provider, physician assistant Bryce Annis, to
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Ms. Hoyt. That documentation indicated that Plaintiff was likely suffering from a
legitimate shy bladder syndrome.
Id. at ¶ 15.
Plaintiff alleges defendant HireRight provided the medical review officer (MRO). Id. at ¶
16. On December 14, 2023, plaintiff requested an update from Hoyt, and she responded she was
still waiting to hear from HireRight regarding the documentation she had submitted on plaintiff's
behalf. Id. at ¶ 17. Plaintiff asserts on January 4, 2024, Hoyt informed him HireRight had not
received the documentation, and she would provide more information on January 8, 2024. Id. ¶
18.
Plaintiff asserts:
Upon information and belief, HireRight rejected P.A. Annis's findings because he
was not a medical doctor and because his evidence was subjective. However, on or
about January 10, 2024, Annis indicated that he did have subjective evidence for
Plaintiff's shy bladder syndrome, that objective evidence could be obtained by a
urologist, and, that he was happy to refer Plaintiff to a urologist. Neither HireRight
nor Durham took any additional action to resolve the question of whether Plaintiff
had shy bladder syndrome.
Id. at ¶ 19.
Plaintiff alleges that on January 11, 2024, the Federal Motor Carrier Safety Administration
(FMCSA) informed him that he was now listed on the FMCSA Clearinghouse website with a
violation for refusal to test. Id. at ¶ 20. Plaintiff asserts he contacted Hoyt again and she promised
to re-submit his documentation to HireRight and she also promised to speak with Durham's safety
compliance officer. Id.
Plaintiff alleges that on January 23, 2024, Hoyt terminated plaintiff stating:
After a careful review by the Medical Review Officer, it has been determined that
there is no qualified medical reason under DOT for the donor's inability to produce
urine. Therefore, the termination is based on a refusal to test which will be reported
to the FMCSA Clearinghouse.
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Id. at ¶ 21.
Plaintiff asserts as a result of the negative report he is prohibited from driving
commercially. Id. at ¶ 22. In order to regain his commercial driving privileges, plaintiff asserts he
must surrender his CDL license and participate in FMSCA's return-to-duty process which involves
working with a substance abuse professional, even though he does not have a substance abuse
problem. Id.
Plaintiff alleges HireRight discriminated against him by failing to accommodate his
disability in subjecting him to a urine test when an alternative testing method was available. Id. at
¶¶ 29-30. Plaintiff alleges HireRight was negligent by failing to:
a. timely provide a Shy Bladder Evaluation Form
b. confer with Plaintiff on the testing results;
c. interview Plaintiff before making a verification decision;
d. direct Plaintiff to another physician;
e. timely notify Plaintiff of his test results; and
f. timely notify Plaintiff of HireRight's duties and responsibilities in
reporting positive test results.
Id. at ¶ 43.
Plaintiff alleges defendant NW OnSite Drug Testing (“NW OnSite”) discriminated against
him by failing to accommodate plaintiff’s disability in subjecting him to a urine test when an
alternative testing method was available. Id. at ¶ 33-34. Plaintiff alleges NW OnSite Drug testing
was negligent by failing to:
a. timely provide a Shy Bladder Evaluation Form; and
b. provide an alternative testing method when Plaintiff was unable to
produce a sufficient urine sample.
Id. at ¶ 47.
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DISCUSSION
A. 	Remand
As noted above, the Durham defendants removed this action asserting the lone non-diverse
defendant was fraudulently joined. Plaintiff moves to remand this action to state court arguing he
asserted a viable negligence claim against NW OnSite.
A defendant may remove a civil action brought in state court if there is original jurisdiction
in the district courts. 28 U.S.C. § 1441(a). Diversity removal requires complete diversity, meaning
that each plaintiff must be of a different citizenship from each defendant. Caterpillar Inc. v. Lewis,
519 U.S. 61, 68, (1996). In determining whether there is complete diversity, district courts may
disregard the citizenship of a non-diverse defendant who has been fraudulently joined. Chesapeake
& Ohio Ry. Co. v. Cockrell, 232 U.S. 146, 152 (1914).
Fraudulent joinder may be established by actual fraud in pleading jurisdictional facts or by
the inability of plaintiff to establish a cause of action against the non-diverse party. Hunter v. Philip
Morris USA, 582 F.3d 1039, 1044 (9th Cir. 2009). Here, the Durham defendants assert plaintiff
cannot establish a cause of action against NW OnSite. Fraudulent joinder can be established if the
Durham defendants show that an NW OnSite cannot be liable on any theory. See Ritchey v. Upjohn
Drug Co., 139 F.3d 1313, 1318 (9th Cir. 1998). But if there is a possibility that the Multnomah
County Court would find that the complaint states a cause of action against NW OnSite, this Court
must find that joinder was proper and remand the case to the state court. See Hunter, 582 F.3d at
1046. A defendant invoking federal court diversity jurisdiction on the basis of fraudulent joinder
bears a “heavy burden” since there is a “general presumption against [finding] fraudulent joinder.”
Id.
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Much like a motion to dismiss, courts typically look only to the plaintiff's pleadings to
determine removability, but in the case of fraudulent joinder, a defendant is entitled to present facts
showing the joinder is fraudulent so long as those facts go to the sufficiency of the purported claims
rather than a defense exogeneous to the cause of action itself. Ritchey, 139 F.3d at 1318–19.2 In
addition, courts must consider whether a deficiency in the complaint can possibly be cured by
granting the plaintiff leave to amend. Grancare, LLC v. Thrower by & through Mills, 889 F.3d
543, 550 (9th Cir. 2018).
As discussed below, an employment discrimination claim cannot be maintained against a
non-employer defendant. Plaintiff does not address the discrimination claim in his motion and the
Court finds plaintiff cannot establish unlawful discrimination under Or. Rev. Stat. § 654A. 112
against defendant NW OnSite as there can be no allegation NW OnSite employed plaintiff.3
Plaintiff asserts NW OnSite can be liable on a negligence theory because it had a special
relationship with plaintiff, and it failed: (1) in its duty to provide a shy bladder form to plaintiff;
(2) in its duty to urge the test subject to drink up to 40 ounces of fluid up to three hours prior to
the test; and (3) in its duty to immediately report the results to the DER.4
Defendant does not challenge that a special relationship existed between plaintiff and NW
OnSite. See, e.g., Spiker v. Sanjivan PLLC, 2013 WL 5200209, at *11 (D. Ariz. Sept. 16, 2013)
(public policy supports holding a collector accountable to the individuals whose specimens it
collects).
2 For instance, where a defendant raises a defense that requires a searching inquiry into the merits of the plaintiff's
case, even if that defense, if successful, would prove fatal courts decline to find fraudulent joinder. Grancare, LLC v.
Thrower by & through Mills, 889 F.3d 543, 548–49 (9th Cir. 2018).
3 Or. Rev. Stat. § 654A.112 prohibits employers from discriminating against employees on the basis of disability.
4 To the extent plaintiff alleges specifications of negligence not alleged in the operative complaint, the Court
evaluates the specifications for purposes of determining whether plaintiff could allege a cause of action against NW
OnSite in an amended complaint.
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To state a claim for negligence under Oregon law, a plaintiff must show that the defendant
owed plaintiff a duty, that the duty was breached, and that the breach caused the plaintiff harm.
See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14–17, 734 P.2d 1326, 1334-36 (1987).
With respect to the new allegation that NW OnSite failed to immediately report to the DER,
plaintiff alleges he was subject to the drug test on November 17, 2023, and that the DER "then
placed Plaintiff on unpaid leave and sent him home." Complaint (ECF 1-1) at ¶ 10-12. While it
appears that the regulations do indeed require immediate notification to the DER, 49 C.F.R. §
49.193(b)(1)(iv), the allegations suggest NW OnSite did just that. Moreover, plaintiff alleges
damages in the form of lost wages and benefits and distress related to loss of employment. It is not
plausible that a faster report would have mitigated this harm and indeed, the report of the failed
specimen collection is the alleged impetus behind the harm.
As to the alleged duty to urge consumption of fluids, the operative complaint alleges
plaintiff was unable to produce a sufficient urine sample after multiple attempts "consuming fluids,
and waiting unsuccessfully attempting again." Complaint (ECF 1-1) at ¶ 11. Thus, the complaint
itself negates this specification of negligence.
As to the duty to provide a shy bladder form, the regulations place that duty on the DER,
not on NW OnSite. See 40 C.F.R. § 193(a) (emphasis added) ("If an employee does not provide a
sufficient amount of specimen to permit a drug test (i.e., 45 mL of urine in a single void, or 2mL
oral fluid in a single sampling, as applicable) you, as the collector, must provide another
opportunity to the employee to do so. In accordance with the employer's instructions"); 40
C.F.R. § 193(c) ("As the DER, if the collector informs you that the employee has not provided a
sufficient amount of specimen …, you must, after consulting with the MRO, direct the employee
to obtain, within five days, an evaluation from a licensed physician, acceptable to the MRO, who
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has expertise in the medical issues raised by the employee's failure to provide [urine]."). This is
also crucial to plaintiff's allegation regarding a duty to collect an alternative specimen such as oral
fluid.5 Defendants demonstrate that the DER instructed NW OnSite to collect a urine sample and
did not instruct collection of an alternative specimen. Declaration of Michelle Aberle-Hoyt (ECF
2-1). Accordingly, plaintiff fails to establish a negligence claim against NW OnSite and thus
joinder of this defendant is fraudulent and may be disregarded for purposes of removal jurisdiction.
Without this defendant, complete diversity exists between the parties and the other requirements
for diversity jurisdiction are met. Accordingly, the motion to remand is denied.
B. 	Dismissal of Defendant HireRight
HireRight moves to dismiss contending it cannot be liable for unlawful employment
discrimination because it did not employ plaintiff and because plaintiff cannot establish a duty it
owed to plaintiff in support of a negligence claim.
1. 	Disability Discrimination
Plaintiff alleges HireRight discriminated against him by failing to accommodate his
disability pursuant to Or. Rev. Stat. § 654A.112. Plaintiff does not allege HireRight is his
employer. Section 654A.112 only makes an "employer" liable for discrimination in conditions of
employment on the basis of disability. Accordingly, the motion to dismiss this claim is granted.
2. 	Negligence
Plaintiff alleges HireRight was negligent in failing to timely provide the shy bladder form,
failing to confer with plaintiff on the testing results, failing to interview plaintiff before making
5 In addition, collectors like NW Onsite are not currently permitted to conduct oral fluid testing. 90 Fed. Reg. 18860
(May 2, 2025).
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verification decisions, failing to direct plaintiff to another physician, and failing to timely notify
plaintiff of HireRight's duties and responsibilities in reporting positive test results.
As noted above, to state a claim for negligence under Oregon law, a plaintiff must show
that the defendant owed the plaintiff a duty, that the duty was breached, and that the breach caused
the plaintiff harm. See, e.g., Fazzolari v. Portland School Dist., 303 Or. 1, 14–17, 734 P.2d 1326,
1334-36 (1987).
None of these alleged duties rest with the MRO and HireRight. The DER is required to
provide the shy bladder form as noted above under 49 C.F.R. § 193(c).
As the DER, if the collector informs you that the employee has not provided a
sufficient amount of specimen (see paragraph (b) of this section), you must, after
consulting with the MRO, direct the employee to obtain, within five days, an
evaluation from a licensed physician, acceptable to the MRO, who has expertise
in the medical issues raised by the employee's failure to provide a urine….
(1) As the MRO, if another physician will perform the evaluation,
you must provide the other physician with the following information
and instructions:
(i) That the employee was required to take a DOT drug test, but was
unable to provide a sufficient amount of specimen to complete the
test;
(ii) The consequences of the appropriate DOT agency regulation for
refusing to take the required drug test;
(iii) 	That 	the 	referral 	physician 	must 	agree 	to 	follow 	the
requirements of paragraphs (d) through (g) of this section.
49 C.F.R. § 40.193(c) (emphasis added).
As the referral physician conducting this evaluation, you must recommend that the
MRO make one of the following determinations:
(1) A medical condition has, or with a high degree of probability could have,
precluded the employee from providing a sufficient amount of specimen. As the
MRO, if you accept this recommendation, you must:
(i) Check “Test Cancelled” (Step 6) on the CCF; and
(ii) Sign and date the CCF.
(2) There is not an adequate basis for determining that a medical condition has, or
with a high degree of probability could have, precluded the employee from
providing a sufficient amount of specimen. As the MRO, if you accept this
recommendation, you must:
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(i) Check the “Refusal to Test” box and “Other” box in Step 6 on Copy 2 of the
CCF and note the reason next to the “Other” box and on the “Remarks” lines, as
needed.
(ii) Sign and date the CCF.
49 C.F.R. § 40.193(d).
Here, plaintiff alleges he was directed to obtain such evaluation but that he chose to use a
physician assistant. The regulations do not place the duty to supply the shy bladder form on the
MRO and nonetheless, the allegations show that the form was in fact provided by the DER as the
regulations direct. As to the remaining allegations regarding conferral, interview, direction to
another physician, and notification, these are not regulatory requirements of the MRO HireRight.
The regulations only require the MRO to contact the specimen donor upon confirmed positive test
results. 40 C.F.R. § 40.129. In this case, plaintiff did not submit a urine sample at all. To the extent
plaintiff alleges he was directed to the wrong medical professional, it was the DER's duty to
provide such direction after consulting with the MRO. There is no allegation that the MRO direct
the DER to have plaintiff seek out a physician assistant to fill out the required forms. Because
plaintiff cannot plausibly allege breach of any duty owed him by HireRight, the motion to dismiss
the negligence claim is granted. See Lacondeguy v. Adapa, 2011 WL 9572, at *3 (E.D. Cal. Jan.
3, 2011) (Court refuses to find a duty owed based on regulatory interpretation that goes beyond
the plain language of the C.F.R.). Plaintiff requests leave to amend if this motion is granted. While
it is unclear if plaintiff can salvage his claims with additional factual allegations, plaintiff may
seek leave to amend if he believes he can allege such facts.
CONCLUSION
Plaintiff's motion to remand (ECF 9) should be denied. Defendant HireRight's motion to
dismiss (ECF 17) should be granted.
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This recommendation is not an order that is immediately appealable to the Ninth Circuit Court
of appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure,
should not be filed until entry of the district court's judgment or appealable order. The parties shall
have fourteen (14) days from the date of service of a copy of this recommendation within which to
file specific written objections with the court. Thereafter, the parties shall have fourteen (14) days
within which to file a response to the objections. Failure to timely file objections to any factual
determination of the Magistrate Judge will be considered as a waiver of a party's right to de novo
consideration of the factual issues and will constitute a waiver of a party's right to appellate review
of the findings of fact in an order or judgment entered pursuant to this recommendation.
.
DATED this 8 th day of December, 2025.
_____________________________
Jolie A. Russo
United States Magistrate Judge
/s/ Jolie A. Russo
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