United States District Court, D. Arizona
Honorable John J. Tuchi United States District Judge
issue is Plaintiff Republic Services Procurement
Incorporated's Motion for Partial Judgment on the
Pleadings (Doc. 25, Mot.), to which Defendant TrueBlue
Incorporated filed a Response (Doc. 26, Resp.), and Plaintiff
filed a Reply (Doc. 28, Reply). The Court heard oral argument
on the Motion on May 14, 2019 (Doc. 32, Tr.).
February 20, 2011, Plaintiff and Defendant entered into a
National Temporary Labor Services Agreement (the
“Agreement”) whereby Defendant would provide
temporary laborers at facilities affiliated with Plaintiff.
(Doc. 1-1, Compl. ¶ 6.) The Agreement includes the
[Defendant] agrees to defend, hold harmless and
unconditionally indemnify [Plaintiff], [and Plaintiff's]
Affiliates . . . from and against all direct and indirect
losses, claims, demands, actions, causes of action,
liabilities, suits, debts, costs, expenses . . ., penalties,
fines, assessments and damages (collectively,
"Losses") [Plaintiff] may at any time suffer or
sustain or become liable for by reason of any accidents,
damages, violations, injuries, illness or diseases . . .
either to the employees or property or both of [Defendant] or
[Plaintiff] . . . in any manner caused by, resulting or
arising from or related to: . . . Losses asserted against
[Plaintiff] by or on behalf of [Defendant's] Personnel .
. . where such Losses are caused in whole or in part by any
actions of any third party or of [Defendant's] Personnel;
provided, however, that [Defendant] shall have no obligation
to defend, hold harmless, and indemnify for any Losses that
are caused solely by the negligent actions or failures to act
or strict liability of [Plaintiff] unless such Losses relate
to a claim against [Plaintiff] that if made against
[Defendant] would have been covered by workers'
compensation insurance, even if the claimant alleges that the
Losses are caused by the negligent actions . . . of
(Mot. Ex. 1 at 11-12.) The Agreement also provides that it
“may be modified or supplemented by the parties only if
done in writing and signed by an authorized representative of
each party.” (Mot. Ex. 1 at 13.)
August 17, 2015, Karen Newsuan, a laborer working under the
Agreement, was seriously injured at a Plaintiff-affiliated
facility (the “Newsuan Injury”). (Compl.
¶¶ 13- 14.) Also on August 17, 2015, an authorized
representative of Plaintiff at that facility signed a work
ticket (the “Work Ticket”) providing that
Plaintiff “shall comply with all applicable laws
relating to health and safety.” (Resp. at 3-4.) The
Work Ticket further stated that Plaintiff would hold harmless
Labor Ready, a subsidiary of Defendant, “from any
claims and all liability, caused or alleged to have been
caused by [Plaintiff's] breach of this agreement.”
(Resp. at 4.) Neither Labor Ready nor Defendant signed the
Work Ticket. (Tr. at 15.)
August 18, 2015, Plaintiff tendered its defense concerning
the Newsuan Injury to Defendant and requested immediate
defense and indemnification pursuant to the Agreement.
(Compl. ¶ 15.) Defendant refused to defend or indemnify
Plaintiff. (Compl. ¶ 16.) On August 8, 2017, Newsuan
filed a complaint against Plaintiff for her personal injuries
(the “Newsuan Action”). (Compl. ¶ 18.)
Plaintiff again requested that Defendant defend and indemnify
Plaintiff. (Compl. ¶ 20.) Defendant again refused.
(Compl. ¶¶ 21- 22.) Newsuan also filed a
workers' compensation claim against Defendant. (Doc. 12,
Countercl. ¶ 37.) Defendant paid workers'
compensation benefits to Newsuan for her work-related
injuries. (Countercl. ¶ 39.)
December 17, 2018, Plaintiff filed suit against Defendant in
Arizona state court. Defendant then removed the action to
this Court. (Doc. 1.) In the Complaint, Plaintiff raises
three claims against Defendant: (1) breach of duty to defend
and breach of express contractual indemnity (“Count
One”); (2) breach of contractual obligation to procure
insurance for Plaintiff and its affiliates (“Count
Two”); and (3) declaratory relief (“Count
Three”). (Compl. ¶¶ 32-33, 38, 44.) Defendant
filed a Counterclaim raising claims for subrogation and
breach of the covenant of good faith and fair dealing.
(Countercl. ¶¶ 49, 55.) Plaintiff now moves for
partial judgment on the pleadings as to Count One and Count
Three of the Complaint and Defendant's counterclaims.
(Mot. at 2.) Defendant voluntarily dismissed its subrogation
counterclaim but still maintains that Plaintiff breached the
covenant of good faith and fair dealing. (Resp. at 17.)
Rule of Civil Procedure 12(c) permits a party to move for
judgment on the pleadings “[a]fter the pleadings are
closed but within such time as not to delay the trial.”
In reviewing a Rule 12(c) motion, “all factual
allegations in the complaint [must be accepted] as true and
construe[d] . . . in the light most favorable to the
non-moving party.” Fleming v. Pickard, 581
F.3d 922, 925 (9th Cir. 2009).
motion for judgment on the pleadings should only be granted
if “the moving party clearly establishes on the face of
the pleadings that no material issue of fact remains to be
resolved and that it is entitled to judgment as a matter of
law.” Hal Roach Studios, Inc. v. Richard Feiner
& Co., Inc., 896 F.2d 1542, 1550 (9th Cir. 1989).
“Interpretation of a contract is a matter of law,
” United States v. King Features Entm't,
Inc., 843 F.2d 394, 398 (9th Cir. 1988), and thus is
susceptible to a motion for judgment on the pleadings.
Judgment on the pleadings under Rule 12(c) is warranted
“only if it is clear that no relief could be granted
under any set of facts that could be proved consistent with
the allegations.” Deveraturda v. Globe Aviation
Sec. Servs., 454 F.3d 1043, 1046 (9th Cir. 2006)
(internal citations omitted).
12(c) motion is functionally identical to a Rule 12(b)(6)
motion to dismiss for failure to state a claim, and the same
legal standard applies to both motions. Dworkin v.
Hustler Magazine, Inc., 867 F.2d 1188, 1192 (9th Cir.
1989). Specifically, a complaint- or in this instance, a
counterclaim-must include “only ‘a short and
plain statement of the claim showing that the pleader is
entitled to relief,' in order to ‘give the
defendant fair notice of what the . . . claim is and the
grounds upon which it rests.'” Bell Atl. Corp.
v. Twombly, 550 U.S. 544, 555 (2007) (quoting Conley
v. Gibson, 355 U.S. 41, 47 (1957)); see also
Fed. R. Civ. P. 8(a). A dismissal for failure to state a
claim can be based on either (1) the lack of a cognizable
legal theory or (2) insufficient facts to support a
cognizable legal claim. Balistreri v. Pacifica Police
Dep't, 901 F.2d 696, 699 (9th Cir. 1990).
“While a complaint attacked by a Rule 12(b)(6) motion
does not need detailed factual allegations, a plaintiff's
obligation to provide the ‘grounds' of his
‘entitle[ment] to relief' requires more than labels
and conclusions, and a formulaic recitation of the elements
of a cause of action will not do.” Twombly,
550 U.S. at 555 (citations omitted). The complaint must thus
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 Twombly, 550 U.S. at 570).