The request for the court to set aside the lawsuit ruling was due in part because its owner and attorney forgot about the case
The city of Portland’s primary private contractor for sweeps quietly lost a wrongful death lawsuit in January 2022, court records reveal. Nearly two years later, the company hasn’t paid up, and now it wants a do-over in court.
Multnomah County Circuit Court Judge Judith Matarazzo entered a default ruling against Rapid Response Bio Clean in a wrongful death lawsuit regarding the 2019 death of Debby Ann Beaver, 57, a homeless Portlander. Portland attorney Michael Fuller, on behalf of Beaver’s husband and son, argued Beaver died from complications as a result of Rapid Response workers seizing and failing to return her medication in a 2019 sweep just over a week before her death. The plaintiffs also allege Rapid Response workers found Beaver unresponsive the day of her death and failed to offer or render any aid.
Portland attorney Kelly Jones served as Beaver’s personal representative — essentially a stand-in for the decedent — in the case.
A 2021 proof of service filed in the case shows the for-profit hazardous waste removal company was served with a court summons via its registered agent, JDM Agent Services, on Sept. 30, 2021.
Fuller entered a motion for default judgment against Rapid Response on Dec. 1, 2021, after the company failed to respond. Matarazzo approved the judgment in favor of the Beaver estate Jan. 26, 2022. Multnomah County Circuit Court Judge Angela Franco Lucero subsequently ordered Rapid Response to pay the Beaver estate $45,000 with 9% annual interest in June 2022.
NEWS: Portland’s primary sweep contractor dogged by lawsuits, concerns, complaints
Almost two years later, Rapid Response is asking the court for a mulligan on the lawsuit. The reason? Well, its attorney and owner say they forgot about the lawsuit and never received a summons.
In legalese, Rapid Response’s attorney is asking for a court order “setting aside the order of default and default judgment,” arguing “Rapid Response’s failure to appear in this matter was the result of mistake or excusable neglect.” Rapid Response owner Lance Hamel also denies every relevant assertion in the complaint, saying Rapid Response workers never swept her or took her medicine and, therefore, never failed to return it, according to court documents.
Additionally, Hamel says Beaver was already dead when workers arrived and that 911 operators “advised to keep people back,” adding, “Although techs are trained to administer certain aid and Narcan, they are instructed not to do so under these circumstances.”
The city’s July 15-July 21, 2019 “Campsite Report” — the week plaintiffs say Rapid Response seized Beaver’s medication during a sweep — lists “SE 35th and SE Taylor,” the other end of the block where Beaver slept and the closest listed location, as a location to be “cleaned” that week. The city generates its “Campsite Reports,” now known as “Weekly Street Services reports,” from internal Rapid Response records.
The July 8-July 14, 2019 report lists “SE 35th and SE Taylor” under “identified for cleanup and are to be posted in the following weeks.” The July 22-July 28, 2019 report lists “SE 35th and SE Taylor” is listed under “Last week we cleaned the following posted locations.”
Rapid Response, its attorneys and JDM leadership initially told the court they had no idea about the lawsuit in statements in support of a motion to set aside the default judgment dated April 8. Since then, Rapid Response’s owner and the company’s attorney wrote amended statements saying they were notified about the lawsuit when it was filed in August 2021 but forgot about it.
At least one contemporary media report about the complaint also indicates media contacted the company and the city for comment on the suit nearly two months before the process server delivered the summons.
Measure once, cut twice
Rapid Response owner Lance Hamel told the court he first heard about the suit April 2 when a city employee notified him “a Street Roots reporter had reached out … for comment on a wrongful death lawsuit that Rapid Response had supposedly lost” in a statement dated April 8. He told the court he searched his emails and found no mention of the case, adding he didn’t believe he or anyone at Rapid Response ever received the complaint or summons.
Hamel’s amended statement is dated April 19, the day after a deposition in which the plaintiff’s attorney appearing “confident (Hamel) had been notified of this lawsuit when it was filed in 2021,” caused him to search his emails again.
“I located an email from August 2021 from my attorney to my insurance company attaching a copy of the lawsuit and a response from my insurer that I was cc’d on,” Hamel said in the amended statement. “I did not remember receiving this email. I do not know why I did not find this email in my prior email search.”
Rapid Response’s attorney, Amber Beyer of Cosgrave Vergeer Kester LLP in Portland, also told the court she’d never received the complaint and was unaware of the default judgment in a statement dated April 8. Beyer’s amended statement, dated April 19, like Hamel’s, confirms she “became aware” of the lawsuit in August 2021, and notified Rapid Response’s insurer and cc’d Hamel at the time.
“After an initial response from the insurer, I heard nothing further about the matter,” Beyer said in the amended statement. “At the time I signed and served my original declaration in this case, I had no recollection of having ever been aware of this matter.”
JDM owner Jonathan Mishkin told the court he had “no recollection of receiving the summons and complaint in this case,” but after reviewing internal records, he confirmed a legal assistant in his office received the summons and complaint, in a statement dated April 8. According to Mishkin, the assistant “did not follow (JDM’s) standard procedure for processing documents,” which caused a lack of notification to both him and Rapid Response.
Rapid Response did not respond to multiple requests for comment for this story.
Fuller highlighted the changes in Hamel and Beyer’s stories in a filing supporting an order to shorten Rapid Response’s deadline to produce documents, saying the developments should invalidate Rapid Response’s argument for setting aside the default ruling.
“At the same time Rapid Response was claiming that it had no notice in 2021 of this lawsuit having been filed, its attorneys were actively opposing the estate’s requests to produce documents, and Rapid Response would not disclose the identity of its insurance carrier as required by (discovery law),” Fuller said in the filing. “Then, on April 19, Rapid Response disclosed that it did in fact have documents proving that Rapid Response, and its attorneys, and its insurance carrier, all had actual knowledge of this lawsuit back when it was filed in 2021, despite Rapid Response’s sworn declarations and sworn deposition testimony to the contrary.
“The fact that Rapid Response, its attorneys, and even its insurance carrier, all had actual knowledge of this lawsuit back in 2021 is fatal to Rapid Response’s argument of excusable neglect.”
A staff member in the city's Impact Reduction Program answered questions about the case in early April but would only do so anonymously. Street Roots elected not to publish the responses in accordance with the newspaper's policy, which does not afford anonymity to public employees and officials except in extenuating circumstances. However, the staffer confirmed the city was aware of the suit when it was first filed in 2021.
Beyer and Fuller will eventually present their arguments for and against setting aside the default ruling in a show cause hearing, which the judge will use to determine if Rapid Response and its attorney’s argument of “excusable neglect” holds water.
The court has now delayed the hearing multiple times, most recently May 15, for two main reasons. The Beaver estate’s representation needs time to examine and respond to the defense’s claims, evidence and witnesses. And, Rapid Response did not officially file the motion to set aside the judgment or the declarations in support of the motion, until May 15.
The complaint
Beaver was sleeping at the intersection of Southeast 35th Avenue and Yamhill Street on July 16, 2019, when Rapid Response seized her belongings during a sweep, including her medication, according to the plaintiff’s complaint. Beaver, unable to retrieve her medication treating seizures, high blood pressure and diabetes, died eight days later in the same spot. Rapid Response workers found her unresponsive around the time of her death and did not offer any aid to revive Beaver, according to the complaint.
“Ms. Beaver lost her life in substantial part due to the wrongful acts and omissions of Rapid Response,” the complaint alleged. “Rapid Response wrongfully took Ms. Beaver’s medication in a sweep. Rapid Response wrongfully failed to return Ms. Beaver’s medication by the time of her death on July 24, 2019 at the corner of SE 35th and Yamhill.”
Street Roots published a commentary on the circumstances surrounding Beaver’s death in 2020.
Triple trouble
If the initial ruling holds up, Rapid Response will find itself on the losing side of three lawsuits in two years. Each lawsuit alleges Rapid Response exhibited illegal conduct against homeless Portlanders, particularly that Rapid Response improperly disposed of belongings it seized during homeless encampment sweeps rather than storing them for 30 days as mandated by its contract with the city and city code. The city also settled an additional 2021 class action lawsuit stemming from allegations against Rapid Response.
Rapid Response faces increasing concerns, dozens of complaints and multiple lawsuits in recent years regarding its treatment of homeless Portlanders and their belongings during city-ordered sweeps, as Street Roots reported on May 15. The Beaver case, currently one of at least three lawsuits Rapid Response lost since 2022, represents the most substantial ruling against the company.
Fuller represented homeless plaintiffs in the other two lawsuits, Lynette Snook and Joe Angel, a homeless couple who alleged Rapid Response unlawfully disposed of their belongings during a sweep of their encampment. A court arbitrator found in favor of the couple last year, ordering Rapid Response to pay damages for lost items and cover Fuller’s fees.
Fuller also joined Oregon Justice Resource Center attorneys in filing a 2021 class action lawsuit against the city regarding Rapid Response after he attached GPS tracking devices to clearly usable items before the high-profile 2021 Laurelhurst Park sweep. Fuller said GPS data showed Rapid Response workers took many of those items directly to the dump. The city later settled the suit out of court.
Accountability is rare for Rapid Response, according to critics who argue the company leverages its substantial legal budget and the city’s laissez-faire attitude toward compliance to avoid trouble.
Rather than a standard budgeted amount for Rapid Response, the city’s contract with the company — which also stipulates policies and requirements regarding employees — includes a “not to exceed” amount of $38.6 million over the course of 7 years. The city paid Rapid Response over $9.6 million for its services in the 2022-23 fiscal year, according to the city.
Editor's note: The city’s July 15-July 21, 2019, “Campsite Report" was not available when Street Roots originally published this story May 22. The city provided Street Roots with the report May 23. This story was updated with that information.
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