Stoltz v. Fry Foods, Inc.

Filing 17

MEMORANDUM DECISION AND ORDER Plaintiff's Motion to Stay (Dkt. 12 ) is DENIED. Defendant's Motion to Dismiss (Dkt. 6 ) is GRANTED, and this suit is hereby DISMISSED with prejudice. Signed by Judge B. Lynn Winmill. (caused to be mailed to non Registered Participants at the addresses listed on the Notice of Electronic Filing (NEF) by (jp)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF IDAHO
TOBBY STOLTZ, an individual,
Case No. 1:14-cv-00186-BLW
Plaintiff,

MEMORANDUM DECISION AND
ORDER

v.
FRY FOODS, INC., an Ohio corporation,
Defendant.

INTRODUCTION
Before the Court are two motions filed by the parties. In a somewhat unusual
motion, Plaintiff Tobby Stoltz asks this Court to stay this case so that he may finish
litigating a substantively identical suit he brought against Defendant Fry Foods, Inc. in
Oregon state court. Pl.’s Motion to Stay, dkt. 12. Fry Foods opposes this motion, in part
because Fry Foods moved to dismiss Stoltz’s complaint in this suit as time barred before
Stoltz asked for a stay. Def.’s Motion to Dismiss, dkt. 6. For the following reasons, the
Court will deny Stoltz’ motion and grant Fry Foods’ motion.
BACKGROUND
Fry Foods hired Duane L. Bellows Construction, Inc. (“DLB Construction”) to
perform repair work at Fry Foods’ Weiser, Idaho plant. Compl., dkt. 12-1, ex. A, ¶8. On
November 14, 2011, Stoltz, an employee of DLB Construction, was repairing a truss in

MEMORANDUM DECISION AND ORDER - 1

the attic of the plant when he fell approximately twenty feet through an area of
unsupported sheetrock. Id. ¶¶8-9. Stoltz was serious injured in the fall. Id. ¶10.
On November 8, 2013, Stoltz filed suit against Fry Foods in Multnomah County
Circuit Court. Id. ¶7. Fry Foods moved to dismiss Stoltz’s Oregon suit on the grounds
that Oregon courts did not have personal jurisdiction over Fry Foods. The Oregon trial
court granted that motion and initially ordered the case transferred to Idaho. Id. at 7.
However, after additional briefing, the Oregon trial court vacated its transfer order and
dismissed the suit without prejudice. Id.; Amended Order, dkt. 14-4, ex. B.
In response, Stoltz did two things. First, he appealed the dismissal of his Oregon
suit to the Oregon Court of Appeals. Notice of Appeal, dkt. 14-5, ex. C. That appeal is
currently pending. Second, Stoltz filed a parallel suit to his Oregon suit in Idaho’s Third
Judicial District Court. See Compl., dkt. 12-1, ex. A, ¶7. In his complaint, Stoltz alleged
that Fry Foods negligently failed to maintain a safe working space for Stoltz, and that Fry
Foods’ negligence was the proximate cause of his injuries. Id. at 18-19. Stoltz also
alleged that Fry Foods contracted with DLB Construction “to make the premises safe for
DLB Construction employees to perform the repair work” at the Weiser plant, which Fry
Foods allegedly breached. Id. at 20, ¶24. Finally, Stoltz alleged that Fry Foods failure to
support the sheetrock was a construction defect.
Fry Foods removed Stoltz’s Idaho complaint to this Court, and moved to dismiss
the complaint. Dkts. 1, 6. According to Fry Foods, the statute of limitations for filing a
personal injury action in Idaho is two years. Therefore, Fry Foods argues the time to file

MEMORANDUM DECISION AND ORDER - 2

a complaint based on the November 14, 2011, accident expired on or about November
15, 2013. Stoltz opposed Fry Foods’ motion to dismiss and filed a motion to stay this
suit pending resolution of his Oregon suit. Both motions are fully briefed and suitable for
decision without oral argument.
DISCUSSION
1.

Motion to Stay
Stoltz asks the Court to stay these proceedings pending resolution of his case in

Oregon. Although Stoltz primarily asks for a stay pursuant to Landis v. North American
Co., 299 U.S. 248 (1936), he also suggests that some, but not all, of the factors
enumerated in Colorado River Water Conservation District v. United States, 424 U.S.
800 (1976), and its progeny support a stay. Stoltz argues, however, that, because he
“does not ask for declination of jurisdiction or dismissal . . . , [he] is not required to make
a showing of ‘exceptional circumstances,’” which is a normal requirement for full-blown
Colorado River abstention. Pl.’s Stay Memo, dkt. 12-1, at 10. This argument raises the
question: Which standard, Landis or Colorado River, controls the resolution of Stoltz’s
motion to stay?1

1

Stoltz also suggests that the Court borrow from Brillhart v. Excess Insurance Co. of America,
316 U.S. 491 (1942), and its progeny, which concern staying a federal declaratory action pending the
resolution of a related case in state court. The Brillhart factors, however, apply only in declaratory
actions. Scotts Co. LLC v. Seeds, Inc., 668 F.3d 1154, 1158 (9th Cir. 2012). “Claims that exist
independent of the request for a declaration . . . are instead evaluated under the Colorado River doctrine.”
Id. (alteration, citation, and internal quotation marks omitted).

MEMORANDUM DECISION AND ORDER - 3

The question is not purely academic. “In abstention cases, discretion must be
exercised within the narrow and specific limits prescribed by the particular abstention
doctrine involved.” Travelers Indem. Co. v. Madonna, 914 F.2d 1364, 1367 (9th Cir.
1990) (internal quotation marks omitted). And while both Landis and Colorado River
allow federal courts to stay a case out of concern for “wise judicial administration,”
Colorado River, 424 U.S. at 818; Landis, 299 U.S. at 254, the two doctrines are not
interchangeable. In the typical Landis stay case, a federal court postpones resolution of
the case pending some related proceeding. However, the related proceeding typically
serves only to narrow the factual or legal issues for the federal court. In Landis, for
example, the Court considered the propriety of a stay to allow the attorney general to
litigate in a separate test case the constitutionality of an S.E.C. regulation. 299 U.S. at
250-51. Although that was the primary issue in all of the cases, the Court recognized that
resolution of the test case “may not settle every question of fact and law” in the
remaining cases. Id. at 256; see also CMAX, Inc. v. Hall, 300 F.2d 265, 269 (9th Cir.
1962) (upholding a stay because a related agency proceeding “provide[d] a means of
developing comprehensive evidence bearing upon the highly technical tariff questions
which [were] likely to arise in the district court case”). Furthermore, a Landis stay is
generally of a limited duration. See Landis, 299 U.S. at 256 (“[T]he individual may be
required to submit to delay not immoderate in extent . . . .”); id. at 255 (stating that a
district court abuses its discretion by entering a “stay of indefinite duration in the absence
of a pressing need”); Belize Soc. Dev. Ltd v. Belize, 668 F.3d 724, 730 (D.C. Cir. 2012)

MEMORANDUM DECISION AND ORDER - 4

(“The stay at issue may be sufficiently indefinite as to require a finding of pressing need
[under Landis], . . . but it is not so indefinite as to constitute the equivalent of a dismissal
under the ‘effectively out of court’ doctrine.”).
In contrast, a decision to refrain from hearing a case under Colorado River
represents a complete abdication of “the virtually unflagging obligation of the federal
courts to exercise the jurisdiction given them.” 424 U.S. at 817. It is only where the
parallel state case will dispose of “all or an essential part of the federal suit” that a stay is
appropriate. Moses H. Cone Mem’l Hosp. v. Mercury Const. Corp., 460 U.S. 1, 10 n.11
(1983); see id. at 28 (“When a district court decides to dismiss or stay under Colorado
River, it presumably concludes that the parallel state-court litigation will be an adequate
vehicle for the complete and prompt resolution of the issues between the parties.”); Smith
v. Cent. Ariz. Water Conservation Dist., 418 F.3d 1028, 1033-34 (9th Cir. 2005); Holder
v. Holder, 305 F.3d 854, 868 (9th Cir. 2002) (reversing a stay “[b]ecause there [wa]s
substantial doubt that a final determination in the [state] custody proceeding [would]
resolve all of the issues in [the federal suit]”). Given the narrowness of the Colorado
River doctrine, federal courts have insisted that the “relevant standard prescribed by [the]
Court” be met. Moses H. Cone, 460 U.S. at 19; Scotts Co. LLC v. Seeds, Inc., 688 F.3d
1154, 1158 (9th Cir. 2012) (“The federal district courts ordinarily must apply the test
outlined in Colorado River . . . in determining whether to stay federal proceedings in
favor of pending state court proceedings concerning the same subject matter.”) (quoting
40235 Wash. St. Corp. v. Lusardi, 976 F.2d 587, 588 (9th Cir. 1992)); Travelers, 914

MEMORANDUM DECISION AND ORDER - 5

F.2d at 1367 (“[T]he district court’s discretion here must have been exercised within the
‘exceptional circumstances’ limits of the Colorado River doctrine.”).
Here, Stoltz asks the Court to stay this case with the expectation that he will
prevail on appeal and litigate his claims in the Oregon courts. Running throughout his
argument is the assumption that there will be nothing more for this Court to do once a
stay is entered. Furthermore, Stoltz does not suggest a timeframe in which he can
reasonably expect the Oregon proceedings to conclude. Fry Foods, on the other hand,
estimates that the appeal over the personal jurisdiction issue alone will take in excess of
one year. This is precisely the situation that the Colorado River doctrine was designed to
govern. See Colorado River, 424 U.S. at 817-18.
As mentioned above, Stoltz does not believe Colorado River applies because he is
requesting a stay, not dismissal. The Supreme Court has expressly rejected Stoltz’s
argument “that the Colorado River test is somehow inapplicable” because a court is
asked to stay the case “rather than dismissing the suit outright.” Moses H. Cone. 460
U.S. at 27. In fact, the Ninth Circuit has expressed a preference for stays over dismissals,
in case the state proceeding turns out not to resolve the federal litigation. See Attwood v.
Mendocino Coast Dist. Hosp., 886 F.2d 241, 243 (9th Cir. 1989).
Curiously, Fry Foods also resists applying the Colorado River test. It argues that
Colorado River is inapplicable because Stotlz’s appeal in Oregon concerns only whether
Oregon courts have personal jurisdiction over Fry Foods. Therefore, Fry Foods
concludes, the Oregon case is not a parallel proceeding with this suit. This argument

MEMORANDUM DECISION AND ORDER - 6

misses the mark. While parallel proceedings are required under Colorado River, “exact
parallelism” is not. Nakash v. Marciano, 882 F.2d 1411, 1416 (9th Cir. 1989). This suit
and Stotlz’s Oregon suit are virtually identical. Substantively, they involve the same
parties and claims arising out of the same incident at Fry Foods’ Weiser plant. The only
difference, as far as the Court can tell, is the presence of two non-mutual collateral
issues—(1) the personal jurisdiction issue before the Oregon Court of Appeals and (2) the
statute of limitations issue Fry Foods raised in this suit. The existence of these two
collateral issues does not change the fact that Stoltz’s two suits are “substantially
similar.” Id.
Moreover, the possibility that the Oregon Court of Appeals will affirm, in which
case the Oregon courts will not resolve any of the substantive issues raised in the two
suits, does not mean Colorado River should not be applied, as Fry Foods argues. Instead,
any substantial doubt over whether the state suit will resolve the litigation in federal court
is simply a factor that strongly counsels against the stay. See Holder, 305 F.3d at 868;
Intel Corp. v. Advanced Micro Devices, Inc., 12 F.3d 908, 913 (9th Cir. 1993).
Therefore, the Court will apply the Colorado River test to Stoltz’s motion.
A.

Application of Colorado River.

Courts consider several nonexclusive factors under the Colorado River test to
determine if exceptional circumstances exist to warrant a stay: (1) whether the state court
first assumed jurisdiction over property; (2) inconvenience of the federal forum; (3) the
desirability of avoiding piecemeal litigation; (4) the order in which jurisdiction was

MEMORANDUM DECISION AND ORDER - 7

obtained by the concurrent forums; (5) whether federal law or state law provides the rule
of decision on the merits; (6) whether the state court proceedings are inadequate to
protect the federal litigant’s rights; (7) whether exercising jurisdiction would promote
forum shopping. Holder, 305 F.3d at 870. “[T]he decision whether to dismiss a federal
action because of parallel state-court litigation does not rest on a mechanical checklist,
but on a careful balancing of the important factors as they apply in a given case, with the
balance heavily weighted in favor of the exercise of jurisdiction. The weight to be given
to any one factor may vary greatly from case to case, depending on the particular setting
of the case.” Travelers, 914 F.2d at 1368 (quoting Moses H. Cone, 460 U.S. at 16).
Several of the factors are easily applied. The first factor is irrelevant because there
is no property at issue. The second factor weighs against a stay. Stoltz admits that this
Court “is not particularly inconvenient” to litigate in. Pl.’s Stay Memo., dkt. 12-1, at 11.
The fourth factor also weighs against a stay. Although Stoltz is correct that the Oregon
courts first obtained subject matter jurisdiction, “priority should not be measured
exclusively by which complaint was filed first.” Travelers, 914 F.2d at 1370 (alteration
omitted). Instead, priority should be measured “in terms of how much progress has been
made in the two actions.” Id. Here, the Oregon case has not progressed past the initial
motion to dismiss. No discovery occurred. In contrast, the parties in this case have
exchanged initial disclosures, and there is Fry Foods’ motion to dismiss pending, which
is fully briefed and ripe for a decision. Furthermore, neither party argues that the Oregon
courts are inadequate to protect the parties’ rights, the sixth factor.

MEMORANDUM DECISION AND ORDER - 8

The third and fifth factors are the most disputed. Stoltz argues that proceeding in
this case will (1) require duplicative discovery; (2) raise complicated issues, such as
workers’ compensation, subrogation, and res judicata; and (3) cause undue hardship for
Stoltz “in opposing dismissal in both courts at the same time.” Pl.’s Stay Memo., dkt. 121, at 8. Fry Foods counters that (1) there will not be duplicative discovery because there
is no discovery scheduled while the Oregon appeal is pending, and any discovery in this
case would be applicable in the Oregon suit, should it get that far; (2) it is doubtful that
any complicated issues of law will arise, and, if they do, that is hardly a good reason for
the Court to shy away; and (3) any hardship Stoltz may face is self-imposed.
The Court agrees with Fry Foods. Discovery, if either case reaches that point,
would not be duplicative because it could be used in either proceeding. The suits are,
after all, identical on the merits. Although state law controls, this suit does not raise any
novel issues, but instead concerns routine issues that this Court has dealt with numerous
times before. Moreover, given that Idaho law controls the issue of Fry Foods’ liability, as
Stoltz recognizes,2 this Court is likely more familiar than the Oregon courts with the
applicable body of law. Additionally, the Court agrees that requiring Stoltz to move
forward in this suit is not unduly burdensome. See Travelers, 914 F.2d at 1370 (“[T]he

2

Throughout his briefing, Stoltz suggests that Idaho tort law controls whether Fry Foods
committed a tort or breached the contract. However, he also suggests that Oregon workers’ compensation
and subrogation law may become relevant.

MEMORANDUM DECISION AND ORDER - 9

mere existence of a case on the state docket in no way . . . imposes a burden on the
defendant which would justify abstention.”) (internal quotation mark omitted).
Finally, Fry Foods argues that the seventh factor, inappropriate forum shopping,
goes against a stay. The Ninth Circuit has “held that forum shopping weighs in favor of a
stay when the party opposing the stay seeks to avoid adverse rulings made by the state
court or to gain a tactical advantage from the application of federal court rules.”
Travelers, 914 F.2d at 1371. According to Fry Foods, Stoltz engaged in inappropriate
forum shopping because he filed this suit only after the Oregon trial court dismissed his
Oregon suit. However, in Attwood, the Ninth Circuit held that a district court abused its
discretion by dismissing rather than staying a federal suit under Colorado River saying,
“unlike a dismissal, a stay avoids the risk that the federal plaintiff will be time-barred
from reinstating the federal suit.” Id. at 244. The court rejected the idea that the
plaintiff’s good-faith effort to ensure a forum was available to adjudicate her rights was
inappropriate forum shopping. Id. at 245 (“Where there is concurrent jurisdiction,
however, it is permissible for a plaintiff to file parallel state and federal actions
simultaneously.”). Like Attwood, Stoltz filed this suit in an attempt to preserve some
forum to adjudicate his suit on the merits. Although his preference is for Oregon, Stoltz
did not act inappropriately by filing this parallel suit. Thus, the seventh factor weighs in
favor of a stay.
In the end, the Court concludes that a stay is not warranted in this case. The
Oregon suit has not progressed far enough to provide any advantage to the Court or the

MEMORANDUM DECISION AND ORDER - 10

litigants. There do not appear to be any novel issues of state law. Absent some
advantage from deferring to the Oregon suit, the general rule that “the pendency of an
action in the state court is no bar to proceedings concerning the same matter in the
[f]ederal court having jurisdiction” should be followed. Colorado River, 424 U.S. at 817.
2.

Motion to Dismiss
Fry Foods moves to dismiss Stoltz’s complaint under Federal Rule of Civil

Proceedure 12(b)(6) on the grounds that it is barred by the statute of limitations. “A
claim may be dismissed under Rule 12(b)(6) on the ground that it is barred by the
applicable statute of limitations only when the running of the statute is apparent on the
face of the complaint. [A] complaint cannot be dismissed unless it appears beyond doubt
that the plaintiff can prove no set of facts that would establish the timeliness of the
claim.” Von Saher v. Norton Simon Museum of Art at Pasadena, 592 F.3d 954, 969 (9th
Cir. 2010) (internal citations and quotation marks omitted).
A.

Plaintiff does not have a claim for breach of contract.

The parties’ first point of contention is whether Stoltz pleaded a claim for breach
of contract. If Stoltz has, Idaho’s four-year statute of limitations applies, I.C. § 5-217,
and Stoltz’s contract claim was timely filed. If Stoltz’s causes of action are for tort only
then Idaho’s two-year statute of limitations for personal injuries applies, I.C. § 5-219(4),
and Stoltz’s complaint was untimely (unless the statute of limitations can be tolled).
According to Stoltz, Fry Foods agreed as a term of the verbal contract with DLB
Construction to “make the premises safe for DLB Construction employees to perform the

MEMORANDUM DECISION AND ORDER - 11

repair work.” Pl.’s Compl., dkt. 12-1, ¶24. Stoltz argues that Fry Foods breached this
provision of the contract. Regardless of the label applied, Fry Foods counters, Stoltz’s
contract claim actually sounds in tort. Fry Foods is correct.
The source of the duty that Fry Foods allegedly breached is the dispositive factor
for deciding whether Stoltz’s claim is for tort or contract. “If the cause of complaint be
for an act of omission or nonfeasance, which, without proof of a contract to do what has
been left undone, would not give rise to any cause of action (because no duty apart from
contract to do what is complained of exists), then the action is founded upon contract, and
not upon tort.’” Taylor v. Herbold, 483 P.2d 664, 669 (Idaho 1971) (quoting Atl. & P.
Ry. Co. v. Laird, 164 U.S. 393 (1896)). However, “[i]f the relation of the plaintiff and
the defendants is such that a duty to take due care arises therefrom irrespective of
contract and the defendant is negligent, then the action is one of tort.” Id.
The Idaho Supreme Court applied these rules in Sumpter v. Holland Realty, Inc.
and held that the district court correctly applied the four-year statute of limitations for
negligence actions unrelated to personal injuries, rather than the statute of limitations for
contracts, to the plaintiffs’ claim. 93 P.3d 680, 685 (Idaho 2004). The plaintiffs in
Sumpter contracted with the defendants for representation in the purchase of a lot and the
construction of a home on it. Id. at 681. The contract required the defendants to abide by
certain enumerated duties. Id. at 684. A statute independently imposed those same
duties on the defendants. Id. The court held that the plaintiffs had to deal with the
breaches of these duties “in tort, not contract,” because their cause of action could have

MEMORANDUM DECISION AND ORDER - 12

been “maintained without the contract by virtue of a statutory or common law duty.” Id.
at 685.
Sumpter shows that Stoltz does not have a contract claim. Fry Foods had a duty to
use ordinary care for the safety of Stoltz. Fry Foods owed this duty as a landowner to its
invitee and as a landowner who employed a contractor to do work on its property. See
Walton v. Potlatch Corp., 781 P.2d 229, 235 & n.2 (Idaho 1989) (describing the two
duties); Harrison v. Taylor, 768 P.2d 1321, 595-96 (Idaho 1989) (abolishing the open and
obvious danger doctrine in favor of ordinary-care and comparative-fault standards in
premises liability negligence actions). The contractual provision Stoltz alleges Fry Foods
violated mirrors these common law duties. Therefore, Stoltz’s claims are properly
analyzed as torts, subject to the two-year statute of limitations for personal injury actions.

B.

Idaho’s tolling law applies.

Stoltz argues that Oregon’s “savings” statute, Or. Rev. Stat. §12.220 (hereinafter §
12.220), should apply to this case to extend the filing deadline by 180 days.3 Fry Foods

3

The relevant provisions of § 12.220 are:

(1) Notwithstanding ORS 12.020, if an action is filed with a court within the time
allowed by statute, and the action is involuntarily dismissed without prejudice on any
ground not adjudicating the merits of the action, or is involuntarily dismissed with
prejudice on the ground that the plaintiff failed to properly effect service of summons
within the time allowed by ORS 12.020 and the statute of limitations for the action
expired, the plaintiff may commence a new action based on the same claim or claims

(Continued)

MEMORANDUM DECISION AND ORDER - 13

argues the Idaho’s tolling law, which does not contain a similar savings statute, applies.
Federal courts sitting in diversity apply the choice-of-law provisions of the forum state.
Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 497 (1941). Idaho applies the “most
significant relationship” test set out in the Restatement (Second) of Conflict of Laws to
determine which state’s laws govern tort cases. Section 145 of the Restatement requires
courts to consider: (a) the place where the injury occurred, (b) the place where the
conduct causing the injury occurred, (c) the domicile, residence, nationality, place of
incorporation and place of business of the parties, and (d) the place where the
relationship, if any, between the parties is centered. Grover v. Isom, 53 P.3d 821, 824
(Idaho 2002). “‘Of these contacts, the most important in guiding [the Idaho Supreme
Court’s] past decisions in tort cases has been the place where the injury occurred.’” Id.
(quoting Seubert Excavators, Inc. v. Anderson Logging Co., 889 P.2d 82, 85 (Idaho
1995)).

against a defendant in the original action if the defendant had actual notice of the filing of
the original action not later than 60 days after the action was filed.
(2) If, pursuant to subsection (1) of this section, a new action is commenced in
the manner provided by ORS 12.020 not later than 180 days after the judgment
dismissing the original action is entered in the register of the court, the new action is not
subject to dismissal by reason of not having been commenced within the time allowed by
statute.

MEMORANDUM DECISION AND ORDER - 14

Once the Court analyzes the § 145 factors, “they are evaluated in light of the
following policy concerns [set out in § 6 of the Restatement]”: (a) the needs of the
interstate and international systems, (b) the relevant policies of the forum, (c) the relevant
policies of other interested states and the relative interests of those states in the
determination of the particular issue, (d) the protection of justified expectations, (e) the
basic policies underlying the particular field of law, (f) certainty, predictability and
uniformity of result, and (g) the ease in the determination and application of the law to be
applied. Grover, 889 P.2d at 85. These considerations are not designed to be applied in a
mechanical way. Rather, the conflict must be rationally evaluated in light of the policies
underlying the conflicting rules of law. See Johnson v. Pischke, 700 P.2d 19, 22 (Idaho
1985).
Application of the § 145 factors strongly favors Idaho law. Stoltz is an Idaho
resident. He is suing to recover on injuries he received as a result of Fry Foods alleged
negligence at its Weiser, Idaho plant. That Fry Foods and DLB Construction are out of
state entities does not change the fact that the focus of their relationship was a contract
for repairs at Fry Foods’ Weiser plant. Thus, Idaho has the most and strongest contacts to
this case.
Statutes of limitations “protect[] . . . defendants against stale claims, and protect[] .
. . the courts against needless expenditure of resources.” Johnson, 700 P.2d at 24. They
“are designed to promote stability and avoid uncertainty with regards to future litigation.”
Higginson v. Wadsworth, 915 P.2d 1, 4 (Idaho 1996). Combined with the “closely

MEMORANDUM DECISION AND ORDER - 15

related question[] of tolling,” these laws represent “the State’s judgment on the proper
balance between the policies of repose and the substantive polices of enforcement
embodied in the state cause of action.” Wilson v. Garcia, 471 U.S. 261, 269, 271 (1985),
superseded by statute on other grounds, Judicial Improvements Act of 1990, Pub. L. No.
101-650, 104 Stat. 5086, 5114, as recognized in Jones v. R.R. Donnelley & Sons Co., 541
U.S. 369, 377-80 (2004). Stoltz does not contest that Idaho’s negligence law governs his
substantive claims. Given that, the balance Idaho struck between a tort victim’s right to
pursue relief and an alleged tortfeasor’s expectations of finality should also apply. See
Grover, 53 P.3d 824 (“As a general rule, a victim should recover under the system in
place where the injury occurred.”); Johnson, 700 P.2d at 25 (“Idaho, as the place of
injury, has the most significant interest [in having its statute of limitations applied].”).
Moreover, certainty, predictability, and uniformity are served by applying Idaho’s statute
of limitations and tolling law to torts committed in Idaho.
Stoltz argues that, having first brought his claims in good faith in Oregon, he has
the reasonable expectation that Oregon’s savings statute would apply in this case. As
Fry Foods points out, Stoltz’s position ignores the fact that he chose to appeal the
dismissal of his Oregon suit to the Oregon Court of Appeals. This fact is important.
Section 12.220(2) requires Stoltz to file his subsequent suit within 180 days of the time
the Oregon trial court dismissed his complaint without prejudice. The filing of a notice
of appeal does not stop the clock on the 180-day period. See Belinskey v. Clooten, 239
P.3d 251, 254-55 (Or. Ct. App. 2010). Furthermore, Oregon Rule of Civil Procedure 21

MEMORANDUM DECISION AND ORDER - 16

A(3) “requires dismissal [of an action] if there is another action pending between the
same parties for the same cause.” Beetham v. Georgia-Pacific Corp., 743 P.2d 755, 756
(Or. Ct. App. 1987). This includes an appeal. See id. The interplay between these rules
means that Stoltz could not refile his case in Oregon while his appeal is pending. By
asking the Court to apply § 12.220 unilaterally, Stoltz is requesting more favorable
treatment than he would receive in Oregon. This greatly diminishes the reasonableness
of Stoltz’s reliance on § 12.220.
Oregon anticipated that plaintiffs, like Stoltz, would sometimes lose the benefit of
§ 12.220. Prior to 2003, § 12.220 allowed a plaintiff to refile within one year of
dismissal or “reversal on appeal.” Belinskey, 239 P.3d at 253 (quoting former § 12.220
(2001)) (emphasis omitted). By removing the language concerning appeals from the
statute, the Oregon legislature intended to force plaintiffs “to make the risky choice
between an appeal and refiling.” Id. at 254. Surely, Oregon would not claim an interest
in allowing plaintiffs to avoid this conundrum outside its borders when they could not do
so within them. For these reasons, the Court concludes that Idaho’s tolling laws govern
this case.
C.

Idaho does not recognize equitable tolling.

In the event that Idaho law applies, Stoltz asks the Court to equitably toll the
statute of limitations. “‘Statutes of limitation in Idaho are not tolled by judicial
construction but rather by the expressed language of the statute.’” Wilhelm v. Frampton,
158 P.3d 310, 312 (Idaho 2007) (quoting Indep. Sch. Dist. of Boise City v. Callister, 539

MEMORANDUM DECISION AND ORDER - 17

P.2d 987, 991 (Idaho 1975)). The force of this pronouncement has led this Court to
conclude on several prior occasions that Idaho does not recognize the doctrine of
equitable tolling. See, e.g., Feltmann v. Petco Animal Supplies, Inc., no. 2:11-cv-414ELJ-MHW, 2012 WL 1189913, at *3 (D. Idaho March 20, 2012); Roberts v. United
States, no. cv-09-194-S-BLW, 2009 WL 4634133, at *1 (D. Idaho Dec. 1, 2009).
There is a possible exception to the general rule that equitable tolling is
unavailable in Idaho. In Lemhi County v. Boise Live Stock Loan Co., 278 P. 214, 217
(Idaho 1929), the Idaho Supreme Court stated that “the pendency of [a previously-filed]
proceeding[] shall have the effect to toll the statutes of limitations upon a cause of action,
[if] the proceedings . . . prevent enforcement of the remedy by action.” Put more plainly,
the statute of limitations is tolled “[w]here a person is prevented from exercising his legal
remedy by the pendency of legal proceedings.” Lindholm v. Heithecker, 213 P. 671, 672
(Kan. 1923) (quoted in Lemhi County). Assuming without deciding Lemhi County
remains good law, Feltmann, 2012 WL 1189913, at *3, Stoltz still cannot rely on its
exception. Stoltz’s Oregon suit did not prevent him from seeking relief in this Court or
Idaho state court.
Stoltz disagrees, arguing that claim preclusion would come into effect if his
Oregon suit continued on. Perhaps, but that eventuality is irrelevant. “The date of
judgment, not the date of filing, controls the application of res judicata principles.”
Hawkins v. Risley, 984 F.2d 321, 324 (9th Cir. 1993) (internal quotation marks omitted);
18 Wright, et al., Fed. Prac. & Proc. § 4404 (2d ed.). Because there has not been a

MEMORANDUM DECISION AND ORDER - 18

judgment on the merits entered in the Oregon suit, it was never a barrier to Stoltz filing
suit in Idaho.
CONCLUSION
Stoltz was injured on November 14, 2011. Under I.C. § 5-219(4), Stoltz had to
file his tort claims against Fry Foods on or before November 15, 2013. He commenced
this suit on April 8, 2014, approximately five months after the statute of limitations
expired. Because Stoltz has not identified an Idaho statute that would toll the running of
the statute of limitations in this case, the Court will dismiss Stoltz’s complaint as
untimely filed.
ORDER
IT IS ORDERED THAT:
1.

Plaintiff’s Motion to Stay (Dkt. 12) is DENIED.

2.

Defendant’s Motion to Dismiss (Dkt. 6) is GRANTED, and this suit is
hereby DISMISSED with prejudice.

3.

The Court will enter a separate judgment in accordance with Federal Rule
of Civil Procedure 58.

MEMORANDUM DECISION AND ORDER - 19

DATED: October 13, 2014

_________________________
B. Lynn Winmill
Chief Judge
United States District Court

MEMORANDUM DECISION AND ORDER - 20