Smith v. ICTSI Oregon, Inc.

Filing 37

Opinion and Order: The Court GRANTS Defendants Motion and DISMISSES this matter with prejudice. Signed on 03/02/2016 by Judge Anna J. Brown. See attached Opinion and Order for full text. (bb)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON

CECIL F. SMITH,

3:15-cv-00035-BR
Plaintiff,

v.
ICTSI OREGON, INC., an Oregon
corporation,
Defendant.
CHARLES ROBINOWITZ
1211 S.W. Fifth Avenue
2323 Pacwest Center
Portland, OR 97204
[phone]
KATHRYN M. PRATT
18292 S.W. Santoro Drive
Beaverton, OR 97007
[phone]
Attorneys for Plaintiff
TODD A. ZILBERT
Lindsay Hart LLP
1300 S.W. Fifth Avenue, Suite 3400
Portland, OR 97201
[phone]
Attorneys for Defendant
1 – OPINION AND ORDER

OPINION AND ORDER

BROWN, Judge.
This matter comes before the Court on Defendant’s Motion
(#22) for Summary Judgment on Statute of Limitations Defense.
For the reasons that follow, the Court GRANTS Defendant’s Motion
and DISMISSES this matter with prejudice.

BACKGROUND
On January 7, 2013, Plaintiff stepped into a pothole at the
slab yard of Terminal 6 of the Port of Portland in Portland,
Oregon, while working as a marine clerk for Jones Stevedoring.
As a result of stepping into the pothole, Plaintiff tore his
Achilles tendon and missed over six months of work.
At the time of his injury Plaintiff knew Terminal 6 was
owned by the Port of Portland and that Defendant ICTSI Oregon,
Inc., had leased Terminal 6 from the Port since 2010.

Plaintiff

also knew ICTSI subleased the slab yard at Terminal 6 to EVRAZ, a
steel company.

“Responsibility for the maintenance of the

pavement at Terminal 6 depends on contracts among ICTSI, the Port
of Portland, and other parties.”

Joint Statement of Agreed Facts

(#21) at 2.
Plaintiff’s counsel opened a new civil case, paid the fee
for filing a complaint, and obtained a case number on January 7,
2015, two years to the day after Plaintiff's injury.

Although

Plaintiff’s counsel attempted to file the complaint on that date,
2 – OPINION AND ORDER

the complaint was not uploaded on the Court’s docket and,
therefore, the transaction to docket the First Complaint was not
completed on that date.

On January 13, 2015, the Court Clerk

notified Plaintiff’s counsel that the Court did not receive a
complaint on January 7, 2015.

Plaintiff filed his First

Complaint (#1) on January 13, 2015.

STANDARD
Summary judgment is appropriate when there is not a “genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”

Washington Mut. Ins. v. United

States, 636 F.3d 1207, 1216 (9th Cir. 2011).
Civ. P. 56(a).

See also Fed. R.

The moving party must show the absence of a

dispute as to a material fact.

Rivera v. Philip Morris, Inc.,

395 F.3d 1142, 1146 (9th Cir. 2005).

See also Emeldi v. Univ. of

Or., 673 F.3d 1218, 1223 (9th Cir. 2012).

In response to a

properly supported motion for summary judgment, the nonmoving
party must go beyond the pleadings and point to “specific facts
demonstrating the existence of general issues for trial.” In re
Oracle Corp. Sec. Litig., 627 F.3d 376, 387 (9th Cir. 2010) “This
burden is not a light one . . . .

The non-moving party must do

more than show there is some ‘metaphysical doubt’ as to the
material facts at issue.”

Id. (citation omitted).

A dispute as to a material fact is genuine “if the evidence
3 – OPINION AND ORDER

is such that a reasonable jury could return a verdict for the
nonmoving party.”

Villiarimo v. Aloha Island Air, Inc., 281 F.3d

1054, 1061 (9th Cir. 2002)(quoting Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986)).

The court must draw all

reasonable inferences in favor of the nonmoving party.
v. Verity, Inc., 606 F.3d 584, 587 (9th Cir. 2010).

Sluimer

“Summary

judgment cannot be granted where contrary inferences may be drawn
from the evidence as to material issues.”

Easter v. Am. W. Fin.,

381 F.3d 948, 957 (9th Cir. 2004)(citing Sherman Oaks Med. Arts
Ctr., Ltd. v. Carpenters Local Union No. 1936, 680 F.2d 594, 598
(9th Cir. 1982)).
A “mere disagreement or bald assertion” that a genuine
dispute as to a material fact exists “will not preclude the grant
of summary judgment.”

Deering v. Lassen Cmty. Coll. Dist., No.

2:07-CV-1521-JAM-DAD, 2011 WL 202797, at *2 (E.D. Cal., Jan. 20,
2011)(citing Harper v. Wallingford, 877 F.2d 728, 731 (9th Cir.
1989)).
2010).

See also Moore v. Potter, 701 F. Supp. 2d 1171 (D. Or.
When the nonmoving party's claims are factually

implausible, that party must “come forward with more persuasive
evidence than otherwise would be necessary.”

LVRC Holdings LLC

v. Brekka, 581 F.3d 1127, 1137 (9th Cir. 2009)(citing Blue Ridge
Ins. Co. v. Stanewich, 142 F.3d 1145, 1149 (9th Cir. 1998)).
The substantive law governing a claim or a defense
determines whether a fact is material.
4 – OPINION AND ORDER

Miller v. Glenn Miller

Prod., Inc., 454 F.3d 975, 987 (9th Cir. 2006).

If the

resolution of a factual dispute would not affect the outcome of
the claim, the court may grant summary judgment.

Id.

DISCUSSION
Defendant moves for summary judgment on the basis that
Plaintiff’ First Complaint (#1) was not filed until January 13,
2015, which was after the two-year statute of limitations.
Plaintiff, on the other hand, contends he filed his action within
the two-year statute of limitations because (1) the discovery
rule applies and a genuine dispute of material fact exists as to
when Plaintiff’s claim accrued and (2) even if the discovery rule
did not apply, Plaintiff’s filing of his First Complaint was
effective as of January 7, 2015, which was within two years of
Plaintiffs’s injury.
I.

Discovery Rule
“A federal court sitting in diversity applies the

substantive law of the state, including the state's statute of
limitations.”

Albano v. Shea Homes Ltd. Partnership, 634 F.3d

524, 530 (9th Cir. 2011).

Plaintiff’s personal-injury negligence

claim, therefore, is governed by Oregon’s two-year
personal-injury statute of limitations.

See Or. Rev. Stat.

§ 12.110(1).
Under Oregon law “the statute of limitations in a negligence
5 – OPINION AND ORDER

action does not begin to run until the plaintiff discovers, or in
the exercise of reasonable diligence should have discovered, the
identity of the tortfeasor.”
App. 517, 522 (1996).

Gehrke v. CrafCo, Inc., 143 Or.

“When a plaintiff in the reasonable

exercise of care should have become aware of a substantial
possibility that another is responsible for her injury is a
question of fact that can be resolved against the plaintiff on
summary judgment only if the plaintiff should have achieved that
awareness as a matter of law.”

Cole v. Sunnyside Marketplace,

LLC, 212 Or. App. 509, 519 (2007).

When the identity of the

tortfeasor was “inherently discoverable at the time of the
incident,” however, the discovery rule does not toll the relevant
statute of limitations, and the plaintiff must file any action
within two years of the injury.

Gehrke, 143 Or. App. at 524.

See also Cole, 212 Or. App. at 519.
In Gehrke the plaintiff was injured when she tripped over a
metal extension of a crafts display at a Ben Franklin Crafts
store in Woodburn, Oregon, in July 1992.
519.

Gehrke, 143 Or. App. at

Gehrke filed an action against CrafCo in July 1994 based on

the determination of plaintiff’s counsel that CrafCo was the
owner of the Ben Franklin Crafts store in Woodburn.

Id.

The

plaintiff learned during discovery, however, that CrafCo owned
the Ben Franklin Crafts store in Springfield, Oregon, but the
store in Woodburn was owned by PJDJS.
6 – OPINION AND ORDER

Id. at 520.

Accordingly,

in January 1995 (two years and six months after the injury) the
plaintiff in Gehrke amended her complaint to add PJDJS.

Id.

The court concluded the discovery rule did not apply to the
facts of the case because the “plaintiff knew or should have
known that she had been wronged by the possessor of the store at
the time of the fall, even though she did not know whom the
possessor was.”

Id. at 523.

The identity of the tortfeasor was

“inherently discoverable” when the plaintiff was injured because
at the time of the injury “she knew that the store, regardless of
its legal identity, had caused her alleged injury.”

Id. at 523.

The court reasoned “this case does not involve a situation where
the store’s causal involvement was unknown to plaintiff.

As we

have said, the identity of the possessor of the store in Woodburn
was inherently discoverable at the time of the incident.”
524.

Id. at

The Gehrke court was concerned that extending the discovery

rule to toll the statute of limitations in such circumstances
“would mean that the statute of limitations would not begin to
run in situations where the cause of the injury was known and the
role of the tortfeasor was apparent but there was confusion about
who was the proper legal defendant.”

Id.

Accordingly, the Court

concluded Gehrke’s claim against PJDJS was barred by the statute
of limitations.
The Oregon Court of Appeals again considered the discovery
rule in Cole.

212 Or. App. 509.

7 – OPINION AND ORDER

In Cole the plaintiff was

abducted from her workplace in a shopping mall and raped on
December 30, 2001.

Id. at 511.

In February 2003 the plaintiff

sued the mall owner and its property manager alleging they were
negligent in “failing to provide adequate security, including
failing to provide security patrols in the parking lot, designing
the mall without considering certain security hazards, and
failing to provide surveillance cameras.”

Id.

In December 2003

during discovery the plaintiff learned the mall had contracted
with Harbor Security to provide security at the mall.
511-12.

Id. at

Accordingly, on April 6, 2014, more than two years after

the incident, Cole amended her complaint to name Harbor Security
as a defendant.

Id. at 512.

The Cole court distinguished Gehrke because in Gehrke “the
plaintiff was actually aware of the store's causal involvement
from the moment of her injury, and the identity of the actual
owner of the store was information that any reasonable person
could have timely acquired.”

Id. at 520.

As to the plaintiff in

Cole, however, the court concluded:
[T]his is not a case in which the relevant facts as to
Harbor’s identity and possible responsibility for
plaintiff’s assault were so obvious at the time of
plaintiff’s injury that the information may fairly be
said to be “inherently discoverable.” This case is not
controlled by Gehrke, where the plaintiff, at the time
of her injury, knew the identity of the tortfeasor —
the store — and simply did not exercise reasonable
diligence in nailing down accurately the identity of
the store’s owner. In this case, at the time of her
injury, plaintiff did not know the identity of the
tortfeasor — Harbor — at all. In fact, it is
8 – OPINION AND ORDER

undisputed that she did not know that Sunnyside mall
had contracted with anyone to provide security.
Id. at 520 (emphasis in original).
Defendant contends the case now before this Court is
controlled by Gehrke.

In Defendant’s view Plaintiff, like the

plaintiff in Gehrke, knew he had been injured at the time of the
incident and knew the party responsible for maintenance of the
pavement was responsible for that injury even though he did not
know the legal identity of the party responsible for maintaining
the pavement.

See Gehrke, 143 Or. App. at 523.

Accordingly,

Defendant contends the statute of limitations began to run from
the moment Plaintiff suffered the injury.
Plaintiff, on the other hand, contends this case is
controlled by Cole because even though Plaintiff may have known
the party responsible for the maintenance of the pavement at the
slab yard of Terminal 6 was responsible for his injury, Plaintiff
would have to examine the contracts between Defendant, the Port
of Portland, and EVRAZ in order to determine the identity of that
party.

Accordingly, Plaintiff contends the identity of the

tortfeasor was not inherently discoverable at the time of the
accident, and, therefore, a genuine dispute of material fact
exists as to when Plaintiff discovered or reasonably should have
discovered ICTSI was the proper party to sue.
Although the application of the holdings in Gehrke and Cole
is arguable on these facts, the Court agrees with Defendant’s
9 – OPINION AND ORDER

analysis and concludes Gehrke controls this case.

Like the

plaintiff in Gehrke, Plaintiff here knew as a general matter who
the responsible party was at the time of the injury (i.e., who
was responsible for maintaining the pavement).

Although

Plaintiff did not know the legal identity of the party
responsible for the maintenance of the pavement at the time of
the injury and it would have required some research to learn that
identity, these facts not differentiate Plaintiff from the
plaintiff in Gehrke who also had to conduct research in order to
determine the identity of the possessor of the store.
Gehrke, 143 Or. App. at 519.

See

In fact, Plaintiff in this case

knew more than the plaintiff in Gehrke because it is undisputed
that Plaintiff knew at the time of the injury that the liable
party was one of three possible parties:

the Port of Portland,

ICTSI, and/or EVRAZ.
Cole, on the other hand, is distinguishable from these
facts.

Unlike Plaintiff in this case and the plaintiff in

Gehrke, the Cole plaintiff was unaware there was any firm
contracted to provide security at the mall.

The Cole court

distinguished Gehrke on this basis when it noted:

“[I]t is

undisputed that [Cole] did not know that Sunnyside mall had
contracted with anyone to provide security.”
at 520.

Cole, 212 Or. App.

Accordingly, the Cole court found “Harbor’s identity and

possible responsibility for plaintiff’s assault” were not “so
10 – OPINION AND ORDER

obvious at the time of plaintiff’s injury that the information
may fairly be said to be ‘inherently discoverable.’”

Id.

As

noted, however, Plaintiff in this case knew who the responsible
party was as a general matter (i.e., the party responsible for
maintaining the pavement) and knew that the Port of Portland,
Defendant, and/or EVRAZ would be the responsible party.
Accordingly, this Court is bound by Gehrke because the facts
of this case are not materially distinguishable from Gehrke.

As

in Gehrke, the Court concludes the identity of the tortfeasor was
inherently discoverable to Plaintiff at the time of the injury.
To hold otherwise would permit the legal result that the Gehrke
court explicitly foreclosed:

“the statute of limitations would

not begin to run in situations where the cause of the injury was
known and the role of the tortfeasor was apparent but there was
confusion about who was the proper legal defendant.”

See Gehrke,

143 Or. App. at 524.
On this record, therefore, the Court concludes the two-year
statute of limitations began to run on January 7, 2013, and
expired on January 7, 2015.
II.

Effectiveness of Plaintiff’s January 7, 2015, Attempt to
File his Complaint
Plaintiff contends he “filed” his case for purposes of the

statute of limitations on January 7, 2015, when he paid the
filing fee and obtained a civil case number even though the First

11 – OPINION AND ORDER

Complaint (#1) was not actually filed.
Plaintiff’s contention, however, is contrary to the plain
meaning of Oregon law relevant to statutes of limitations, which
provides “an action shall be deemed commenced as to each
defendant, when the complaint is filed, and the summons served on
the defendant.”

Or. Rev. Stat. § 12.020(1).

As noted, Plaintiff

actually filed his First Complaint (#1) on January 13, 2015, six
days after the statute of limitations expired on January 7, 2015.
Accordingly, on this record the Court concludes Plaintiff’s
claim against ICTSI is barred by the two-year statute of
limitations in Oregon Revised Statute § 12.110(1).

CONCLUSION
For these reasons the Court GRANTS Defendant’s Motion and
DISMISSES this matter with prejudice.
IT IS SO ORDERED.
DATED this 2nd day of March, 2016.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge

12 – OPINION AND ORDER