Ferguson v. Management Training Corporation et al
OPINION AND ORDER: The Court GRANTS MTCs Revised Motion 20 to Dismiss Plaintiffs Complaint, GRANTS Inland Boatman's Unions Motion 18 to Dismiss, and DISMISSES this matter with prejudice. See attached 14 page Opinion and Order. Signed on 1/10/2017 by Judge Anna J. Brown. (rrr)
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
CORPORATION, a foreign
corporation, and INLAND
ERIC J. FJELSTAD
Smith & Fjelstad
722 N. Main Avenue
Gresham, OR 97030
MARTIN C. DOLAN
Dolan Law Group PC
4300 N.E. Fremont St
Portland, OR 97213
Attorneys for Plaintiff
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OPINION AND ORDER
MARK A. CRABTREE
APRIL L. UPCHURCH FREDRICKSON
Jackson Lewis PC
1001 S.W. Fifth Avenue
Portland, OR 97204
Attorneys for Defendant Management Training Corporation
ROBERT H. LAVITT
DMITRI L. IGLITZIN
MICHAEL S. ROBINSON
Schwerin Campbell Barnard Iglitzin & Lavitt LLP
18 W. Mercer Street
Seattle, WA 98119
Attorneys for Defendant Inland Boatman's Union
This matter comes before the Court on Defendant Management
Training Corporation’s Revised Motion (#20) to Dismiss
Plaintiff’s Complaint and the Motion (#18) to Dismiss of
Defendant Inland Boatman's Union.
For the reasons that follow,
the Court GRANTS Defendants’ Motions and DISMISSES this matter
The following facts are taken from Plaintiff’s Complaint and
the parties’ materials related to Defendants’ Motions to Dismiss.
On April 25, 2016, Plaintiff Deborah Ferguson filed a
Complaint in this Court in which she brings claims for violation
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of the Americans With Disabilities Act (ADA), 42 U.S.C. § 12111;
disability discrimination in violation of Oregon state law; sex
discrimination in violation of Title VII, 42 U.S.C. § 2000, et
seq.; sex discrimination in violation of Oregon Revised Statute
§ 659A.030; whistleblower discrimination in violation of Oregon
Revised Statute § 659A.199; and common-law wrongful discharge.
On August 2, 2016, Plaintiff effected service on Defendant
Management and Training Corporation (MTC).
On August 3, 2016,
Plaintiff effected service on Defendant Inland Boatman’s Union.
On August 24, 2016, Inland Boatman’s Union filed a Motion to
Dismiss pursuant to Federal Rule of Civil Procedure 12(b)(5).
August 29, 2016, MTC filed a Revised Motion to Dismiss pursuant
to Federal Rule of Civil Procedure 12(b)(5).1
The Court took
Defendants’ Motions under advisement on November 10, 2016.
Defendants move to dismiss Plaintiff’s Complaint pursuant
to Federal Rule of Civil Procedure 12(b)(5) on the ground that
Plaintiff did not serve them timely under Federal Rule of Civil
Rule 4(m) provides:
MTC filed a Motion to Dismiss on August 24, 2016. Its
Revised Motion to Dismiss supersedes its initial Motion.
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If a defendant is not served within 90 days after
the complaint is filed, the court -- on motion or
on its own after notice to the plaintiff -- must
dismiss the action without prejudice against that
defendant or order that service be made within a
specified time. But if the plaintiff shows good
cause for the failure, the court must extend the
time for service for an appropriate period.
This Court does not have jurisdiction over a defendant unless it
has been properly served pursuant to Rule 4.
See Jackson v.
Hayakawa, 682 F.2d 1344, 1347 (9th Cir. 1982).
See also Crowley
v. Bannister, 734 F.3d. 967, 975 (9th Cir. 2013)(“[The plaintiff]
failed to serve [Defendant] Sussman; therefore, the district
court lacked personal jurisdiction over Dr. Sussman.”).
plaintiff fails to serve a defendant within the time required by
Rule 4, the Court must dismiss the matter unless the plaintiff
shows good cause for her failure to timely serve the defendant.
Plaintiff did not timely serve Defendants and has not shown
good cause for her failure to do so.
It is undisputed that Plaintiff did not serve either
Defendant within 90 days after she filed her Complaint.
Plaintiff served MTC 99 days after she filed her Complaint and
served Inland Boatman’s Union 100 days after she filed her
Plaintiff, however, asserts she has shown good cause
for her failure to serve Defendants timely.
Plaintiff relies on the September 19, 2006, Declaration of her
former counsel, Eric Fjelstad, in support of his request for an
extension of time to file a response to Defendants’ Motions to
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Dismiss in which he testified in relevant part that “[d]ue to
illness, plaintiff’s counsel has been unable to perform any work
defending against the defendants’ motions to dismiss filed in
Decl. of Eric Fjelstad at 1.
In Plaintiff’s Motion
to Extend Deadlines Mr. Fjelstad also stated he has
been ill for a long time, but my illness has been
particularly acute the past couple of months. I
have been unable to spend any real time in the
office performing legal work.
* * *
In large part because of my illness, I have been
winding up my legal practice for the past several
months. I originally intended on retiring
effective August 1, but was unable to wrap up the
practice by that time. I now fully intend on
retiring effective October 1, 2016.
Pl.’s Mot. at ¶¶ 1-2.
Defendants, in turn, assert Mr. Fjelstad’s September 19,
2016, Declaration and Motion are insufficient to establish his
illness precluded him from serving Defendants by July 24, 2016,
which was 90 days from the day Plaintiff filed her Complaint.
fact, Mr. Fjelstad eventually completed service on Defendants,
Courts that have addressed untimely service due to illness
“Courts are disinclined to find good cause on the
basis of mere assertions that counsel found it inconvenient or
difficult to effect service in a timely manner.”
John v. City of
Bridgeport, 309 F.R.D. 149, 154-55 (D. Conn 2015)(citing Gibbs v.
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Imagimed, LLC, No. 11 Civ. 2949(ER), 2013 WL 2372265, at *2
(S.D.N.Y. May 30, 2013)(court concluded counsel failed to show
good cause for untimely service when counsel asserted he was
preoccupied with the care of his sick wife and two daughters).
“Plaintiff's counsel is obliged not merely to state why service
was not made, but to explain why, in the circumstances, service
was not possible despite reasonable efforts.”
John, 309 F.R.D.
See also Estate of White v. Hartford Life and Acc. Ins.
Co., No. 4:07–cv–00145, 2007 WL 7217079, at *3 (S.D. Tex.
Oct. 11, 2007)(“Plaintiffs argue that they were unable to serve
HCT within 120 days first, because the attorney for the
Plaintiffs is a sole practitioner and became ill prior to the
time to complete service. . . .
Plaintiffs[,however, do not]
adequately explain why their attorney's illness prevented him
from serving Defendant within five months of naming HCT in the
The Court further observes that Plaintiffs
made no request for additional time to serve HCT.”).
Here Mr. Fjelstad did not advise the Court that any specific
efforts were made to serve Defendants within the 90-day period or
explain why service was not possible despite any such efforts.
In addition, he did not make any request for additional time to
The Court, therefore, concludes Plaintiff has not
established good cause for failing to serve Defendants within the
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90-day period mandated by Rule 4(m).
Accordingly, the Court grants Defendants’ Motions to Dismiss
this matter pursuant to Federal Rule of Civil Procedure 12(b)(5)
for failure to serve Defendants timely.
III. Plaintiff’s claims are dismissed with prejudice.
Defendants concede Rule 4(m) provides a dismissal should be
without prejudice when a plaintiff fails to serve a Defendant
within the 90-day period.
Defendants assert, however, that
Plaintiff’s federal and state statutory claims should be
dismissed with prejudice because if Plaintiff brought a second
action based on those claims, that action would be barred as
untimely for failing to bring it within 90 days of her Notice of
Right to Sue from the EEOC and BOLI.
The record reflects BOLI mailed Plaintiff a Notice of Right
to Sue on February 2, 2016, in which it advised Plaintiff that
she had a right to “file a suit . . . based on the allegations in
her complaint within 90 days from the date of this letter.
90 days, this right will be lost.”
Ex. 1 at 1.
Decl. of Linda Zillinger,
Similarly, the EEOC mailed Plaintiff a Notice of
Suit Rights on February 16, 2016, in which it advised Plaintiff
that her “lawsuit must be filed WITHIN 90 DAYS of your receipt of
this notice; or your right to sue . . . will be lost.”
Decl., Ex. 2 at 1 (emphasis in original).
Although the record
does not reflect when Plaintiff received the EEOC letter, the
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Ninth Circuit has adopted a rebuttable presumption that a
plaintiff receives a right-to-sue letter within three days of its
Payan v. Aramark Mgmt Svcs Ltd., 495 F.3d 1119, 1125
(9th Cir. 2007).
Plaintiff’s BOLI Notice, therefore, required
her to file her claims no later than May 5, 2016, and Plaintiff’s
EEOC notice required her to file her claims no later than
May 19, 2016.
As noted, even though Plaintiff initially filed her
Complaint on April 25, 2016, she did not timely serve Defendants,
and, therefore, the Court would under other circumstances dismiss
this matter without prejudice pursuant to Rule 4(m).
made clear, however, that when an action “‘is dismissed without
prejudice, . . . the tolling effect of the filing of the suit is
wiped out and the statute of limitations is deemed to have
continued running from whenever the cause of action accrued,
without interruption by that filing.’”
Miller v. Johnson,
No. 1:16-cv-00727-JLT, 2016 WL 6217045, at *5 (E.D. Cal. Oct. 24,
2016)(quoting Elmore v. Henderson, 227 F.3d 1009, 1011 (7th Cir.
See also O’Donnell v. Vencor, Inc., 466 F.3d 1104, 1111
(9th Cir. 2006)(When “a complaint is timely filed and later
dismissed, the timely filing of the complaint does not ‘toll’ or
suspend the 90–day limitations period.
In such cases, dismissal
of the original suit, even though labeled as without prejudice,
nevertheless may sound the death knell for the plaintiff's
8 - OPINION AND ORDER
underlying cause of action if the sheer passage of time precludes
the prosecution of a new action.”)(quotations omitted)); Dupree
v. Apple, Inc., No. 16-CV-00289-LHK, 2016 WL 4191653, at *6 (N.D.
Cal. Aug. 9, 2016)(“The ninety-day statute of limitations period
for Title VII actions is not tolled because the initial action
was dismissed without prejudice.
Amendment would therefore be
Defendant's motion to dismiss Plaintiff's first and
fifth causes of action as they relate to Title VII violations
. . . is therefore granted with prejudice.”)(quotation omitted)).
Here, as in Dupree, the ninety-day limitations period for
Plaintiff’s statutory claims would not be tolled because the
Court must dismiss this matter for failure to serve Defendants
within the required time.
Because this matter is now beyond the
ninety-day limitations period, any attempt to refile this action
to assert Plaintiff’s statutory claims would be futile.
Accordingly, the Court dismisses Plaintiff’s First through
Fifth Claims with prejudice.
Plaintiff’s wrongful-termination claim is preempted.
Plaintiff alleges in her Complaint that she “was forced to
pass a student . . . who clearly had failed the course
[Plaintiff] taught,” which Plaintiff believed was against federal
Compl. at ¶ 13.
Plaintiff alleges she “objected
vehemently” to passing the student, and, as a result, Defendants
“engaged in a series of retaliatory acts against” Plaintiff.
9 - OPINION AND ORDER
These allegations form the factual basis for both Plaintiff’s
Fifth Claim for whistleblower discrimination in violation of
Oregon Revised Statute § 659A.199 and her Sixth Claim for commonlaw wrongful discharge.
Defendants move to dismiss Plaintiff’s
Sixth Claim on the ground that Plaintiff cannot bring a wrongfultermination claim because she has an adequate statutory remedy.
Under Oregon law an employer may discharge an employee
at any time for any reason unless doing so violates a
contractual, statutory, or constitutional requirement.
Providence Health Sys. Or., 195 Or. App. 134, 140 (2004).
tort of wrongful discharge is a narrow exception to this general
Dew v. City of Scappoose, 208 Or. App. 121, 140 (2006).
The tort of wrongful discharge was not intended to be a tort of
general application but rather an interstitial tort to provide a
remedy when the conduct in question is unacceptable and no other
remedy is available.
Reddy v. Cascade Gen., Inc., 227 Or. App.
559, 567 (2009)(citation omitted).
Oregon courts have recognized
two circumstances that give rise to the common-law tort of
(1) discharge for exercising a job-related
right of important public interest and (2) discharge for
complying with a public duty.
Defendants contend Plaintiff may not bring her common-
10 - OPINION AND ORDER
law wrongful-termination claim because Oregon Revised Statute
§ 659A.199 provides an adequate statutory remedy.
Shaw v. Action Fin. Svcs. LLC., No. 1:14–CV–00469–CL, 2014 WL
4404961, at *3 (Sept. 5, 2014)(“ORS § 659A.199 provides an
adequate (if not better) remedy than a wrongful termination
Thus, Shaw's claim that AFS violated ORS § 659A.199 by
retaliating against Shaw for Shaw's report of alleged
discrimination against him precludes a common law wrongful
termination claim based on the same conduct.”); Shapiro v. Am.
Bank. [FSB], No. 3:12–cv–1358–AC, 2013 WL 6157266, at *4
(Nov. 21, 2013)(same); Franklin v. Clarke, No. 10–00382–CL, 2011
WL 4024638, at *11 (D. Or. Sept. 9, 2011)(same); Duran v. Window
Prods., Inc., CV No. 10–125–ST, 2011 WL 1261190, at *2–3 (D. Or.
Mar. 29, 2011)(same).
But see Krouse v. Ply Gem Pac. Windows
Corp., No. 10–111–HA, 2011 WL 2971774, at *8 (D. Or. July 19,
2011)(holding the plaintiff’s wrongful-discharge claim was not
precluded by § 659A.199).
In Duran the court thoroughly analyzed whether Oregon
Revised Statute § 659A.199 provides an adequate statutory remedy.
In that case the plaintiff brought a claim under § 659A.199 and a
claim for wrongful termination.
In bringing her wrongful-
termination claim, the plaintiff relied on Olsen v. Deschutes
Cty., 204 Or. App. 7 (2006), in which the Oregon Court of Appeals
addressed whether the court should dismiss the plaintiffs'
11 - OPINION AND ORDER
wrongful-termination claim because the plaintiffs had the option
of pursuing adequate statutory remedies under § 659.510
(renumbered § 659A.203) of Oregon's whistleblower statute.
Duran, 2011 WL 1261190, at *4.
The Oregon Court of Appeals
concluded the fact that the statutory remedies were adequate was
insufficient standing alone because the legislature stated
explicitly in the text of the statute that the remedies were not
intended to restrict or to impair any existing common-law
The plaintiff in Duran contended even though the
statutory remedies under § 659A.199 were adequate, the
legislature specifically provided in § 659A.199(2) that the
remedies are "in addition to any common law remedy . . . for the
conduct constituting a violation of this section," and,
therefore, the plaintiff's wrongful-termination claim was not
precluded by § 659A.199 under Olsen.
rejected the plaintiff's argument.
The court, however,
Although the court conceded
the language of § 659A.199(2) in conjunction with the holding in
Olsen appears to suggest that the plaintiff's wrongfultermination claim was not precluded, the court noted two grounds
for declining to follow the reasoning in Olsen:
First, Olsen interprets Oregon Supreme Court precedent
in this area in a manner that the [Oregon] [S]upreme
[C]ourt itself has not expressly articulated and which
is arguably contrary to that higher court's stillcontrolling holdings on this point. In fact, the
Oregon Supreme Court has never expressly overruled or
even clarified its prior decisions to mean what Olsen
holds. Second, the requirement that clear legislative
12 - OPINION AND ORDER
intent always be present before a wrongful discharge
claim is precluded — that an adequate statutory remedy
by itself is not enough — necessarily expands the tort
of wrongful discharge into areas where legislation
already has given the claimant an adequate remedy and
the public's interest is protected. Such expansion is
clearly at odds with the tort's original construct, "to
fill a remedial gap where a discharge would be left
unvindicated," Dunwoody v. Handskill Corp., 60 P.3d
1135, 1139 (Or. Ct. App. 2003), and its original
purpose to “serve as a narrow exception to the at-will
employment doctrine in certain limited circumstances
where the courts have determined that the reasons for
the discharge are so contrary to public policy that a
remedy is necessary in order to deter such conduct.”
Draper, 995 F. Supp. at 1129. Put another way, Olsen's
holding at least enlarges the availability of the tort
in ways that the Oregon Supreme Court did not
contemplate when it created the tort and has not
expressly approved since, thus potentially converting
the tort from being a narrow exception to the general
rule to the general rule itself.
2011 WL 1261190, at *3 (quoting Reid v. Evergreen Aviation Ground
Logistics Enter., Inc., Civil No. 07–1641–AC, 2009 WL 136019, at
*15–20 (D. Or. Jan. 20, 2009)).
This Court has previously adopted the reasoning set out
in Duran and continues to do so here.
See, e.g., Findings and
Recommendation of Dennis James Hubel, M.J. (adopted on June 24,
2008, by Brown, J.); James v. Evergreen Intern. Airlines, Inc.,
No. 07-CV-1640-HU, 2008 WL 2564804, at *5 (D. Or. June 23, 2008)
("[The plaintiff] argues that the test used in Draper to
determine whether an alternate remedy exists requires a showing
that an alternate adequate remedy exists and that the legislature
intended the remedy to supersede common law remedies.
plaintiff] is incorrect.
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The test is a disjunctive one in which
a wrongful termination claim is precluded if the alternate remedy
is adequate or if the legislature intended the remedy to
supersede common law remedies.").
Thus, the Court concludes the
presence of an adequate statutory remedy under Oregon Revised
Statute § 659A.199 precludes a claim for wrongful termination
that is based on the same conduct that underlies Plaintiff’s
Fifth Claim for violation of § 659A.199.
Accordingly, on this record the Court grants
Defendants’ Motion to Dismiss Plaintiff’s wrongful-discharge
claim and dismisses that claim with prejudice.
For these reasons, the Court GRANTS MTC’s Revised Motion
(#20) to Dismiss Plaintiff’s Complaint, GRANTS Inland Boatman's
Union’s Motion (#18) to Dismiss, and DISMISSES this matter with
IT IS SO ORDERED.
DATED this 10th day of January.
/s/ Anna J. Brown
ANNA J. BROWN
United States District Judge
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