Ellwood v. United States of America et al

Filing 143

Opinion and Order: Magistrate Judge Coffin's Findings & Recommendation 133 filed 9/1/10 is adopted. Defendants' Motion for Summary Judgment 110 is granted. Signed on 12/8/10 by Chief Judge Ann L. Aiken. (lae)

FILED'!0DEC 09 15:54iJsnC-ORE

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON

ASHLEY MARIE ELLWOOD, Plaintiff,
v.

Civ.

No. 07-6225-TC ORDER

L.F. LOCKHART, Project
C o n s t r u c t i o n Engineer for
H a y w a r d Baker Inc., and
HAYWARD BAKER, INC., a
D e l a w a r e Corp.,
Defendants.

Gordon L. Welborn Rodney K. Norton Erika L. Wilson HOFFMAN, HART & WAGNER LLP 439 SW Umatilla Avenue Redmond, Oregon 97756 Attorneys for Plaintiff Dennis N. Freed Mathew g. Ukishima Taylor R. Halvik SMITH FREED & EBERHARD PC 111 SW Fifth Avenue, 43rd Floor Portland, Oregon 97204 A t t o r n e y s for Defendants

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ORDER

Aiken,

ef Judge: s Findings and Magistrate Judge Coffin 's Motion for Summary

Magistrate Judge Coffin fi Recommendat on September I, 2010. defendant Hayward 8a Judgment time bar ed because pIa The matter is now

iff's negligence claims are me. See 28 U.S.C.
§

636 (b) (1) (B) and Fed. R. Civ. P. 72 (b) .

ei judge's

party ob

s to any portion of a magistrate , the district court must make rtion of the magistrate judge's

sand Recommendat

a

novo determination of that 28 U.S.C.
§

report.

636(b) (1); McDonnell Douglas Corp. v. 656 F.2d 1309, 1313 (9th Cir .

1981),

.. denied, 455 U.S. 920 (1982).

Plaintiff

1

timely re, I ing.

objections to the Findings and Recommendation, and there de novo review of istrate Judge Coffin's

Plaintiff objects to Magistrate Judge Coff recommendation that the Court grant defendant motion for summary judgment. Specifically, pIa

's Baker's f objects to

related findings: 1) that upon receiving information per her Fre of Information Act (FOIA) request, plaintiff knew as a plaintiff

matter of law of Hayward Baker's involvement; 2) adequate informat

to start the statute of limitations not relate her

on March 23, 2004; 3) that plaintiff

ORDER

claims against Hayward Baker back to her original complaint filed May 29, 2007; and 4) that summary judgment based upon the recreational immunity statutes need not be decided. r find no

error in the any of Magistrate Judge Coffin's findings or recommendations. Plaintiff primarily argues that Magistrate Judge Coffin erred in concluding that the statute of limitations began running on March 23, 2004, when plaintiff received a ForA response from the government identifying Hayward Baker as the prime contractor. The statute of limitations begins running once the plaintiff knows or through the exercise of reasonable care should have known that the defendant committed negligence against her. Widing v. Schwab, Williamson & Wyatt, 154,Or. App. 276, 282-283, 961 P.2d 889 (1998) (quoting Gaston v. Parsons, 318 Or. 247, 256, 444

864 P.2d 1319 (1994)); see also United States v. Kubrick, U.S. 111, 123 (1979)

(statute of limitations begins running once
inju~y).

plaintiff knows of the injury and who caused the

Here, plaintiff argues that she did not know, and could not have known, of Hayward Baker's involvement and reasonably believed Hayward Baker was a government employee, thus preventing the statute of limitations from beginning on March 23, 2004. government's ForA response provided plaintiff with Hayward Baker's incident report, pictures of the construction site, the resident engineer's weekly reports, and the traffic control reports. Decl.of Matthew Ukishima, Ex. F, p. 1-2. The The

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ORDER

rnment provided plaintiff with weekly engineer pl iff determine who were the contractors, s

rts to

contractors, and government agencies involved wi construction site because the government did not rna The government advised plaintiff that she could who the contractors were by reading
t

ain a list. termine Nothing

wee wee y

rts.

government's response or in t

s suggested Rather, these

that Hayward Baker was a government s indicated that Hayward Ba site. The reports also re was

prime contractor for

rred to Hayward Baker and the lect
r

Bureau of Reclamation as working at 3. This statement is

ly to ensure safety. or which alerts with the safety of the contractor. Further,

plaintiff to Hayward Baker's i site and of its status as an i plaintiff was provided with was typed on Hayward Ba plaintiff exe sed reas r lett

Baker's incident report that Accordingly, had

le care, she should have known contractor and not a government she received the government's

Hayward Baker was an employee on March 23, 2004 FOIA response. Plaintiff's that the statute of 1 23, 2004. erred in rna plaintiff's reina

objections all rely upon the argument tat i o n s did not begin running on Ma

Because I do not find that Magistrate Judge Cof ion, I find no need to address ng objections.

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ORDER

Conclusion THEREFORE, IT IS HEREBY ORDERED that Magistrate Judge Coff
IS

Findings and Recommendation (doc. 133) is ADOPTED. De
Sf

led September Judgment

1, 2010,

Motion for

110) is GRANTED. IT IS SO ORDERED. Dated this

;!

of December, 2010.

Uni

Ann Aiken States District

ORDER