Opinion
Civil No. 01-125-AS
August 15, 2001
FINDINGS AND RECOMMENDATION
Plaintiffs Sarah Bean and Mallory Bean ("Plaintiffs") were allegedly rearended by Defendant Marshall Tobyn Tyler ("Defendant") on January 2, 1999. Plaintiffs were injured in the accident and filed a complaint in the Circuit Court of the State of Oregon for the County of Multnomah on December 27, 2000. On January 1, 2001, a process server, hired by Plaintiffs, appeared at Defendant's residence in Portland, Oregon, to serve the complaint on Defendant. The remaining facts are in dispute.
Plaintiffs have presented evidence that the process server approached a male in the yard of the residence who indicated that he was Marshall Tobyn Tyler. The process server then personally served a copy of the complaint and summons on Defendant.
Defendant has presented evidence that the male in the yard of the residence was not Marshall Tobyn Tyler, but rather was his cousin, Steven Turnbull. Turnbull did not live with Defendant. He was visiting Defendant and had spent the night at his house. Turnbull advised the process server that he was not Defendant and that Defendant was unavailable. The process server handed Turnbull the papers and asked him to give them to the Defendant. A copy of the complaint and summons was not subsequently mailed to Defendant at his residence.
Defendant moves for summary judgment arguing that, under Oregon law, the applicable statute of limitations is two years and Defendant was not properly served in a timely manner. Plaintiffs concede that state law applies to establish both the applicable statute of limitations and the applicable service of process rules.
LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure allows the granting of summary judgment:
if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.
Fed.R.Civ.P. 56(c). "[T]he requirement is that there be no genuine issue of material fact." Anthes v. Transworld Systems, Inc., 765 F. Supp. 162, 165 (Del. 1991) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986)) (emphasis in original).
The movant has the initial burden of establishing that no genuine issue of material fact exists or that a material fact essential to the nonmovant's claim is absent. Celotex v. Catrett, 477 U.S. 317, 322-24 (1986). Once the movant has met its burden, the onus is on the nonmovant to establish that there is a genuine issue of material fact. Id. at 324. In order to meet this burden, the nonmovant "may not rest upon the mere allegations or denials of [its] pleadings," but must instead "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e); see Celotex, 477 U.S. at 324.
An issue of fact is material if, under the substantive law of the case, resolution of the factual dispute could affect the outcome of the case. Anderson, 477 U.S. at 248. Factual disputes are genuine if they "properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Id. at 250. On the other hand, if after the court has drawn all reasonable inferences in favor of the nonmoving party, "the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Id. at 249-50 (citations omitted).
DISCUSSION
The relevant question here is who was served on January 1, 1999. There is clearly a genuine issue of fact on this question which prevents the court from granting summary judgment.
CONCLUSION
Defendant's motion (17) for summary judgment should be DENIED.